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Evidence Law Tests And Frameworks Notes

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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 3rd 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)

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