Summary Analysis of Evidence Problems by JnNi205

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Summary Analysis of Evidence Problems
Step One – Is it Relevant and Probative?
If the evidence is relevant and probative, it is admissible unless excluded by some other
specific rule.
Thayer’s Test (1st test of evidence): Nothing which is not rationally relevant to issues in
dispute is admissible. Subject to many exceptions anything that is rationally relevant to
issues in dispute is admissible.
Relevancy vs. Materiality: Relevancy speaks to the tendency of a fact to establish a
proposition; Materiality speaks to whether the proposition is an issue before the court
 Rationales: don’t want jury making decisions based on irrelevant issues; to keep
     cases as short as possible
 if no, not admissible; if yes, go to Step Two

Step Two – Does an Exception to the General Admission Rule Apply?
Even if an exception applies, the evidence may still be admissible but the relevant details
of the exception must be considered.
Exceptions:
A. Hearsay: A statement is hearsay and, prima facie, inadmissible if it is a) an out-of
    court statement, b) adduced in court, c) to prove the truth of the facts therein.
Exceptions to the Hearsay rule:
    1. Testimony in Former Proceedings: between the same parties on the same factual
        issues where cross-examination was available is admissible if the witness is now
        unavailable
    2. Admissions: anything a party says can be used against that party
    3. Declaration against Interest: a statement against a declarant’s immediate
        pecuniary or penal interest is admissible, though hearsay.
    4. Business Records:
        Common Law: a business record made at or near the time of the event described
        by someone with personal information of the event whose duty required them to
        note such an event as part of the ordinary course is admissible, though hearsay.
        Statute: as common law except written notice must be given and personal
        knowledge is unnecessary.
    5. Past Recollection Recorded: a written memorandum of an event now forgotten
        made at or near the time of the event may be admissible, though hearsay.
    6. Res gestae: a hearsay statement relating to a starling event made while the
        declarant was under the stress of excitement caused by that event is admissible.
    7. Statements of Physical, Mental or Emotional State: a hearsay statement of a
        declarant’s then existing state of mind, emotion, sensation or physical condition is
        admissible.
    8. Dying Declarations: a statement by a deceased about the circumstances of their
        death in a criminal prosecution for which the death is a necessary element is
        admissible if the declarant made the statement under a fixed and hopeless
        expectation of impending death.
    9. Official Statements: similar to business records – a written report or record of a
        public official is admissible to prove its truth if the official had first-hand
        knowledge of the reported facts and had a duty to make the report of record.
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B. Opinion Evidence: Opinions are not admissible evidence unless they are a) a
   compendious (comprehensive but brief) way for the laity (lay people) to testify to a
   common everyday experience or b) opinions of someone skilled in a recognized
   science or art and necessary (or at least helpful) for the trier of fact to understand
   something otherwise beyond the trier’s knowledge or understanding
C. Character Evidence: the State may not call evidence solely for the purpose of
   showing an individual is of bad character and therefore likely guilty of an offence.
   However, evidence may be called to prove guilt (or disprove a claim of good
   character) which incidentally shows bad character. The forbidden reasoning process
   is bad character, therefore guilt; where guilt leads to a conclusion of bad character,
   no problem arises. An accused may call evidence of the accused’s general reputation
   for character in the community to show the accused is not likely guilty. Where
   character is so raised, the State may rebut the claim by cross-examining or calling
   contrary evidence. Evidence of bad character of non-parties may be called if
   otherwise admissible.
D. A Confession: a confession, that is, a) any statement made by b) an accused to c) a
   person in authority, is prima facie inadmissible unless the prosecutor shows it was
   free and voluntary.
E. Obtained Contrary to Charter or Quasi-Constitutional Document: evidence
   obtained as a result of a breach of a Charter right is inadmissible if its admission
   could bring the administration of justice into disrepute. Such rights are to be read
   broadly in light of Canada’s constitutional heritage and may be broad enough to
   include rights under, for example, the Bill of Rights. The burden of showing the
   breach, the nexus between the evidence and the breach, and the disrepute lies on the
   party seeking to exclude the evidence.
F. Obtained in Breach of a Confidential Relationship: relationship privilege extends
   to criminal and civil proceedings. It applies by class or on a case by case basis. If a
   relationship is covered by a class, subject to exceptions special to each class, any
   communications within the class are privileged and not admissible. Classes include
   a) solicitor-client b) spousal c) state policy making and d) informant identity. Case
   by case privilege is established by Wigmore criteria which require that the
   communication a) arose in confidence b) confidence was essential to the
   communication c) the relationship sought to be protected is valued by society and d)
   the harm caused by disclosure is greater than the damage to the trial process.
G. Of Civil Settlement Discussions: civil settlement discussions are privileged and
   information disclosed therein cannot be used in evidence at the trial of the dispute the
   settlement discussions were intended to resolve.
 if none, go to Step Three

Step Three – Prejudice vs. Probative Value?
Even if the evidence is otherwise admissible, the party opposing such admission can still
argue that the probative value of the evidence is slight and the prejudice of such evidence
is out of all proportion to its value.
The question is: Would a jury, on seeing such evidence, decide to convict (acquit, etc)
regardless of the mattes actually proven?
 Prejudicial refers to effect on the jury; if prejudicial, balance that with probative value
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Chapter 1 – Fundamental Principles
Role of Evidence
 Evidence only deals with the admission of facts for consideration at trial  evidence
   will determine only what a judge will consider in deciding a case
 Evidence acts as a gatekeeper – acts to exclude unnecessary and irrelevant material
 Goal is accurate but practical fact finding
 Material and relevant facts are often excluded because they are only marginally
   helpful or were obtained in a manner the court wants to discourage

Probability, Relevancy and Materiality
 Nothing which is not rationally relevant to issues in dispute is admissible; subject to
   many qualifications, anything that is rationally relevant to issues in dispute is
   admissible
    Thayer principle [from Morris v. R., [1983] 2 SCR 190]:
       (1) that nothing is to be received which is not logically probative of some
          matter requiring to be proved; and
       (2) that everything which is thus probative should come in, unless a clear
          ground of policy or law exclude it.
    Issues in dispute = questions the court must decide
    If evidence does not relate to an issue in dispute, it is inadmissible
 Relevancy:
    The tendency of a fact to establish a proposition
    Standard: all a fact has to do is render the relevant proposition more probable
      than it would be without the fact
       "An item does not have to firmly establish, on any standard, the truth or falsity
          of a fact in issue. The evidence must simply tend to 'increase or diminish the
          probability of the existence of a fact in issue."
 Materiality:
    Whether the proposition is an issue before the court
    Standard: the proposition it proves makes a difference to the court
 For a fact to be considered, it must be BOTH 1) relevant and 2) material

Probative Value and Countervailing Social Values
 Law of evidence is premised on hearing before juries, which are assumed to be
   susceptible to giving undue weight to evidence that is relevant and material only in a
   marginal way (i.e. prior criminal records, colour photos of a crime scene, etc.)
 Prejudicial effect means the likelihood the jury will decide the case on the basis of
   faulty or unfair reasoning because of an emotional, rather than intellectual, reaction to
   the evidence.
    Therefore, evidence whose prejudicial effect outweighs its probative value is
       generally excluded.
 Similarly, evidence that is otherwise relevant and material is sometimes excluded to
   protect other social values (i.e. evidence discovered in an illegal search)
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Probative Value, Process and Unfair Prejudice
 Evidence may be excluded if its probative value is substantially outweighed by the
   danger of unfair prejudice (prejudicial effect)
    Evidence is unfairly prejudicial if it encourages a decision based on improper
       reasoning, such as emotion.
 ALSO: "Although relevant, evidence may be excluded if its probative value is
   substantially outweighed by the danger of unfair prejudice, [or by] confusion of the
   issues, or misleading the jury, or by considerations of undue delay, waste of time, or
   needless presentation of cumulative evidence."

Is there a different standard to exclude evidence if adduced by an accused?
 Risk of wrongful deprivation of liberty or wrongful conviction leads the court to be
    very cautious before excluding evidence that may raise a doubt as to an accused's
    guilt
 Where the exclusion of evidence could risk an injustice, or raise concern for wrongful
    conviction, the court has a narrow discretion to allow the evidence to be adduced.
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Chapter 2 – The Justice System
The Adversary System
 Most cases heard by judge sitting alone – judge accepts which facts to accept and
   what law is properly applicable
    When sitting with a jury, judge is restricted to rulings on law – ADMISSION
       OF EVIDENCE IS A MATTER OF LAW
    S.471 – indictable offences to be tried by judge and jury
 In civil matters, juries customarily asked to decide specific factual questions rather
   than to rule on the liability or otherwise of the parties

Counsel and Parties
 Expected to be partisan and "fiercely combative" – judge is neutral
 Limited to honest partisanship – cannot break the law for the client, may not mislead
  the court
   Tuckiar v. the King – accused confessed to defence counsel, who passed on that
      confession to the court  counsel cannot mislead the court but counsel has
      absolutely no duty to volunteer information except as required by disclosure
      requirements
   Meek v. Fleming  if counsel know of a falsehood, they cannot allow the court
      to accept it (counsel took no steps to correct testimony that they knew was false)
      – actual knowledge however is rare
   Major exception: the criminal prosecutor – duty not to win "but to ensure
      justice done" – no discretion to omit facts in disclosure, even if they do not
      intend to rely on them
 Duty to disclose:
   Prosecutor under obligation to disclose everything in possession or control, unless
      it is a) clearly irrelevant, b) privileged, or c) falls with the ambit of the personal
      information provisions of the Criminal Code (s.278.1)
   Disclosure by prosecutor is a principle of fundamental justice
   Triggered when: 1) there is a reasonable possibility of the information being
      useful to the accused, or 2) before the accused is required to elect a mode of trial
      or enter a plea and must be sufficient to allow an informed decision as to plea or
      election, AND 3) this is ongoing – a continuing obligation as new evidence comes
      to light
   There is a distinction between what you are told, and what you actually have.
       I.e. the Bernardo lawyer. Who told you, is confidential, what you found is not.
           The problem was not that he has the videotape, but that he had removed them
           from where the police could have found them. If he had removed the tape,
           copied it and then returned it, he would have been fine.
       You do not want to take the evidence into custody. If a client brings you
           evidence, you do not have to take it, but cannot tell the client to dispose of it.
           You would say, "If you give me this knife, I am obliged to turn it over to the
           police. I do not want to take the knife. However, I am not advising you to
           dispose of this knife, and you should not do that. Take the knife and leave."
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          What about fraud cases? You may have an obligation to turn over any original
           copies of books, documents, etc. that would prove fraud, but you do not have
           to turn over copies of the original.
   Judges:
     Two functions: 1) deal with evidentiary issues and ensure smooth trial, and 2)
       decision-making process after the evidence is adduced
     Not to intervene (unless unrepresented party) – therefore, if no objection,
       evidence is admitted
        In civil cases, a failure to object is normally taken as agreement to
           admission.
        In criminal cases, a failure to object is normally taken as intentional and
           the evidence admitted BUT a criminal accused should not be deprived of
           the right to a full and fair trial because of an error of counsel
     A judge's role in fact finding is limited to ensuring that the jury is limited to
       rational determination; so long as a rational jury could make a fact-finding
       determination, so long as there are reasonable grounds to find something is true,
       the judge must leave the question to the jury.
        This is not the same as a judge evaluating and saying there is not enough
           evidence and weighing that and evaluating facts and saying there is
           insufficient evidence. But if there is NO evidence, then the judge withdraws
           the case from the jury. If the judge is sitting alone, you can bring a motion for
           non-suit at the end of the plaintiff or prosecutor's case (motion for dismissal).
        At that point, in Ontario, the judge says either yes or no (usually no). In a civil
           case, the judge can "put you to your election" – this means you have to
           decide, before the judge decides, whether or not you will call evidence. If you
           say no evidence, and the judge finds there is evidence, however, you will not
           be allowed to call a defence.
            The test for non-suit is not "is there good evidence" but "is there any
               evidence?"
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Chapter 3 – Appeals and Evidentiary Review
Structure of Courts
 Concept of appeal is fairly new (no appeal before 1870s/1880s)
 Appeal is not a new trial, but rather a review only of questions of law (not of facts)
   (test is correctness)
 Can appeal to SCC but will only be granted leave on matters of national importance
   and evidence cases seldom raise such issues; however, the issue of weight of evidence
   can be an issue of law

The Need for Error
 In order to have an evidentiary-based appeal, there must be a trial ruling on the
   evidence and therefore, there must have been an objection to the evidence at trial
 Rule: unless a piece of evidence is objected to, it will usually be presumed that the
   parties are content that the evidence go to the trier of fact and no appeal based on its
   admission will be allowed; this rule is sometimes waived by appellate courts if the
   admission of the evidence would lead to a substantial wrong or miscarriage of justice
   (more likely to occur in criminal matters and largely for the unrepresented)
   o How do they deal with it if there is a represented party and they think there is a
       problem? Supposed to make a subtle inquiry; if there is still no objection, it is not
       appealable
   o In Canada, extremely difficult to have a successful appeal based on incompetence
       of lawyer

The Appellate Court
 General Rule: following a trial, any party who disagrees with the result may appeal to
   a higher court for review; normally there is at least one appeal as of right.
 Court of Appeal has absolute authority to review questions of law and rule differently
   than trial judge (though a finding of a trial judge’s error in law does not automatically
   mean the decision will be over-turned – if error did not lead to difference in outcome,
   appeal will be refused)
 s. 134 of the Ontario Courts of Justice Act precludes an appeal court from ordering a
   new trial “unless some substantial wrong or miscarriage of justice has occurred”
   o Test for civil case: would it have made a difference to the decision had the judge
        acted differently?
   o Test for criminal case: could it have made a difference to the decision? (easier to
        succeed in criminal cases)
 To succeed, must be able to say the decision turned on that piece of evidence (helps if
   evidentiary error is coupled with other errors not related to evidence)
 If appeal is allowed the Appeal Court can make a different decision or order a new
   trial:
   o In civil cases they will almost always make a new decision (or vary the decision
        of the judgement below); same is true of family decisions
   o In criminal cases they will generally order a new trial (60-70% of cases)
   o Confession cases often lead to new trials as well
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Chapter 4 – Onus, Burden and Presumption
Onus, Burden and Presumption
Presumptions and Onus of Proof
 Onus – burden of going forward (to adduce some evidence related to a fact) and the
   burden of persuasion (burden of convincing trier of fact that something is the case)
 Evidentiary burden may occasionally be met without any evidence being called
 Presumption – where proof of one fact is taken as evidence of proof of another fact

Burden of Proof
Means two things:
 Burden of production – (aka burden of going forward) is the responsibility of
   proving some evidence that a fact exists; adducing some evidence of the truth of the
   proposition
   o Burden of production - must be some evidence of a defence before it can be
        argued; that “some evidence” has been referred to as a scintilla of evidence (a
        little tiny bit); empty of vodka is “some evidence” of the defence of being drunk;
        rests with whoever must prove a fact; a very low burden
 Burden of persuasion – deals with the concept of ultimately convincing the trier of
   fact that something is true; establishing the truth of the proposition
   o Burden of persuasion is me demonstrating to the court to a sufficient level that I
        actually was drunk and therefore couldn’t have committed first degree murder;
        always rests with the plaintiff/prosecutor;
   o Civil cases – balance of probabilities (50+% that claim is correct and none of the
        defences raised are correct) – so for every defence raised, the plaintiff must
        disprove it to 50+%; they only have to disprove defences that are somehow raised
        by meeting the burden of production
   o Criminal cases – beyond reasonable doubt – all elements of the defence must be
        proven by the state beyond a reasonable doubt and all defences properly raised
        must be disproved beyond a reasonable doubt
         Defences properly raised: defences for which burden has been properly met
         Must first establish with burden of production that (ie) self defence is an issue
         Self-defence – judge will not instruct jury on issue of self defence is counsel
             has not first met the burden of production
              If it is: prosecutor must disprove the defence beyond a reasonable doubt
                  (very difficult; don’t have to do it unless defence was raised with some
                  evidence)
         Same thing in civil – only have to persuade jury if some defence is raised
 Beyond reasonable doubt  has given difficulty to SCC for many years
   o Most recent decision dealing with it was Starr: said not to be understood in
        everyday language; must make it clear that it is not absolute certainty, but you are
        really sure
   o Courts used to use (no longer): moral certainty; a doubt based on evidence
   o Best use: in civil  is it more likely than not; in criminal  are you really sure it
        happened? If not, you acquit
   o Difference between civil and criminal: no inconsistency in verdicts that are
        different for the same incident but are criminal or civil (ex: OJ – acquittal in
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        criminal case does not mean you cant be liable in civil case, however, if OJ was
        guilty in criminal, automatically liable in civil case)
   Burden of persuasion  SCC has made it clear that there are only two standards
    (beyond reasonable doubt and balance of probability), however, sometimes there are
    some matters in a civil case where there is an assertion of an act of moral turpitude
    o Act of moral turpitude– an act that is mala inse (something that is wrong in
        itself); ie: theft, fraud, assault; often arises in civil case
         Burden in civil fraud case remains balance of probabilities; but SCC said you
             need clear and compelling evidence to find fraud etc.; how is that consistent
             with idea of 50/50 balancing? Truth is it is not consistent
         Fact is there are 3 standards: in civil case where no wrongdoing, it is 50/50
             (ie: motor accident case); criminal case is clearly beyond reasonable doubt;
             but if there is allegation of moral wrong in a civil case it is probably more like
             70% (SCC will never admit to this)

Circumstantial evidence
 General Rule: a purely circumstantial case can succeed only if “the circumstances
   [are] consistent with the conclusion of guilt and inconsistent with any other
   rational conclustion”
 Evidence that is not direct; does not go immediately to the proof of the case (ie: I saw
   X run out of room after I heard gun shot)
           o In a criminal case where the entire case is circumstantial (NO direct
              evidence), conviction only possible if there is no explanation of the
              circumstances other than guilt; trier of fact must conclude that there is no
              other explanation

Who bears the onus of proof?
 Broadly speaking, it is the plaintiff or prosecutor who bears the burden of proving
  their case, however, on specific issues, the defendant or accused may have the burden
  of producing evidence (such as evidence for affirmative defences: please of
  confession and avoidance)
 Burden of persuasion is the responsibility of persuading a trier of fact that some fact
  actually is true; this is the burden to beyond a reasonable doubt in criminal and to
  balance of probability in civil cases
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Presumption
 A presumption is a reasoning process whereby, to some degree, proof of one fact is
   taken to be evidence of another fact
 A principle where proof of one thing is taken as proof of another; ex: mailing  if I
   put a letter in the mail, it would be taken as proof to some degree that the letter was
   received about a week later…proof of mailing = proof of delivery
 Come in three forms:
   o Presumptions of fact – not prescribed by law but rather arise from common
       sense; can disprove them
   o Rebuttable presumptions of law – presumed by law but not conclusive if there
       is evidence to the contrary; such presumptions reverse the onus of producing
       evidence; Parliament has said that proof of A will be taken as proof of B unless
       there is evidence to the contrary
        Ex: s.192 of old Criminal Code – anyone living with a prostitute is deemed to
            be living on the avails of prostitution (offence of being a pimp); burden of
            production of not living off the avails rests with accused
   o Irrebuttable presumptions of law – prescribed by law and conclusive as to
       some issue; do not allow for evidence to the contrary and may fly in the face of
       common sense

Judicial Notice
 Principle: a trier of fact will take judicial notice of such facts as are generally
   known in the community and which are not capable of dispute among
   reasonable people
 Triers of fact (judges and juries) are assumed to have a fund of general knowledge
   about the world and specific facts in it
 Judicial notice is the acceptance of a fact as true without the introduction of evidence
   of that fact (once fact is taken judicial notice of, it is incontestable)
 judicial notice should not be taken of anything that does not go without saying
 judicial notice must be taken of all acts of: parliament, legislatures, courts in Canada
   and British court decisions
 a court is not required to take judicial notice of by-laws
 judicial notice should not be taken of things that are a central issue to a case
   o Zundel - crown sought judge to find by judicial notice that the Holocaust took
        place; problem was that Zundel’s defence was that it didn’t take place; asking
        judge to take notice that defence didn’t work (judicial notice cannot work that
        way_
 judicial notice can only go to peripheral issues/facts, not the central issue
 once judicial notice is taken, no further evidence can be led to dispute that fact (no
   evidence to the contrary can be led)
 judicial notice is always a question of law
 if judge takes notice that is not generally known in the community or capable of
   dispute by reasonable people, it will be appealable to OCA
 can ask judge to take judicial notice of straightforward things (things which are not as
   straightforward you can try to get notice on but you shouldn’t win)
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Chapter 5 – Testimonial Evidence
Use of Testimonial Evidence
- General rule: evidence in a trial is given either by testimony of a witness telling the
   court what happened or by the court itself inspecting physical evidence
- Real evidence (videotapes, audio tapes, pictures) may be misinterpreted or
   misunderstood but will not be translated through another’s experience
- In Nikolovski  a videotape of a robbery was sufficient to found a conviction
- For a court to consider real evidence, some authentication of the evidence is
   necessary  generally accomplished by testimony of a witness that proved that the
   real evidence is actually the item in dispute
- For a witness to speak to the courts there are two attributes they may have
           o Competence  the witness is legally able to testify in court
           o Compellability  the ability to compel the witness to testify
- Can be competent but not compellable (ie. diplomat) but a witness that is incompetent
   is generally not compellable

Competence
In order to have mechanical competence, witnesses must have:
    (1) Perception: ability to perceive an event at the time it happened;
            a. Must be sober enough, old enough…
    (2) Understanding: able to understand and remember the event in a coherent
        fashion; and
    (3) Communication: able to relate that understanding and memory to the court  R.
        v. Marquard – these issues are decided at the time of trial and not when the
        perceived event occurred
  All adults, unless shown otherwise, are presumed competent (s. 18 and 18.1 of OEA)
- The determination of who is or is not competent is a legal question decided by a judge
- Everyone is presumed, at all ages, to be mechanically competent
            o Onus on the person who does not want the witness to testify to show that
                the witness is mechanically incompetent
- The exceptions are (1) spouses of criminal accused who are not competent to testify
    for the prosecution (except in spousal or child abuse); (2) criminal accused, who are
    not competent to testify for the prosecution; and (3) children (and feeble minded)

Legal Competence Issues: Exceptions
- (1) A criminal accused is not competent as a witness for the crown:
          o Criminal accused allowed to testify in own defence  if you do, the
             crown can cross-examine
          o Only incompetent, as a criminal accused, in criminal proceedings against
             his/herself
                  Can testify against co-accused  but testimony given in co-
                     accused criminal trial cannot be used against the criminal accused
                     in his own criminal trial (s. 5(2) of Canada Evidence Act)
                  Competent to testify against himself in a civil case
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                       Can get a stay on the civil competence order if you can convince
                        the judge that the testimony given therein would prejudice your
                        criminal trial
-   (2) Cannot be competent to testify against your husband/wife (legally married)
           o If you are legally married and you haven’t split up/divorced at the time of
               the trial of the accused, the spouse (not in PC terms) is not competent to
               testify
           o If you marry your girlfriend before the trial, the GF (now wife) is not
               competent  It does not matter why you get married
           o Generally does not apply to common-law couples, couples in a committed
               relationship, etc.
-   Exception to competence: Your spouse is competent to testify against you in a family
    violence cases (section in the Criminal Code that makes this explicit)  Includes
    anyone living under your care
-   (3) One other exception: children (includes people with feeble minds)
           o Applies to civil, criminal, etc.
           o In general, if a child is about to testify, court must make a decision to
               determine whether child can understand the meaning of an oath or
               affirmation (no presumption of understanding until the child is 14 – s.
               18.1(1) of the Ontario Evidence Act, s. 16(1) of the Canada Evidence Act)
           o If the child can understand, they testify like anyone else (evidence not
               given any less weight  but can make oral arguments that you shouldn’t)
           o If child does not understand, they may still testify if they understand the
               difference b/twn truth, lies, and promises to tell the truth
                    If they meet this standard (subject to corroboration issues), they
                        can testify and evidence is given the same weight at everyone else
                    If they cannot understand the enhanced solemnity, the court makes
                        an inquiry into whether the child (a) is possessed of sufficient
                        intelligence to justify the reception of the evidence; and (2)
                        understand the duty of speaking the truth and the diff. b/twn truth
                        and lies and whether they would promise to tell the truth 
                        generally come across this is sexual assault/abuse cases (see s.
                        18.1(3) of the Ontario Evidence Act and s. 16(3) of the Canada
                        Evidence Act)
                    Anyone who is under age, the issue of whether they are able to
                        swear an oath/affirmation must be established first by the side
                        wishing to use the testimony
                    If you are calling someone who is an adult who is feeble minded, it
                        is up to the person opposing the testimony to raise the issue of
                        competence
                    Puts this on the exam every couple of years***
-   What does it mean to understand/appreciate an oath?
           o Older case law talks about understanding the meaning of the oath or
               affirmation in the context of religious belief  goes back to 17th century
               where the person had to believe they would be punished by their
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               prevailing God if they didn’t live up to oath (idea that you were binding
               conscience with God)
           o Oath book – sets out all the oaths in ON that are binding based on
               religious belief
           o Affirmation was for atheists
           o NOW – you do not have to have any belief in God, simply an
               understanding of the enhances solemnity of the event and the importance
               of telling the truth
-   Level of Proof: Competence of a witness is distinct from belief in that witness’
    testimony  proof that witness is competent limited to balance of probabilities

Compellability
- This is a purely legal concept  certain people are immune from being compelled
  to testify (but they can always AGREE to give it – ie. Clinton, Rice):
  1. Heads of state and their immediate agents – cannot compel them to testify
  2. Foreign ambassadors and their immediate staff are not compellable; diplomats
  3. Judge or juror – probably extends to administrative tribunals
       Immunity from compellability is much more limited than Heads of States
           (doesn’t matter what you want them to testify them about – can’t make them)
            limited to cases that were before them
       Cannot summon judge to testify for anything to do with the proceedings (ie.
           17th century case dealing with rioting  judges were compellable to testify on
           the riot – had nothing to do with actual proceedings)
- The question of the competence/compellability of a witness is a question of law in
  an appeal
- In R. v. S. (R.J.) the SCC held that there is a presumption that an accused is a
  compellable witness in a parallel criminal proceeding against someone alleged to
  have committed a crime with the accused unless it is established that the predominant
  purpose in compelling testimony of the accused in incrimination of the accused
- The test to determine whether a witness is compellable in a particular proceeding has
  evolved into a two-stage analysis: (from Cadagen)
  1. The court must consider the importance to the state of obtaining compelled
      testimony from the witness; if the court is of the opinion that the proceedings are
      undertaken or functioning primarily in such a way as to obtain evidence for the
      prosecution of the witness, rather than for some legitimate public purpose, s. 7 of
      the Ontario Evidence Act requires that the witness be exempted from testifying
  2. In the event it is found that the proceedings in question were commenced to
      achieve goals of substantial public importance rather than a collateral criminal
      prosecution, the court must continue to the second stage of the analysis which
      requires that the court balance the right of witness/accused against the interest of
      the state in receiving the compelled testimony, in a way which insures that all the
      requirements of the Charter are upheld
- Interpreters: if a witness cannot testify in a language understood by the court, a
  translator may be used as necessary
  1. The question of necessity is one of fact: does the witness “possess a sufficient
      knowledge of the language to really understand and answer the questions put”.
                                                                                       14


Chapter 6 – Examining Witnesses
Witness Preparation
- The order of examination:
   (1) Direct Examination (Questions in Chief)
   (2) Cross-Examination
   (3) Re-examination
- Should speak to as many witnesses as possible to determine what they will say,
   except those that are represented by counsel other than yourself – those can only be
   dealt with through their counsel
- In preparing witness, you are allowed/obliged to explain to the witness what they are
   going to be facing at trial, what questions you may ask, to generally assist them in
   telling their story
- If witness tells story, there is generally a real issue for claim/defence  by warping
   their story, you may miss the very thing you are looking for (valid claim/defence)
- Allow this “coaching” b/c of the artificiality of court proceedings
            o Artificiality depends upon the distinction b/wtn your witnesses and the
                other side’s

(1) Direct Examination (Questions in chief)
o Is the examination by a party of witnesses called to testify by that party
             Counsel may not lead their witnesses on material issues but SHOULD
            lead them on introductory or non-contentious matter
o A leading question is one that directly or indirectly suggests the answer or which
    directly or indirectly assumes the truth of a matter in issue
o Exception to leading questions rule are hostile witnesses and witnesses who, for
    some reason, cannot testify otherwise coherently except in response to a leading
    question
         A hostile witness is a witness who by demeanor or manner shows a refusal to
            testify willingly – is a question of fact
         A failure to remember is not the same as hostility

(2) Cross-Examination (Questions in cross-examination)
- You are allowed to ask very leading questions (as well as non-leading questions)  I
suggest to you that this lawsuit is nothing but an alternative to the receiving payment on
this other issue….
 Purpose of x-examination is threefold:
                   1. To destroy or weaken the force of the witness’s testimony in direct
                       examination;
                   2. To elicit something favourable; and
                   3. To discredit the witness
o Limit cross-examination if not necessary – worse thing is to repeat everything from in
    chief
o No limit to the scope of cross-examination – any relevant question may be put to the
    witness
o You don’t have to x-examine  except in one limited circumstance:
                                                                                         15


The Rule in Brown v. Dunne
The only time you have to x-examine is if witness is lying or in error: a party wishing to
impeach the credibility of the witness must ordinarily put the contradictory material to
the witness in order to give the witness an opportunity to explain it

-   The most requested case – if you intend to suggest that someone is lying about the
    incident, you ought to cross-examine them about the incident
            o Not a definite rule: good to use
-   Weak interpretation: Court will allow evidence to be called but give it no weight at all
-   The ultimate ability to ask leading or non-leading questions is within the discretion of
    the court

(3) Re-examination
- After cross-examination, the party who has conducted the direct examination may ask
    questions to clarify answers given during cross-examination
- May not seek to repeat the testimony from direct or raise new issues – may only
    clarify or expand on matters raised in cross-examination
- Attempt to deal with matters in re-examination that should have been dealt with in
    chief will not be allowed – not allowed to split case
                                                                                          16


Chapter 7 – Hearsay
Hearsay evidence is: 1) any out-of-court assertion 2) repeated in court 3) to prove
the truth of that assertion
 Hearsay deals with transmission errors (broken telephone, lying, etc.); must try to
     keep statements made by non-witnesses out of court
Rule: subject to the exceptions, an out of court statement made in court to prove its truth
is inadmissible.
Subramaniam (classic formulation of hearsay)
Rule: evidence of a statement made to a witness by a person who is not himself called as
a witness may or may not be hearsay. It is hearsay and inadmissible when the object of
the evidence is to establish the truth of what is contained in the statement. It is not
hearsay and is admissible when it is proposed to establish by the evidence, not the truth
of the statement but the fact it was made
 Not adduced to prove its truth, but rather to adduce the state of mind of Mr. S

Why is hearsay problematic?
R. v. B(K.G.): the absence of an oath or solemn affirmation when the statement was
made, the inability of the trier of fact to assess the demeanour and therefore the
credibility of the declarant when the statement was made (as well as the trier’s inability to
ensure that the witness actually said what is claimed), and the lack of contemporaneous
cross-examination by the opponent.

Policy behind hearsay rule stated in R. v. Christie: … (a) because to admit such
evidence would be to accept the statement of a person not on oath, and (b) because that
person could not be cross-examined on his statement

Hearsay Dangers
 Trier of fact cannot assess the credibility of the person whose credit is really at issue
   (person whose statement is being repeated)
 Depreciation of truth in the process of repetition
 Opportunities for fraud its admission would open
 Tendency of such evidence to prolong legal inquiries
 Encourage the substitution of weaker for stronger proofs

Hearsay defined by purpose: see Subramaniam

Hearsay implied by assertive conduct
 Canadian courts do not treat implied assertions or assertive conduct as hearsay

Exceptions to the Hearsay Rule:
 Starting with R. v. Khan, and continuing through R. v. Starr, the Supreme Court has
   adopted a principled approach to hearsay evidence and exceptions
 This approach: a) recognises the dangers of hearsay evidence; b) recognises that those
   dangers are not always present; and c) that in some specific cases, hearsay evidence is
   just as good a basis for judicial decision-making as sworn and cross-examined
   testimony.
                                                                                          17


   Under the principled approach, evidence may be admitted, though hearsay, if it is
    necessary and reliable
   From Khan: Necessity must be interpreted as “reasonably necessary”

Interaction of exceptions to hearsay rule and principled approach
 Under Iacobucci’s analysis in Starr: any hearsay evidence otherwise admissible under
   an exception to the hearsay rule, can be challenged as being neither necessary or
   reliable
 McLachlin’s dissent would seem more practical: (see page 56)

Out of Court Assertions that are not Hearsay
 Element 3 of the definition of hersay, to prove the truth of that assertion, does not
  apply if a statement is repeated in court for a reason other than its truth (in that case,
  the statement is not hearsay)
 Reason for adducing an out-of court statement: when the importance of the statement
  arises from its making and not it truth
 Leading case is Subramaniam

Present knowledge and refreshing memory
 if a witness does not recall the events they are called upon to give evidence
   concerning, there is nothing wrong with allowing them to review notes to refresh their
   memory (once memory refreshed, they are giving testimony of their own
   recollections)
 if memory is not refreshed, and all witness can do is read the notes to the court, there
   is a hearsay problem (merely because the hearsay statement is being repeated by its
   initial author does nothing to alter the fact the statement is hearsay – Jewett)
                                                                                       18


Chapter 8 – Exceptions to Hearsay
 prior to Starr, there were three stages in the analysis of hearsay: First, was there a
  hearsay issue? If so, did a traditional exception to the hearsay rule apply? If not,
  could the evidence be admitted anyway, on the basis the evidence was both
  necessary and reliable?
 Post Starr, the analysis is: (1) is there a hearsay issue? (2) does a traditional
  exception apply? (3) if a traditional exception applies, can the party opposing
  admission show that the evidence is, nevertheless, not necessary and reliable? (3a) if
  a traditional exception does not apply, can the party seeking admission show that the
  evidence is both necessary and reliable?
           o Key element is nature and scope of traditional exceptions
 Most exceptions can be explained based on two elements of the Wigmore criteria:
  1. The evidence is relevant, material and important but cannot be adduced
      except by hearsay; and
  2. There is some circumstantial indicia of trustworthiness that suggests the
      hearsay is believable

The Exceptions
A. Testimony in Previous Hearings
 The exception was set out by SCC in Erdman: where a witness has given his
   testimony under oath in a judicial proceeding, in which the adverse litigant had the
   power to cross-examine, the testimony so given will, if the witness himself cannot be
   called, be admitted in any subsequent suit between the same parties, or those
   claiming under them, provided it relate to the same subject or substantially involve
   the same material questions
 A similar statutory provision exists in the Criminal Code (see s. 715 and 715.1 of
   Appendix A)

B. Admissions
 as a general rule, anything a party says can be used in evidence by the opposite party
 this exception is limited in several respects:
   o first, an admission is evidence only with respect to the party making the
      admission
   o second, silence may be used as an admission, but only where silence necessarily
      implies an admission
   o third, admissions, particularly by business, may also be made by agents or
      employees (a statement by an employee or agent within the scope of their
      employment or agency can be admitted as an admission)

C. Statement Against Interest
 *don’t confuse this with the admissions exception which applies only to parties
 statement against interest exception differs from admission exception in that it applies
   to anyone and can be used to adduce, for the proof of its truth, any out-of-court
   statement if that statement was “against interest” and the declarant is unavailable
 the statement must be wholly against the declarant’s interest
                                                                                          19


   The statement against interest exception is: an oral or written declaration, by an
    unavailable person, of a fact that person knows to be against their immediate
    pecuniary or personal interest is admissible, though hearsay, of the facts
    contained in the declaration
   There must be a realization by the declarant that the statement may be used against
    him (O’Brien)

D. Business Records
 Invoices, if allowed to prove their contents, are hearsay, however, an exception to
   hearsay exists to allow business records to be proven for their truth (pertains to any
   organization that keeps records)
 Exception is justified because (a) such evidence is generally reliable and (b) it usually
   cannot be adduced otherwise
 At common law a business record is admissible to prove the truth of its contents if:
   1. It was made at or near the time of the matter recorded;
   2. It was made by someone with personal knowledge of the matter recorded and
       whose position obliged them to record the information; and
   3. It was made in the ordinary course of business
 Business records may also be admitted into evidence by statute which are less
   onerous and it is more common for business records to be admitted pursuant to statute
 Differences between statutory and common law exception are that personal
   knowledge of the facts recorded is irrelevant under statute, except as to weight, but
   written notice of the intention to call business records must be given before the
   evidence is to be called
 the Ontario Evidence Act, s. 35(2)&(3) and s. 30 of the Canada Evidence Act (p.64)
 merely delivering notice of the intention to call business records and them filing them
   with the court is not sufficient to allow them…the circumstances of creation and their
   use as actual business records must be proven independently
 in calling business records, counsel should consider both the common law and
   statutory exceptions to the hearsay rule

E. Past Recollection Recorded
 Witness who has no recollection of a relevant and material fact but made written
   notes about the fact earlier can admit such notes (ie: wrote down licence plate #)
 Rule stated in Meddoui:
   1. The past recollection must have been recorded in some reliable way
   2. At the time, it must have been sufficiently fresh and vivid to be probably accurate
   3. The witness must be able now to assert that the record accurately represented his
       knowledge and recollection at the time. The usual phrase requires the witness to
       affirm that he ‘knew it to be true at the time’
   4. The original record itself must be used, if it is procurable
 Distinction between physical and testimonial evidence
    Statement, if played in court, is hearsay; the bruising is not hearsay (it is physical
       evidence); if you link bruising with testimony, it goes in
                                                                                         20


F. Res Gestae
 Rule: A hearsay statement relating to a startling evidence or condition that was
   made while the declarant was under the stress of excitement caused by the event
   or condition is admissible though hearsay
 The reasoning is that the event was so startling that the declarant does not have
   reflective capacity and will only speak the truth as the declarant sees it
 Statement must be made while the declarant still feels the shock of the event (if shock
   had worn off, statement is not admissible)

G. Existing Statement of Physical, Mental or Emotional State
 Rule: an otherwise hearsay statement of the declarant’s then existing state of
   mind, emotion, sensation or physical condition is admissible
 Limitation is that statements of existing intention are proof of the intention only of the
   declarant and cannot be used to prove the act or intention of any other person

H. Dying Declarations
 Rarely seen
 Rule: where a hearsay statement is made by a dying declarant, who knows death
   is imminent, and that statement is sought to be adduced in a criminal proceeding
   for which the death of the declarant is a necessary element and the statement
   relates to the circumstances of death, the statement is admissible
 It applies only where five elements apply:
   1. Declarant is deceased;
   2. declarant knew of impending death;
   3. the statement related to death;
   4. criminal case; and
   5. element of criminal charge is death of declarant

I. Official Statements
 Statutory Rule: s. 31(2) of the Ontario Evidence Act provides that entries in books of
   account of a municipality are admissible as evidence of the truth of their contents
   without further proof
          o must get certified copy of the document
 the broader common law rule is: a written report or record of a public official is
   admissible if the official had first hand knowledge of the reported facts and had
   a duty to make the record or report
 public official = civil servants, harbour master, school teacher, an official or a trade
   organization
 question is what role the declarant plays – is it one related to a governmentally
   sanctioned role dealing with the public? If so, declarant is a public official
                                                                                         21


Chapter 9 – Exclusion of Otherwise Relevant Evidence
Courts
- Whether or not it makes sense to exclude otherwise admissible and relevant evidence
  depends on the societal role of the court
- With the advent of the Charter, Canadian courts regularly exclude evidence that is
  otherwise quite reliable because its admission would offend societal norms

Examples of exclusion of evidence for societal concerns:
          a) Right against self-incrimination
          b) Right to silence (while detained)
          c) Self-incrimination and the Charter (while giving testimony)
          d) Right to counsel and evidentiary implications

Right against Self-Incrimination
General Rule: An accused cannot be compelled to give testimony against themselves in
a criminal trial
 This is clear from both s. 11(c) of the Charter (see pg 72) and s. 5(2) of the Canada
Evidence Act
- This applies to an offence, which is broader than a criminal charge and includes
    provincial offences
- Remember issues of competence: a person is not a competent witness against
    themselves in a criminal litigation
            o This is fueled by the social concern that people have the right not to testify
                against themselves because liberty/security of person is at risk
- But the right to not testify is not a prohibition on testifying – an accused may give
    evidence at criminal trial
            o It is a question of judgment whether to call such evidence and whether it
                will do more harm than good
            o Once accused testifies, may be asked questions re: character or prior
                convictions
- As per s. 4(6) of the Canada Evidence Act: The failure to testify shall not be
    commented upon by the judge or counsel for the prosecutor, in either body language
    (implicitly), or words (directly) any statement to this effect would lead to a
    mistrial
            o Note: A judge is entitled to make a relatively neutral description of the law
                setting out the accused right to not testify
            o But the judge can't say, "I would urge to ask yourself why the accused did
                not testify"
- The accused is also allowed to raise it – and often will – because the jury will ask it
    themselves – so the accused will often raise it to "bring it out into the open" and
    remind the jury they can't use it as a negative inference
- But an appeal court can consider the failure of an accused to testify in deciding if an
    appeal is well-grounded and this sits strangely with the right not to testify.
                                                                                           22


Right to Silence (While detained)
General rule (from Chambers): "In Canada, the right of a suspect not to say anything to
police is not the result of a right of no self-incrimination, but is merely the exercise by
him of the general right enjoyed in this country by anyone to do whatever one pleases,
saying what one pleases, or choosing not to say certain things, unless obliged to do
otherwise by law."
- I.e. an extension of s.2(b) – freedom of speech includes the freedom not to speak

-   But there is no explicit right to silence in the Charter  the SCC read it in R v.
    Chambers
-   Hebert case illustrates how seriously the court stake the right to be silent:
            o "the common law rules relating to the right to silence suggest that the
                 essence of the right is the notion that the person whose freedom is placed
                 in question by the judicial process must be given the choice of whether the
                 speak to the authorities or not"
-   The scope of the right to silence must be defined broadly enough to preserve for the
    detained person the right to choose whether to speak to the authoriities or to remain
    silent
            o This necessarily excludes police trickery which would effectively deprive
                 the suspect of his choice (like planting a police officer in the cell of the
                 accused)
-   Once accused says, "I'm not saying anything, I want my lawyer" – they have no right
    to seek admissions either directly or indirectly (unless after obtaining legal advice the
    right to silence in waived)

Self-Incrimination and the Charter
General Rule: The right against self-incrimination is explicitly set out in s. 11(c) of the
Charter (pg 73) and reinforced by s. 13 (pg 74) of the Charter
 s. 13 protects an accused from being forced to testify in a matter in which they are not
accused and having that unwilling testimony used against them in a subsequent trial

-   This rule stands even with voluntary testimony
            o From Dubois –"as section 13 guarantees the right of a person against self-
                incrimination, rather than the rights of a witness giving testimony, it inures
                to the individual only at the moment an attempt is made to use previous
                testimony to incriminate its author.
-   Therefore, whether or not the prior testimony was given voluntarily is irrelevant to
    the right against self-incrimination – it is excluded not because it is hearsay, but
    because of the Charter.
-   Exception: can use prior inconsistent statement in cross-examination if previous
    testimony from earlier proceeding has changed
            o Rationale: the prior statement is only being used to shake the present
                testimony and not as testimony  inconsistent statements are not proof of
                their contents byt merely evidence of the inconsistency of the witness
                                                                                            23


           o Also, when you cross examine a person on a prior statement, you are not
             seeking the truth of that statement, but trying to prove that the "truth" has
             changed: if it has, they should not be believed.

Right to Counsel and Evidentiary Implications
- Charter has strong impact on criminal matters:

s.24(2): Where….evidence was obtained in a manner that infringed…this Charter, the
evidence shall be excluded if it is established that, having regard to the circumstances,
the admission of it in the proceedings would bring the admin. of just. into dispute.

-   This excludes otherwise admissible evidence but only if:
                  (1) It was obtained by a Charter violation-there must be a close nexus;
                      and
                  (2) If the admission would bring justice into disrepute (this is where the
                      balancing comes in)
-   The second condition discussed by SCC in Collins: the question turns on whether the
    evidence could bring the administration of justice into disrepute in the eyes of a fair
    dispassionate person
-   Note the Manninen case: immediately after the accused’s clear assertion of his right
    to remain silent and his right to counsel, the police must cease questioning or
    otherwise attempts to elicit evidence until he had a reasonable opportunity to obtain
    and instruct counsel
        • Held: the violation of the R. to C. as willful and deliberate, and the evidence at
            issue a direct consequence of the violation  excluded the incriminating
            evidence.
                                                                                         24


Chapter 10 – Confessions
Rule: A confession is a statement made by an accused to a person in authority. Such
a confession is not admissible in a prosecution of the accused unless the prosecution
proves beyond reasonable doubt that the confession was made voluntarily.
Free and Voluntary
The courts have been clear that essential in the concept of voluntariness is that the
speaker must have an: 1) an operating mind; and 2) confession not obtained by hope of
advantage or fear of prejudice (the question is subjective)
- The usual warning ("anything you say can and will be used against you") is sufficient
    for most adults, but not for persons of limited capacity; someone suffering physical
    shock, drunkenness, or lacking mental capacity cant make an admissible confession
- To establish an operating mind, the prosecutor does not need to show that the speaker
    could decide whether confession was prudent, but she must show beyond a
    reasonable doubt that:
             1. The speaker knew what they were saying;
             2. Knew it could be used against them; and
             3. Comprehended the police warnings
- The second element of voluntariness: that the confession was not obtained by hope of
    advantage or fear of prejudice
             o Have to be satisfied that the authorities did not obtain the confession,
                directly or indirectly, by engendering fear in the accused that he will be
                worse off if he makes no confession, or by exciting hope in the accused
                that he will be better off if he does make a confession
                     If the judge is so satisfied, he may admit evidence
                     If he is not so satisfied, he must exclude it
Who is a Person in Authority?
Anyone an accused reasonably believes is in a position to influence the prosecution
of an accused
- Includes: police, prosecutors, jail wardens, owners of property alleged to be stolen,
    security guards and fire marshals
“A person whose promise or threat would be likely to influence the accused and induce
him to make a statement that is against his interest from fear or hope"
- This is a subjective/objective test – it depends on the specific circumstances of the
    accused, but can't be "way out there" – you have to think that if you were in the place
    of the accused, you might think the same thing
- Reliability – if you put somebody in a room and you are in a position to say "make a
    statement or…", it is likely that a person will say anything to make the person in
    control happy – so these confessions are inherently unreliable
- The other basis for excluding a confession is because society simply thinks it isn't
    "right" to allow someone to confess and incriminate themselves. There is the risk of
    having people be improperly abused to get these confessions.
- The confession rule only applies in court, and to the confession itself.
- If you torture someone just to get information out of them, rule applies.
    o The confession rule only applies to the statement itself, not to any other
         information that you might get
                                                                                       25


   o i.e  a person confesses to having a child in their mother's basement – the police
       rush to the house, and rescue the child. The Charter might exclude the actual
       finding of the child in the basement (probably not though) – the confession rule
       does not exclude this – it only excludes the statement
Confession rule does not apply, if:
- Accused makes statements to someone who is factually in authority, but they don't
   know that, or believe it (i.e. undercover cops)
- Accused makes statements to someone who they believe is in authority, but they are
   actually not

The Voir Dire
- Must hold a trial w/in a trial to determine confession is voluntary and thus admissible
- The jury is excluded from the confession voir dire and the evidence heard therein
   does not form part of the evidence on trial and is not repeated later for the jury,
   regardless of whether the confession admitted
- A voir dire ought to be held whenever an issue of a confession is raised unless the
   accused quite explicitly waives the need for a voir dire
   o Silence, or lack of objection, is not sufficient for waiver
- Burden of proving voluntariness of the confession rests with the prosecution
- The accused may testify but in such event the judge may allow the accused to be
   questioned on the truth of the statement
   o De Clercq (1968) establishes this principle although it may be subject to
       reconsideration (strong dissent at SCC)  SCC held that truth of a confession
       might be relevant to its voluntariness but the Privy Council takes a contrary view
       and would not allow questioning on the truth of the statement sought to be
       adduced as a confession

Evidence collaterally proven true
- Two reasons confessions excluded unless proven free and voluntary
   (1) It may be that judges consider such evidence to be so frail and suspect that it
       cannot be given any credit
   (2) Second, barred because of the broader societal prohibition on benefiting from
       prosecutorial misconduct
- But what if an involuntary confession is collaterally proven true?
- If confessions are excluded because they are unreliable and for no other reason, then
   we ought to allow verified confessions.
- In Canada, until the Charter, we allowed such evidence.
   o The involuntary but verified confession in total was not allowed, only so much of
       the confession as was demonstrated correct was allowed. (Wray)
- With the Charter – this is no longer good law.
- General Rule: Evidence obtained by violation of the Charter is to be excluded if its
   admission would bring the administration of justice into disrepute – overruled Wray
- Regardless of the Charter, an involuntary statement, whether or not proven true,
   cannot be used at all by the prosecution
- No use may be made of an inadmissible statement (confession) at any stage
   whatsoever of the trial
                                                                                                                   26


Chapter 11 – Evidence Obtained Illegally
   dealing with evidence obtained as a result of illegal conduct by the State (usually
    unconstitutional conduct)
   question: if evidence is relevant and material, and there is no reason to doubt its
    truthfulness, why should illegality in its acquisition affect its admissibility?
    o R. v. Hanan (p. 83) – it is still quite permissible to “set a thief to catch a thief”
   Except for constitutional breaches, illegality does note taint admissibility of evidence
   This is the law in Canada (in both civil and criminal cases)
   however, in civil cases, a party may obtain an injunction barring the use of otherwise
    confidential materials obtained by some breach of that confidence

Wiretap Evidence
 There is a statutory exception to the principle that illegally obtained evidence is
  inadmissible
 Wiretap evidence is not admissible in a criminal matter unless the prosecutor
  complies with notice and disclosure requirements prior to seeking to introduce
  the evidence
 At present, and ignoring Charter issues, wiretap evidence is admissible if the limited
  notice and disclosure prerequisites are met
Summary:
To exclude “illegal” evidence:
1) First, can you show a Charter breach?
2) If yes, was the evidence part of a chain of circumstances following the Charter breach?
3) If yes, you then must show, to a balance of probabilities, that the admission of the evidence could bring the
     administration of justice into disrepute/tainted the system in some way.
If you can do all three, the evidence shall be excluded




Chapter 12 – The Exclusion Remedy Generally
-   When the Charter was introduced, care was taken to ensure it would have an effect:
    sections 52 and 24 of the Charter are key
            o S. 52 makes the Charter part of the Constitution and the supreme law of
               Canada and its provinces (overrules any other law)
            o S. 24 is an enforcement provision and provides:
    24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
    infringed or denied may apply to a court of competent jurisdiction to obtain such
    remedy as the court considers appropriate and just in the circumstances.

    (2) Where, in proceedings under subsection (1), a court concludes that evidence was
    obtained in a manner that infringed or denied any rights or freedoms guaranteed by
    this Charter, the evidence shall be excluded if it is established that, having regard to
    all the circumstances, the admission of it in the proceedings would bring the
    administration of justice into disrepute.

     (1) is therefore the general power to fashion a remedy – but (2) is the only part that
    is relevant for the purposes of excluding evidence.
                                                                                     27


-   Exclusion of evidence under s. 24(2) requires 2 elements:
           (1) The evidence must be obtained in a manner that violated the Charter; and
               Absent a specific charter breach, no basis to seek an exclusion under
                  the Charter – merely raising illegality will not trigger exclusion
           (2) The admission of the evidence would bring the administration of justice
               into disrepute
-   Furthermore, the exclusion is based on 3 primary considerations:
           (1) Would the admission of the evidence affect the fairness of the trial?
           (2) How serious was the Charter breach; and
           (3) What would the effect of the exclusion be on the repute of the
               administration of justice?

What does “Disrepute” Mean?
- Necessarily involves some element of community views, and the determination of
  disrepute thus requires the judge to refer to what he conceives to be the views of the
  community at large
  o Does not mean evidence of the public’s perception will be dispositive of the issue
  o The Charter is the only effective shelter for individuals and unpopular minorities
       from the shifting winds of public passion, and is designed to protect the accused
       from the majority  the enforcement of the Charter should not be left to that
       majority.
- Necessarily involves asking:
  o Would a reasonable member of the public, on learning of the circumstances and
       hearing that the evidence would/could be admitted, think that there is not much
       difference between the police officers and the criminals? This gives you the idea
       we are looking for: would a reasonable person think justice was tainted in some
       way because this evidence was admitted?
- The court has said that the when someone is accused of a heinous crime, the court has
  to step away from that heinousness, and enforce the rights of the accused.
- Consider also, would the justice system be brought into disrepute by the exclusion of
  the evidence?

Causation or Connection
General Rule: Whether the admission of the evidence could bring the
administration of justice into disrepute. It is unnecessary for the Charter breach to
lead directly to the evidence which brings the administration of justice into
disrepute for s. 24 of the Charter to be triggered. A mere temporal link, that is a
breach before the evidence, triggers s. 24 of the Charter, unless the breach and
evidence are clearly remote.
- Note the would vs. could distinction in the English and French versions of the
    Charter:
    o The French version of the Charter is "is susceptible" which is not exactly the
        same as the English which says “would” – the courts read the french version of
        the Charter as "could"
                                                                                         28


    o The courts ruled that the inconsistency between these results in the reading in of
         "could" into the English text because you choose the one that is more favourable
         to the accused.
-   Have to show that that breach is in some way connected with the evidence itself.
    o I.e. you are detained and refused your right to counsel – you confess to having
         done the crime and that the evidence is in your boyfriend's house. Police go and
         get the evidence  evidence excluded
    o Versus – you are detained and refused your right to counsel – simultaneously, the
         police show up with a search warrant at your boyfriend's house and find the
         evidence. There is a breach in this case, but it is not connected to the evidence 
         evidence admitted
-   Generally, all evidence obtained as a result of the “chain of events” from the Charter
    breach is excluded
-   In the US you have to show the direct connection
-   If there is a Charter breach followed by a bunch of different events, and the
    evidence is found as part of that chain, that is enough. You do not require a "but
    for" test.
-   However, the courts will allow the admission of evidence, even if it otherwise
    forms part of the “chain of events”, as long as the State establishes on a balance or
    probabilities, that the evidence would have been inevitably obtained regardless of
    the breach
    o Inevitability is a very hard standard to meet. You have to prove that the evidence
         would have definitely been found, but was only found a little earlier

Burden of Proof
The party seeking to exclude evidence under s.24(2) of the Charter has the burden
of demonstrating the need for exclusion.
    Summary:
    To exclude “illegal” evidence:
    1) First, can you show a Charter breach?
    2) If yes, was the evidence part of a chain of circumstances following the Charter
        breach?
    3) If yes, you then must show, to a balance of probabilities, that the admission of the
        evidence could bring the administration of justice into disrepute/taint the system
        in some way.
    If you can do all these three things, the evidence shall be excluded
                                                                                           29


Chapter 13 – Protection of Confidential Relations
Privilege in General
 Exception to general rule: sometimes confidential communications, even though
   relevant and material, are not admissible
 Confidential communication thus protected is of two types: privileged by class and
   privileged by case
 Privileged by class: include solicitor/client, husband/wife, and a few others
    o No investigation into the impact of disclosure in the specific case is made for
        class privilege; exclusion based on privilege is limited fairly strictly by the court
 Privileged by case: regardless of the formal relationship between the parties, case
   privilege may apply where a truly confidential relationship of value would be harmed
   by disclosure

Solicitor-Client
 Communications between a solicitor and client in a professional capacity are
    privileged and, subject to a few exceptions, cannot be disclosed except with the
    consent of the client
 The fact of communication or the name of the client is not usually privileged – only
    the contents of the communication is privileged; however, where the mere fact of
    consulting a lawyer, standing alone, would implicitly disclose the nature of the
    consultation, the fact of the contact is privileged
 Privilege passes on death to the estate executor or trustee and likely passes to the
    trustee on bankruptcy
 Communication made between a lawyer and a third party made in contemplation of
    litigation is also privileged (subject to disclosure requirements)
 the two concepts described above constitute solicitor-client privilege: the first is often
    called lawyer-client and applies to any professional discussion between a lawyer and
    client, the second is often called litigation privilege and applies only where litigation
    is anticipated or pending

Limitations on Solicitor-Client Privilege
Lawyer-client:
 the person consulted must be a lawyer in the jurisdiction where the consultation
   occurs (lawyer’s agents and employees are covered by the privilege)
 independent paralegals are not covered by the privilege
 only the communication is privileged – material evidence is not
 privilege does not apply to advice taken so as to commit a crime
 solicitor-client privilege is defeated by what has been called “innocence at stake” –
   where a lawyer has otherwise privileged information that could assist an innocent
   accused, that information cannot be privileged, at least as respects the innocent
   accused (R. v. McClure)
   o that information cannot be used against the client who had the communication,
       but if it is necessary to demonstrate the innocence of someone wrongfully
       accused, it will be available)
   o the innocence at stake exception applies only when there is no way to put the
       innocence to the court except by breaching privilege
                                                                                         30


Litigation:
 only applies when litigation is pending or at least anticipated (ie: accident report may
    not be privileged if litigation was not pending at the time it was recorded – not
    enough to say every accident leads to litigation)
    o therefore, counsel often advise clients to prepare all accident reports in the form
         of a memorandum to counsel and mark the document “For Counsel’s Instruction
         and Review”
 litigation privilege only applies when a dominant substantial purpose of the document
    is “to instruct counsel” or “for counsel’s use”
 if litigation privilege applies, it will not be lost even if the work is shared with third
    parties (provided those parties have a common interest with the disclosing party and
    that interest is related to the litigation)

Other Class Privilege
1. Husband and Wife
 Except for specific sexual or child abuse offences, a spouse cannot be required to
   testify for the Crown against his or her spouse
 Most evidence Acts provide a spousal privilege for communication made during
   marriage
 Must be legally married, a cohabitation will not suffice

2. State Privilege
 Communications made for the purpose of governmental policy-making are privileged
 This is not absolute – is subject to weighing before the court
 Purpose is to allow for free and frank discussion of policy matters at a high
   government level

3. Judges’ Privilege
 Judges cannot be compelled to disclose their discussions or reasoning in coming to a
   decision
 This extends to members of administrative tribunals
 Jurors are, because of their judicial role, also not compellable to testify about their
   deliberations; however, where an issue of juror misconduct is raised, a juror may be
   called to testify

4. Informant
  Police cannot, except in criminal cases where needed to demonstrate an accused’s
   innocence, be compelled to disclose an informant’s name or identity

General Policy Test
 There are some general principles underlying all confidential communication
   privileges called the Wigmore criteria:
   1. the communications must originate in a confidence
   2. this element of confidentiality must be essential to the fault and satisfactory
       maintenance of the relation between the parties
                                                                                            31


    3. the relation must be one which in the opinion of the community ought to be
        sedulously fostered
    4. the injury that would inure to the relation by the disclosure of the
         communications must be greater than the benefit thereby gained for the
         correct disposal of litigation
   if a communication not otherwise covered by a class privilege fits with the Wigmore
    criteria, the court may exclude the communication from evidence
   privilege will arise on a case-by-case basis only in very narrow circumstances
   party seeking to establish privilege exists must establish by clear and cogent evidence
    each element of the Wigmore criteria

Privileges not Existing by Class
 there are many privileges not existing by class but commonly assumed to be
   privileged (ie: priest/penitent, doctor/patient, accountant/client)
 these communications are, prima facie, not privileged and are admissible unless it is
   established for this case that the Wigmore criteria apply to exclude the evidence
 court is generally disinclined to grant privilege in anything but the most obvious cases

Settlement Discussions
 all discussions and communications, in a civil context, made for the purpose of
    resolving a dispute are privileged and cannot be used in evidence
 such communications are often identified by calling them “without prejudice”,
    especially if the communications are written
 for the settlement privilege to apply the discussions must be designed to lead to
    settlement – a party cannot put privilege onto letters not intended to lead to settlement
    by writing “without prejudice” (see examples on page 95)
 the privilege survives settlement, as respects to third parties (an admission made
    during settlement cannot be used by a third party suing a party who settled)
 two conditions must be met for settlement discussions to remain privileged:
    1. a civil dispute must be ongoing or contemplated; and
    2. the discussions must be intended as confidential, at least as regards the court

Overriding Exception to Privileges
 all privileges are subject to being overridden by the court if the maintenance of the
  privilege would pose a threat on public safety
 where serious harm to an identifiable person exists, privilege is waived, albeit only
  insofar as is actually necessary to avoid the danger
 SCC: in determining if privilege no longer applies… “there are three factors to be
  considered: first, is there a clear risk to an identifiable person or group of persons?
  Second, is there a risk of serious bodily harm or death? Third, is the danger
  imminent?”
 Public safety exception applies only to future harm – admissions of past violence,
  no matter how serious, do not fall within the exception
                                                                                        32


Chapter 14 – Opinion Evidence
General Rule: Opinion evidence, that is conclusion drawn from facts, is inadmissible
unless it is (1) an opinion of a layperson that is necessary for a clear understanding
of their evidence; or (2) an expert’s opinion

Opinions of Laypeople
o Proper where rationally based on perception and is needed to understand the evidence
   of the witness
    Admissible on grounds of necessity, more direct and positive evidence being
       unavailable
    Most testimony of laypeople is a mishmash of recalled perception and opinion
    i.e. A layperson may testify that someone was drunk, but that is not something
       directly perceived but rather something concluded from unstated perceived items
        Laypeople cannot testify any other way.
The key is whether the opinion deals with an everyday matter based on personal
experience and the witness will not be able to give the testimony any other way.
    Typical examples: intoxication, handwriting, identification of persons, speed,
       temperature, time of day
o Also depends on who the person is, and what they do:
o I.e. a cattle rancher would be able to tell you things about pregnant cows that
   someone else would not be able to.
o What is not fine is giving opinions on things that are beyond the scope of the
   everyday (for the witness)

Opinions of Experts
o There are certain things that a judge or juror cannot reasonably be expected to
    understand without the guidance of someone skilled in a recognized field
o Function of the expert:
     To provide the judge/jury with a ready-made inference which the judge/jury, due
       to the technical nature of the facts, are unable to formulate.
     I.e. a bridge falls down – given specific facts about the bridge falling down,
       judge/jury cannot always make the causal link without engineering testimony
General Rule: If specialized knowledge will assist the trier of fact to understand the
evidence or a fact in issue, a witness qualified as an expert by knowledge, skill,
experience or training may testify by way of opinion
o Qualify as an expert if the subject is one upon which competency to form an opinion
    can only be acquired by a course of special study or experience
     An expert’s opinion is admissible only if it is needed to allow the trier of fact to
       make sense of the evidence
     If the trier of fact can properly come to a conclusion without the help of an expert,
       then such evidence is superfluous and should be excluded
     The focus of the consideration of allowing expert opinion is whether the trier of
       fact needs the assistance an expert can give
o Expert opinion is allowed as an exception to the general rule against opinion evidence
     The potential prejudicial effect of the evidence must not outweigh its value to the
       trier of fact
                                                                                         33


o Before admitting evidence, the court must consider the following:
  a) Will the proposed expert opinion enable the trier of fact to appreciate the
     technicalities or the matter in issue?
  b) Will it provide information which is likely to be outside the experience of the trier
     of fact?
  c) Is the trier of fact unlikely to form a correct judgment about a matter in issue if
     unassisted by the expert opinion evidence?
  d) Is the need for the evidence sufficient to overcome its potential prejudice?

Basis of Expertise
o A qualifying expert requires proof: (1) this person has some special or peculiar
   knowledge of their subject and (2) the subject they are expert in is a legitimate area
   of study
    Requirement of special knowledge or skill does not require academic or
       professional qualifications, although generally experts tend to be academics or
       professionals (although lawyers can rarely be experts on the law)
o Determination of whether an area is one in which expertise is possible is problematic
    General Test  A topic must have reached a level of general acceptance as
       being a valid area of human endeavor before it can form the basis of expertise for
       an expert opinion.
            Either by formal training or experience (ie. Seasoned hunter)
    For formal areas of study, reliability may be indicated by: i) falsifiability; ii) peer
       review and publication; iii) acceptance by the relevant academic community; iv) a
       known error rate; and v) existence and maintenance of standards.
o Obscure areas of study may still be a topic an expert could testify on (i.e.
   astrobiology), but something like "UFO-ology" is not likely to be accepted
o HOWEVER, even recognized fields, like history, where there is no general consensus
   of academic or practical views, evidence from that cannot be admitted
o Unless there is a settled, and accepted, expertise, and expert's opinion is
   inadmissible
o Experts are allowed to opine only within the area in which they are found to have
   expertise
o Number of experts allowed to be called is limited (although a high number) by both
   federal and provincial statutes (CEA s. 7, OEA s. 12)

Factual Basis of Expert Testimony
o An expert gives an opinion as to the interpretation of facts, but almost inevitably,
   experts have no direct knowledge of the facts they base their opinion on.
    Possible exception: doctors doing a physical exam
o Therefore, in order to determine if the opinion is of any value, the facts it is based on
   must be described and proven independently.
o Accordingly, expert opinion is usually given by way of a hypothetical question that
   set out the facts the expert opinion is based upon.
    I.e. given A, B and C, what would be the outcome? The outcome would be X.
    If the court rejects A, B, or C, it can judge the expert's view accordingly.
                                                                                        34


o Hearsay and expert testimony, General Rule: Provided otherwise acceptable, an
  expert's testimony, even if partially based on unproven hearsay, remains admissible,
  albeit subject to less weight.

Opinion evidence and the "Ultimate Issue"
o May object to expert testimony as being directed to the "ultimate issue"
o The concern is that an expert opinion on the very issue the court is to decide tends to
   usurp the role of the court as decision-maker.
o Such concerns are not determinative in modern Canadian law.
o At most, the ultimate issue rule amounts to a principle that ought to govern a court's
   consideration of an expert's opinion.
                                                                                         35


Chapter 15 – Evidence of Character
Evidence of Bad Character
Simple form of rule – evidence of bad character is not admissible to prove guilt (civil) or
liability (criminal) of someone
 Note: such evidence may be permitted to determine if an offender is a dangerous
offender, see s. 757 of the Criminal Code
Bad character  guilt x 
Guilt  bad character √ 
o In civil cases true to lesser degree than in criminal cases (because in civil cases the
    character of the D isn’t really relevant usually. E.g. evil person not more likely to be
    negligent)
o Important rule, because when you try to figure out if someone did something wrong
    in life (think outside of court) you often consider their character
o From Best’s evidence  evidence of a person’s character can’t be introduced to
    support inference that person acted on specific instance in accordance with that
    general character
 2 reasons for this
         o Accused not on trial for whole life, but for a specific act accused of
         o Prejudicial effect v. probative value  Prejudice effect when jury will convict
             regardless of the evidence. Concern that they would convict based on
             previous actions.
         o Also issues of trial efficiencies: trying to limit time
 BUT note the subtle ways to get around this:
         o Inferring bad character from guilt - OK for jury to find that someone is guilty
             and therefore has a bad character.
                  Say you are guilty for assaulting boyfriend with horrible violence and
                     are found guilty based on evidence. Incidentally they are going to
                     conclude that you’re a bad person, but that’s OK.
         o Using negative facts to prove guilt but not bad character –
                  i.e. You drive badly and kill someone. You are charged with crim. neg
                     causing death. Crown wants to give evidence that you shot heroin that
                     morning. That is used to prove guilty (drove bad because stoned) not
                     to show bad character.
                  If you show the husband was beating wife over period of time, that is
                     being adduced not to show that he was a bad person (character) but
                     rather to prove that he was guilty
 The mere fact that evidence shows accused in a bad light doesn’t make it
    inadmissible, you only can’t bring evidence that makes that forbidden inference.
     Generally evidence of a prior conviction is inadmissible for this reason
     But if there are two possible explanations for adducing evidence, generally, the
         evidence will be allowed (might have to look at prejudicial v. probative effect)
     Excluding such evidence only applies where the sole purpose of evidence touching
    on character is to show the accused is the type of person likely to have committed the
    offence
                                                                                          36


Evidence of Good Character
General Rule:
 An accused may adduce evidence of a community reputation for good character by:
   (1) Calling witnesses
   (2) By cross-examining Crown witnesses on the subject
   (3) By giving testimony
 The personal opinion of the witness as to the accused’s character is not properly put
   in evidence, and normally may adduce evidence only relating to his general
   reputation, although the witness may describe specific acts of good conduct in giving
   testimony
 If an accused adduces such evidence, the State may rebut it by cross-examination
   about incidents in the accused’ past and may call:
   (1) General evidence of bad character (although a witness’s personal opinion of the
        accused’s character is inadmissible),
   (2) Evidence of Similar Acts, or
   (3) Cross-Examine the accused about specific past disreputable acts (see s. 666 of the
        Criminal Code)
 Crown can raise specific examples of bad character on cross, if incidents of good
   character are brought up in direct.
   • In theory not to show bad character of the accused, but to show that the person
       doesn’t know the accused very well, because if they did they would know about
       the bad things.
 In cross, you are allowed to ask any witness about criminal convictions (not
   charges, just convictions)
   • Could also adduce similar fact evidence to rebut evidence of good character
- OCA in a series of cases has said something about this:
   • Cases where accused don’t testify because of past record – they can’t afford to.
   • OCA has said looking at probative value vs. prejudicial effect, that questions
       related to priors that are similar to the one for which the accused is on trial won’t
       be admitted if trier of fact things that the PE will outweigh the PV.
   • So you tell the J about the priors in private, and get J to give a ruling on this to
       find out if your friend can cross about priors. And if they say they can you don’t
       bring your client to the stand.

Character of Non-Parties
 Applies to criminal accused and to a party to civil case, but not to non-parties.
 There is no limitation of any kind on evidence of bad character of non-parties.
      o Such character can be proven by reference to specific acts of charity or
         violence and not only by general community reputation
      o But note: if the character of the victim is put in question, it is a short step to
         suggesting the accused is of good character, and if that step is taken, the State
         may adduce evidence of bad character
      o The character of a victim of a crime is relevant to make a claim of self-
         defence more justified – true regardless of whether the accused knew of the
         victim’s propensity for violence or not
                                                                                        37


   Since danger that evidence of victim’s bad character will be misused, the evidence’s
    probative value must be carefully weighed
       o But even when the evidence may have some prejudicial effect, it must
           substantially outweigh the value of the evidence before a judge can exclude
           evidence relevant to a defence allowed by law (do not want to restrict the right
           of an accused to call material evidence)
   Note exception: Rape Shield Provisions under s. 276 of the Criminal Code (pg. 106)
       o Any relevant evidence disclosing the sexual experiences of the complainant is
           excluded, unless its probative value is substantially outweighed by the need to
           a fair trial
       o In addition, general sexual reputation cannot be used to prove a complainant
           worthy of belief (s. 277 of the Code)
       o But courts not blind to evidence that could demonstrate innocence: tries to
           balance the rights of both the complainant and the accused
Exceptions to the bad character rule (2 situations):
 Although at all times bad character leading to guilt isn’t allowed:
      o Doesn’t mean you can’t bring bad character evidence for another reason (i.e.
          psychiatric evidence of propensity)
      o Doesn't mean you can't bring similar fact evidence in certain cases

Propensity and Expert Testimony
General Rule: If a particular state of mind or mental capacity is grossly abnormal,
but the subject of a particular field of expertise, an expert may offer opinion as to
whether the accused has the mental capacity
• This is not proof of bad character but rather a psychiatric fact  there is a fine line
   between a mere propensity for violence (which is not the subject of expert evidence)
   and a peculiar psychiatric tendency (which may be the subject of such evidence)
       o Expert testimony of an accused’s mental state is proper but only if relevant to
          an issue other than mere propensity
               Can it be properly analogized as testimony regarding a physiological
                  fact? (ie. That accused is left-handed)
       o If the analogy between physiological and psychiatric fact is close, then subject
          to prejudicial effect overwhelming probative value, the expert evidence is
          admissible

Propensity and Prejudice
• As can be seen by the admission of propensity evidence where such evidence is
    analogous to a physiological fact, there is no blanket rejection of propensity where
    the probative value is very high
        o Determination based on balancing prejudicial effect and probative value
General rule: only where the probative value is very high will the prejudicial effect
of propensity evidence be outweighed
                                                                                                    38


Chapter 16 – Similar Fact Evidence and Credibility
Character and Psychiatric Propensity
 In order to prove a case, plaintiff/prosecutor must demonstrate the facts alleged and
  cannot show the defendant/accused is a “bad person” and therefore more likely than
  not to be liable (an accused is on trial for their acts and not their character)
 General rule set out in Makin (baby killers)(page 109)
        It is undoubtedly not competent for the prosecution to adduce evidence tending to shew
        that the accused has been guilty of criminal acts other than those covered by the
        indictment, for the purpose of leading to the conclusion that the accused is a person
        likely from his criminal conduct or character to have committed the offence for which
        he is being tried. On the other hand, the mere fact that the evidence adduced tends to
        shew the commission of other crimes does not render it inadmissible if it be relevant to
        an issue before the jury, and it may be so relevant if it bears upon the question whether
        the acts alleged to constitute the crime charged in the indictment were designed or
        accidental, or to rebut a defence which would otherwise be open to the accused.
   The key is that evidence of similar acts can be admitted, even though it may
    incidentally show bad character, if it is otherwise relevant (you can prove guilt, and
    thereby incidentally show bad character; what you cannot do is prove bad character
    and thereby prove guilt)
   Iacobucci: evidence which tends to show bad character or a criminal disposition on
    the part of the accused is admissible if: 1) relevant to some other issue beyond
    disposition or character, and 2) the probative value outweighs the prejudicial effect

How similar is Similar?
 Phrase often used by the Court is “strikingly similar”
 R. v. Rosenberg: while it is true that common sense and the law do not require perfect
  similarity and the dissimilarities do not rule out evidence of similar facts,…I am not
  satisfied that the similarities here are so striking…that it would be an affront to
  common sense to exclude the evidence. I say this particularly in the context that
  ordinarily a person is only required to defend the charge against him.
 The similarity must be to a high degree, although the standard to apply to the main
  inference from similar fact evidence is to a balance of probability
 The onus to establish that the probative value of the similar fact evidence outweighs
  its prejudicial effect rests with the Crown, albeit to a civil standard

Civil Cases
 Similar fact rule also applies to civil cases
 It is easier to adduce evidence of similar facts in a civil case than in a criminate
   matter
 The risk of unfair prejudice is lower in a civil case and so the danger of a flawed
   decision is reduced
 Court notes: evidence of similar facts is admissible when it is logically probative
   or relevant to a material issue in the case, and it is not unduly oppressive or
   unfair to the other side
 Evidence of similar facts both prior to and subsequent to the acts forming the basis of
   the dispute can be admitted…such facts can prove motivation or intention
                                                                                        39


Chapter 17 – Credibility
Collateral Facts Rule
 The collateral facts rule prohibits evidence the sole purpose of which is to contradict a
    witness’s testimony regarding a collateral fact
 Collateral fact = a fact that is neither relevant nor material
 If a question is put to a witness regarding a fat that does not impact on an issue in the
    lawsuit, the answer to that questions, regardless of what the answer is, cannot be
    challenged by extrinsic evidence
Rule: No extrinsic evidence may be called to contradict a witness on matters solely
raised to challenge a witness’s credibility
 Purpose: to limit evidence called to that which is truly of assistance to the court

Cross-examining on Prior Statement
 There are two ways a prior statement of a witness can be used:
   1) A statement by a party may be adduced by an opponent to prove its truth (this is
       merely the admission exception to the hearsay rule: As a general rule, anything
       a party says may be used against that party even though it is hearsay
         So, if you have a party opposite in the witness box and they say X, you can
            call evidence that that party once said Y and you can rely on Y for its truth
            (the prior statement is used to prove its truth)
   2) You can use a prior inconsistent statement to cross-examine a witness (in such
       cases, the prior statement is not used to prove its truth but only to show the
       witness’s testimony is unreliable)
        Note the very limited use of such prior statement – the statement is not
            evidence of the facts contained therein – the statement is only evidence of the
            testimonial weakness (prior statement can remove the present testimony’s
            effect but not more)
 A prior inconsistent statement may also be admissible as proof of its contents, even of
   not adopted by the witness, if the criteria of necessity and reliability are met (ie: if
   police videotape initial statement and complainant is unavailable or refuses to testify,
   the statement may be admissible to prove its truth)

Prior Criminal Convictions
 Prior criminal convictions of any witness are relevant insofar as they impact on
   credibility (of course, once admitted, might persuade jury to make a conviction)
 Tactical tip: if you represent an accused with a criminal past you probably do not
   want to allow the accused to testify because the criminal record can be devastating
   o If you have to call accused in such circumstances, you can ask the court not to
        allow the State to cross-examine on prior convictions and court may exclude them
        on a prejudicial effect/probative value test
   o At the least, you can ask court to make limited use of convictions very clear to the
        jury
 Sum up: an accused who elects to testify can be cross-examined on prior convictions
   like any other witness. The purpose of such cross-examination is to weaken
   credibility, so the convictions of an accused are relevant only when the accused
   testifies (otherwise prior convictions cant be admitted)
                                                                                            40



Impeaching your own Witness
General rule from Wright v. Beckett: a party never shall be permitted to produce
general evidence to discredit his own witness, for that would be to enable him to
destroy the witness if he spoke against him, and to make him a good witness if he
spoke for him, with the means in his hands of destroying his credit if he spoke for
him
 Nevertheless, at common law you can contradict your own witness, but you cannot
   call evidence going solely to the witness’s credibility (ie: you can raise issues related
   to your witness’s character to deal with an issue likely to arise on cross-examination,
   but you cant attack the witness if they give unhelpful testimony)

Supporting Credibility
 A prior consistent statement of a witness is generally inadmissible but it can be
   adduced to rebut an allegation of recent fabrication
   o Ie: if a witness’s account is challenged (directly or indirectly) as being a recent
        invention, the party calling the witness is allowed to rebut that challenge by
        showing that at some earlier time the witness made a statement to that effect; the
        earlier statement must have been made contemporaneously with the event or at a
        time sufficiently early to be inconsistent with the suggestion it is of late invention
        (the earlier statement is adduced solely to prove consistency, it is not evidence of
        the truth of its contents!)
 it is improper to call evidence solely for the purpose of bolstering the credibility of a
   witness (it is fundamental that the ultimate conclusion as to the credibility or
   truthfulness of a particular witness is for the trier of fact – Marquard)

Polygraphs, Lie Detectors and Truth Serums
 Generally, evidence called solely to bolster a witness’s credibility is improper (this is
   the rule against oath-helping)
 reasons: the repetition of statements given while subject to truth measuring
   techniques that are consistent with present testimony amount to nothing more than
   prior consistent statements; there is a real doubt as to the accuracy of truth measuring
   techniques
 a lie detector test’s results are not admissible not the interview itself is admissible
   o from class: if you are refused one, you can put in the evidence that you asked for
       one so long are you are not a sophisticated criminal

Corroboration
 Corroboration = some independent evidence that affects a party and connects the
   party with the cause of the offence; specifically, it must be evidence that conforms (in
   some fashion) not only that a cause exists or has occurred but also that the party in
   dispute is connected to it (it need only go to a single material point)
 presently, corroboration is, absent a few statutory provisions, limited to a principle of
   reasoning that ought to be put by the court to the trier of fact (generally, if testimony
   is potentially untrustworthy, judge is prudent to advise jury to consider risks of
   accepting it)
                                                                                       41


Chapter 18 – The Best Evidence Rule
Introduction
 Properly limited, the statement of law that "if you want to get at the contents of a
    written document, the proper way is to produce it if you can" is still good law.
     Proof of the contents of a written document ought to be made by production of
        the original document  highly limited and confined now to cases in which it can
        be shown that the party has the original and could produce but does not
     Court will infer the worst from a failure to produce evidence if you have it – it
        will be excluded
 Additionally, where a copy, rather than the original, is produced, the court will reject
    the copy and apply the best evidence rule, only where there is a legitimate dispute as
    to the contents of the document
     Need for legitimate dispute suggests a duty upon the party opposing the copy’s
        admission to say the copy is doubtful
Generally though, a copy is admissible to the to the same extent as the original unless:
(1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit a duplicate in lieu of the original

Limitations of the Rule
• Best evidence rule deals with the contents of the documents, not the existence or
   identification of the document
• Where the existence as opposed to the context of a document is relevant, proof of that
   existence is not subject to the best evidence rule
   o ex: homicide case; accused said natural causes/suicide; accused adduces evidence
        that person went to lawyer 3 days earlier to change their will
         Making of will may be relevant in this case, but contents are irrelevant  rule
            will apply here because contents don’t matter
 ***are you looking for contents of correspondence or the mere fact that it exists***
 *advocacy matter  you would still want to produce it (as a legal matter you don’t
   have to)
 Note that many courts have ruled that carbon copies are admissible as originals, even
   if they are not the top copy (provided that they were made at the same time as the
   original)
 Similarly, the best evidence rule does not apply at all to anything other than written
   documents and has no application to videotapes, photographs or similar items
                                                                                        42


When is Secondary Evidence Admissible?
• If the original has been lost or destroyed
       o In such a case, the copy must be verified as a true copy that contains the same
           terms as the original.
• Parol evidence of a lost or destroyed document is also admissible.
• When a document is unavailable for the court because the original is in the hands of a
  party outside the process of the court or who cannot be compelled to produce the
  original, secondary evidence of the document's contents is proper
• Where a document is in the hands of a person subject to compulsory production to the
  court, but that person does not comply with their obligation to produce, document
  may be proven by secondary evidence
 Original is not required, and other evidence of a writing, recording, or
  photograph is admissible if –
  1) Originals lost or destroyed – unless the proponent lost or destroyed them in bad
       faith, or
  2) Original not obtainable – cannot be obtained through any available judicial process
       or procedure, or
  3) Original in possession of the opponent – at a time when an original was under the
       control of the party against whom offered, that party was put on notice, by the
       pleadings or otherwise, that the contents would be a subject of proof at the
       hearing, and that party does not produce the original at the hearing, or
  4) Collateral matters – the writing, recording, or photograph is not closely related to a
       controlling issue (Morton doesn’t think this is an exception)

Family Law
 Developed a different path from the law of evidence
 In the family law context, the rules of evidence are to be considered on a cost-benefit
  analysis and they are to be ignored when the parties cannot afford to get the evidence
  before the court except in breach of the rules of evidence
 should be ignored if the costs to produce evidence are so high as to make it
  impossible
                                                                                                                                    43



Summary Analysis of Evidence Problems ...................................................................... 1
Chapter 1 – Fundamental Principles .............................................................................. 3
  Role of Evidence ............................................................................................................. 3
  Probability, Relevancy and Materiality .......................................................................... 3
  Probative Value and Countervailing Social Values ........................................................ 3
  Probative Value, Process and Unfair Prejudice .............................................................. 4
  Is there a different standard to exclude evidence if adduced by an accused? ................. 4
Chapter 2 – The Justice System....................................................................................... 5
  The Adversary System .................................................................................................... 5
  Counsel and Parties ......................................................................................................... 5
Chapter 3 – Appeals and Evidentiary Review ............................................................... 7
  Structure of Courts .......................................................................................................... 7
  The Need for Error .......................................................................................................... 7
  The Appellate Court ........................................................................................................ 7
Chapter 4 – Onus, Burden and Presumption ................................................................. 8
  Presumptions and Onus of Proof .................................................................................... 8
  Burden of Proof............................................................................................................... 8
  Circumstantial evidence .................................................................................................. 9
  Who bears the onus of proof? ......................................................................................... 9
  Presumption .................................................................................................................. 10
  Judicial Notice .............................................................................................................. 10
Chapter 5 – Testimonial Evidence................................................................................. 11
  Use of Testimonial Evidence ........................................................................................ 11
  Competence................................................................................................................... 11
  Legal Competence Issues: Exceptions .......................................................................... 11
  Compellability............................................................................................................... 13
Chapter 6 – Examining Witnesses ................................................................................. 14
  Witness Preparation ...................................................................................................... 14
     (1) Direct Examination (Questions in chief) ............................................................. 14
     (2) Cross-Examination (Questions in cross-examination)........................................ 14
     (3) Re-examination ................................................................................................... 15
Chapter 7 – Hearsay ....................................................................................................... 16
  Why is hearsay problematic? ........................................................................................ 16
  Hearsay Dangers ........................................................................................................... 16
  Hearsay defined by purpose: see Subramaniam ........................................................... 16
  Hearsay implied by assertive conduct........................................................................... 16
  Exceptions to the Hearsay Rule: ................................................................................... 16
  Interaction of exceptions to hearsay rule and principled approach ............................... 17
  Out of Court Assertions that are not Hearsay ............................................................... 17
  Present knowledge and refreshing memory .................................................................. 17
Chapter 8 – Exceptions to Hearsay ............................................................................... 18
  The Exceptions.............................................................................................................. 18
Chapter 9 – Exclusion of Otherwise Relevant Evidence ............................................. 21
  Courts ............................................................................................................................ 21
  Right against Self-Incrimination ................................................................................... 21
                                                                                                                                44


 Right to Silence (While detained) ................................................................................. 22
 Self-Incrimination and the Charter ............................................................................... 22
 Right to Counsel and Evidentiary Implications ............................................................ 23
Chapter 10 – Confessions ............................................................................................... 24
 Free and Voluntary ....................................................................................................... 24
 Who is a Person in Authority? ...................................................................................... 24
 The Voir Dire ................................................................................................................ 25
 Evidence collaterally proven true ................................................................................. 25
Chapter 11 – Evidence Obtained Illegally .................................................................... 26
 Wiretap Evidence .......................................................................................................... 26
Chapter 12 – The Exclusion Remedy Generally .......................................................... 26
 What does “Disrepute” Mean?...................................................................................... 27
 Causation or Connection ............................................................................................... 27
 Burden of Proof............................................................................................................. 28
Chapter 13 – Protection of Confidential Relations ...................................................... 29
 Privilege in General ...................................................................................................... 29
 Solicitor-Client.............................................................................................................. 29
 Limitations on Solicitor-Client Privilege ...................................................................... 29
 Other Class Privilege .................................................................................................... 30
 General Policy Test ....................................................................................................... 30
 Privileges not Existing by Class ................................................................................... 31
 Settlement Discussions ................................................................................................. 31
 Overriding Exception to Privileges ............................................................................... 31
Chapter 14 – Opinion Evidence ..................................................................................... 32
 Opinions of Laypeople .................................................................................................. 32
 Opinions of Experts ...................................................................................................... 32
 Basis of Expertise ......................................................................................................... 33
 Factual Basis of Expert Testimony ............................................................................... 33
 Opinion evidence and the "Ultimate Issue" .................................................................. 34
Chapter 15 – Evidence of Character ............................................................................. 35
 Evidence of Bad Character ........................................................................................... 35
 Evidence of Good Character ......................................................................................... 36
 Character of Non-Parties............................................................................................... 36
 Propensity and Expert Testimony ................................................................................. 37
 Propensity and Prejudice............................................................................................... 37
Chapter 16 – Similar Fact Evidence and Credibility .................................................. 38
 Character and Psychiatric Propensity ........................................................................... 38
 How similar is Similar? ................................................................................................ 38
 Civil Cases .................................................................................................................... 38
Chapter 17 – Credibility ................................................................................................. 39
 Collateral Facts Rule ..................................................................................................... 39
 Cross-examining on Prior Statement ............................................................................ 39
 Prior Criminal Convictions ........................................................................................... 39
 Impeaching your own Witness...................................................................................... 40
 Supporting Credibility .................................................................................................. 40
 Polygraphs, Lie Detectors and Truth Serums ............................................................... 40
                                                                                                                                45


 Corroboration ................................................................................................................ 40
Chapter 18 – The Best Evidence Rule ........................................................................... 41
 Introduction ................................................................................................................... 41
 Limitations of the Rule ................................................................................................. 41
 When is Secondary Evidence Admissible?................................................................... 42
 Family Law ................................................................................................................... 42

								
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