law 280 - evidence - harris - spring 2013

7/27/2019 Law 280 - Evidence - Harris - Spring 2013

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EVIDENCE

INTRODUCTION

-SOURCES OF LAW:

1. Common Law

2. Statute: Canada Evidence Act & Criminal Code3. Charter: ss. 7-13

-Can defeat statute & is directly applicable

-NOTE: Recent move away from rule-based approach to principled approach

-RECEIVABILITY: Entrance of evidence in court CRITERIA (Palma):

1. Relevance

-If it makes proof more or less likely

-Not legal concept, but one of logic & human experience

2. Materiality

-If relevant to issue before court

-Materiality is function of governing substantive & procedural law3. Admissibility

-Must satisfy rules & policies of law of evidence

-RULE: All relevant & material evidence is admissible until proven otherwise

-PRESUMPTIVE ADMISSIBILITY:

-TWO MAJOR ELEMENTS:

1. Fair Trial: ASK: Does evidence assist in search for truth & justice?

2. Probative v Prejudicial assessment

-PRELIM TRIAL: Primary point of evidentiary assessment, but evidence may arise at

any point in trial

-PROBATIVE/PRJUDICIAL BALANCE:

-PROBATIVE VALUE:

-RULE: Not received unless logically probative of matter to be proven

-If probative, then is received unless exclusion is justified on some

other ground (Seaboyer)

-PROBATIVE: Evidence both logically relevant & material (Arp)

-Assessed on a scale depending on overall strength & reliability as

well as nexus of evidence to issue in the case

-PREJUDICIAL EFFECT:

-EXTRINSIC MISCONDUCT EVIDENCE: Evidence making D look bad (B(FF))

-Increases moral prejudice (particularly relevant in cases of

character)-Lowers standard of proof

-Adds to length & complexity of hearings

-EXCEPTION: Door to evidence can be opened by D, but jury must be

properly instructed (B(FF))

-TEST:


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1. Prejudice the TOF against D for reasons unrelated to logic,

common sense & law

-Affects TOFs reasoning process, emotional level, etc

1. Prejudicial effect on administration of justice

-Harm public trust in rule of law, set negative precedents

-BALANCE:-TEST: Evidence OK if probative outweighs prejudicial effect (Seaboyer)

-CRIMINAL CONTEXT: Different standard applied to evidence, depending on

whether Crown or Defence (Seaboyer)

-CROWN: Evidence admissible if probative EXCEEDS prejudicial

-DEFENCE: Evidence admissible if prejudicial effect does not

SUBSTANTIALLY outweigh probative value

-CIVIL CONTEXT: Lower standard as no loss of liberty (Johnson v Bugera)

-LET IT ALL IN DEBATE:

-OPEN: Some judges in favour of admitting whole picture to TOF

-Question is then of weighting of reliability-Argued that proper instructions to jury can guide weighting process

-Rules which put blinders over eyes of TOF should be avoided

except as last resort (Corbett)

-CLOSED: Judges have gatekeeper role (Penney)

-Unreliable or highly prejudicial evidence has caused wrongful

convictions

-Increases length of trials

-PURPOSE OF ADMITTED EVIDENCE:

-ASK: Can evidence be heard for a specific purpose or not?

-Can be probative for one material issue but inadmissible for another

-If evidence admissible for only specific purpose, jury must be

instructed

-NOTE: Failure to do so frequent source of reversible error

-GENERAL PRINCIPLES OF LAW OF EVIDENCE

-QUALIFIED SEARCH FOR TRUTH: Many different policies in conflict

-Societal goals: Noel

-Joint trial may be necessary to ensure all evidence put to jury in cases of

vicious co-accused: Grewall

-Long-term repute of administration of justice may justify exclusion of

evidence under Charter: Grant

-NO DISTORTED PICTURE PRINCIPLE:-Prevent TOF from deciding on distorted picture of evidence

-EXAMPLES:

-Editing videotape potentially misleading & eliminated probative

value (Penney)

-Hesitating to admit extrinsic misconduct evidence is to avoid

distorted picture (Cuadra)


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-Opened Ds criminal background as to do otherwise would present

him as saint & witnesses as hardened criminals (Corbett)

-Partially heard inculpatory statements out of context are

inadmissable (Hunter)

-Rule on leading questions helps avoid distorted picture (Maves v

Grand Trunk)-OPENING THE DOOR PRINCIPLE

-Party can open the door to otherwise inadmissible evidence by conduct of

own case

-EXAMPLES:

-Crown may not raise question of mental disorder UNLESS D puts

sanity to issue: (Swain)

-Ds defence, an attack on credibility of C, put otherwise inadmissible

extrinsic misconduct evidence into play (B(FF))

-D opened door to bad character hearsay by questioning diligence of

police investigation (Dhillon)-By suggesting C had fabricated testimony, D opened door to Cs

prior statements (Stirling)

-Ds theory others had motive to kill V increased probative value of

contested circumstantial evidence (Griffin)

-By choosing to take stand on retrial, D opens door to Ps use of prior

court testimony (Henry)

-Evidence of silence presumptively inadmissible as rarely probative

of guilt (Turcotte)

-FORMAL (OR JUDICIAL) ADMISSIONS: D can eliminate live issues, thus

reducing body of possible admissible evidence

-IMPROPER REASONING BY JURY PRINCIPLE:

-Sometimes evidence must be limited/excluded to avoid improper reasoning

-EXAMPLES:

-Horrifying & inflaming evidence must be pared down (Kinkead)

-Risks of similar fact evidence include moral prejudice & reasoning

prejudice on part of jury (Handy)

-ADMISSIBILITY IS NOT ALL OR NOTHING:

-Possible to admit only part of divisible evidence

-Evidence can be accompanied by judges instructions on proper application

-EXAMPLES:

-Extrinsic misconduct evidence of first incident admitted asprobative of credibility, second incident excluded (Cuadra)

-Some evidence allowed, some excluded, some allowed in modified

form (Kinkead)

-EXPERT EVIDENCE: Judge can admit part or modify nature/scope

or language used to frame opinion (Abbey)

-Hearsay deleted from phone transcript but rest allowed (Grewall)


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-TRIER OF FACT:

-Effort to standardize instructions to jury regarding differences &

issues of evidence

-CANADIAN JUDICIAL COUNCIL: Outlined focused

instructions, but sticks to definitions

-ISSUE: Does not highlight common issues of evidence-Can set aside evidence lacking air of reality

-ISSUE: Miller: Dismissal of singularly unconvincing evidence

without considering effect within whole

-NOW: Jury considers evidence as whole & is instructed on

reasonable doubt

-TYPES OF EVIDENCE

-DIRECT EVIDENCE: (Dhillon)

-Goes directly to proof of actual fact in issue

-EYE WITNESSES: Sources of error:

1. Witness may be lying2. Witness may be mistaken

-Very prevalent, particularly for ID, exacerbated by length of

trials & has little value

-VIDEOTAPES & PHOTOS: Can be direct evidence (Nikolovski)

-CIRCUMSTANTIAL EVIDENCE: (Dhillon)

-Indirect evidence of circumstances from which inference may be drawn

which may lead to proof of fact in issue

-SOURCES OF ERROR:

1. Witness may be lying

2. Witness may be mistaken

3. TOF may draw wrong inference

-DIRECT v CIRCUMSTANTIAL:

-Direct witness evidence may contradict each other but circumstances are

often not in dispute (Dhillon)

-Griffin: Case involving numerous instances of direct & circumstantial

evidence

-USE OF EVIDENCE:

-No obligation on D to prove facts, need only raise reasonable doubt

by showing reasonable possibility Ps case is wrong (Robert)

-Guilt must be based on proven facts BUT not guilty may arise simply

if TOF does not believe anyone (Baltrusaitis)-Court rejected notion jury should consider POC separately from

other evidence to see ifit reflected consciousness of guilt BRD

(White v The Queen)

-REAL EVIDENCE v DEMONSTRATIVE EVIDENCE: Criteria

1. Is it authenticated?

2. Is it fundamentally misleading?


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-Look to fairness, accuracy & absence of intention to mislead

3. What is the purpose of this evidence? To explain or enflame?

4. Look to probative/prejudicial balance

-TESTIMONIAL: Stands on its own

-REAL/PHYSICAL:

-Gun taken from D (Grant) or documents in possession of D (National Post)-DEMONSTRATIVE:

-Representation of an object

-VIDEOTAPES:

-Unaltered videos of crime generally admissible as trustworthy,

unemotional, unbiased & accurate witness with complete & instant

recall of events (Nikolovski)

-Unauthenticated video with potential to mislead & lacking probative

value not admissible (Penney)

-Video of crime admitted subject to being edited shorter (Kinkead)

-PHOTOGRAPHS:-Photos relevant & did not present distorted picture of crime,

admissibility determined on case-by-case probative/prejudicial

balancing (Kinkead)

-DOCUMENTS:

-Not generally physical as are submitted for contents

-Documents can be considered physical, not documentary, as

RCMP wanted to dust for forensics (National Post)

-Transcript of interview between D & C inadmissible as not

authenticated (Lowe v Jenkinson)

-Business records must meet business record exception & be

authenticated (Wilcox)

-JUDICIAL NOTICE:

-If party wishes to dispense evidence as generally accepted fact

-i.e. Need not prove holocaust in court every time

-Helps avoid lengthy delays & onerous levels of evidence

-TEST: Olson v Olson: Court may take judicial notice of facts that are

either SO NOTORIOUS or SO GENERALLY ACCEPTED as to not be

subject of debate among reasonable people

-Very high standard as befitting adversarial system

-Cannot take judicial notice of video format changes as expert

necessary to displace presumption that effect renders videoinadmissible (Penney)

-OTHER ISSUES:

-ADVERSARIAL SYSTEM OF TRIAL

-Given that POFJ demands adversarial & accusatorial system of criminal

justice founded on respect for autonomy & dignity of human beings, is clear

that POFJ requires D have right to control own defence (LAMER in Swain)


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-D has right to control order of his testimony, if at all, & testimony cannot be

prejudged (Smuk)

-C not obliged to call witness unhelpful to Ps case, entitled to trial strategy &

to modify it as trial unfolds as long as does not cause unfairness to D (Jolivet)

-DISCOVERY IN CRIMINAL CASES:

-C must disclose ALL relevant evidence in possession whether inculpatory orexculpatory (Stinchcombe): TEST:

1. Disclosure must be broad & timely

2. Irrelevant info not disclosed

3. Privileged material cannot be disclosed

4. Crown has discretion to delay disclosure of certain evidence

-Ex. Witness safety

-Must provide list of what is not being disclosed

-Counsel can argue for disclosure to Judge

-REMEDIES:

-Failure to uphold Stinchcombe standards is not, by itself, sufficientto overturn guilty verdict or plea, D must show there was reasonable

possibility that failure to disclose affected outcome or overall

fairness of trial process, in particular: (Tailleger; Duguay)

1. Different outcome analysis considers the direct effect of

the evidence on jury

2. Fairness of trail assess whether new evidence might have

opened up new avenues of investigation for defence

-Trial may be adjourned on fault of Crown, if adjourned too long,

may have case completely chucked under s.11(b) CRF

-Non-disclosure in midst of trial may mean mistrial

-NOTE: Judge will look to the diligence of the Defence to ensure they

have not in effect waived right to disclosure through negligence or

laziness

-DISCLOSURE IN CIVIL CASES:

-Dual duty of disclosure

-COMMON CAUSES OF WRONGFUL CONVICTIONS:

-General propensity reasoning

-Unreliable eyewitness ID

-Unconfirmed testimony of manifestly unreliable witnesses (i.e. Vetrovec

Witness)

-NOTE: Discussed later-Experts going beyond limits of expertise (mentioned inAbbey)

-Unreliable confessions (Oickle; Grant; Singh)

EXTRINSIC MISCONDUCT EVIDENCE

-WHAT: EME is evidence that D or witness was involved in unsavoury activity unrelated to

current charges


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-Revelations of Ds prior behaviour would indicate bad character & propensity for

behaviour as that which is accused

-BAD CHARACTER OF THE ACCUSED

-Where evidence sought to be adduced by P concerns a morally repugnant act

committed by D, potential prejudice is great & probative values must be high indeed

to permit its reception (MCLACHLIN in B(FF))-GENERAL ADMISSIBILITY:

-RULE: EME tending to show bad character of D is presumptively

inadmissible

-TEST: EME admissible when: (IACOBUCCI in B(FF))

1. Relevant to some other issue beyond disposition or character of D,

AND:

2. Probative value outweighs prejudicial effect (Dhillon)

-NOTE: The No Distorted Picture Principle operates as justification for

above test

-Cuadra: D thus seeks to have best of both worlds; he impeaches thewitness with prior inconsistent statement & then seeks to restrain

states inquiry into reasons why witness made prior inconsistent

statements

-D himself can then open the door to EME & strengthen

probative value of evidence which reflects poorly on own

character in relation to other issue

-SIMILAR FACT EVIDENCE: Subtype of EME, promotes propensity reasoning

-SFE is evidence tending to prove D previously did act with similar facts to

crime currently charged

-Prejudicial effect often vastly outweighs probative value and thus SFE is

normally inadmissible unless relevant to some other issue than general bad

character (Arp)

1. GENERAL PROPENSITY: NEVER ADMITTED

-Meant to show D has a general disposition for theft, violence etc.

-Historically major cause of wrongful convictions & is based solely

on bad characters of D

-Aspect of moral prejudice (Handy)

2. SPECIFIC PROPENSITY

-In order to be admissible, would be necessary to conclude that

similarities were such that absent collaboration, would be affront to

common sense to suggest that similarities were due to coincidence(Handy)

-Must show the improbability of coincidence

-Must show specific propensity to do specific act in specific

circumstances, a number of facts that when grouped together, are

highly unique (Handy) and that cause probative to outweigh

prejudice


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-CAUTION:

-While identification of issue defines precise purpose for

which evidence is proffered, does not (& cannot) change

inherent nature of propensity evidence, which must be

recognized for what it is. By affirming its true characters,

courts keep front & centre its dangerous potential (BINNIEin Handy)

-JURY INSTRUCTIONS:

-If C can get SPE admitted, jurors will be instructed that they

may draw inference

-Admission almost allows judge to single-handedly decide

case (BINNIE in Handy)

-INDEPENDENCE:

-Probative value of SPE driven by improbability of

coincidence, but requires independence between both

sources of SPE-Handy: D was able to raise air of reality to theory of

collusion between complainant & Ds ex-wife. Cs

failure to rebut on BOP constituted independent

ground for excluding SPE

-TEST FOR ADMISSIBILITY: Hardy

-Independent & probative must outweigh prejudicial

-ISSUE: SPE must be to establish narrow element, mere

credibility is too broad

1. Factors connecting similar facts to events of charge:

-Whether similar facts capable of supporting

inferences to be drawn, AND:

-Strength of proof of similar facts themselves

-CONSIDER:

-Proximity of time

-Physical conduct: Similarity/differences

-Number of occurrences

-Circumstances surrounding incident

-Distinctive features

-Intervening events

-NOTE: SPE must be reasonably capable of

belief to be admitted2. Factors contributing to prejudice are evaluated

-Can fluctuate depending on nature of evidence

-Confusing SPE may raise prejudice

-Must aim to avoid moral prejudice allowing jury to

slip into general propensity reasoning


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3. Probative value of SPE (1) is balanced against prejudicial

effect (2)

-IDENTITY & SIMILAR FACT EVIDENCE:

-If admitted, can use SPE from separate crime scenes as a whole to

determine the culprit

-POST-OFFENCE CONDUCT-WHAT: Consciousness of guilt, circumstantial evidence of POC that leads

to inference of guilt (Peavoy)

-ISSUE: Wrong inferences, too prejudicial, may inhibit TOF from considering

alternatives

-ARCANGIOLIRULE: POC cannot be used in determining the LEVEL of

culpability

-Can be used to determine ID

-POC evidence must be reasonably capable of supporting inference

-EXCEPTION: When POC is indicative of actions themselves that

show first degree planning (Prof)-FRAMEWORK OF ADMISSIBILITY: (White)

1. Cannot be merely speculative of guilt

Ex. Cannot rely on suspects reaction to news of death (i.e.

Stoicism)

2. Must be at least one reasonable inference that POC indicates guilt

-Multiple inferences still admissible to TOF (White

overturningArcangioli)

-INSTRUCT THE JURY: On considering multiple

explanations

3. Evidence must be considered within context, not isolated and

subjected to reasonable doubt standard

-NOTE: Must still assess probative/prejudicial balance

-INTOXICATION: As a self-defence (Peavoy)

-POC may undermine notion D lacked presence of mind (MR)

indicative of extreme intoxication necessary for defence

-POC IN FAVOUR OF DEFENCE:

-Seaboyer: Establishes lower standard of probative value for

evidence in favour of defence HOWEVER this was not considered the

case for POC

-TJ prone to rejecting self-serving evidence

-PRINCIPLED APPROACH: Brought in by B(SC) allowing POCevidence for defence

-ISSUE: Evidence submitted by D often trifling & a prejudicial

distraction

-CRITERIA: POC must have significant probative value

-Ex. D immediately offers sample search in case of

sexual assault


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-Very contextual

-NOTE: This does not undermine Charter rights to silence (Turcotte)

-BAD CHARACTER OF THE WITNESS: D may be witness in own defence

-PRIOR CONVICTIONS: s.12 CEA: Witness may be questioned about prior

convictions

-WHEN WITNESS IS ACCUSED: (Corbett)-D may ONLY be questioned about priors for purpose of impeaching

credibility

-NOTE: One of many factors to assess credibility NOT for

propensity!

-Judges will read into provisions a residual discretion on part of trial

judge to exclude evidence of PCs where prejudicial outweighs

probative

-FACTORS OF DISCRETION:

1. NATURE: Of PC & whether it involved dishonesty & is thus

more likely to be useable in impeaching credibility2. SIMILARITY: Of PCs to charged offence. NOTE: A higher

degree of similarity increases prejudicial effect & makes

admissibility LESS likely as it may cause jury to engage in

general propensity reasoning.

3. TIME LAPSE: Remoteness/nearness of PC, even conviction

involving fraud but followed by legally blameless life, should

generally be excluded on grounds of remoteness

4. WHETHER DEFENCE HAS MADE DELIBERATE ATTACK:

On credibility of Crown witness, particularly if resolution of

case boils down to credibility contest between D & witness

-Falls under No Distorted Picture Principle

-PROF: If questioning witness about PCs has no purpose

other than to show bad character, will likely not stand up to

Charter challenge under ss.7 &11(d)

-BENEFITS TO D UNDER COURTS INTERPRETATION OF S.12:

1. D gets CORBETTHEARING to determine admittance of prior

convictions

2. If evidence of prior conviction admissible, then:

-Generally only fact of conviction admissible, NOT details

thereof

-Fact of conviction is admissible only for purpose of testingDs credibility

-RELEVANT CASES & STATUTORY PROVISIONS: Canada Evidence Act

-s.12(1): Witness may be questioned as to whether witness has been

convicted of any offences


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-In case of D, courts have interpreted this to mean that D may

be questioned, but only for purposes of impeaching

credibility (Corbett)

-s.12(1.1): If witness denies having convictions, opposite party may

prove conviction

-Corbett: CEA s.12 is constitutional in respect of D, does not infringes.11(d) Charter

-However, trial judge retains residual discretion to exclude

questioning about priors where prejudicial effect outweighs

probative value

-OTHER DISCREDITABLE CONDUCT:

1. CEA s.12 applies ONLY to convictions; all other evidence of extrinsic

misconduct on part of D is subject to general rules on such evidence

2. Any ordinary witness may be cross-examined with respect to any

discreditable conduct

-Unlike with D, can get into the details with other witnesses-CASE LAW:

-Cullen: Conduct leading to charge of which D has been acquitted

cannot be proved against him as similar act (CONTRAST: Titus)

-Titus: Cross-examination of Crown witness concerning outstanding

indictments admissible for showing possible motivation to seek

favour with prosecution

-NOTE: Could be shut down as speculation though

-Seaboyer: Evidence of discreditable conduct of Crown witnesses

would surely be subject to Seaboyerstandard:

-STANDARD: Nothing is received which is not logically

probative of some matter requiring to be proved &

everything which is probative should be received, unless its

exclusion can be justified on some other ground

-THE VETROVECWITNESS:

-ISSUE: Such incredible witnesses have been present in most wrongful convictions

-GENERAL RULE: Even seriously unreliable evidence will be admitted (Murrin) but

with Vetrovec instructions

-VETROVECWITNESS: Determined by judge via contextual inquiry considering all

circumstances

-ASK: Does witness have such severe credibility problems that it would be

dangerous to convict based on testimony alone?-INDICIA OF SERIOUS INHERENT LACK OF CREDIBILITY INCLUDE:

1. Numerous prior inconsistent statements

2. Criminal history, particularly convictions for offence of dishonesty

3. Bias or massive vested interest in outcome (i.e. Titus seeking

favour with Crown)

-NOTE: All factors weighed together


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-JAILHOUSE INFORMANT: Particular class ofVetrovec Witness: Murrin; Dhillon

-Confessions of D (even to jailbird) are presumptively admissible

-ISSUES: Though rarely explicit, institutional understanding of quid pro quo

from authorities

-Jailbirds shown to be very resourceful in finding details of crime to

pad stories-RULE: Crown prosecutors seek approval from independent tribunal before

leading evidence of jailhouse informant

-NOTE: Need not be jailhouse information to qualify for Vetrovec

warning

Ex. Witnesses in Khela; Jolivet

-VETROVECINSTRUCTION:

-PURPOSE: Judge must deliver clear, sharp warning in order to: (Vetrovec;

Khela)

1. Alert TOF to danger of relying on this type of evidence, AND:

2. Give TOF tool to assess reliability of witness-Vetrovec warning focuses on presence or absence of confirmatory &

corroboratory evidence supporting witness

-CONTENT: Must achieve the following: (Khela)

1. ISOLATE the witness testimony from rest of evidence: I am now

going to give you some special instructions about Mr. Smith...

-NOTE: Runs contrary to normal rules of evidence, which

emphasizes holistic approach

2. EXPLAIN to jury why witness evidence is subject to special

scrutiny

-Details of how testimony arose

3. CAUTION jury that it is dangerous to convict on unconfirmed

evidence of this sort but that jury is entitled to do so if it is satisfied

that evidence is true, AND:

4. INSTRUCT jury, when assessing truthfulness of witness, to look for

evidence from another source tending to show that untrustworthy

witness is telling truth

-ELEMENTS: Independence & Materiality (FISH in Khela)

-If testimony goes only to peripheral part of witness

story, then it is NOT material

-BUT: Confirmatory evidence need not be direct

evidence of Ds involvement, TOF should instruct juryto keep in mind limited disputed issues & jury should

look for evidence confirming Vetrovecwitness story

on those limited issues DESPITE fact that

confirmatory evidence need not implicate D

-HOWEVER: In accomplice cases, whether D

was perpetrator is usually only issue at hand


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-CASE LAW:

-Murrin: Evidence isnt unfair to D just because it is unreliable,

assessment of reliability is best done by designated TOF

-Khela: Particularly important to instruct jury on independence

because of defence allegations of collusion between Vetrovec

witnesses-Dhillon: Evidence tending to prove fact that D & witness had

opportunity to talk is not capable of being confirmatory as would be

peripheral evidence

-Warning to defence as can open otherwise inadmissible

topics

-ARGUE: Decision narrows scope of materiality

-EYE-WITNESS TESTIMONY

-STRANGER IDENTIFICATION: Most dangerous as high risk

-Strong link to wrongful convictions but POLICY decision that evidence is

presumptively admissible, credibility & reliability left to jury-EXAM: Look to fact pattern to comment on weight to be accorded to such

testimony

-CONSIDER: Lighting, stress, timing, specificity of description,

distinctive features, confirmatory evidence, etc

-PRIOR DESCRIPTIONS: Precise prior description & subsequent pick out of line up

can be strong ID evidence

-Courts prefer statements/identification at time of offence, not later

-PHOTO PACKS: Best practices for conducting photo line-ups: (Gonsalves)

1. At least 10 subjects in photo pack

2. Conduct of photo line-up must be recorded on videotape, or at least

audiotape

3. Line-up should be conducted by double-blind administrator who tells

witness beforehand that he is not involved in investigation & does not know

suspect

4. Line-up must be presented sequentially, not handed over as package,

AND:

5. Officer conducting line-up must not do anything to bias or reinforce

witness suspicion about any photos

-CASE LAW:

-Gonsalves: In-court ID gets very little weight

-When photo pack tainted by incorrect procedures, flaws go toweight, not admissibility

-Swanston: Extrajudicial eyewitness ID is admissible as exception to general

rule against prior consistent statements

-WHY: Because trials take time and sight-memory fades, must be

lenient

-Still has probative value


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-Such ID is admissible not only to confirm in-court ID, but as

independent evidence going to ID

OPINION EVIDENCE

-WHAT: General position of courts is that opinion evidence is inadmissible (Murrin):

-Must show evidence more probative than prejudicial-EXCEPT:

1. The compendious statement of facts exception (common knowledge)

2. The expert witness exception

-COMMON KNOWLEDGE:

-NON-EXPERTS may give their opinion on matters within everyday experience of

ordinary people as such an opinion is just a compendious statement of facts too

subtle & complicated to be narrated separately & distinctly (Graat)

Ex. Can give evidence of anothers drunkenness, emotions, age, etc

-NON-EXPERTS CANNOT:

1. Speculate2. Stray into realm of opinion which would require specialized

expert, OR:

3. State his opinion in terms of legal standard

-EXPERT EVIDENCE: Paid by one party for purpose of bolstering partys case

-PURPOSE: Assist TOF in drawing inferences on issues beyond their knowledge

-GENERAL RULE: Presumptively inadmissible, must establish admissibility on BOP

(Abbey)

-TEST: Principled framework for probative/prejudicial balancing (Mohan; Abbey)

-STATUTORY: Provisions barring admittance

-s.7 Charter: Disclosure to defence requirement

-s.657.3 CC: Requires DEFENCE to disclose expert use to Crown with

reasonable notice

-KEY: Timing of disclosure must meet statutory expectations, experts

must agree to show no bias

-STAGE 1: Preconditions must all be satisfied to proceed:

1. Is witness properly qualified EXPERT?

-Low threshold: Need only greater expertise than ordinary

person

2. Is proposed evidence logically RELEVANT to material issue?

-How close is it to ultimate issue?

-NOTE: Judge may choose to limit nature & scope3. Is the expert evidence NECESSARY?

-High threshold: Subject matter must be such that ordinary

people are otherwise unable to draw correct inference

(Mohan)

-Courts will assume juries possess broad range of knowledge

(Corbett)


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4. Is evidence otherwise admissible (not barred by any other

exclusionary rule)?

-STAGE 2: Gatekeeper cost/benefit holistic analysis

-ELEMENTS TO CONSIDER:

-Strength of first three factors

-Does it stray into inadmissible general propensity evidence?-Consumption of time/money

-Prejudice

-Confusion caused by unduly protracting & complicating

proceedings

-Jury abdicating fact-finding role & in favour of expert

opinion

-Meet threshold of reliability to have sufficient probative

value?

1. Ordinary expert evidence (Abbey)

-Bias can be a factor2. Novel scientific evidence (J-Lj; Mohan)

-CONSIDER: Subject matter, methodology, expertise,

impartiality of expert

-MANNER EVIDENCE LED: Pre-packaged, or accessible?

-LEAST USURPING: Set out comparable factors then let TOF

decide

-Less helpful, may lead to incorrect inference

-MOST USURPING: Direct answer to critical issue

-Serious concern & viewed with skepticism

-Necessary for some specific issues (Ex. Medical)

-CASE LAW:

-Mohan: Testimony inadmissible as profiles not standardized enough

such that it could be said that one of them matched supposed profile

of offender in this

case

-J-Lj: Evidence failed to meet threshold of reliability for novel

scientific evidence & was close to ultimate issue & presented in pre-

packaged manner, both of which weighed against it

-Abbey: Evidence admissible as long as scope & language was

properly restricted

-BASIS & WEIGHT OF EXPERT EVIDENCE:-DOES EVERY ASSUMPTION HAVE TO BE LED AS ADMISSIBLE EVIDENCE?

-In Lavallee, defence psychiatrist called to give expert opinion on D

that thought was life in imminent danger based his opinion on 4-

hour out-of-court interview with D, during testimony he recounted

some details of interview. There was NO admissible evidence for

these details


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-HELD: If some of assumptions relied on by expert were led

as admissible evidence, but some were not, then expert

opinion is admissible & only issue is one of WEIGHT

-Jury instructed that it may, NOT MUST, ignore experts

opinion as expert relied on some evidence which was not put

before jury-OVERTURNS:Abbeywhich previously disallowed such

evidence

-NOTE: Palma: No one had led evidence actually proving alleged case

facts upon which jury had based opinion

-HYPOTHETICAL QUESTIONS:

-ISSUE: When counsel asks questions of experts which incorporate

assumptions about case, may send message to TOF that assumptions

are actual facts when may still be live issues

-Do not want expert entirely detached from case

-THUS: Counsel generally required to pose questions toexpert in hypothetical form which reminds TOF that

assumptions are not necessarily settled & that answer should

be treated with skepticism

-Ideally avoids touching on the ultimate issue

-EXCEPTION: Bleta v The Queen

-SCC HELD: Trial judge has discretion to admit expert

opinion which is not based on hypothetical question IF

nature & foundation of opinion has been clearly indicated to

jury by other means

-PARTICULAR MATTERS:

-EXPERT BEHAVIOURAL PROFILE EVIDENCE:

-Mohan & J-Lj: Defence attempted to lead expert evidence to prove sexual

offences had to have been committed by one who fit specific behavioural

profile that D did not fit

-HELD: Evidence inadmissible as such evidence must meet test for

NOVEL SCIENTIFIC EVIDENCE & evidence must establish that:

1. Expert is using standard profile not put together on ad hoc

basis for purpose of particular case, AND:

2. Profile clearly IDs distinctive psychological elements

which separate deviant perpetrator from others

-OPINION EVIDENCE ON CREDIBILITY:-ISSUE: Credibility is paramount issue falling within expertise of TOF, courts

suspicious of opinion evidence, expert or not, that may usurp this role

-Known as oath-helping: Generally inadmissible unless relevant to

legitimate issue beyond credibility, & probative value outweighs

prejudicial (Llorenz)


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Ex. Teaching TOF young abuse victims prone to retracting

otherwise true statements

-KEY: Manner in which evidence is led & presence of limiting

instruction

-Av: Officers statement that he certainly would have no problem

with victims credibility was inadmissible oath-helping-NOVEL SCIENTIFIC EVIDENCE:

-Higher threshold of admissibility than other expert evidence, subjected to

special scrutiny (Mohan), courts expected to take gatekeeper role seriously

(J-lj)

-Due to likely going straight to ultimate issue & being relatively

untested

-FACTORS OF ADMISSIBILITY: (BINNIE inJ-Lj)

-NOTE: In such circumstances courts are wary of ironclad tests

1. Whether theory/technique can be & has been tested

2. Whether theory/technique has been subjected to peer review &publication

3. Known of potential rate of error or existence of standards, AND:

4. Whether theory/technique used has been generally accepted

-CASE LAW:

-J-Lj: Docs novel use of penile forensics with personality tests failed

to meet threshold of reality

-Abbey: Docs evidence not novel scientific theory, not scientific, not

novel & not theory

-LIMITING ADMISSIBILITY OF EXPERT EVIDENCE:

-J-Lj: Courts first expressed concern with the habit of just letting everything

go to weight

-Emphasized role of gatekeeping

-RISKS: which make it advisable to limit admissibility (DD)

1. May usurp TOF role

2. Experts highly resistant to cross-examination

3. Expert opinions largely based on unsworn evidence not before the

court

4. Time-consuming: Wasteful, jurors forget evidence etc

5. Expensive to public/private parties (i.e. Having to compete with

Crown)

6. Devolve into contest of experts with TOF acting as referee indeciding which experts to accept

-NOTE: Encouraged judges to make instructions on complex matters

not requiring experts

-SCC CLAMP-DOWN: Particularly as experts may be bias to bankroller: FISH

in DD:


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-It has been repeatedly recognized that admissibility requirements

of expert evidence do not eliminate dangers traditionally associated

with it. Nevertheless they are tolerated in those exceptional cases

where jury would be unable to reach own conclusions in absence of

assistance from experts with special knowledge

-THRESHOLD: High level of NECESSITY-CASE LAW:

-DD: Evidence reflecting current state of law merely reflects an undeniable

proposition, has no technical value whatsoever

-Mohan: Trial judge must take gatekeeper role seriously

-Parrott: At the time expert testimony was called, it had NOT been shown

that testimony was necessary

DIFFERENT EVIDENTIARY CONTEXTS

-CIVIL TRIALS:

-KEY: Difference between civil & criminal proceedings is civil are not governed byfederal evidence rules such as Canada Evidence Act & Criminal Code

-Instead governed by BC Evidence Act & rules of court for civil proceedings

-Some civil cases reference different statutes

-Johnson v Bugera: Likely no difference between probative/prejudicial

balancing in criminal & civil contexts

-BUT: May be heightened concern in criminal, particularly for juries,

to avoid prejudice due to liberty issues

-NOTE: CL rules tend to apply across the board

-COLLATERAL EVIDENCE RULE: Segura

-On cross-examination, subject to trial judges discretion to disallow any

question which is vexatious or oppressive, witness can be asked literally

anything to test credibility

-BUT cross-examining party is subject to collateral evidence rule

-RULE: Where witness is asked question irrelevant to facts & asked

purely for purpose of testing credibility, cross-examining party is

bound by her answer & may not lead evidence to contradict her

-Stops needlessly lengthy proceedings

-NOTE: If questioning goes to more tangible issue than general credibility,

can lead cross-examination further

-JUDGE-ALONE TRIALS:

-Governed by same rules of evidence as other trials, but trial may play out differentfor several reasons: Malik

1. Trial judge hear gist of evidence on voir dire when they are deciding upon

admissibility, thus no point excluding certain evidence which would be

inadmissible in jury trial

-Cassibo: In judge-alone trial, parties agreed that evidence adduced

on voir dire would form part of trial record


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2. Trial judges receive special training to consider evidence only for its

proper evidentiary value

-Judge more capable of ensuring such evidence not prejudiced

against another

-ISSUE: Impulse to call a million witnesses must be mitigated

-COMPETENCE & COMPELLABILITY OF WITNESSES:-RULE: Generally all are both competent & compellable

-COMPETENT: If Ws evidence can be received in court

-COMPELLABLE: If W can be forced to testify on pain of contempt

proceeding

-s.16 & 16.1 indicate courts will err on side of making witness evidence

admissible

-LEGISLATION: Canada Evidence Act

-EXCEPTION: D is a competent but NOT compellable witness, D has final decision to

testify

-Charter right-CHILDRED UNDER 14: s.16.1

-RULE: Presumed competent to testify

-If party challenges competence of child witness, onus on that party to

demonstrate child cannot understand & respond to questions

-Ability to understand & respond LOW threshold

-Certainly lower than communicate the evidence threshold under

CEA s.16

-Child may NOT take oath or solemn affirmation but instead must testify

under promise to tell the truth

-If child can understand & respond to questions & has thusly

promised, evidence is admissible

-Opposing party may not question child on understanding of nature

of promise for purpose of determining admissibility

-Making of promise is determinative of admissibility

-But may cross-examine child on understanding of promise

at trial, and cross-examination may properly be taken into

account by jury in assessing WEIGHT to accord evidence

-JZS: Affirms constitutionality of s.16.1, particularly the inability to question

child on understanding of promise

-Parliament need not provide fairest trial D can imagine under right

to make full answer & defence (s.7) or to satisfy right to fair trial(s.11(d)) under Charter

-Acknowledges other interests, such as search for truth, are

at stake

-THRESHOLD: Is it fundamentally unfair violation of s.7 & 11(d)?

-MENTAL (IN)CAPACITY: s.16


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-Somewhat easier under s.16 (versus s.16.1) for party to have person with

mental capacity problem declared incompetent than child witness under 14

years of age

-KEY DIFFERENCES:

s.16: MENTAL

CAPACITY

s.16.1: CHILD UNDER

14Standard of

competence

Communicate the

evidence

16(1)(a

)

Understand & respond

to questions

s.16.1(3)

How inquiry

initiated

Challenge

competence

16(1) Satisfy court there is

issue

s.16.1(4)

Burden during

inquiry

On party

challenging

16(5) Unclear 16.1(5)

Oath or solemn

affirmation

Default option 16(2) Prohibited 16.1(2)

Promise to tell truth Backup option 16(3) Default & only option 16.1(6)

Questioningpromise

Not permitted: DAI Not permitted 16.1(7)

-STANDARD OF COMPETENCE:JZS

-Communicate the evidence standard is slightly more stringent

than understand & respond to questions standard, apparently

requiring ability to perceive & recollect events

-NOTE: Can still cross-examine at trial on understanding, just

goes to weight not admissibility

-Parrott: Crown took unusual step of applying to have its own witness, the

complainant, declared incompetent under s.16

-DAI: Promise to tell truth under s.16(3) interpreted to prohibit questioningon abstract understanding of promise to tell truth for purpose of

admissibility

-SPOUSES:

-THEN: Broad CL approach made spousal testimony almost impossible

-POLICY: Preserve marital harmony, lower status of wives

-EXCEPTION: Violence between spouses (CL)

-LEGISLATION: Expanded the exceptions: s. 4 CEA

(1) Spouse is competent witness for defence

-NOTE: Some case law indicates also compellable

(2-4) Lists exceptions allowing Crown to call

-i.e. Offences against children

(3) Marital communication privilege: No spouse is compellable to

disclose any communication made DURING marriage

-NOTE: Does not include that which is seen

-OATHS & SOLEMN AFFIRMATIONS: Canada Evidence Act

-s.14: Instead of swearing oath before giving evidence, can make solemn affirmation

which carries same effect


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-s.15: Instead of swearing oath before making affidavit or deposition, person may

make solemn affirmation carrying same effect

EXAMINATION OF WITNESSES

-CALLING WITNESSES:

-ORDER OF CALLING WITNESSES:-Parties control conduct of case (Adversarial System Principle)

-ISSUE: Witnesses sitting in could tailor answers according to what they

hear

-Parties will routinely seek orders excluding witnesses from

courtroom until they have given testimony

-ACCUSED AS WITNESS: Smuk

-Despite risk of tailoring or risk of accusation of such, cannot be compelled

to testify first, nor can Ds credibility be prejudged

-ARGUE: Was decided in 1971 CL terms, would now likely be decided

according to s.7 & 11(d) Charter-FAILURE TO CALL WITNESS:Jolivet

-If Crown declares witness, then fails to call him, one looks to motive behind

decision

-If motive determined, look to what mischief or prejudice was

suffered by defence in order to determine appropriate remedy

-ARGUE: Role of Crown not to win, but to seek truth

-MOTIVE: Trial judge must decide whether C action:

1. Was perverse of oppressive exercise of prosecutorial discretion

amounting to abuse of process

2. Did not amount to abuse of process but still gave rise to concern

over Cs motives, OR:

3. Was merely normal trial tactics

-REMEDY: Strength decreases with severity of C conduct, but will

always be available regardless of blamefullness of Cs actions, as long

as actions resulted in unfairness to D

-If C gives explanation for change of tactics & it is believed by

trial judge, this amounts to finding of fact that C gave truthful

explanation

-Concern about truthfulness of witness is NOT perverse

consideration

-REMEDY: Cannot oblige Crown to call witness as would disrupt inherentbalance of adversarial system (BINNIE), instead:

1. Trial judge could call witness himself

2. TJ could instruct jury that it may draw adverse inference

-NOTE: First two only in EXCEPTIONAL CIRCUMSTANCES where

there are concerns about Cs motive


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3. Defence could comment on failure to call witness in closing

arguments

-D could invite jury to draw adverse inference (strong

remedy)

-D could invite jury to infer that witness would have been

unhelpful to Cs case (weak remedy)-Granted inJolivetto undermine fact that Crowns

comments might lead jury to believe case stronger

than in reality

-NOTE: Available where no motive, but element of

UNFAIRNESS to D

-Strength of remedy depends on how much prejudice

was suffered by D

4. Nothing done at all, rely on jurors to remember unfulfilled

promise & draw own conclusions

-NOTE: Strong POLICY against rerunning trials-WHY WOULD YOU NOT CALL WITNESS YOURSELF?

-Both parties can call any witness, but she who calls the witness is

restricted to direct examination which is less effective than cross-

examination, particularly when witness is unfriendly

-NOTE: Always possible to have witness declared hostile

-OTHER CONTEXTS:

-PROF: Likely none of these remedies would be available to Crown

against D given Ds constitutional right not to lead any evidence at all

-In civil context, TJ would likely not call witness, but adverse

inference remedy would be preferred

-DIRECT EXAMINATION:

-WHAT: Process of examining partys own witness in chief

-Rules apply to direct examination, re-examination & examining witnesses

called to give rebuttal evidence

-LEADING QUESTIONS: Maves

-WHAT: Usually involves feeding chunks of evidence to witness, or where

the only answer is yes or no

-NOTE: Determination is contextual

-GENERAL RULE:

-On material points, one may not lead own witness

-On points that are merely introductory & form no part of substanceof inquiry, one SHOULD lead

-PROF: Leading questions also asked where mutually agreed upon by

counsel

-POLICY: Theory that ones witness is biased in favour of ones party (thus

hostile witness designation), three justifications:

1. Witness bias for own party & hostility towards opponent


23/56

-NOTE: Principle reason!

2. Party calling witness has advantage over opponent as he knows

beforehand what witness will prove, or is expected to prove, & could

consequently lead witness only to favourable points: FALSE GLOSS

ON WHOLE

3. Witnesses may honestly assent to leading questions which fail toexpress whole meaning, even if they would have expressed things

differently in own words

-EXCEPTIONS TO RULE AGAINST LEADING QUESTIONS: Party may lead own

witness on material matters when:

1. For purpose of indentifying persons or things (may draw witness

attention directly to them)

2. When one witness is called on to contradict another as to

expressions used by latter, but which he denies having used

Ex. Did other witness use such & such an expression?

3. At TJs discretion: When witness is hostile or unwilling to giveevidence

4. Where inability of witness to answer questions put in regular way

can fairly be attributed to defective memory

-Maves; Shergillissue: TJ should consider whether preferable

to relax rule on leading questions before resorting to

refreshing witness memory via PRESENT MEMORY

REVIVED

5. Where inability of witness to answer questions put in regular way

arises from complicated nature of matter on which he is being

interrogated

-REFRESHING WITNESS MEMORY:

-THE FORGETFUL WITNESS: Due to length of trial, interlude or repetitive

nature of work

-SOLUTIONS: Present memory revived (PMR) or past recollection

recorded (PRR)

-CRITERIA: When determining if witness actually forgot, will

consider: (McInroy and Rouse)

-Witness

-Details

-Amount of time elapsed

-PRESENT MEMORY REVIVED (PMR):-Unlike PRR, PMR is concerned with refreshing witness memory

with trigger

-TEST FOR PMR:

1. Has witness forgotten something material?

2. Is witness memory exhausted


24/56

-NOTE: TJ should consider relaxing rule against leading

questions before PMR

3. Is this legitimate case of refreshing memory & not adducing PRR?

4. Is proposed memory trigger appropriate?

-Discretionary balancing: Will proposed trigger legitimately

refresh memory, or is it more likely to taint witness?CONSIDER:

-Contemporaneity

-Not required in Shergillas trigger was made

6.5 years after event

-Creator of the document

-Whether witness verified its accuracy

-Whether it is reliable

-Whether it could be too suggestive or distortionary

-Will it prejudice witness/jury?

-GENERAL RULE: Only use witness own highlycontemporaneous statement

-Though courts may accept other documents as long

as in good faith

-EXAM: Shergill: Consider difference between Ms. Kaurs police

statement & verbatim transcript in order to reason by analogy if

arguing about admissibility of PMR

-Strikes balance between two extreme schools of thought:

1. Anything may serve as trigger

2. Only contemporaneous documents authored by

witness are accepted

-PAST RECOLLECTION RECORDED (PRR):

-PRR does not refresh memory, but instead is procedure to follow

when proven memory totally absent

-Involves entering out-of-court statement made by witness into

evidence as proof of contents of statement (Shergill)

-NOTE: Operates as exception to HEARSAY rule

-TEST FOR ADMITTING PRR: Amalgamation of tests inJR; Fliss:

-BINNIE: Test applied strictly, to fail one is to fail entire test

1. Absence of memory: Witness must have no memory of recorded

events

2. Reliable record: Past recollection must be recorded in somereliable way

-Witness must have prepared record OR reviewed it for

accuracy if someone else prepared it

-Original record must be used if it is available

3. Timeliness: At the time, it must have been sufficiently fresh & vivid

to be probably accurate


25/56

4. Present voucher of accuracy: Witness must now be able to assert

that record accurately represented his knowledge & recollection at

time

-Usually, witness must affirm that he knew it to be true at

the time

-JR: Police statement 16 hours after incident was sufficiently fresh &vivid for PRR

-Had testified at time of statement that her words were

truthful

-Fliss: (Tape excluded for s.8 issues): Police recollection of what was

taped still admissible

-ISSUE: Cop appeared to be reading transcript

-Crown argued were just really detailed notes

-PRR MORE SEVERE REMEDY: B(KG)

-PRR more severe remedy than PMR & typically not

attempted until PMR fails-ISSUE: Lacks three circumstantial indicia of reliability:

-Statement often not under oath

-Not videotaped

-Not subject to contemporaneous cross-examination

-THUS: Requirements for timeliness & reliability are strict for

PRR but more flexible in PMR

-POLICE NOTES ARE PRR:

-PROF: Almost presumption that certain types of witnesses

may use memory aids in certain types of proceedings:

-Ex. Police officers will likely to be allowed to rely on

notes

-Applications to TJ to rely on memory aids may be extremely

informal

-CROSS EXAMINATION:

-MAJOR & FISH in Lyttle:

-Cross-examination is indispensable ally in search for truth. Often no other

way to expose falsehood, to rectify error, to correct distortion, or to elicit

vital info. The right of D to cross-examine Crown witnesses, WITHOUT

SIGNIFICANT & UNWARRANTED CONSTRAINT, is an essential component of

right to make full answer & defence

-LEADING QUESTIONS are permitted in CE, which is examination of witness calledby other party

-In special circumstances, party may CE own witness, as when witness has

been declared hostile by TJ or when successful application has been made

under CEA s.9

-EXAM:


26/56

-Take note of substance of question put to witness: Is question designed to

elicit response which is itself inadmissible, as in Howard?

-Ex. Answers that indicate bad character

-GENERAL RULE ON CROSS-EXAMINATION:

-Tsoukas v Segura: On CE, subject to TJs discretion to disallow any question

which is vexatious or oppressive, witness can be asked literally anything totest credibility

-Ex. Can ask leading questions

-Lyttle: Question can be put to witness in CE regarding matters that will not

be proved independently provided that counsel has GOOD FAITH basis

-CHARTER: Basis for broad discretion under ss. 7 & 11(d)

-s.10 CEA: Outlines procedure to put prior statements to witnesses

-GOOD FAITH BASIS: Lyttle

-Consider: Info available to CE, belief in its accuracy, purpose for which it is

used

-Info may be incomplete or uncertain, as long as questioner does not putsuggestions recklessly or which he knows to be false

-Questioner may pursue any hypothesis that is honestly advanced on

strength of reasonable inference, experience or intuition

-NOTE: If line of questioning is suspect, TJ may conduct voir dire to ensure

that good faith basis exists

-EVIDENTIARY BASIS?

-Need not provide evidentiary basis for question

-NOTE: Browne v Dunne TJ erroneously turns this on its head & is to be

ignored, Lyttle prevails, no evidence required as long as in good faith

-LIMITS: Lyttle

-Cannot be completely irrelevant

-Cannot waft in unwarranted information

-Cannot harass witness or engage in theatrics (irony, sneering etc)

-Cannot in effect reverse the onus of proof:

Ex. Can you explain why the witness said such things?

-OBLIGATION TO PUT FORWARD PROPOSITION?

-ISSUE: TJs interference may affectpre-agreed no-touch subjects between

counsels

-TJ may appear to be involved member of the court

-RULE IN BROWNE v DUNN: To rely on a proposition in final statement,

must have previously put it to the witness (must be allowed opportunity tocontest statement)

-POLICY: Such absence would defy rules of professionalism, fair play

& fair dealing with witnesses

-LIMITS: Carter

-Consider holistic approach to determining violation of rule


27/56

-Only applied in clearest of cases where significant matter

was erroneously forgotten or not put to witness & Crown

seeks to rely on it

-REMEDY: Statement of adverse/helpful inference

-Counsel/TJ may alert jury to lack of CE on particular statement,

relevant in TOFs assessment of credibility-RE-EXAMINATION:

-WHAT: Examination of partys own witness after witness has been cross-examined

-GENERAL RULE: Moore

-TEST: For right to re-examine

1. Right only exists where there has been a cross-examination

2. Must be confined to matters arising in cross-examination

3. Arises only where witness gave material (new) evidence on CE

-LIMITS:

-Not witness improvement technique, cannot bolster eviscerated CE

in RE-New facts may not be introduced

-BUT: Leave may be requested from TJ to introduce new

facts, opposite party then gets opportunity to RE on those

facts

-Leading questions may not be asked

-Fear of prejudicial strength of final leading questions

-POLICY: Efficiency of the courts against fear of boxing in witness without

opportunity to present truth

-CE OF OWN WITNESS AT RE STAGE: Moore

-TJ may grant leave to counsel to CE own witness on prior inconsistent

statement, even at stage of RE where witness in CE has given evidence on

material matter which is contrary to prior statement

-Moore: As Hogan gave no evidence on material matter during CE, Crown

was NOT permitted to CE at stage of RE

-ARGUE: Should it have been permitted, given the test?

-Cassibo: Counsel permitted to CE Mrs Cassibo regarding testimony elicited

by defence CE & inconsistent with prior statement

-REBUTTAL EVIDENCE:

-WHAT: While RE involves examining same witness after other party has finished

CE, rebuttal evidence is reaction to entirely unexpected defence case:

1. Crown/plaintiff may wish to rebut evidence elicited by own CE of defencewitness

2. Crown/plaintiff may wish to react, at close of defence case, to case as a

whole

-NOTE: No auto-right to call rebuttal witness, witness may not be led

-GENERAL RULE: MCINTYRE in Krause

-TEST: For right to call rebuttal evidence


28/56

-CONDITIONS FOR REBUTTAL AT CLOSE OF DEFENCE CASE:

1. Defence has raised some new matter or defence

2. Crown/plaintiff had no opportunity to deal with it

3. Crown/plaintiff could not reasonably have anticipated it

-CONDITIONS FOR REBUTTAL AFTER CE:

1. Something new such that Crown had no opportunity todeal with it

2. New matter concerns an issue essential for determination

of case

3. Crown could not reasonably have anticipated it

-POLICY: Rule prevents unfair surprise, prejudice & confusion which could

result if Crown were allowed to split its case...Underlying reason for rule is

that defendant is entitled at close of Crowns case to have before it full case

for Crown so that it is known at outset what must be met in response

-COLLATERAL ISSUES: Rule against rebuttal

-Even where new matter raised, either on CE of defence witness or indefence case, & matter is COLLATERAL, that is NOT-DETERMINATIVE of

issue or not relevant to matters which must be proved for determination of

case, NO rebuttal will be allowed

-Krause: Crown wished to lead rebuttal evidence to contradict evidence

elicited from D on CE for purpose of impeaching credibility

-Credibility was collateral matter, NO rebuttal permitted

-NOTE: Tsoukas v Segura collateral evidence rule is very similar

STATEMENT EVIDENCE

-PRIOR CONSISTENT STATEMENTS:

-WHAT: Previous statement in which witness said same thing that he testifies to at

trial

-GENERAL RULE:Ay

-Cannot present prior CONSISTENT statements

-Cannot lead own witness through evidence harkening back to PCS

-POLICY RATIONALE:

1. Lack probative value

2. Are self-serving

-Concern jury will draw unwarranted inferences of truthfulness from

witness consistency

-Ad infinitum repetition is not indicative of truthfulness, onlyconsistency

-EXCEPTIONS: To rule against PCS

-NOTE: Exceptions, except for prior identification exception, do not permit

statement to be admitted as proof of truth of its contents

-Jury instruction required, especially where content of statement is

revealed


29/56

1. RECENT FABRICATION EXCEPTION:

-Does NOT require explicit allegation of fabrication to allow PCS to

be admitted

-Need only show opposing party takes position there has

been prior lie

-Probative value of statement comes from ability to show witnessstory was same even before motivation to fabricate arose

-PCS NOT admitted as proof of truth of contents, but merely

as probative of issue of credibility

-JURY INSTRUCTION REQUIRED

-Stirling: PCS admissible NOT for truth of contents, but to show

Hardings story did not change as result of new motive to fabricate

-Allows PCS to be admitted to rebut CE allegation of recent

fabrication

-Cassibo: Rosetta & Darlenes claims to have told their mother when

they were 12 was separately admissible under RFE to addressdefence claim that they concocted their stories after reading the

magazine

2. NARRATIVE EXCEPTION:Ay

-Fact that statement made is admissible to assist TOF as to sequence

of events from alleged offence to prosecution so TOF can understand

conduct of complainant & assess truthfulness

-Indicative that allegation not fabricated in courtroom, but

instead part of free-standing & existing story

-Witnesses can then provide corroborative evidence in form

of impressions of initial story-telling (Ex. Emotional? Visible

bruises?)

-Must be relevant to some live issue

-NOTE: Narrative does NOT mean details of PS may be

admitted, only the existence of PS

-ADDITIONALAYEXCEPTIONS:

-Statements on arrest

-Statements made on recovery of incriminatory articles

-PRIOR SEXUAL ASSAULT COMPLAINTS:Ay

-ISSUE: Almost inevitably credibility competition between

two witnesses

-ADMISSIBLE & INADMISSIBLE EVIDENCE:-Relevant & material matters which as admissible

are:

-Fact that prior complaint was made

-When it was made, AND:

-Why it was or was not made in a timely

fashion


30/56

-Prior complaint must be described in general terms

only, omitting details of what was actually said

-Content of statement is inadmissible unless relevant

for some other purpose such as providing the

necessary context for other probative evidence

-PERMISSIBLE PURPOSES-Context for other probative evidence

-Assessing complainants credibility by examining

whether events are consistent with conduct of

someone who is telling the truth

-IMPERMISSIBLE PURPOSES:

-Proof of truth of content, or implicit content of the

PCS

-Enhancing the credibility of complainant by proof

that she made an earlier statement corroborating her

current testimony-JURY CHARGE:

-Ay: Where evidence strictly confined to fact that prior

complaint was made, without details, TJ MUST instruct jury

that evidence is admitted only to assist understanding of

what happened, not for its truth

-Turcotte: While not a case about PCS, otherwise

inadmissible evidence of Turcottes silence was admissible as

inextricable part of narrative

-Cassibo: One of the purposes for which Dr. Voyseys

testimony would have been proper was to provide narrative

& context

3. PRIOR IDENTIFICATION EXCEPTION:

-Prior ID evidence is admitted for truth of its contents

-NOTE: Thus also an exception to hearsay rule

-Gonsalves: Eyewitness will likely give police statement describing

suspect in crime relatively soon after it occurs

-Witness may then be asked to ID accused in photo line-up or

by some other method

-Such prior extra-judicial identifications may occur months

or even years before court system gets around to trying the

case, with memories fading or becoming tainted-Swanston: Unlike other testimony that cannot be corroborated by

proof of prior consistent statements unless it is first impeached,

evidence of an extra-judicial ID is admitted regardless of whether

testimonial ID is impeached, as the earlier ID has greater probative

value than an ID made in the courtroom after the suggestions of


31/56

others & circumstances of trial may have intervened to create a

fancied recognition of witness mind

-Failure of witness to repeat extra-judicial ID in court does

not destroy its probative value, for such failure may be

explained by loss of memory or other circumstances

-ATTACKING THE CREDIBILITY OF PARTYS OWN WITNESS-Absent certain circumstances GENERALLY:

-Jolivet: Party may NOT CE or lead own witness

-s.9 CEA: Prohibited from impeaching credibility of own witness

-CL RULE ON HOSTILE WITNESSES:

-TJ has discretion to permit counsel to CE own witness if TF believes witness

hostile

-s.9 CEA does not eliminate TJs discretion (Wawanesa; Cassibo)

-STATUTORY REGIME:

-s.9 CEA framework defining circumstances under which parties can attack

credibility of own witnesses-Commonly done by using evidence of prior INCONSISTENT

statements

-RELATIONSHIP BETWEEN ss.9(1) & (2) CEA

CEA s.9(1) CEA s.9(2)

Purpose -Codifies CL

-Clarifies that PIS may be

proved by calling other

witness

-General provision on

attacking credibility of

partys own witness

-Exception to s.9(1) allowing

CE on PIS without declaring

witness adverse (Milgaard)

What it

enables

-Contradicting partys own

witness by other evidence,

if witness declared adverse

-Proving PIS, with leave of

court

-CE the witness as to PIS

(but only PIS Milgaard)

Types of PIS

allowed

-No restrictions (Cassibo) -Explicitly mentions CE, but

only as to the PIS

-PIS must be in

written/recorded form

Mentions CE -No, but CE permitted at CL

it witness hostile (see CL

Rule on Hostile Witnesses)

-Explicitly mentions CE, but

only as to the PIS

Scope of CE -No restrictions (Milgaard) -Limited to PIS (Milgaard)

Other -CE may be used for purpose

of deciding whether witness

is adverse under s.9(1)


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-NOTE: PIS only admissible for its truth if accepted by witness under CE

-CEA s.9(1):

-WHEN: Partys own witness testifies against PIS & is adverse, allows

CE

-CE is broad but cannot include impeaching on general bad

character-Can bring in other evidence disproving CE

-GOAL: Undermine weight of witness testimony

-Cassibo: Adverse moms PS allowed for

corroboration, rebut recent fabrication & narrative

purposes

-Allowed for CE on RE of now adverse witness

-MEANING OF ADVERSE: Not just outright hostility, can include

merely unfavourable behaviour. PIS alone not always enough

(Cassibo;Wawanesa)

-GENERALLY: Witness appears to now identify with otherparty absent logical explanation

-Purpose is to destroy witness, simple absence of evidence

(memory) not same as adverse testimony (McInroy)

-But if memory-lapse not believed, may be adverse

-IN USING PIS TO DETERMINE WHETHER WITNESS ADVERSE: TJ

must:

1. Be satisfied that witness made statement

2. Consider importance of statement, AND:

3. Consider if it is substantially inconsistent

-CEA s.9(2):

-WHEN: Party alleges own witness made PIS in writing, reduced to

writing or recorded, court may grant leave to CE on PIS without

declaring witness adverse

-PIS must be clear & significant inconsistency in probative

part of statement

-Not a witness improvement technique

-McInroy and Rouse: Where witness claims not to remember events

contained in her WRITTEN statement & TJ does not believe her, this

is evidence of inconsistency within meaning of s.9(2 )

-MILGAARD PROCEDURE FOR DETERMINING APPLICATIONS

UNDER s.9(2)1. Counsel advises court she wants to make application

under s.9(2)

2. Court directs jury to retire

3. Counsel produces alleged statement meeting s.9(2)

criteria:


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-In writing, reduced to writing, audiotape, video or

other

4. TJ examines statement to see if inconsistent

5. Counsel proves statement:

-By asking witness &, if witness denies making it,

proving it by other evidence6. Counsel opposite is permitted to CE any witness

-Witness need not be adverse (as this is not s.9(1))

-Confined to pointing out inconsistencies &

demanding basic explanation

-NOTE: Under s.9(1) can aim to destroy

credibility

7. TJ decides whether CE under s.9(2) will be permitted &

recalls jury

-Not obliged to allow CE

-ISSUE: As in Milgaard, s.9(2) allows number of assumptions &correlations to be put before TOF, jury instruction notwithstanding,

factor in wrongful convictions

-JURY INSTRUCTIONS:

-PIS introduced to impeach credibility of own witness, NOT

admissible as true

-When party proves PIS under s.9(1) or CEs witness under s.9(2),

jury MUST be instructed that PIS may only be used in assessing

credibility, not for truth

HEARSAY

-WHAT: Out of court statement entered for its truth (DE SILVA in Subramaniam)

-MACDONALD in Baltzer: Whenever witness testifies that someone has said

something, immediately one should ask, what is the relevance of fact that someone

said something?

-SCC in Khelawon: An OOC statement is hearsay if:

1. Adduced to prove truth of its contents, AND:

2. No opportunity for contemporaneous CE of declarant

-NOTE: Hearsay presumptively inadmissible

-BUT unlike other OOC statements, if hearsay admitted, does not require

limiting instruction as entire purpose it is to prove truth of contents

-DOUBLE HEARSAY:-WHAT: OOC statement is itself repeating a second OOC statement heard from

someone else

-Each level of double hearsay must fall within exception, or be admissible

under principled approach (Starr; Griffin)

-HEARSAY DANGERS: Two different opinions:

-CHARRON in Khelawon: Attributes of declarant which cannot be tested:


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1. Perception

2. Memory

3. Credibility

-LAMER in B(KG): Absence of:

1. An oath

2. The declarant in front of the TOF3. Contemporaneous CE

-ADMISSIONS OF THE ACCUSED:

-See Probative Value of Informal Admissions

-CIRCUMSTANTIAL EVIDENCE OF STATE OF MIND: Three different factual scenarios:

-Baltzer: FACTS: Sought to admit D saying crazy things, no question of statements of

weird nature being used to prove truth of statements, only used to show D might

have been insane

-OOC statements in this case are clearly NOT hearsay at all as not taken for

truth

-Ratten: FACTS: Sought to admit female voice saying Get me the police & beinghysterical, was ostensibly only brought to show female in state of emotion or fear

-NOT hearsay for purpose for which it was admitted

-Griffin: Witness reported victims words implied witness afraid of Griffin,

CHARRON appears to admit for its truth of fact that witness feared Griffin

-Was TRUE HEARSAY, but fit within CL exception Declarations of Present

State of Mind

-GENERAL RULE ON EXCEPTIONS ALLOWING HEARSAY:

-Statutory first, CL second, principled approach last

-CL & statutory exceptions remain presumptively good law (Mapara)

-Hearsay presumptively inadmissible

-If it falls into exception, flips to admissible subject to being challenged

under principled approach

-In absence of exception, can look for admittance via principled approach

-STATUTORY EXCEPTIONS: s. 30 CEA Business Records Exception

-Looser standards than CL but cannot flout other CL rules of evidence & must be

authenticated

-Embraces tenants of necessity & reliability

(10): Cannot be contrary to public policy

(11): Should supplement, not replace, existing CL exception

-Wilcox: CL rule states record must be made in usual & ordinary course of business

by one under duty to so act-s.30 omits this duty, causing CROMWELL to question whether this opened

rule to those records made against employers instruction

-RULE: As a result of this semantic confusion, CROMWELL advocated

application of PRINCIPLED APPROACH in such circumstances

-CL EXCEPTIONS TO HEARSAY RULE: Used to be only way to enter hearsay

1. BUSINESS RECORDS: Wilcox


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- An OOC record containing:

-An original entry

-Made contemporaneously

-In the routine of business

-By one who had DUTY to make record, AND:

-Acts as circumstantial guarantee of truth based onassumption that declarant would fear censure & dismissal if

inaccurate

-NOTE: This is where Wilcoxfailed

-By one who had NO MOTIVE to misrepresent

-Admitted for proof of truth of contents

2. DECLARATIONS AGAINST INTEREST: Financial or Penal

-Declaration sought to be adduced as hearsay must: OBrien

-Have been made to person & in circumstances that declarant should

have apprehended penal/pecuniary consequences, AND:

-Vulnerability to consequences must not be too remote-OBrien: Hearsay failed as Jensen clearly took steps to avoid

jail

-Declarant must realize declaration may well be used against him, shows

reliability

-Brown: Girlfriends hearsay would likely not have met criteria of the

exception

-PROF: Confessing to loyal friend likely does not count

3. DECLARATIONS OF PRESENT STATE OF MIND:

-Statement criteria: Griffin

-Declarants state of mind must be relevant

-Statement must be made in natural manner

-Statement must not be made under circumstances of suspicion

-Griffin: Poirers declarations admissible as conveying a fearful state of mind,

but NOT as evidence of Griffins state of mind (as would be double hearsay at

best)

4. STATEMENTS OF INTENT:

-Griffin: Statement of intent is just a particular subcategory of declaration of

present state of mind

-PROF: Im going to the gas station & Ill be back in half an hour

5. DYING DECLARATIONS:

-Reliability of statement is thought to flow from fact that dying person haslost all reason to lie

-Generally declaration revolves around who did the murder

-NOTE: Facts must still satisfy test of necessity & reliability

6. PAST RECOLLECTION RECORDED: See prior notes

-JR: NBs second police statement, taken 16 hours after ordeal, met both

criteria for PRR & for admission under principled approach to hearsay


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7. PRIOR IDENTIFICATION EVIDENCE:

-Evidence of extra-judicial ID is admissible as exception to rule against PCS &

hearsay

-Swanston: Principal danger of admitting hearsay evidence is not present

here since the witness is available at trial for CE

-NOTE: As the prior ID was made at preliminary hearing, worthnoting that an oath would also have been present at the time

-Gonsalves: Prior ID from photo line-ups conducted with both witnesses

were admissible & any flaws in the procedure went to weight

8. RES GESTAE:

-Belief that certain statements are natural & spontaneous without

deliberation during course of event, leaving little room for invention by

declarant or misunderstanding by witness hearing them:

-Words of phrases that either form part of, or explain, a physical act,

AND:

-Exclamations that are so spontaneous as to belie concoction-PRINCIPLED APPROACH TO HEARSAY: Necessity & Reliability

-Mapara: CL exceptions still good law, but must conform to overarching principled

framework

-PROS:

-Better aligned with search for truth & less technical

-Addresses CL concerns that good evidence was being kept out & that

exceptions were being twisted to fit the facts

-CONS:

-More time-consuming, less predictable

-PROF: Hinted that it may be factor in lengthy pre-trial waits

-TEST OF NECESSITY & RELIABILITY: Probative must exceed prejudicial

-Khelawon: As necessity of evidence goes down, reliability threshold may go

up

-Ultimate reliability is for TOF to decide & necessity is not evaluated

in isolation from threshold reliability

-B(KG): One putting evidence forward must demonstrate necessity &

reliability on BOP

-FIRST CONSIDER: Pre-necessity/reliability

1. Is it being used for truth?

2. Is it otherwise inadmissible?

3. Is it the product of (state) coercion?-NECESSITY: Need not be necessary to Crowns case (Smith), but necessary to search

for truth

-CRITERIA: Is flexible & not solely determined by unavailability of witness

(Khelawon)

-Two classes of necessity: Wilcox

1. SOURCE OF HEARSAY UNAVAILABLE FOR TESTING


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-Pelletier: Coles hearsay testimony of what Kong said during

call not necessary as Crown failed to make reasonable efforts

to get Kongs testimony

-Fear or unwillingness to testify alone not necessity

-Khelawon: Though necessity present, can argue proponent

of evidence did not make all reasonable efforts to secureevidence

2. CANNOT GET EVIDENCE OF SAME VALUE FROM OTHER

SOURCES

-B(KG): Where party seeks to adduce PIS as proof of truth,

cannot expect to get evidence of same value from recanting

witness, recanting witness holds PS hostage

-Necessity based on unavailability of correct

testimony, not witness

-Wilcox: Necessary as detailed nature of accounting prohibits

independent recollection of entries & because entries written-Parrott: Voire dire to decide if W was mentally capable, or if

hearsay testimony from handlers should be allowed in Ws

place

-RELIABILITY: CHARRON in Khelawon: Summarized CL reliability under

PRINCIPLED APPROACH: Reliability can be supported on two different CRITERIA:

-NOTE: Khelawon arose in response to issues with B(KG); Starrcriteria

which required substitutes for absence of oath, lack of presence, inability to

CE (very narrow)

Ex. Neither case addressed use of striking similarities as grounds for

reliability in U(FJ) despites its failure on traditional B(KG) criteria

-ARGUE: Does the multi-factor approach ofKhelawon inevitably leave it up

to TJ?

-Party can satisfy all B(KG) criteria & still be dismissed under

Khelawon

1. INHERENT TRUSTWORTHINESS FACTORS:

-Presence/absence of motive to lie

-Probability of accurate memory

-Time between events & declaration

-Other circumstances affecting accuracy of memory

-3rd party influence leading declarant to concoct statement

-Whether possession of special knowledge by declarant, asevidenced by declaration makes it more likely declaration true

-Existence of corroborating evidence

-Existence of striking similarities with other statements where

coincidence, collusion or other tainting could not realistically be a

factor

-Non-existence of clear lines of CE


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2. SUFFICIENT TESTABILITY OR ADEQUATE SUBSTITUTES

-NOTE: Can considered together or as independent ground for

reliability

-ISSUE: Requires party resources to be sufficient

-SUFFICIENT TESTABILITY:

-Presence of declarant at trial for CE-Video/audiotape simulating presence for TOF at time

statement is made

-ADEQUATE SUBSTITUTES FOR TESTABILITY:

-Oath, solemn declaration or affirmation, plus warning of

consequences

-Contemporaneous CE, as at preliminary inquiry

-FACTORS AS APPLIED IN CASE LAW:

CASE INHERENT TRUSTWORTHINESS TESTABILITY OR

ADEQUATE SUBS

Khan -Statement of kid to mom almostimmediately after event

-Kid had no motive to lie

-Statement made naturally &

without prompting

-Kid not knowledgeable of sex

-Evidence confirming kids story

(semen stain)

Smith ADMITTED PHONE CALLS:

-No motive to lie

-Traditional hearsay dangers of

perception, memory, credibility not

present

FAILED PHONE CALL:

-Because there were clear lines of CE

B(KG) -OOC statement

videotape

-Declarant available at

trial for CE

U(FJ) -Striking similarities between

declarants statement &

independent statement of her father


trial for CE

Hawkins -Entirely determined

based on adequate subs,

as witness not available

to testify at trial

-Generally, witness

testimony before


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preliminary inquiry will

satisfy threshold

reliability since under

oath subject to

contemporaneous CE in

hearing involving sameparties & issues

Parrott -No possibility of mistaken ID

-No motive to lie

-Possibly no mental capacity to lie

-NOTE: Had reliability been issue,

declarants ability to perceive

accurately & recall & recount

faithfully would still have required

consideration

Wilcox -No motive to lie-Routine nature of Books creation

-Relied on for business purposes

-During the recorded time period, no

fisherman disputed any payment

made

-Declarant available attrial for CE

JR -Statement made when events fresh

in declarants mind

-Statement voluntary, no leading

questions, no police influence

-TJ found no contamination of

declarants recollection by friend MR

-Statement accurately recorded

-Though statement

itself not under oath,

declarant testified

under oath that she was

being truthful &

accurate when she

made statement


trial for CE

Khelawon INDEPENDENT FAIL

-Possibility of injuries caused by fall

-Mental capacity of declarant in

issue

-3rdpartys obvious motive to

discredit D & ability to influence

declarant

-Declarants own separate motives

to lie based on his rambling

complaints

-Striking similarity with other

complainants statements not

helpful as those statements had even

INDEPENDENT FAIL

-No adequate subs,

mere video without oat

or availability of

declarant at trial not

sufficient

-Oath & simple yes in

response to cops

question as to whether

declarant understood

important to tell truth

do not give insight into

whether declarant


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more issues understood

consequences to D of

declarants statement

-PRIOR INCONSISTENT STATEMENTS:

-Where party seeks to adduce PIS as proof of truth, as in B(KG);U(FJ), the

sufficient testability arm ofKhelawon reliability inquiry is more relevantthan inherent trustworthiness, must NOTE:

1. PIS sought to be admitted must be otherwise admissible

2. Evidence involves certain special concern over reliability not

present in other forms of hearsay

-SPECIAL CONCERN OVER RELIABILITY:

-LAMER in Khelawon: Reliability concern is sharpened in cases

where the focus of the inquiry is on comparative reliability of PS and

testimony offered at trial

-CIRCUMSTANTIAL INDICIA OF RELIABILITY: LAMERin B(KG)

1. Whether statement was made under oath (or with subs)2. Whether statement was audio/videotaped, simulating TOFs

presence during statement, or whether there is sufficient sub

allowing TOF to assess demeanor

3. Whether witness was subjected to contemporaneous CE (or sub)

-PROF: CE issue is the trump card

-OATH: Absence not determinative, as not present in B(KG); U(FJ),

but exists in spectrum:

LESS RELIABLE MORE RELIABLE

Totally &

ridiculousl

y informal

Fairly

informa

l

No oath,

truth not

stressed,

but

formal

intervie

w

No oath,

but formal

interview,

importanc

e of truth

stressed

Oath,

but not

told of

penaltie

s

Oath,

told of

penaltie

s

-PRESENCE: Demeanor of witness on stand assists the TOF in

assessing credibility, but TOF not present for PIS, thus must have

substitute

-LAMER in B(KG): Substitutes in decreasing effectiveness:

1. Videotape

2. Testimony of independent 3rd party who observes