INTRODUCTION TO EVIDENCE



IN DEPTH ENGAGEMENT ON THE FACTS: IS EVIDENCE ADMISSIBLE FOR SOME PURPOSES AND NOT OTHERS? SPECIAL INSTRUCTIONS? GREATER POSSIBILITY FOR ERROR? INTRODUCTION TO EVIDENCE –Means by which you (dis)prove the necessary facts of the case 3 sources of rules: CEA, CL, Charter (specific evidentiary rules + s.7)The Principled approach: Looking at the underlying themes and purposes we want to address (what are we trying to achieve?) and then develop rules accordingly // Cost: more factors to balance = more time, less predictability + Benefit: allows for rule-tweaking as necessary, more principled.PRINCIPLE OF A FAIR TRIAL – cohesive overarching theory that can help guide through many/all of the rules of evidence // comprised of TRUTH [Will it assist/hinder the search for the truth?] and JUSTICE [are there other values that justify the suppression of the search for the truth in certain ways?] Assessing PV [exists if it makes a fact in issue more/less likely] vs PE [reasoning and moral prejudice]Does the evidence offered render the desired inference more probable than it would be w/o the evidence? Establish relevance on a sliding scale – weigh this in order to determine whether it is outweighed by prejudice A premise is also necessary – a generalization allowing the inference to be made SEABOYER: difference between CR and defence evidentiary standards: C: admissible when PV > PE vs D: admissible unless PV is substantially outweighed by PE … more flexible to protect against wrongful convictions ARP: Relevance = tends to increase/diminish probability of a fact in issue - propensity/disposition evidence may be relevant but is usually inadmissible b/c its slight PV heavily outweighed by PE 3 potential dangers assoc’d w/ prior bad acts as evidence: 1. Jury finds the accused is a ‘bad person’; ‘the type to have done it’ 2. Punishing accused for past misconduct by convicting on current charge3. Confusion of having att’n deflected form main issue + substituting verdict on a side matter for the charge being tried FFB: Sexual abuse of niece; dominant uncle // all relevant evidence is admissible unless it is barred by a specific exclusionary rule; TJ must give special instructions on usage of highly prejudicial evidence EME admissible if: (1) relevant to some other issue beyond disposition/character and (2) PV>PE BADGEROW: As w/ any defence, TJ must always ask whether there is some basis upon which a reasonable, properly instructed jury could acquit. When seeking to introduce evidence of 3rdP suspect, it must still meet test of relevancy and have suff PV to justify reception // MUST BE REASONABLE/SUFFICIENT CONNECTION TO CRIME o/w reasoning prejudice: distraction + inviting jury to acquit based on speculation The Adversarial System [Most of the key evidentiary decisions are strategic ones, made by opposing parties] Disclosure: only goes one way in crim lawSTINCHCOMBE: Fairness mandates that CR is obligated to make disclosure of all relevant info Why does fairness dictate this? - Investigative file belongs to the justice system - Part of the trial process is allowing accused to make full answer + defence - Wrongful convictions result from failure to disclose - An accused doesn’t have to help their own investigation – req’ing to hand over evidence could be seen as eroding the presumption of innocence **note: does have to disclose alibi + expert evidence**PERUTA: Discovery of evidence tries to balance the resources of the parties in order to fulfil const’l guarantee of a fair trial [req’d b/c adversarial system presupposes some equality between the parties]LEVOGIANNIS: The duty of the ct is to ascertain the truth evidence must be given in a way most favourable to eliciting the truthDARRACH: Accused is not entitled to the most favourable conditions that only take his interests into acctIMPERIAL OIL: The ultimate aim of any trial is to bring the truth to light – the judge does not play an active role in this - More is at stake than just truth: must uphold faith in the impartiality and fairness of the justice system search for the legal truth: A verdict is the product of what can be proven in the confines of the adjudicative forum, applying the rules of proof and admiss MULLINS-JOHNSON: Factual finding of innocence o/s ambit/purpose of crim law; allowing for ‘innocent’ verdict would degrade meaning of acquittal Role of TJ: Belief that diligence of the opposing sides are better guarantees of finding truth than giving it over to gov’t officer; bias of decision-maker lessened when they are given a less active role in proceedings BROUILLARD: New trial order b/c tj’s interruptions were of fqcy and nature as to make the appearance of justice questionable R v L(DO): Where witnesses are fragile, TJ is responsible for ensuring the child understands the Qs and answers in a clear unambiguous way TJ may be req’s to rephrase questions or ask clarifying QsLAWES: TJ can make limited comments on the evidence (as long as it’s clear that the jury is not bound by TJ’s views, and the opinions expressed are not disproportionate to the facts or over-emphasized to the point of over-awing the jury) supposedly fosters the values underlying s. 11(f) rather than undermines The Burden of Proof: MORIN: standard of proof function is not the weighing of individual items of evidence but the determination of ultimate issues. Argument put forth against a 2-stage system b/c of the artificial injection of rules and would mean that each juror would have to agree on what each fact means. LIFCHUS: “the accused enters these proceedings presumed to be innocent. That presumption remains throughout the case until such time as the CR has satisfied you on the evidence that the accused is guilty BRD”STARR: B/w likelihood and absolute certainty, BRD closer to AC than BOP Credibility And Its Relationship To Rd: R v W(D): Formula to avoid doing “who do you believe more”:1. If you believe A Acquit. 2. If you don’t believe A but their evidence NTL raises RD acquit. 3. If you reject A’s evidence, you must then decide on CR evidence if you are convinced BRD of A’s guilt PLEWES: Miller error: “the things you choose not to accept must not be taken into acc’t when arriving at your verdict” erroneous for excluding evidence which might not be believed but which may NTL raise RD; conflicts w/ morin b/c it emphasises isolation and is another artificial injection of legal rules into jury delibJUDICIAL NOTICEAny fact asserted has to have at least some evidence supporting it; o/w may be no-evidence motion; if there is any chance of debate, JN won’t work b/c debate is the very essence of the adversarial system DALEY: Facts judicially noticed are used/proved other than by evidence; a ct may properly take judicial notes of a fact if either: 1. so notorious and generally accepted as to not be the subj of debate among reasonable persons [whether the fact is common knowledge in the locale where case being tried] or2. It is capable of immediate and accurate demo by resort to readily avail sources of undisputed accuracy TYPES OF EVIDENCEDIRECTCIRCUMSTANTIALDirectly usable by TOFmust draw inference from one fact to another Mistaken witnessLying witnessMultiple inferences supportable by the evidence. If not too speculative, multiple inferences inadmiss.MUNOZ: reasonable inference req’s (1) proof of underlying facts and (2) inference logically follows (1) Inference = a deduction of fact which may be logically and reasonably drawn from another fact(s) or that is o/w est’d in proceedings; doesn’t need to be most obvious or easiest to draw Real Evidence bring the scene to the ctroomAuthentication: is it what we’re saying it is? Is it misleading? - relevance is contingent on authenticity – if authentic, must be relevant to a fact in issue; if there are holes in the chain of custody, usually goes to weight unless there are serious issues (MACPHERSON)- PV of real evidence = association w/ accused how to associate an item w/ a person? Item found at scene; on the person; in constructive possession [must be reasonable inference of assoc’n]- judge decides whether suff evidence that would permit jury to find authenticity + jury then determinesNIKOLOVSKI: video of convenience store robbery; victim could not positively ID A. as long as the video has not been altered, is of good quality, and gives a clear picture of events + perp =relevant + admissible | can, by itself, be cogent evidence degree of clarity and quality + length of time focused on accused go to weight ANDALIB-GOORTANI: photos aren’t automatically admissible – they are conditional upon establishing certain facts; from CREEMER admiss depends on: (1) accuracy in truly rep’ing facts (2) fairness and absence of intent to mislead (3) verification on oath of a person capable of doing so. CR failed to authenticate b/c neither expert witness could state that the image hadn’t been altered. Criticism: Tanovich: problem w/ testifying to meaning of absence of a thing; most photos would fail; C stated it was accurate representation which is usually enough. BLACK: Chrissy grow-op; Documents found in possession of accused can be used as evidence A knew of docs’ content. [actual, joint, or constructive]PENNEY: Seal hunt video; Once it’s est’d that a video hasn’t been altered/changed, and that it depicts the scene of a crime = admiss. Factors that made video too prej: untrustworthy witnesses, possession of tape, uncertainty of format changes // could’ve been used for ID but since it was about method, selective filming was prejudicial. PV+PE will depend on the purpose of evidence.KINKEAD: life size photos; Even if photos can be auth and have PV, can still be outweighed by PE that jury will use for improper purposes, despite instructions. Range of solutions available: judge can edit, selectively admit – defence can admit certain facts, rendering photos unnecessary (strategic decisions). Admission doesn’t mean auto not probative but can get edits (e.g. life-size down to reg size)EME: BAD CHARACTER OF ACCUSED Presumptively inadmiss b/c highly prej (Arp, FFB) two step test: 1. PV to another live issue in the case? If yes: 2. Balance w/ PE HANDY: Evidence of misconduct beyond what is alleged in the indictment, which does no more than blacken his character is inadmiss. Can’t bring in to lead the inference that accused is of the type to do bad stuff. Policy bases for exclusion: 1. distracting+time-consuming / 2. Encouraging police to round up usual suspects instead of doing honest investigation / 3. Rehab undermined as goal of CJS if assuming that usual suspects can’t change EXCEPTIONS: 1. ACCUSED PUTS OWN CHARACTER IN ISSUE: calling witnesses; x-exam of CR wits; relying on good character lawful for CR to give previous convictions in evidence (SHRIMPTON)- An accused may adduce evidence of good char in general terms CR may call evidence in rebuttal but must also be general- if accused uses specific incidents, in certain circs, CR can also use specific examples to rebut (i.e. MCFADYEN) --- if accused accidentally brings in character? Fine line between saying “I didn’t do it” and “I would never” an accused doesn’t put his char in issue by denying his guilt and repudiating the allegations made against him, nor by giving an explanation of matters which are material to his defence (MCNAMARA)2. SFE: General Inadmissibility:CUADRA: W scared of C who had beaten up # of people. when wit impeached b/c of prior inconsistent statements, she should then have right to explain inconsistencies evidence of ’s prior hx admiss assuming PV>PE + evidence relevant to some other issue besides disposition // Wit’s cred a live issue; explanation of inconsistency>fact of inconsistency; PE reduced by instruction to jury re: uses of EME + only admitting 1 incident(A) SFE: subtype of EME, tends to prove that the accused prev’ly did an act w/ similar facts/context to the crime currently charged HAS ONLY ONE PURPOSE: Propensity reasoning…based on the improbability of coincidencePropensity reasoning can be subdivided into 2 categories: general [NEVER ALLOWED] and specific [doing a certain act in certain situations] at what point do we think that it would be a dishonest search for the truth to exclude the evidence? Can be used: to est a pattern increasing probability and enhance credibility of complainant Two ways (specific propensity) SFE gets introduced: (a) similarity of allegation and (b) similarity of crime scene [allows you to MIX+MATCH the evidence on each offence and use one to convict the others]HANDY: ex-wife told now-C about past abuse of . Determining Specificity: Step 1: Determine PV: 1. Possibility of collusion (unconscious or deliberate) //where there is evidence of actual collusion, or AOR of such an allegation, onus on CR to show on BOP that the evidence untainted; then for jury to decide weight 2. Identify the issue in question: broader the issue, lower PV3. Extent to which the proposed evidence supports the desired inferences:(a) proximity in time (b) # of occurrences (c) intervening events (d) similarity/dissimilarity of act and context 4. Examine the strength of the evidence that other acts occurred (>credibility = >PV; must be reasonably capable of belief to be accepted) 5. Materiality of the evidence: admitted for a minor issue, PE will outweighStep 2: Determine PE: exists in all SFE; 2 types (Moral and Reasoning)Step 3: Balance PV + PE SHEARING: Cult sexual assaults – each admitted as SFE for others; alleged collusion – evidence of collusion v. speculative: some evidence for opportunity and motive not enough to trigger gatekeeper function of TJ GRANT: using Arp; 13yo girl murdered, SFE re: similar abduction while in custody. Rule re: 3rdP suspects. TJ must determine whether the evidence is logically relevant to an available defence. AOR req’s taking the evidence at its greatest strength. Where the theory is that unknown3rdP committed the indicted crime, AOR will be satisfied w/ a suff connection between A charged w/ & allegedly similar incidents +impossibility that accused committed the other offence. TJ must also assess+balance PV + PE according to Seaboyer. Neither allow judge to do findings of fact.DENT: similar allegations of child SA. Restatement of Handy: no general propensity but may find specific propensity if a pattern is found; then it can be used as one factor in assessing whether the charged offence occurred. ID of issue (onus on CR): defines the precise purpose for which the evidence is to be used – the of similarity req’d will depend on the purpose PV based on 2 inferences: Accused has specific prop + acted on it this timePE: Reasoning: >complexity = >PE Moral: >severity of similar event = >PEEDWARDS: SFE on the issue of ID; robbery of same jewelry store same MO: Prelim determ by TJ: unique TM or # of significant similarities? if yes, allows TJ to decide (on BOP) whether alleged similar acts all committed by the same person obj improbability of accused’s involvement in the alleged acts = coincidence, giving SFE req’d PV. Once prelim determ made, evidence related to the similar act (or count in a multi-count indict) may be admitted to prove the commission of another act/count(B) HABIT: Character: general description of disposition re: general trait (honesty, temperance) vs. habit: more specific + denotes one’s regular response to a rep situation >PV, <PE b/c habits less value-laden evidence of a habit is admissible to show that an act occurred; rejected only when habit insuff’ly regular/uniform or circs are insuff’ly similar to outweigh PEBELKNAP: Something invariably done in professional life = evidence it was done MEDICAL ARTS: Probability that gen’l course will be followed in the particular caseWATSON: Evidence supporting the inferences that the dec’d was armed + used a weapon during confrontation made position of non-involve more viable relevant; evidence that he “carried a gun like a credit card” [tipped PV over PE]DEVGAN: Miracle cure for cancer can’t bring wit testimony from 3 patients. must be enough instances to permit finding of habit –only a few testifying to what doc didn’t do; not about anything A stated he routinely or habitually told patients doesn’t meet PV [looks speculative; testifying to absence of a thing]Bad Character of WitnessCEA, s. 12(1): A witness may be questioned as to convictions - limited to the fact of conviction – can be used for any wit – by or CrPurpose: goes to assessment of wit’s credibility Wit = Accused: CORBETT reads discretion into s. 12 – allowing A’s record to be excluded or edited b/c it creates high PE; CORBETT hearing: determs which offence will be allowed in (record potentially in; anything further, presumptively inadmiss) CAN ONLY BE USED FOR CREDiBILITYReg Wit: Can do more than s. 12 allows – can present record in painstaking detail (and include things that wit hasn’t been charged w/) though should be careful of not going into propensity of wit which would trigger that of A. Factors to be considered in Corbett Hearing: 1. SIMILARITY: similar offence = >likelihood of propensity reasoning > PE (purpose affecting admiss – similarity in SFE is good, similarity here is bad)2. REMOTENESS IN TIME: more recent = more relevant3. CREDIBILITY CONTEST? If credibility of Cr wits attacked extensively by accused w/ crim record, it would be misleading to exclude A’s 4. TYPE OF CONVICTION: seriousness, length, does it evince disrespect for rules and laws, suggesting accused likely to lie under oath? Dishonesty? whatever come in, you can’t go into details + jury must get limiting inst MCFADYEN: Convictions from 14 yrs ago, intervening yrs incident-free; high PE b/c similar offences; attacked C’s credibility but not on bad character or crim record attacking A’s crim record unfairCULLEN: more freedom during x-exam of reg W’s to intro general bad past. However, if it’s an acquittal, it can’t be used. Opening DoorHANKEY: Street fight – dec’d prolific street fighter. Purpose was to engage propensity of dec’d making it more likely he was aggressor. To lead that w/o evidence of A’s prior assault convictions would give distorted picture VETROVEC WITNESSES – SERIOUS CREDIBILITY ISSUES- dangerous b/c juries tend to believe unreliable witnesses; on the other hand, many crimes happen in context of a criminal community where the only witnesses are criminals middle ground: presumptively admiss + give special instructionsVETROVEC WARNING: 1. Witness is in a special category; there are specific instructions re: their testimony2. Remind jury of why wit is special (salient pts + major categories of unreliability) 3. Permitted to convict on the evidence alone, but it would be dangerous to do so 4. Direct the jury to look for confirmatory evidence WHO IS A VETROVEC WITNESS? 1. Issues with reliability? (Need 1+ / Sometimes 1 is enough (e.g. Jailhouse))- involvement in crim activity- Unexplained delay in coming forward- has W sought benefit for testimony?- Selective disclosure of info?- Series of inconsistent statements?- jailhouse informant? 2. How important is the testimony to CR’s case? Threshold: how critical is W’s testimony to determining A’s guilt?> importance = < problems needed to trigger caution (inverse also true)VETROVEC: Credibility + weight of evidence is for TOF. There are no special accomplice rules – what is more appropriate is a clear and sharp warning to the jury regarding the risks of adopting VW’s testimony w/o moreKHELA: Gang members giving testimony, corrob by their GFs. Confirmatory evidence = INDEPENDENT (untainted by VW) + MATERIAL (corroborative of an important part of testimony) - If evidence has been obviously tainted – w/ judge alone, may be thrown out – but many times it is a QOF - The corroborative evidence needs to give confidence that A committed the crime – not just reaffirm the credibility of witness in general Review of changes made by VETROVEC: 1. not just for accomplices; range of things can make W unreliable2. corroborative directly implicating accused – instead, it needs to help overcome the VW’s evidence’s “suspicious roots” MURRIN: 6 jailhouse informants // Unreliability inadmiss. It is not unfair for TJ to admit evidence which he considers unreliable unless there is some particular prejudice to A flowing therefrom. Must respect TOF’s judgment of reliability. POST-OFFENCE CONDUCTWHITE#1: 2 accused of killing Chiu + fleeing. POC allowed. 1. No-PV instruction not req’d where A has denied any involvement in the underlying charge and has sought to explain POC w/ ref to some unrelated culpable act. In such cases, it is the ID of A as perp rather than level of culpability that is in issue + it will almost invariably fall to jury to decide whether POC relates to 1 crime vs. another2. It is settled that criminal standard of proof only applies to final determination of guilt, not to individual pieces of evidence. Whether POC admiss will depend on facts of the case: what does CR seek to prove w/ POC? - Admission by accused may have the effect of narrowing the issue in dispute; if as a result POC no longer attributable to one offence or another, jury should be so instructed // Where POC can support multiple inferences, one of which is guilt of charged offence, it’ll go to jury. - Even if issue narrowed, POC may still be relevant to some other purpose - Jury should still be given instruction that: 1. POC just one part of overall whole 2. Reminder that people act guilty for innocent reasons and that the POC can support multiple reasonable inferences. PEAVOY: 2 issues: SD + intox; how to instruct jury on POC? 1. POC can’t help determine levels of culpability but it can be useful circumstantial evidence re: A’s state of mind evidence was relevant in determining whether A was aware he had committed a culpable act (vs non-culp SD)2. Also relevant to issue of proving MR for murder and rebutting defence of intox – POC can indicate a frame of mind inconsistent w/ extreme intox SBC: C raped and beaten, only issue @ trial was ID – A voluntarily gave police DNA samples and clothes. Is PO cooperation admissible? Where you can reasonably infer from POC that A is not guilty, then evidence has PV and should be admiss (unless subst’lly outweighed – SEABOYER). This does not mean that evidence of non-coop can = guilty too speculative and contrary to individual rights. NB: declarations of innocence/offer of polygraph always inadmiss b/c no risk WHITE#2: Gunshot that A claims accidental; POC can go to basic culpability – immediacy of flight can suggest culpability. This doesn’t make sense, esp. given the fact that one instruction given to jury is that people run out of panic. how is it more consistent w/ guilt to run immediately? Ct took v broad view of “one reasonable inference” of the POC. Problematic post-hoc evaluation. RODGERSON: A admitted killing but claimed didn’t intend to kill or seriously injure. POC could support a broad common sense inference that A was trying to prevent discovery of an unlawful killing but that broad inference was irrelevant to the question of intent for murder. V narrow permissible inference re intent not explained to jury: A sought to conceal the nature and extent of the victim’s injuries and the degree of force req’d to inflict themIDENTIFICATION EVIDENCEWhy it’s problematic: wrong while looking deceptively right (ID’d by a stranger under stressful circs; W has no reason to lie) GONSALVES: Robbery of speaker-van. ID evidence doesn’t need to be perfect – flaws will go to weight. CA shouldn’t overturn just b/c lineup could’ve been better. Best Practices of lineups for Inquiry Regarding Thomas Sophonow:Min 10 photos shown sequentiallyVideo or audio recording of the interviewPerson running the line-up should not know who the suspect isShould be soon after the eventLIMITING INSTRUCTIONS REQ’D: prosecutions involving ID of a stranger are inherently dangerous and there is risk of miscarriage of justice+mention indicia of quality of the ID which make it a more/less dangerous case:Accused a complete stranger or known to the witness?Opportunity to see the suspect fleeting or more subst’l?Did the witness commit the description to writing or report the description to police in a timely way, when the memory is fresh? [in-court ID is virtually valueless; an exception to the general rule against out-of-court statement]Is the description general, generic, or vague? Or is there a description of detail including distinctive features of the suspect?Intervening events = tainting memory? Has the witness described an erroneous distinguishing feature or failed to mention a distinctive feature of the accused? Is the ID unconfirmed?HAY: short picky dreads-2nd shooter. Hair used to explain weak wit ID + POC. If not from head hair, other evid could be explained innocently.Discretion of CA to admit new evid: overriding concern is interests of justice; 4 principles (3 prereqs + 1 factor): 1. RELEVANCE: bearing upon decisive or potentially decisive issue at trial2. CREDIBILITY: reasonably capable of belief3. DIFF OUTCOME: reasonable certainty verdict would’ve been diff4. DUE DILIGENCE: shouldn’t be admitted if could’ve been seen at trial (though less strict for crim trials) policy reasons: maintaining public confidence; discouraging evidence withholding; lack of finality; best forum for adversarial system Dufraimont on Significance of HAY: (1) now open to TJ to direct acquittals where Cr can only show weak + unsupported eyewitness ID (vs. merely going to weight) (2) same goes for prelim inquiry (vs. req’d to proceed to trial w/ any direct evidence) (3) Judges precluded from instructing that they can convict on weak eyewitness ID alone…Should Vetrovec instructions be changed to reflect same awareness of non-credible witness testimony as unreliable? OPINION/EXPERT EVIDENCEOpinion helps TOF draw a relevant inference unlikely to be w/in their own exp. Dangers: looks more reliable; giving decision-making to expert; communicating opinions: premises apparent?; counsel inexpert + incompetent @ cross; (un)conscious bias of expert to whoever pays ; Resources involved ($ and ct time)STATUTORY RULES: s. 657.3 CC: exchange of expert reports + notice req’s. Presumptively MON KNOWLEDGE: not all opinion evidence comes from expt: allowed to have C express relevant opinion based on CK but may be of limited weight when x-exam if factual basis weak; can’t attempt to answer legal Q?GRAAT: Drunk driver claims police testimony re: intox inadmiss. Evidence admiss not b/c PO an expert but b/c his opinion based on common knowlGENERAL RULES FOR EXPERTS: (after meeting statutory rules)WHITE BURGESS: accountant testifying to former accountant’s incompetence. 2 stage admiss test:1. Threshold reqs: [(a)-(d) = MOHAN factors](a) relevance (b) necessity (c) no excl rule (d) properly qualified expert; willing+able to give evidence that: [i] impartial [ii] independent [iii] unbiased (e) for opinions based on novel/contested science, underlying sci must be reliable for that purpose 2. Gatekeeper test: benefits>risks (i.e. PV>PE); considering: relevance, necessity, reliability, absence of bias, the way the evidence is presented (low risk of usurping TOF may = low PV) LOW (info, no concl) MED (hypothetical) HIGH (definitive conclusion)J(J-L): new penile stimulation testing Super-reliability test for novel scientific evidence (do before MOHAN test) 4 questions, 3 of which can be seen as indicia of 4th, overall Q Is theory/technique used generally accepted?1. can it be/has it been (blind) tested?2. Peer reviewed? Published? 3. Known/potential rate of error?Necessity – one way of ensuring fewer expertsPERLETT: accused had diff memories of events right after vs at trial. Defence wanted expert to testify re: effects of trauma on memory. Found to be w/in normal experience not necOSMAR: Mr. Big confession. Jury did not need expert testimony to understand that confessions made under such coercion are more suspicious. SEKHON: Never seen a blind courier. Problems: - answering the legal Q- unnecessary - anecdotal evidence that doesn’t speak to facts of the case but has artificial attractiveness of making it look like probabilities in Cr favour - logically triggers need for A to find rebutting experts (contra principle that Cr needs to prove case b/c D would need to prove that despite expert’s evidence, his situation is diff)BRYAN: strong inference that possession of paraphernalia = trafficker. Allowed; no prohibition on expert evidence going to ultimate issue *may no longer be good law; changed v much w/ Abbey LLORENZ: complainant’s psych testified re: her credibility. could testify re: reasons for delay, compare gen’l patterns of symptoms; but must not pronounce on the ultimate issue of credibility. Evidence that may assist credibility may be admiss if it has legit purpose beyond credibility of CFoundation – add to Mohan factors Experts are confined to expressions of opinion founded on facts proved at the trial, by the expert’s personal observation of the facts in issue, or proved through the testimony of other witnesses w/ opinion elicited using hypothetical. One exception: opinion may be expressed on facts not otherwise proved (i.e. based partly on statements made o/s trial, where it’s necessary to do so and/or circs guaranteeing the trustworthiness of the statements)LAVALLEE: limited lack of foundation, will usually go to weight, not admiss JORDAN: Expert testified substance was heroin but other analysts actually did the tests = hearsay? Cts should take reasonable approach to scientific proof; following this rigorously can lead to absurditiesWORRALL: Heroin found in decd’s bloodstream. Don’t need independent proof of foundation of opinion on when that info obtained w/in the scope of their expertise. ABBEY: teardrop tattoo. Reliability for non-scientific expertise based on whether the expert’s training and experiences permitted them to develop a specialized knowledge that was sufficiently reliable to justify placing his opinion before the jury. Takes place in the 2e balancing test; must take into acc’t whether the witness has honoured the boundaries + limits of the discipline from which their expertise arises [i.e. SCOPE]WITNESSES Credibility + ReliabilityPARENT: 7-11 parking lot. To assess credibility, look at following factors: 1. W’s ability to observe events, record in memory, recall, + describe accurately 2. External consistency (w. other ind. Accepted evid)3. Internal consistency (EIC vs. X)4. Prior inconsistent statements? Previous lying? 5. Accordance w/ common sense?6. Motives to lie/misled7. attitude and demeanour (be careful) PERLEY: SA of intox C. Credibility – reliability distinction: Veracity = W’s sincerity + willingness to speak the truth as they believe it to be CredibilityAccuracy = W’s ability to accurately observe, recall, recount facts Reliability W who is not cred can’t give reliable evidence but a cred W may still give unreliable evidenceAbility: Standards to be met before W can take the stand1. Competency: (a) Oath: Ensuring moral responsibility to tell the truth(b) intellectual ability to understand Qs and give intelligent As2. Compellability: all witnesses are compellable (w few exceptions, like A) Just can’t ask Qs re: understanding of promise beforehand. Direct Examination LEADING QUESTIONS: Qs that directly or indirectly suggest A. On material pts, party can’t lead own witness but may lead those of adversary. Why? bias of W towards their side; you known your own W’s testimony = advantage; honest assent to Q that could’ve been more accurate in W’s own words Exceptions TJ should allow for direct exam leading + restrain x-exam leading based on underlying philosophy: get W’s version of events, not the questioner’s. ROSE: CrC’s questions clearly suggestive and read more like x-exam than EIC. The impropriety was magnified b/c testimony given in exchange for stay of proceedings. New trial ordered. Refreshing Memory: PMR + PRRWILKS: Insurance case manager testified from notes. 2 hearsay exceptions exist to allow for W’s memory to be refreshed: PAST MEMORY REVIVED: Lapse of memory | allowed to have aid | confirms refreshment | returns aid | W testifies w/o further aid, having a present memory of the facts. PAST RECOLLECTION RECORDED: Putting previous statement in as evidence and using words as if they were spoken on the stand. Must be necessary and reliable to ensure not overly prej. 4 requirements: 1. Reliably recorded: notes suff. Ideally audio/vid or signed statement written by W in 1st person. 2. Vivid + fresh recording: at the time of the recording, events must be suff’ly recent as to be probably accurate – untainted and new. 3. Assertion of accuracy: W must be able to affirm that the record accurately represented his knowledge + recollection at the time4. Original recording: should be used if procurable. Problems: exception to rule of in-ct testimony only; impossible to x-exam; not made under oath. R v B(KG): Ws allowed to refresh memory before trial began, using statements given to the police. When W refreshed her memory from some external source or event, she has a present memory, albeit a refreshed one. How reliable + truthful her recollection is will be for TOF to decide. Cross Examination LYTTLE: A wants to assert possible drug motive for beating. x-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience, or intuition. The matters don’t have to be o/w proven, as long as counsel has GF basis for pursuing. Where a Q is manifestly tenuous or suspect, TJ can restrain [injection of obj over subj standard of GF] **potential clash w/ alternative suspect rule – in cases where specific hypoth entails alt suspect, GF standard raised to suff connection R v R(AJ): A convicted of incest w/ daughter and gdaughter. Crown v improper in cross – sarcasm, editorial, bad character, giving evid, arguing, contemptuous, asking A to comment on veracity of other wits. The repeated improper questioning during cross destroyed the necessary appearance of fairness in the trial MCNEILL: crown’s cross exposed conversation that contradicted CrW’s version of events. Rule from Brown v Dunn: If counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address it during cross while in box. If rule broken, TJ has discretion to recall W. Where impossible, special instruction may be given [in assessing weight of testimony and cred of W, can take into acct the fact that opposing witness not questioned]. If recall declined, no instructionsRe-Examination SIPES: Purpose: rehabilitative and explanatory. Scope: explain, clarify, qualify answers given in cross – no right to intro new topics or go back to things from direct. IF allowed, can’t just repeat same test from direct. **precludes necessity of McNeill remedy Collateral Facts and Rebuttal EvidenceConcerns about efficiency of justice system; over-complicating case; ability to make full answer and defence if Cr allowed to split their case Collateral Facts Rule: Forbids the introduction of extrinsic evidence which contradicts a witness’s testimonial assertion about collateral facts. If asking Q about credibility, counsel must accept the answer and cannot lead other Ws. KRAUSE: exception to collateral facts: to rebut an assertion or an issue which could not have reasonably been anticipated and where the matter is concerned w. the merits of the case – could you use the info to prove/disprove one of the elements of the offence? STATEMENT EVIDENCEPrior Consistent and Inconsistent StatementsPIS: tool for attacking cred – inadmiss for truth of contents (except PRR + ID)PCS: generally inadmissMCCARROLL: Adoption: requires W acknowledge that they made the statement and, based on present memory of the events referred to in the statement, verify the accuracy of its contents. STIRLING: Recent Fabrication: Exception to inadmiss of PCS. Not to prove truth of statement but to rebut suggestion of recent fab by showing purported motive inoperative when statement first given. DINARDO: Narrative exception: helps TOF understand disclosure of crime – to show fact+timing only general allegation, no details. CURTO: same allegation multiple X does not increase truth/reliability. Only admiss if necessary to provide chronological cohesion/eliminate narrative gapsEDGAR: Spontaneous exculpatory statements made upon arrest/shortly after may be exception to PCS. Shows reaction which may be relevant to credibility and may have bearing on guilt. BUT, accused must testify. Risk of fabrication dealt w/ in cross. Attacking Credibility of Own Witness:CEA, s. 9(2): previous statements by witness not proved adverse. 1. Your own witness2. Prior statement in writing, reduced to writing or rec3. Inconsistent in significant/important manner4. TJ has discretion to allow limited cross – limited to fact of the inconsistency and allowing W provide an explanation **risks that jury will hear a prior statement that’s damning and also inadmissible for its truth. R v S(C.L.): W’s videoed statement implicating accused in murder. Not remembering can constitute an inconsistency for the purposes of s. 9(2) if TJ thinks that the loss of memory is feigned. Test: whether it serves the ends of justice – can depend on circs surrounding the statement and Cr’s expectations of W. MILGAARD: car of kids travelling – Nichol John. Procedure for 9(2): 1. advise ct making application under 9(2) 2. Jury retires3. Counsel advises of particulars of app + produces alleged statement 4. TJ determines whether there’s inconsistency. If yes, counsel must prove statement – either W admits, or other evid. 5. If W admits, OC should x-exam re: circs of statement 6. TJ makes decision. If 9(2) succeeds, X must be in front of jury s. 9(1): Adverse witness, next step after 9(2) to attack general credB/c 9(2) explores the reason for PIS, if there is no reasonable explanation (or a possible suspect motive for changing story) = adversity. Can also be outright hostilityCASSIBO: incest magazine. Prior allegations relevant to show narrative of how abuse stopped. Mom started out as Cr W then started talking about magazine on cross. Cr makes 9(1) app (PIS oral have to go straight to 9(1)). Positive damaging evidence change in testimony w/o reasonable explanation AND worried about husband adverseMALIK: Air India PIS. The purpose of 9(1) is to lower the credibility of new positive evidence by revealing prior inconsistencies. Where W doesn't remember – even where feigned – there is no new positive evidence to destroyHEARSAY: testimony in ct or written evidence of a statement made OOC, being offered as proof of the matters asserted therein and relying on credibility of OOC declarant for its value. 2 issues: In-Ct: more likely to tell the truth (perjury, solemnity, presence) and better for evaluating credibility & X-Exam: sources of error in inaccurate perception, memory, ambiguous description, and insincerity are left untouched OOC can be admiss for the fact that it was made but if it contains an assertion which is itself a relevant fact = hearsay. If there are relevant, meaningful Qs the adversary would want to ask = hearsay. OOC fqly relevant in considering mental state and conduct of W or other person in whose presence statement was made. BALDREE: police picked up drug dealer’s phone. Implied assertions also properly considered hearsay. Relevance still depends on reliability of declarantBALTZER: conversation of weird nature. Relevant to issue of insanity. Adduced to show statements were made, not for their truth. Traditional exceptions: AGAINST INTEREST: N(D unavail) R (unlikely to make declaration adverse to own interest)DEMETER: extension of interest to include penal interest; reliability guarantor is vulnerability. (Not too remote, can’t favour D on the whole; on borderline cases consider connections between D+A and between D+crime)LUCIER: Declarations inculpating A are inadmissDYING: N (D dead) R (No motive to lie)AZIGA: non-disclosure of HIV. Dying declarations admiss when: hopeless expectation of death, concerns circs surrounding death, evidence would’ve been o/w admiss + offence is homicide of dec’dCOURSE OF DUTY: N (dead, can’t remember b/c so routine) R (motive for truth b/c it’s your job)LARSEN: autopsy report + suppl report. Req’s under CL exception: (1) original entry (2) made contemporaneously (3) in the routine business (4) by a person w/ personal knowledge of the thing recorded (5) who had a duty to make the record (6) and had no motive to misrep RES GESTAE: Insincerity danger b/c no opp to fab; memory b/c contemp. But dangers of misperceptions still exist – must be explicitly mentioned to jury b/c the very fact of its startling nature may have impaired perception CLARK: “help I’ve been murdered.” Declaration must be sufficiently contemporaneous to preclude concoction but doesn’t need to be strictly so. SHEA: guys were strapped. No reason to lie, unaware of wiretap, captured crime in progress = classic example of res gestaeSTATE OF MIND: Limited exception where HS used as circ evidence from which inference re: SM can be made PANGHALI: murdered wife’s journals. Must be unambiguous and made in circs where dec’d had no motive to misrep. Admiss only to find animus from which may infer husband might have had motive but can’t be relied upon as accurate recordings of eventsSTARR: D told W he was running a scam w/ A – answer to confrontation w/ GF; possible motive to lie. To be admiss, the statement must be of a present existing state of mind and must have been made in a natural manner and not under circs of suspicion. ORAL HX: DELGAMUUKW: AR defined by ref to pre-contact/sov’ty must seek sources of record. Although nature of OHX tends to count against admiss + weight on the trad’l view, they would not o/w be provable necessary MITCHELL: admiss judged on usefulness and reliability. U (not o/w avail or provides Aboriginal perspect) R (ability to know + testify to orally transmitted traditions)The Principled Approach: N+R on BOPKHELAWON: retirement home abuse allegations. Statutory Exceptions: Business Records (CEA s. 30)WILCOX: crab book. Inadmiss under CL (not under duty to keep record); hard to qualify as usual course of biz when biz said don’t keep it on the fence w/ statute principle: R (IT): no motive to lie, no disputes over figures, available for X N: W couldn’t give meaningful material evidence w/o book; N doesn’t have to be very high (i.e. can be closer to efficiency/expediency) when R is v high ADMISSIONSFormal: s. 655, CC: allows A to admit any fact alleged dispensing w/ proof CASTELLANI: While Cr’s case is being put, the defence does not have the right to make an admission unless the Cr is willing to accept it. PROCTOR: Enough to make a petrified mummy cry. Although admissions must be accepted by the Cr, Cr is not entitled to refuse acceptance where its purpose in doing so is to keep an issue alive artificially Informal: Presumptively Admissible - can only be made by party to litigation- treated as an exception to hearsay but do not bear usual markers of N R- theory for admiss: fairness, responsibility, adversarial system (uniquely situated to defend a statement you’ve made previously while in ct w/ a lawyer), similar to declarations against interest exception - Needs to be used in its entirety + once admitted, avail for either side (does not mean that 1 statement being admitted = all statements must be)- 2 overarching concerns: truth and fairnessPROBATIVE VALUE: should have suff threshold reliability to give evidence PV and warrant admission; usually left to TOF HUNTER: partial overhear. Where an overheard utterance is known to have context but that context is itself unknown, it may be impossible to know the meaning of the words or to conclude that they represent a complete though. Even if overheard words can be said to be relevant, if their meaning is speculative, the words should be excluded. VOLUNTARINESS RULE: the single most important way to exclude a statement where a statement is made to PO, Cr must prove voluntariness BRD before it is admitted- not about actual truth but the surrounding circs - A must know that it is a PO OICKLE:Voluntariness: a number of factors weighed together that can be vitiated through: (a) FEAR OF PREJUDICE/HOPE OF INDUCEMENTS: legal inducements not okay; moral inducements are. Fine line when PO attempting to reduce the moral weight of the allegation – moral becoming legal // threshold crossed when RD about whether A’s will has been overborne; quid pro quo is key red flag(b) OPPRESSIVE ENVIRONMENT/CONDITIONS: then linked to a confession; needs to be >length; exaggeration of evidence doesn’t automatically vitiate but may impact (c) OPERATING MIND: A must know what they are saying and the use to which their statements may be put (d) OTHER POLICE TRICKERY: broad category designed to protect integrity of justice system; inadmiss if obtained through methods that would shock the conscience of the publicHART: twin daughters drowned, epileptic dad. Mr. Big confessions are presumptively inadmissible. In order to render them admiss, must evaluate circumstances of confession, internal reliability, and the prejudicial effect. If, despite those factors weighing in favour of admiss, there has been abuse of process, the evidence is automatically inaddmiss. Abuse = where will of A is overcome – preying on vulnerabilities, violence, etc.**note the trend w/ HAY and HART: ct making inherently unreliable evidence presumptively inadmiss but leaving wiggle room where there’s corroborative evidence GREWALL: multiple co-accused in murder conspiracy. Admissions of co-accused: an OOC confession is only admissible against the accused who made it and not against the co-A in the same trial. Editing a statement may be necessary but doing so must not affect the tenor of the relevant statement Where editing cannot be done, cts have taken to doing a limiting instruction EXCLUSION OF EVIDENCE UNDER THE CHARTER s. 8: unreasonable search and seizure: right to invade privacy only permissible when there is reason to do sos. 10(b): statements made w/o right to counsel: right to be informed, upon arrest/detention, of the right to contact a lawyer and to be given such an opportunitys. 24(2): evidence obtained in contravention of Charter may be excluded on discretion of TJ, when admission would bring the administration of justice into disreputeOld system: Conscriptive (emanating from A) vs. non-conscriptive GRANT: black kid stopped by police in TO; gun found. When faced w/ an application to exclude evidence, ct must balance the effects of admitting such evidence on society’s confidence in the justice system, having regard to: 1) The seriousness of the charter-infringing conduct (from societal perspective)2) Impact of the breach on the charter-protected interests of A3) Society’s interest in the adjudication of the case on its meritsIn terms of how this test shakes out w/ diff kinds of evidence:a) Statements: presumptively inadmiss. b) Bodily: depending on invasiveness but generally if non-incasive, admiss (R issue)c) Non-bodily physical: concern w/ degree of reasonable expectation of privacy but probably admissd) Derivative: unlawful statement phys evidence = discoverability is tie-breaker. Assess how tightly connected the unlawful statement was to finding the phys evidence. If not o/w discoverable, pretty much out. Privilege against self-incrimination POLICE CUSTODY: SINGH: 6hr interrogation; A invoked silence 18X. s. 7 right to silence in custody is covered by the voluntariness rule – the key is whether the person’s right to make a free choice has broken down. Breakdown may be effected by: # of times A expressed silence; police telling A he had to make a statement; impact on individual accused (vulnerable? Sophisticated?) NB: for law enforcement justifications, no s. 1 analysis. No proof. Creates a new right that gives police unfettered access to the detainee SINCLAIR: S. 10(b) right to counsel ends w/ the initial consultation OUT OF CUSTODY: CL right to silence exists generally in society – no duty to assist law enforcement (o/s statute)TURCOTTE: A went into police stn and told police to go to the farm. Perverse to draw an inference of guilt from silence b/c it is merely the assertion of one’s civil rights. Silence POC. The right continues throughout interacting w/ police; can stop and the right is not waived and no inference can be drawn from the stoppage. Silence may be admissible as part of narrative to explain why the story only goes so far. WITNESSES: Leg’n provides that witnesses can be compelled to give self-incriminating evidence but s. 13 protects against later use (including @ 2nd trial)HENRY: If A chooses to testify at both trials, prior testimony can be used for impeaching or incriminating. Use immunity extends to all other trials (not just crim)NEDELCU: s. 13 protects any compelled statement, but it only covers incriminating evidence. If evidence is innocuous, and used solely for impeach, it’s allowable. STATUORY OBLIGATIONS: s. 7 allows for compelling testimony but the key is providing protections – use immunity/derivative use/constitutional exemption [gov’t only compelling statement in the hopes of getting evidence to use @ criminal trial]BC SECURITIES: If compelled to testify, persons compelled get use and D.U. But DU subject to o/w discoverable doctrine RE: APPLICATION UNDER S.83.28: terrorism leg’n. If an individual is compelled to give a statement pursuant to a statutory authority, they must. But, will receive U+DU immunity. 83.28(10)(b) not subject to o/w discoverable PRIVILEGE BASED ON CONFIDENTIAL RELATIONSHIPS SPOUSAL: can be compelled to testify but not about communications in the course of marriage. Can always choose to do so. Class Privilege: SCPintended to be confidential, for purposes of obtaining legal advice Clearly obstructing the search for the truth rules need to be o/w justified to compel info from these relationships would cause harm to a relationship thought of as both necessary and beneficial for society, and which is dependant for its efficacy on confidentiality. DESCOTEAUX: fraud on legal aid intake form. Priv+Con begin when legal advice is sought (any communication in obtaining such advice covered) EXCEPTIONS: Must be made in professional capacity // must be made to lawyer or agent // if the communications are made in order to facilitate commission of crime/fraud, they are not covered, regardless of whether lawyer acting IGF SUBSTANTIVE RULE: 1. Confidentiality protects communications between C+S whenever they are likely to be disclosed w/o client’s consent2. Unless the law provides o/w, when + to what extent the legitimate exercise of a right would interfere w/ another person’s confidentiality, conflict should be resolved in favour of con3. Where law allows for interference w/ con, the decision to do so + means thereof should be determined w/ a view to not interfering except to extent absolutely necessary to achieve ends sought4. Leg’n allowing interference under 2 or 3 must be interpreted restrictively RULE OF EVIDENCE: in civil + crim cases, confidential communications need not be given by client + cannot be given by counsel w/o client’s permission Case-by-CaseGRUENKE: confessed to pastor CASE-BY-CASE CRITERIA: (Wigmore)1. Communications originate in a confidence they won’t be disclosed2. Confidentiality essential to the full + satisfactory maintenance of the rel’nship between the parties3. The relationship seen by society as onet hat ought to be fostered 4. Injury to rel’n > benefit gained from disclosure of info ExceptionsPUBLIC SAFETY – FUTURE HARM (SMITH v JONES)Psychiatrist seeing A who planned to kidnap + kill prostitutesTEST: 1) Clear risk to identifiable person/group | 2) risk of serious bodily harm/death | 3) Imminent danger When these criteria met, must be as little interference as possible but info may be used in law enforcement as well as @ trial INNOCENCE AT STAKE (McCLURE) SA in crim + civil cases; A got civil discovery file 2 stage test: Threshold: (1) Info unavailable from any other source & (2) Accused not o/w able to raise RD IF YES (1) Evidentiary basis to conclude that a communication exists that could raise RD (2) If so, TJ must examine communication in order to determine that it is likely to raise RD BROWN: Evidence that would’ve been protected, but for operation of McCLURE, must not be used against declarant, if and when he becomes an A (vs. public safety exception, where evidence can be used at trial) WAIVER (SHIROSE) reverse sting op cleared by DOJ lawyer Where an aspect of legal advice is used to buttress a case, that is an implicit waiver of privilege + allows the other side access to that info. Mere mention of receiving legal advice insuff. ................
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