General Rule - A statement by a party offered by an opposing party is admissible for its truth.
statement made or act done by a party which amounts to a prior acknowledgement that some fact is not as he now claims it to be.
Rationale:
statement against party’s interest more likely to be reliable.
Adversarial nature of CL trial: what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. (R v. Evans)
Party can’t object they’ve had not opportunity to XE themselves, or that they are unworthy of evidence except when speaking under oath.
Includes:
Statements or acts by opposing party (eg. Inferred admission)
Statements made by 3rd parties which are expressly or implicitly adopted
Vicarious statements of opposing party (eg. Through agents)
Statements made co-conspirators in furtherance of conspiracy
Admissions by Silence
Statement made in presence of acc substantively admissible against acc where acc could reasonably have been expected to reply under the circs but remained silent. Silence in such circs permits an inference of assent (R v. Clarke)
R v. Clarke: guys robbed DQ, C testifies B said that B and R got $ under nose of police and that R didn’t respond. B’s statement admissible against R.
Co-conspirators (special form of party admissions)
General rule (R v. Mapara): Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object.
Statement must usually be before the event, but there may be exceptions for concealing the offence (eg. Destruction of evidence convos)
The Carter Rule (R v. Barrow):
TOF must be satisfied BRD that the conspiracy existed
Then ToF must find that acc a member of the conspiracy on a BoP based on evidence directly admissible against acc
After passing first two steps, in deciding whether acc a member of the conspiracy BRD, ToF can consider statements/acts of co-conspirators in furtherance of the conspiracy as evidence against acc.
Co-conspirators exceptions meets the requirements of the principled approach (R v. Mapara)
Necessity: co-accused declarant not compellable, undesirable to try co-conspirators separately and contemporaneous statements in furtherance of conspiracy have high PV
Reliability: Carter rule provides circumstantial indicators of reliability. Also, “in furtherance” requirements gives statements res gestae qualities of spontaneity + contemporaneity
Rule is not unfair to accused
Modifying rule would increase delay and difficulties undermine efficiency of traditional categories. Need to consider compliance w principled approach should be rare.
May be rare cases where statement fits exception but fails to fulfill principled approach, however R v. Mapara not one of them.
Business Records
CL Rule: A business record, though hearsay, may be admissible if (Ares):
it was made reasonably contemporaneously
it was made in the course of duty
it was made by someone w knowledge of the matters*
it was made by those under a duty to make the record or report
there was no motive to misrepresent the matter.(Ares)
*no longer needed so long as made in ordinary course of business (s.30(1) of CEA, Martin, R v C.L.
Rationale: most records are mechanical in nature + businesses themselves depend on them being accurate. They are also recorded relatively contemporaneously w the event (Ares)
CEA provisions:
S.29(1) allows for admission of records from financial institutions
S.29(2) requires records from financial institutions to be made in usual and ordinary course of business, w record under control of institution, true copy + proof of above may be given by employee orally or through affidavit
s.30(1) allows for the admission of business records made in usual and ordinary course of business where they would be admissible as oral evidence.
s.30(3) allows use of copy where not possible or reasonably practicable to produce record (must be accompanied by 2 certifying docs)
s.30(4) allows transcript of explanation of record where necessary and made by qualified person
s.30(7) requires party producing record to give 7 days notice
s.30(10) excludes records made in course of investigations, legal advice/litigation, records to which privilege attaches, offering statements by non-competent/compellable witnesses, or against public policy
s.30(12) defines “business” very broadly
Cases interpreting legislation
Double hearsay (where record maker does not have personal knowledge but gets info from another) admissible, so long as requirements of s.30(1) met (Martin)
Business records meet requirements of necessity (for convenience, to avoid oral testimony) and reliability (ordinary course of business etc.)
Where an established system of business or other org produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence (R v. C.L.)
R v. C.L.: hospital records and doc’s letter admissible despite double hearsay. Even if not business records, meet the criteria of necessity and reliability. No motive to lie + falsely recorded info subject to disciplinary action.
R v. Larsen: autopsy report admitted under business record exception, supplemental report fails contemporaneity requirement but admitted under principled approach.
Prior Judicial Proceedings (Criminal)
General Rule: although hearsay, prior testimony admissible where:
Evidence otherwise unavailable
Issues and parties in both proceedings substantially similar
In prior proceedings, party against whom evidence being tendered (or party w common interest) had opportunity to XE
Criminal Code s.715: provides that a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, IF that person refuses to testify or is dead, insane, too ill, absent from Canada (list isn’t exhaustive: Hawkins) AND the evidence was taken in the presence of the accused the testimony may be admitted, UNLESS acc proves he did not have full opportunity to XE.
Mainly applies to re-trials + prelim hearing transcripts. PO investigations generally excluded due to XE requirement.
The justice system has held that evidence given under oath at a previous proceeding is admissible at a criminal trial if the witness is unavailable at the trial provided the accused had an opportunity to XE when the evidence was originally given. (Potvin)
Opportunity to XE (but not actual XE) required by s.7 where evidence used to convict
The trial judge has a “statutory discretion to prevent any unfairness that could otherwise result from a purely mechanical application of the section.” (Potvin)
Testimony from Prior Civil Proceedings
BC SCCR R 12-5: “Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.”
SHE BLINDED ME WITH SCIENCE…AND OTHER OPINION ISSUES
General Rule: Opinion evidence is generally inadmissible (K.A.)
Rationale - The role of witnesses is to testify to the facts of which they have personal knowledge; PFJ that it is up to the ToF to draw inferences based on evidence and form opinions on issue in case (K.A.)
Addresses concerns:
Gives false impression that witness is “expert” – danger that jury will defer to opinions given by witnesses
Usurps role of jury (R v. Mohan)
Exceptions
Lay opinion evidence permissible where
Matters within common knowledge
Based on multiple perceptions best communicated in compendious format (eg. Age, speed, identity, physical and emotional state)
Expert evidence
ToF requires assistance to understand significance of evidence or what inferences can properly drawn from it
Lay Opinion
See exceptions above
Conditions for admissibility:
Evidence must be helpful
Must be sort of thing non-expert can form opinion on
Opinion must be an “abbreviated version of the witness’s factual observation” where it would be cumbersome/impossible to break down all the facts.
When, in the words of an American Judge, ‘the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated’, a witness may state his opinion or impression. (statement of Rupert Cross cited in Graat)
the bodily plight or condition of a person, including death and illness; intoxication
the emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate or depressed
the condition of things – e.g. worn, shabby, used or new
certain questions of value
estimates of speed and distance
No special reason for preferring PO lay opinion evidence over other witness lay opinion evidence (Graat)
Witness allowed to compare disputed handwriting with handwriting proved genuine (CEA s.8, BCEA, s.45)
Expert Opinion
General Rule: Expert evidence admissible where ToF unable to form own conclusions w/o help (R v. K.A.)
Mohan Test: Admission of expert evidence depends on the application of the following criteria (R v. Mohan):
Evidence must be relevant
Danger that jury will give too much weight to this evidence b/c they are blinded by mystique of science and impressed by expert’s credentials (R v. Mohan)
Consider:
Is the evidence likely to assist the jury in its fact-finding mission, or is it likely to confuse and confound the jury?
Is the jury likely to be overwhelmed by the “mystic infallibility” of the evidence, or will the jury be able to keep an open mind and objectively assess the worth of the evidence?
Evidence must be necessary in assisting ToF (necessity)
Expert opinion admissible to furnish court w scientific info likely to be outside knowledge and experience of judge or jury
Subject matter must be such that ordinary people unlikely to form a correct judgment about it, if unassisted by expert
Necessity must be assessed in light of potential to distor fact-finding process
Must not be caught by any other exclusionary rule
Expert must be properly qualified
witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.
Other stuff from Mohan
The criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue. (Mohan)
Evidence on a novel scientific theory or technique is subject to special scrutiny to determine whether it meets the basic threshold of reliability.
The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle.
The onus is on the party calling the evidence to prove it meets the requisite standard.
Abbey restructuring of Mohan test into 2 part test:
Four preconditions of admissibility:
Subject matter properly the subject of expert opinion evidence
Relevance
Properly qualified expert
Absence of exclusionary rule
Gatekeeper function: is the evidence sufficiently beneficial to warrant the potential harm?
The Trier of Fact’s Need for Expert Assistance – Wilson, J. in R v. Lavallee
Expert evidence may provide the basis for challenging questionable assumptions about human nature that have become imbedded in common perceptions eg. battered wife syndrome
A battering relationship is “subject to a large group of myths and stereotypes” – expert evidence can assist jury in dispelling these myths
In Lavallee, expert testimony pertaining to why an accused remained in the battering relationship relevant to assessing the nature and extent of the alleged abuse. Expert testimony re acc’s ability to perceive danger relevant to whether acc “reasonably apprehended” DGBH. Expert testimony re why acc did not flee relevant to assessing reasonableness of her belief that killing her batterer was the only way to save her life.
In Lavallee, expert evidence on psychological effect of battered wife’s syndrome both relevant and necessary.
Still ultimately up to jury to decide whether acc’s perceptions and actions reasonable.
Novel Science (R v. Trochym)
When does science count as “novel”?
the theory or technique behind the science or technique is not sufficiently established or the expert is using the science or technique in a new way;
“novel” either in the sense of being new/unestablished in the scientific community or in the sense that courts have not established a practice of admitting it;
techniques that have been used in past may come under scrutiny b/c not sufficiently tested or due to changes in knowledge
Test for reliability of novel science (R v. J.-L.J.):
Whether the technique can be and has been tested
Whether the technique has been subject to peer review and publication
The known or potential rate of error; and
Whether the theory or technique used has been generally accepted.
Gatekeeper function applies to facts and opinions extracted/arising from scientific technique (Trochym)
Post-hypnosis evidence inadmissible (R v. Trochym)
General consensus that ppl more suggestable under hypnosis – lowered critical faculties
Increase in accurate and inaccurate memories occurs. Also, difficulty distinguishing memory from imagination. Increasing certainty about memories regardless of accuracy memory hardening
General judicial tendency to be extremely cautious w post-hypnosis evidence
Witness may testify on topics not asked about during hypnosis b/c PV outweighs PE
Dissent: should let this evidence in relevant and probative. test should be “reliable foundation” not “general acceptance”
Legislative limits on Experts (see print out)
CEA, s.7: each side in any proceedings may only call max of 5 expert witnesses
CC s.657.3: expert evidence entered by report and affidavit, notice requirements, attendance for examination
BCEA, s.10: written expert opinion admissible w 30 days notice. Party may require expert to be called as witness but must pay costs if this adds no new info.
BCEA, s11&12: in civil proceedings, must give notice of expert evidence to be given orally via written statement 30 days beforehand.
BC SCCR, Part 11: duty of expert witnesses, expert reports and expert opinion at trial
Real evidence: “original” things allegedly part of action – eg. murder weapon
Photgraphs/Videos admissible where (R v. Schaffner):
Accurately represents facts
Fair, no intent to mislead
Authenticated – verified on oath by person capable of doing so
PV outweighs PE
R v. Patterson: TJ properly exercised discretion in allowing Crown to play entire video of C’s statement to PO upon re-exam of C after D had raised issue of C’s demeanour during XE by playing 3 portions of the tape. TJ also properly exercised discretion to allow videotape to go into jury room.
R v. Schaffner: surveillance video at liquor store automatically functioning once installed – security person able to match transaction on tape w notation on cash register, identify acc, and point to incidents of theft. Video properly authenticated admissible.
R v. Nikolovski: clerk can’t identify robber but judge convicts based on her comparison of acc w robber in videotape. Videotape accurately records all it perceives + can thus be relied upon as sole basis for identifying acc. Factors to consider include clarity and quality of tape and to lesser extent length of time acc appears on tape. TJ correct to convict in this case. Dissent: conviction rested on untested opinion of TJ contradicted by evidence of clerk.
R v. MacPherson: Proof of chain of continuity of real evidence important. Gaps reduce weight of evidence, but not fatal to Crown case unless they raise RD as to integrity of exhibit – eg. narcotics
Authenticating real evidence:
Single witness
Multiple witness
Conditional admissibility
Demonstrative evidence: visual aids used by witness to illustrate/explain – eg. diagrams, maps, re-enactments
Test for admissibility of a diagram:
Fair representation
Would assist witness in giving evidence
Authenticated
Test for admissibility ofvideo re-enactment (R v.MacDonald):Case-by-case analysis – overriding principle is whether PE outweighs PV, but should also consider these factors:
Relevance
-depends on degree of similarity btw replication and original event (Collins)
Fairness
accuracy
R v. McDonald: video ruled inadmissible b/c inaccuracies and highly prejudicial (only PO version of events)
R v.Nikitin: experiment and re-enactment admissible despite inaccuracies. Not sufficiently unreliable to be inadmissible. Impossible to perfectly replicate. Good jury charge helpful
R v. Walizadah: videos relevant, material, fairly accurate and not one-sided admissible.
Documentary Evidence
Best evidence rule: evidence should be the best the nature of the case allows. Require party seeking to prove contents of doc/recording to tender original doc/recording.
BUT no longer strictly applied flexibility urged
Law still requires primary evidence to be given where possible – ie. Where party has original doc and could produce it.
Secondary evidence may be given when proper explanation given of absence of better evidence
Re-recording of videotape admissible where proper foundation laid that it is authentic and accurate (R v. Cotroni)
Computer generated fishing license docs admissible b/c affidavit satisfied best evidence rules under 31.2 (1) and 31.2(2) of CEA (requiring authentication of doc computer system) (R v. Morgan)
Formal Admissions
CC, s.655: at trial for indictable offence, acc may admit any fact alleged against him to dispense w proof thereof
Acc cannot admit fact alleged against him until allegation made by Crown – it’s a two way thing (R v. Castellani)
Views
CC, s. 652(1): where appears to be in interests of justice, judge may have jury view any place, thing or person, after jury sworn but before verdict.
Judicial Notice
General rule: court not supposed to know anything until it is proven in course of litigation btw the two parties
Exception: under certain circs, judge may take notice of fact despite lack of relevant and admissible evidence judicial notice
Two types of facts:
Adjudicative facts: specific facts to be determined in the litigation btw the parties
Legislative/social facts: broad & general facts about social, economic & cultural context used to
Legislative: establish the purpose & background of legislation or decisions about judicial policy.--> assist in determining Qs of law
Social: provide a context for judge to consider and apply the evidence assist in fact-finding
Morgan test: Court may take judicial notice of facts that are either:
Notorious: generally accepted, not the subject of debate among reasonable ppl
Readily Verifiable: capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy
Three factors to consider (Spence):
How close is the fact to the centre of the controversy?
-need for reliability & trustworthiness increases directly w centrality of the “fact” to the disposition of the controversy
Are the facts adjudicative or legislative/social?
-if legislative/social, Morgan test is relevant but not determinative
-if adjudicative, Morgan test is the “gold standard” and must be met
What is the degree of doubt surrounding the fact?
INTRODUCTION TO CHARACTER: THE CHARACTER OF THE ACCUSED IN ISSUE
Character is a person’s propensity/disposition to behave in certain way deeply engrained behavioural traits, different from habit.
Court must consider whether evidence being led for “character” purpose.
Two uses
Primary materiality: show acc the kind of person who would commit the offence (court particularly concerned about this use)
Secondary materiality: attack credibility of acc
General Rule – Crown may not lead evidence of bad character of accused
a. Rationale: concerns about reliability, PV, efficiency of trial, and unfairness, esp to accused. Adds more “heat” than “light”.
b. Exceptions:
ii. where character directly in issue, character evidence admissible (eg. dangerous offender, D of justification to defamation charge)
acc has put his character in issue
-NB unclear exactly what Crown allowed to do when this happens, but tends to be a tit-for-tat approach,
Crown has satisfied requirements of similar fact evidence rule.
-only situation where you can use bad character to prove guilt
3. Putting character in issue
a. Crown entitled to reply when accused raises issue of his character (R v. Rowton)
b. Character put in issue by:
i. by adducing evidence of good reputation (Rowton, Levasseur)
ii. by acc testifying as to his own good character (McNamera)
eg. commenting on lack of crim record (Morris), “honest living” (Baker)
iii.by calling expert evidence of propensity or disposition (Robertson, Mohan)
iv. by putting character of 3rd party alternate perpetrator in issue (McMillan) – see below
c. Character not put in issue by:
i. standard introductory questioning (McNamara)
ii. denying allegations, explaining crucial aspects of D, or repudiating parts of Crown case
iii.responsive answers to Crown XE (Bricker) can’t compel acc into putting character in issue
Methods by which accused may prove character
General Reputation Evidence: other witnesses can testify to general rep of accused
Both acc and Crown confined to evidence of general reputation must not extend to individual opinion of witness (though acc himself may testify to his disposition)
The reputation should be derived from the accused’s community. (Rowton)
Community may not necessarily coincide w geographic location (Clarke)
Rule seeks most qualified witnesses – may be business associates rather than neighbours (Levasseur)
TJ may take into account that sexual assault against children generally occurs in private + will not be reflected in general community rep diminishes value of character evidence (R v. Profit)
Evidence of Specific Acts (R v. McNamara)
Witness other than acc may not testify to prior good acts of acc, but only to general good rep
If acc testifies to his own good character through prior good acts, Crown may rebut - may raise specific prior acts of acc which contradict acc’s assertions about his disposition– evidence relevant to neutralizing acc’s character evidence and to credibility, but not to guilt.
Crown may not lead evidence of specific bad acts (short of convictions) of acc not the subject matter of charges before the court (NB XE on prior convictions speaks to credibility only)
Expert Character Evidence
Psychiatric evidence of character/disposition admissible where TJ satisfied, as a matter of law, that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt. (Mohan)
The trial judge should consider the opinion of the expert and whether the expert is expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group. (Mohan)
Where acc leads psychiatric evidence of character, Crown may call psychiatric evidence in rebuttal (R v. Robertson)
Not admissible to prove acc has no tendency for violence w respect to ordinary crimes of violence disposition for violence not characteristic feature of abnormal group. (Robertson)
R v. Mohan: profile of paedophile or psychopath not sufficiently standardized to fit this excpetion.
Character of Non-Accused Witnesses (alternate perpetrators)
Comes up where acc seeks to show that another person is the more likely perpetrator
General rule: evidence of bad character of non-accused witness admissible whenever relevant to an issue at trial.
Evidence of 3rd party motive and disposition admissible if relevance established (3rd party must be sufficiently connected to crime) (McMillian)
If evidence on disposition of a 3rd party entered, Crown is entitled to question the disposition of the accused. The accused has implicitly put their character in issue (via contrast). (McMillan)
McMillan: murder of an infant – Crown allowed to question character of acc after acc puts wife’s character in issue two psychopaths in the house, not just one.
Character of Victims
Where self-defence raised, following admissible (R v.Scopelliti – shop owner shoots robbers)
Evidence of previous assaults towards 3rd parties by the deceased, known to acc
Evidence of deceased’s reputation for violence, known to acc
Evidence of deceased’s disposition for violence not known to accused the big issue
CC s.277: in proceedings re [various sexual offences] evidence of sexual reputation, whether general or specific, is not admissible to challenge or support the credibility of the complainant
CC s.276 (codification of Seaboyer): in proceedings re [various sexual offences], evidence that complainant has engaged in sexual activity, w acc or other person, not admissible to support inference that complainant a) more likely to have consented to sexual activity in this case, b) is less worthy of belief.
R v. Darrach: upholds constitutionality of s.276, s.277
-s.7 protects more than just rights of acc
-PFJs align w purposes of s.276: excluding misleading evidence, protecting rights of acc, encouraging reporting of sexual violence + protecting security/privacy of witnesses
-sections not a blanket exclusion but only prohibits illegit inferences based on “twin myths” prohibits evidence that is not relevant anyways
SIMILAR FACT EVIDENCE
Similar Fact Evidence Rule: Though presumptively inadmissible, evidence of prior bad acts by the accused will be admissible if the Crown satisfies the judge on a BoP that, in the context of the particular case, the probative value of the evidence in relation to a specific issue outweighs its potential prejudice (R v. Handy)
Required similarity
Degree of similarity required depends upon context of
