Sources of Canadian law of evidence are (in “trumping” order):
Constitution, such as s.24(2) of Charter - evidentiary remedy arising when Charter right has been violated (“would” in s.24 means “could”)
Statutory (more important in UK, and codified in US as the Federal Rules of Evidence FRE). For example:
Canada Evidence Act (CEA) and BC Evidence Act (BCEA) – these statutes are not evidence codes, rather they are an overlay on the common law
Make provincial laws of evidence applicable in federal proceedings as long as they don’t conflict with federal law.
Criminal Code has specific provisions regarding evidence
Almost all statutes dealing with dispute resolution have evidence provisions (such as the Young Offenders Act)
Common law (law of evidence primarily judge-made here in Canada)
Majority of law of evidence is derived from the common law!
Salituro – changes that are made to the common law of evidence should be incremental, rather than sudden, sweeping changes.
Legal Ethics
Lawyers owe a duty to: their client, themselves, the court, the public, and their opponent.
R v. Lawes
CL rule: trial judges are entitled to express views/opinions on the evidence “as strongly as the circumstances permit” provided they do not have the effect of usurping the role of the jury by taking a contested issue away from them or subverting their independence
CL recognizes that comments are both necessary and desirable
R v. Stichcombe – duty to disclose evidence in criminal trials is not reciprocal – only the Crown has this duty to the accused. Cowles v. Balac – Rules of Professional Conduct (Law Society)
4.03(2) - A lawyer shall not approach or deal with a person who is represented by another lawyer, save through or with the consent of that party’s lawyer.
Civil vs. Criminal Proceedings
Generally rules of evidence are the same in civil and criminal proceedings (such as hearsay, opinion, solicitor-client privilege), although:
Some rules are just for one type, but clear from their wording (e.g. involuntary statements by the accused only for criminal, rules of capacity for writing a will only for civil)
Although same rules, they may be applied differently in terms of weights/balancing (only money is at stake in civil cases, but liberty in criminal so more concern about potential unfairness in the probative v. prejudice balancing). Similarly between evidence presented by Crown (bar perhaps higher so more likely inadmissible) v. evidence presented by accused (bar perhaps lower so more likely admissible).
Rules of evidence in administrative tribunals generally very different – only considering courts here (in administrative tribunals the statute usually says rules of evidence do not apply but rather the tribunal may consider anything it thinks reliable, relevant and helpful, although statute probably will say that certain privileges remain such as client-solicitor)
Pre-trial preparation including preparation of witnesses e.g. show them documents, practice direct and cross examination. Also consider:
Legal constraints e.g. substantive law restrictions such as what questions can be asked of witnesses
Ethical constraints of Law Society, client-solicitor privilege, etc.
Will include pre-trial discovery (civil – broad test being potentially relevant, criminal discovery is governed by Stinchcombe, R. v. (1991) (S.C.C.))
Voir dire:
Before the trial starts, certain evidentiary issues are determined by the trial judge in a voir dire (mini trial). Jury may be excluded or present.
Jury selection – local courtroom procedures
Plaintiff / Crown opening statement to jury of their “theory” outlining their argument – must be careful not to refer to any evidence that might be ruled inadmissible (otherwise opposing side can call for a mistrial). Generally, opening statements should be factual and not argumentative, although varies from jurisdiction to jurisdiction how this is measured.
Plaintiff / Crown presents all their evidence i.e. has “carriage” of the trial (i.e. no sandbagging in Canada – cannot keep some key evidence and present it later to catch opponents off-guard). For each witness called (that gets over the hurdle of competency):
Both the “stage” and the format of questioning are called direct examination or examination in chief.
Must ask all questions of your witness at this time (again, no sandbagging)
Cross-examination by opposing party (if they have questions of the witness)
Each witness who takes the stand puts his or her credibility into issue,
Cross examination designed to impeach (i.e. call into question witness’ credibility of) a witness may focus on a number of areas:
Defendant/accused may motion judge to dismiss case due to lack of Crown / plaintiff evidence, known as “no evidence motion” or “motion for a directed verdict of acquittal”. Judge may grant directed verdict on all, part, or none of the case.
No evidence motion / non suit application / directed acquittal: defence gets a chance to stand up and say that there’s not evidence in this trial, upon which a jury, even if they believed it all, could convict. Judge will either enter acquittal or for the defence.
Insufficient evidence motion (really in civil cases): judge, on balance we don’t think they’ve met their burden. The evidence is insufficient to win the case. Requires the judge to weigh the evidence, it means that if you lose, you lose the case, the case is over.
Defendant / accused now has carriage of the trial, and if it chooses to call evidence:
Opening statement (unless earlier)
Puts forward it’s entire case. For each witness, same as above (examination in chief, cross examine, reexamine, and possibly re-cross examination, etc.)
Crown/ Plaintiff can reopen: Very rare, only if some new issue arises and the crown must respond. Then defence will get sir-rebuttal
Plaintiff / Crown reply i.e. rebuttal evidence for addressing matters that came up in defense case that could not have been reasonably anticipated (e.g. if accused raised defense of necessity Crown can now rebut that) or if things are now admissible that were not before (e.g. if accused lead evidence of their character then their character is now a fact in issue and Crown can lead evidence to rebut.
Closing addresses are made (i.e. counsel tells jury their “theory” and suggests how to use/evaluate the evidence and what inferences to make).
Closing statements arise only if there’s a jury
Civil: plaintiff always gives first then defence will respond.
Criminal: s.651(3) CC says Crown goes last. If you don’t call any evidence and don’t present a case, you do get to go last.
