S. 8 No Unreasonable Search and Seizure (For Areas Where You Have an Expectation of Privacy)
Charter:
- S. 7 ... life, liberty and security of the person and the right not to be deprived thereof except…
- S. 8 No unreasonable search and seizure (for areas where you have an expectation of privacy)
- S. 24(1) ... such remedy as the court considers appropriate & just in the circumstances.
Search for truth qualified by fair trial, integrity of admin. of justice, deterring police misconduct (Noel)
Adversarial System is fundamental. Fundamental justice requires that A control own defence (Swain)
Discovery
R. v. Taillefer; R v. Duguay
- Duty to disclose b/c of right to make full answer & defence
- Disclose all relevant information (except if privileged or the plainly irrelevant)
- Conviction is not goal of prosecution - Boucher (1955 SCC)
- Dixon - There is an infringement of full answer & defence if;
- If there was a reasonable possibility, that, on its face, the undisclosed information affects the reliability of the convictions (a new trial should be ordered).
- “ “ avenues of investigation that were closed
- “ “ the evidence would have influenced decision to plead guilty (objective).
- Reconstruct the overall (don’t analyze parts)
- If it passes (1), effect on the overall fairness of the trail process.
- Reasonable possibility lines of inquiry or the opportunities to garner evidence
Probative / Prejudicial
- All relevant evidence is admissible, subject to exceptions (Arp).
- Prejudicial effect can be difficult to erase; exclusionary rules are required for a fair trial (Penney)
Probative Value:
- Material (relates to fact in issue and helpful)
- Relevant - increases or diminishes the probability of fact in issue (Arp); advances the inquiry (Seaboyer)
Prejudicial Effect:
- May arouse prejudice, hostility or sympathy (Seaboyer)
- May unduly distract the jury from the main issue / consume too much time (Seaboyer)
- Danger of unfair surprise to the opponent (Seaboyer)
- For the accused, this must substantially outweighs probative value for exclusion (Seaboyer)
- Can Crown prove point w/ less prejudicial evidence (Handy)
Risks for direct evidence: Witness is lying or mistaken (Dhillon)
Risks for circumstantial evidence: Witness is lying or mistaken + drawing the wrong inference (Dhillon)
Inference - stronger than speculation & must be based on proven facts (Dhillon)
If No Direct Evidence:
- Must be satisfied BRD that guilt is the only reasonable inference (Dhillon, Robert)
- No need for TJ to say there is no direct evidence (Dhillon)
The Accused doesn’t have to prove anything. Reasonable possibly may give rise to RD (Robert)
- Verdict of guilty can only be based on evidence found to be credible and reliable (each element of offence proved BRD), but the same is not true for verdict of not guilty (Baltrusaitis)
Videotapes (Penney)
- Needs authentication so consider (BOP):
- assess its accuracy in truly representing the facts
- its fairness and absence of any intention to mislead
- verification on oath by a person capable of doing so
- After that may still not be admissible because of prejudice
Photographs (Kinkead)
- Determine probative value and prejudicial effect
- Balance probative value and prejudicial effect
- Importance of the issues for which the evidence is offered /vs/ risk of use for improper purpose, & effectiveness of limiting instructions)
- Could the fact be proved in a less prejudicial way (ex. defence admission)?
- The photos could inflame unnecessarily emotions of the jurors
Crown must produce clear and convincing evidence of authenticity and accuracy (Cotroni and Papalia)
No “Best Evidence” Requirement (Garton v. Hunter)
- Goodness or badness goes to weight. (Garton v. Hunter)
- It’s okay that the original information changed form / absorbed into a larger record. Authenticity of the record is sufficient (Bell and Bruce)
- There can be more than one record in different forms (Bell and Bruce)
- Photocopies are admissible if authenticated (Can. v. Betterest Vinyl Mfg. Ltd)
- Examples:
- The destruction of tapes was in good faith & re-recordings authentic (Cotroni and Papalia)
- Note made from computer screen can be admitted if authenticated (West)
Judicial Notice (Olson)
- Can’t take judicial notice that sports training would advance the boy’s career
- Strict Test
1) So notorious or generally accepted as not subject of debate b/w reasonable persons
2) Capable of immediate demonstration thru readily accessible, indisputably accurate, sources
Eye-Witness Identification(Gonsalves)
- Things that make it less reliable:
- Stranger
- Stress
- Fleeting glance
- Distance and lighting
- Obstruction or partial obstruction
- Look for supporting evidence
- Identification in court given very little weight except if the witness CANNOT identify A
- The record of what a witness said earlier is more important (exception to general rules)
- Photo Line-up Best Practices
- Double blind
- The photographs should have a certain likeness among them
- Recorded
- Presented on by one.
- Don’t say how many
If Accused Leads Evidence of Good Character
- Limited to evidence of general reputation.
- May use it in assessing A’s credibility & to show that it is improbable A committed the offence (E.D.H)
Bad Character of the Accused
- Can’t bring evidence of prior criminal conduct to show A is more likely to be guilty (Cuadra, B.(F.F.))
- May refute assertion of good character and for credibility (E.D.H)
- Character is not in issue by denying guilt or giving explanation essential to defence. (E.D.H)
Evidence of propensity may be relevant, but usually inadmissible v/c of prejudice (Arp):
- Jury may find that the accused is a bad person and thus likely guilty
- Jury may punish the accused for past misconduct by finding hir guilty now
- Jury may become confused by having attention deflected
Admissible (w/ limiting instruction) if (Cuadra, B.(F.F.)):
- Relevant to some other issue
- Probative value outweighs prejudicial effect
Ex. Witness gave inconsistent statement. The witness says s/he was afraid of & gave examples of A acting violently (Cuadra)
Ex. A asked why complainant waited. Evidence to rebut defence of innocent association & demonstrate violence control( B.(F.F.))
Discreditable Conduct of Witness (including Accused) – Only to Challenge Credibility
- Need limiting instruction
- To challenge credibility, X is allowed to demonstrate involvement in discreditable conduct (Cullen)
- Can’t use something A was acquitted of (Cullen). For accused, a stay is the same as acquittal
- Ex: Possessing burglar’s tools has element of dishonesty discreditable conduct (Cullen)
- Defence X of a witness concerning an outstanding indictment is admissible for the purpose of showing a possible motivation for seeking favour with prosecution. (Titus)
- Prior Conviction:
- Canada Evidence Act, S. 12. (1) A witness may be Q’ed as to whether s/he has been convicted of any offence, excluding … [unimportant] S. 12(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction.
- Read in a discretion of judge to keep some things out against A (Corbett)
- Temporal proximity, Offenses with dishonesty
- If similar to the charge, weighs against admission b/c prejudicial
- Only to challenge credibility (limiting instruction) (Corbett)
- Concern for distorted picture, a serious imbalance (Corbett)
Similar Fact Evidence (Handy)
- May be admitted if it defies coincidence or other innocent explanation & probative > prejudicial
- Onus on Crown to establish on BOP that probative > prejudice.
- For assessing prejudice
- Can Crown prove point w/ less prejudicial evidence?
- Inflammatory nature of similar acts - moral prejudice (jury may convict based on bad personhood)
- Potential distraction / undue time consumption - reasoning prejudice (jury might be confused)
- For assessing probative value: consider the nexus b/w evidence & the allegations, including:
- Proximity in time (fatally lacking in this case), similarity of details circumstances (location, time, MO), # of occurrences, distinctive feature, intervening events
- Collusion destroys the foundation on which admissibility is sought
- If no more than opportunity usually best be left to jury.
- Where there is air of reality to collusion, Crown must satisfy TJ on BOP that the evidence is not tainted by collusion. That would gain admission and jury decides the worth.
Post Offence Conduct Indicating Guilt
- It is dangerous evidence because it can cause people to jump to conclusions (White)
- Doesn’t need to be believed on its own BRD. Verdict is based on whole of evidence (White).
- Except, if case is almost entirely, or the central basis, based on post offense conduct (White)
- Post offence conduct going to level of culpability generally has no probative value (White)
- Circumstantial evidence b/c it is person acting consistently w/ how we expect guilty person to act (Peavoy)
- Jury Instructions:
- Tell any other explanation & acting this way doesn’t necessarily make person guilty (White)
- Reserve final judgement until all the evidence considered (White, Peavoy)
- Common sense inference could not apply if jury was left w. RD about A’s intention (Peavoy)
- Peavoy - A runs from the scene and hides from police. A runs defence of self-defence and intoxication.
- Boucher - Crown must not try to obtain conviction but assist court so that justice can be done
- Careful jury instruction needed:
- Can’t use post-offense conduct to decide level of culpability
- Evidence is relevant to self defence because could support inference that A acted guilty
- Evidence of purposeful acts could be inconsistent w/ intoxication defence
Post Offence Conduct Indicating Innocence (B.(S.C.))
- TJ used evidence of A cooperation to support credibility or as circumstantial evidence of innocence
- Admissible unless prejudicial substantially weights probative
- There are policy concerns and constitutional principles when Crown seeks to tender evidence of a refusal to cooperate which are not engaged when defence tenders evidence of cooperation
- Offer to take inadmissible polygraph not admissible because not probative
Vetrovec (Khela)
- The English rule needs flexibility. Some accomplices may be very bad; others not
- Purpose: alert jury to the danger of relying on unsupported evidence of the unsavoury witness + to explain the reasons for special scrutiny.
- Crown should point to evidence that supports. Defence should identify evidence that does not
- Things that can’t confirm: length of time together, same language, both foreigners, rates are frowned on, lack of obvious benefit (Dhillon)
- When is one a Vetrovec witness? If severe credibility and reliability concerns. Consider
- How bad is the witness? Need one or more of:
- History
- Criminal record (ex. perjury conviction)
- Numerous inconsistent statements.
- Benefits received or anticipated
- Dishonesty
- Interest in the case
- Importance to Crown case.
- Very important low threshold for being Vetrovec
- Jury instruction (No particular wording is required.):
- Separate evidence of Vetrovec witness from the rest of the evidence. Treat it differently.
- Remember why you need to be extra cautious, what makes the witness unsavoury
- You are entitled to convict on the evidence of this witness alone, but it would be dangerous
- Look for evidence from another source to support the evidence. Must be:
- Material - capable of restoring the tirer of fact’s faith in the relevant aspects
- Independent - evidence tainted by connection to the Vetrovec cannot confirm
OPINION EVIDENCE
CEA, s. 7 - … not more than 5 of such witnesses may be called on either side without the leave of the court..
Criminal Code, S. 657.3
(1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if
(a) the court recognizes that person as an expert; and
(b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence.
(2) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination …
(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,
(a) a party who intends to call a person as an expert witness shall… give notice to the other party or parties of his or her intention to do so, accompanied by
(6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3)(c) in evidence without the consent of the accused.
(7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.
Common Knowledge (Graat)
- Non-expert evidence is typically allowed for: age, speed, weather, handwriting, emotional state, intoxication and identity in general.
- The determination of whether an opinion is admissible is by TJ with a lot of discretion.
- The weight to be given is entirely up to trier of fact
Expert Evidence
- Should err on the side of not admitting the expert evidence. Mohan isn’t very flexible. (D.D.)
R. v. Mohan - Psychiatrist who said that assaults were committed by a pedophile/sexual psychopath & A was neither.
- Has scientific community developed a profile? If yes, then yes to relevance and necessity
- Four steps that must be satisfied:
- Relevance
- Decided by TJ
- Prima facie admissible if related to a fact in issue. The, prejudicial/probative analysis
- There is a danger expert evidence will be misused and distort fact-finding process
- Necessity
- It is to provide ready-made inferences that trier of fact is otherwise be unable to formulate.
- Expert evidence is some of the most dangerous but it is tolerated when necessary, in the exceptional cases where jury otherwise can’t reach conclusion (D.D.)
- Properly qualified expert
- The closer the evidence is to the ultimate issue, the stricter the test.
- Other Exclusionary issues:
- Testimony is so inflammatory prejudicial (perhaps what expert researched)
- The way they are providing the opinion (oath helping, ultimate issue)
Basis of Expert Opinion.
- Expert witness needs to make clear what facts opinion is based on, so jury can decide whether it accepts them and thus the opinion (Bleta)
- Psychiatrist must consider all possible sources of information and conclusion may rest in part on second-hand source material. (Wilband)
- Facts upon which they base their opinion must be proved by admissible evidence (Abbey)
Use of Hearsay
- Opinion may base opinion on hearsay; that goes to weight (Abbey)
- That secondhand evidence is admissible to show basis, not as proof of the truth (Abbey)
- Don’t need to prove every fact that opinion is based on; goes to weight not admissibility (Lavallee)
- Can do a jury instruction - warn jury about this (Lavallee)
R. v. Jordan – You can consider opinion that the substance = heroin w/out proof it was compared to heroin
- Otherwise, scientific proof would be impossibly ponderous & expensive
Expert Opinion Going to the Ultimate Issue
- Opinion – likely somebody in these circumstances was in possession for purpose of trafficking (Bryan)
- There is no rule excluding expert evidence on the ultimate issue. Can go to Mohan weighing (Bryan)
- Would have been better if Crown had phrased its question in a less leading way (Bryan)
- Council should ask question in hypothetical (Bleta)
Expert Opinion that is Oath Helping - (Llorenz)
- Experts may not directly give evidence re: the credibility of witnesses.
- May be admissible if it has some other legitimate purpose. Probative/Prejudicial
- In this case, the evidence was helpful:
- Context – what complainant was being treated for and then she disclosed abuse.
- Why time may pass before someone discloses
- Certain behaviours indicative of having suffered abuse
- Problem could be the way the evidence is lead. Separation can be difficult
- There were no limiting instructions
Novel Expert Evidence Test (after Mohan) - (J.L.J)
- If novel use, more rigorous check. Expert witness have important role but TJ must be gatekeeper
- Factors the court looks at:
- Whether the theory and technique can be and has been tested
- Whether it has been subject to peer review and publication
- Whether rate of error is known and what that is
- Whether the theory or technique is generally accepted
- Problems:
- Error rate not nailed down and seems high.
- Expert wasn’t transparent re: method
Civil Burden of Proof (F.H. v. McDougall)
- Not commensurate w/ the occasion.
- Only one standard, BOP
- Evidence must always be sufficiently clear, convincing and cogent
WITNESSES
Overwhelming presumption in our courts: almost everyone is competent and compellable.
Capacity of Witness 14 or older
Canada Evidence Act s. 16 (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
Note: low threshold; requires cognitive function to perceive, remember and communicate
S. 16 (2) If person in (1) passes both tests, the person shall testify under oath or solemn affirmation.
S. 16 (3) If the person in (1) does not understand the nature of an oath/affirmation but can communicate, s/he can testify on promising to tell the truth.
s. 16 (4) If the person fails both test, s/he shall not testify.
s. 16 (5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness...
Witness Younger than 14
S. 16.1 (1) A person under 14 is presumed to have the capacity to testify.
S. 16.1 (2) A proposed witness under 14 shall not take an oath or make a solemn affirmation...
S. 16.1 (3) Evidence of someone under 14 shall be received if they are able to understand & respond to Qs.
S. 16.1 (4) A party who challenges the capacity of a proposed witness under 14 has the burden of satisfying the court that there is an issue as to zir capacity to understand and respond to questions.
S. 16.1 (5) If the court believes the burden in (4) has been met, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.
S. 16.1 (6) Before giving evidence, person under 14 must promise to tell the truth.
S. 16.1 (7) But don’t ask them Qs re: their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.
S. 16.1 (8) received evidence shall have the same effect as if it were taken under oath.