UNDERLYING PRINCIPLES

“SEARCH FOR TRUTH QUALIFIED BY JUSTICE”

Burden of Proof – W(D): acquit if 1) believe A 2) believe neither BARD 3) don’t believe ♔ BARD. Morin: must consider evidence as whole. Plewes: old instructionre “pile” of evidence,“initial threshold” approach for jury not appropriate

Probative v Prejudicial – Arp: 1) prob? 2) prej? 3) J weighs. Doesn’t need to have high, just some prob value to admit

Seaboyer: excl relevant evidence justified where prej effect clearly outweighs prob value. Differing standards;♔= prob must exceed prej; D = prej just can’t subs outweigh prob

  • FFB“sys of dom”: J resp to use restrict construct of prej evid
  • Badgerow3 alt As, 1 permitted: req sufficient cxn btwn D evidence of 3rd party and offence for prob value to exist

Judicial Notice–Daley NB maps: J can take judicial notice if 1) so notorious not subj of debate 2) capable of immed/acc demo w readily accessible sources of indisputable accuracy

TYPES OF EVIDENCE

Direct vs circumstantial evidence – distinguished by inference!

Munozno dir evid of A in conspiracy: Speculation threshold for circumstantial evidence. Impermissibly speculative IF: primary facts not established by evidence OR where inference can’t be reasonably/logically drawn from established primary facts

REAL EVIDENCE (presumptively admissible)

Authentication – req of admission re relevance; either thru 1) formal, chain of custody or 2) informal, witness testimony must be associated w A – Blackto-do list: docs in possession rule real evid can be admitted as circ evid if est item in constructive, actual, or joint possession of A (show assoc btwn A and item, ie thru A’s cxn w contents)

Photo/Video Evidence –Nikolovski video robber: Vid can be v prob bc neutrality. Test=1) auth? 2) fundamentally misleading? PvP balance.Penney seal hunt: ID est here but where ♔ fails to est vid accur wrt chrono, fails fundamentally misleading step (not credible); Court doesn’t like editing.Andalib-Goortani G20, anon metadata not verified: party wishing to make use bears burden of authentication. Kinkead2 sisters gory: PvP v important even if auth/not misleading, gore prejudicial. J can edit if needed.

BAD CHARACTER EVIDENCE

Extrinsic Misconduct (Presumptively inadmissible) – general exclusionary rule to prevent overdependence on propensity evid

Admissible exceptions(Handy): 1) where A puts own character in issue; 2) similar fact evidence; 3) propensity evidence re 3rd party

Own Character – A can call witnesses to gen reputation/char of A or speak themselves to spec acts. If A attests to gen char,♔ can enter “open door”. Cuadra camp stabbing: W’s evidence re A’s disposition admissible only if: 1) relevant to issue beyond disposition/char of A AND 2) prob outweighs prej

Similar Fact– Evidence of habit re non-prej issues can be v prob!

  • Belknap: habit =“inevitable” practice invariably followed
  • Watson V gun “CC”: repeated & spec response to particular situation (here only 1 part of evidence bc req inference of use)
  • Devgan v College of Physicians: evid from 3-4/100s doesn’t amt to habit, minimally supportive of credibility, not prob enough to get past speculation

Handy ex + gf: prejudicial SFE = “improbability of coincidence” leading to inference of “specific propensity”. Consider:

1.Prob value, req high deg of similarity. Factors: timing; number of similar allegations; distinctive features (similarities + context); Opportunity for collusion (goes to weight if found admissible)

2. Assess prej: reasoning prej (up as complexity up)? Moral prej (greater if prior act worse)? 3. PvP weighing

  • Dent: eg of Handy; circs/context important re spec propensity
  • Edwards rob jeweller, bal prob same person: can find for ID using multiple crime scenes; consider 1) if highly distinctive mark OR 2) number of sig similarities taken together

3rd Party – D can lead SFE of 3rd party, ie, Grantsimilar act while A in custody: D must show suff cxn on lower Seaboyer standard.

“opening the door”  right of♔ reply if:Badgerow: A intros 3rd partypropensity evidence;Hankey: self-defence cases, V’s propensity for violence used to show V more likely to be aggress.

Bad Character of Witnesses (Presumptively admissible)

CEA s12: can bring up W’s crim record when eval credibility

Corbettapplication (via McFayden): at J’s discretion, prevent admission of crim rec where A takes stand to prevent prejudicial propensity reasoning – if part incl, only to be used for credibility. Factors: 1) similarity; 2) whether will be credibility contest; 3) timing of priors; 4) nature of previous conviction. Application and further exception in Cullen pickup truck assault: more limits to ♔ use of A credibility vs D use of W credibility, ie, ♔ can’t use acquittal against A

Vetrovec Witnesses – Vetrovec: if severe cred/reliab issues, evid led w special caution: 1) separate W from other Ws; 2) remind jury why Vetrovec; 3) direct that J permitted to convict on evid but would be dangerous; 4) tell to look for confirm/corrob evid

  • Murrin jailhouse informants:still presumptively admiss unless particular prej; unreliability resolved thru spec instruction
  • Khela prison gang: Vetrovec extends generally to accomplice Ws.Broad def re: corrobevidence element – must be independent of Vetrovec W; must be material/re important part in dispute, though doesn’t have to directly implicate A.

POST OFFENCE CONDUCT (presumptively admissible)

Generally, instructions given by J re how to treat circ evid (esp that can be open to other possible inferences abt why)

  • Arcangioli agg vs reg assault, White robbery run: where issue is lvl culpability, evid doesn’t have prob value and shouldn’t be admitted. Where ID or AR etc, up to jury to decide as long as can support inference of guilt; multiple possible infers re conduct, as long as not speculative, can still go to jury
  • Peavoy laneway: post-off conduct can be used to rebut lvl of culpab for intoxication defence (ie cleaning=high mental capac)
  • White fistfight rando gun: hesitation as post-off conduct can be admitted tho low probative value

Self-Serving Post-Offence Conduct – SCB: case-by-case but if has prob w/o subs prej, may be admitted if risk to A (ie body samples, but not otherwise inadmissible polygraph or “I’m innocent!”)

EYEWITNESS ID EVIDENCE(presumptively admissible)

Photo Line-ups – concerns abt tainting go to weight; limiting instruction given to jury re dangers and risk of WC w ID.Gonsalves: proper procedure incl sequential lineup, close to event, neutral officer, instr to W; help mitigate mistaken ID

Hay hair: ID evidence w significant frailties can’t be convicted on alone – requires some corroborative evidence if solely EW ID testimony, J req to enter a directed verdict

OPINION EVIDENCE(presumptively inadmissible)

Can admit if meetCEA 657.3 notice reqs (incl timely and standardized disclosure) + CL admissibility reqs

Common Knowledge– info w/in exp of normal person.Graat DD: take broad approach to admissibility. 1) ask whether evidence relevant; 2) ask whether, tho probative, should be excl on ground of policy/law. DOESN’T incl opinion on legal issue eg negligence

Expert Witness Evidence – CL framework (Abbey):

1.Preconditions (White Burgessciting Mohan steps) –

  • Relevance (goes to relevant issue in case – fairly easy to meet)
  • Qualifications – must meet threshold of expertise (fairly low)
  • White Burgess: impartial, independent, unbiased
  • Necessity– Perlett: must be clearly outside common knowledge
  • Sekhon:sgt hadn’t ever seen blind courier  not necessary for det re if A knew abt drugs; also legally irrelevant
  • Osmar: EE re false confessions but D already focussed on this issue, didn’t need W.Helpfulness not enough for admission
  • Sufficient Foundation – can’t admit if insuff found bc speculative. Worrall, Lavallee: expert can partially base opinion on 2ndhand info eg other research, but this may lessen weight

2.Probative v Prejudicial Balancing– J balances risks/benefits

  • How far beyond minimum did evidence meet preconditions?
  • Factors incl bias, reliability, way in which evid delivered, weaknesses of case re preconditions, if it usurps role of ToF, scope of opinion required is exceeded, goes to credibility

Novel Scientific Evidence – JLJno “sexual deviant” traits in A: where new field/area of est field, evaluate case-by-case reliability

1. has theory been tested?

2. has this evidence been subj to peer review/publication?

3. what is known/potential rate of error?

4. is there general acceptance of evidence in sci community?

Usurping Jury–caution abt expert usurping jury’s role. Bryan:no strict rule against W testimony going to ultimate issue, BUT Llorenz V's psych:evid re credibility inadmissible unless also has other legit purpose (at which point Court weighs PvP), bc this is the role of ToF. CAN retain experts who give info that may assist.

 hypos as way for jury to consider EE despite unproven facts

REBUTTAL EVIDENCE (presumptively inadmissible)

General rule = ♔can’t call new Ws or evidence after D’s case. Rebuttal exception where ♔didn’t have chance - Krause test:

1) ♔ could not have reasonably anticipated the evidence

2) Was important for the case Collateral fact rule: if can use the evidence to prove/disprove EE of offence, is NOT collateral and thus falls under the rebuttal/collateral fact exception. (eg went to integrity of police but not guilt; shouldn’t be admitted)

Younger: when important, not collateral; when unimportant, is.

ADDUCING FRESH EVIDENCE

Hay (using Palmer): 4 step test for adducing fresh evid on appeal

1) must be relevant (ie bears on decisive issue); 2) must be credible and reliable (may call experts to attest to this); 3) must be such that if believed, when taken w other evidence at trial, would be reasonably expected to have affected result; 4) factor to be weighed: if had been duly diligent, would/should they have had the evidence at trial?

WITNESSES AND WITNESS TESTIMONY

2 reqs for taking the stand: COMPELLABILITY & COMPETENCY

Competency = understanding of moral responsibility (oath) + intellectual ability (ability to communicate/understand)

Child Witnesses – CEA s 16.1: low bar, presumed capable of testifying under promise to tell truth; 16.1(7) can’t ask kids Qs abt understanding promise to tell truth

Mental Incapacity – CEA s 16: differences: no explicit clause re Qs abt ability to understand (but CL amendments since); 16(1) lays out pre-trial understanding/communication tests. Court interprets as same as guidelines for children, can’t ask abt oath

Credibility of Witnesses – Parentcredibility factors to consider:

  • Ability to observe & recall
  • External consistency
  • Internal consistency
/
  • Commonsense
  • Motives to mislead eg bias
  • Attitude/demeanour of W

DIRECT EXAMINATION (EXAMINATION-IN-CHIEF)

Leading Questions – Rose almost all incrim evid elicited thru LQs: gen can’t ask own witness LQs, with minor exceptions: if prelim qs or uncontroversial info; qs w/ J’s permission; if W hostile to questioner; where W having difficulty comm eg kids – J has discretion to restrain/warn counsel and jury.
Refreshing a Witness’s Memory– CL procedure for prompting W

Wilks insurance fraud comp notes: two categories of aids can use:

PRESENT MEMORY REVIVED– counsel applies to J to use prior statement to trigger memory; get W read excerpt and ask again if memory refreshed. If fails, PAST RECOLLECTION RECORDED– get statement in as actual evidence. Must meet 4 strict criteria:

  • Past recollection recorded in reliable way eg police, whole vid
  • At time statement made, events fresh & acc so as to be reliable
  • Under oath, W must be able to say record accurately repped their memory at time statement was originally made
  • Original record itself is used if possible

[leads to presumption admissibility when go to princip hearsay]

KBG 2 daughters: can refresh W w/ prior statement to help reorient during trial process. Goes to weight not admissibility

CROSS-EXAMINATION

CEA 10(1): any W can be Xed re prior statements w/o having chance to review statements, but if intended to contradict W must be called to those parts (J can req production for trial)

Chance to test adversary’s evidence for reliability, credibility, etc. May be used to show W unworthy of belief, adduce facts to mit sentence or culpability of A, elicit other info not raised in direct  can put LQs to opponent’s witness

AJR incest w daughter/granddaughter: abusive X not allowed!

  • Can’t ask W to explain why opp did/didn’t do sth (reverse onus)
  • Can’t argue, sarcasm, etc dir at belittling/humiliating W
  • Can’t continually highlight bad character – gen prop issues

Alternative Scenarios – Lyttle drug not robbery: defence can put forward spec proposition to W in X despite info falling short of admissible evidence as long as ongood faith basis to satisfaction of J, ie must not be sth known to be false/intended to mislead. [exceptalt suspect – use suff cxn test from 3rd party evid section]

Duty to Cross-Examine – Brown v Dunnerule: if going to challenge credibility of W by calling contradictory evidence, W must be given chance to address it in X. McNeill: breach solution= if possible, recall W and put proposition to them; if not possible, TJ has discretion to decide whether to put spec instruct to jury re should consider W not questioned when assessing weight

Re-Examination – where W to clarify, expl or qualify issues raised in X that weren’t raised in direct (no new info) eg D est that W drank, ♔ clarifies W alcoholic.Sipes limit cog W: J has discretion to permit re-exam or exclude evidence where cost > benefit (PvP)

PRIOR CONSISTENT STATEMENTS(presumpt. inadmiss.)

Generally not admissible bc lack of prob value, self-serving, etc;

Exceptions to inadmissibility based on use for context:

-Allegations of Recent Fabrication – Stirling: where opp raises possibility that W had motive to fabricate, approp for J to admit PCS to show lack of motive to fabricate (tho depends on facts)

-Pursuant to Narrative–eg Curto: only where necessary to provide chronological cohesion, etc; can’t be used for their truth once admitted. Dinardo taxi SA of MD woman: must disting btwn appropriate narrative context & inapprop use to assess truth/credibility (corrob evidence)

-Exculpatory Statements of Accused– Edgar: exception ONLY where A 1) gave shocked spontaneous statement w/o knowing arrest coming and 2) specifically testifies to it, opening to X

Adoption – McCarroll W said A’s bat, forgot at trial: where W adopts prior statement as true, becomes part of W’s evidence at trial and is admissible for its truth (and subj to X). Must 1) acknowledge made statement and 2) verify accuracy based on present memory of facts attested to in prior statement

PRIOR INCONSISTENT STATEMENTS

General rule: if own hostile witness, can’t attack;CEA s 9process

CEA 9(2) – previous statements by W not proved adverse

Statutory assessment: 1) own W; 2)W made at other times statement reduced to writing or otherwise recorded (strict); 3) significant inconsistency w present; 4)remedy = J has discretion to let counsel do limited X of own W (limited to fact of inconsistency + letting W provide explanation)

  • Milgaard: sets out procedure for 9(2) application:
  • Counsel advices court they want to make app
  • Court directs jury to retire; counsel advises TJ of app and produce statement in writing
  • TJ reads and determines if inconsistency – if yes, continue
  • Counsel produces to W to prove statement; if doesn’t agree, can provide proof by other evidence
  • If statement proved, opp counsel can X re circs of statement
  • TJ decides whether or not to permit X and recalls jury
  • S(CL): feigned lack of memory counts as inconsistency in 9(2). Discretion = J can choose not to let X own W (though v rare eg in instances where PIC given under duress or pressure)

CEA 9(1) – previous statements by W proved adverse – hostility
allows broader X: not enough for there to just be inconsistency.
Cassibo incest daughters 9(2) not avail bc writing req: where 9(2) fails, proving W adverse(ie show no good reas for inconsistency) permits counsel to X own W with intention of attacking cred
Malik Air India: appl of 9(1) requires adverse W + that W provided positive evidence that counsel wants to throw out

HEARSAY(presumptively inadmissible)

Basic Rule – out-of-court statements used for truth are inadmiss

3 potential scenarios where hearsay does need admission:

  • Witness unavail (often, but not nec ded: Ares v Venner)
  • Witness avail in court but genuinely forgot
  • Witness provides testimony that is radically different

Baldreedrug buyer call: no distinction btwn implied/expl hearsay

Baltzer insanity defence: evidence used for things other than truth, eg state of mind, are non-hearsay and can be admitted

COMMON LAW HEARSAY EXCEPTIONS

Declarations Against Interest – Demeter: declarations against interest incl $, property, AND penal interests. If penal interests: declarant foresaw penal conseq; penal conseq not remote; if totality in favour of decl, not against interest; if doubtful case, may consider if other circs cx decl w crime; decl unavail to deg can’t give testimony. Lucier arson: if statement inculpatory to A, not admissible.

Dying Declarations – Aziga HIV: deceased’s decl re cause of death admissible if hopeless expectation of death when statement made; must be re person who inflicted harm; admiss if could testify; offence involved traditionally deceased as homicide V

Declarations in Course of Duty – made by decl w duty to take contemporaneous notes (oral/written) eg nurses or doctors. Larsen patholog: must be routine w/o particular interest in result.

Spontaneous Statements/Res Gestae – Bedingfield, Clark pretty narrow appl: must be suff contemporaneous that no reason for fabrication, responsive not reflective. Shea: admitted bc under stress suff to ensure reliab and made w/o motive to fabricate

Statement of Mind – Panghali wife diary: evid admissible as internal SoM if sincere/natural expression, no motive to misrep. BUT subj SoM doesn’t = reliable description of external fact

Aboriginal Oral History–counter evid bias in search for truth

THE PRINCIPLED APPROACH

General rule: hearsay can be admit if suff NECESSARYRELIABLE

Necessity – must be necessary to discover truth, W unable to testify or has radically changed testimony (Baldree)

Threshold Reliability – does ToF have satisf basis for eval truth?

  • Strict approach – was statement made in court-like envir? Look to substitutes for OATH, PRESENCE, immediate X-EXAM
    KGB: weighing exercise to be done on spectra to det if subs suff to make out reliability. Eg oath = oath given > casual comment; presence = audio-video > 2nd hand info; X = at trial > dead. TJ still has discretion in putting statement to jury.
  • Contextual approach– Khan Dr SA 3y/o: look to more flexible approach where fails 3 KGB criteria – grounds of necessity and reliability depending on facts if prob true, should admit. Smith: consider “circumstantial guarantee of trustworthiness” UFJ 2 Ws claim lying: similar OOC statements may indicate actual truth = admit; if recanted, necessity automatically met
  • Unified analysis–Khelawon: broadens test. [see flowchart]

Statutory Exceptions - CEA s 30business records exception

Docs made in ordinary course of business presumptively admiss. Reqs: 1) must be otherwise admissible 2) broad def to business