Trends in the Law of Evidence

Fundamentals

Trends in the Law of Evidence

Three trends in Canada:

1) the move to a contextual or “purposive” approach
In the past, the law prized certainty; clear predictable rules that would apply equally to all cases.
However, this lead to overinclusion or underinclusion.
Two social developments accelerated or amplified the shift:
1) sexual offence awakening
2) Canadian Charter of Rights and Freedoms
2) the development of the overarching exclusionary discretion
judges now have discretion to exclude evidence, even if it is technically admissible.
If the probative value of the evidence is outweighed by it’s prejudicial effect.
3) increased admissibility

Objectives of the law of evidence

Search for truth
Legal truth; not objective, scientific, or philosophical
Relative; not absolute
Historical, inevitably a reconstruction of past events with incomplete and imperfect information.
Ensuring a fair trial
Efficiency of the trial process
Protecting other important societal values

Sources of the Law of Evidence

The common law
Judicial efforts to explain, rationalize and develop principles governing the admissibility, exclusion and application of evidence.
Rules of evidence are intended as a means for achieving truth and fairness – not as an end in themselves.
Statutes
Canada Evidence Act (CEA)
For federal jurisdiction.
But, CEA incorporates provincial evidence act provisions through s.40
British Columbia Evidence Act (BCEA)
Secondary, supplemental to the CL
Other acts may contain provisions concerning the applicable evidentiary rules that may apply in the matters they govern
IE: Criminal code and drug offences
Aboriginal Law
The Constitution
Overarches both CL and statutory evidence law.
S.52(1) - Any evidentiary law that is inconsistent with constitution is of no force and effect
CL rules must be developed in accordance with the Charter
Division of legislative authority
Limitations on federal and provincial authority defined in ss.91 and 92 of the Constitution apply equally to rules of evidence.
Canadian Charter of Rights and Freedoms
Provides express constitutional protection for some evidentiary principles in criminal proceedings (IE: presumption of innocence under s.11(d)).
S.7 is an important vehicle for the constitutionalization of evidentiary principles
Always applicable in criminal proceedings, b/liberty is always at stake.
Where evidence is obtained in a manner that infringes a charter right, remedy is available under s.24(2)
At CL, didn’t matter how evidence was obtained, except for the CL confession rule.

The fundamental rule of the law of evidence

All evidence that is relevant to a fact in issue is admissible unless it is excluded by an exclusionary rule or principle, or its probative value is exceeded by its prejuidical effect.

To be admissible, a piece of evidence must pass the following tests:

Is the evidence factually relevant?
Is the evidence material (legally relevant)?
Is the evidence inadmissible on any grounds of law or policy (IE: subject to an exclusionary rule)?
Does the prejudicial effect of the evidence outweigh its probative value?

Exclusionary rules

Grounds for excluding relevant evidence include:

Issues of reliability:
Its potential to distort the fact-finding process
IE: Hearsay
Issues of efficiency
Unnecessarily prolonging a trial or confusing the issues
Collateral facts rule
Because its admission would undermine an important value other than fact-finding
IE: rules of privilege
IE: evidence that unfairly surprises the opposing party
IE: evidence obtained in breach of Charter
Judicial discretion
Its probative value is outweighed by its prejudicial effect

The Trial Process

Calling Witnesses

Examination-in-chief (direct examination)
Trying to get witnesses to say what is relevant to the case as clearly/concisely as possible.
Then defence counsel cross-examines
Rules of cross-examination are much more relaxed, as goals are different.
Probe weaknesses, seek facts that may help your case.
Possibly, Crown may be allowed to re-examine.
Previously, could not re-examine on anything that should have been examined the first time around.
However, judges are now a little more tolerant in their enforcement of the rule.
Once Crown complete, the accused may call witnesses.
The accused may, but need not, testify.

Criminal Proceedings:

Criminal trial begins with a charging document (called an indictment, or the information), which specifies the offence charged, and contains a typically brief statement of the facts to be alleged by the Crown.
Before the trial begins, Crown has a constitutional duty to disclose all relevant and non-privileged information to the defence(R v. Stinchcombe)
There is no corresponding duty of disclosure on the defence
Presumed innocent and burden is on Crown; otherwise would oblige accused to assist Crown in case against them.
At outset of trial, accused will plead guilty or not guilty (other pleas available as well)
A plea of guilty is a formal admission of the facts necessary to establish the Crown’s allegations.
A plea of not guilty indicates that the accused will dispute the Crown’s case, thus requiring that the Crown adduce sufficient evidence to establish each element of the offence.
Judge/Jury have distinct roles; trier of law vs. trier of fact
Order of trial:
With a few exceptions, in criminal cases the Crown is required to prove the facts it alleges beyond a reasonable doubt.
Because of this burden of proof, the Crown calls its witnesses first (Crown’s “case in chief”)
At close of Crown’s case, accused may bring motion for directed verdict of acquittal.
At the close of Crown’s case, the accused may call witnesses and may testify on his own behalf (although not required)
After both cases are presented, counsel for each party will address the jury on the facts.
Order of these addresses is determined by CC s.651 and R v Rose
If defence calls evidence, then counsel for the accused will address the trier of fact first.
Judge then instructs the jury on the law, and jury retires to consider verdict.
If jury acquits, accused is free to go (unless in custody on another matter)
If jury finds guilty, accused is remanded for sentencing by TJ.

Appealing on the Basis of Evidence Rulings in Criminal Cases

The accused may appeal from conviction on a question of law, as well as on other grounds
The Crown may only appeal acquittal on a question of law.
The trial judge’s decision to admit or exclude evidence is a question of law.
Decisions of admissibility are therefore frequent grounds of appeal for both the Crown and the accused.

Civil Proceedings

Begin with a statement of claim from the P, a statement of defence from the D, and further pleadings from any other party to the action.
Pleadings frame the issues for trial, and provide basis for determining whether evidence is relevant to material issues.
Following exchange of pleadings, the rules of civil procedure provide for pre-trial discovery.
Transcripts from this case can be read in a trial to demonstrate admissions, and can also be used to impeach witness at trial if contradiction/inconsistency arises.
Just as in criminal cases, civil appeals can be founded on alleged errors in admission/exclusion of evidence.
Evidence in interlocutory proceedings:
Before trial, may have to determine procedural issues, for which it may be necessary to establish facts in support of the motion.
In this situation, evidence is typically presented in form of affidavits/sworn statements.
In some cases the witness (deponent) in the affidavit may be required to attend and be cross-examined by a special examiner.

3. Burdens, Quantum’s of Proof, and Presumptions

CIVIL - Burden & Degree of Proof

In civil proceedings, the plaintiff typically bears both the evidentiary and persuasive burden on all the elements of the action.
The plaintiff must lead evidence capable of supporting the facts the plaintiff alleges, and the plaintiff must then satisfy the trier of fact on a balance of probabilities that the alleged facts are true (there are some exceptions)

A. Motion for Non-suit (BC Supreme Court Civil Rule 12-5)

At close of the plaintiff’s case, the D may argue that the P has not met his/her evidentiary burden.
IE: the D argues that the P had not led evidence capable of supporting one or more of the elements of the cause of action.
A motion for non-suit is determined by the trial judge:
The judge must determine whether, assuming the evidence is true, and making any reasonable inferences one can from the evidence led, there is support for the element(s) in question.

B. Proof on Bop

“50 + 1”

C. Summary Judgment

A summary judgment is a judgment without a trial.
The moving party asserts that the responding party’s case is so weak that it is not worth bringing to trial.

Burden and Degree of Proof in Penal Proceedings

The “Golden Thread” (Woolmington) – 1. Presumption of innocence, and 2. Requirement of proof BaRD

S.11(d) of the Charter – right to be presumed innocent until proven guilty

1. Directed verdict of Acquittal

The verdict of acquittal is the criminal analogue of the non-suit.
At the end of the prosecution’s case, the accused may ask the trial judge to rule that the Crown has not led evidence capable of establishing the elements of the offence (IE: not discharged it’s evidentiary burden).
Formula = no reasonable jury, properly instructed and acting judicially, could find guilt beyond a reasonable doubt.
Monteleone:
“Where there is before the court any admissible evidence…which, if believed by a properly charged jury acing reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trail judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him; these are functions of the trier of fact.
Where circumstantial evidence is concerned, the judge can weigh the evidence to some extent to determine that the facts necessary to support the inference are in the evidence, and that it would be reasonable to make that inference.

2. Air of Reality - Putting a Defence in Issue

Air of reality test = test for trial judge to determine whether a defence will be left for the jury.
Cinous/Pappajohn
The trial judge must determine if the evidence put foreword is such that, if believed, a reasonable jury properly charged could have acquitted.
It’s a threshold test to determine whether the defence will be “put into play”, IE: the merit’s of it considered by the trier of fact.
A trial judge has a positive duty to keep from the jury defences lacking an evidential foundation – an air of reality.
It is an evidentiary burden, not persuasive.

3. Proof Beyond a Reasonable Doubt

R v. Lifchus

A trial judge must instruct the jury on the reasonable doubt standard
What it is:
BaRD is inextricably intertwined with the presumption of innocence
A reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense.
It is logically connected to the evidence or absence of evidence
It does not involve proof to an absolute certainty
More is required than proof that the accused is probably guilty
What it is not:
An ordinary expression with no special meaning
The standard we apply to decisions we make in our everyday lives
A “moral certainty:
“Serious”, “substantial”, or “haunting” doubt

Starr modification:

Describe standard to jury as “much closer to absolute certainty to proof on a BoP”

R v. Morin (SCC) 1988

Proof BaRD does not apply to the individual items of evidence, but to the total body of evidence.
Jury should be told not to apply he reasonable doubt standard to individual facts in isolation, but examine all facts together.

R v. W.(D.)

If the accused testifies:
First, if you believe the evidence of the accused, you must acquit
Second, if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence you do accept, you are convinced BaRD by that evidence of the guilt of the accused.

R v. J.H.S. (modified R v. W.(D.):

If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.

Presumptions and Reverse Onuses

Presumption:

1. Presumption without basic fact
A conclusion that can be drawn until the contrary is proved.
2. Presumption with basic fact
A conclusion to be drawn upon proof of the basic fact.
Basic fact presumptions can be further categorized into permissive and mandatory presumptions (IE: optional or mandatory that an inference is made).
Presumptions may be either rebuttable or irrebuttable.
If rebuttable there are three potential ways the fact can be rebutted:
1. Accused may be required to merely raise a reasonable doubt as to its existence
2. The accused may have an evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact.
3. The accused may have a legal or persuasive burden to prove on a BoP the non-existence of the presumed fact.
Presumptions are either presumptions of law or fact.

4. Relevance, Materiality, Direct/Circ. Evidence

KEY ADMISSIBILITY QUESTIONS:

1. Is the evidence factually relevant – that is, does it tend to prove or disprove the fact for which it is tendered?

2. Is the evidence legally relevant (material)? – that is, is the fact that the evidence tends to prove or disprove legally significant in establishing an element of the cause of action, offence or defence at issue?

3. Is the evidence inadmissible on any ground of law or policy (IE: subject to an exclusionary rule?)

4. Does the prejudicial effect of the evidence outweigh its probative value?

1. Relevance & Materiality (AKA: “Relevance”)

Relevance = “whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would without the existence of “Fact A”. If it does, then “Fact A” is relevant to “Fact B”.” (Watson)
Evidence is relevant if it had any tendency to make the existence of a fact in issue more or less probable than it would be without the evidence.(Watson)
Absence of a direct connection does not determine relevance; a chain of inferences, based on logic or experience, will suffice (Watson)
No minimum probative value is required for evidence to be deemed relevant(Watson, Morris)
Evidence of a victim’s character/habits/disposition is admissible so long as it is relevant to the case (Watson)
Evidence of habit = inference of conduct based on past conduct (Watson)
Evidence of disposition = inference of the existence of a state of mind based on past conduct that makes certain conduct more likely (Watson)

Materiality (legal relevance) = evidence is material if it goes to a matter at issue in the case.
Relevance must be assessed in the context of the entire case and respective positions taken by the Crown and defence. It must be determined in reference to the facts at issue in the case (Watson)
In criminal cases, this depends on the offences charged in the information or indictment
In civil cases, it depends on the causes of action and defences set out in the pleadings.
Relevance must be determined in relation to some issue in the trial; evidence which may be relevant to one issue may be irrelevant to another issue.
A fact will be relevant not only where it relates directly to the fact in issue, but also where it proves or renders probable the past, present, or future existence (or non-existence) of any fact in issue.
Facts relating to the necessary elements of the offence charged or cause of action pleaded (unless admitted) and any defences raised are material.
Facts relating to the credibility of a witness giving direct or circumstantial evidence of a fact in issue are relevant.
A fact that proves the existence or tends to prove the existence of a pre-condition to the admissibility of a piece of evidence, such as the voluntariness of a confession, the authenticity of a signature on a document or the statutory conditions for a legal wire-tap is equally relevant.
If no nexus exists between the evidence offered and any one or more facts in issue, the evidence is excluded as irrelevant (not material)

R v. Watson

Fact in Issue: Was the deceased carrying a gun?

Evidence: “he never left home without it”

Underlying Premise or Generalization: people in the habit of behaving in a certain way in certain circumstances usually behave in that way in those circumstances.

Sub Conclusion: the deceased was in the habit of carrying a gun (he “never left home without it”), therefore the deceased was probably carrying a gun when he left home on the day of the shooting.

Fact in Issue: Was Cain shot by the deceased or Headley

Evidence: the deceased was the target of Headley’s assault and Headley was Cain’s friend.

Underlying Premise or Generalization: a person is more likely to be shot by his friend’s adversary than by his friend.

Sub conclusion: the deceased was the target of Headley’s assault and Headley was Cain’s friend. Therefore, it is more likely that Cain was shot by the deceased than by Headley.

Chain of Inferences:

If the deceased’s habit was to carry a gun, it is more probable that he carried a gun on the day of the shooting.
If the deceased carried a gun on the day of the shooting, it is more probable that he (not Headley) fired the second gun.
If the deceased (not Headley) fired the second gun, it is more probably that this was a spontaneous shoot-out not a pre-meditated ambush.
If this was a spontaneous shoot-out not, not a pre-meditated ambush, it is more probable that there was no plan for an ambush and the accused had nothing to do with the shooting.

R v. Hunter

Context plays an important role in giving meaning to spoken words. Where an overheard utterance is known, but the context of the utterance is unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought.

R v. Bell

A woman believes she was date raped, then sexually assaulted by the accused. Crown wishes to tender evidence that accused was a drug trafficker, selling ecstasy, cocaine, and pot, for the purpose of advancing the proposition that the accused, as opposed to others, would have better access to a date rape drug.

D: Not relevant - there is no logical connection between the proposition that the accused is a drug trafficker (in recreational drugs) and the conclusion that he had better access to the date rape drugs in question.