Law of Evidence: provides lawyers with rules and principles that govern the admissibility of material offered by them in an effort to prove or disprove the existence of material fact.
Rules and principles governing when information used to make propositions will not be admitted into the courtroom – inquisitive model
Can think of 3 types of law:
Substantive law i.e. legal obligations enforceable at law
Procedural / adjectival law i.e. modifies / how to go about enforcing substantive law i.e. how to prepare your case and get it into court
Law of Evidence i.e. what you can do when in court to prove your case i.e. what you can put before the trier of fact (some think of this as part of procedural law).
The law of admissibility forms the biggest chunk of the law of evidence. Counsel should not introduce evidence during trial unless sure it’s admissible, otherwise should forewarn judge and jury will never see it if inadmissible.
Separation between law and fact:
Trier of law (the judge) decides questions of law (after hearing submissions from counsel on what they think the law is), including statutes, case law, constitution, questions of admissibility of evidence, and basically anything palatable to the judge (e.g. judge may consider writings of sociologists, historians, etc. in determining the law, such as the meaning of “equality”)
Trier of fact (the jury, or if none the judge which is most common) decides what weight to put on evidence according to how persuasive they thought it was
Facts + Law = Result (i.e. without evidence to prove the facts, even the best law will not help)
Your “theory” = what you submit happened
Purposes of Evidence Law
Important to understand the purposes of the law of evidence so as to be able to attack/defend a particular rule, and because the S.C.C. takes a purposive approach to law in general.
Keep unreliable evidence away from trier of fact, such as certain hearsay evidence, opinion evidence (easy to have, hard to test), character evidence, and involuntary statements by an accused (such as confessions). This is motivated by a number of purposes:
Desire to maximize probability of determining the truth i.e. jury more likely to find the truth with reliable evidence
Desire to ensure fairness to the parties, so in our adversarial system want to enable each party to put forward all relevant evidence they can muster but not fair if unreliable, and neither party has to put forward evidence that would help the other side (subject to rules such as discovery, production notices, etc).
Can balance competing claims to fairness by comparing the probative value (i.e. what will the information prove) v. prejudice caused
Desire to maintain public respect for the administration of justice, which can be furthered by disallowing unreliable evidence.
Even if relevant and reliable might still exclude for social purposes that trump determination of the truth in this particular case.
Organization of the Legal Profession (Guest Speaker)
Lawyers Interest Groups – CBA, Trial Layers Association of BC, etc. – promote primarily the interests of lawyers and in some cases the public
Pubic Interest Regulators – Law Society, Federation of Law Societies of Canada – s.3 mandated to uphold and protect the public interest in the administration of justice
31 benchers, 25 are lawyers (elected by the lawyers of that region); 6 non-lawyers appointed by the government as “watchdogs”
Independence of lawyers and judges – self-governing, uninfluenced/untainted by the objectives of a larger body (government, big business, etc.)
Solicitor/Client Privilege of communications for the purpose of seeking legal advice:
Most important privilege/fundamental principle; suggested that the adversary system could not function without this privilege (clients must trust in lawyer in order to establish full defence)
Must be protected unless absolutely necessary
Exceptions: if the communications are in furtherance of a crime (particularly one causing serious bodily harm or death) or fraud, “innocence at stake exception”, “public safety exception”
Duration: privilege lasts forever
Litigation brief privilege: protects the information collected/put together for a case – this privilege ends once the file is complete
The Adversarial System
Two particular factors influencing evidence law were the adversarial trial system and the historical tension between judge and jury
Adversarial trial system (generally English speaking world):
Each must prepare and represent their own interests in the case, with an impartial adjudicator sitting back and listening.
So assumes each party can gather all the necessary information i.e. assumes equal resources on both sides, which is course is not true. Many rules of evidence based on this – for example, you are given the chance to rebut medical evidence by bringing forward your own expert, but such experts can cost $500/hour preparation plus $5000/day in court. Thus huge disadvantage in the adversarial system if you do not have money.
Assumes that both parties are willing to “play the game.” For example, an accused may refuse to participate which will make questionable the fairness of the proceedings (if they refuse to talk to counsel for example) or they may disrupt the proceedings (in which case they can be removed from the court room and the trial can continue)
Contrast with inquisitorial system (Civilian, generally non-English speaking world):
The state allocates resources to find facts (e.g. investigating magistrates) in criminal and some civil cases), based on the idea that the parties do not have equal access to resources.
There is a tendency to assume that the inquisitorial system is bad and that the adversarial system is good; however, the resources problem only really arises in the adversarial system.
If one party refuses to participate, an investigating magistrate (for example) can continue to search out the facts on their behalf.
Criticisms of the Adversarial System
Adversarial system is often criticized for not being sufficiently driven towards the finding of truth. In every other walk of life, we adopt some form of the inquisitorial, not adversarial system (e.g. science, police investigation, etc.)
While truth is a supremely important objective of a trial, it is not the only one.
Notion of the judge as a neutral referee:
Not clear that this is the best way to get to the truth
