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Common Law:
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Particular facts and situations drive need for rules of evidence
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Accepted that police drive may decisions
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Achieve dual ends of truth and fairness
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Statutes
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Not a comprehensive code: Canada Evidence Act, BC Evidence Act, Criminal Code
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Rule particular to specific proceedings
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Constitution
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Charter or Constitution will exclude evidence that was gather on basis of a violation of a right
Burden and Quantum of Proof
Burden and quantum/standard of proof provide trier of fact with a way of resolving close cases
Persuasive burden
Burden on the party who, in law, is required to establish the relevant facts to succeed
If case is too close to call, party that bears persuasive burden loses; decide “too close” by standard/quantum: BOP/BRD
Evidentiary burden:
Burden of producing sufficient evidence to justify a finding in favour of the party who bears it
On party who must raise an issue to adduce or point to relevant evidence capable of supporting a decision in their favour
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There must be some evidence on every element of the charge to meet the evidentiary burden; otherwise case ends
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Motion for directed verdict of acquittal: asserted by defence at end of crown’s case
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TEST: is it possible that a jury, acting judicially, would convict based upon the evidence
Quantum/Standard of Proof: DEGREE to which the party must convince the trier of fact in order to discharge the burden
Possible= anything that could be Probable= air of reality More likely than not= civil BRD= criminal Absolute Certainty= unachievable in court
Civil Proceedings: -
Plaintiff bears burden
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Quantum/standard: proof on a Balance (or preponderance) of Probabilities i.e. 50% + 1
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Contest of credibility sufficient to meet burden in Civil, not allowed in Criminal cases
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No Evidence: BCSC Civil Rule 12-5 aka “Motion for Non-Suit”
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P has not led evidence capable of supporting one or more of the elements of the cause of action (is it a case at all); you want the case to stop before it even goes to jury, not meeting pleadings for cause of action; judge will still make ruling of costs against you; failed to meet evidentiary burden
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Judge must determine it, assuming evidence true and making any reasonable inferences from evidence led
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(4) Application: At close of P’s case, D may apply for action dismissed, no evidence to support P’s case
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(5) D is entitled to apply under (4) without being called on to elect whether or not to call evidence
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Insufficient Evidence: BCSC Civil Rule 12-5
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(6) There is evidence but it’s so weak you’re not calling evidence against
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(7) Defendant must elect not to call evidence [unlike No Evidence motion]
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Summary Judgment: BCSC Civil Rule 9-6
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Really lousy case, not No or Insufficient, but can respond with Affidavit to get rid of parts so court can narrow the focus of the case; but no bad faith or delay motives
Criminal Proceedings: -
Crown bears burden
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Quantum/standard: proof Beyond Reasonable Doubt
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Golden Thread: 1) Presumption of innocence and 2) Requirement of Proof BRD Woolmington v. DPP
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Charter s.11: Presumption of Innocence, guilt according to law, fair and public hearing, by independent and impartial tribunal
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Purpose of presumption: fundamental liberty and human dignity protected; grave social and personal consequences; presumption crucial, not overturned until Crown proves BRD R v. Oakes
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Jury must be satisfied of something more than probable guilt, but need not be absolutely sure of guilt
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Definition for BRD Lifchus:
Reasonable Doubt IS
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Reasonable Doubt IS NOT
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RD inextricably intertwined with presumption of innocence
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An ordinary expression with no special meaning
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Burden lies with prosecution and never shifts to accused
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Standard for decisions we make in our everyday lives
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Not based on sympathy or prejudice
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Moral certainty
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Based on reason and common sense
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Serious, substantial, or haunting doubt
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Logically connected to evidence or absence
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Not a magic incantation to be repeated word for word
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More than just “probably guilty”
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Not absolute certainty or proof beyond any doubt
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Not frivolous or imaginary doubt
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Model Charge to Jury = Charge acceptable if in substantial compliance Starr
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Presumption of Innocence remains until guilt proven BRD
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Definition of reasonable doubt is NOT, and IS
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BOP and probably guilty is insufficient
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Absolute certainty not required
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Use “sure” only if above has also been explained
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Verdict ought not be disturbed if jury understood the charge
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Jury must consider evidence as a whole, not piecemeal, and determine whether accused is guilty BRD
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Beyond that, it is for jury to determine how to proceed
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“To inject into the process artificial legal rule with respect to the natural human activity of deliberation an decision would tend to detract from the value of the jury system”
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Charge if Accused Testifies: R v. W(D)
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If you believe the evidence of the accused, obviously you must acquit
[Modification: If after careful consideration of all evidence, you are unable to decide whom to believe JHS]
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If you do not believe the testimony of accused but you are left in RD by it, you must acquit
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Even if you are not left in doubt by evidence of accused, you must ask yourself whether on basis of the evidence you do accept, you are convinced BRD by that evidence of the guilt of the accused
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Charge will likely survive appeal scrutiny if clear that: i. jury not simply to choose between two versions of events; ii. Jury must consider all evidence when determining RD; iii. Any RD must be resolved in favour of accused
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Is credibility central to the case? Probably follow WD
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Credibility issues are matters of weight for jury, not for judge; judge must take the case at its highest
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“No Evidence”, even if believed, jury instructed, acting reasonably, that could support conviction
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Question on the Point of law, no weighing
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Note: One can lead case if it fails
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Prima Facie standard (like committal after preliminary inquiry)
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Motion for directed verdict comes after Crown case and before Defence case
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Putting a Defence in Issue:
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Burden on Defence to show evidence with air of reality to leading a Criminal Defence
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Air of Reality
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There is some basis upon which the defence can rest in evidence Pappajohn
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Judge must put to jury all defences that arise on the facts supported by any evidence (from Crown or D) having air of reality, whether or not specifically raised by D, and keep from the jury defences lacking any evidentiary foundation Cinous
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Could a properly instructed jury acting reasonably acquit accused on basis of the defence?
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Judge does not determine credibility of the witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences
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The question is whether evidence discloses a real purpose for jury to decide, not how the jury should ultimately decide it; if reasonable jury could acquit then it has to go to them
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If defence has air of reality: burden on Crown to disprove it to secure conviction, exceptions:
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Mental disorder – D must establish on BOP (it’s presumed that you are sane)
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Charter violation – D must
i. Prove on BOP and
ii. Under s.24(2) admitting evidence would bring admin of justice into disrepute Grant
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Strike legislation – onus is on person/D who wants to set it aside ex. Criminal Code
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Automatism and Involuntariness – D must be establish on BOP and back up by expert
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Defence of alibi?
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No Speculative Defences to Jury: speculative defences that are unfounded should not be presented to the jury; it would be wrong, confusing, and lengthen trials R v. Osolin
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