OVERRIDING RULES AND PRINCIPLES
§ Material: relates to an element of the case at issue; Relevant: tends to (dis)prove material fact by logic & human experience
§ All evidence that is relevant and material is presumptively admissible unless excluded on some other rule
§ Justice system is a qualified search for the truth; justice must be seen to be done; respect rule of law, rights, and efficiency
§ Concern to protect against wrongful convictions; Adversarial system assumed to be best (Phillips v Ford Motor 1971 OCA)
§ Crown has obligation to disclose all relevant info to Defence (Stinchcombe 1991 SCC); not reciprocal (Peruta 1993 QCA)
§ Accused not entitled to every possible benefit—consider witnesses/victims/children (Levogiannis 1993 SCC)
§ Crown has quasi-judicial role to see justice is done, not to get a conviction (Peavoy); but they can be strategic (CASE?)
§ Seaboyer 1991 SCC: probative vs. prejudicial balancing. Prejudice can be distraction, inflammation, faulty reasoning, wasting time. For Crown, pro > pre. For Defence: prejudice must substantially outweigh probative value for exclusion.
§ Kinkead 1999: juries not easily inflamed by photos of the crime, some excluded because Defence admitted issues
§ W(D) 1991 SCC: credibility charge to jury: acquit even if you don’t believe accused but are in doubt. [NOT a magic incantation]
§ S(JH) 2008 SCC: where credibility is central issue, judge must explain relationship between credibility and Crown’s burden.
§ Morin 1988 SCC: evidence must be considered in its entirety as to whether it meets BARD standard
§ Munoz 2006 SCC: inference-drawing from circumstantial evidence is impermissible if (1) primary facts not established (2) inference does not logically or reasonably follow—cannot be speculative/hypothetical. Need not be only possible inference
§ Direct: if believed, sufficient to prove a fact in issue (e.g. eyewitness account). Dangers: witness lying or mistaken
§ Circumstantial: trier of fact must infer a material fact from related facts. Dangers: witness lying or mistaken, wrong inference
§ Real/physical: must be authenticated (call witness w/ knowledge of it, ask for description, show it and confirm, enter exhibit)
o Macpherson 2005 BCSC: Breaks in chain of continuity reduce weight of real evidence, not automatically inadmissible
§ Photo/Video: admissible if (1) accurate representation (2) no intention to mislead (3) verified on oath by capable person (Schaffner 1988 NSCA – detective testified about an automatic recorder which showed cashier theft)
o Nikolovski 1996 SCC: once established that tape not altered & depicts crime scene, it is admissible; camera is super-witness
o Penney 2002 NFCA: seal-killing; gaps/no time indication/editing means it is not an accurate depiction of crime scene & could only be used as corroborating photos, but witnesses not credible. Visual evidence can have great impact on jury
§ Documents: authenticate by calling writer, witness/knower of writing, experts, compare w/ known writing; some statutory rules for official/gov documents; show original if possible; ancient document rule (30 yrs & no ev of fraud) and reply letter rule
§ Demonstrative: judge discretion as to accuracy of representation & prob vs. prej (MacDonald 2000 OCA – police re-enactment was inaccurate and biased), (McCutcheon 1998 – post-accident gait), (Collins 2001 OCA – experiment shooting)
Judicial Notice: judge assumes facts based on general common knowledge, so need not be proved in court
CTV Television 2006 MCA: Judges cannot rely on common sense/logic in taking judicial notice limiting Charter right. (1) Less scope for JN when closer to ultimate issue, (2) indisputable for adj. facts, (3) leg. facts: not subject to dispute b/w reasonable people
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EXTRINSIC CONDUCT OF ACCUSED
Propensity/Bad Character of Accused: Presumptively Inadmissible. Exceptions: (1) accused puts character in issue, (2) accused leads propensity ev for 3rd party, (3) SFE, (4) relevant to other issue and probprej
§ Arp 1998 SCC: propensity evidence has little prob, high prej. SFE: exception to exception. 3 jury dangers: (1) “bad person” likely guilty, (2) punish accused for past crimes, (3) be distracted from main issue
§ (4) BFF 1993 SCC: propensity evidence admissible if (1) relevant to another issue (2) prob > prej. Judge must charge on the limited use. Facts: complainant credibility/delay in reporting child sex abuse/propensity assaults justify fear/uncle
§ (1) Cuadra 1998 BCA: accused opens door to character b/c fear of him explains witness’s prior inconsistent statement
§ (1) McNamara 1981 OCA: accused does not put character in issue by repudiating or refuting allegations. Here he said “like any company should be run” and implied he would never do this/he is a virtuous person à character in issue.
Habit: person invariably acted in certain way in set of circumstances. Can be highly probative; if discreditable, too prejudicial
§ Belknap 1989 BCA: evidence of professional conduct can be substituted for present recollection (doctor, 3 years later)
§ Watson 1996 OCA: victim always carried gun, relevant to whether he shot attackers so whether their killing was self-defence
§ Devgan v College 2005: must be enough instances to demonstrate habit (here no, he told 3-4 patients it wasn’t a cure)
§ B(L) 1997 OCA: Discreditability triggers inadmissibility, even if evidence of habit unless SFE (e.g. habit carrying illegal weapon)
Similar Fact Evidence (SFE)
§ Handy 2002 SCC: as propensity evidence gets more specific, it becomes probprej. Accused is “exact type of person.”
o Crown must identify live issue to which evidence relates. Degree of similarity required depends on desired inference.
o Consider possibility of collusion between the victims; admissibility is justified by the improbability of coincidence
o If there is air of reality to collusion, Crown must rebut it on balance of probabilities
o Moral (inflammatory, worse) and reasoning (wasting time, # of witnesses, amount & complexity of evidence) prejudice
o 6 factors considering similarities & dissimilarities: (1) proximity in time, (2) similarity of detail, (3) # of occurrences, (4) surrounding circumstances, (5) distinctive unifying features, (6) intervening events (collusion?)
§ Johnson v Bugera 1999 BCA: speeding was SFE for determining driver in civil case
Post offence conduct (POC): Argangioli - can’t use POC when accused has admitted some other offence & can’t infer for offence charged, or to distinguish level of culpability where equally consistent with both levels. Limiting instructions help
§ White 2011 SCC (Toronto club): Flight =/= level of culpability or intent, equally consistent w/ smaller crimes. Here, accused didn’t hesitate. Dissent: this is a speculative inference that no hesitation is not consistent with manslaughter
§ White v Queen 1998 SCC (robbery/parole): “no probative value” instruction for culpability level, unless concealment is disproportionate or to rebut defences (which may indicate culpability). If accused denies involvement in this incident, claiming some unrelated act, POC can be probative.
§ Peavoy 1997 OCA (fish knife): POC only relevant to culpable homicide rather than self-defence, then presence of mind for murder as opposed to manslaughter (claimed he was drunk and self-defence, but cleaned apartment after and avoided police)
§ SCB 1997 OCA (motorbike rape): exculpatory POC of offering samples to police before legal counseling, polygraph offer irrelevant.
Criminal Record of Accused (Corbett, Cullen, McFayden): See Witnesses Section
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EXPERT & OPINION EVIDENCE
§ Opinion evidence is presumptive inadmissible, although opinions can be narrated in “compendious statements of facts”
§ Graat 1982 SCC: police officer testified that the accused seemed intoxicated. Witnesses can describe age, emotions, illness, etc.
§ Opinion evidence of witnesses not at the scene is presumptively inadmissible; expert evidence can be exceptionally allowed
§ Mohan 1994 SCC: pedophiles/sex assailants not standardized category such that experts can rule out non-deviant perpetrators
§ Mohan/Abbey test for admitting expert evidence:
o Mohan Preconditions:
§ Relevant to issue (Crown must identify what this is)
§ Necessity: likely to be outside the experience/knowledge of the fact-trier, or unlikely to form correct opinion unassisted; consider whether it would usurp jury’s role or distort the trial; sometimes excluded if too close to ultimate issue
§ Properly qualified expert
§ Not otherwise inadmissible
o Abbey Balancing Prob/Prejudice: necessity, manner, ultimate issue, threshold reliability/time & money, confusion, prejudice. Barely or easily passed Mohan?
§ Necessity: jury fully equipped à essential for understanding
§ Manner: pre-packaged à accessible
§ Ultimate issue: close à more distant
§ Threshold reliability (novel field?): subject matter, methodology, expertise, impartiality of expert
§ J (JL) 2000 SCC: Judge must be a gatekeeper; novel scientific evidence is potentially admissible. Consider: tested, peer reviewed or published, known rate of error, general acceptance. Must be evaluated on a case by case basis
§ Abbey 2009 OCA: expert’s evidence not scientific, “rate of error” etc. don’t apply. Limit to general meaning of tattoos, not Abbey’s. Consider: recognized discipline, independent review, accurate data, gathered independently from litigation
§ McIntosh 1997 OCA: expert not needed to warn against frailties of eyewitness evidence, instruction to jury is sufficient
§ Klymchuk 2005 OCA: describing what happened at crime scene is ok, not “why” (motives evidenced), not implying “who” did it
§ Perlett 2006 SCC: expert’s evidence on juror misunderstanding of traumatic memories vague; McIntosh said jurors competent
§ Bryan 2003 OCA: police expert on whether possession points to trafficking is too close to ultimate issue
§ Llorenz 2000 OCA: expert impermissibly “oath-helping” (saying victim is truthful, as opposing to showing truth of contents); could have limited himself to explain context and delay of complaint and that victim’s condition was consistent with abuse
Experts and Hearsay
§ Jordan 1983 BC: “known” standard of heroin, hearsay that this is true, but we can accept expert’s opinion that it is reliable
§ Lavallee 1990 SCC: the more expert relies on facts not proven in evidence, less weight jury can give—judge should instruct
§ Worrall 2004: expert can base opinion on second-hand information, but where that information is not established before court, this loses weight. It’s ok if their information is based on accepted forms of inquiry in that expertise (other toxicologists)
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WITNESSES
Criminal Past: CEA s12 (witnesses, including accused, can be questioned on previous convictions and proof can be presented)
§ McFadyen 2002 SCC: Judge erred in admitting accused’s criminal record; prejprob, other assaults similar but 14 years ago
§ Corbett 1988 SCC: accused’s record brought in to balance with witness’ records. Factors: is previous conviction crime of dishonesty (✓, opposing party’s attack on witnesses (✓, nearness to present charge (✓, similar offence (more prejudicial)
§ Cullen 1989 OCA: acquittals of accused not admissible; discreditable conduct w/ criminal discharge for witnesses is ok
Dangerous Witnesses
§ Murrin 1999 BCSC: Judge erred in excluding jail informants w/ reliability issues, reliability & weight of witnesses is for jury
§ Vetrovec 1982 SCC: Judge should sharply warn of danger of convicting on uncorroborated evidence of disreputable/biased witness. May indicate evidence capable of corroborating it; no need to identify all “corroborating” evidence technically
§ Khela 2009 SCC: focus jury on unreliable evidence, why witness is unreliable, danger of wrongful convictions. Factors: involved in crime, motive to lie, unexplained delay, inconsistent statements, perjury. Corroboration: independent & material
Eyewitness Identification
§ Gonsalves 2008: dangerous because witness can be mistaken. Consider for reliability: stranger/known, glimpse/long look, dark/light (visibility), far/close, stress/safety, delayed/timely reporting, generic/detailed, unconfirmed/corroborated, failure to notice distinctive feature or made up a feature, intervening events tainting memory. Witness’s prior ID statements are admissible as exception to hearsay; photo line-up should be recorded, done by uninvolved officer, 10+ similar pictures, sequential, told no need to choose. Questionable procedures will go to weight. In court ID has little/no probative value
Oath/Competence/Compellability: see CEA sections 13-16.1 for variations
§ W(R) 1992 SCC: children’s evidence does not demand corroboration; different tests of credibility (missing dates/times is ok)
§ Parrot 2001 SCC: judge should evaluate witness’ competence to testify (expert said disabled witness could not respond to Q’s)
§ I(D) 2012 SCC: K(B) had mental disability, judge was wrong to ask her if she understood meaning of truth/religion
§ Couture 2007 SCC: CL confirming spouses are incompetent to testify; check against the new statutory provisions in CEA
Order: Accused can testify after other witnesses, may affect weight of testimony but doesn’t destroy credibility (P (TL) 1996 ACA)
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EXAMINATION
Direct Examination, Cross-Examination, Re-Examination
§ Rose 2001 OCA: party calling the witness may not ask leading questions except on preliminary/undisputed matters. Witness might just agree to party’s words. TJ has discretion to allow leading in interests of justice. Cross-ex allows leading questions.
§ Lyttle 2004 SCC: Counsel can cross-examine a witness about a matter not independently proven if they have good faith basis (honestly advanced on the strength of reasonable inference, experience, or intuition)
§ R(AJ) 1994 OCA: Crown’s approach calculated to demean/humiliate the appellant, asked irrelevant/prejudicial Q’s. Re-trial
§ McNeil 2000 OCA: Browne v Dunn: if counsel challenges credibility of witness by bringing contradictory evidence, witness gets to address this in cross-examination. If impossible to recall, TJ may give limiting instruction about weight and credibility
§ Sipes 2011 BCSC: purpose of re-examination is to clarify and rehabilitate after cross-ex, TJ has discretion to allow new issues but then must also allow new cross-ex, TJ can exclude prejudicial matters
Collateral Rebuttal Rule: Crown may cross-examine inconsistencies, but may not bring rebuttal evidence to contradict the witness if the matter is collateral or only about credibility (Krause 1986 SCC – no case splitting for Crown)
Refreshing Memory/Past Recollection Recorded
§ Wilks 2005 MCA: (1) aid which revives present memory not evidence, its nature/admissibility is irrelevant. Test: witness has memory lapse, knows report will refresh memory, reads it, gives testimony w/o further aid. (2) Past record (exception to hearsay) must satisfy necessity and reliability (recorded in reliable way, recorded when fresh and likely accurate, witness now asserts it was true at the time, original record if possible). Cannot be cross-examined if you have no present memory
§ B(KG) 1998 OCA: OK for witnesses to refresh memory by using their police statements, form of aid is irrelevant