Evidence: sources, objectives and trial context

1. 
   Law of Evidence:
   
   1. 
      Three types of rules:
      
      1. 
         Rules of Process
         
      2. 
         Rules of Admissibility
         
      3. 
         Rules of Reasoning
         
   2. 
      Applies anytime facts in disputes: trial, prelim trial, sentencing hearing, Charter app, etc.
      
2. 
   Sources of Law of Evidence
   
   1. 
      Common Law (most of evidence law lies here)
      
   2. 
      Statutes (not code, but supplements common law)
      
      1. 
         CEA – governs CC and Fed jurisdiction – incorporates BCEA provisions through s.40
         
      2. 
         BCEA – governs BC– applies
         
   3. 
      Aboriginal Law (oral histories admissible in ab law matters)
      
   4. 
      Constitution
      
3. 
   Objectives of Evidence Law
   
   1. 
      Truth
      
   2. 
      Fairness
      
   3. 
      Social & structural values
      

4. 
   Basic Principle: All evidence that is relevant to a fact in issue is admissible, unless there is a legal reason for excluding it. (R v. Seaboyer, R v. Watson)
   

5. 
   Relevance and Materiality (R v. Collins)
   

1. 
   Factual/Logical Relevance: Evidence is relevant, if as a matter of logic and experience, it tends to prove the proposition for which it is advanced
   
2. 
   Legal Relevance (Materiality): Evidence is material if it is directed at a fact in issue in the case
   
   1. 
      depends on nature of the action:
      

civil- look at pleadings

6. 
   Grounds for Excluding Relevant Evidence
   
   1. 
      Potential to distort the fact-finding process (unreliable or prejudicial)
      
   2. 
      Would unnecessarily prolong trial or confuse issues (eg. Collateral facts)
      
   3. 
      Undermine an important value other than fact-finding (eg. Fairness, privilege, Charter rights)
      
   4. 
      Probative value of the evidence outweighed by its prejudicial effect (eg. personal facts invoke sympathies that lead to improper reasoning)
      
7. 
   Process
   
   1. 
      Is the evidence logically relevant?
      
   2. 
      Is the evidence legally relevant (material)?
      
   3. 
      Is there a legal reason to exclude the evidence?
      
   4. 
      Does the prejudicial effect of the evidence outweigh its probative value?
      
8. 
   Admissibility vs. Weight
   
   1. 
      Admissibility – Whether a piece of evidence is included. Q of law decided by the judge.
      
   2. 
      Weight – The significance attached to admitted evidence. Q for trier of facts.
      

9. 
   Trends in Evidence Law
   
   1. 
      Purposive approach – move from pigeon holes to fundamental principles (eg. hearsay, corroboration & unsavoury witnesses, move from Collins to Grant test)
      
   2. 
      Development of overarching exclusionary discretion (PV v. PE, similar facts rule)
      
   3. 
      Increased admissibility – modern jury viewed as intelligent and trustworthy – comes along w giving better jury instructions
      
      1. 
         Eg. more witnesses deemed competent than in past (spouses, convicts, children)
         
      2. 
         Flexible approach to best evidence rule
         
      3. 
         Flexibility as to meaning of “community” in general rep evidence
         

1. 
   Evidence Put Before Trier of Fact Through:
   
   1. 
      Witnesses
      
   2. 
      Exhibits
      
      1. 
         Real evidence (eg. crime site, body or item of clothing “in situ”, videos, docs)
         
      2. 
         Demonstrative evidence – helps ToF to better understand what happened (eg. sketches of scene, photos of scene after the fact, objects not “in situ,” re-enactments)
         
   3. 
      Admissions – made by parties about certain facts
      
   4. 
      Judicial Notice – court may take JN of notorious facts
      
2. 
   Elements of Trial
   
   1. 
      Crown of Plaintiff’s Case in Chief
      
      1. 
         Opening statement – roadmap for evidence and case
         
      2. 
         Witnesses
         

• 
  Direct examination – no leading questions; Qs must be relevant
  
• 
  Cross examination – Qs may be leading or not; clarifying matters; undermining credibility “the best engine for the discovery of truth”
  
• 
  Re-direct – Crown/P may ask further Qs after cross; chance to address matters that arose in cross which could not be reasonably expected
  

1. 
   Crown/P case closes
   
1. 
   Motions for a Directed Verdict –D asks court to rule that Crown/P has not proven case
   

1. 
   Defence’s Case in Chief
   
   1. 
      Same process as Crown/P
      
2. 
   Crown/Plaintiff can reopen - discretionary procedure only if something has come up that needs to be addressed and that P couldn’t have anticipated and needs a chance to respond  D then gets another chance to respond to that
   
3. 
   Closing Statements
   
   1. 
      Criminal Trial: If D called evidence, D goes first. Otherwise Crown goes first.
      
   2. 
      Civil Trial: P closes first, then D.
      
   3. 
      Closings only done for a jury in Canada
      
4. 
   Judge’s Instructions to Jury
   
5. 
   Jury deliberations
   
6. 
   Verdict
   
7. 
   Sentencing
   
1. 
   Verdict
   

1. 
   Burden and Standard of Proof
   
   1. 
      Burden –Who has the obligation to satisfy the ToF on the factual matter at issue?
      
   2. 
      Standard – degree to which party must convince ToF in order to discharge the burden
      

2. 
   Evidentiary and Persuasive Burdens
   
   1. 
      The persuasive burden of proof is on the party who, in law, is required to establish the relevant facts to proceed  final test of evidence
      
      1. 
         Civil - must establish cause of action on balance of probabilities
         
      2. 
         Crim - must establish guilt beyond reasonable doubt
         
   2. 
      The evidentiary burden is on the party whose duty it is to raise the issue.
      
      1. 
         A party under an evidentiary burden must adduce or point to some relevant evidence capable of supporting a decision in the party’s favour on an issue before that issue can go to the ToF  threshold test of evidence
         
      2. 
         This burden is not necessarily on the same party as the persuasive burden.
         

3. 
   Proof Beyond a Reasonable Doubt
   
   1. 
      Golden thread in English criminal law is presumption of innocence and requirement of proof BRD – high standard to avoid wrongful conviction
      
   2. 
      Charter s.11(d): Any person charged with an offence has the right...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
      
   3. 
      BRD does not require absolute certainty. Must be a real doubt based on evidence and reason, not an imaginary doubt (R v. Lifchus)
      
4. 
   Proof BRD and Jury Charges
   
   1. 
      The onus upon the Crown to prove the guilt of the accused BRD is inextricably linked to the presumption of innocence. If the jury charge is lacking in this respect, the trial must be lacking in fairness. Must have proper instruction of the jury for the trial to be fair. (Lifchus)
      
   2. 
      Judge should tell jury (R v. Lifchus):
      

• 
  BRD intertwined with the presumption of innocence
  
• 
  burden rests on the prosecution throughout the trial and never shifts to the accused
  
• 
  a reasonable doubt is not a doubt based on sympathy or prejudice
  
• 
  rather, it is based upon reason and common sense
  
• 
  it is logically connected to the evidence or absence of evidence
  
• 
  not a frivolous or imaginary doubt
  
• 
  not absolute certainty, but more than probably guilty
  

1. 
   Judge should not tell jury (R v. Lifchus):
   

• 
  “reasonable doubt” an ordinary expression with no special meaning in crim context
  
• 
  to apply same standard they apply to important decisions in their own lives
  
• 
  equate proof BRD to “a moral certainty”
  
• 
  qualify the word “doubt” with adjectives other than “reasonable”, such as “serious”, “substantial”, or “haunting” which may mislead the jury
  
• 
  they may convict if they are “sure” that accused is guilty, before providing them with a proper definition as to the meaning of the words BRD
  
• 
  reasonable doubt is not a magical incantation
  

4. 
   Judge must explain that BRD is something above BOP (R v. Starr)
   
5. 
   Charge must be in “substantial compliance” with Lifchus such that when read as a whole clear that jury could not have been under any misapprehension as to the correct burden and standard of proof (R v. Starr)
   

6. 
   Jury charge must make clear that you cannot apply BRD standard in piecemeal fashion (R v. Morin)
   

5. 
   Jury Charges where accused testified (W.(D.) charges) (R v. W.(D.))
   
   1. 
      Judge must tell jury:
      
      1. 
         First, if you believe testimony of accused, you must aquit
         
      2. 
         Second, if you do not believe testimony of accused but are left w reasonable doubt by it, you must acquit
         
      3. 
         Third, even if you are not left in doubt by evidence of Acc, you must ask yourself whether, on the basis of the evidence you do accept, you are satisfied beyond a reasonable doubt of the guilt of the Acc.
         
   2. 
      Charge will likely survive appeal scrutiny if made clear that:
      
      1. 
         Jury not simply to choose btw 2 versions of events
         
      2. 
         Jury must consider all evidence when determining reasonable doubt
         
      3. 
         Any reasonable doubt must be resolved in favour of accused
         
6. 
   Motion for Directed Verdict
   
   1. 
      Test for directed verdict of acquittal: Is there some evidence of each of the elements of the crime upon which a properly instructed jury could convict?
      
      1. 
         Evidentiary burden
         
      2. 
         Limited weighing of evidence now allowed by judge
         
      3. 
         If you lose this motion, the case is over. D is essentially saying they will not call evidence, and judge skips to end of case.
         
7. 
   Putting a Defence in issue
   
   1. 
      “air of reality” test (R v. Cinous): could properly instructed jury acting reasonably acquit the accused on basis of the defence?
      
      1. 
         Judge to consider totality of evidence
         
      2. 
         Not aimed at deciding substantive merits of case – no determinations re credibility of witnesses, weighing of evidence, finding facts or making inferences
         
      3. 
         A question of law
         
   2. 
      Judge must instruct jury of any defence that has air of reality even if D doesn`t raise it (eg. D claiming innocence for 1^st degree murder may not want to raise 2^nd degree, but would want judge to raise it to jury)
      
   3. 
      Defences to go to jury discussed at pre-charge conference before closing – btw judge and counsel in open court, but w/o jury
      
   4. 
      Purpose of test to screen out frivolous defences
      

8. 
   Proof on a balance of probabilities
   
   1. 
      The plaintiff typically bears both the evidentiary and the persuasive burden on all elements of the action.
      
   2. 
      The plaintiff has to lead evidence capable of supporting the facts that the plaintiff alleges, and the plaintiff must then satisfy the trier of fact on a BOP that the facts alleged are true.
      
9. 
   No evidence application (SCCR R 12-5(4) and (5))
   
   1. 
      R 12-5(4)– D may apply to have action dismissed on ground that P P has not met evidentiary burden
      
   2. 
      i. Question on the point of law – i.e. no weighing, all is believed.
      

10. 
    Insufficient evidence application (SCCR R 12-5(6) and (7))
    
    1. 
       R 12-5(6) - D may apply to have action dismissed on ground that P’s evidence insufficient to make the case.
       
    2. 
       D may only make application after deciding not to call evidence. Effectively skips to the end of the case  if moton denied, D loses.
       
11. 
    Summary Judgment (SCCR R 9-6)
    
    1. 
       Party makes application before trial asking court for summary judgment
       
12. 
    If satisfied there is no genuine issue for trial w respect to claim or defence, court may dismiss case or pronounce judgment accordingly
    

In Charter litigation, the applicant bears the burden of establishing, on a BOP, the facts relevant to a claim that a Charter right has been infringed (Oakes)

1. 
   Warrentless searches and “waived right” reverse BoP  R must show they didn’t
   
2. 
   s.1 shifts the burden to the Crown to prove it is a justified breach. This is a “rigorously” applied BOP. Court does not want to likely justify a breach of rights.
   
3. 
   s.24(2) – burden on applicant to establish breach and to establish that evidence should be excluded
   

1. 
   Steps for Assessing Relevance
   
   1. 
      What are issues at stake?
      
   2. 
      What fact is this evidence being offered to prove?
      
   3. 
      Does the evidence tend to prove or disprove this fact? Legal relevance
      
   4. 
      Is this fact at issue? Materiality
      
   5. 
      PV vs. PE? residual Discretion – NB higher standard for excluding Acc evidence
      
2. 
   Relevance Generally
   
   1. 
      Determined at outset of trial but depends on context of other evidence what is relevant in a trial is dynamic and ever-changing throughout process. Counsel may make submissions about relevancy.
      
   2. 
      No minimum threshold for relevance (R v. Watson) – no min PV required
      
   3. 
      R v.Watson: evidence that deceased always carried a handgun + trafficked marijuana deemed relevant to D’s defence of spontaneous gun battle
      
   4. 
      R v. Bell: evidence that accused a recreational drug trafficker does not tend to prove that acc would have better access to date rape drugs than other recreational drug users  not relevant
      
   5. 
      R v. D.(A.): fact that deceased willing to continue relationship w physically abusive X-bf does not tend to prove that she would be willing to commence initimate relations w man who sexually assaulted her best friend  not relevant, and if relevant PE outweighs PV
      
   6. 
      R v. Rallo: on charge of wife murder, evidence that acc husband was having an affair relevant to motive if affair not too remote in time.
      
3. 
   Circumstantial vs. Direct Evidence
   
   1. 
      Direct = evidence proves/disproves a fact w/o requiring an inference (e.g. I looked at the light and saw it was green)
      
      1. 
         Only one determination  credibility/reliability of witness
         
      2. 
         Usually eye-witness testimony
         
   2. 
      Circumstantial = evidence which, if believed, permits one to infer the truth of another fact (e.g., I saw cars moving through the intersection; this infers the light was green)
      
      1. 
         Two or more determinations  Do you believe and are you willing to infer…?
         
      2. 
         Assessment depends on credibility/reliability of witness and correctness and strength of inference
         
      3. 
         proving/disproving credibility, intent always done through circ evidence
         
4. 
   Residual Discretion: Probative Value vs. Potential for Prejudice (R v. Seaboyer)
   

1. 
   Probative value: usefulness in finding truth
   
2. 
   Prejudicial effects in order of importance:
   
   1. 
      arouse jury prejudice
      
   2. 
      create a distracting side issue
      
   3. 
      consume too much time
      
   4. 
      Unfairly suprise other party
      
3. 
   judge always has the ability to exclude evidence on this ground
   
   1. 
      unclear whether this is aspect of legal relevance or general exclusionary power (R v. Mohan)
      
4. 
   Crown/P evidence or D evidence in civil case: exclusion where PE outweighs PV (Sweitzer test adopted in Seaboyer)
   
   1. 
      Accused evidence: exclusion where PE substantially outweighs probative value
      
   2. 
      Rationale: presumption of innocence, right to full answer and defence etc.
      
   3. 
      NB courts particularly concerned about PE of acc character evidence
      
5. 
   R v. Hunter: PE found to outweigh PV of overheard, out-of-context statement made by acc to lawyer “I had a gun but did not point it”  statement deemed not relevant
   
6. 
   R v. Tuck: fact that deceased smuggled drugs into club in his underwear tends to prove that he smuggled knife into club – potential PE through propensity reasoning that deceased was a violent person can be addressed through jury charge
   
7. 
   R v. Abbey: acc membership in street gang tends to prove he had motive to kill deceased  relevant. PV outweighs PE of acc having bad character, both b/c judge can give instructions to jury to limit use of evidence, and b/c PE balanced btw acc and deceased (both in gangs). Fact that gang members have access to guns tends to prove acc had gun on day in Q, but PV is weak and is outweighed by PE.
   
8. 
   R v. Arcangoli (the class Marconi problem): evidence of third party S’s criminal record and involvement in previous stabbing tends to show S committed the stabbing rather than accused. No PE where character evidence pertains to 3^rd party, but such evidence will not be admitted unless relevant. Flight from scene may support inference of guilt, but need to be cautious with this inference; where flight equally consistent with guilt for two offences, cannot have PV for one of them. Jury must be charged accordingly.
   

4. 
   Assessing the Relevance and Probative Value of Circumstantial Evidence (see handout)
   
   1. 
      Evidence + Premise (generalization) inference = Conclusion
      
      1. 
         Articulate the generalization
         
      2. 
         Assess the strength of the generalization using “except when” analysis
         

1. 
   General Rule: parties must prove or disprove all facts in issue through the oral (viva voce) evidence of witnesses.
   
2. 
   Key Witness Questions:
   
   1. 
      Competent?
      
   2. 
      Compellable?
      
   3. 
      Oath?
      
   4. 
      Privilege?
      
   5. 
      Credible?
      
3. 
   Competence, Compellability, Privilege and Credibility
   

1. 
   Competence = is witness fit and qualified to testify?
   
   1. 
      General CL rule: everyone is competent to testify in any case.
      
2. 
   Compellability = can witness be forced to testify?
   
   1. 
      General rule: a competent witness is a compellable witness
      
3. 
   Privilege = protects communications made in course of certain relationships (see privilege)
   
   1. 
      General CL rule: any competent and compellable witness must answer any Qs put to them by court/counsel that are relevant and otherwise admissible
      
   2. 
      Exception: evidentiary privileges allow a competent and compellable witness not to answer certain Qs
      
   3. 
      Overlaps with compentence  courts often confuse these
      
4. 
   Credibility = reliability of witness’ testimony
   

5. 
   General
   
   1. 
      Historically, many witnesses deemed incompetent (eg. spouses, convicted felons) Now more witnesses deemed competent  can test reliability through cross-exam.
      
   2. 
      people convicted of crimes are now competent witnesses (CEA, s.3)
      
6. 
   Spouses of the Accused in Crim Context
   
   1. 
      At CL spouses always incompetent. Rationale: single legal person, maintain marital harmony, repugnance of state using spouses to prove guilt (Salituro)
      
   2. 
      Now, s.4 CEA governs:
      

1. 
   Spouse of accused is always competent witness for the defence (s.4(1))
   
2. 
   The wife or husband of the accused is generally NOT competent for the prosecution (R v. Hawkins), EXCEPT:
   
3. 
   Spouse of acc is competent and compellable for prosecution w respect to certain sexual offences (s.4(2))
   
4. 
   Spouse of acc is competent and compellable for prosecution w respect to certain violent offences against victim under 14 (s.4 (4))
   
5. 
   CL preserved through s.4(5)
   
1. 
   Salituro : Irreconcilably separated spouses are competent to testify for prosecution
   
   1. 
      incremental change in CL, promotes s.15 equality
      
2. 
   Spouses competent to testify for prosecution where acc has threatened the well being (person, liberty or health) of the spouse or their children. (Schell )
   
3. 
   No comment allowed on failure of spouse to testify by judge or prosecution (s.4(6))
   
4. 
   R v. Hawkins: during relationship off-period, gf of acc gives statements against acc to PO and at prelim. gf and acc marry before trial and gf recants earlier statements. Crown requests exception to competence rule for sham marriages. Court: if law changed, gets into motivations for marriage + may increase perjury wife not competent/compellable. Different from Salituro, where wife wanted to testify.
   
5. 
   Spouse of accused is competent and compellable for defence or Crown for provincial offence (BCEA s.6; R v. Gosselin (adds compellable))
   
1. 
   Spouses of Accused in Civil Context
   
   1. 
      Spouses of accused are competent and compellable witnesses (s.7(1))
      
2. 
   Mentally Disabled and Children in Crim Context
   
   1. 
      Challenged Mental Capacity
      
      1. 
         CEA 16(1): Where mental capacity of person over 14 challenged, court shall conduct an inquiry to determine whether the person:
         
         1. 
            Understands the nature of an oath or solemn affirmation
            
         2. 
            Whether the person is able to communicate the evidence
            
      2. 
         “Communicate the evidence” = general capacity to observe, recollect and communicate in general. Threshold is higher than mere ability to answer Qs, but does not require capacity w respect to specific facts. (Marquand)
         
      3. 
         The party who challenges the mental capacity of a witness has the burden of proof to demonstrate that there is an issue as to the capacity (s.16(5)). i.e. go to s.16(1)
         
      4. 
         If the person understands the nature of an oath/solemn affirmation and is able to communicate the evidence she shall testify. (s.16(2))
         
      5. 
         If the person does NOT understand the nature of an O/SA BUT is able to communicate the evidence, the person MAY testify on promising to tell the truth (s.16(3))
         
      6. 
         If the person is unable to understand the nature of O/SA AND CANNOT communicate the evidence, she shall NOT testify (s.16(4))
         
   2. 
      Children (under 14)
      
      1. 
         Formerly, children and mentally disabled grouped together under s.16(1).
         
      2. 
         Now, children subject to different rules under s.16.1
         

1. 
   Presumed competent to testify (s.16.1(1)) May only testify on a promise to tell the truth 16.1(6). Shall never give an oath or solemn affirmation 16.1(2). This promise shall have the same effect as an oath 16.1(8). Evidence shall be received if able to understand and answer Qs (s.16.1(3))
   
2. 
   A party may challenge but they bear the burden of satisfying the court that there is an issue as to the capacity of the child to understand and respond to questions (TEST) 16.1(3). If there is an issue, judge must conduct an inquiry to determine child’s capacity to testify 16.1(5)
   
1. 
   Mentally Disabled and Children in Civil Context (BCEA s.5)
   
   1. 
      If witness under 14 OR mental capacity in doubt, court must conduct inquiry as under CEA 16(1) above. (s.5(1-4))
      
   2. 
      party who challenges capacity of person over 14 bears burden of satisfying judge there is an issue with capacity (s.5(5))
      
2. 
   Competence of Accused
   
   1. 
      Historically at CL accused not competent to testify.
      
   2. 
      Now, accused is competent for the defence only (CEA, s.4(1))
      
   3. 
      Acc cannot be compelled to give testimony in own trial (Charter 11(c))
      
3. 
   Use of Accused’s Silence
   
   1. 
      No comment allowed on failure of acc to testify by judge or prosecution (CEA, s.4(6))
      
   2. 
      R v. Noble: acc breaks into vehicle, building manager does Shriver ID test on scene but can’t ID at trial, TJ relies in part upon A’s silence to convict. Court:
      
      1. 
         A’s failure to testify cannot be placed on evidentiary scaled by ToF
         
      2. 
         Possible allowable references to A’s silence:
         
         1. 
            Judge sitting alone, satisfied BRD, can refer to absence of explanations which could raise RD or say she need not speculate as to defences
            
         2. 
            Judge can tell jury that a point is uncontradicted
            
         3. 
            Alibi exception: adverse inference may be drawn from late-disclosed alibi or from failure of acc to testify to his alibi. (rationale that alibi too easily fabricated, must be disclosed early on)
            
   3. 
      PROBLEM: judge can’t tell jury NOT to use A’s silence as evidence of guilt
      

1. 
   Leading Questions
   
   1. 
      A leading question suggests answer sought by examiner or assumes fact not stated by witness earlier. (R v. Stanton, R v. Rose, R v. EMW)
      
   2. 
      General Rule: Leading questions not permitted in direct examination (R v. Rose)
      

ii.Concern heightened where witness has made deal with Crown (Rose)

3. 
   Exceptions:
   

(Stanton, Rose)

ii. May lead to direct witness to particular field of inquiry (Stanton, Rose)

iii.may lead to have witness identify person or thing or to prove s.11 oral statement of previous witness (Stanton)

iv.Where non-leading Qs have been tried + there is obvious temp failing in witness’ memory (Stanton)

v.Where required by complicated nature of matter (Stanton)

vi. Where witness does not understand, is child, or is ill (Stanton)

vii. Where witness leaves something out of convo even once asked to repeat (Stanton)

viii. With permission of the court

1. 
   R v EMW: giving child reluctant to respond binary alternatives does not count as leading Q
   
1. 
   Refreshing Memory and Past Recollection Recorded
   
   1. 
      Refreshing Memory: aid used to revive present memory
      

ii. the refreshed memory serves as the evidence, not the aid (R v. Wilks)

iii.R v. Bengert: informant witness allowed to use a notebook he prepared to refresh his

memory regarding meetings w various accused.

2. 
   Establishing Foundation for Refreshing Memory
   

i. Witness knows the facts, but has a memory lapse on the stand.

ii. Witness knows his report or other writing will refresh his memory.

iii.Witness is given and reads the pertinent part of his report or other writing.

iv. Witness states his memory has now been refreshed.

v. Witness now testifies what he knows, without further aid of the report or

other writing.

3. 
   Past Recollection Recorded: genuine lack of recollection that cannot be refreshed
   

ii.reliability ensured by contemporaneity of recording and nature of info recorded (technical details less worrisome than subjective interpretations) (Wilks)

4. 
   Requirements of past recollection recorded (Wilks):
   

1. 
   Recorded in reliable way
   
2. 
   Sufficiently fresh and vivid in witness’ mind at time to be likely accurate
   
3. 
   Witness now asserts they “knew it to be true at the time”
   
4. 
   Original record used where available, otherwise accurate copy
   
5. 
   info in record otherwise admissible
   

1. General aspects

a. extends to any matter at issue, including those not covered in direct exam

b. may include leading questions

c. except for acc, may include Qs about witness’ discreditable conduct unrelated to case

d. counsel may cross-examine on issues that may/cannot be proved directly, so long as Qing in good faith (R v. Lyttle)

d. Acc right to cross-examine Crown witnesses w/o unwarranted constraint essential to Charter right to make full answer and defence (R v. Lyttle)

2. Rule in Browne v. Dunn

a. if you intent to contradict a witness, must raise issue in cross-exam and give them chance to explain

b. if rule not followed, witness may be recalled, or judge may decide to give special jury instructions

1. 
   Crown and Judicial Discretion to Call Witnesses (R v. Cook)
   

b.Crown fails to call witness at their own peril of failing to discharge burden of proof

c. No duty to call the victim/complainant- though this may raise Qs for ToF

d. D args that Crown failure to call witness may result in trial by ambush, loss of opportunity to cross-exam, and loss of right to address jury last rejected

e. TJ discretion to call witnesses to be exercised in rare cases

2. 
   Calling Accused out of Order (R v. T.L.P.)
   

3. 
   Credibility essential to determining the weight that the ToF will place on a witness’s evidence.
   
4. 
   General Rule
   
   1. 
      The credibility of each witness is a fact in issue.
      
   2. 
      Whether or not the person is a “truthful” person is relevant but collateral to the trial, what is at stake is whether the person is telling the truth.
      
   3. 
      Until witness’ credibility is challenged, it is assumed they are telling the truth
      
5. 
   Demeanour
   
   1. 
      Demeanour is one among many factors ToF may look at in assessing credibility, but can be dangerous and should not be solely relied upon (R v. Jeng, R v. Davis)
      
   2. 
      Should not determine credibility solely on demeanour, must also consider reliability – esp where there are inconsistencies in testimony. The real test of truth of the story is “its harmony with the preponderance of the probabilities” (R v.Norman)
      
   3. 
      Dangers of relying solely on demeanour (Jeng):
      

ii.cultural differences – R v. T.E.: improper to determine lack of credibility based on Sudanese witness’ passivity + absence of eye contact w/o considering culture

1. 
   Differences in attitude towards persons in authority
   

6. 
   Factors in Assessing Credibility
   
   1. 
      Factors in assessing credibility include (see chart) (i-vii from R v. Norman):
      

ii.Powers and ability to observe

iii.Ability to remember

iv.Ability to communicate the evidence

v.Honestly endeavouring to tell the truth

vi. General conduct, demeanour, attitude

vii.Bias or motive – eg. other court proceedings, seeking advantage from Crown, personal

viii.prior statements – inconsistent and untruthful?

ix.internal consistency – does evidence change btw direct and cross?

x.external consistency with other evidence

xi.use of interpreter – may explain small inconsistencies (R v. Davis)

2. 
   Credibility must be assessed by criteria appropriate to witness’ mental development, understanding and ability to communicate (McLachlin in R v. W.(R.)
   
3. 
   Appeal court should show strong deference to findings of credibility at trial (R v. W.(R))
   

7. 
   Supporting Credibility of Your Own Witness
   
   1. 
      Rule Against Oath Helping: A party may not lead evidence or ask questions relevant solely to bolstering the credibility of its own witness (Marquand)
      

ii. Rationale: it would produce, regardless of the number of witnesses, undue confusion in the minds of the jury by directing their attention away from the real issues and the controversy would become so intricate that the truth would more likely remain hidden. (Kyselka)

2. 
   Exceptions (very limited circs):
   

1. expert evidence on ultimate credibility of witness not admissible, but expert evidence on human conduct, psychological + physical factors beyond ordinary experience of ToF is admissible (Marquand)

2. ultimate conclusion on credibility is for ToF to determine (Marquand)

ii. General reputation for veracity

1. 
   D may lead evidence of acc’s reputation for veracity to enhance acc’s credibility if acc testifies.
   

ii. judge should instruct jury that rep for veracity different from whether acc will tell truth in court, and that jury should not defer to character witness (Clarke)

2. 
   For witnesses other than the acc, evidence of reputation for veracity can only be led where credibility of witness is attacked.
   
3. 
   Evidence of general reputation for veracity is of limited PV
   

1. 
   General Rule - the prior consistent statement of a witness is not admissible to enhance that witness’s credibility.
   
2. 
   Exceptions
   
   1. 
      Prior identification: witness’s prior consistent statement admissible to support her identification at trial of acc or another
      

2. 
   Rebutting allegation of recent fabrication: prior statement admissible to rebut express or implied allegation that witness’ testimony recently fabricated (R v. Ellard)
   
   1. 
      Statement must predate time of alleged fabrication
      
   2. 
      Statement does not bolster original evidence, merely counters alleged fabrication  jury must be instructed accordingly
      
3. 
   Recent Complaint of sexual assault
   
   1. 
      CC s.275: The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under [sections for various sexual offences]
      
   2. 
      Rationale: Historically, adverse inference drawn from failure to complain about sexual assault immediately. No longer allowed, but prejudice remains. This rules designed to combat that prejudice.
      
   3. 
      Specific example of the narrative exception.
      
4. 
   Narrative: prior statement may be admissible where significant in understanding the witness’s account of the events. (Dinardo)
   
   1. 
      The evidence must be part of narrative in sense that it advances the story from offence to prosecution or explains why so little was done to terminate the abuse or bring perpetrator to justice. F.(J.E.)
      
   2. 
      To qualify as narrative, witness must recount relevant and essential facts re experience of offence
      
   3. 
      Where victim under 18 at time of offence, victim’s narrative video recording admissible (CC, s.715.1(1))
      
   4. 
      Evidence only admissible to help ToF understand how complainant’s story disclosed so as to assist in assessment of credibility. Not admissible for truth of contents. (Dinardo)
      
5. 
   Additional exceptions for prior consistent statements of accused (R v. Edgar, pg 338):
   
   1. 
      Statement relevant to acc’s state of mind at time of offence
      
   2. 
      Acc’s spontaneous statement made upon arrest or when first confronted w accusation
      
   3. 
      Any prior consistent statement which adds PV
      

1. 
   Ways in which the credibility of witnesses can be impeached:
   
   1. 
      Cross Examination on prior inconsistent statements
      

Can cross-examine on these statements w/o producing them, but if you want to contradict the witness you must:

1. 
   direct the witness’ attention to the relevant part of the statement
   
2. 
   give the witness an opportunity to respond.
   

2. 
   previous inconsistent oral statements (s.11 of CEA, s.14 of BCEA)
   

1. 
   put circs of previous statement to witness
   
2. 
   ask witness if she made the statement
   
1. 
   Five step process:
   

2.confront – confront witness w prior statement

3.credit –accredit prior statement made by asking acc whether they appreciated importance of making statement, duty to be complete, truthful and accurate, proximity of statement to event, formality of circs, opportunity to review/correct errors, signed or given under oath

4.contradict

5.commit – ask which is true (sometimes)

iv. prior inconsistent statement may only be used for truth of its contents where witness adopts statement, otherwise it goes only to credibility. EXCEPT where admissible for truth of contents under principled approach to hearsay (KBG)

2. 
   Cross examination on prior criminal convictions (CEA, s.12, R v. Corbett)
   
   1. 
      Witness (including Acc) may be questioned about prior convictions (s.12 CEA)
      
   2. 
      Prior convictions admissible only for undermining credibility of witness + jury must be charged accordingly (R v. Corbett)
      
   3. 
      TJ has CL discretion to exclude evidence where mechanical application of s.12 would undermine right to fair trial under Charter s.11(d) – PV v. PE analysis
      
   4. 
      Acc has right to know whether he will be cross-examed on prior convictions before taking the stand  makes a ”Corbett application” (Corbett)
      
   5. 
      Factors to consider in Corbett application (Corbett):
      

-remoteness/nearness of previous conviction (old conviction less PV)

-similarity of previous conviction to present charge (more similar = more PE)

-fairness (D conduct of trial, but distinguish attacks on character vs. credibility)

3. 
   Lead expert evidence to establish that the witness’s psychological abnormality renders him unreliable.
   
   1. 
      Medical evidence admissible to show that a witness suffers from physical or mental disability that affects the reliability of his evidence. (Toohey)
      
   2. 
      Unlike character evidence, expert not confined to general opinion of reliability of witness, but may testify to all the matters necessary to show foundation of opinion + extent to which the credibility of the witness is affected. (Toohey)
      
   3. 
      Where the trier of fact is able to assess the witness’s credibility without expert evidence, an expert’s evidence is inadmissible. (Toohey)
      
   4. 
      Tension btw preventing jury from being beguiled by unreliable witness and avoiding trials on side issues
      
4. 
   Lead evidence of the witness’s bad reputation for veracity
   
   1. 
      This is subject to the trial judge’s residual discretion: PV vs. PE
      
   2. 
      A judge has limited discretion to prevent counsel from asking witness about another witness’ reputation for veracity due to PE, but should rarely do so (Clarke)
      
   3. 
      Counsel should very rarely be permitted to ask whether a witness would believe another witness’ testimony on oath based on rep for veracity same concerns as oath-helping (Clarke)
      
   4. 
      If evidence of bad rep for veracity allowed, judge should instruct jury that rep for veracity different from whether acc will tell truth in court, and that jury should not defer to character witness (Clarke)
      

1. 
   Prior Inconsistent Statements (CEA, s.9(2) – Milgaard Procedure)
   
   1. 
      Where party producing a witness alleges that they made a prior inconsistent statement, court may grant leave for counsel to cross-exam own witness w/o proving witness to be adverse (CEA s.9(2))
      
   2. 
      Steps in Milgaard Procedure:
      
      1. 
         Counsel advises court of intention to make s.9(2) application
         
      2. 
         Jury excused
         
      3. 
         Counsel advises judge re particulars and provides statement in/reduced to writing
         
      4. 
         Judge determines whether there is inconsistency btw statement and evidence given. Failing to remember not an inconsistency, but feigned memory is. If no inconsistency, matter ended. Otherwise, judge asks counsel to prove statement
         
      5. 
         Counsel proves statement either by getting witness to admit statement, or by other evidence
         
      6. 
         Opposing counsel given chance to cross-exam witness as to circs under which statement made (if statement admitted) or other witnesses + call evidence regarding factors relevant to obtaining statement, in order to show counsel should not be permitted to cross-exam witness
         
      7. 
         Judge decides whether or not to permit cross. If permitted, jury re-enters.
         
   3. 
      Effect of a prior inconsistent statement: impeaching the credibility and/or proving the truth of the statement?
      
      1. 
         Unless the witness adopts as true the prior statement, its hearsay not generally admissible as proof of the truth of its contents but only to impeach credibility
         
      2. 
         BUT If the prior statement is necessary and has adequate indicia of reliability to overcome the hearsay dangers, it can also be admitted to prove the truth of its contents K.(G.B.)
         
      3. 
         If the prior inconsistent statement was not under oath, witness may take position that she is now under oath and telling the truth.
         

1.General Rule: party may not impeach credibility of opposing side’s witness by calling evidence to contradict answers of witness on collateral matters, whether in chief or cross

1. 
   Rationale: evidence too remote – need to keep trial focused on material issues
   
2. 
   Test: Could fact have been shown in evidence for any purpose independent of contradiction? (Wigmore)
   

ii.facts relevant to credibility beyond mere contradiction (eg. testimonial qualities)

iii.lynchpin facts –would not have been mistaken about it if story was true (McCormick)

3. 
   May contradict statements re: witnesses’ relation to other party where this relation may affect credibility (Attorney-General v. Hitchcock)
   
4. 
   R v. Melnichuk: Crown not entitled to contradict A’s evidence that he never held himself out to be a chartered accountant with reply evidence, b/c it was a collateral matter
   

2.General trend: Eradicate technical corroboration requirements and pigeon-holing of witnesses in favour of broader, more principled approach

3. Vetrovec warning (R v. Khela): addresses general concern through special jury instructions

a. Purpose: alert jury to dangers of relying on unsupported evidence of unsavoury witnesses, and give them tools to enable them to identify evidence which enhances their credibility

b. Factors TJ should consider in determining whether to give warning (R v. Khela):

i. Is there reason to suspect credibility of witness? Rather than attempting to pigeon-hole a witness as “accomplice,” TJ should consider all factors which might impair credibility

ii. How important is witness to Crown’s case? Where of central importance, warning becomes mandatory

c. Four main elements of Vetrovec warning (R v. Khela):

i. draw jury’s attention to testimonial evidence requiring special scrutiny

ii. explain why evidence subject to special scrunity

iii.caution jury that it is dangerous to convict on unconfirmed evidence of this sort (though there is no rule against it)

iv.explain that jury, in determining credibility of unsavoury witness, should look for evidence from another source tending to show that witness is telling the truth

d.No rigid formula for warning, but above elements should be present + should fulfill main purpose.

d. Evidence tending to bolster credibility of unsavoury witness

i. ToF need not apply technical def of corroboration, but only consider “whether evidence properly weighed overcame its suspicious roots” (Vetrovec cited in Khela)

ii. should give comfort that witness telling truth (Khela)

ii. independence of evidence a key factor (not tied to unsavoury witness) (Khela)

iii.evidence need not implicate the accused (Vetrovec)
Accused as Witness

1. 
   Cross-examining accused on credibility of Crown witnesses (R v. Ellard)
   
   1. 
      Improper to ask accused about credibility of Crown witnesses
      

ii.no onus on accused to explain complaints against her, explain motive to lie

1. 
   General Definition: Hearsay is an out-of-court statement offered for the truth of its contents. (Subramaniam)
   
2. 
   General Rule: Hearsay evidence is generally inadmissible (subject to many common law and statutory exceptions).
   
3. 
   Rationale: The Hearsay Dangers
   
   1. 
      Not made on oath
      
      1. 
         declarant not concerned w repercussions of making statement
         
      2. 
         declarant had no sense of solemnity of court process, requirement of accuracy and truthfulness
         
      3. 
         declarant may not be as concerned about accuracy in absence of opponent
         
   2. 
      No opportunity for ToF to observe and assess the witness
      
      1. 
         Weighing of evidence primary job of ToF. Usually depends on credibility, which is best assessed by observing the witness’ demeanour, consistency etc.
         
      2. 
         ToF can’t assess testimonial factors: declarant’s sincerity, use of language, memory, and perceptual ability (Morgan article)
         
      3. 
         Can’t tell context in which statement made (eg. made out of politeness?)
         
   3. 
      No opportunity for cross-examination (K.G.B.)
      
      1. 
         System puts a lot of faith in XE – “greatest engine for discovery of truth”  reduces frailties, inconsistencies, etc.
         
      2. 
         Perception/memory of declarant not subject to challenge
         
   4. 
      Not the best evidence available – speaks to necessity
      
   5. 
      All boils down to 2 concerns: NECESSITY and RELIABILITY
      
4. 
   Hearsay Analysis (see framework for analyzing hearsay)
   
5. 
   Non-Hearsay Words
   
   1. 
      An out-of-court statement that is offered for some purpose other than the truth of its contents is not hearsay and is not subject to the general exclusionary rule.
      
      1. 
         It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. (Subramaniam)
         
      2. 
         Fact that statement made often relevant to mental state and conduct (Subramaniam)
         
      3. 
         Subramaniam: statements of terrorists threatening accused admissible to raise defence of duress b/c relevant to acc’s state of mind whether true or not
         
      4. 
         Wildman: acc’s wife phones friend and says victim killed w a hatchet, friend relays info to acc.-->explains why acc knew about killing w hatchet when he did. Court says this is not hearsay b/c not offered for truth but to explain acc’s knowledge.
         
6. 
   Implied Assertions and Hearsay by Conduct
   
   1. 
      Greater danger b/c must draw more inferences
      
   2. 
      Wright v. Tatham: attempt to use letters to M as evidence that M of sound mind rejected. Implied assertions inadmissible for same reasons as assertions inadmissible.
      
   3. 
      R v. Wysochan: only husband or W could have killed victim, but she called out to husband for help, so must have been W. Victim’s utterances not offered for truth of contents but as evidence of victim’s feeling towards husband  not hearsay. For jury to decide what inferences to draw from utterances.
      

1. 
   Historical approach: pigeon-hole exceptions to hearsay rule. Eg. dying declarations (R v. Sunfield)
   
2. 
   Rationale for change: it has frequently proved unduly inflexible in dealing with new situations and new needs in the law, such that courts have taken to adopting more flexible approach rooted in principle and policy underlying hearsay rule rather than the strictures of traditional exceptions. (Kahn)
   
3. 
   Principled approach (R v. Smith, refined in Khelawon): Hearsay admissible under principled exception where:
   
   1. 
      It is necessary to prove a fact in issue
      
      1. 
         Direct evidence of declarant not reasonably available. Eg. declarant dead, insane, out of jurisdiction or otherwise unavailable.
         
      2. 
         Cannot expect to get evidence of same value from other sources (Smith)
         
      3. 
         Does not mean “necessary to prosecution’s case” (Smith)
         
      4. 
         Categories of necessity not closed (Smith)
         
   2. 
      It is reliable
      

1. 
   inherent trustworthiness of statement due to circs which gave rise to it (Smith, Khan) Eg.no motive or opportunity to lie, fear of detection/punishment would counteract motive to lie, public statement (Smith)
   
2. 
   adequate substitutes to XE for testing truth and accuracy of evidence (KGB)
   

1. 
   PV outweighs PE
   
1. 
   Important to remember that it is still presumptively inadmissible (Blackman)
   
2. 
   Hearsay that fits within a traditional hearsay exception may still be inadmissible if it is not sufficiently reliably and necessary (R v. Starr)
   
3. 
   Cases
   
   1. 
      R v. Khan: child’s statement re sexual assault by doctor has strong indicia of reliability: child disinterested, prior to suggestion of litigation, peculiar means of knowledge of event, young children’s testimony generally reliable. Hearsay evidence of child’s statement on crimes committed against child should be received provided necessity and reliability met, and subject to safeguards applied by judge as well as considerations affecting weight of evidence. Shift to principled approach.
      
   2. 
      R v. Smith: 4 telephone conversations of deceased. “Larry abandoned me” and “Larry has still not returned” admissible  no reason to lie. “Larry has come back so I no longer need a ride” inadmissible  may have been mistaken + potential motive and capacity to lie.
      
   3. 
      R v. B.(K.G.) (KGB): youths give videotaped statements under oath to PO incriminating acc, but recant at trial. Prior inconsistent statements of witnesses other than acc admissible for truth of contents where necessary and reliable. In this case, statements made under oath to PO, videotaped, and opposing party had opportunity to XE at trial admissible.
      
   4. 
      R v. Starr:g/f’s testimony that deceased told her he was going to take part in fraudulent scheme w acc not reliable, and more PE than PV.
      
   5. 
      R v. Khelawon: several residents of retirement home complain of assault by acc manager. S gives videotaped statement to PO. At time of trial, complainants dead/incompetent to testify. Videotaped statement not sufficiently reliable due to Q of mental competence and potential motives to lie. Similarity of statements of other complainants could warrant admissibility of hearsay evidence in some cases (external corroboration), but in this one the other statements even more sketchy + not admissible to assist reliability of S’s statement.
      

7. 
   Relationship b/n Principled and Categorical Approach (R v. Mapara)
   
   1. 
      Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain in place.
      
      1. 
         Evidence falling into a traditional category is presumptively admissible (Starr)
         
   2. 
      A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
      
   3. 
      In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
      
   4. 
      If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
      

1. 
   Res Gestae or Spontaneous Utterances
   
   1. 
      Spontaneous utterances admissible if made while declarant under physical shock, stress or nervous excitement which dominates senses and stills reflective faculties (R v. Clark)
      
      1. 
         Rationale: considerations of self-interest cannot be manifested
         
      2. 
         Ratten moves test away from whether statement part of the transaction (res gestae) to asking whether its spontaneity ensures reliability (R v. Clark)
         

2. 
   Statements Against Interest
   
   1. 
      Statements against pecuniary or proprietary interest admissible when (R v. Demeter)
      
      1. 
         declarant had personal knowledge of the facts stated.
         
      2. 
         Statement against declarant`s interest at the time it was made “immediate prejudice”
         
      3. 
         Declarant knew statement to be against his interest when he made it
         
      4. 
         Against pecuniary or proprietary interest, not merely social interest
         
   2. 
      Third party statements against penal interest admissible when (R v. Demeter)
      
      1. 
         Meet the above criteria, and in addition:
         
      2. 
         Made in circs where declarant should have apprehended vulnerability to penal consequences
         
      3. 
         Vulnerability to penal consequences not too remote
         
      4. 
         Declaration considered in its totality against declarant’s interest
         
      5. 
         Where above doubtful, court may consider other circs connecting declarant to crime and/or accused
         
      6. 
         Declarant not available due to death, insanity, grave illness or outside jurisdiction of court processes.
         
   3. 
      When a declaration is made that is not in one’s best interest it is presumable that those statements would not have been made unless they were true. [Reliability] (Pelletier)
      
   4. 
      Declarations against penal interest admissible when they exculpate the acc (R v. Pelletier- roommates) but not when they inculpate the acc (Lucier v. the Queen- arson)  exception can only be used by D.
      

3. 
   Statements of Physical/Mental Condition (Youlden v. London Guarantee and Accident co.)
   
   1. 
      Statements about bodily or mental condition of declarant contemporaneous with the condition are admissible
      
      1. 
         Rationale: no other way to prove bodily/mental feelings (Youlden) Also, their spontaneity indicates reliability.
         
      2. 
         Admissible only to prove condition of person making statement at time, but inferences as to cause of condition may be drawn (Youlden)
         
   2. 
      NB statements about past condition not covered by the rule (b/c of time to concoct).
      

4. 
   Statements of Intention (form of statement of mental condition)
   
   1. 
      Evidence of utterances made by a deceased which evidence her state of mind are admissible. (P.(R.))
      
      1. 
         If explicit of the state of mind, they are admissible as an exception to hearsay.
         
      2. 
         If they permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred.
         
      3. 
         Evidence not admissible to show state of mind of others
         
      4. 
         Statement must be made in natural manner, not under suspicious circs
         
   2. 
      If either the state of mind, or the fact to be inferred from the state of mind (ie. that declarant acted on the intention/plan) is relevant, statement admissible subject to objections of undue prejudice. (P.(R.))
      
   3. 
      Statement of intention/plan affords evidence that declarant acted on the intention/plan where reasonable to infer she did so (P.(R.))
      
   4. 
      The reasonableness of the inference will depend on a number of variables including:
      
      1. 
         the nature of the plan described in the utterance, and
         
      2. 
         the proximity in time between the statement as to the plan and the proposed implementation of the plan. (P.(R.))
         
   5. 
      R v. P.(R): statements about deceased’s plans to leave partner permitted to show state of mind, but statements about partner’s treatment of her excluded due to their PE.
      

5. 
   Dying Declarations
   
   1. 
      Rule: In a criminal case, a dying declaration of a deceased person is admissible hearsay when:
      
      1. 
         The deceased had a settled, hopeless expectation of almost immediate death
         
      2. 
         The statement was about the circumstances of the death
         
      3. 
         The statement would have been admissible if the deceased had been able to testify
         
      4. 
         The offence involved is the homicide of the deceased
         
   2. 
      Rationale – a person who knows she is about to die will speak truthfully.
      
   3. 
      R v. Sunfield: clear cut case of dying declaration. “Hello Billy, no cut, jake shoot”…”No doctor, Billy, me die.”
      

6. 
   
   
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