STRUCTURE OF ANSWER
- Identify disputed issues in case—ID OR LEVEL OF CULPABILITY
- Identify what counsel is trying to admit (mention burden of proof) and WHY (ie what is the theory of the case?)
- Apply tests, exclusions, statutory provisions to evidence based on facts
- Balance PV/PE from perspective of TJ in context of entire case
- Discuss limiting instructions if evidence is admissible—how jury should use evidence and how not to use the evidence
PRINCIPLES OF EVIDENCE
Adversarial system: trial final forum to settle dispute, two parties challenge each other’s evidence, TOF/TJ impartial adjudicator. IN JURY TRIAL—->TJ cannot usurp role of TOF, but can express opinions (LAWES)
Burden of proof: consider evidence as whole, not piecemeal (MORIN). Crown = BARD (STARR); accused = BOP—->accused raises RD to get acquittal (JHS); WD INSTRUCTION: 1. acquit if believe accused 2. acquit if RD re Crown case 3. convict if believe Crown’s case BARD
Disclosure: Crown gives full file (STINCHCOMBE); civil is reciprocal
Probative/prejudicial: assist TOF, decrease or increase probability of issue (ARP)—->1. Is evidence relevant + material? 2. Does evidence arouse strong emotions/distract (prejudice) TOF? 3. If evidence prejudicial, is it relevant to other issue at trial? (CUADRA) 4. Does prejudice outweigh probative value?; easier for accused to admit prejudicial evidence (SEABOYER), air on admission for accused/exclusion for Crown
Justice vs truth: truth recreates what happened at the time of the offence, justice employs context/implications of entire case—->sometimes law must sacrifice truth in short term for sake of justice
TYPES OF EVIDENCE
Direct evidence: proves fact in issue, vulnerable to witness error/lack of credibility
Circumstantial: TOF draws inference from evidence (MUNOZ, WHITE), guilt has to be at least one reasonable inference, NO SPECULATION
Real/object: Must authenticate 1. Continuity 2. Call witness w/ personal knowledge of object 3. Witness describes object w/o seeing it 4. Witness authenticates, evidence entered as exhibit if it passes PV/PE test
Video: Admissible if accurate, w/o intention to mislead, verified by qualified party (NIKOLOVSKI, PENNEY); cannot be misleading—selectively edited, transferred to different formats, non-continuous footage
Photographs: Admissible if accurately represent facts, no intention to mislead, verified by qualified party (SCHAFFNER); when balancing PV/PE TJ asks 1. add anything new? 2. overly inflammatory? (KINKEAD)
Demonstrative: things that held TOF understand the evidence (MCCUTCHEON), must be accurate (MCDONALD), similar (COLLINS)
Judicial notice (CTV): counsel asks TJ recognize something that is an indisputable fact not subject to reasonable dispute
BAD CHARACTER OF ACCUSED
Extrinsic misconduct: presumptively inadmissible, can show motive, can bring in if relevant to other issue (BFF, CUADRA)/has narrative benefit/rebuttal/accused opens door—->Crown proves BOP that PV outweighs PE; habit evidence inference based on established pattern of specific behaviour (WATSON); disposition inference of state of mind from conduct on previous occasions; if accused trying to claim 3rd party—evidence must be reasonably connected to 3rd party otherwise too prejudicial
Similar fact: General propensity inadmissible, specific may be admissible through SFE (PROCTOR, ARP) the improbability of coincidence, objective improbability the crimes were committed by another person (if ID look at proximity of locations, particular devices)
HANDY TEST: 1. Find PV—timing of allegation, similarity of acts reus, similarity of surrounding circumstances, quality of evidence
2. No collusion (CrwBOP)—chance = less weight, AOR = possible exclusion
3. Find prejudice—reasoning (# of witnesses, amount/complexity of evidence, potential for distraction/wasted time)
moral (inflammatory degree)
4. Limiting instruction—do not use SFE to prove offence being tried
Post offence: circumstantial showing accused behaved like a guilty person, must consider in context of all other evidence (WHITE I), must support reasonable inference of guilt (doesn’t have to be only inference), speculation = inadmissible (MAY admit w/ less weight WHITE II); only relevant to prove action and identity, so irrelevant if accused admits culpability and disputes level of intent (ARCANGIOLI) jury instruction should mention that behaviour often has many explanations even if accused didn’t try to explain it
REBUTTING DEFENCES: accused raises defence that requires level of intent, Crw can use POC to rebut defence criteria (PEAVOY)
INNOCENCE: probative of innocence if accused did not know about other evidence, willingly offered assistance before counsel, must
be otherwise admissible (SCB)
BAD CHARACTER OF WITNESS
Vetrovec: accomplices/jailhouse informants with severe credibility issues because often given special deals (VETROVEC, MURIN)
KHELA TEST: 1. TJ determines whether credibility is suspect—criminal activities, motive to lie, unexplained delay in coming forward,
inconsistent testimony, history of perjury
2. If VW, give special instruction
A. Alert jury of suspicion
B. Explain why evidence subject to special attention
C. Conviction on VW testimony alone dangerous, but TOF can do so if satisfied w/ credibility
3. TOF should look for material/independent corroborating evidence—need not implicate accused, confirm credibility
A. Must be independent, material
B. Cannot be tainted (ie GF of VW is not independent), is reasonable possibility of tainting it is inadmissible
4. Limiting instructions consider how unreliable/discreditable TOF thinks witness is, whether the VW gives TOF
confidence to convict
Witness criminal records: s 12 CEA permits admission of criminal record during XE to attack credibility (lead on both charged and uncharged)
Accused criminal records: accused’s liberty at stake so must balance fairness + search for the truth, only convictions(CULLEN, MCFAYDEN)
CORBETT APPLICATION: 1. Temporal connection (older record, less likely to be relevant)
2. Convicted of dishonesty offences (perjury, fraud)—more probative of credibility
3. Similarity between labels of crimes (more similar, more prejudicial)
4. Whether accused has attacked other witnesses’ credibility
IDENTIFICATION EVIDENCE
Eyewitness: inherently unreliable b/c memory fallible/subject to stress, connection with wrongful convictions; must allow this testimony but have to take steps to minimize risk of wrongful conviction; what is important is what witness saw at time of the offence, not what they remember in court—therefore, in court identification has no PV b/c identification MUST BE contemporaneous with offence
GONSALVES INDICIA: 1. Stranger or acquaintance; 2. Good opportunity to see suspect? 3. Night vs day 4. Stress levels 5. Vagueness of testimony 6. Intervening factors 7. Mentioned distinctive factors? 8. ID otherwise unconfirmed BARD?
Photo identification: show witness sequential photos, use officer uninvolved w/ investigation, do not tell witness # of photos (GONSALVES)
OPINION EVIDENCE
Lay witnesses: admissible if relates to facts witness actually perceived, cannot speculate or speak to legal issues (GRAAT)
Expert witness: presumptively inadmissible because were not present at time of offence, potential distracting/usurping, expensive, biased; cannot speak to ultimate issue (BRYAN), witness credibility (LLORENZ) but can provide narrative (SCC ABBEY, BFF); must have at least some evidentiary foundation or given less weight (WORRALL); basis of hearsay still admissible but not for truth (LAVALEE); if evidence is new field: whether theory can be/has been tested, peer review, known/potential rate of error, whether theory is generally accepted (R v JL)
MOHAN CRITERIA (party leading BOP): 1. Testimony is relevant2. Witness is expert in relevant area (KLYMCHUK)
3.Necessity (would TOF need assistance to arrive at same conclusion MCINTOSH, PERLETT, OSMAR) 4. PV/PE balance—depends on how evidence is presented
(HYPOTHETICAL QUESTION), which party is leading (SEABOYER STANDARD)
CURRENT TEST (ABBEY): 1. Apply MOHAN criteria2. Reliability of expert3. Nature of testimony4. Presentation 5. Potential to usurp TOF 6. Amount of court time 7. Testimonial history of expert 8. Degree of passing preliminary MOHAN criteria 9. Instruction should set scope of language of how to use it
ULTIMATE ISSUE (LLORENZ, ABBEY): counsel should use hypothetical questions, sometimes getting to UI is inevitable (ie expert
testifying about accused’s NCRMD), so evidence should pass admission tightly
COMPELLABILITY/COMPETENCE OF WITNESSES
General: everyone generally competent/compellable to testify under oath (solemn obligation to tell truth (KALEVAR)
Children: testify under promise to tell truth (s 16.1 CEA), must be able to understand and answer questions (RW), tools to help (LEVOGIANNIS), lessen importance of some aspects (date, passage of time, sequence) b/c children not cognitively developed
Mentally challenged: communicate evidence and promise to tell truth (ID), be respectful and allow testimony whenever possible (PARROT)
Spouses: competent for number of offences (s 4 CEA), cannot testify on marital communications (Couture)
EXAMINING WITNESS
Order of witnesses: Crown can be tactical, court may intervene if not calling a witness is highly improper (COOK), witnesses must clear courtroom, accused testifying after all witnesses is inevitable but may effect weight, TJ has discretion to caution jury
Direct: no leading questions (y/n answers), can lead on preliminary matters but never critical issues (ROSE)
Refreshing memory: witnesses may legit not remember what happened, counsel gets tools to refresh memory—> evidence has less weight; PMR not entered as evidence (only an aid) so lower test than PRR b/c entered for its truth
PRESENT MEMORY REVIVED (MATTIS):1. Counsel asks for leave to bring in part of statement for memory aid
2. TJ balances risks of undue tainting, allows or denies
3. If allow, counsel directs witness to parts of statement—->witness continues w/ testimony
PAST RECOLLECTION RECORDED: 1. Counsel asks to bring in past statement for its truth, TJ considers factors
2. Recollection was recorded in reliable way
3. Statement sufficiently fresh/vivid at time of recording
4. Witness testifies under oath knew it to be true at time of deposition
Cross: test opponent’s evidence, can lead, must have good faith (LYTTLE), improper XE grounds for appeal (AJR)
COLLATERAL FACTS: counsel can cross on collateral matters w/ regard to credibility, but must accept answers as given (CASSIBO)
BROWNE V DUNNE: XE cannot rely on evidence that contradicts testimony from direct unless contradiction put to witness
to explain/justify (MCNEIL)
Re-exam/rebuttal: can reexamine to clarify/qualify/explain issues from XE (SIPES); Crw cannot rebut unless issue was not REASONABLY ANTICIPATED during direct (KRAUSE)
Prior consistent statements: generally inadmissible b/c self-serving and low PV (STIRLING), tempts TOF to think consistency = truth (AY); maybe admissible if opposing party alleges recent fabrication (ELLARD) or it witness has motive to influence proceedings (STIRLING); maybe admissible for narrative exception (DINARDO); some case law suggests can lead statements upon arrest if accused takes stand because counsel can XE (EDGAR)
Prior inconsistent statements: counsel shows witness prior inconsistent statement to explain inconsistency (s 10 CEA); not truth but weight
Attacking own witness: generally cannot XE own witness, but can make 9(2) application if statement was written/reduced to writing and witness raises serious questions RE credibility to get limited XE, if TJ suspects witness is feigning lack of memory can support going to 9(2)
9(2) PROCEDURE (SCL): 1. Counsel applies—>jury leaves courtroom 2. TJ determines whether there is inconsistency 3. Put
inconsistent statement to witness3. Opposing counsel XE about circumstances of making statement
4. TJ considers whether statement was written/reduced to writing/recorded (police notes insufficient—
CASSIBO) 5. Prior statement must be substantially inconsistent 6. PV/PE 7. Limiting instruction
9(1) PROCEDURE(MILGAARD, MALIK): 1. XE under 9(2) unsuccessfully/no prior written statement 2. Declare witness hostile for unlimited XE—show demeanour, motive to fuck up proceedings, other evidence that contradicts witness, reasonable explanation for changed testimony, relative importance of statement to case, whether inconsistency is substantial
HEARSAY
General: out of court statements entered for their truth, presumptively inadmissible because no opportunity to XE (BALTZER)
CL exceptions: some hearsay is admissible if it falls under exceptions
DYING DECLARATIONS (AZIGA): narrow exception limited to victim naming the perp w/ hopeless expectation of death
COURSE OF DUTY (ARES): evidence created in actual performance of duties b/c likely to be reliable (ie nurse’s chart notes)
STATEMENT AGAINST INTEREST (DEMETER, LUCIER): statements that put speaker in vulnerable financial/liberty positions
RES GESTAE (CLARK): spontaneous declarations w/ close contemporaneity to unexpected event—immediate + relates directly
STATEMENT OF MIND/INTENT (PANGHALI, STARR): statements illustrating deceased’s state of mind admissible to infer victim
feared accused, infer that fear comes from animus
ABORIGINAL ORAL HISTORY (MITCHELL, DELGAMUUKW)
Principled approach: can admit some hearsay even if not under CL exception—necessity + reliability (must be otherwise admissible)
KGB + KHELAWON TEST: 1. Necessity—witness completely unavailable (counsel has to make reasonable efforts to get witness)
2. Reliable (UFJ)—three indicia from KGB + Khelwon inherent trustworthiness
A. Oath, presence of a TOF (video/observable), opportunity for contemporaneous XE (KGB factors) B. Logical flow of statement C. Temporal connection to offence D. Motive to lie E. Corroborating evidence F. Leading questions/pressure put on witness
3. PE/PV balancing
Statutory exception (WILCOX): business dealings admissible for their truth (s 30 CEA)—must produced n ordinary course of business and be otherwise admissible (relevant + material, PV outweighs any PE)
ADMISSIONS
Formal: provide TJ with conceded circumstances; uncontroversial, undisputed issues of the case; both parties have to agree (CASTELLANI, PROCTOR); conclusive of admitted facts (BAKSH)
Informal: presumptively admissible if satisfy voluntariness rule and have probative value, entire statement admitted for/against accused
PARTIAL OVERHEAR: generally inadmissible because surrounding context may significantly alter tenor of statement (HUNTER)
VOLUNTARINESS (OICKLE):Crown must prove BARD voluntariness
1. Statement provided to someone accused reasonably thought had power of state (authority)
2. Misconduct—threats, use of force, legal inducement (can be moral/spiritual), coercion, trickery; must
be evidence that misconduct CAUSED admissions
3. Accused had operating mind, some control over their decision-making capacity
UNDERCOVER CONFESSIONS (GRANDINETTI): not subject to voluntariness exclusion b/c accused must reasonably believe
authority figure has power of the state behind them; may be special discretion
under s 7 to exclude evidence if obtained in a particularly shitty way
Co-accused: inadmissible insofar as statement incriminates co-accused, TJ can edit statement if it is otherwise admissible (GREWAL)
EXCLUSION UNDER 24(2) CHARTER
s 10(b): everyone has right to contact counsel w/o delay upon detention, police must facilitate this right, cannot question accused before counsel
GRANT TEST: 1. Seriousness of breach from accused’s perspective (search of work cubby vs search of home)
2. Seriousness of breach from perspective of law enforcement (technical breaches——>nontechnical, degree of negligence breach—->pattern of negligence breach, cavalier attitudes——>wilful violations )
3. Impact on search for the truth (evidence is reliable, might hurt SFT if excluded
RIGHT AGAINST SELF-INCRIMINATION
Accused: protected by CL voluntariness (SINGH) not s 7; accused has to be aware of right; police can persuade accused but # of time accused asserts right may be relevant for weight; TJ considers 1. Implicit/explicit suggestion accused had to speak 2. # of time right asserted 3. Visual impact of accused’s demeanour during interrogation
TURCOTTE: absent statutory duty, RTS also applies outside custody, no obligation to speak; remaining silent NOT an inference of guilt
SINCLAIR: no right to reconsult with lawyer after interrogation has begun
PROKOFIEW: accused has right not to testify, Crw/TJ cannot comment (s 4(6) CEA) but TJ can instruct jury not to infer guilt
Witnesses: witnesses cannot be prosecuted in subsequent proceedings solely based on their tendered evidence (s 13 Charter)—>direct/derivate use protection—>if evidence could have been found another way, it can be used; past testimony inadmissible for credibility b/c state forces witness to testify; counsel can XE on peripheral matters from past testimony (NEDELCU)
NON-CRIM PROCEEDINGS (BC SECURITIES): right against self-incrimination only applies in criminal context, individuals can be
forced to testify for public interest; direct/derivative protection in criminal context
RE S 83.28: police ask for special warrant to force witness to testify at investigative hearing; direct/derivative/constitutional protection
PRIVILEGE
Solicitor/client: premised on notion that certain relationships should be protected; must show 1. Communications pertained to legal matters/advice
2. Entered into w/ expectation of privacy 3. Not about future crimes/liability; rests w/ client (BLOOD TRIBE) unless falls under EXCEPTION:
INADVERTENT DISCLOSURE (AIRST): generally no waiver if truly inadvertent, different if party was being reckless
PUBLIC SAFETY (SMITH): must be imminent risk of serious bodily harm/death to an identifiable group
WAIVER (CAMPBELL): either explicit/implicit—>accused specifically testifies RE benefit gained from communications under SCP,
privilege is waived b/c other side has to test this evidence
INNOCENCE AT STAKE (MCCLURE): w/o disclosure of SCP there would be a significant risk of wrongful conviction, no dice if there
is potential for acquittal on another ground;
1. Is there evidentiary basis that COULD raise RD? (speculative vs concrete evidence)
2. Is the evidence from privileged communication LIKELY to raise RD
Litigation (BLANK): protects documents leading up to litigation, ends with w/ litigation itself but continues for appeals or related litigation
Case-by-case: discretionary, looks at relationship and context of particular case to determine whether recognition of privilege would benefit administration of justice
GRUENKE TEST: 1. Communication given on confidential basis
2. Confidentiality was essential to relationship btwn parties
3. Relationship was sedulously fostered
4. Injury that would result from breach balanced w/ benefit—>seriousness of charge, how important breach is to
resolving the charge, relationship ranked for societal importance, actual circumstances of the case
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