Sources and Goals of the Law of Evidence
The Role of Evidence Law
The Fundamental Rule of the Law of Evidence
Relevance
Reasons for Excluding Relevant Evidence
Admissibility and Weight
The Sources of the Law of Evidence
The Trial Process
Burden and Quantum of Proof
Evidentiary and Persuasive Burdens
Burden and Degree of Proof in Civil Proceedings
Burden and Degree of Proof in Penal Proceedings
Burden and Degree of Proof in Constitutional Issues
Presumptions
Witnesses
Competency and Compellability
Competency of Children
R v Marquard
Competency of Adults with Mental Disability
R v DAI
Spousal Competency
R v Salituro
R v Couture
Accused’s Failure to Testify
McConnell and Beer v The Queen
R v Noble
Relevancy, Probative Value, and Prejudicial Effect
Probative Value and Prejudicial Effect
R v Watson
Character Evidence
Character of the Accused in Issue
Character Directly in Use
Character as Circumstantial Evidence
Putting Character in Issue
R v McNamara et al (No 1) (1981), 56 CCC (2d) 193 (Ont CA)
Methods of Proving Character: Accused Persons
Reputation
R v Levasseur (1987), 35 CCC (3d) 136 (Alta CA)
Specific Acts
R v McNamara et al (No 1) (1981), 56 CCC (2d) 193 (Ont CA)
Psychiatric Evidence of Disposition
R v Robertson (1975), 29 CRNS 141, 21 CCC (2d) 385 (Ont CA)
R v Mohan, [1994] 2 SCR 9
Similar Fact Evidence
The Old Approach to Similar Fact Evidence
Makin v Attorney-General for New South Wales, [1894] AC 57 (PC)
R v Smith (1915), 11 Cr App R 229 (Cr App)
R v Straffen, [1952] 2 QB 911
The New Approach to Similar Fact Evidence
R v Arp (1998), 129 CCC (3d) 321
R v Handy, [2002] 2 SCR 908
R v Jesse, 2012 SCC 21
Methods of Proving the Character of Third Parties: Other Suspects
R. v McMillan
Methods of Proving the Character of Third Parties: Victims
R. v. Scopelliti
R v Darrach
Credibility
Assessing Credibility
Means of Assessing Credibility
Assessing the Credibility of Child Witnesses
Deference of Appellate Courts to Findings of Credibility at Trial
Supporting Credibility
Expert Evidence
R v Kyselka et al, [1962] OWN 164 (CA)
R v Marquard, [1993] 4 SCR 223
Evidence of Good Character
Prior Consistent Statements
R v Dinardo, 2008 SCC 24
Impeaching Credibility
Some Aspects of Cross-Examination
R v Lyttle, [2004] 1 SCR 193
Expert Evidence of the Witness’s Testimonial Unreliability
Toohey v Metropolitan Police Commissioner, [1965] 1 All ER 506
Witness’s Bad Reputation for Veracity in the Community
R v Clarke (1998), 129 CCC (3d) 1 (Ont CA)
Prior Convictions
R v Corbett, [1988] 1 SCR 670
Hearsay
Defining Hearsay
The Rationale for the Rule Against Hearsay
Non-Hearsay Words
Subramaniam v Public Prosecutor
R v Wildman
Implied Assertions and Hearsay by Conduct
Wright v Tatham
R v Wysochan *Careful – most people (including Professor Hunt) think this case is wrong
R v Baldree
The Principled Approach to Hearsay
R v Khan
R v Smith
R v KGB
R v Khelawon
Exceptions to the Rule Against Hearsay
Present Intentions
R v Starr (2000 SCC)
Prior Judicial Proceedings
R v Potvin
Statements by Parties (Party Admissions)
Business Records
Res Gestae, or Spontaneous Utterances
R v Clark
Statements Against Penal Interest
R v Pelletier
Lucier v The Queen
Statements of Intention
R v P(R)
Opinion Evidence
Lay Opinion Evidence
R v Graat
Expert Opinion Evidence
R v Mohan
R v Lavallee
R v Trochym
Privileges
Class Privileges
Solicitor-Client Privilege
Prichard v Ontario (Human Rights Commission)
Smith v Jones
R v Brown
Litigation Privilege
Blank v Canada (Minister of Justice)
Informer Privilege
R v Leipert
Case-By-Case Privilege
Slavutych v Baker
R v Gruenke
A(M) v Ryan
Journalistic Privilege and Search Warrants
Protecting Privacy Without Privilege
O’Connor
The Privilege Against Self-Incrimination
Use Immunity
R. v. Henry (SCC 2005)
Derivative Use Immunity
Perjury Exception in Section 13 of the Charter
Judicial Notice
R v Potts
R v Zundel (No 1)
R v Zundel (No 2)
R v Krymowski
R v Spence
Sources and Goals of the Law of Evidence
The Role of Evidence Law
-Evidence law applies to the proof of facts that provide a basis for applying:
- Jurisdictional law (to determine which court or tribunal has jurisdiction over the matter)
- Procedural law (to determine issues that arise regarding the process of that court or tribunal)
- Remedial law (to determine the appropriate remedy, insofar as the remedy is within the jurisdiction of the court or tribunal)
-Admissibility of evidence is always a question of law - this means standard on appeal is correctness
-Main goal of evidence law: Find out the Truth in a Fair and Efficient manner, subject to some other values
-How does our system of evidence cope with these sometimes competing values?
- Expert evidence – limiting the number of experts, cross examining the expert
- Exclusionary rules – excluding otherwise relevant information because it is prejudicial (unfair) to the accused
- SFE – including otherwise inadmissible evidence when the truth seeking function is so bolstered by the evidence
The Fundamental Rule of the Law of Evidence
Everything is admissible so long as it is (a) relevant and (b) not subject to an exclusionary rule-There is a third factor that isn't really covered in the above definition - this is that you must weigh the probative value against the prejudicial effect
Framework of the Course (in exam we will only have to respond to one aspect at a time):
-Step 1: Is the evidence relevant?
- 1a: Is it legally relevant?
- 1b: Is it factually relevant?
- *Note: casebook says factually relevant is first and then legally relevant, but Hunt has said that it is better to see if it is legally relevant first because something can't be factually relevant unless it is somehow related to the legally relevant issue
-Step 3: Even if it is relevant and there is no exclusionary rule, does the probative value outweigh the prejudicial effect?
Relevance
-2 Distinct approaches: civilian inquisitorial system vs. common law adversarial system
-Civilian system has one main rule - If it is relevant, it is admissible
-Adversarial system - if it is relevant, it is admissible unless it is excluded (our system is based on excluding relevant evidence) - rule applies regardless of whether it is a trial by judge only or by judge
-Relevance - does it have ANY tendency to show that the accused did the crime (established by party who wants the evidence admitted - low threshold)
-Need factual and legal relevance:
- Factual relevance – makes the fact more likely to be true based on logic + human experience
- Legal relevance (aka materiality) – does it have bearing on the issues at trial?
Reasons for Excluding Relevant Evidence
-If it distorts the fact finding process - i.e., tends to cause the trier of fact to reason irrationally or inappropriately
-If it makes the trial too lengthy or confuse the issues (i.e., bringing in evidence that proves the other party's witness was lying about something irrelevant)
-Undermines some constitutional/important value
-Inconsistent with the nature of the trial process
-Probative value outweighs prejudicial effect
-To be admissible, a piece of evidence must pass the following test:
- Is the evidence factually relevant, that is, does it tend to prove or disprove the fact for which it is tendered? (to be admissible, answer must be "yes")
- Is the evidence legally relevant (material), that is, is the fact that the evidence tends to prove or disprove legally significant in establishing an element of the cause of action, offence, or defence at issue? (to be admissible, answer must be "yes")
- Is the evidence inadmissible on any ground of law or policy? (to be admissible, answer must be "no")
- Does the prejudicial effect of the evidence outweigh its probative value? (to be admissible, answer must be "no")
Admissibility and Weight
-There is a difference between the admissibility of evidence and the weight that is attached to it
-It is for the trial judge to determine whether evidence is admissible
-Once it is admissible, it is for the trier of fact, subject to any cautions that the trial judge might give, to determine what importance to attach to the evidence in determining the facts in issue
The Sources of the Law of Evidence
The Common Law
-In recent years, SCC has been actively modifying and developing common law of evidence
-Has replaced some categorical requirements with more functional approach
-Addressed stereotypical thinking
Statutes
-Common law rules are tailored by statute to address special circumstances of particular types of subject matter and processes
-Cannot be understood without reference to the common law background
Aboriginal Law
-SCC says that aboriginal sources of evidence must be respected and balances with other sources admissible at common law (Delgamuukw - oral histories valid source of evidence for determination of Aboriginal rights)
The Constitution
-Law of evidence is constrained by constitutional requirements
-Criminal case: common law rule of evidence inconsistent with Charter is of no force or effect
-Civil case: common law rules will be developed in accordance with Charter values
-Division of Legislative Authority
- Limitations on legislative powers created by ss 91 and 92 apply to the rules of evidence - only parliament can create rules of evidence for matters falling under provincial jurisdiction
- Federal - Canada Evidence Act; criminal; federal regulatory; disputes involving federal crown (CEA s 2)
- Provincial - BC Evidence Act; property; civil matters (BCEA s 2)
- Residual Clause: CEA s 40 - In some instances, the applicable evidence law in a matter within federal jurisdiction will be determined in accordance with provincial evidence provisions
- Provincial evidence law applies in the province where proceedings are taken subject to the CEA and other Acts of parliament
-The Canadian Charter of Rights and Freedoms
- Charter provides express constitutional protection fo some evidentiary principles in criminal proceedings
- i.e., s 11(c) right not to be compelled as a witness against oneself; s 11(d) accused is innocent until proven guilty; s 13 right against self-incrimination in subsequent proceedings
- S 7 of the Charter has proved to be an important vehicle for the constitutionalization of evidentiary principles (right to life, liberty and security of the person)
- Charter protects important rights in investigation of offences
- i.e., s 8 right to be secure against unreasonable search or seizure; s 9 right not to be arbitrarily imprisoned; s 10(b) right to retain counsel
- Where evidence is obtained in manner that infringes Charter right, Charter provides for remedy (s 24(1))
The Trial Process
Witnesses
-Testimony is elicited through questions put by counsel (or by the parties themselves if they are unrepresented) and, occasionally, by the trial judge
-The questions asked by the party calling a witness constitute the examination in chief
-The questions asked by other parties constitute cross examination
-The principal difference between examination in chief and cross examination is in the permissible form of questioning: leading questions are generally not permitted in examination in chief, but are the usual method of cross-examination
Criminal Proceedings
-Begins with a charging document called the indictment, or the information
-Voir Dire to Determine Conditions Precedent to the Admission of Evidence
- Before a witness refers to a confession made by the accused, it must be established that the confession is admissible, that is, that it was voluntarily made
-Appealing on the Basis of Evidence Rulings in Criminal Cases
- Laid out in part XXI of the Criminal Code
-Fresh Evidence on Appeal
- An appeal is argued on the basis of the record of evidence at the trial, but in an appropriate case, the appellate court has the power to hear additional evidence
Civil Proceedings
-Evidence in Interlocutory Proceedings in Civil Matters
The Competing Goals of the Trial Process
-The rules of evidence, like other procedural rules, are therefore concerned not just with getting at the truth but also with a range of other values
-The Adversary System and the Roles of Counsel and the Court
Burden and Quantum of Proof
Evidentiary and Persuasive Burdens
Persuasive Burden
-On the party who, in law, is required to establish the relevant facts to succeed
Evidentiary Burden
-On the party whose duty it is to raise an issue
-A party under an evidentiary burden must adduce or point to some relevant evidence capable of supporting a decision in the party's favour on an issue before that issue can go to the trier of fact
Burden and Degree of Proof in Civil Proceedings
-In civil proceedings, the plaintiff bears the evidentiary burden and persuasive burden on all elements of the action
Motion for a Non-Suit
-After P has laid out all evidence and rests their case, D may argue that P has not met his evidentiary burden
-In some Canadian jurisdictions, if D elects to call evidence, the motion for a non-suit is abandoned
-In other Canadian jurisdictions, D can elect to call evidence, and in such a case the trial judge reserves their judgment until after the trier of fact has come to a verdict
Proof on a Balance of Probabilities
-P must prove his allegations on a BOP: "find the fact more probable than not" (Miller) and/or "on the basis of a preponderance of probability… be reasonably satisfied of the fact alleged" (Smith)
Summary Judgment
-Moving party asserts the responding party's case is so weak that it is not worth bringing to trial - judgment without a trial
-In a motion of summary judgment the moving party is NOT claiming the responding party has led no evidence capable of establishing elements of a cause of action
-Objective is to screen out claims that ought not to proceed to trial because they cannot survive "the good hard look" (Pizza Pizza)
Burden and Degree of Proof in Penal Proceedings
Directed Verdict of Acquittal
-Criminal version of non-suit
-Arises after Crown rests case
-Accused asks trial judge to rule the Crown has not discharged evidentiary burden - has not led evidence capable of establishing the elements of the offence
-Test: Whether direct or circumstantial evidence, if believed by a jury acting reasonably, would justify a conviction (R v Monteleone)
- Trial judge should not weigh the evidence or make any deductions about guilt or innocence
-SCC has held that burden on Crown to avoid directed verdict of acquittal is same as standard applied in committing an accused for trial at preliminary hearing
Putting a Defence in Issue
-Trial judge is required to exercise some judgment as to whether the evidence supports a defence to the extent the jury should consider it
- Test: "air of reality"
- Defence should be put to a jury if and only if there is an evidential foundation for it
- When there is any evidence of a matter of fact the proof of which may be relevant to the guilt or innocence of an accused, the TJ must leave that evidence to the jury so that they may reach their own conclusion upon it (Pappajohn v The Queen)
- Test from Cinous:
- Assume the evidence from the defence is true
- Is there an air of reality to the accused's offence (is there a real issue to be decided by the trier of fact)?
- In applying the "air of reality" test, the TJ considers the totality of the evidence, and assumes the evidence relied upon by accused is true - TJ does not make determinations of credibility of witnesses, weigh evidence, make findings of fact, or draw determinate factual references
- The test is NOT to determine whether the defence is likely or unlikely to succeed - the only question is whether the evidence discloses a real issue to be decided by the jury (R v Cinous)
- Once defence has been put to jury, Crown then has burden to disprove all elements of the defence beyond a reasonable doubt (exception of mental disorder: balance of probabilities)
- Two principles: (1) TJ must put to jury all defences that arise on the facts, whether or not they have been specifically raised by the accused; and (2) TJ has positive duty to keep from jury defences lacking an evidentiary foundation so as not to confuse the jury
Proof Beyond a Reasonable Doubt
-Crown must prove all elements of offence BRD (entrenched in s 11(d) of Charter)
-Defining the Standard
- R v Lifchus outlines what BRD means and how jury is to be instructed:
- Charge should avoid:
- Likening reasonable doubt in an "ordinary" sense of the word
- Inviting jurors to apply same standard of proof they apply to important decisions of their own lives
- Equating BRD to "moral certainty"
- Qualifying "doubt" with any terms other than "reasonable" (i.e., serious, substantial, etc.)
- Instructing jurors that they may convict if they are "sure" the accused is guilty
- Charge should include:
- BRD intertwined with the presumption of innocence
- Defendant doesn't have to do anything except to assert something to raise doubt
- Burden rests with prosecution throughout the trial and never shifts
- BRD is not based on sympathy or prejudice
- It is based upon reason and common sense
- It is logically connected to evidence or absence of evidence
- Does not involve proof to an absolute certainty - it is not proof beyond "any" doubt nor is it an imaginary or frivolous doubt
- More is required than proof that the accused is probably guilty - a jury which concludes only that the accused is probably guilty must acquit
- "The verdict ought not to be disturbed if the charge, when read as a whole, makes it clear the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply" (R v W(D))
Burden and Degree of Proof in Constitutional Issues
-To prove that a s 8 right has been violated, the standard of proof is balance of probabilities
-Crown then has to establish whether it is a reasonable violation (applying Oakes test)
- This standard is an elevated balance of probabilities - different degrees depending on the severity of the subject-matter
-Once it has passed this stage, you look at s 24(2) and determine, on a balance of probabilities, both the charter violation and the standard for exclusion under s 24(2)
Presumptions
-A legal device enabling, or requiring, a trier of fact to reach a conclusion about a particular fact either where there is no evidence about that fact, or where a legal rule states that the fact may, or must, be inferred from other facts
-Two different kinds of presumptions:
- Presumptions without basic facts
- A conclusion which is to be drawn until the contrary is proved
- Presumptions with basic facts
- A conclusion which is to be drawn upon proof of the basic fact
- These can be further categorized into permissive and mandatory presumptions
- Permissive presumptions
- Leaves it optional as to whether the inference of the presumed fact is drawn following proof of the basic fact
- Mandatory presumptions
- Requires that the inference of the presumed fact be made upon proof of the basic fact
-Presumptions may also be rebuttable or irrebuttable
- Rebuttable presumptions
- There are three ways in which a presumed fact can be rebutted:
- Accused may be required to merely raise a reasonable doubt as to its existence
- Accused may have an evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact
- Accused may have a legal or persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact
-Presumption of Innocence