EVIDENCE – Exam Guide

BASIC STEPS:

1) Admissible? a. PV v. PE

i. Specific to case/evidence in question ii. Mention PV v. PE in general Overarching Policy considerations,

Qualified search for Truthb. Other specific TESTS for each type of evidence c. Presumptions / Onus / Standard of Proof d. Who is submitting – Crown or Defense (corresponding duties/leeway)e. Civil or Criminal contextf. IF WITNESS – competent and compellable?

2) For What Purpose? ( the specific Issue, what is actually Disputed)a. Truthb. Credibilityc. Identityd. Level of culpability (or proof of functioning / cognitive mind?)e. State of mindf. Collusion

3) Limiting Instructions? a. WEIGHT?b. Editing c. Who decides – judge or jury

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PROBATIVE VALUE v. PREJUDICIAL EFFECT

- WEIGHING PV (search for Truth) with PE (justice, fairness, policies)

Probative Value: must be both relevant AND material

- 1) Relevanceo Increase/decrease probability of existence of a FACT in issue o Relationship b/w evidence and

- 2) Materialityo Relationship b/w evidence and the MATTERS in Issue

- No minimum PV required - In issue: look at framework of case, elements of offence - Proximity in time and space to offence- Degree of nexus b/w evidence and event in question

Prejudicial Effect:

- 1) Prejudice to immediate Accused- Potential to cause jury to prejudge, jump to conclusions

o arouse emotions of prejudice, sympathy, hostility, stereotypeso distraction o danger of punishing Accused for other misconducto time-wastingo unfair surprise

- 2) Prejudice to Admin of Justice- negative effects, cause disrepute – broader notions of equity, confidence in system…- **Limiting Instructions can diminish PE

BALANCE – Overarching Policy Considerations- Relative Degrees of PV and PE…(and depends on which side is leading…)

o **Higher bar for excluding Defense evidence…Seaboyer, PE must substantially outweigh PV in order to exclude as inadmissible

- Err on side of Admissible (weight, instructions) but must be Credible / Reliable if Crown leads- Exclude evidence that could lead to wrongful conviction - important link to show in EXAM- **RARD need not be based on proven facts W(D):

o If believe accused; acquito If do not believe accused, but evidence RARD; acquito If do not know who to believe; acquit

WEIGHT / LIMITING INSTRUCTIONS: - Tell WHY evidence is being admitted:

o Limit what can be used for - If evidence can have good probative value for one purpose, but can be misused for other purposes…

o Weight it should be given - ***ALWAYS remind Jury, warn against using it for prejudicial reasons, link to wrongful

convictions

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TYPES of EVIDENCE

- Everything admissible is led before Jury, they find FACTS from ito Presumption: need evidence to prove any inferences to be drawn/facts to be proven

- Once Admissible Jury examines evidence as a whole - do not have to assess BARD each piece of evidence first, before using to consider facts/verdict

o Accused does not have to prove facts to have an inference drawn o Crown evidence has to be Credible and Reliable

Direct OR Circumstantial

Direct: Evidence that can be used w/o drawing any further inference, evidence speaks for itself Ex. Eyewitness evidence

o 2 Possibilities of Error: mistake of witness, person is lyingo EYEWITNESS Identification: presumption - ADMISSIBLE

but dangerous from Reliability standpoint more reliable if W knows Accused, view, proximity, time stressful situation, or Transference (seeing Accused, photo line up, media) Instructions to Jury:

May (not required) look for Corroborating Evidence Clearly set out risk of mistake, link to wrongful convictions If potential tainting, give it very little weight

oCircumstantial: Need to draw an inference from it to use it

o 3 Possibilities of Error: above 2, plus Improper Inference - Myth: that you cannot convict on circumstantial evidence, can often be incredibly strong, stronger

than direct - Miller error: circumstantial evidence from which Crown would ask jury to draw inferences

MUST be proven facts…but proven facts instruction does not apply to D (doesn’t need to prove anything, just RARD)

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REAL / DEMONSTRATIVE

- gives trier of fact complete first hand impression, can be directly inspected, flows directly from crime (ex. Gun, video, photos) OBJECTS – not witnesses??

- Direct Evidence: to some extent evidence speaks for itself, but need to consider procedures- Admissibility/Weight: DEPENDS:

o If problems not so bad, is a weight issue, o but if lots of problems – admissibility issueo If legitimate purpose for putting in, Court unlikely to prohibit, but likely to edit, make sure

not used for improper purpose Limiting Instructions - Onus: on person leading, to provide evidence of Authenticity

Specific TESTS:- Videos/Photos

o 1) Authentication Verification on oath by person capable to do so

Person who made video: how evidence came into existence Witness: confirm it is an accurate description Technician: set up camera, process of the camera

o 2) Misleading? Fairness, absence of intention to mislead

Basic PV v. PE: For what Purpose being led? Affects the Balance… Establish accuracy in truly representing facts

Intermittent gaps Selective editing – motive (Penny) Format Changing

o 3) Even if above 2 met, Can still Prejudice - if Highly Inflammatory (esp. for Photos) Demonstrate that which something less graphic could not show Judge may limit the amount of photos shown…or specific ones

- Documents o 1) Authentication:

When, where, how created, basic history Person who authored testifies Someone who was present (ex. Board meeting) vouches for accuracy Found in possession of A or witness (helpful depending on purpose)

o 2) Best Evidence Rule: Have Original – use it Copy – authenticate it Manner of Destruction of original – accidental (OK), intentional (problems for

admissibility) Bank records : 1) any form 2) may change 3) may be complation or collation of

other records 4) must been produced as reference source, or part of internal audit system

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Judicial Notice

- Circumstantial – - Presumption: need evidence to prove any inferences to be drawn/facts to be proven

o Facts that are either so notorious or generally accepted as to not be subject of debate among reasonable persons

High standard NOT: money for training child to be pro athlete, or lawyers will not take cases if

have to pay costs out of own pocket

FOCUSIf trying to include – in principle:- proper authenticating evidence provided - highly probative, - edit amount of photos shown, OK

o Possible examples from caselaw Bank records

If trying to exclude – in principle: - selective editing – motives- destruction of docs for sinister reason- overall – Inflammatory, prejudicial

o Possible examples from caselaw Transcripts Video with selective editing, going to method not identity

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EXTRINSIC MISCONDUCT- Circumstantial - Misconduct of Accused or a party/witness that is outside the subject matter of

the proceeding - Type of evidence that can lead to serious miscarriages of justice - Potential for Prejudice:

o Propensity reasoning/evidence – BAD – should be excluded o Punish for previous actso Distractiono May lower standard of proof

- CIVIL Cases: more flexibility, not as concerned about prejudice, but still use Crim standards

(Extrinsic Misconduct) – BAD CHARACTER of the ACCUSED

- Presumption: INADMISSIBLE – Accused character is not in issue o Strict test: General Propensity is not enough, PE outweighs PVo Exception: Specific Propensity – Similar Fact Evidence o GOOD CHARACTER?

Goes to weight, but opens the door for Crown to address Bad Character - Onus: on the Crown

o SoP: BOP - in the circumstances of particular case the PV outweighs the PE General TEST for ADMISSIBILITY:

o 1) Relevant to a material issue beyond Bad Character? Ex. Credibility?

o AND o 2) Does PV outweigh the PE?o Judge can allow some of the BC evidence ino ***Limiting Instructions: Even if admissible, Judge needs to warn jury about what

evidence can and cannot be used for

EXCEPTION: SIMILAR FACT EVIDENCE

- Presumption: INADMISSIBLE (Character Evidence) - Onus: on the Crown

o SoP: BOP - in the circumstances of particular case the PV outweighs the PEo And, identify the issue to which SFE relates

- MUST be accompanied by Limiting Instructions – if Admissible, still Weight issueso How to use evidence, which issue it bears ono **Cannot use SFE to make inference that Accused is of a character to do this crime

- PV - Based on level of similarities ***objective improbability of coincidence ***- Often can make or break your case – once jury sees evidence of pattern of conduct, more likely to

convict - Can use Incident 1 to determine guilt on Incident 2

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Basic Admissibility TEST PV v. PE o distinct and particular propensity to act in a specific way under specific

circumstanceso FACTORS:

Proximity in time Similar in detail (conduct itself, hallmarks) Number of similar acts Circumstances and context around the acts (sports-bar fight-weapon) Strength of reliability of SFE Amount of time to adduce the SFE

o 1) Weight of PV Strength of evidence that similar acts actually occurred (collusion/collaboration?) Connectedness – extent to which proposed evidence aids the inferences made Materiality of the matters it is intending to prove

o 2) Potential for Prejdice (moral, and reasoning)o 3) BALANCE

Identity TEST:o 1) Such high degree of similarity, objectively improbable that crimes committed by

more than one persono 2) Is there some evidence linking Accused to the similar acts?

Collusion TEST:o Chance that similar accusations against A could be produce of Collusion weighto Air of Reality to the accusation of collusion admissibility

Crown must show on BOP “NO Collusion”

FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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(Extrinsic Misconduct) – POST OFFENCE CONDUCT

- Circumstantial – based on conduct of the Accused after the offense, leads to guilty inference - Presumption: ADMISSIBLE – leave to Jury to decide why they are acting that way, weight- Onus:

o SofP: if central issue to Crown case, basically for jurors to consider BARD

Admissibility TEST:o If at least one reasonable explanation that Accused was guilty, leave to Jury**o If certain DEFENSES are put forward

Self Defense: assertion of justification…can admit POC but still balance: Mistrust of legal/criminal justice system, police??

Intoxication: determine functioning of mind (not degree of guilt, below)o **Use Limiting Instructions here, to clarify on both of these issues

- INADMISSIBLE:o If issue is degree of culpability

Ex. Manslaughter v. Murder Unless…large gap between offence admitted (ex. Assault v. Murder)

Consciousness of Innocence:o Reasonable inference that Accused is not guilty, leave to Jury**

PV - Some acts could lead to detection if guilty, depending on the type of crime (ex. DNA test in sexual assault)

But no Right to Silence negative inferences allowed…o NOT Admissible:

Decrying innocence Consider Accused’s knowledge of state of the investigation (ex. DNA evidence

destroyed in fire already)- Principled approach: if we let Crown get bad POC in, should be easier for Def to put evidence in,

so allow COI evidence leave to Jury- Def has to be careful not to open up the door, about issue of POC/Demeanour…

FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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(Extrinsic Misconduct) – BAD CHARACTER of the WITNESS

- On X, attempt to undermine witness:o Reliability: accuracy of their evidence due to certain objective circumstances (even if

honest) Ex. dark, quick, scared

o Credibility: trustworthiness of the witness Ex. lying, exaggerating, minimising, questionable logic, demeanour on stand PIS, Bias, Prior bad acts (crim record), interested in judgment (association,

financial, related), other motivations

Prior Convictions- Presumption: (depends on purpose) ADMISSIBLE if going to credibility issue – logical link

o Weight: Prior bad acts (ex. dishonesty criminal offence - fraud, obstruction) - Onus:

o SofP:

CEA s. 12.1o Witness can be questioned as to whether convicted of any offence o BUT: Judge has discretion, to let in (PV v. PE)

Factors: If prior offense has element of dishonesty (fraud, obstruction - PV) Temporal proximity Nature of crime (if similar to this one, more PE)

o MUST give limiting instructions on how to use evidence, for credibility - Accused is Witness: just bring in the fact of the conviction, for credibility – cannot get into the

details (unless SFE application OR Accused opens the door to talking about the offence) o Cannot use charge for which acquitted

- Crown Witness: greater discretion to get into details of previous convictions

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VETROVEC WITNESS

- Presumption: ADMISSIBLE o Credibility weight, left to jury, find confirmatory evidence to help restore faith

- Onus: o SofP:

- Crown witness that has inherent, profound, or serious reliability or credibility concerns, beyond regular problems – lack of morals

o Ex. jailhouse informant, lied under oath, multiple PIS, an Accomplice getting a deal, benefiting from testimony (money, jail privileges, plea bargain)

o Not for Defence Witnesses - Linked to wrongful convictions

TEST WEIGH these Factors: o 1) Degree of problems with Inherent Trustworthiness

Involved in crim activity Delay in coming forward Benefit for testimony Series of PIS

o 2) Importance of Witness to Crown case More imp to Crown – lesser degree of problems needed to invoke caution

o 3) INSTRUCTIONS to JURY 1 – Separate the witness out from the rest, treat differently 2 – Identify characteristics that bring VW credibility into serious question 3 - Caution jury: not required, but dangerous not to use confirmatory evidence 4 – Look for independent evidence, to confirm other material testimony of VW

Confirmatory/Corroborating Evidence: 1 – Must relate to material/relevant aspect of VW evidence

Doesn’t have to confirm key element, but cannot be merely peripheral 2 – reasonably capable of restoring faith in VW

Depends on how bad/serious, range of VW - need more CE to restore faith 3 – independent

Cannot come from VW themselves, or Collusion

FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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COMMON KNOWLEDGE / LAY OPINION EVIDENCE

- Provide information to jury to assist them in forming their own opinions, allow them to draw inferences they otherwise would not be able to do (do not understand certain issues)

- First hand, non-experts…- Presumption: VARIES. A lot may go to weight.- Onus:

o SofP: -RULE

o A Witness can provide opinion regarding something within common knowledge/average persons common experience, which doesn’t require expert qualifications

o TEST: PV v. PE FACTORS: 1 - witness is drawing logical inference from facts 2 – facts upon which opinion is based are too speculative 3 – opinion phrased as legal conclusion (invasion into trier of fact role)

Ex. ‘too intoxicated to drive’ - as opposed to ‘seemed intoxicated’ 4 – goes beyond common knowledge into expert evidence

Ex. ‘was having a heart attack’

FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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EXPERT OPINION EVIDENCE

- Provide information to jury to assist them in forming their own opinions, allow them to draw inferences they otherwise would not be able to do (do not understand certain issues)

- **Disclosure requirement for Defence here (30 days notice for all, CC)- Presumption: Err on the side of NOT calling EE, especially for Behavioural

DEPENDS greatly, on Mohan Balancing, and Foundation evidence o Weight:

Qualifications of Expert Only some evidence of Foundation of expert’s opinion

- Onus: party seeking to enter the EEo SofP: BOP - each element of Mohan

- Scientific and Technical EE is more Admissible Behavioural EE is more open to attack

TEST: Mohan - PV v. PE, with particular features

o 1) Relevant Of the EE, to the material issue

o 2) Necessity In assisting the trier of fact, in drawing inference relative to the case Too conclusive, too complicated – not as helpful Threshold is necessity, NOT helpfulness…needs to be more

o 3) Qualified Not usually controversial – weight issue (leading expert or not) Cross for bias…(paid, always on one side)

o 4) Absence of other Exclusionary Rule PV v. PE Manner in which it is provided may tip the balance – how articulated – concerns

over Expert taking over trial, usurp role of jury Hypothetical Question: as opposed to giving opinions regarding the specifics of

the case, crossing the line, likely inadmissible Unless evidence is not in dispute, or Expert has dealt directly with the

Accused (ex. interviewed) Ultimate Issue: closer the opinion goes to ultimate issue, stricter the test for

Admissibility… Evidence going to Foundation/assumptions of Expert Opinion:

if none, admissibility issue if some, or too much psychiatric evidence/hearsay, goes to weight (even if

significant – Lavallee)

Novel Scientific Evidence- Trial judge as gatekeeper – new forms of science regarded with special scrutinyTEST:

o Whether the science is sufficiently reliable to put before the courto Factors:

1 – Has technique been tested, or can it be 2 – Has theory or technique been subject to peer review 3 – Is the error rate known 4 – Generally accepted by scientific community (U.S. import, Fry test)

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Credibility of Victim – Oath Helping- oath-helping: prohibits admission of evidence adduced solely for purpose of proving that a

witness is truthful…credibility of victim is not subject to Opinion Evidence o applies to Truthfulness of Witness (as opposed to Truth of Witness’ statements) o Experts cannot say: find particular witness “credible”, “truthful, believable”

- Admissibility: Can still be admitted, if in addition to oath-helping it has some other legitimate purpose (if indirect to issue of credibility)

o ADMISSIBLE: Evidence about a feature of witness’ behaviour or testimonyo INADMISSIBLE: Evidence about credibility of witness

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FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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COMPETENCE and COMPELLABILITY of WITNESSES

- Presumption: Competent and Compellable – testifying is public duty, necessary to facilitate search for the truth

o Exception: the Accused – is competent but not compellable – Charter s.7, 11.c: cannot draw adverse inference from Accused decision not to testify

Also: privilege, age, mental capacity, specific circumstances (ex. Spouse)-1) COMPETENCY

- Presumption: Compellableo **Statutory presumption of capacity, for children o Weight: no lesser weight if admitted based on promise to tell truth, as opposed to oath/SA

- Onus: Party challenging the competency of the witness must satisfy the court that there is an issue as to capacity, on BOP:

o Mental: 1) cannot understand nature of oath OR 2) unable to communicate evidenceo Children: 1) understanding 2) responding

- CL: witness must be under oath, morally bound to tell truth through oath or solemn affirmation- CEA s.14.1

o Swear on Bible OR solemn affirmation o Witness is required to:

1) Understand concept of moral weight of the oath or affirmation AND 2) Be able to communicate their testimony to court

Mental Capacity- CEA s.16 Over 14yrs

o 1 - If capacity challenged…court shall conduct inquiry to determine: Whether person understands nature of oath AND Is able to communicate their testimony

o If yes, can testifyo If do not understand oath can still testify, on promise to tell the trutho BUT – if do not understand AND cannot communicate cannot testify*

Children- CEA s.16.1 Under 14yrs

o 1 – statutory presumption of capacityo 2 – shall not take oath or solemn affirmationo 3 – evidence shall be received if able to

Understand AND Respond to question

o 5 – if the court is satisfied that there may be an issue, it shall conduct an inquiry o 6 – shall make promise to tell the truth

BUT – no questions can be asked re: understanding promise to tell truth-

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2) COMPELLABILITY ISSUES

Exclusion of Witness- Presumption: witnesses testify in fully open court, using name, and on public record

o Legitimacy of justice systemo Full answer and defenceo Facilitate truthful testimony

- Balance – with protection of vulnerable witnesses (young, risk to security) o Crim Code s.486 - to protect witness, can:

Screening Separate room with video camera Publication ban Closed/cleared courtroom (no audience)

o TEST: where necessary to obtain a full and candid accounto Has to be better reason than just preferring not to see Accused

Order of Calling Witnesses- Presumption: Adversarial process – Judge cannot tell counsel order to present evidence

o Crown can apply for preliminary order – exclusion of witnesseso Accused does not have to testify first, or have others excluded: allowed to be in courtroom

entire time, make full answer and defence, o Judge may have discretion to place less weight on A’s evidence if go last…but that’s all

-

FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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DIRECT EXAMINATION of Witnesses

Leading Questions- Examples:

o suggests answer to Wo Presupposes existence of a fact not presented by W in evidence

- Presumption: Cannot ask leading questions on Direct, should ask open-ended questions (but allowed on Cross)

o Weight: jury may assign answers less weight

- Exceptions:o Introductory, or non-controversial/undisputed matters (take them up to their evidence)o Identification of persons/things, some assistance o Complicated/Technical matterso Responding to specific piece of evidence (ex. documents, other testimony)o Leave obtained to Cross a hostile/adverse Witness (s.9.1, 9.2)o Present Memory Revivedo Past Recollection Recorded

Refreshing Witness’ Memory- W cannot remember on stand, but some kind of documentary evidence about what they said

o Contemporaneous notes, preliminary hearing, civil discovery- Presumption: these are extraordinary procedures

o Procedures may affect weight of testimony

1) PMR – Present Memory Revived

- Document/evidence contemporaneous with event allows witness to regain memory then document taken away, and W actually provides the testimony in court, viva voce oral evidence

o **The document itself not admitted, just assists (but marked for identification)o Opposing counsel has opportunity to examine document and Cross witness

- Judge has discretion to not allow certain types of documents/objects o 1) FACTORS:

Contemporaneousness (or near) Author (minutes ok) Potential to Mislead (general Reliability)

o 2) Improper Purpose TEST: Judge must satisfy that not an attempt just to get document into evidence…must be bona fide attempt to revive witness’ memory

o Limiting Instructions: how to use the document NOT for truth or credibility Sole purpose of document is to refresh memory

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2) PRR – Past Recollection Recorded

- CL Exception - Witness has no current memory (cannot be revived) and actual document is entered as evidence,

capturing past recollection- Presumption: INADMISSIBLE (unless meet ALL criteria of the TEST)

o Strict approach b/c Witness not under oath Cannot remember contents – and lose advantages of viva voce evidence Being tendered for truth of contents Cross examination virtually impossible

TEST:- Have to pass basic PV v. PE assessment, AND must meet ALL 4 Criteria:

o 1) Reliable Form: High degree of reliability, strict test How doc created (not content) – established process for keeping records (minutes)

Good: recorded, witness wrote, signed Problems: brief police notes, 3rd hand knowledge, recorded later

o 2) Fresh and Vivid/Proximity: Recorded at time when memory of events were sufficiently fresh and vivid Look at contemporaneous in context: not always about time, but also potential for

influence and tainting o 3) Knew it to be True at the Time:

**Mandatory, cannot be inferred Witness able to testify, under oath at trial - not only verification of making

statement, but attempting to be truthful at time the recollection was recordedo 4) Original Record

OR, Best Evidence Rule--

FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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CROSS EXAMINATION of Witnesses

- Presumption: Right to Cross examine is construed broadlyo POLICY

Fundamental means for testing Credibility and reliability More flexible Seaboyer standard Charter rights of Accused (fundamental justice, s.7) – full answer and defence

o Limitations Cannot harass a witness Cannot pursue area of inquiry that is not relevant or helpful Cannot put forward theories that are manifestly tenuous, suspect, reckless **Cannot reverse the Onus – can challenge W, but cannot put questions to

Accused which effectively ask them to prove their innocence

Specific Scenario - Putting alternative scenario to witness/Accused w/o supporting evidence, or not admissible?- Risk of prejudice

o RULE: Can put forward a theory/hypothesis if counsel has good faith basis for the scenario…if honestly advanced, on the strength of reasonable inference, experience, or intuition

Low threshold, but must be reasonable – objective elemento PV v. PE

Rule from Browne v. Dunn - Presumption: restrict application of the rule to only the clearest of cases- RULE:

o If counsel going to challenge Credibility of W by calling contradictory evidence, must give W the chance to address the contradictory evidence in Cross examination while int eh witness box

- Does not extend to the failure to put details to the witness, only significant matters upon which you will ultimately attempt to rely Genuine mistake by counsel

o Instructions to jury: place limited weight on submission, issue was not put to W

Re-Examination- Party who led witness wants to re-examine after other party’s Cross- Presumption: not permitted- RULE:

o Only where Cross examination has raised new issue that could not have been reasonably anticipated

ex. sometimes, not always, on PIS - **New matters/facts cannot be raised on Re-examination- POLICY:

o Speedier trialso Accused: full answer and defence

Rebuttal- Crown calling testimony after D put forth case- Presumption: not permitted- TEST:

o 1) Issue could not have been reasonably anticipated, not dealt with in initial Crown caseo 2) Issue Not collateral: new issue raised must go to centre of case, not merely credibility

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FOCUS

If trying to undermine – principles:o reliability (misperception, even if honest)o credibility (bias, motive, prior convictions) o inconsistent statements o evidence of collusiono corroborationo air of realityo accuracy (alcohol, tired)o prior incident

- Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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STATEMENT EVIDENCEPrior Consistent Statements- Presumption: INADMISSIBLE, low probative value in repetition

o Unless 1) admitted for it’s fact, not for content (for narrative purposes, establishing

chronological conduct of W – not probable truthfulness, content inadmissible) 2) if limiting instruction is given

- Two EXCEPTIONS (can be led for content) 1) Fabrication of current statement

But this opens the door Rebut the suggestion of recent fabrication of a defence

2) Prior Identification May be more reliable evidence, closer to offence, and not when person is

obviously the Accused

ADVERSE WITNESS- Presumption: cannot attack the credibility of / cross examine your own witness (basic premise of

adversarial system) o Unless: witness turns on you, change what they say, adversely impact your case

- Canada Evidence Act Inconsistency- Witness gives previous statement that is highly inconsistent with current testimony

o 9.2 application:- TEST:

o 1) alleged prior statement was madeo 2) substantially inconsistent with previous testimony

***If application accepted by TJ Limited cross examination, on this consistencyo ***Can only be for statements that are recorded in writing/video/audioo **Statement itself is NOT ADMISSIBLE – not put forward for its trutho If legitimate loss of memory – No inconsistency, No 9.2 granted…(unless faked)

- If the witness still does not revert back to original testimony, and questioning lead to a display of adversity…

Adverse/Hostile - Demonstrated some hostile animus toward the party calling the witness – adverse to their position,

now seem to be supporting the party against whom you were first to testify against- TEST:

o 1) alleged prior statement was made Call the cop who heard it? Need substantial evidence here…

o 2) substantially inconsistent with previous testimony On an important matter

o 3) finding that a witness is adverse FACTORS:

Demeanour Did counsel have fair notice of W change in story How radical the change was Any evidence of why the change happened, ex. medication (none = hostile)

o 4) if 9.1 cross examination is in the interest of justice Judge maintains discretion here Statement may be highly prejudicial

***If application accepted by TJ Broad right of cross examination (except Character)o **Does not require statement in writing/recorded – includes oral statements

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HEARSAY

- Circumstantial: out-of-court statement entered for the TRUTH of its contents- Especially used when cannot get OC statement in through other means (witness doesn’t remember,

not competent, dies, etc.)- Presumption: INADMISSIBLE

Linked to wrongful convictions **unless falls under a traditional exception OR principled approach (establishes

indicia of reliability and necessity)**o Sometimes OC statements used for fact of statement itself/narrative, but not for Content

9.1, 9.2 Witness incompetent or not physically available

o Non-Hearsay Uses for Out-of-Court Statements : Circumstantial Evidence of State of Mind of Declarant

Evidence not brought in for truth but for fact of the statement itselfo Ex. calling out name, general non-aversion to (husband)o Ex. call of panic to 911 before shot – show not an accident

Circumstantial Evidence of Knowledge Evidence not brought in for truth but to create limited class of persons

o Ex. some personal info/specific facts to narrow down... Can be used by Crown or Accused

- Onus:o SofP:

TRADITIONAL EXCEPTIONS

1) Res gestae o TEST: Sudden statement intrinsically tied to event (close contemporanety)

- Reliability – little time for calculated insincerity, faulty memory, immediate description of physical experience

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2) Dying Declarationo TEST: Subjective perception that death is imminent (or at least hopeless expectation)

- Necessity – not able to testify b/c dead - Reliability – assume ppl don’t lie in last moments

3) Present Statement of Future Intentiono TEST: present statement of future intention w/o any circumstances of suspicion

- Reliability – expect that they will follow through, truth of the statement

4) Declarations Against Interesto TEST:

1) Declaration was against the Declarant’s penal interests at time it was made 2) Made in Circumstances where Declarant should have known against penal

interesto AND

3) Potential for penal consequences was not too remote- Reliability – people don’t lie about things they can go to jail for- Crown: should not oppose hearsay in this situation b/c it is their job to get to the truth, not win

(Seaboyer)

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5) Co-Conspirator’s Exception- Presumption: statements of other persons and their acts are only admissible agasint the maker or

person engaging in those Actso Exception: Acts and declarations made in furtherance of the conspiracy are admissible

against the co-conspirators Are agents of one another – OC made on behalf of the group Different than Co-Accused: can apply where not charged with conspiracy, or not

charged at all - TEST:

o 1) BARD there was a conspiracy o 2) Accused is likely a member of the conspiracy on the basis of evidence directly

admissible against the Accusedo 3) Acts and declarations made in furtherance of the conspiracy

(not after, must be connected)

6) Oral Evidence in the Aboriginal Context- Presumption: ADMISSIBLE

o TEST 1) Useful:

No other means of obtaining same evidence Provide aboriginal perspective on right claimed

2) Reliable: ability to know and testify to orally transmitted traditions Can go to admissibility OR weight, depending on severity

Discretion of Judge as always, if Prejudicial in the particular case - Underlying rationales for Rules of Evidence Fairness, search for truth

7) Spousal Exception- CL Rule: Spouse is incompetent to testify against spouse where one spouse, except where one

spouse is alleged victim (status: at time of trial) Rationale:

Promote conjugal confidence Protect marital harmony Prevent indignity

o HEARSAY TEST: Hearsay evidence may be admitted under principled approach (reliability and necessity) AND if admission would not undermine the Spousal Incompetency rule or its rationales

o CEA s. 4.1 1) No spouse competent witness against other spouse 3) No spouse compellable to disclose communications made during marriage

(Hearsay) 4) UNLESS – child victim

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8) Business Records and Statements in the Course of Business- Documents inherently Hearsay (created OC)- Reliability – standardised procedures - 3 Different avenues for getting documents in

1) Statutory Exception: CEA s.30- TEST:

o Admitted for content where record is made in usual and ordinary course of business Does not include: records made in course of investigation or inquiry or legal advice

o Can use it for Truth AND to draw inferences from things Missing 2) Common Law Exception

- TEST:o 7 Elements, ALL must be met:

Original entry Made contemporaneously In the routine Of business By recorder with personal knowledge of thing as a result of having done or

observed or formulated it Who had duty to make record (reliability….fear censor/dismissal if mistake) Who had no motive to misrepresent

3) Principled Approach- TEST:

o Necessityo Reliability

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PRINCIPLED APPROACH to further HEARSAY Exceptions

- Presumption: INADMISSIBLE- Exception: BASIC TEST:

o 1) Necessity;o 2) Reliability; ANDo 3) PV v. PE

- Onus: On party seeking to gain the admission of the evidence o SofP: BOP, establish as a whole? All elements?

1) NECESSITY- Necessary to discover truth, to enable all relevant and reliable information to be placed before the

court - Presumption: INADMISSIBLE- Onus: Crown to prove Necessity

o BOP - Witness’ in-court testimony must be unavailable, usually because:

1) Recanting Witness (all KGB) 2) Witness unavailable (ex. dead, no KGB)

o TEST: Reasonable efforts to obtain direct evidence of a Witness More than adverse, fearful or disinclined to testify

Unless vulnerable to the point of real possibility of psychological trauma Cannot assume they will never testify anyways, must really try (kingpin) ***If witness radically changes testimony or rejects prior statement at trial, may be

enough for necessity to bring in PIS in as Hearsay***

2) RELIABILITY- Usually the heart of the application…- Presumption: INADMISSIBLE- Onus: Crown to prove Reliability

o BOP - Indicia of reliability in the context (ex. if PIS – comparative reliability b/w the two statements) - TEST:

o 1) (Circumstances) – KGB Analysis: Circumstances which are reasonably analogous to the circumstances of In-Court Statements (cumulative analysis)

1- Oath Reminder of Seriousness, consequences of lying, perjury Continuum: under oath with clear consequences of lying promise to tell

truth words pointing to seriousness of statement or ending up in court anti-oath, “off the record”, just b/w us fear of retaliation

2 – Physical Presence To assess tone/demeanour, body language – assess Credibility Continuum: full statement on video audio signed statement written

by person police notes/testimony re: statement 3 – Contemporaneous Cross Examination

***Key to full answer and defence, very important, most serious of the 3 Hard to substitute: PIS witness can be called? maybe cross during

preliminary inquiry?

IF THIS IS MET, ENOUGH IF NOT, MOVE TO SECOND ANALYSIS

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o 2) (Content) – Inherent Trustworthiness - Khan/Smith : Even if KGB circumstances not met, does the content carry such strong indications of truth, that it meets threshold reliability and can go to the Jury (ex. if witness is DEAD!)

Consider: Motive to lie Proximity of time to statement Form of statement Any Corroborating Evidence?

Argue that Cross would not have really done anything, not fruitful (or vice versa)- Statements Corroborated by (or conflicts with) real evidence – indicia of reliability…

FOCUS

If trying to get in – principles:o Possible examples from caselaw

If trying to exclude – principles: o Possible examples from caselaw

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ADMISSIONS and CONFESSIONSFormal/Judicial Admissions- Require specific client instructionsInformal/Evidentiary Admissions (OC)- Presumption: ADMISSIBLE

o Even w/o clearing Hearsay analysis, b/c ability of party to deal directly with the evidence (cannot argue KGB factors re: themselves) - Accused can cross the witness based on their knowledge of the circumstances

o Juries traditionally but incredible Weight on them

CONFESSIONS- A type of Admission – complete picture Crown cannot lead partial confession entire statement - Presumption: ADMISSIBLE

o High probative value, something Accused is alleged to have said about themselveso Weight: issues of reliability, credibility go to weight (not Admissibility) o Dealt with in limiting instructions

- Exception to general Admissibility: o Partial Overhear: only part of the sentence/phrase comes in PE is too great here, so

goes to admissibility…too uncertain, context is important Admissions of Co-Accused- Presumption: INADMISSIBLE

o RULE: Confessions of an Accused are not admissible against Co-Accuseds- Inherent reliability concerns…blame shifting- Solutions: - Split trial ($$); Editing (must not affect tenor or relevant statement, free from

unnecessary prejudice but remaining portions must retain their proper meaning); Instructions to only use for Accused (dangerous)

VOLUNTARINESS- CL: no custody/arrest requirement (power imbalance b/w state and individual)

o **Onus: Crown show that statement to person of authority was BARD voluntary**o Different than Charter breach – ONUS is on Accused to establish BOP)

- BALANCING Interests: 1) integrity of justice system; 2) need to control crime- TEST:

o 1) Confession made to Person in Authority? Someone who, in the Accused position, can influence the investigation or

prosecution (an agent of police or aligned with state authorities Objective-Subjective standard (reasonably, believed)

Person of Authority: Undercover Cop? Not if Accused believed was a gang member (even if ‘access to dirty cops’, not enough)

o 2) Was there, on a Cumulative Analysis: A- Threat: Threatening violence or danger (rare, but compelling) B – Inducement (Most common)

Proper – moral inducements (appealing to conscience, guilty feelings, feel better)

Improper – legal inducements (conviction/sentencing) C – Oppression (often not enough alone, but used in combination)

Physical (keeping awake, isolation, denial of food) Trickery (if a big/key thing like forensic results) Right to Silence (back and forth)

o 3) Did that lead to the Confession? On BOP Causal relationship does not need to be precise (not but for) but clear influence

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EXCLUSION of EVIDENCE under the CHARTER

s.24(2) ANALYSIS- Exclusion of evidence obtained via a Charter violation

o ***Balance importance of information (search for the truth) with severity of Charter breach (integrity of judicial system)***

- Mechanism for dealing with substantive Charter breaches:o s.8 Search and Seizure (requires reasonable and probable grounds that person has

committed an offence and evidence likely found in that place) Zone of Privacyo s.10(a) must give arrestee reason for detention o s.10(b) basic duty to give arrestee meaningful opportunity to contact counsel

- Determine:o Whether evidence was obtained through Charter breacho S.24(2) analysis: judge discretion would bring admin of justice into disrepute

- s.24(2) TEST:o 1) Will admission affect Fairness of Immediate Trial?

Conscriptive: evidence did not exist but for the breach Presumption: INADMISSIBLE

o Reliability problemso Right not to incriminate

Non-conscriptive: evidence exists independently from the breach Presumption: ADMISSIBLE, depends on circumstances, BALANCE

o 2) Seriousness of the Breach (**critical factor**) A - Was breach made in Good Faith

Did Police subjectively or objectively think they were breaching Charger? Technical breach less serious than substantive breach

B – How invasive was the breach On a continuum – just shy of Reasonable and Probable grounds? Aggression? Manner of Conduct

o 3) Effect on Administration of Justice A – judicial control of investigatory procedures

Not a police control provision, but can be considered B – evidence essential to Crown’s case

More essential – breach is less serious C – seriousness of offence

More serious charge – less serious breach D – circumstances of urgency

Urgency of situation – less serious

Derivative Evidence- Presumption: INADMISSIBLE - TEST:

o 1) Accused must show link: logical proximate relationship b/w Derivative and Original Evidence

o 2) Onus: on Crown, that Derivative evidence would have otherwise been found BOP

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PRIVILEGE

Privilege against Self-Incrimination Accused RIGHT to SILENCE o s.7: in state custody, not obliged to talk to police

- Onus: on Accused to establish Charter breach BOP

o ***Different than CL Voluntariness: **Onus: Crown show that statement to person of authority was BARD voluntary**

- So, now covered by Voluntariness (better for Accused, Seaboyer)

- Right to remain silent – not necessarily right to not be spoken to - Court notes importance of police interrogations and approves meaningful ones, will allow a degree

of back-and-forth but at some point will frustrate Rule of Voluntariness- TEST:

o Threshold of Refusal – determined on modified objective standard (objective person in the position of the Accused) whether Accused exercised free will in making statement

Effect on the Accused…breaking down, losing free will, - CL: if you do speak:

o Entitled to stop at any timeo No waiver of right to silence o Cannot draw an adverse Post-offence inference from stopping

Protection of Witness (against self-incrimination)o s.11(c) charged with an offence, right not to be a witness in proceedings against themo s.13 W who testifies has right not to have any incriminating evidence given used against

them in any other proceedings (except for perjury)- So, if witnesses testifies, protected from:

o 1) Direct use of statemento 2) Indirect / Derivative use of statement (ie. Police must prove BOP that evidence was

otherwise discoverable w/o testimony)- In rare cases, previous testimony can be used fo credibility but only where NO risk of

prejudice - And cannot cross examine W to determine if they are aware of s.13 rights- Statements that are statutorily compelled (like terrorist investigative hearings) cannot be used to

incriminate the testator- RULES:

o W who is later Accused: testimony from 1st trial cannot be brought ino A who testifies at 1st, but NOT retrial: testimony from 1st trial cannot be brought ino A who testifies at both: s.13 does not apply. If A testifies at 2nd, C can bring in testimony

from 1st for substantive use and can cross-examine

PRIVILEGE Attaching to CONFIDENTIAL RELATIONSHIPS- Presumption: disclose info in context of privileged relationship – INADMISSIBLE - Limits the search for the truth in favour of other values

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Solicitor-Client Privilege- Fundamental principle of legal system- Covers communications for the purpose of getting legal advice, and memos, etc. - Exceptions:

o 1) Innocence at Stake: at some point privilege must give way Very high threshold:

1 – crucial to Def case (not just helpful) 2 – Def unable to RARD w/o it **need to present some clear evidence that it is available

If does meet: Judge discretion on what is disclosed – narrowly, only what is absolutely necessary – and limiting instructions

And, person whose privilege is breached gets full immunity – direct, indirect, derivative - (but does not amount to transactional immunity – independent evidence can be found, not derivative, and then can be charged)

o 2) Future Crime: communications regarding crime are going to commito 3) Waiver of privilege: take a position where you give up secrecy

Ex. Police-DOJ relying on content of legal advice as basis of good faith, important part of their argument (and A entitled to full answer and defence…)

Abuse of Process- Very high standard…DOJ case did not meet it, not grave enough to throw out whole case

(fairness, reputation of justice system) - Exceptional to exclude under s.7 Charter breach:

o What would meet it: Police make up ID evidence, so offensive to fundamental justiceo If cops break the law in aggravating circumstances

Police Informer- CL Rule: do not disclose this for strong policy reasons:

o 1) protect informer from possible harmo 2) incentive for ppl to provide this infoo 3) other ongoing investigations

- Exceptions:o 1) Innocence at stake

Onus on D to prove that knowing informer’s ID is critical to A’s acquittal High standard – usually only get investigation going…

o 2) Waiver If informer takes the stand as a Witness obviously Can only be waived by Informer themselves, not Police Informer goes into field as an agent of the police

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