STEP TWO

Formal admissions

In any proceeding, a party may admit facts, dispensing with the need for the other party to prove them.

Criminal Proceeding
Issue / Where / Ratio / Notes
Guilty Plea / Text / Accused may plead guilty, which constitutes a formal admission of all the facts necessary to establish the elements of the offence. / Crown may want additional facts in sentencing, will have to prove b.r.d. s. 724(3) CCC
Withdrawing / Adgey SCC 1973 / The Accused may change his plea if he can persuade a court that there are “valid reasons” to do so.
T(R) ONCA 1992 / Factors to consider to determine whether withdrawal valid:
-voluntariness
-unequivocal
-properly informed (nature of charge and consequences)
-overall justice
-infringement of constitutional rights
Mahoney NFCA / BUT if plea voluntary with full understanding of change and consequences, it is NOT a ‘valid reason’ to withdraw the plea just because the sentence is unexpected.
Lyons SCC 1987 / Dissatisfaction with a sentence is not a valid reason to withdraw a guilty plea.
Other Facts / s. 655 CCC / Accused can admit facts short of pleading guilty to dispense with the need for the Crown to prove them. / *so once these facts are admitted, the Crown can’t lead evidence regarding them b/c they are no longer material facts (not in issue).
Pintar ONCA 1996 / The Crown can also admit facts, even though the Code doesn’t say anything about it.
Hebert SCC 1990 / Crown and Defence can use an agreed statement of facts for the Court to make a legal determination / *esp. useful for constitutional questions
Civil Proceeding
Issue / Where / Ratio / Notes
When / Tunner v Novak BCCA 1993 / Formal Admission may be made:
  1. statement in pleadings or failure to plead
  2. agreed statement of facts
  3. oral statement made by counsel at trial or counsel’s silence in the face of statements made by opposing counsel to the TJ with the intention that the TJ rely on them
  4. letter written by a party’s solicitor prior to trial
  5. reply or failure to reply to a request to admit facts (request may be made under Rule 7-7 BC SCCR)
/ Neither party can go against formal admissions without the consent of the Court.
If it is a re-trial, admission are no longer binding but can go in for the truth of their contents under the hearsay admissions exception.

Judicial notice of facts

The rules for judicial notice of facts have been set by three prominent academics:

Thayer (USA) / Morgan (USA) / Davis (CAN)
-judicial reasoning is essentially judicial notice in and of itself, it depends on unproven but reliable assumptions
-notice should therefore be widely used
-counsel could then rebut any notice with evidence to the contrary
-based on the trial efficiency rationale / -Judicial notice should only be used if tuth of the fact is indisputable among reasonable people
-The threshold for judicial notice is so high, that counsel cannot rebut judicial notice once taken (if you could, then it wouldn’t be the proper subject for judicial notice)
-Rationale: avoid judicial activism while protecting the reputation of the justice system by allowing judges to take notice of things that are super obvious. / -There is a distinction between adjudicative and legislative or social facts
-Therefore, we should use the Thayer standard for legislative or social facts
-And use the morgan ‘gold’ standard for adjudicative facts.
Issue / Where / Ratio / Notes
Purpose of Judicial Notice / Nfld v. NAPE SCC 2004 / The purpose of judicial notice is to avoid the situation where the Court, on the evidence, reaches a factual conclusion which contradicts readily accessible sources of indisputable accuracy.
Procedure / Cronk ONCA 1995 / Party must apply to court for judicial notice of fact.
Judge may take unprompted notice of a fact IF they first inform counsel they are doing so and provide opportunity for counsel to submit.
Types of Facts / Danson SCC 1990 /
  1. Adjudicative facts
-Specific facts which must be proved by evidence
  1. Non-adjudicative facts
-Legislative facts that establish the purpose and background of legislation, social, economic, cultural context.
Adjudicative Facts / Find SCC 2001 / Use the Morgan “gold standard” test to judicially notice adjudicative facts:
Must be:
  1. So notorious or generally accepted as not to be the subject of debate among reasonable persons; OR
  2. Capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

Spence SCC 2005 / If the gold standard is not satisfied, no judicial notice may be taken of an adjudicative fact.
  1. so notorious
/ Potts SCC 1982 / What is “common knowledge” or generally accepted is NOT confined to what the judge personally knows or what the bench generally knows. / -Determined by reference to what is common-knowledge in the community
-Whether the judge personally shares knowledge is irrelevant, it’s the community that matters
-So judicial notice will vary community to community
  1. Sources
/ Krymowski SCC 2005 / You can refer to dictionaries to use as a readily accessible source of indisputable accuracy
Legislative Facts / Spence SCC 2005 / Step One:
Determine if facts meet the gold standard (as set out above)
If no, apply the following test:
  1. Would the fact be accepted by reasonable, informed people as not being subject of reasonable dispute for the particular purpose for which it is used?
  2. The more dispositive the fact, the greater the need for truthfulness and reliability (i.e. the more it needs to meet the gold standard)
/ *The Court also suggested that parties are free to call expert evidence to prove legislative or social facts, and that it is risky to go the judicial notice route b/c you may not get it*
Policy: reflection of the fact that the court is being asked to take judicial notice of inappropriate facts too often?
Judicial Notice on Appeal / Cronk ONCA 1995 / Where an appellate court feels that information in the courts below is inadequate and it is a charter case, the court can resort to judicial notice to ensure that there is a just result. / POLICY: Don’t want to determine important charter cases on sloppy counsel work.
Example of Judicial Notice / Bartleman BCCA 1984 / Justice Lambert (minority) did extra research, which was not in evidence at trial, and took judicial notice of this in determining the interpretation of a treaty. Said he did so by applying gold standard. / Problems:
-Didn’t give notice to counsel he was doing so
-Said his extra research included scholarly articles, could this really satisfy gold standard?
-Also, interpretation of treaty arguably a social fact, relevant to meaning and scope of treaty—pure question of law, not adjudicative fact. So wouldn’t have needed gold standard (although now spence mandates you do this)

Judicial notice of law

Issue / Where / Ratio / Notes
Foreign Law / Lecture / Foreign law must be proved as a fact / Usually get expert to testify
Domestic Law / Common-law / Judges must take notice of common-law and statutes
CEA ss. 17-18 / Judges must take notice of domestic law / Includes common-law and statutes, regulations
BCEA s. 24
St Lawrence Cement ONCA 2002 / No evidence is required to prove that legislation is law, or that a regulation was published (unless proof given regulation was not published) / POLICY: efficiency

1. Logically Relevant to a Material Fact- Rules based on Reliability

Hearsay Checklist

Identify whether evidence is hearsay, need

  • RULE OF THUMB USE THIS DEFINIITION:Khelawon
  • Out of court statement (implied included! Baldree);
  • Offered for the truth of its contents; and
  • No opportunity to cross-examine the declarant

-part of longer definition, but if you have a person on the stand with their prior out-of-court statement, if offered for the truth, this will still be hearsay (and may also offend a rule against prior consistent or inconsistent statements)

Principled Approach: R v. Mapara SCC 2005:

(a)Hearsay presumptively inadmissible unless it falls under a traditional exception (and cannot contravene any other rule of evidence, i.e. declarant it must be possible that declarant could give the testimony themselves in court if they were alive/available/chose to etc.)

POLICY: Baldreee Hearsay is inadmissible b/c it is unreliable, wonder:

  1. Perception—did declarant misperceive the facts?
  2. Memory—Did the declarant wrongly remember?
  3. Narration—did the declarant narrate the relevant facts in an unintentionally misleading way?
  4. Sincerity—did the declarant knowingly make a false assertion

Normally, we deal with these reliability concerns by cross-examining, but can’t C/E a declarant!

  1. Admissions

Any admission by a party, as long as relevant, is admissible for the truth of its contents. R v Evans

-POLICY: can hardly object that you can’t C/E yourself, or that you aren’t reliable

-Has to be a PARTY to the proceeding who said the out of court statement, unless:

  • Adoptive admission: Civil case, statement made by third party and (a) party heard the statement and (b) it would have been reasonable to respond but didn’t = party ‘adopts’ third party statement
  • Agent: made by agent during agency and relates to the agency, can go in against principal
  • Conspiracy: statements made in furtherance of common-purpose or conspiracy admissible against ALL members of the conspiracy.
  1. Declarant unavailable

Against interest

Statements made by a declarant against the declarants own penal, proprietary or pecuniary interest ARE admissible for the truth of their contents (R v. Obrien), unless the statement is inculpatory to the accused (b/c unfair w/o cross). Lucier

Test for Pecuniary/Proprietary Higham v Ridgway:

  1. The declarant is unavailable to testify
  2. The statement when made was against the declarant’s interest (b/c this is why reliable)
  3. And the declarant had personal knowledge of the facts stated
  4. Declarant does not need to realize that the statement could be used against them in a legal proceeding
  • Allows the entry of all matters that are part of the statement, even if portions are not against the declarant’s interests

Test for Penal Demeter:

  1. Declarant should have apprehended a vulnerability to penal consequences (reliability)
  2. The vulnerability is not remote (reliability)
  3. Consider declaration in totality, if whole tenor is in interest of declarant, exception can’t be used for just one part of declaration. (reliability)
  4. A court may consider if there are other circumstances linking the declarant to the crime and the relationship between the declarant/accused
  5. Declarant unavailable because of death, insanity, grave illness or absence from jurisdiction. (necessity)

Dying declarations

  • The declarant must have a settled and hopeless expectation of impending death.
  • Very strict standard: ex Wysochan did not qualify for this exception
  • The rationale being that a person does not wish to die with a lie on their lips
  • Confined to: declarations as to the cause of death in homicide prosecutions for the declarant’s death

In the course of duty

  • At common-law Monkhouse 1988 ABCA: Statements made by deceased in course of duty and in ordinary routine are admissible as exceptions to hearsay IF:
  1. An original entry
  2. Made contemporaneously
  3. In the routine
  4. Of business
  5. The recorder is functioning in the usual and ordinary course of a system in effectfor the preparation of business records
  6. The recorder has no motive to represent
  • In Canada, this has been over-taken by STATUTE except in Alberta—use test above
  • CEA s. 29(1): Books or records at financial institutions are admissible for the truth of their contents IF s.29(2) it is first proved that the book or record was, at the time of the entry, one of the ordinary books or records, entry was made in usual/ordinary course of business, book/record in control of financial institution, copy is a true copy. Give proof by having any employee who has knowledge of it testify or swear an affidavit.
  • CEA s. 29(3): Where a cheque has been drawn, manager or accountant of financial institution can testify that after making careful examination of records, the person drawing it has no account at the financial institution—this is proof unless evidence to the contrary.
  • CEA s.30(1):A record made in the ordinary and usual course of business is admissible, if oral evidence on that matter would be admissible.

Former testimony

Common law very narrow (only if being used to for the exact same facts between the exact same parties)

In Crim proceeding, s. 715(1) CCC

  • A person who gives evidence at a previous trial on the same charge, OR
  • Evidence taken in the investigation of the charge against the accused, OR
  • Evidence taken on the prelim inquiry into a charge
If person refuses to be sworn ORgive evidence ORfacts proved on oath person is:
(a)Dead
(b)Has since become insane
(c)Is so ill that they are unable to travel or testify; OR
(d)Is absent from Canada
AND
Proved evidence taken in presence of the accused and signed by judge = evidence admissible w/o further proof
UNLESS
Accused proves that it was not in fact signed by judge/justice or that accused did not have full opportunity to cross-examine / s.715(2)
The same evidence can be used for other offences on the same proof
s. 715(3)
If accused absent b/c they absconded, deemed to be present and had full opportunity to cross.
Potvin
If accused just did not take advantage of opportunity to cross exam, they cannot argue they did not have a full opportunity.
constitutional, because the Court read in that the discretion of the trial judge to do a probative value vs prejudicial effect of the evidence even if found admissible under s. 715(1).

In Civil proceeding:

  • BC Supreme Court Rules 12-5(54) can use transcript where declarant unavailable due to death, illness, infirmity, sickness or out of jurisdiction, upon reasonable notice
  • s. 71 BCEA can use conviction of offence as proof of civil offence (i.e. if commission of offence relevant in civil case).
  1. Declarant Available

Previous (out of court) identifications

  • As in court identifications have little probative value do this exception allows for a person to testify that the witness had previously

Past recollection recorded

  • Witness made a record at the time but no longer actually remembers the actual event. Reliance is placed on the witness’ system of record keeping, which can be cross-examined onDAVEY

Prior Inconsistent Statements

Before using for CROSS –EXAMINING in CRIMINAL law, need to follow the CEA procedures in order to introduce

  • Cross-Exam OPPOSING party’s witness

CEA s.10—can C/E on any statement in writing w/o admitting statement, but if you want to contradict, must bring to witness’ attention first and judge can require admittance.

CEA s. 11-- Where a witness has made a previous statement (written or oral) AND

  • You ask them on cross-exam if they made the statement
  • They deny making the statement
  • The statement is inconsistent with the witness’ current testimony
  • Can bring evidence to show they DID in fact make the prior inconsistent statement.
  • Cross-Exam YOUR OWN witness: i.e. your witness said one thing to you before, and now in court are saying a different thing!

At common-law, where a witness becomes “hostile”, you can cross-examine them, But it is unclear whether you can cross-examine them on a prior inconsistent statement.

CEA s. 9(1): IF you have proof that a witness is “adverse”, then you can apply to cross-examine them on a prior inconsistent statement. Adverse ≠ hostile, includes opposed in interest or unfavourable. Wawanesa

CEA s. 9(2):As interpreted in Milgard/ McInroy: If prior inconsistent statement is recorded (writing), the TJ can admit the prior inconsistent statement regardless of whether the witness is adverse.

  • So two different standards for recorded/oral prior inconsistent. Likely 9(2) was supposed to be the way you offered proof in 9(1), but hasn’t been interpreted that way.

Once admitted under CEA, still need to use test below to have it be probative for the TRUTH

If CIVIL law (cross or lead) OR Crim (lead) go right to the test below:

  • Prior inconsistent statements by a witness other than a party are admissible on a principled basis IF the party seeking to admit establishes on a balance of probabilities on a voir dire:

(A)Statements would have been admissible as the sole testimony

  • i.e. can’t use to circumvent other exclusionary rules like lay opinion.

(B)Threshold Reliability

  • Indicia of reliability: want all but could have substitutes
  1. Declarant made oath/ affirmation when making prior inconsistent
  2. There was an explicit warning of the consequences of lying
  3. Statement videotaped
  4. Witness can be cross-examined on the prior inconsistent at trial
  5. Any alternate circumstances that arise.

(C)Necessity

  • Evidence is unavailable otherwise, b/c witness will not testify to it (recanted); or
  • Can’t get evidence of the same value from the same or other sources
  1. Declarant Availability Unimportant

Statements of present physical & mental condition

  • A persons statement regarding their physical or mental condition at the time (or its duration) is admissible, b/c there are no other means of proving bodily or mental condition, and spontaneity = reliability.
  • However, statements regarding the CAUSE of the physical condition are not admissible. Youlden
  • Needs to be contemporaneous Youlden

Statements of intention

  • Evidence of a Declarant’s explicit statement of a state of mind, is admissible (see rule above). If the statement shows a direct or inferable intention, this is admissible as evidence that the Declarant acted according to their intention. P(R)
  • CAN’T be used to show someone else acted according to the declarant’s intentions, or to show someone else’s state of mind, or to establish past events. P(R)
  • The statement must be made in a reliable situation that does not arouse suspicion. Starr

Excited Utterances

  • Where the spontaneity of an utterance made during circumstances of physical shock was such that concoction or distortion could be safely excluded, it is admissible under this exception. Clark
  • Relates to a startling event or made while the declarant is under the stress or excitement of the event. Clark
  • Special Contraband Exception: explanatory statement immediately made upon first being found in possession of contraband can be led by the accused BUT the accused MUST testify and be cross-examined “whoa never seen that before” Graham

(b)Hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability (modify exception as necessary)