Sources and Goals of the Law Of

Sources and Goals of the Law of

Evidence

Overarching Issues

Sources of Evidence Law

Relevance

Admissibility

Test for Admissibility  McCormick The Law of Evidence

The Trial Process

Appellate Review

Appellate Review of Factual Findings

Witnesses

Basic Concepts:

Spousal Competency

The Oath and Its Substitute

Unsworn Evidence of Children

Accused’s Failure to Testify

Examination of Witnesses

Refreshing and Recording Memory

Cross Examination

Probative Value and Prejudicial

Effect

Burden and Quantum of Proof

Air of Reality

Proof Beyond a Reasonable Doubt

Strict Liability Offences

Presumptions

Appellate Review of Facts

Hearsay

Was it Hearsay?

Hearsay by Conduct

Does it Fall Under an Exception?

Party Admissions Exception

Admissions Against Interest

Dying Declarations

Business Records (Declarations in the Course of Duties)

Former Testimony

“Ouch” Exception (Statements Concerning Bodily and Mental Condition)

Statement About Mental Condition (Statements of Intention)

Excited Statement

Prior Inconsistent Statements

The Principled Approach

Two False Starts:

SCC Develops the Principled Approach:

Opinion Evidence

Lay Opinion

Expert Opinion

Expert Opinion and Hearsay

Reliability in Novel Areas of Expertise

Examining and Cross Examining Expert Witnesses

Credibility

Assessing Credibility

Appellant court deference to Trial Courts

Supporting Credibility of Your Own Witness

1) Redirect examination to counter a sense of unreliability generated in cross-examination

2) Use of expert evidence of good credibility

3) Evidence of a good reputation for veracity

4) Evidence of prior consistent statements

Impeaching The Credibility of a Witness

1) Cross Examination

2) Expert Examination of the Witness’ unreliability

3) Witness’ Bad Reputation for Veracity

4) Prior Convictions

Collateral Facts Bar

Corroboration

Character Evidence

Accused Puts his Character at Issue: Process

S.666 of the CC

Expert Evidence (For the Defence)

Attacking the Character of a 3rd Party

Similar Facts Evidence

Character and “Similar Facts” in Civil Cases

Improperly Obtained Evidence

Common Law Confessions Rule

Person In Authority

Voluntariness

Confessions Confirmed by Further Evidence

Charter “Confessions Rule”

Illegally Obtained Evidence 24(2)

To Whom does it Apply:

“Obtained in a Manner”

“Bringing the Administration of Justice into Disrepute”

Privilege Against Self Incrimination

Pre-Charter

Section 13 of the Charter  The Law as it Stands

Derivative Use Immunity (S. 7)

Privilege

Class Privileges

Solicitor-Client Privilege

Litigation Privilege

Dispute Settlement Privilege

Informer Privilege

Matrimonial Communications Privilege

Public Interest Immunity

Case-By-Case Privilege

Protection of Third Party Records

Implied Undertaking

Proof Without Evidence

Formal Admissions

Judicial Notice of Facts

Sources and Goals of the Law ofEvidence

Everything that is relevant to a fact at issue is admissible unless there is a legal reason for excluding it (irrelevance/subject to exclusion under law or policy) R v. Collins

Overarching Issues

-Disappearance of the Jury

-Shift from a focus on Rules with minimal judicial discretion, to a focus on Principles with broader judicial discretion

-Competing Goals: accuracy, cost, fairness to the accused

Sources of Evidence Law

Common Law  The Primary Source:
Particular facts and situations drive need for rules of evidence
Accepted that policy drives many decisions
Achieve dual ends of truth and fairness
Statutes
No uniform code of Evidence Law in Canada  legislative schemes must be understood with reference to Common Law principles
Canada Evidence Act, BC Evidence Act, parts of Crim Code
Legislative Schemes sometimes tailor evidence rules in specific circumstances:
Controlled Drug and Substance Act/Child and Family Services Act
Tribunals are often authorized to allow evidence that would be inadmissible in a trial, being much less formal
SCC has generally read statutory evidence provisions to be subservient to the Common Law judicial discretion to exclude evidence when prejudicial effect outweighs probative value
Constitution
Federalism – Canada Evidence Act governs criminal prosecutions, BC Evidence Act governs provincial matters
Note: Federal evidence law can incorporate provincial evidence law through referential incorporation in s.40 of the CEA
The Charter
Charter provides express constitutional protection for some evidentiary principles
Presumption of innocence
Right against self-incrimination
Right against self-incrimination in subsequent proceedings
Charter may constutituinalize some basic evidentiary principles, if they are found to be PFJs
Charter protects important rights in the investigation of offences
Exclusionary Rule  24(1) and (2)
Illegally obtained evidence will be excluded if it brings the administration of justice into disrepute
Any laws inconsistent with the Charter, including evidence rules, are of no force and effect

Relevance

All relevant evidence is admissible, unless it is excluded by some rule of law or policy

Factual Relevance:
Does the evidence at issue make a fact more or less likely to be true?
“Relevance is established if, as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced”  Collins
Materiality (Legal Relevance):
Is the evidence in relation to a fact that is relevant in this case?
“Evidence is material if it is directed at the matter of the case”  Collins

NOTE  Relevance is a function of Circumstantial Evidence

-Direct Evidence  With evidence that is directly perceived and directly ties the crime to the accused, relevance is not important

-Circumstantial Evidence  When evidence requires an auxiliary inference, relevance is always important

Admissibility

Evidence can be relevant yet excluded for reasons of law or policy:

Reliability  admitting the evidence would distort the basic fact-finding function of the court
Not necessarily because the evidence is untrue, but because it is difficult to test
Concern that certain types of evidence would distort the fact-finding function (hearsay, evidence of bad character)
Efficiency  Admission would unnecessarily prolong or confuse issues
Excluding evidence that would be slightly relevant but would take so much time to deal with that it is inefficient (collateral facts rule)
Competing Values  Admission would undermine some value more important than fact-finding
I.E: Privileged evidence, Where evidence would bring the administration of justice into disrepute, Evidence that unfairly surprises the other party
Residual Discretion  Evidence can be excluded where the prejudicial effect outweighs the probative value

Test for Admissibility  McCormick The Law of Evidence

1 – Is the evidence relevant?
(a) – Is the evidence factually relevant
(b) – Is the evidence material?
2 – Is the evidence inadmissible on any ground of law or policy?
3 – Does the prejudicial effect of the evidence outweigh its probative value?

NOTE: Admissibility is not the same as Weight

-Evidence that is relevant, material, and not barred by an exclusionary rule or residual discretion will be admitted, but the weight given to the evidence is up to the Trier of Fact

The Trial Process

Disclosure
Crown is obligated to make full disclosure, burden is on the Crown to determine whether any evidence should not be disclosed because it is irrelevant or privilege issues attach  Stinchcombe
Motions
In advance of a trial beginning, issues are dealt with in a voir dire.
Crown/Plaintiff’s Case in Chief
All evidence led in one chunk.

Opening Statement
Careful not to assert it will show something inadmissible
Crown or Plaintiff’s Case in Chief Witness Examination
Direct examination “in chief” – no leading questions
Cross examination – no limit on whether leading or not
Re-direct – any matters that arose which could not reasonably be expected. Generally no opportunity to respond to this.
Next witness and restart process.
Crown or Plaintiff Closes Case

Motions for a Directed Verdict
Civil – non-suit
Criminal – Verdict of Directed Acquittal
Basically a “no evidence” motion – there is no evidence which, even if believed, could support the cause of action/crime.
Question on the point of law – i.e. no weighing, all available evidence is presumed to be believed.
Note that one can continue to lead their case if it fails.
Criminal – Insufficient Evidence Motion
Arguing that on balance it is insufficient to meet the burden of proof.
BUT if you lose this motion the case is over. Essentially saying that I will not call evidence.
Defence’s Case in Chief
Defence Opens
Defence’s Case in Chief
Same process as Crown/plaintiff
Defence Closes Case
Crown/Plaintiff can reopen
A discretionary procedure only if something has come up that needs to be addressed
Closing Statements
Rules are different in Criminal and Civil cases
In Criminal, s.651(3) states that the Crown goes last UNLESS the accused called no evidence; whereas in civil the defendant goes last

Appellate Review

The Right to Appeal is purely statutory – if you want to know whether you can appeal, look to the statute
Accused may appeal on Questions of Law as well as other matters – Crown may only appeal on Questions of Law

-Hence: admissibility is often a ground for appeal, as it is a matter of law

-Note: The question of whether a verdict is unreasonable/unsupportable on the evidence is a question of law  Biniaris

An Appeal Court May:

Find evidence inadmissible
Find evidence improperly admitted but uphold the verdict if the evidence did not bring the administration of justice into disrepute
Substitute a verdict
Send the case back to a trial court

Fresh Evidence on Appeal:

Usually appeals deal with evidence from trial, but fresh evidence can be introduced  Palmer v. Palmer
Normally new evidence is only allowed if it was not available at the time of the trial and would substantially alter the result

Appellate Review of Factual Findings

Civil Proceedings:

Courts of appeal should generally defer to judge/jury’s assessment of witness credibility.

Stein v. The “Kathy K”

Findings of Fact are not immutable, but they should not be reversed unless it can be established that the TJ made some palpable and overriding error

(Boat accident, TJ apportioned blame 75-25, appeal judge disregarded portions of blame in favour of his own balance of probabilities appreciation of the whole event.)

Held:

-Trial Judge did not make a palpable and overriding error that affected his assessment of the facts; the apportionment of blame should be restored

Criminal Proceeding:

CC 675(1)(a)(ii) Accused may appeal on grounds of law or mixed law and fact

CC 676(1) Crown may only appeal on a matter of law

R v. Biniaris

The test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered

-Much easier to assess in judge alone trials because judges must give reasons

-“Strong Doubt” is enough for an appellate court to review by reason the decision of a jury

Witnesses

Basic Concepts:

Competency  Is the person legally allowed to take the witness stand?
Two Kinds of Incompetence:
Ability (Children, Mentally Infirm)
Policy (Spousal Incompetence)
Fundamental Qualities
Capacity to Perceive
Capacity to Remember
Capacity to Communicate
Moral obligation to tell the truth
Compellability  Can the person be made to testify?
The general rule is that Competency implies Compellability  McGinty

Spousal Competency

Common Law Rule: At common law, married spouses are incompetent to testify against each other concerning events that happened both before and during the marriage (Pedley v. Wellesley), unless:

Spouses are irreconcilable separates (Salituro)
The accused is charged with an offence that affected the person, liberty or health of the spouse (codified in s. 4(5) CEA)
The spouses are common law (presumably applies to unmarried homosexual couples)

The Common Law Still applies to bar spouses from acting as witnesses for the prosecution on charges not enumerated in 4(2) and (4).

Statutory Modifications: Canada Evidence Act Section 4

4(1)  Except as otherwise provided for in this Section, the wife or husband of a person charged with an offence is a competent witness for the defence

4(2) and 4(4)  The wife or husband of the person charged for certain offences is made competent and compellable for the prosecution IN THE CASE OF:

4(2) Sexual Crimes and Crimes against Marriage
4(4) Crimes involving violence to children

4(5)  Nothing in this Section affects those cases where the wife or husband of a person may be called as a witness under the Common Law rules

Remember, if a spouse is competent/compellable and does take the stand, they may be able to rely on Matrimonial Privilege under 4(3) (see below)

Justifications:

Surviving Justifications
Preserving the harmony of marriage  R v. Bailey
“Natural Repugnance” of compelling a spouse to be the means of their spouse’s condemnation  Wigmore
Defunct Justifications
Coverture
Presumption of Identical Interests

Possible Solutions:

Changes to the rule may be preferable, but should be left to the legislature  Hawkins

Make spouses competent but not compellable – preserve the right not to testify adversely (adopted in the UK and the USA)
Make spouses competent and compellable – thus removing the choice of whether to testify against the spouse or not

R v. Salituro

Adaptation of the Common Law rule Spousal incompetency rule does not apply to irreconcilably separated spouses

(Man convicted on the testimony of a spouse from whom he is separated with no reasonable chance of reconciliation)

-Judges can alter the Common Law when to reflect changing social realities, and must when the common law rule is inconsistent with Charter values (as in this case)

-Grounds for spousal incompetency applying to irreconcilably separated spouses are inconsistent with Charter value of respect for individuals

-HOWEVER – the pattern of legislative change does not denote an intention by Parliament to eradicate the spousal incompetency rules, they are peripheral adaptations to the code

R v. Hawkins

The Spousal Incompetency rule still exists until changed by Parliament, and courts will not investigate into the reasons behind a marriage

(Undercover officer goes bad, leaves wife for dancer, married dancer after she gave initial adversarial testimony, she later changed her testimony and the Crown could not compel her due to the spousal incompetence rule)

-Marriage after testimony can still be genuine, and marital unity should be protected

-There may an exception to Courts not investigating the reasons for a marriage when the evidence clearly shows that the purpose for the marriage was to avoid criminal responsibility by rendering a key witness uncompellable

Note: LHD Comment  Barring a spouse who wants to testify from doing so under the spousal incompetency rule may be an infringement of equalized interests under the Charter

R v. MgGinty

(1) Spouses are competent and compellable witnesses against their spouses in cases of violence against them

(2) The Common Law historically regards Compellability following inevitably from Competency

(Wife charged with serious assault on her husband – husband later compelled to testify under 4(5) – spouse is competent to act as a witness where the crime goes to the liberty, health or person of their spouse)

-Husband is not only competent to give testimony, but compellable (compellable flows from competent)

The Oath and Its Substitute

To testify, a witness must give some indication that they are being truthful – this indication used to be based on belief in a supreme being that would ensure punishment, now a solemn affirmation is acceptable.

-solemn affirmation was originally allowed in place of an oath for religious denominations (quakers, etc.) who did not swear oaths, not for agnostics or atheists, and eventually expanded to include anyone who does not want to swear an oath

Be Aware of The Changes to CEA Section 16  Three Versions:

P.55
P.58  Still the law when challenging an adult on competency to testify
P.62  Applies to Children (16.1)

R v. Bannerman

Elimination of the necessity of understanding the spiritual consequences of an oath

(Accused convicted of statutory rape and indecency, appealed on the grounds that the witness did not understand the nature and consequences of an oath)

-All that is required is an appreciation of the moral obligation flowing from the oath

R v. Walsh

It is sufficient for a witness to understand the penal consequences of not telling the truth in court, if not the moral obligation

(Crown appeals trial judge’s ruling that a self-professed Satanist was incompetent to testify because she did not recognize a moral obligation to tell the truth in court)

Unsworn Evidence of Children

R v. Kahn

First Alteration of s.16 of the CEA  Page 58

Doctor sexually assaulted girl, trial judge aquitted – held that child was not competent to give evidence (and that the statements of the child to her mother were hearsay)

-Judge erred in applying the rigorous test of whether the child understood an oath or solemn affirmation, and in assuming that a 4y/o child was prima facie too young to give testimony

-It was enough that the child was of sufficient mental capacity

-Judges have the authority to make a subjective assessment of whether children are of sufficient mental capacity to testify

Alteration:

A child can give evidence if they understand the moral obligation to tell the truth and have the ability to communicate

This is still the law when dealing with adults whose capacity to give evidence is challenged (mental capacity)

16(1) Where a proposed witness is (under 14 years of age or)a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine:

(a) Whether the person understands the nature of the oath or solemn affirmation

(b) Whether the person is able to communicate evidence

(2) A person referred to in (1) who understands the nature of an oath/affirmation and can communicate shall testify under oath/affirmation

(3) A person referred to in (1) who does not understand the nature of an oath/affirmation but can communicate may give evidence on a promise to tell the truth

(4) A person who does not understand the nature of an oath/affirmation and cannot communicate may not testify

(5) The Party who challenges the mental capacity of a person referred to in (1) has the burden of satisfying the court that there is an issue as to capacity

R v. Marquard

Second Alteration to s.16 of the CEA  Page 62

(Woman convicted of assaulting a child in her care (burning her on a stove), appealed on the grounds of multiple procedural errors)

-“able to communicate the evidence” means more than just the ability to communicate, it requires a judge to inquire into a witness’ (a) capacity to observe (b) capacity to recollect and (c) capacity to communicate