Ontario Paralegal Network

Evidence for Paralegals

Omar Ha-Redeye

Feb. 6, 2014

Part 1 – Background on Evidence

• Why does evidence matter?

• How does it work for paralegals?

Why Does Evidence Matter?

• Litigation is primarily about factual disputes

• The law, even when it is disputed, is an interpretation of these facts

• The trier of fact (judge, justice of peace, tribunal chair) determines which version of the facts is more credible through the evidence

Summary of Types of Evidence

• Types of evidence typical seen

–Documentary (time consuming)

–Expert (scarce, expensive)

–Testimony (wildcard)

• Witnesses will be the main form of evidence seen in the paralegal scope of practice

Difference for Paralegals

• Different scope of practice means evidence typically operates differently for paralegals

– Less emphasis on admissibility

–Greater emphasis on weight

• Tactic: Use of admissibility criteria to speak to weight

Emphasis on Judicial Discretion

• S. 27 of the Courts of Justice Act provides very broad judicial discretion– May use unsworn witness statements instead of

oral testimony

– Can include hearsay in these witness statements

– May file other documents which include hearsay or otherwise considered expert evidence

• However, this discretion can be constrained by other statutes

O’Connell v. Custom Kitchen and Vanity, [1986] O.J. No. 790, 11 C.P.C. (2d) 295 (Ont. Div. Ct.)

– Dispute over admissibility of estimates by contractors as hearsay

– Documents were also not served properly

– Rules are not prohibitory, and discretion can still allow admission

– judge an overriding discretion to admit documents into evidence, particularly in the absence of a timely objection by opposing counsel.

Focus on Just and “Good Conscience”

• Summary hearings under CJA

• 25. The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.

Application of Small Claims Court Rules

• Broad interpretation of the rules• S. 1.03 (1): liberally construed to secure the just,

most expeditious and least expensive determination

• S. 1.03 (2): If rules do not cover it, broad discretion to make orders that are just– Allows courts to make reference to other statutes,

including the Rules of Civil Procedure• Introduces law normally not part of small claims practice

• S. 2.02: rules may be dispensed with if necessary in the interests of justice

Evidence in Small Claims Trials

• Governed by Rule 18

• R 18.01 – may be proven by affidavit if undefended

• R 18.02 – written statements, service, authorship

• Question: Will new e-service Rules apply? Can they?

What do Triers of Fact Care About?

• Consider admissibility vs. weight

• Admissibility factors:– Relevance– Materiality– Probative Value– Prejudicial Impact

• Can still use policy considerations and principals for weight in this scope, even when admissibility is not an issue

Relevance

• The threshold test for the admissibility of all evidence – is the alleged fact both relevant and material?

• Relevance – relates to whether the evidence proffered to support an inference makes the inference more probable than it would be without that evidence

– If Fact A makes the existence or non-existence of Fact B more probable than it would be without it, then Fact A is relevant to Fact B and prima facie admissible, given that Fact B is itself a material fact in issue or is relevant to a material fact in issue

– Relevance has a low threshold

• R v Seaboyer, [1991] 2 S.C.R. 577 – Relevance underlies all rules of evidence

– Evidence must be logically probative of some matter requiring to be proved and should be admitted unless an exclusion can be justified on grounds of law or policy

• All relevant evidence is admissible subject to the discretion of the judge to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or should be excluded on grounds of policy or law

• The ultimate decision of whether a piece of evidence is relevant rests with the judge and how they interpret the probabilities relating to that evidence

Materiality

• Materiality – refers to the fact that evidence must be relevant to a legal issue in the case

• Eg: the accused is charged with possession of undersized lobsters.

• Defense counsel offers in evidence a witness who will testify that the accused did not know that there were undersized lobsters in his catch.

• What do a prosecutor say? They would say, “the evidence is immaterial.”

• The accused’s state of mind does not matter and is immaterial because there is no mens rearequirement for the offense of possession of undersized lobsters as the offense is one of absolute liability

Probative Value versus Prejudicial Impact

• Probative value – strength of the inference that can be drawn from the proposed evidence

• Prejudicial impact – admitting the evidence will create unfairness either by its misuse, the undue consumption of time, or the confusion it creates

• In criminal cases, where evidence is given by the accused, evidence may only be excluded where probative value is substantially exceeded by prejudicial effect

• Discretion under the Charter to exclude evidence to ensure a fair trial:

– S. 24(2) – exclusion where admissibility brings administration of justice into disrepute.

R. v. Corbett, [1988] 1 S.C.R. 670.

• Issue – was the accused deprived of his right to a fair trial due to the admissibility of evidence of his prior conviction of murder?

– s. 12(1) of Canada Evidence Act – witness may be questioned about criminal history

– s. 666 of the Criminal Code – evidence of previous conviction where good character evidence adduced

How the Weighing Works

• Value of admitting the evidence – the prior criminal record has probative value – information that the jury must be provided

with to assess the credibility of the witness

• Risks – jury might make more than it should of the fact, and apply it to other issues where it should not be relevant – eg. use the prior conviction to conclude that

the accused is the type of person likely to have committed the offences

• Conclusion –potential for prejudice recognized as significant

• However, Court held that potential for prejudice could be overcome by a proper instruction to the jury about the impermissible use of the prior record

Factors to Consider

• Prejudicial effect and factors to consider for the exclusion of evidence:

– Evidential facts may unduly heighten the jury’s emotions of prejudice, hostility or sympathy;

– May create a side issue that will distract the jury from the main issues;

– The evidence and counter-evidence will result in undue consumption of time

– There is a danger of unfair surprise to the opponent and unpreparedness to respond

Application for Paralegals

• Can evaluate probative value by looking at relevance and materiality

• Prejudice is minimized given the lack of juries

– Judges are presumed to take inflammatory or extraneous material into consideration

• But judges are also human

• Prejudice still risks annoying or inflaming trier

SPPAWhat is admissible in evidence at a hearing• S. 15(1)….a tribunal may admit as evidence at a hearing,

whether or not given or proven under oath or affirmation or admissible as evidence in a court,– (a) any oral testimony; and– (b) any document or other thing, relevant to the subject-matter of the

proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

What is inadmissible in evidence at a hearing• (2)Nothing is admissible in evidence at a hearing,

– (a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

– (b) that is inadmissible by the statute under which the proceeding arises or any other statute.

Conflicts• (3)Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or

purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

The New Approach to Evidence

• Shift in focus to necessity and reliability– R. V. Khan [1990] 2 S.C.R. 531– Stems from Wigmore‘s principles evidence

• Less of a focus on other factors or exceptions, i.e. explicit use of hearsay exceptions– Policy rationale behind common law exceptions can still be used

for weight

• Reference to necessity and reliability often a more useful approach– Necessity of getting to the truth, or lack of necessity by

prolonging trial– Reliability based on circumstances around the evidence, or lack

thereof which characterizes how the evidence should be perceived

Part 2 – Using the Evidence

• Types of evidence used by paralegals

• Best forms of evidence in different contexts

Types of Evidence

• What does evidence look like?

• What is the “best” form of evidence for paralegals

Copies of Documents

• CJA Section 27.

• Copies(5) A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity.

• Business RecordsSection 35 (2)Where business records admissible

• (2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

• Business Records Section 35 (4) Surrounding Circumstances – (4) The circumstances of the making of such a

writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.

• Keep in mind, there is a common law basis for business records as well (Ares v. Venner, [1970] SCR 608)

Part 3 – When Problems Emerge

• Missing witnesses

• Challenging the evidence

• The problem with experts

The Missing Witness

• Witnesses who fail to appear can create inordinate delays, additional time, extra costs, and even lose your case

• Ensure witnesses are summoned in advance

– Explain to them that this is not an adverse process, i.e. get them on side

SPPA

Summonses

• s. 12. (1) A tribunal may require any person, including a party, by summons,

– (a) to give evidence on oath or affirmation at an oral or electronic hearing; and

– (b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding and admissible at a hearing.

WSIA

Powers re proceedings• S.132. (1) The Board and the Appeals Tribunal may do the

following things in connection with a proceeding:– 1. Summon and enforce the attendance of witnesses and

compel them to give oral or written evidence on oath or affirmation. These powers may be exercised in the same manner as a court of record in civil proceedings.

– 2. Require persons to produce such documents or things as the Board or tribunal considers necessary to make its decision. This power may be exercised in the same manner as a court of record in civil proceedings.

– 3. Accept such oral or written evidence as the Board or tribunal considers proper, whether or not it would be admissible in a court.

POA

• Issuance of summons• 39. (1) Where a justice is satisfied that a person is able to give

material evidence in a proceeding under this Act, the justice may issue a summons requiring the person to attend to give evidence and bring with him or her any writings or things referred to in the summons.

• Arrest of witness• 40. (1) Where a judge is satisfied upon evidence under oath or

affirmation, that a person is able to give material evidence that is necessary in a proceeding under this Act and,

• (a) will not attend if a summons is served; or• (b) attempts to serve a summons have been made and have failed

because the person is evading service,• the judge may issue a warrant in the prescribed form for the arrest

of the person.

• Commission evidence of witness in custody

• (11) A judge or the justice presiding at the trial may order that the evidence of a person held in custody under this section be taken by a commissioner under section 43, which applies thereto in the same manner as to a witness who is unable to attend by reason of illness.

The Importance of Cross Examination

• Cross examination is one of the fundamental processes for procedural fairness

• Ensures that the evidence is tested properly

• Lack of proper cross-examination can have a significant effect on cases

• Also means you have to properly prepare your witness in advance

Witness Preparation

• Before trial, counsel prepares their witness by reviewing the evidence that the witness will provide which includes facts and documents

• Counsel will review the following with their witness:

– Evidence that the witness will be giving in court

– Documents that you will be showing the witness in court

– The types of questions that counsel will be asking the witness in direct examination

– The types of questions that opposing counsel may ask the witness in cross-examination

– How to answer questions clearly, honestly and concisely, and not give scripted answers

– Courtroom etiquette

Witness Preparation Cont’

Manner of questioning

Examination-in-chief:

• Leading questions – a party calling a witness cannot ask the witness leading questions. Leading questions are questions that directly or indirectly suggest the answer that the witness should give

• A party can ask leading questions in relation to the following:

– For introductory, formal or undisputed matters;

– For the purpose of identifying person or things;

– To allow one witness to contradict another regarding statements made by that other;

– Where the witness is either hostile to the questioner or unwilling to give evidence;

– Where it is seen, in the trial judge’s discretion, to be necessary to refresh the witness’s memory;

– Where the witness is having difficulty communicating on account of age, education, language or mental capacity;

– Where the matter is of a complicated nature and, in the opinion of the trial judge, the witness deserves some assistance to determine what subject the questioner is asking about

Hostile Witness

• A party is not permitted to produce general evidence to discredit his/her own witness

• Exception: when the witness is declared hostile (common law) or adverse (Evidence Act)

• Allows you to shift into cross-examination on own witness

Admissibility of Expert Evidence

Admissibility of expert evidence depends on:

1. Relevance• To be determined by the trier of fact

• Is a threshold requirement

2. Necessity in assisting the trier of fact

• The Mohan factors controlling admissibility of expert evidence:– Relevance

– Necessity of assisting the trier of fact

– Absence of any exclusionary rule

– Properly qualified expert

Communicating with the Witness During Trial

• R 4.03 of Paralegal Rules of Professional Conduct

– (1) – governs what can be discussed with a witness during examination in chief and cross

– (2) – allows for some discussions, with consent of the other side

The Problem With Experts

• If you bring an expert, then so will I– May not be necessary to proceedings, only done to

outspend the other side

• Adds extra costs for clients who do not have the money– How does this affect access to justice, and a

paralegal’s specialized scope?

• Whose interests do the experts actually serve?– Newer Rules (2010), common law– Discussions with experts (Moore v. Getahun, 2015

ONCA 55)

Implications of Moore

• Paralegals are permitted to review and discuss draft reports with experts;

• Paralegals and expert witnesses can and should meet to ensure that expert evidence is clear and pertinent;

• Discussions, draft reports, notes and records between counsel and expert witnesses protected by litigation privilege;

• Party should not be allowed to demand production of draft reports or communications absent reasonable grounds of improper interference

Establishing (or undermining) an Expert’s Credibility

• Properly qualified expert:

–Must have special or acquired knowledge

–Knowledge must be scientific knowledge

• Judges as a Gatekeeper (see Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6)

Admissibility of Novel Science

• A novel scientific theory or technique – Reliable Foundation Test:

1. Whether the theory or technique can be and has been tested

2. Whether the theory has been subject to peer review and publication

3. The known or potential rate of error or the existence of standards

4. Whether the theory or technique used has been generally accepted

Similar Fact Evidence – Tips on How and When to Use it

• Test of admissibility:

– Similar fact evidence is presumptively inadmissible

– Evidence classified as “disposition” or “propensity” evidence is, exceptionally, admissible

– The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice

• Forbidden chain of reasoning:

– Disposition of the accused

Part 4– How the Evidence Fits

• Best ways to use the evidence in conjunction with the theory of your case

Onuses, Burdens, and Presumptions

• Onus – burden of proof - a party’s obligation to prove certain facts or matters in issue

– Criminal: on the Crown to prove the accused’s guilt

– civil matter: on the plaintiff to establish his/her claim against the defendant

• Remember your presumptions

• Shifting onuses – the burden of proof can shift from one party to the opposing party

– Eg. If an accused alleges an unreasonable search and seizure and if the accused shows that there was no prior judicial authorization for the search, the burden of proof shifts to the Crown to show that the search was reasonable on a balance of probabilities

• Reverse Onus – where the obligation to prove a fact is shifted from the Crown to the accused

• Reverse onus defenses – mental disorder automatism

– The accused bears both the persuasive and evidential burdens. The persuasive burden is evidence/proof on a balance of probabilities.

• Persuasive burden – is the requirement of proving a case or disproving defenses

–Criminal persuasive burden – proof beyond a reasonable doubt

–Civil persuasive burden – proof on a balance of probabilities

• Evidential burden – the requirement of putting an issue into play by reference to evidence before court

• The evidential foundation can arise from evidence stemming from the examination-in-chief or cross-examination of the accused, of defense witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or any other evidential source on the record

Onuses, Burdens, and Presumptions Cont’

• Presumptions – a fact that is taken to be true without the requirement of formal proof

• Presumptions are rebuttable as a party may offer evidence to show that the presumption is false

• Presumptions in criminal matters:

– presumption of innocence;

– presumption of mental competence of a witness

Where the Evidence Conflicts

• Oral testimony often conflicts with previous statements or other information

• Reasons for Impeaching

– 1) Truth

– 2) Credibility

– 3) Bias

Impeachment

• Ways in which a witness may be impeached and their credibility challenged:

1. Proof that the witness on a previous occasion has made statements inconsistent with his/her present testimony on cross-examination

2. Showing that the witness is biased on account of emotional influences such as kinship for one party or hostility to another, or motives of pecuniary interest

4. Attack upon the character of the witness

5. Showing a defect of capacity in the witness to observe, remember or recount the matters testified about

6. Proof by other witnesses that material facts are otherwise than as testified to by the witness under attack

Canada Evidence Act, s. 9(1)

• “A party producing shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.”

Different Impeachment Techniques

• Dramatic1. Recommit the witness 2. Confront the witness with the prior statement3. Validate the circumstances of reliability underlying the

making of the prior statement

• Classic1. Recommit the witness2. Validate the circumstances of reliability underlying the

making of the prior statement3. Confront the witness with the prior statement

Attacking Credibility

• Steps for cross-examination on a prior inconsistent statement to attack credibility of the witness:

1. First confirm the witness’ evidence in chief eg. “You testified this morning that the car was red. Is that correct?”

2. Confront the witness with an earlier statement made by them eg. “Do you recall speaking to the officer on the day of the accident and giving a signed statement?”

3. Point out the contradiction eg. “In the statement you said the lighting was bad and you could not see the colour of the vehicle.” Or have the witness read the statement out loud.

A New Approach to Impeachment

• Jull & Archibald Approach1. Validate the circumstances of reliability underlying the

making of the prior statement2. Show the prior statement to the witness3. Compare prior statement to evidence in chief4. Ensure that the goal is achieved

• See also, Jacqueline L. King & Joel Berkovitz, “Impeaching a Witness's Credibility Through Prior Inconsistent Statements” in Roger G. Oatley & John A. McLeish, eds, The Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases (Canada Law Book, 2014), available at: http://www.shibleyrighton.com/ModuleFile/chapter+50A.PDF?id=386

Advantages to New Approach

• ego bias hypothesizes that witnesses overestimate ability in classic approach– Assists paralegal in highlighting the contrast– may lead the normally honest witness down the path

of exaggeration

• Repetition of evidence provided in chief can create anchoring effect– Judge or tribunal chair may focus on repeated facts as

truth, irrespective of contradictions– Allows witness on re-examination to re-emphasize

original statement

Statutory References

• OEA S. 21, CEA s. 10(1) – can use proof that a witness made an inconsistent statement, after the circumstances of the statement is put to the witness– Allows the witness to confirm that they made the

statement

• OEA S. 23, CEA s. 11 – cannot impeach own witness, but may contradict with other evidence if the witness is adverse (with leave)– Allows for unexpected testimony that arises on the

stand

Browne and Dunn Rule

• Brown and Dunn Rule:

– If a challenge is going to be raised to the creditability of a witness by introducing contradictory evidence, the witness must be given the opportunity to address the contradictory evidence on cross-examination

Organizing Documents for Maximum Efficiency

Citation: Mazinani v. Clark, 2014 ONSC 7100

Objections and Their Use at Trial

• Know objections and their proper use

–Object judiciously

–Object graciously

–Object as with as much subtlety as possible

• Allow trier to do his or her job– Remember different application of evidentiary

rules, and importance of discretion

Summary

• The rules of evidence are flexible– Know how to use them

• Exhibit high level of deference to the bench– Different triers will apply the rules differently

– Deal with it, graciously

• Focus for paralegals will not necessarily be on admissibility– Instead, try to frame how evidence should be

perceived (weight)