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Evidence Law Notes

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Witnesses: Prerequisites to Testify
-i) competence: do they understanding the oath or affirmation?
-presumed competent (s 18 OEA) except for crim exceptions: except a) A for Cr (s 4, CEA) b) spouses: not for Cr except where A charged w certain violent offences (SA, DV or towards youth)
-outside of these exceptions, opposing party can challenge competence if it is so unreliable that it shouldn't be admitted (CEA s 16):
-i) over 14: a) assess if: can communicate evidence > if not, cannot testify; b) understand moral nature of the oath > if not, can testify based on a promise
- if a) + b) met> testify under oath or affirmation
-ii) children: only basis for challenging is incapable of understanding and responding to questions; give evidence on promise: cannot ask about ability to tell truth or take an oath/affirmation
-at CL, any witness that is competent is compellable, except A by the Cr ii) the oath: affirmation, or promise will suffice (if under 14 yoa or mentally disabled) Admissibility: all evidence that is relevant to a fact in issue is admissible unless there is a legal reason for excluding it
-assess: how is evidence being used? What are the Cr and D seeking to prove?
-must pass all tests > decided by TJ:
-i) relevance: a) factual relevance: does the evidence make a fact in issue more or less true/probable? Met if triggers a chain of inferences that ultimately lead to a fact in issue (Watson)
> threshold is low, quality of link goes to weight, not admissibility (Watson)
-ii) is it inadmissible on any ground of law or policy? e.g. hearsay, opinion, character, statement by A, 24(2), etc.
-iii) general exclusionary discretion: does the prejudicial effect outweigh its probative value?
-probative: strengths or usefulness of evidence in fact finding process
-prejudicial: harmful effects on trial process: unduly sway jury's emotions or prejudices, make impermissible inference; create a side issue; consume an undue amount of time; credibility may be distorted
-NB: different standard when A tenders evidence in crim cases: inadmissible where prejudicial effects significantly outweigh probative value (Seaboyer)
-if admissible: TF must consider in reaching a factual determination, but its weight is open to be decided by the TF (e.g. credibility), subject to any cautions by TJ Principled Approach to Hearsay (Khan, Smith, Star, Khelawon)
-i) assess if it is HS in terms of its purpose: (Khelawon)
-any out of court statement (document, may include conduct, implied assertions (court typically doesn't recognize but law is in flux (Baldree; McKinnon)] relied on for the truth of its contents (Subramaniam)
-assess how it is being used > what fact is it trying to prove? > apply it to facts to discern its purpose
-if you need to test the testimonial factors of the out of court declarant to test its reliability = HS
> if so it is presumptively inadmissible ii) assess if statement falls within traditional exceptions (Starr): a) Res Gestae (excited utterances or spontaneous declarations)
-if declarant is still dominated by effects of event, likelihood of fabrication, close temporal connection bw statement and trauma (Ratten; Clark; Khan) b) Statements about Bodily Condition
-2 restricting rules (Youlden): i) it must be re the pain at time of statement > cannot be used re past pain; ii) no statement re cause of pain can be admitted

c) Statements of Intention
-must be made in a natural manner and not under any suspicious circumstances (Starr)
-can be used to draw inference that declarant acted in accordance w stated intention but it must be reasonably to believe so based on factual context, doesn't go to past acts or 3rd party acts/state of mind (P(R) d) Statements by a Party(ies)
-very broad: any statement is admissible by an opposing party, except that which is subject to privilege but does not include your own out of court statement e) Statements against Interest
- if declarant unavailable and had knowledge at time statement made that statement contravened their own financial interest or made them vulnerable to penal consequences (O'Brien; Demeter)
-in a doubtful case re penal interest, assess what evidence connects declarant w the crime and what connection there is bw the A and the declarant, to see if there is a false confession (Demeter)
-statements against penal interest admissible if favourable to A, but not implicate A or others (Pelletier/Lucier) f) Prior Judicial Proceedings
-s 715, CC: testimony from a prior proceeding admissible in certain circumstances where person whose evidence was given at a previous trial unavailable or refuses to give evidence at current trial g) Business Records
-made in routine of business, contemporaneous, by a recorder who is under duty to make record and who observed or participated in the matter, who has no motive to misrepresent (Ares/Myers)
-iii) regardless if it falls under one of these traditional exceptions or not, apply the principled approach and assess if it is necessary and reliable: a) necessary: to prove a fact in issue (Smith), where it is only source of evidence bc direct testimony inadmissible or declarant unavailable (Smith; KGB); a prior inconsistent out of ct statements so TF can weigh both statements (KGB) b) threshold reliability: assessed through either, both or a combo of each (if only relying on one, it needs to be strong) (Khelawon) 1) Content: circumstances suggest it is reliable: that substantially negate fabrication or mistake (e.g. via assessing perception, narration, memory) (Smith); timing, demeanour of declarant at time it was made; intelligence, personality, corroborating evidence, no factor is precluded (Khan; Khelawon; Blackman) 2) Process: adequate reliability substitutes for oath, cross, observation of demeanour (KGB); not all need to be present, but must be strong guarantee of reliability to be admissible
> any unnecessary or unreliable evidence must be inadmissible (Starr), but if meets both a) and b), then assess:
-iv) if probative value outweighs prejudicial effect: if so, it is admissible, subject to any restrictions J wants to put to protect interests of A, e.g. by instructions to TF re its prejudicial effect (Khan; Smith) NB: if inadmissible as HS, may be able to be used for other purposes > e.g.: narrative or undermining credibility
> see prior inconsistent statements under credibility Opinion Evidence
-PF inadmissible, except: i) Lay Opinion (Graat)
-test: can express their evidence better with opinion than in purely factual form? If so, it must be w/in common knowledge (i.e. non-expert knowledge); helpful bc witness is better placed to form the opinion (if TF can draw opinion, inadmissible); based on multiple perceptions are best communicated in a compendious format. Lay opinion cannot be on a legal issue.

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