#9159 - Evidence Law - Evidence Law

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 3^rd 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.

ii) Expert Evidence (Abbey/Mohan):

a) preconditions to admissibility: qualifications of expert (but status is modest)? Logically relevant: does it make a fact in question more or less likely to be true? Is it within proper scope of expert’s expertise

(lay knowledge)? Conflict w any other evidentiary rule? > if not met = inadmissible, no need to continue on to 2^nd stage of analysis

b) gatekeeping function> does probative outweigh prejudice (assess specific evidence):

1) reliability> is subject matter beyond scope of expertise?, impartiality, methodology

-if novel field or one where reliability shifted: can it be or has it been tested, peer review and publication? What is the error rate? Is it widely accepted as valid by the professional community? (Daubert/

J-LJ /Trochym)

2) cost/benefit/necessity analysis: will the jury be incapable of understanding the opinion and make a critical assessment? Will the trial become unduly complicated? Necessary to adjudicate the case?> must be

more than helpful; jurors assumed to know about human behaviour (D(D))> but sometimes experts are useful in challenging problematic assumptions (Lavallee)

-Problem of HS via Expert Evidence (Abbey/ Lavallee): as long as there is some admissible evidence to est the foundation of the opinion, it is admissible but TJ must warn the TF that weight depends upon amount that facts have been independently proven and if reference is made to certain events that are HS, the TF cannot consider the statements for the truth of the matters asserted within it

Character Evidence

-distinct from credibility: attempt to neutralize evidence re traits or past actions suggest they are more likely to act in a certain way

How Accused Can Adduce Own Good Character

-rep witnesses (not gen D witnesses): cannot testify to all aspects of the character but only to their personality trait or rep relevant to the offence in question (Rowton)

-in chief: A may raise specific instances of good conduct (not ltd to gen rep) (McNamara), may also arise accidentally in chief or cross from A’s denial of allegations and explaining defence (McNamara)

-through a third party: i) psych evidence: only for ordinary crimes if A has distinctive characteristics that make it extremely unlikely that they committed it; if the crime is distinctive, only if the evidence suggests they are not a member of that distinctive group (Mohan/ Robertson); ii) through a 3^rd party witness or through deflecting blame on a 3^rd party> implies A is of good character (MacMillan/Scopoletti)

-once raised: big implications as it allows Cr to rebut (w limitations)

Crown Offering Evidence of A’s Character (PF inadmissible, unless…)

1) where A need not introduce good character evidence but there is ...