#9158 - Evidence Law Tests And Frameworks - Evidence Law

Witnesses: Prerequisites to Testify

-i) competence: do they understanding the oath or affirmation?

-everyone presumed competent (s 18 OEA) except for the following exceptions in crim law:

a) accused persons: not a competent witness for the Cr but is so for D (s 4, CEA)

b) spouses: not competent witness for the 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:

-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

-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)

b) legally relevant or material:

-does it prove/disprove an element of the cause of action, offence, or defence?

-NB: 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, e.g. through:

-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:

-the TF must consider it 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

SCC’s Principled Approach to Hearsay (Khan, Smith, Star, Khelawon)

-i) assess if it is HS: (Khelawon)

-any out of court statement (document, etc) relied on for the truth of its contents (Subramaniam)

-may include conduct, implied assertions (Baldree; McKinnon)

-if purpose is to prove truth of matters within statement =HS purpose (Subramaniam)

-if you need to cross examine 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):

Res Gestae (dying declaration, excited utterances or spontaneous declarations)

-assess if declarant is still dominated by effects of event, likelihood of fabrication, close temporal connection bw statement and trauma (Ratten; Clark; Khan)

-dying declaration: only admissible in crim if deceased had a hopeless, settled expectation of immediate death, statement about the death, would have otherwise been admissible, declarant was killed (offence was homicide)

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 as to cause of pain can be admitted

Statements of Intention

-to be admissible, a statement must be made in a natural manner and not under any suspicious circumstances (Starr)

- can be used to draw inferences that the declarant acted in accordance w stated intention but limited by (P(R):

-i) where it is reasonable to believe that declarant acted on intention: depends on factual context of plan, timing, etc.

-ii) doesn’t go to 3^rd party’s state of mind or their actions

-iii) cannot be used as proof of previous acts

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

Statements against Interest

-admissible if declarant’s statement contravenes their financial or penal interest (O’Brien)

-requirements: (O’Brien)

-i) declarant must be unavailable

-ii) statement must be against their interest at time of statement

-iii) declarant must have had personal knowledge that it was indeed against their interest

-additional requirements if penal interest (Demeter; O’Brien):

-statement must have been made in circumstances that the declarant should apprehend vulnerability to immediate penal consequences at the time the statement was made

-in a doubtful case, assess whatever 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

-statements against penal interest admissible if favourable to A, but not implicate A or others (Pelletier/Lucier)

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

Business Records

-conditions (Ares, adopting dissent in Myers):

-i) must be made in the routine of business

-ii) contemporaneous

-iii) by a recorder w personal knowledge of the matter (observation or participation)

-iv) who is under the duty to make the record

-v) who has no motive to misrepresent

-if falls under one of these traditional exceptions, it is presumptively admissible but, as the principled approach may conflict, assess if it is necessary and reliable

> if yes, PF admissible but go to iii)

> if no, as principled approach prevails, is inadmissible

-iii) statements that do not fall within traditional exceptions: contextually assess if is both:

-a) necessary:

-to prove a fact in issue (Smith)

- met where we cannot expect to get evidence of the same value from the same or other sources (Smith; KGB)

-e.g. because direct testimony inadmissible or unable to testify (Khan)

-can include prior inconsistent out of court statements so TF can weigh both statements (KGB)

-b) has threshold reliability:

- assessed through either or both (Khelawon)

-1. Content: circumstances suggest it is reliable:

-if made under circumstances that substantially negate fabrication or mistake (e.g. via assessing perception, narration, memory) (Smith)

-non-exhaustive factors: timing of statement, demeanour of declarant at time it was made; personality, intelligence and understanding, motive to lie, corroborating evidence (Khan; Khelawon; Blackman)

-could use this approach solely for inconsistent statements but reliable circumstances need to be strong

-2. Process: if there are adequate reliability substitutes (KGB):

-e.g. if assessing prior inconsistent statement, e.g. through video

-stringent requirements that look at substitutes of:

- oath> statement made under oath or given warning re lying?

-cross examination> ability to cross declarant to explain inconsistency?

-observation of demeanour > e.g. videotape? NB: not an absolute requirement

-not all need to be present, but if they are not need other strong guarantees to be admissible

> any unnecessary or unreliable evidence must be inadmissible (Starr)

> if meets both a) and b), then assess:

-iv) assess if probative value outweighs prejudicial effect

-if yes, 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)

Opinion Evidence

-PF inadmissible, except:

-i) Lay Opinion (Graat)

-test: can express their evidence better with opinion than in purely factual form?

-i) w/in common knowledge (i.e. non-expert knowledge)

-ii) it is helpful bc witness is better placed to form the opinion > if TF can draw opinion, inadmissible

-ii) based on multiple perceptions are best communicated in a compendious format

-cannot give an opinion on a legal issue

ii) Expert Evidence (Abbey/Mohan):

-i) pre conditions to admissibility (assesses expertise of expert, not specifics of testimony):

a) does it relate to subject matter that is properly the subject of the expert evidence?

b) is this person really a qualified expert?

c) does the opinion conflict with any other evidentiary rule?

d) is it logically relevant: does it make a fact in question more or less likely to be true?

-if not met> inadmissible, no need to continue on to 2^nd stage of analysis

-ii) gatekeeping function> does probative outweigh prejudice (assess specific testimony):

a) reliability> based on 4 factors: subject matter, methodology, expertise, impartiality

-if novel field or one where reliability shifted, apply Daubert/ J-LJ /Trochym analysis:

i. can the theory or technique be or has it been tested?

ii. has it been subjected to peer review and publication?

iii. what is the error rate?

iv. is it widely accepted as valid by the professional community?

b) cost benefit/necessity analysis:

-will the jury be incapable of understanding the opinion and make a critical assessment?

-will the trial become unduly complicated?

-is it necessary to adjudicate the case> must be more than helpful; jurors are assumed to know about human behaviour (D(D))>...