2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 1 Onus and Burden of Proof BASIC COMPONENTS OF A CRIMINAL TRIAL 1. Judge/juries (10 to 12 citizens) 2. Crown (prosecution) 3. Defense Judge and Jury - When do we have juries? Indictment (art.449) versus summary charge (art.553); there are no juries on summary charges Jordan decision; 18 months for a summary charge, versus 30 months for an indictment See criminal procedure notes for in-depth notes - Why would someone elect to be tried in front of a jury? Jury’s decision must be unanimous; 12 minds versus 1; potentially more chances of being acquitted by confusing 12 minds, versus being judged solely by someone who is rational and knows the law; Might be able to get some sympathy; also, if accused is able to convince at least one person, the decision will not be unanimous; - Separation of power between judge and a jury; Jury is trier of facts; questions of fact Judge is “master of the law”; deciding on any issue of law Defense - An individual who allegedly committed a crime; arrested by the police. Police submits file to prosecution; they must decide whether to prosecute or not (prosecutorial discretion); - Why wouldn’t the accused speak before or during trial? Right to silence is a constitutional right; why has this right been present in criminal justice systems? This right has existed before it was enshrined in the Charter; it has existed because there is a fundamental imbalance of power and resources; the government and the State has much more power than an individual; an individual has rights Crown has the burden of proof regarding the accused’s guilt; presumption of innocence - Presumption of innocence is tied to the right to silence; onus is on the Crown to prove guilt beyond a reasonable doubt; Why isn’t the burden on a balance of probabilities? Because liberty is at stake, there is stigma, punishment is more severe - A trial must also be fair; fundamental objective being to avoid judicial errors that would lead to a miscarriage of justice, such as sending an innocent person to jail; - Packer Model: criminology professor developed this theory; two opposite models Law and Order: model based on public safety; whatever means necessary to keep citizens safe is necessary. Therefore, criminals must be locked up as soon as possible. Due Process: safeguards to avoid innocent people going to jail; protection of innocence; Disadvantages to Law and Order: danger of error, of systemic racism being uphold 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Reasonable Doubt - Is it an ordinary concept? - When you appeal a guilty conviction, there are questions of facts and law; Question of law: evidence, legal interpretation; questions of law are appealable Question of facts: credibility, crown’s theory of the case; proof beyond a reasonable doubt regarding actus reus and mens rea; questions of fact cannot be appealed - Why are questions of law appealable, but not questions of fact; why? Trial judges heard the totality of evidence; they are best placed to determine questions of fact; Appeal is not a re-litigation of the trial; Appeal judges have access to transcripts of the trial; but they do not see the demeanour of the accused; is this important? Yes, because demeanour establishes credibility; - Can demeanour be the source of reasonable doubt? Yes; para 28 Lifchus; Canada R v Lifchus (1997) Facts Lifchus was a stockbroker accused of fraud & theft; convicted of one & acquitted of other. He appealed on the basis that the judge did not properly explain the burden of proof to the jury. He said that "beyond a reasonable doubt" is simply an everyday idea and that everyone understands it - a "plain language" approach. CoA allowed appeal ordering new trial, which the Crown appealed. How should a judge charge a jury on the meaning of “beyond a reasonable doubt”? Definition given, SCC ordered a new trial based on misdirection of jury. Cory, writing for the majority, agrees that this was not the correct way to describe "beyond a reasonable doubt" to a jury, because it is not simply the plain understanding of it. He gives a list of things to include in a charge: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice, rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit; and a list of things not to include: describing the term as an ordinary expression which has no special meaning in the criminal law context; inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives; equating proof "beyond a reasonable doubt" to proof "to a moral certainty; qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt". Cory provides a suggested charge at para 39 which has subsequently been adopted by all trial jurors: The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Issue Decision Reasoning 2021/09/20 Evidence Ratio Nadya Goorachurn Walid Hijazi Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. He says that other than the part in question, the trial judge's charge to the jury was clear; however, the part in question was enough to mislead the jury. The Crown tries to argue that s.686(b)(iii) applies, however this is rejected as the Court says that you cannot say that the jury would have come to the same conclusion with the correct instruction. When defining important criminal terms such as "beyond a reasonable doubt" the judge must not simply use a plain language definition; they must include descriptions of the important underlying concepts of criminal law that must be considered, and the specific degree that must be proven to be acceptable. If a different charge is used, a verdict should only be overturned to order a new trial if there is a reasonable likelihood that the charge led the jury to misapprehend the standard of proof. Lifchus Notes - It is far from a “perfectly ordinary concept” 24. Ordinarily even the most important decision of a lifetime are based upon carefully calculated risks. They are made on the assumption that certain events will in all likelihood take place or that certain facts are in all probability true. Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held. 25. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”. 26. Finally, qualifications of the word “doubt”, other than by way of the adjective “reasonable”, should be avoided. For instance, instructing the jury that a “reasonable doubt” is a “haunting” doubt, a “substantial” doubt or a “serious” doubt, may have the effect of misleading the jury (Boucher v. The Queen, [1955] S.C.R. 16). 29. For instance, there may be something about a person’s demeanor in the witness box which will lead a juror to conclude that the witness is not credible. It may be that the juror is unable to point to the precise aspect of the witness’s demeanor which was found to be suspicious, and as a result cannot articulate either to himself or others exactly why the witness should not be believed. A juror should not be made to feel that the overall, perhaps intangible, effect of a witness’s demeanor cannot be taken into consideration in the assessment** of credibility. Juries and Reasonable Doubt - Verdict must be unanimous, but the approaches and routes taken to get to this decision do not have to be unanimous Must be unanimous as to the reasonable doubt regarding actus reus and mens rea Totality of the evidence must convince them beyond a reasonable doubt… - Defense attorney’s goal is to create reasonable doubt; Ethical duties of defense lawyer; if a lawyer becomes convinced that their client is guilty, they are limited in their defenses; On the other hand, if a lawyer has the flexibility to present any defense, a good strategy is to render evidence inadmissible, and bring a counter-story through cross-examination - How does the jury deliberation work? Must they be convinced beyond a reasonable doubt regarding the totality of the evidence, or each piece of evidence individually? Two forms of evidence; direct evidence and circumstantial evidence Majority of cases are circumstantial; multiple pieces of circumstantial evidence, that put together, lead inevitably to a conclusion of guilt; Should jury look at each piece of evidence individually, and then look at them in relation to the other pieces of evidence to ultimately establish guilt beyond a reasonable doubt? This question was considered by SCC in Morin 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v Morin (1988) Facts The appellant was acquitted on a charge of first degree murder of a nine‑year‑old girl. On appeal, the Court of Appeal unanimously found (1) that the trial judge erred in his charge when he invited the jury to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence; Was there jury misdirection? Yes Abella J. (for the majority) identified the appropriate line of inquiry in this regard as “whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused.” She then proceeded to consider the three part test for assessing the trier of fact’s apprehension of the principle of reasonable doubt, as set out in R v W(D), [1991] 1 SCR 742 [W(D)]: 1. First, if you believe the evidence of the accused, obviously you must acquit. 2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. 3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (758) Drawing on Cory J.’s decision in R v S(WD), [1994] 3 SCR 521, however, Abella J. added the important qualification that in applying the W(D) test, “the key is whether the correct burden and standard of proof were applied, not what words were used in applying them.” In Abella J.’s view, there was “no blueprint for error in the trial judge’s failure to observe W.(D.) as a catechism.” On her reading of the trial judge’s reading, it was clear that “she understood that a finding that the girl was credible did not mean that the onus shifted to the accused to show that he was not guilty.” Accordingly, Abella J. concluded that the trial judge’s reasons did not “undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.” Issue Decision Reasoning Ratio The standard of reasonable doubt applies to the totality of the evidence, it is not a piece-meal analysis of the evidence. Morin Notes You do not need to be convinced beyond a reasonable doubt on piece A, piece B, piece C, etc. but on the totality of the evidence; 11. Mr. Ruby submitted that the charge as a whole did not invite a piecemeal examination of the evidence. The Court of Appeal erred in failing to recognize a two-stage process in the deliberation of the jury, each of which attracts the application of the doctrine of reasonable doubt. During the first, or "fact finding" stage, the jury determines "what happened". The evidence must be examined in relation to the other evidence but, having been so examined, it must individually meet the test of proof beyond a reasonable doubt. Only evidence that does so is considered at the next stage. 31.The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown's case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown's case as a whole there may not have been very much left of it. We cannot know for certain, but this scenario is a very likely one and the charge therefore constituted a serious misdirection. - Cannot look at the evidence in a piece meal fashion; 33. The authorities reviewed above are clear that the jury is not to examine the evidence piecemeal by reference to the criminal standard. Otherwise, there is virtually no guidance in previous cases as to what legal rules, if any, apply to the process of weighing the evidence. Attempts to formulate such rules have been frowned upon. 35. The Crown case in this instance was built up of a number of separate ingredients, which it was contended acquired a meaning in the context of the indictment, only when examined with proper regard to the interrelation of the constituent elements. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 2 Relevance: Probative Value Versus Prejudicial Effect Burden of Proof - Sometimes, it goes against the accused to retain the right to silence after the Crown has presented its evidence; works against them; - When would an accused bring evidence in response to the Crown’s evidence; Alibi; defense one must disclose, as it provides identification, and police will investigate the alibi; lose credibility without disclosing alibi Defenses such as not criminally responsible for reasons of insanity, on a balance of probabilities; this is a heavier burden; after a defense has met the air of reality, judge presents the defense and explains the criteria to the jury Charter violation puts burden of proof on accused to prove it; throwing out evidence based on a Charter violation occurs pre-trial, thus it is not done in front of a jury; “voir-dire” - For a defense to have an “air of reality”; the defense must be grounded in the evidence; Procedure Bail - Arrest of the accused, can be given either a promise to appear (smaller crimes), or is detained (serious crimes). This is followed by a bail hearing. Three grounds under which bail may be denied are outlined under section 515(10) of the Criminal Code: i. Where detention is necessary to ensure attendance in court, Address must be given; ii. Where detention is necessary for public safety, considering any substantial likelihood of reoffending upon release or interference with the administration of justice, and iii. Where detention is necessary to maintain confidence in the administration of justice, considering: the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy prison term; what would an informed reasonable person think - Accused must prove they should be released; that detention is not necessary; - The Crown will bring a police investigator to testify as to the events; they will also present criminal record; If the person has breached a condition/probation; this goes to the flight risk of the accused; Preliminary Inquiry - Focuses on the evidence; onus is on the Crown to show that there is prima facie evidence relating to actus reus and mens rea; Is there enough to justify an eventual trial? This is a low threshold; Cannot make rulings on the trial, or assess credibility; cannot judge the evidence; If there is a witness, or presence of evidence; at a first glance, evidence is present therefore a trial can be justified; - Choosing to have a preliminary trial will allow preparation regarding the evidence; 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v Stinchcombe (1991) Facts William Stinchcombe, a lawyer, was charged with theft and fraud. One of the Crown's witnesses, a former secretary of Stinchcombe's, had given evidence at the preliminary inquiry that supported the defence's position. Later a statement was taken from her by an RCMP officer, however, at trial the defence was denied access to the contents of the statement. When the Crown decided not to use the statement, the defence made a request for it. The judge refused to provide it and the accused was eventually convicted. Duty of disclosure? Yes. Justice Sopinka, writing for a unanimous Court, held that the judge was wrong in refusing the application by the defence, as the Crown was under a duty to disclose all evidence. Crown has a duty to disclose but crown only has a duty to disclose critical evidence that they believe will assist the defence. If they believe it will not help the case the crown are not obligated to disclose as CJ Mclachlin stated in R v Kennedy. "The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." The duty, wrote Sopinka, is derived from the right of an accused to make full answer and defence which has been entrenched under section 7 of the Charter. This duty, however, is still subject to rules of privilege. The Crown has a legal duty to disclose all relevant information to the defence - All evidence must be disclosed, regardless of whether it is beneficial or hurtful to the Crown’s case; Duty to provide the defence with all evidence that could possibly be relevant to the case, regardless of whether the Crown plans to call that evidence at trial or not, or whether it helps or hurts the Crown's case. This case put to rest the longstanding issue of whether the Crown could purposely deny the defence evidence that the Crown found would be harmful to their case Issue Decision Reasoning Ratio Notes Canada R v W(D) (1991) Facts DW, a 42-year-old man, was charged with sexually assaulting a 16-year-old girl, TW, on two occasions while driving her to her boyfriend's house. TW was staying at DW's house at the time. Besides her claim of the event, there was little circumstantial evidence. Her panties had semen stains from a Type A secretor, which included DW, but also 32% of the population. The secretor type of the boyfriend was never known. At trial before a judge and jury the defence argued that she was not credible. She was unemployed, illiterate, and a dropout, and had been kicked out of several houses including Dw's house. The testimony of DW was poor, but it is uncertain whether it was due to lack of intelligence or deception. At the end of the trial the judge issued its charge to the jury without mention of any issue of credibility. Less than ten minutes later the Crown made a request for a recharge to bring this issue up. Counsel for the Crown requested the recharge in order for the judge to explain what evidence may assist the jury in making a finding on the issue of credibility. During the recharge, the judge charged to the jury that: If in fact you believe the accused then clearly nothing took place and in fact the Crown will have failed to prove beyond a reasonable doubt that he is guilty as charged. On the other hand if you in fact believe the complainant totally, then he is guilty as charged. On these instructions, the jury returned a guilty verdict. The issue of the appeal was whether "the erroneous recharge, viewed in the context of the charge as a whole and the short time that elapsed between the main charge and the recharge, could be said to have left the jury with any doubt that if they had a reasonable doubt they must acquit It was an erroneous charge, but the error was not sufficient to bring about an acquittal - For a defense to bring an acquittal, it does not have to be believable as long as it raises reasonable doubt; if the jury is uncertain, the accused is entitled to an acquittal; First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. (Note: this is a more contentious point) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Notion of reasonable doubt. Issue Decision Reasoning Ratio 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Relevance, Probative Value and Prejudicial Effect - For a trier of fact to receive evidence, the judge must be satisfied that the evidence is: 1. Relevant 2. Material 3. Not barred by rules of admissibly, and 4. Not subject to discretionary exclusion (prejudicial vs PV) - Does prejudice overweigh probative value? - The law is primarily inclusionary and will tend to admit all evidence that is logically probative of some fact in issue, subject to the rules of exclusion and exception. Where it does not fall into an exclusion or exception issues with the evidence only goes to weight - Totality of the evidence is evaluated; not by a piece-meal fashion; Relevance - Relevance is assessed in the context of the entire case and the positions of counsel; theory of the case - It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact directly or indirectly makes the existence or non-existence of a material fact more probable than it would be otherwise - All evidence that is relevance to an issue is admissible, while all that is irrelevant is excluded; Does the evidence make a fact in issue more or less likely to be true As a matter of logic and experience - Logical relevance; the connection between two facts - Legal relevance; cost/benefit analysis of admission of evidence; probative value outweighing prejudicial effect Cost/benefit analysis; even if it is relevant, material, or otherwise admissible, can argue prejudicial effect overweighs probative value Materiality - Contribues to proving a fact that is of consequence to the trial Elements of the offence; Defense Voir-dire Charter motion Rules of Admissibility - Where evidence is relevant and material the evidence should be admitted UNLESS there is a legal reason for exclusion - Exclusionary rules; Hearsay Bad Character Similar facts Opinion; this is admitted when it is an expert opinion is given though; interpretation of facts through their expertise Illegally obtained 24(2) Discretionary Exclusion - Prejudicial vs Probative Value; probative value of the evidence is exceeded by its prejudicial effect - Onus is on the accused; 1. The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses 2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue or because of the risk that the jury may use the evidence improperly to prove a fact in issue. 3. The judge must balance probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purses, taking into account the effectiveness of any limiting instructions Probative Value 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi - The weight put on the evidence - Considering the frailties of the evidence, the inferences that may be reasonably drawn from it and the availability of other evidence to prove the same fact; reliability Prejudicial Effect - Effect on the fairness of the trial - Prejudice; moral and/or logical and/or time consuming - Prejudice is not simply evidence that is harmful to the defense case; Rather it is evidence that will create unfairness by misuse, over consumption of time, or distraction/confusion of issues; It will trigger a prejudicial response in the jury; Prejudicial effect is improper use of evidence with detrimental effect on trial process; arouse jury’s sympathy, or hostility; creation of side issue that will distract from main issues of the case; - Where evidence is relevant to one count but irrelevant and possibly prejudicial to another count, the court may still admit the evidence but provide a limiting instruction to the jury on the limited use of the evidence; - Where the evidence is called by the defence the balance between probative value and prejudicial effect is weighed further in the side of admission. A judge should only exclude evidence where the prejudicial effect “substantially outweighs” the probative value (Seaboyer 1991) - For example; how would the Crown argue relevance concerning bringing up a past record of armed robberies in a current armed robbery trial? Identification re; modus operandi; core issue at trial If identify is not an issue; how does the Crown argue relevance? If this evidence is admitted, what position does it put the defendant in? The evidence is misleading, creates tunnel vision regarding the bad character of the accused; it is unfair and creates an undue advantage; - If it is relevant, it is admissible. It is admissible, unless there is an exclusionary rule. An example is bringing character evidence, which can only be brought by the Crown as a rebuttal to character being introduced by the defendant. Canada R v Seaboyer (1991) Facts S.276 provided that in sexual assault trials, evidence concerning the sexual activity of the complainant with any person other than the accused could only be admitted if it: (1) Rebutted evidence of the complainant’s sexual activity or absence thereof adduced by the prosecution; (2) tended to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; and (3) Was evidence of sexual activity that took place on the same occasion as the sexual activity in the charge and relates to the consent that the accused alleges he believed was given by the complainant. Does s.276 violate Charter right under section 7 and 11(d), providing the right to full answer and defense? Yes - The goals of the legislation, the avoidance of unprobative and misleading evidence, the encouraging of reporting and the protection of the security and privacy of the witnesses, conform to our fundamental conceptions of justice The concern with the legislation is not as to its purpose, which is laudable, but with its effect Section 277 excludes evidence of sexual reputation for the purpose of challenging or supporting the credibility of the plaintiff There is no logical or practical link between a woman's sexual reputation and whether she is a truthful witness It follows that the evidence excluded by s. 277 can serve no legitimate purpose in the trial - Section 276, unlike s. 277, does not condition exclusion on use of the evidence for an illegitimate purpose Rather, it constitutes a blanket exclusion, subject to three exceptions -- rebuttal evidence, evidence going to identity, and evidence relating to consent to sexual activity on the same occasion as the trial incident The question is whether this may exclude evidence which is relevant to the defence and the probative value of which is not substantially outweighed by the potential prejudice to the trial process It in fact could - Consider the defence of honest belief The basis of the accused's honest belief in the complainant's consent may be sexual acts performed by the complainant at some other time or place, tet section 276 would preclude the accused leading such evidence. Issue Decision Reasoning 2021/09/20 Evidence Ratio Notes Nadya Goorachurn Walid Hijazi - I conclude that the operation of s. 276 of the Criminal Code permits the infringement of the rights enshrined in ss. 7 and 11(d) of the Charter - In achieving its purpose -- the abolition of the outmoded, sexist-based use of sexual conduct evidence -- it overshoots the mark and renders inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial L' Heureux-Dubé J (dissenting) Sexual assault is not like any other crime It is for the most part unreported and the prosecution and conviction rates are among the lowest for all violent crimes - Evidence of sexual history of the complainant is almost invariably irrelevant and, in any event, is nothing more than a prohibited propensity argument, besides being highly prejudicial to the integrity and fairness of the trial process - It is my view that, assuming that both the trier of fact and the trier of law are operating in an intellectual environment that is free of rape myth and stereotype about women, any evidence excluded by this subsection would not satisfy the "air of reality" that must accompany this defence nor would it provide reasonable grounds for the jury to consider in assessing whether the belief was honestly held. Highlights importance of relevant evidence, and balancing of prejudicial effects and probative value. - Because the Crown is so much stronger in terms of power versus the accused, there is a tendency of flexibility towards defense evidence to allow the accused to defend himself; - In Seaboyer, it is possible that even if evidence is relevant, defense evidence might be excluded if the prejudicial effect outweighs probative value Moral and Logical Prejudice - Moral; danger of a verdict based on outrage/shock/sympathy (emotion) E.g. bad character/past acts Pictures of a gruesome crime scene will sometimes be excluded, because we do not want to create hostility - Logical; danger of making improper inferences E.g. race, stigma, stereotypes; Time Consumption - Evidence that consumes too much time and resources - Evidence that consumes too much time and resources. - Waste of time - Minor evidence - Does not relate to the main issues of the trial Trial Fairness - No surprise evidence in criminal proceedings (prosecution); Charter Canada R v Watson (1996) Facts The trial judge ruled that the defence could not elicit evidence from Clive Mair to the effect that the deceased always carried a handgun. He also held that the proposed evidence of Delroy Sibbles to the effect that the deceased trafficked in marijuana at his place of business was not admissible. Is the evidence of Mr. Mair relevant to the defence’s contention that the appellant was not a party to a plan with H and C to kill or do harm to the deceased Yes - Relevance: No minimum probative value is required for evidence to be deemed relevant. (Morris). Relevance depend on the context of the entire case. - Relevance is explained as a determination of whether, as a matter of human experience and logic, the existence of Fact A makes the existence or non-existence of Fact B more probable than without Fact A. As long as a fact is itself a material fact in issue or is relevant to a material fact in issue in the litigation, then it is prima facie admissible Issue Decision Reasoning 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Ratio Notes The fact that the deceased always carried a gun does make it more likely that he was in possession of a gun when shot (first contention by defence), since evidence of habit is relevant to proving conduct on certain occasions. The fact that a person is in the habit of doing a certain thing in a given situation suggests that on a specific occasion in which thoses circumstances arose the person acted in accordance with established practice. Habit involves a repeated and specific response to a particular situation. - In this case the fact that the deceased carried a gun makes it more probable that he had one, the day of the shooting BUT this does not suggest that he was likely to have fired the gun at the time of the incident Nonetheless, in looking at the evidence as a whole if the deceased was armed, this could potentially lead a jury to infer that the shooting was the result of an spontaneous confrontation and not a planned murder This circumstantial evidence was thus relevant to a material fact in the issue Admissibility - All relevant evidence is admissible, subject to discretion to exclude matters that may unduly prejudice, mislead or confused the trier of fact, take up too much time, or should otherwise be excluded on grounds of law or policy. - Although evidence of the deceased’s bad character (him always carrying a gun) does hold some potential of prejudice against him, in this case, the balancing process favours admission. The proposed evidence is of significant probative value for the defence on whether the deceased was armed at the relevant time and the deceased’s criminal lifestyle would have come out in other evidence anyway. Relevance must be assessed in the context of the entire case and the respective positions taken by the Crown and the defence. “Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. Watson Notes - H, C go to the back, hear gunshots and victim dies; W is in the front, does not have a gun on him, drove everyone there - W is accused of murder; aiding and abetting to murder; party to the offense via s.21 Cc - Is handwashing of deceased hands showing a substance, consistent with shooting a gun, on his hands relevant to the defense? What inference can be drawn? The victim was holding the gun, that was shot; - Witness described that he thought he saw a gun; weak evidence, should have been excluded on opinion; Important to the Crown to give context for narration purposes; - Crown also called the pathologist who performed the autopsy; shot six times; - Ballistic expert also testified; believed he was shot five times; Recovered two projectiles from sweater that did not come from the same gun; inference that there was a second gun, therefore possibly a second shooter; - Theory of the case; Defense; how does the defense bring about their theory of the case? Through cross-examination; cannot ask suggestive/leading/open questions, because the lawyer will lose control of the witness; only open questions in chief examination 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 3 Character Evidence Introduction Packer Model & Relevance - Remember the Packer model; on the one side, there is the perspective of law and order. On the other side, there is due process. With every case examined, ask yourself where on the spectrum does the decision lie? - If evidence is relevant, it is admissible. Unless: 1. There is an exclusionary rule 2. It is prejudicial; prejudicial effect outweighs probative value; important common law principle of criminal evidence. - What is prejudicial evidence? Something that detracts jury from relevant issues Canada R v Seaboyer (1991) Facts William Stinchcombe, a lawyer, was charged with theft and fraud. One of the Crown's witnesses, a former secretary of Stinchcombe's, had given evidence at the preliminary inquiry that supported the defence's position. Later a statement was taken from her by an RCMP officer, however, at trial the defence was denied access to the contents of the statement. When the Crown decided not to use the statement, the defence made a request for it. The judge refused to provide it and the accused was eventually convicted. Duty of disclosure? Yes. Justice Sopinka, writing for a unanimous Court, held that the judge was wrong in refusing the application by the defence, as the Crown was under a duty to disclose all evidence. Crown has a duty to disclose but crown only has a duty to disclose critical evidence that they believe will assist the defence. If they believe it will not help the case the crown are not obligated to disclose as CJ Mclachlin stated in R v Kennedy. "The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." The duty, wrote Sopinka, is derived from the right of an accused to make full answer and defence which has been entrenched under section 7 of the Charter. This duty, however, is still subject to rules of privilege. The Crown has a legal duty to disclose all relevant information to the defence - All evidence must be disclosed, regardless of whether it is beneficial or hurtful to the Crown’s case; Duty to provide the defence with all evidence that could possibly be relevant to the case, regardless of whether the Crown plans to call that evidence at trial or not, or whether it helps or hurts the Crown's case. This case put to rest the longstanding issue of whether the Crown could purposely deny the defence evidence that the Crown found would be harmful to their case Issue Decision Reasoning Ratio Notes Seaboyer Notes - Issue: s.276 Cc, it prohibited accused from bringing forth evidence that related to complainant’s past sexual history. - Section 276 imposed rules on the content of what could be asked when cross-examinating a complainant; Sexual history: not viewed as relevant, viewed as prejudicial, etc. Legislative intent was to abolish the “Twin Myth”; “The main purpose of the legislation is to abolish the old common law rules which permitted evidence of the complainant's sexual conduct which was of little probative value and calculated to mislead the jury. The common law permitted questioning on the prior sexual conduct of a complainant without proof of relevance to a specific issue in the trial. Evidence that the complainant had relations with the accused and others was routinely presented (and accepted by judges and juries) as tending to make it more likely that the complainant had consented to the alleged assault and as undermining her credibility generally. These inferences were based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief. These twin myths are now discredited.” 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi - Arguments against the legislation? Bring up past sexual history in questions of identity of perpetrator Bring up past sexual history when defendant has mistaken honest belief because they had previously had consenting sexual relations Character Evidence - Must present relevant evidence, unless there is an exclusionary rule, or because the prejudice outweighs its probative value; - Proof beyond a reasonable doubt; must be evaluated on the totality of evidence; what is its value? - Relevance: It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact directly or indirectly makes the existence or non-existence of a material fact more probable than it would be otherwise. - Probative value: the inferences that may be reasonably drawn from it and the availability of other evidence to prove the same fact, weight put on the evidence. - Presumption of innocence; State v Accused; Right to silence; but an accused will want to defend themselves at times. Onus is on the Crown, and if the accused does not raise anything, Lamer J says that it might indeed point to of guilt beyond a reasonable doubt. - Can an accused raise his character? Yes; he can state “I’m a good person”; However, Crown can then bring up bad character, within limits. - Crown cannot raise bad character. But is it not relevant for the jury to know? Prejudice overwhelms the probative value Immaterial to actus reus and mens rea Some relevance, depending on context of crimes (e.g. identity, organized crime); - What is the object, what is the fact that needs to be proved? Based on the answer, either propensity purposes, context, or similar facts, character evidence can be admissible. Crown cannot bring up bad character for propensity purposes. They can bring up context, which is not considered propensity. - Crown cannot raise bad character evidence, unless: 1. Accused introduces good character evidence, to which the Crown can rebut. 2. Similar facts - Why would an accused want to introduce good character evidence? Good character evidence attempting to prove he is not the type of person to have committed this crime; Enhance credibility; Recap - Propensity or disposition to act a certain way; Propensity is an intense natural inclination or preference Disposition is a prevailing tendency, mood or inclination; - “Kind of person”; more likely to have committed the offense Likelihood of behaving in a particular way - Crime; behaviour that is consistent with that person’s good or bad character or disposition - Character evidence does not mean evidence of habit (e.g. a settled tendency or usual manner of behaviour) - Probative value of character evidence is weak, unless there are similar facts (pattern). But generally, there are policy concerns. Unfair Moral prejudice; risk of judging an individual on the basis of his past/reputation/general dispositions or propensity, rather than on the evidence of the actual crime Reasoning prejudice; trier of fact might overvalue such prejudicial evidence - Character evidence may be admissible in three scenarios: 2021/09/20 Evidence 1. 2. 3. Nadya Goorachurn Walid Hijazi Not offered for propensity purposes; Adduced to established context, background or narrative of the case/unfolding of events Relevant to credibility if the accused testifies; rebutting accused evidence, Corbett Accused character put in issue; Accused himself has led evidence to suggest that he was unlikely to have committed the offense by virtue of his good character traits and/or good reputation in the community and/or specific instances of his good conduct The prosecution is allowed to reply The prosecution can bring forth evidence of bad character only to refute this suggestion of good character It cannot be used to infer guilt of the accused; Similar facts Character Evidence - Must present relevant evidence, unless there is an exclusionary rule, or because the prejudice outweighs its probative value; - Proof beyond a reasonable doubt; must be evaluated on the totality of evidence; what is its value? - Relevance: It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact directly or indirectly makes the existence or non-existence of a material fact more probable than it would be otherwise. - Probative value: the inferences that may be reasonably drawn from it and the availability of other evidence to prove the same fact, weight put on the evidence. - Presumption of innocence; State v Accused; Right to silence; but an accused will want to defend themselves at times. Onus is on the Crown, and if the accused does not raise anything, Lamer J says that it might indeed point to of guilt beyond a reasonable doubt. - Can an accused raise his character? Yes; he can state “I’m a good person”; However, Crown can then bring up bad character, within limits. - Crown cannot raise bad character. But is it not relevant for the jury to know? Prejudice overwhelms the probative value Immaterial to actus reus and mens rea Some relevance, depending on context of crimes (e.g. identity, organized crime); - What is the object, what is the fact that needs to be proved? Based on the answer, either propensity purposes, context, or similar facts, character evidence can be admissible. Crown cannot bring up bad character for propensity purposes. They can bring up context, which is not considered propensity. - Crown cannot raise bad character evidence, unless: 3. Accused introduces good character evidence, to which the Crown can rebut. 4. Similar facts - Why would an accused want to introduce good character evidence? Good character evidence attempting to prove he is not the type of person to have committed this crime; Enhance credibility; 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Bad Character Evidence - Once Crown is allowed to rebut, what constitutes bad character evidence? Prior past acts (criminal record, history of lying, etc.) Prior past acts undermine the credibility of the accused. - For example, if the suspect made a statement to the police that he is a good person; does this give the Crown the right to bring forth bad character evidence? No, this is pre-trial, before the defense is presented. - Denying the defense, challenging the charge, is not raising good character evidence; McNamara - For example, in a sex charge, client testifies and says “I would never cheat on my wife. I have the most wonderful wife.” Is this good character evidence, that would give an opening to the Crown to rebut? Yes, it has been considered offering good character evidence. - For example, if an accused states they have never been arrested and have no criminal record, is this good character evidence, that would give an opening to the Crown to rebut? Yes Recap - Bad Character Evidence invites the trier of fact to make an inference that the person is of a certain "type" Inference that the person acted consistently with that type of character - General bad character or propensity is presumptively inadmissible Avoid moral prejudice (kind of person) and reasoning prejudice (similar conduct creates confusion and distracts the trier of fact) Rather than focusing on the charge (actus reus + mens rea) Exceptions 1. Narrative/inextricably linked to the unfolding of the events/context/background (warning on disposition/propensity) 2. The Accused puts his good character in issue = bad character rebuttal evidence (via cross-examination and/or extrinsic evidence) 3. Similar facts Rebuttal Evidence - An accused who claims not to be the "type of guy" who would commit the offence puts his character at issue, opens the door to Crown rebuttal - Before bad character can be admitted the judge must be satisfied that: The evidence was relevant to an issue at trial Probative value outweighs the prejudicial effect - Prosecution may only adduce bad character evidence of (a) general reputation of the accused in the community (b) prior criminal acts, or (c) similar past bad acts. See s. 666 Criminal Code Book p. 478 in fine + mid 479 + comment at mid 480; Accused testifies about good behavior for his defense - Use by Trier of Facts; Where prior bad acts are admitted, they may only be used in assessing the accused's credibility absent a similar fact application See book top of p. 480 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v McNamara (1981) Facts 13 individuals and corporations appealed from their convictions for offences of conspiracy to defraud. The Crown crossexamined Jean Simard with respect to a transaction in which Simard had pleaded guilty to a charge of income tax evasion. Simard stated clearly that Mr. Rindress’ mandate was « to run the company like a company should be run, legally », and repeated this statement. He also made several lengthy statements in response to questions about whether he had influence over a particular minister regarding his relationship with ministers, his proper behaviour when at board of director meetings at another, how he wouldn’t exploit the fact that a fellow director was chairman at a bank, and argued that his political contributions were proper. - Defence claims that the cross-examination of the appellant by the Crown violates the rule that the Crown may not initially introduce evidence which shows the accused is a person of bad character. Did the appellant cross over the line of permissible repudiation of the charge when describing his involvement with numerous companies thereby putting character in issue? Yes - An accused person does not put his character at issue by denying his guilt and repudiating the allegations made against him, or explaining matters essential to his defence. An accused is not entitled, however to assert that he would not have done those things alleged against him because he’s a person of good character without opening the door to the Crown to cross-examine. The appellant was entitled to repudiate Rindress’ evidence that the appellant had claimed to have influence with Jean Marchand. He was also entitled to explain his political contributions were proper and not mad with improper motives. - However, the appellant went too far. Saying that he would only allow a Simard company to be run legally, he was intending to project the image of a law-abiding citizen, a man of integrity and an ethical businessman. His comments about the propriety of his behaviour and contributions were made in an effort to demonstrate that he was an upright man, whose character was such that it was unlikely that he would commit the offence charged. Therefore, the accused put his character in issue and the Crown was entitled to cross-examine. An accused testifying as to his own good character puts his character in issue, and therefore the Crown may cross-examine him and adduce evidence to dispute this. An accused puts his character in issue by asserting expressly or impliedly that he would not have done the things alleged against him because he is a person of good character. Issue Decision Reasoning Ratio McNamara Notes - Facts; Appellant submits that trial judge erred in allowing question asked to him about previous transaction Issue of questioning on specific, prior dealing (not the object of the trial) - Issue; Did the accused introduce good character evidence? - McNamara; “Mandate is to run the company as it should be run, legally” By attempting to project himself as a law-abiding citizen (important family, hires personnel that is honest, in company with minister), he is bringing forth good character evidence: he is not someone who would have participated in fraud in question. - Specific acts; Accused is allowed to bring up specific acts of good character. What scope of bad character evidence should be allowed for the Crown? In McNamara, Crown can bring up prior specific bad acts in response. Canada R v Profit (1992) Facts A 57-year old school principal as convicted at trial for indecent assault of Davis during the months of October 1977 to Feb 1978, and in March 1978. He was also acquitted on a third count relating to Davis, and 5 counts relating to other students. At trial, several character witnesses testified on behalf of the appellant, relating evidence with regard to the appellant’s honesty, integrity, and morality. They had never seen him conduct himself in a sexually inappropriate manner. 2021/09/20 Evidence Issue Decision Reasoning Ratio Nadya Goorachurn Walid Hijazi In his reasons, the trial judge related his holdings of guilt but did not specifically make reference to the character evidence. After he made his findings, he did say that the evidence of the character witnesses was “just one of the factors that I had to consider in determining the credibility of any of the witnesses.” Did the trial fail to consider the dual significance of the evidence of good character as it related both to the appellant’s credibility and the likelihood that he may have committed the offences alleged Yes, new trial ordered. - Character evidence is admissible for 2 purposes: In support of the credibility of the accused As a basis for inferring that the accused was unlikely to have committed the offences - While it is admitted that evidence of general reputation in the community for honesty and integrity is of lesser value in cases involving sexual misconduct w/ children, where the evidence goes to the establishment of the defendant’s reputation for morality, it can be treated w/ equal value by the TF, as evidence of the improbability that the accused committed the offence. TJ failed to treat it in this latter manner. The trial judge did not consider the evidence with regard to both credibility of the appellant and to the likelihood that he may have committed the offence (only the former). - There are indications that the TJ failed to direct himself to properly consider the character evidence submitted by the accused. The result might not have been the same had proper instruction and hence consideration been given to such evidence. New trial ordered. - Focus is fullness of TJ’s reasons. Griffiths J (Dissenting): The trial judge gave valid reasons for rejecting the accused’s testimony. This court has held that private nature of sexual misconduct, particularly by persons in positions of trust or control, renders evidence regarding general reputation of little probative value. Even if the TJ failed to consider the PV, albeit very limited in nature, of the character evidence submitted by the accused, it would not likely have changed the outcome of the case. Good character evidence sometimes has no worth at all; nature of crime being accused relates to the position of confidence held by the accused. On appeal, the Supreme Court held up Griffiths’ judgement: “…a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality.” (…) « As a matter of weight, the TJ is entitled to find that the propensity value of character evidence as to morality is diminished in such cases » Bad Character: Criminal Code and Evidence Act - How does the Crown rebut the accused’s good character evidence? - Criminal Code, s.666: Evidence of character; 666. Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed. - Evidence Act s.12(1) 12(1) A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction. - If A puts character in issue, s.666 of the CC applies and it’s broader than s.12 of the CEA. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Salvail Notes - Evidentiary issues; the accused put his character into play by stating he is not the type of person who would commit such a crime; - Crown asks to counter, by admitting evidence to rebut this statement of good character; To introduce three accounts from three men regarding their experiences with him and sexual harassment Trier of fact must evaluate credibility; - Issue: whether the accused is putting his character in play, and if so, is the Crown’s evidence admissible? - What objection would the defense bring? Propensity and bad character evidence; Danger of moral prejudice and reasoning prejudice; - Actus reus of sexual assault: act of a sexual nature without consent; - Mens rea of sexual assault is not needed for sexual assault; - Accused denies these allegations; does not remember this person, and would never have done anything like this. Also, he states he often does or says things in a humoristic way - Could the prosecution bring the three witnesses regarding inappropriate sexual harassment? Client has already testified, prosecution had not been aware of these three witnesses at the beginning of trial; Attempted to introduce evidence, after defense had responded. Three, specific bad acts; used as rebuttal evidence - Defense should argue it is inadmissible; timing is unfair; - Court finds that accused has put his character in issue; to enhance his credibility, by presenting his good reputation; - The court indicates that once character is at issue, rebuttal that has been accepted in the past include: 1. Counter interrogation of the accused on specific reprehensible behaviour 2. Introduction of proof of general reputation of the accused 3. Similar fact evidence 4. Expert witnesses on the propensity or disposition of committing certain acts 5. Exceptionally, extrinsic proof of specific bad acts - The crown attempted to bring in extrinsic proof of specific bad acts; Bringing forth this evidence to rebut his declarations; credibility issue, not for propensity purposes; Contact info: mewalidhijazi@gmail.com 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 4 Similar Fact Evidence Rationale - Similar fact evidence is a form of character evidence that relates to "extrinsic misconduct by an accused" and is presumed inadmissible - This form of evidence is admissible to show "that persons tend to act in a manner consistent with their character. This form of evidence is admissible to show "that persons tend to act in a manner consistent with their character". Bad character evidence, but used precisely to make the point that the accused is the type of person to have committed the crime; aimed at guilt, not simply credibility. Substantive; to attempt to prove this act through similar bad acts - Does not depend on the accused having first put his character in issue - Allows the Crown to adduce, in chief, discreditable conduct Propensity evidence to establish the accused’s guilt - Generally, the defense lawyer must understand the theory of the case of the prosecution. After, must introduce reasonable doubt, and often this requires the defense lawyer to introduce their own theory of the case; Application SFE - Used in cases where identification is at issue; improbability of coincidences. Identification issue requires a very high threshold for similar facts to be admitted. - Generally, issues of identification are no longer current. Most often, it will be to demonstrate that the accused acted in a similar way in this specific instance, based on past instances; - The evidence should be treated cautiously as it risks violating the presumption of innocence by convicting based on prejudices, including their lifestyle, rather than proof of fact - A general presumption in criminal law that a person tried in criminal court must only answer to evidence “limited to matters relating to the transaction which forms the subject of the indictment” - Propensity evidence should also be avoided as it tends to direct the investigation on the "usual suspects" rather than on the offence itself and is counter to the assumption that offenders can rehabilitate When Should SFE be Admitted? - Evidence will be similar fact evidence where it: 1. Relates to prior conduct of the accused 2. May have a prejudicial effect 3. Is being admitted for a purpose that establishes guilt - SFE captures all types of prior discreditable conduct and is not limited to criminal acts. It should only be exceptionally admitted. SFE is presumptively inadmissible. The onus is on prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception - Modern view on SFE is the principled approach, where the evidence is admissible only where the probative value out weighs the prejudicial effect. (R v Handy). - To admit SFE the judge should be satisfied that: 1. The conduct is that of the accused; 2. The evidence is relevant; 3. The evidence is material; 4. The conduct is discreditable to the accused; 5. The evidence is probative, to the extent that its probative value outweighs its prejudicial effect - Purpose of the evidence is to prove: Intent, a system, a plan, show malice, rebut a defense of accident or mistake, prove identity See Book p. 488 - 527 - Procedurally, prosecution must write a motion to ask permission to introduce such evidence. Afterwards, a voir-dire is conducted to determine whether it is admissible. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Australia Makin v Attorney-General for New South Wales (1894) Facts A couple was convicted of the murders of Horace Amber Murray and an unidentified male infant. Several other bodies of infants had been discovered on premises where the accused had lived. Apparently when the infant with whose murder the accused were charged was received, the mother stated she had a child for them to adopt for a £3 premium. Was the evidence relating to the finding of other bodies and of other similar acts (same proposition to keep children), i.e. previous acts, admissible? Yes, concordantly with established categories. - It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. However, if the evidence fall within one of the recognised exception (if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused). It may often be very difficult to draw the line and decide whether a particular piece of evidence is on one side or the other. - Under these circumstances (always asking a small amount of money and nothing more in exchange for numerous kids) their Lordships cannot see that it was irrelevant to the issue to be tried by the jury that several other infants had been received from their mothers on like representations, and upon payment of a sum inadequate for the support of the child for more than a very limited period, or that the bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners. Evidence of similar facts can only be admitted if it is both relevant and its probative value outweighed any prejudicial effect. Issue Decision Reasoning Ratio Makin Notes - A husband and wife, John and Sarah Makin, were baby farmers and a one month old child died within 2 days after being given to them. They were charged with murdering the child and burying it in their backyard. During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence. Presented as it rebuts defense of accident in death of current baby, demonstrates systematic behaviour - How would the defense challenge the admission of these past acts; Argument of relevance; maybe it was an accident this time Timeline issue; unsure how long these babies had been there - At the close of arguments on 22 July 1893 the Privy Council announced that its advice was that the appeal should be dismissed, and its reasons were published on 12 December 1893. - Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances. UK R v Smith (1915) Facts The accused had gone through some form of marriage with three women. Each woman was found dead in her bath, and Smith stood to benefit financially from each woman’s death. He was charged with Munday’s death. Can the evidence of two previous drowned wives be adduced? Yes - If, as a matter of law, there was prima facie evidence that the appellant committed the act charged, evidence of similar acts became admissible - The Munday case was reinforced by the evidence admitted with reference to the other two cases for the purpose of shewing the design of the appellant. - The judge was very careful to point out to the jury the use they could properly make of the evidence. They were not deciding whether the murders of the previous two wives had been committed, but trying the accused for the murder of Munday. Issue Decision Reasoning 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Ratio Notes For the reasons already given in dealing with the first point, it is apparent that to cut short the evidence there would have been no assistance to the case. In our opinion it was open to the prosecution to give, and the judge was right in admitting, evidence of the facts surrounding the deaths of the two women. Example of a pattern, system, design. Evidence of the death of two subsequent wives in similar circumstances was held to be admissible as it was improbable that the three different women would have accidentally drowned in the bath given they died not long after entering into marriage agreements; UK R v Straffen (1952) Facts On Apr. 29, 1952, the appellant escaped from Broadmoor (a hospital for the criminally insane) for four hours. The next day the dead body of Linda Bowyer was found in the village of Little Farley and her bicycle was found some two hundred yards away from the body. She had died from manual strangulation, and the medical evidence showed that her death had taken place during the period the appellant was at large. Should the TJ have admitted the evidence regarding the killing of Goddard and Batstone Yes - The general rule is that evidence should be excluded which tends to show that the accused has been guilty of criminal acts other than those covered by the indictment, and shall not be admitted to prove the accused is a person of criminal disposition, or even that he has a propensity to commit the type of crime he is charged with. Exceptions: Recently in Harris (1952), The House of Lords said that prior acts may “negative the inference of accident or establish his mens rea by showing ‘system’” or “may sometimes assist to prove his identity…evidence which merely tends to deepen suspicion does not go to prove guilt.” The reasons for the exceptions being that it tends to prove, not that he is a man who has criminal propensities, but that he was the man who committed the particular offence charged. - So, does the evidence in this case fall within one of the exceptions? Yes, we may admit the evidence because the similarities of the death (i.e. young girls, killed by manual strangulation with no attempt at sexual interference, no motive for the crime, and bodies left unconcealed) allow us to identify the murderer of Linda Bowyer as being the same person who had murdered the other two girls. The evidence was admitted to identify the murderer of Linda Bowyer as being the same person as the person who had murdered the other two little girls in precisely the same way. Abnormal propensity (such as the pattern in this case – i.e. to strangle little girls) is a means of identification. - So how far does admissibility of this kind of evidence go? Does it apply in the case of a burglar, thief and so on? Lord Sumner in Thompson’s case thought that such persons were merely examples of those who fell with the genus of dishonest persons. However, Slade J believes, however, that if the question of identity arose in a housebreaking case and it were possible to show some peculiarity in relation to earlier housebreakings so as to stamp the accused man with earlier housebreakings (and that there was evidence linking him to those previous housebreakings), then evidence would be admissible, NOT to prove his propensity for housebreaking, but to prove he was the housebreaker - In cases like Smith and Straffen, it was often held that similar fact evdce was not admissible unless relevant to a limited set of exceptions. - Examples of exceptions: to prove intent, to prove a system or plan, to show malice, to rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association, etc. Issue Decision Reasoning Ratio Straffen Notes - While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions made at Broadmoor and of the earlier allegations. - Issue at trial was identification; - Held: the statement was admissible. The defendant had denied the murder but in doing so had admitted the earlier murders. The general rules is not to admit such evidence. The similar fact evidence could be described as evidence of pure propensity to commit crimes similar to that with which he was charged. - Link between accused and two previous crimes, with confession. This confession was key to demonstrate the link; identity was confessed in two prior acts. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v Sweitzer (1982) Facts There was a series of 15 sexual attacks in Calgary over 18 months. In count 1, the evidence established that the complainant was taken to the bathroom, blindfolded, and forced intercourse, etc. The complainant’s evidence could have justified a conviction of rape, save for the fact that she was unable to identify him. In 11 of the other counts, there is no evidence of identification (but for the alleged similarity in the conduct of the assailant). In 3 of the other counts and with the evidence of a detective there is direct evidence of identity (i.e direct evidence of the identification of the appellant as the assailant), including that in count 15 the accused was apprehended at the scene. Insert stuff about detective’s evidence about seeing accused looking in a window. Accused was trying a motion for severance – i.e. trying to get 15 trials. Can the crown rely on the evidence of the 4 counts where identity was ascertained and the 11 counts where there was no evidence of identification to identify the attacker? No, evidence of the 11 other episodes are be highly prejudicial. New trial. - In the past, judges have created a list of categories where SFE could be admitted, e.g. to prove intent, to prove a system or plan, to show malice, to rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association, etc. However these categories are just illustrations of a general rule. - The general principle should be applied in all cases where SFE is at issue Admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission. (adopting Boardman) However, there must be some evidentiary link between the allegedly similar facts and the accused The trier of fact should be able to make a proper finding that the similar facts were in fact the acts of the accused. - In this case, there is no evidence that which connects the appellant with the 11 episodes, except for the similarity of the act (still nothing that connects the appellant with any of the episodes and not enough similarity in the technique). Otherwise, any nocturnal rape committed in Calgary where some similarity could be shown, could be made evidence against the accused. So, limited where there is some evidentiary link, direct or circumstantial with the accused - In Sweitzer, the court acknowledged the different approach taken in Boardman. - Before similar fact evidence can be introduced against an accused, there must be some evidence establishing a link between the discreditable acts and the accused. Issue Decision Reasoning Ratio Sweitzer Notes Dealing with the eleven episodes I say at once that in my view evidence relating to them was inadmissible and ought not to have been admitted. I put that proposition simply upon the footing that they afford no evidence of identification of the appellant, because, despite the existence of varying degrees of similarity between the acts revealed in the evidence and the facts of the case under trial, there is no evidence which connects the appellant with any of those episodes. They are not shown to be connected with him and cannot therefore be relevant as evidence against him. It was the similarity between the eleven incidents and the four incidents which led the learned chief justice to consider that evidence of the eleven incidents was admissible. Canada R v B(R) (1990) Facts Accused was charged with sexual offences against his natural daughter, a young girl. The issue was whether the offences had occurred at all, not who had committed them. The main Crown evidence was that of the child, and in support of her testimony the Crown sought to introduce evidence that the accused had previously had sexual relations with the daughter of his common law wife, an older girl with whom he enjoyed a father-daughter relationship. The TJ admitted the evidence and convicted the accused. The TJ appears to have applied the correct test, though a comment suggesting the SFE related to the issue of identity was wrong Did the TJ err in holding the evidence admissible? No, court not prepared to interfere with the conclusion of the TJ who was charged with weighing probative value against prejudicial effect. Conviction affirmed. McLachlin: - In recent years, the courts have moved to loosen the formalistic strictures which had come to encumber the rule. The old category approach has given way to a more general test which balances the PV and the PE. Traditionally, mere propensity is inadmissible. Issue Decision Reasoning 2021/09/20 Evidence Ratio Nadya Goorachurn Walid Hijazi - While our courts have affirmed the general exclusionary rule for similar fact evidence of disposition and propensity, the court casts it in terms of Boardman rather than Makin. That is, it is no longer necessary to hang the evidence on the peg of some issue other than disposition. - Therefore, evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury. - The Canadian law has also rejected the category approach in favour of one of general principle, i.e. that admissibility of SFE will depend on PV vs. PE. - Furthermore, a high degree of respect is accorded to the decision of the TJ who does this balancing (PV>PE). - In this case, though the judge erred by calling it an identity issue, on the whole he clearly appreciated that the SFE was relevant to the issue of the complainant’s credibility. It is well established that SFE may be useful in providing corroboration in cases where identity or mens rea is not in issue. « The fact that in each case the accused established a father-daughter relationship with the girl before the sexual violation began might (…)» showed a pattern of similar behavior. » Is this a case where PV>PE ? « While I may have found this case to be a borderline case of admissibility (…), I am not prepared to interfere with the TJ conclusion ». Sopinka [dissent] - Identification of probative value of the evidence must first be identified to determine whether the evidence has relevance beyond mere propensity, and if so, whether PV>PE. « To have probative value the evidence must be susceptible of an inference relevant to the issues in the case other than the inference that the accused committed the offence because he or she has a disposition to the type of conduct charged». - The principle reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Therefore, propensity alone cannot ever be the basis for admissibility. The stronger the evidence of propensity, the more likely it is that the forbidden inference will be drawn and, therefore, the greater the prejudice. To say propensity may have PV in sufficiently high degree to be admissible is a contradiction in terms. It is tantamount to saying that when the danger of the application of the forbidden line of reasoning is the strongest, the evidence can go in. Any relevant evidence having the tendency to show guilt could be said to be relevant to the issue of credibility of the complainant… - Cross on Evidence: “what is not to be admitted is a chain of reasoning” as opposed to “a state of facts.” There is a distinction between evidence of general character that triggers a process of reasoning condemning the accused b/c of his character, and a modus operandi – the latter is evidence that an accused left his/her calling card. - In this case, the TJ did not weigh PV against PE, « it is [then] pure speculation ». Furthermore, the fact that SFE is useful as corroborative evidence of the testimony of children does not make it a basis for admissibility must first decide if it’s admissible. In this case, striking similarity is not evident (only two, passage of time, and material differences). Analysis on probative value, prejudicial effect, and the issue relating to more than propensity. B(R)Notes - Issue at stake was the credibility of the daughter; She has established actus reus and mens rea, but because she is a child credibility was in issue - Admitting similar fact evidence that demonstrated a pattern of behaviour in which the accused established a parental relationship with young girls before engaging in sexual activities with them - In this case, the trial judge did not err in admitting the evidence of M.H.S. He set out the proper test for the reception of similar fact evidence and clearly proceeded on the assumption that the evidence was prima facie inadmissible. The trial judge's concern with the degree of similarity between the two stories was proper. While his comment suggesting that the similar fact evidence related to the identity of the perpetrator, which was not in issue, was in error, his reasons for convicting show that he was not at all concerned with identity, and considered the central issue of the case to be whether the complainant should be believed. The fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence. In the context of the ruling as a whole and all the circumstances, the error was not material and did not undermine the validity of the trial judge's decision. In general, however, a trial judge should, in cases involving highly prejudicial similar fact evidence, clearly indicate the issue to which the evidence is relevant. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v Arp (1998) Facts Ratio Two murders where DNA evidence was found in one case, and matching fibers in the other, were argued as similar fact evidence going to the issue of identity on the other charge. Was there the requisite link between the accused and the prior acts? Yes - The rule allowing for the admissibility of SFE is perhaps best viewed as an exception to an exception to the basic rule that all relevant evidence is admissible. - To be logically relevant, an item of evidence does not have to be firmly established, on any standard (truth or falsity). The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue. - Evidence of propensity or disposition (e.g., evidence of prior bad acts) is relevant to the ultimate issue of guilt, in so far as the fact that a person has acted in a particular way in the past tends to support the inference that he or she has acted that way again. - But if relevant to the crime, even though there is nothing else connecting the accused to that crime, it is of some probative value, be it slight, and it should be excluded as inadmissible not as irrelevant (Morris) - Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration. - Where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count). - Where the similar fact evidence adduced to prove identity suggests that the same person committed the similar acts, then logically this finding makes the evidence linking the accused to each similar act relevant to the issue of identity for the offence being tried. Similarly, in a multi-count indictment, the link between the accused and any one count will be relevant to the issue of identity on the other counts which disclose a striking similarity in the manner in which those offences were committed. - A link between the accused and the alleged similar acts is, however, also a precondition to admissibility. This requirement was set forth in R. v. Sweitzer, [1982] Once evidence relating to identity has been established by judge, can be used as SFE to another charge. Canada R v Handy (2002) Facts H was charged with sexual assault causing bodily harm. The alleged incident involved him meeting the complainant in a bar and proceeding to a motel room for the purpose of consensual sex. During the sex, he allegedly became violent, and allegedly forced her to continue and to have anal sex, without her consent. The TJ admitted “similar fact evidence’ from the accused’s ex-wife, who testified about 7 prior incidents involving violence and sex. The crown argued that the evidence was adduced to show (a) that the accused gets off on violent, painful and non-consensual sex and (b) that the complainant is telling the truth, i.e. that the accused did wilfully proceed knowing that she did not consent. The complainant met the ex-wife, and heard her story of his alleged past abuse, a few days before meeting him in the bar. The TJ ruled that the issue of possible collusion was to be left entirely to the jury. The ON CA overturned and ordered a new trial, Charron holding that the probative value was outweighed by the prejudicial effect, especially since there was a serious issue of collusion + no real pattern + the credibility of the ex-wives was problematic). (1) Was the wife’s testimony SFE? (2) Is possible collusion an issue for the judge? (1) No (2) Yes Binnie J: The General Exclusionary Rule - As with any circumstantial evidence, its usefulness depends entirely on the validity of the inference it is supposed to support. In this case, it is said to support that that the accused gets off on violent, painful and non-consensual sex and (b) that the complainant is telling the truth. - The general rule is that similar fact evidence is presumptively inadmissible. The exclusion of evidence of general propensity has been repeatedly affirmed and is not controversial. The worry is that the jury might put more weight than is logically justified on the ex-wife’s testimony (“reasoning prejudice”) or by convicting on bad personhood (“moral prejudice”) If propensity evidence were routinely admitted, it might encourage the police simply to round up the usual suspects instead of making a proper unblinkered investigation of each particular case. The Narrow Exception of Admissibility Issue Decision Reasoning Issue Decision Reasoning 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi - There will, however, be cases where the probative value outweighs the prejudicial effect, circumstances which defy coincidence or other innocent explanation. But the similarities must be such, that « it would be an affront to common sense to suggest that the similarities were due to coincidence. » « As the differences and variables that distinguish the earlier similar facts from the subject matter of the charge in this type of case are reduced, the cogency of the desired inferences is thought to increase. » What is to be avoided is both moral prejudice and prejudicial reasoning. It is precisely because of the preponderance of probative value that we have the exception to the general rule, which exclude propensity evidence due to its prejudicial effect despite its relevance. The test is PV > PE, with balance of probability test. That’s it. No categories. The similar fact evidence may be admissible if, but only if, it goes beyond showing general propensity (moral prejudice) and is more probative than prejudicial. Propensity Evidence by Any Other Name is Still Propensity Evidence - Once SFE is related to an issue other then “mere propensity” or “general” disposition, it does not cease to be propensity evidence. The virtue of B.(C.R.) is its candid admission that evidence of propensity may exceptionally be admitted. By affirming its true character, the Court keeps front and centre its dangerous potential. - What is excluded is propensity reasoning based solely on bad character Crown not entitled to ease its burden by stigmatizing the accused as a bad person. - Still have to identify the issue in question, partially in order to instruct the jury that it is for that issue alone that they may use the evidence. But, “the requirement to identify the material issue “in question” (i.e. the purpose for which SFE is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it.” Probative value cannot be assessed in the abstract. Ex : Arp was identification, etc. In the present case, it is the actus reus of the offence. - The principal driver of probative value is the connectedness of the evidence to the alleged offences: proximity in time, similarity in detail, number of occurrences, similarities of circumstances and any other distinctive features. - Factors that weigh against admissibility are the inflammatory nature of the similar facts, whether the crown can prove its point with less prejudicial evidence, the potential for distraction and the spectre of wasted time. Not every dissimilarity is fatal, but it dilute probative value. - There is a spectrum of propensity evidence, from “general disposition” (e.g. for violence (says nothing for the trial)) to “modus operandi” (which is more useful) but it is all at bottom propensity evidence. Where is falls on the spectrum will determine its admissibility because it determines its probative value. Cogency increases as the fact situation moves further to the specific end of the spectrum. Examples include the situation in B.(C.R.) where there was a “distinct and particular propensity” demonstrated in the SFE to abuse sexually children to whom the accused stood in a parental relationship; also, “calling cards” or “signatures”. This is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation. - The evidence need not be shown to be conclusive, as that’s a jury question. But the TJ does have to engage in a certain degree of weighing the relevance and weight of the evidence to assess its probative value. In this case - If there is only evidence of the possibility of collusion, it should be left to the jury. But where, as here, there is some evidence of actual collusion, the judge must play a gatekeeper role, and the crown has to satisfy the judge on the balance of probabilities that the evidence is not tainted with collusion (+ risk of profit serious risk collusion.) The whole reason for the exception is that the evidence defies coincidence—so if there is any evidence of collusion, the foundation of the admissibility of similar fact evidence is shaken. The preponderance of probative value over prejudicial effect is the condition precedent of admissibility, so collusion must be dealt with. It is for this reason that collusion is not simply one factor among others in assessing probative value. - The issue at trial was the complainant’s consent or lack thereof. This should not be identified as simply an issue of credibility. Credibility is always an issue, and should not of itself warrant the admission of similar fact evidence. The question here is whether the evidence supports the claim that she did not consent and he knowingly proceeded. - The former wife’s evidence was also a bit shaky. - Prejudice does not necessarily recede as probative value advances. - The evidence here ought to have been excluded because the TJ did not deal with collusion, and the prejudicial effect outweighed the probative value (largely because of the spectre of collusion, which undermines probative value). 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Ratio + See the evaluation of every factors p. 478-479. In that case, the cogency would come from the repetition rather than distinctiveness. The threshold for admission was, in that case, too low. Normally, the frailties in the evidence would be left to the trier of fact, but when admissibility is bound up with probative value, the trial judge must consider it. The probative value must outweigh the prejudicial effect—all similar fact evidence is on some level propensity evidence, so the general exclusionary rule must be overborne. Handy Notes - The general exclusionary rule that similar fact evidence is presumptively inadmissible has been affirmed repeatedly and recognizes that the potential for prejudice, distraction and time consumption associated with the evidence generally outweighs its probative value. - Issues may arise however, for which its probative value outweighs the potential for misuse. Similar circumstances may defy coincidence or other innocent explanation. As the evidence becomes more focused and specific to the charge, its probative value becomes more cogent. - The onus is on the prosecution to show on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential for prejudice - Similar fact evidence does not cease to be propensity evidence because it relates to an issue other than general disposition - The principal driver of probative value is the connectedness of the evidence to the alleged offences. Factors that may support admission of such evidence include the proximity in time of the similar acts, similarity in detail, the number of occurrences of similar acts, similarities of circumstances, and any distinctive features. - Exclusionary factors include the inflammatory nature of the similar acts, whether the Crown can prove its point with less prejudicial evidence, the potential for distraction, and whether admitting the evidence will consume undue time. non-accused third party or victim - Can the defense bring bad character evidence regarding third parties, such as a witness or victim? - Can be used to displace blame from victim, to third parties; To raise a reasonable doubt; 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 5 Credibility Assessing Credibility In Light of All the Evidence - Credibility must be framed within the totality of evidence; in light of all the evidence; - How does one evaluate credibility? Demeanour Memory: relating to past statements made by the witness, length of time since, selective memory issues, Direct observation of conduct Sense of perception Use of language Integrity Intelligence - Demeanour is an important factor in the assessment of credibility; Demeanour of the Witness - Direct observations of witness - Reaction to GTS - Non-verbal - Cultural Demeanour Canada NS (2012) Facts Witness wearing a niqab in court. Both defense and prosecutor wanted the witness to remove her niqab, as credibility and demeanour were at stake. Does a niqab-wearing witness impair the accused’s right to a fair trial? She was asked to remove her niqab. - Ultimately the Supreme Court held, with considerable dissent, that in cases where a witness wishes to wear a niqab a legal test ought to be applied to determine whether or not it is appropriate. The four-part test requires the witness to demonstrate, on a balance of probabilities, that: 1) They are sincere in their religious views and belief that requires the niqab while testifying in a criminal proceeding; At this stage, sincerity is not to be confused with the witnesses strength of belief. 2) Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? This will depend on several factors on a case by cases analysis. This might include whether the evidence is uncontested or whether credibility assessment and cross-examination is not in issue. There are no determinative factors one way or another but rather an assessment the judge must make considering all relevant factors. 3) Is there a way to accommodate both rights and avoid the conflict between them? The judge must consider whether there are reasonably available alternative measures that would conform to the witness’s religious convictions while still preventing a serious risk to trial fairness. 4) If no accommodation is possible, then the final question is whether “the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects” of doing so? For example: What is the harm by limiting religious beliefs? What is importance of the religious practice to the witness? What is the degree of state interference with that practice, and the actual context in the courtroom? Are their broader social harms such as discouraging niqab-wearing women from reporting offences and participating in the justice system? - Compared to Preventing harm to the fair trial interest of the accused. Safeguarding the repute of the administration of justice. Issue Decision Reasoning 2021/09/20 Evidence Ratio Nadya Goorachurn Walid Hijazi Assessing the importance of the witness ‘evidence and the potential effect on the trial. - The Court did make it clear however, that “where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.” Legal test for permitting a witness to wear a niqab head covering in criminal trials; relating to credibility, namely Demeanour. Canada Santhosh (2016) Facts Charge of sexual assault. Trial judge found the complainant credible because her attire in court was not “provocative” and that she was a “God-fearing type of person” who invoked God as her witness. Should credibility be based on attire and religious beliefs? No - Evidence of a witness’s religious beliefs is not admissible for the purposes of enhancing or impeaching his or her credibility, nor can it be relied upon for those purposes. 1. Not Probative - Evidence of a witness’s religious beliefs is simply not useful in assessing credibility. - In considering evidence potentially relevant to credibility the court must first ask whether the evidence indicates the witness is more or less likely to tell the truth in court. The tendency or disposition of a person to do a certain act is relevant to indicated the probability of his doing or not doing the act. - In order for character evidence to be relevant to credibility, it must establish a tendency or disposition to tell the truth or to lie. - The bare fact of membership in a faith group does nothing to establish such a tendency or disposition. There are people of all religious beliefs – and of no religious beliefs – who lie, just as there are those who are truthful. 2. Risk of Moral and Reasoning Prejudice - Relatedly, the risk of prejudice associated with using evidence of a witness’ religious beliefs for credibility purposes is extremely high, far outstripping any possible probative value. There is a risk of both moral and reasoning prejudice. - Evidence of a witness’ religious beliefs may distract the trier of fact from the core issues and lead them to draw improper inferences based on prejudice or stereotyping. This is particularly true in cases where a witness holds minority religious views that are poorly understood, or even disliked, by the majority in society. - Of course, the converse is also of serious concern: there is a risk that the witness who holds more mainstream, popularly understood beliefs is more likely to be held credible. - The courts must be especially vigilant to excise from consideration factors that may lead to unconscious prejudice. 3. Contrary to Public Policy - Public policy concerns militate against using evidence of a witness’ religious beliefs for credibility purposes. The Charter values of freedom of conscience and religion and of equality would be undermined by permitting or encouraging inquiry into the religious beliefs of witnesses in our courts for the purposes of assessing credibility. - While there are some very limited circumstances in which inquiry into the degree to which an oath or affirmation binds a witness’ conscience is permissible, these are restricted to where there is reason to believe that the witness’ oath or affirmation is not genuine. Such an inquiry is primarily a question of testimonial competence as opposed to credibility - Evidence of a witness’s religious beliefs is not admissible for the purposes of enhancing or impeaching his or her credibility, nor can it be relied upon for those purposes. Issue Decision Reasoning Ratio Child Witness See Book 387-Wilson J in B.(G.) - Cannot measure credibility of a child in the same way an adult’s credibility is measured; “A child’s testimony should not be given the same effect” - Every person giving testimony in court is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding and ability to communicate. Where an adult is testifying as to events which occurred when they were a child, their credibility should be assessed according to criteria applicable to them as an adult witness. Yet with regard to their evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Deference of Appellate Courts to Findings of Credibility at Trial See Book at 388 - Appealing on credibility issues; trial judge believed beyond a reasonable doubt the complainant; - Argument is to say the judge made a mistake by believing the victim; - What will the court of appeal state in regards to this argument? Deference is given to the trial judge, as they are better placed to evaluate credibility, namely demeanour; they have seen and listened to the witness Appeal judges do not get to see the witness in such manner General Rule against Oath Helping & General Exclusionary Rule against Prior Consistent Statements General Rule against Oath-Helping - Counsel often begins the examination of witness with questions designed to accredit the witness as a person generally worthy of belief, focusing for example on employment, length of residence in the community, credentials, etc. These questions are permissible - Generally, a party may not lead evidence as part of its case where relevance of the evidence is limited to showing that the witness is credible; This is called oath-helping. Until a witness’ credibility is challenged, it is assumed that the witness is trustworthy; therefore, no time should be wasted on the issue of credibility if it is first assumed. General Rule against Prior Consistent Statements - For example, cannot bring up prior statements as proof of credibility, as it is self-serving. Probative value is low; - However, there are exceptions to Prior Consistent Statements Rule 1) Purposes of identification 2) Recent Fabrication Prior consistent statement to rebut allegations of recent fabrication It is not allowed as being “oath-boosting”, which serves no purpose, but rather to rebut. 3) Narrative Use for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility Prior Inconsistent Statements Canada R v Stirling (2008) Facts Stirling was involved in a single vehicle accident which resulted in the death of two of the car’s occupants and the injury of two others (including Mr. Stirling himself). The key issue at trial was whether or not Mr. Stirling was the driver of the vehicle at the time of the accident. In the course of cross-examining Mr. Harding, (the other surviving party in the accident), counsel for Mr. Stirling brought to the courts attention that Mr. Harding had commenced a civil proceeding against Mr. Stirling stemming from the same accident. In so doing, he established a motive for Mr. Harding to fabricate his testimony, in particular with respect to his contention that Mr. Stirling was operating the vehicle at the time of the accident. With an aim to providing the prosecution with an opportunity to rebut this motive, the trial judge admitted into evidence several prior consistent statements by Mr. Harding. Drawing among other things on these statements, the trial judge concluded that Mr. Stirling was indeed the driver of the vehicle, and rendered a convictions on two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. Mr. Stirling did not take issue with the trial judge’s decision to admit the prior consistent statements in order to refute the inference that Mr. Harding may have fabricated his testimony. Rather, he alleged that the trial judge had used the statements inappropriately. What is the evidentiary or probative value of prior consistent statements admitted under this exception? Argument rejected. Issue Decision 2021/09/20 Evidence Reasoning Ratio Nadya Goorachurn Walid Hijazi In a very short decision, the Supreme Court agreed with the majority of the B.C. Court of Appeal and the trial court. Writing for a unanimous court, Batarache J. reasoned that although prior consistent statements are generally inadmissible, (per R v Evans, [1993] 2 SCR 629, R v Simpson, [1988] 1 SCR 3, and R v Béland, [1987] 2 SCR 298), they may be admitted in the context of allegations that a witness has fabricated portions of his or her evidence. However, Bastarache J. was careful to place limits on the use of prior consistent statements. Such statements, he qualified, “lack any probative value beyond showing that that the witness’s story did not change as a result of a new motive to fabricate.” In other words, although a prior consistent statement may attest to consistency, in no way can it speak to the truth of the claim a question. “A concocted statement, repeated on more then one occasion,” Bastarache J. quoted from R v Divitaris, [2004] OJ No 1945 (ONCA), “remains concocted.” Having defined the conditions under which Mr. Harding’s prior consistent statements could be employed as evidence, Bastarache J. proceeded to appraise the trial judge’s use thereof. As far as Levine J.A.’s claim that the trial judge had used the prior consistent statements of Mr. Harding to attest to his “general credibility,” Bastarache J. suggested to the contrary that “prior consistent statements have the impact of removing a potential motive to lie” and accordingly that “the trial judge is entitled to consider removal of this motive when assessing the witness’s credibility.” Drawing on recent appellate court jurisprudence, Bastarache J. held that “although it would clearly be flawed to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.” Levine J.A., then, was incorrect in suggesting that “prior consistent statements cannot be used to “bolster” or “support” the credibility of a witness generally.” Use of prior consistent statements regarding assessment of credibility. “Although it would clearly be flawed to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.” Prior Consistent Statements of the Accused Canada R v Edgar (2010) Issue Reasoning What is the probative value of statements led under the Edgar approach? It is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross- examination. The statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence. As a practical matter, once the accused has testified, he or she should be entitled to call in reply the police officer who heard and recorded the statement to verify to the jury the fact that it was made. R. v. Edgar, 2010 ONCA 529. In summary, the spontaneous exculpatory statements made by an accused person upon or shortly after arrest may be admitted as an exception to the general rule excluding prior consistent statements for the purpose of showing the reaction of the accused when first confronted with the accusation, provided the accused testifies and thereby exposes himself or herself to cross-examination. Spontaneous Statements may be introduced as an exception to the Prior Statement Rule, in order to determine credibility. This new broad exception to the rule prohibiting prior consistent statements depends on two conditions: 1. That the accused “takes the stand and exposes himself or herself to cross-examination” and 2. That the accused’s statements were “spontaneous” Ratio Narrative Exception Canada R v Dinardo (2008) Facts In spite of this testimony, the trial judge found the complainant to be a reliable witness, noting that when she was cross-examined by counsel for the accused, she “never contradicted herself on important facts, only on certain details that the Court does not consider important enough for the contradictions to affect her credibility.” The trial judge also emphasized the consistency between statements made by the complainant in the immediate aftermath of the alleged incident and in the course of her testimony at trial. Accordingly, he convicted Mr. Dinardo on both counts. Should the prior consistent statements have been admitted? No, it was used for the impermissible purpose of confirming the truthfulness of the sworn allegation. Issue Decision 2021/09/20 Evidence Reasoning Ratio Nadya Goorachurn Walid Hijazi Charron J. also found that the trial judge had erred by admitting and relying on the complainant’s prior consistent statements. Drawing on Stirling, she identified the two primary justifications for excluding such statements, first that they lack probative value, and second, that they constitute hearsay when adduced for the truth of their contents. In Stirling however, the Supreme Court ultimately admitted the impugned statements, reaffirming that in limited situations, prior consistent statements could be admitted and relied on as evidence. Charron J. pointed to R. v. G.C., [2006] O.J. No. 2245, an Ontario Court of Appeal decision also involving sexual assault, where the Ontario court held that prior consistent statements of a complainant could assist the court in assessing the likelihood that the complainant was telling the truth, in particular in cases involving sexual assault. In the final analysis however, Charron J. found that the trial judge had erred by using prior consistent statements as evidence to corroborate the complainant’s testimony at trial. Unlike the Quebec Court of Appeal, Charron J. held that the admission of the impugned statements did in fact prejudice Mr. Dinardo and accordingly ordered a new trial. The trial judge, she explained, “was clearly of the view that the complainant’s consistency in recounting the allegations made her story more credible” thereby contributing to the finding of guilt beyond a reasonable doubt. Out-of-court statements cannot be used to confirm in-court story, and cannot reflect on the truth of the story itself, pointing to credibility. Canada R v Khan (2017) Reasoning One of those expanding exceptions is ‘narrative as circumstantial evidence’. In R. v. Khan, 2017 ONCA 114, the Court of Appeal for Ontario explained that a prior consistent statement is admissible if the circumstances surrounding the making of the statement are such that the statement assists in assessing the reliability and credibility of a witness’ in-court testimony. The Court drew a line between permissible admissibility and impermissible use. Even if a prior consistent statement is admissible as narrative as circumstantial evidence, it cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony. The trial judge erred in using the prior consistent statement for the truth of its content and further, that he used the statement for the impermissible purpose of inferring truth from repetition Narrative Exception to the rule against Prior Consistent Statements. Ratio 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Impeaching Credibility of an Opposing Party’s Witness - A party cannot rebut on a collateral issue that is being asked about; cannot bring outside extrinsic evidence to attack an answer on a collateral issue, except when it goes to the state of mind of the person testifying. If it goes to the state of mind of the person testifying; motive, revenge, interest, bias, etc. then there is potentially a motive to lie Bias of the witness is never collateral, it is relevant and substantial; therefore, can cross-examine AND bring other witnesses to demonstrate this bias Browne v Dunn Rule - Requires a party who wishes to contradict a witness to put that contradiction to the witness and allow him or her an opportunity to address it. - Crown brings a witness testifying to A, B, C, etc. If there is extrinsic evidence regarding the witness lying about A, can the opposing party bring forth this evidence, or are there preliminary steps that must be met beforehand? Before being able to contradict, must present this contradiction to the witness, and allow them to address it. Collateral Facts Rule - Limits when a cross-examining lawyer can adduce independent evidence to contradict the answer of an opposing witness; - If the answer of a witness is a matter which you would be allowed on your part to prove in evidence- if it have such a connection with the issue, that you would be allowed to give it in evidence- then it is a matter on which you may contradict him Facts and motives are substantive issues, they are not collateral. - When the issue is collateral, cannot contradict it. This is known as the rule against rebuttal on collateral issues. Where it applies, the Crown counsel may cross-examine the accused on the matters raised, but the Crown is bound by the answers given (Krause) - Given that the rule is based primarily on efficiency concerns, if the probative value of the contradiction is enough- if it bears on a material fact or a major credibility issue- then the matter is not collateral and extrinsic evidence to prove the contradiction should be permitted. How to Impeach an Opposing Witness’s Credibility 1. Cross-examination of an opposing witness on a prior inconsistent statement 2. Cross-examination of a witness on their criminal record, pursuant to s.12 of the Evidence Act 3. Limited technique of leading expert opinion evidence to show the testimonial unreliability of a witness 4. Leading evidence of the witness’s bad reputation for veracity Prior Inconsistent Statements - Sections 10 and 11 of the Evidence Act; Cross-examination as to previous statements 10 (1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit. Cross-examination as to previous oral statements 11 Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement. - The heart of these provisions is that, before using the prior inconsistent statement to impeach the witness’s testimony, counsel must draw the witness’s attention to the prior contradictory statement. If the witness denies having made it, counsel may prove the statement; it must be relative to the subject matter of the case. - It can only be used to assess credibility, not truthfulness - Liberal interpretation of “inconsistent” Criminal Record: See previous notes 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 6 Sex Crimes History - In 1976, abolition of the corroboration rule Corroboration rule; victim’s statement had to be supported by some other piece of evidence; Abolished, as often these types of crimes occur in intimate settings, no other evidence other than the victim’s experience. - In 1983, major reform of Criminal Code for sex crimes Spouse has no immunity No spontaneous complaint requirement; it was abolished, as it was predicated on the myth that it was true if victims would denounce it right after. Redefinition of sex crimes (“rape” & “molestation” become “sexual assault”); no longer distinguished, as regardless of the details, it is considered a sexual assault. Classification of “sexual assaults” (simple/armed/bodily harm) Sexual reputation not a relevant topic of cross-examination. Sexual history not a relevant topic of cross-examination s.276-277 of the Criminal Code Criminal Code (s.271-278 CC on EXAM) Cross-Examination of Sexual Assault Complainant (Legislative Response to Ghomeshi) - Canadian Criminal Code was amended after Ghomeshi; legislative response Disclosure needs to be done, but it does not have to be done at the preliminary inquiry. However, it has to be done before trial/defense is presented. This is done through a motion; in other words, permission must be sought to introduce this evidence (motion+affidavit). Before Ghomeshi, defense could present the evidence on stand, during cross-examination. Now, it must be disclosed; s.278.92 Cc Admissibility — accused in possession of records relating to complainant 278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279 .03, 286.1, 286.2 or 286.3; or (b) (b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day. Requirements for admissibility (2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, (a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or (b) (b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Factors that judge shall consider (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi (d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (e) the need to remove from the fact-finding process any discriminatory belief or bias; (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (g) the potential prejudice to the complainant’s personal dignity and right of privacy; (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (i) any other factor that the judge, provincial court judge or justice considers relevant. - Can the constitutionality of this legislation be upheld? In Darrash, a lot of the reasons presented to maintain s.276 could be used to maintain s.278.92(1); If it were to be challenged, the considerations were considered in Darrash. Potentially on EXAM Criminal Code Assault 265 (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing, or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Section 271 Sexual Assault 271. Sexual assault occurs if a person is touched in any way that interferes with their sexual integrity: this includes kissing, touching, intercourse and any other sexual activity without his/her consent. - What is the actus reus of sexual assault: Engaging in sexual activity with someone without consent; Consent is measured, on the actus reus level, strictly from the victim’s perspective. - What is the mens rea of sexual assault: Consent is viewed through accused’s subjective belief of consent; defense of mistaken honest belief What would the defense have to establish in order to raise such a defense? Must have taken reasonable steps that consent was present. Section 276(1) Evidence of complainant’s sexual activity 276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief. Conditions for admissibility (2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence (a) is not being adduced for the purpose of supporting an inference described in subsection (1); (b) is relevant to an issue at trial; and (c) is of specific instances of sexual activity; and 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi (d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. (e) Factors that judge must consider (f) (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (g) the interests of justice, including the right of the accused to make a full answer and defence; (h) society’s interest in encouraging the reporting of sexual assault offences; (i) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (j) the need to remove from the fact-finding process any discriminatory belief or bias; (k) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (l) the potential prejudice to the complainant’s personal dignity and right of privacy; (m) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (n) any other factor that the judge, provincial court judge or justice considers relevant. Interpretation (4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature. Section 271 Reputation evidence 277 In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant. Section 278 Spouse may be charged 278 A husband or wife may be charged with an offence under section 271, 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred. Section 278.1 Definition of record 278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. Canada R v Seaboyer (1991) Facts S.276 provided that in sexual assault trials, evidence concerning the sexual activity of the complainant with any person other than the accused could only be admitted if it: (1) Rebutted evidence of the complainant’s sexual activity or absence thereof adduced by the prosecution; (2) tended to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; and (3) Was evidence of sexual activity that took place on the same occasion as the sexual activity in the charge and relates to the consent that the accused alleges he believed was given by the complainant. Does s.276 violate Charter right under section 7 and 11(d), providing the right to full answer and defense? Yes - The goals of the legislation, the avoidance of unprobative and misleading evidence, the encouraging of reporting and the protection of the security and privacy of the witnesses, conform to our fundamental conceptions of justice The concern with the legislation is not as to its purpose, which is laudable, but with its effect Section 277 excludes evidence of sexual reputation for the purpose of challenging or supporting the credibility of the plaintiff There is no logical or practical link between a woman's sexual reputation and whether she is a truthful witness It follows that the evidence excluded by s. 277 can serve no legitimate purpose in the trial - Section 276, unlike s. 277, does not condition exclusion on use of the evidence for an illegitimate purpose Rather, it constitutes a blanket exclusion, subject to three exceptions -- rebuttal evidence, evidence going to identity, and evidence relating to consent to sexual activity on the same occasion as the trial incident The question is whether this may exclude evidence which is relevant to the defence and the probative value of which is not substantially outweighed by the potential prejudice to the trial process Issue Decision Reasoning 2021/09/20 Evidence Ratio Notes Nadya Goorachurn Walid Hijazi It in fact could - Consider the defence of honest belief The basis of the accused's honest belief in the complainant's consent may be sexual acts performed by the complainant at some other time or place, tet section 276 would preclude the accused leading such evidence. - I conclude that the operation of s. 276 of the Criminal Code permits the infringement of the rights enshrined in ss. 7 and 11(d) of the Charter - In achieving its purpose -- the abolition of the outmoded, sexist-based use of sexual conduct evidence -- it overshoots the mark and renders inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial L' Heureux-Dubé J (dissenting) Sexual assault is not like any other crime It is for the most part unreported and the prosecution and conviction rates are among the lowest for all violent crimes - Evidence of sexual history of the complainant is almost invariably irrelevant and, in any event, is nothing more than a prohibited propensity argument, besides being highly prejudicial to the integrity and fairness of the trial process - It is my view that, assuming that both the trier of fact and the trier of law are operating in an intellectual environment that is free of rape myth and stereotype about women, any evidence excluded by this subsection would not satisfy the "air of reality" that must accompany this defence nor would it provide reasonable grounds for the jury to consider in assessing whether the belief was honestly held. Highlights importance of relevant evidence, and balancing of prejudicial effects and probative value. - Because the Crown is so much stronger in terms of power versus the accused, there is a tendency of flexibility towards defense evidence to allow the accused to defend himself; - In Seaboyer, it is possible that even if evidence is relevant, defense evidence might be excluded if the prejudicial effect outweighs probative value Seaboyer Notes - Crown wants to put in evidence bruises on complainant; - Defense wants to cross-examine complainant on other sexual intercourses (relevance was to the consent and presence of bruises) Constitutionality of 276 and 277; “rape shield” provisions - Sections 7 and 1 of the Charter; What was the purpose of the provisions? To tackle two issues: the twin myths being that a complainant’s sexual history could lead to a conclusion of being less credible, or more likely to consent. They also wanted to encourage women to come forward. These myths are now discredited; the fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. Nor does it make her a liar. What are the effects of the provisions? It was determined to be too much of a blanket exclusion; They ultimately abolished and reformed s.276 Cc. - s.276 Cc; First and most important justification for s.276 is that it prevents the judge or jury from being diverted by irrelevant evidence of other sexual conduct of the complainant which will unfairly prejudice them against What are examples of relevant evidence, as stated by the Court’s judgment, that would be excluded? Similarly, to character evidence, propensity evidence is excluded. However, there are some exceptions. In the context of potential relevant evidence in sexual assault, what might be excluded under past legislation? Question is whether this may exclude evidence which is relevant and has probative value, more so than prejudicial effect. Example: attempt to explain a substantive issue, not related to a rape myth, such as the presence of bruises, is prevented from being produced. Example: defense of honest belief, in which the accused would have been precluded from leading evidence of consent at some other time/place. Example: attacking credibility of complainant on the grounds that the complainant was biased or had motive to fabricate evidence. Example: evidence relating to pattern of conduct, but must be carefully scrutinized. - Crown’s position: Main purpose of the legislation is to abolish the old common law rules which permitted evidence of the complainant’s sexual conduct which was of little probative value and calculated to mislead the jury 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi - Defense’s position: The legislation, however laudable its goals, in fact infringes their right to present evidence relevant to their defense and hence violates their right to a fair trial - s.277 Cc? Excludes evidence of sexual reputation for the purpose of challenging or supporting the credibility of the plaintiff. This is not abolished, as its purpose and effect is relevant. Canada R v Darrach (2000) Facts The accused was charged with sexual assault and, at his trial, attempted to introduce evidence of the complainant’s sexual history. He unsuccessfully challenged the constitutionality of s. 276.1(2)(a) of the Criminal Code (which requires that the affidavit contain “detailed particulars” about the evidence), ss. 276(1) and 276(2)(c) (which govern the admissibility of sexual conduct evidence generally), and s. 276.2(2) (which provides that the complainant is not a compellable witness at the hearing determining the admissibility of evidence of prior sexual activity). At the trial proper, the complainant testified and was cross-examined. The defence was allowed a voir dire to introduce evidence about her past sexual activity where the accused presented his own detailed affidavit but refused to be cross-examined on it. After the voir dire, the trial judge refused to allow the accused to adduce the evidence of the complainant’s sexual history. The accused was subsequently convicted of sexual assault. The Court of Appeal dismissed the accused’s appeal, concluding that the impugned provisions did not violate the accused’s right to make full answer and defence, his right not to be compelled to testify against himself or his right to a fair trial as protected by ss. 7, 11(c) and 11(d) of the Canadian Charter of Rights and Freedoms. Is s.276 constitutional, does it infringe right to silence and against self-incrimination? Yes, no. The current version of s. 276 of the Criminal Code is in essence a codification by Parliament of the Court’s guidelines in Seaboyer. Section 276 contains both a substantive part that prevents a complainant’s past sexual activity from being used for improper purposes and a procedural part that enforces this rule. In view of Seaboyer, the constitutionality of both the rule and the procedure has already been established at a general level. Section 276 is carefully crafted to comport with the principles of fundamental justice. It protects the integrity of the judicial process while at the same time respecting the rights of the people involved. The substantive aspect of s. 276 does not infringe the accused’s s. 7 right to make full answer and defence or his s. 11(d) right to a fair trial. Far from being a “blanket exclusion”, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences, namely, that a complainant is more likely to have consented to the alleged assault and that she is less credible as a witness by virtue of her prior sexual experience. These “twin myths” are simply not relevant at trial. They are not probative of consent or credibility and can severely distort the trial process. Because s. 276(1) is an evidentiary rule that only excludes material that is not relevant, it cannot infringe an accused’s right to make full answer and defence. An accused has never had a right to adduce irrelevant or misleading evidence. Further, the fact that s. 276(2)(c) requires that the evidence tendered to support a permitted inference has “significant probative value” does not raise the threshold for the admissibility of evidence to the point that it is unfair to the accused. The word “significant”, on a textual level, is reasonably capable of being read in accordance with ss. 7 and 11(d) and the fair trial they protect. The requirement of “significant probative value” serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the “proper administration of justice”. In sum, s. 276 enhances the fairness of the hearing by excluding misleading evidence from trials of sexual offences. It preserves the accused’s right to adduce relevant evidence that meets certain criteria and so to make full answer and defence. With respect to the procedural aspect of s. 276, the requirement that an accused present an affidavit and establish on a voir dire that the evidence is admissible in accordance with established criteria does not infringe his right not to be compelled to be a witness in proceedings against him, nor a right not to reveal his defence. The procedure mandated by s. 276 is consistent with the law of evidence and with Seaboyer. It is a basic rule of evidence that the party seeking to introduce evidence must be prepared to satisfy the court that it is relevant and admissible. Therefore, if the defence seeks to adduce evidence of sexual activity, it must establish that it supports at least some relevant inference. Further, the particular voir dire required by s. 276 does not offend the principle against self-incrimination because the requirement that the accused establish a legitimate use for evidence of sexual activity does not compel him to testify. In applications under s. 276, there is free and informed consent when the accused participates in order to exculpate himself. *Procedure; motion + an affidavit, to introduce evidence Seaboyer’s legislated reform of rape shield laws is upheld. “If the defence is going to raise the complainant’s prior sexual activity, it cannot do so in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush. Issue Decision Reasoning Ratio Notes 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v Ghomeshi (2016) Facts Ghomeshi sexually assaulted three women. Each charge presented against Mr. Ghomeshi is based entirely on the evidence of the complainant. Given the nature of the allegations this is not unusual or surprising; however it is significant because, as a result, the judgment of this Court depends entirely on an assessment of the credibility and the reliability of each complainant as a witness. Were the complainants credible? No Complainant 1 While her evidence seemed "rational and balanced" at first, on cross-examination it "suffered irreparable damage," he said. "Defence counsel's questioning revealed inconsistencies, and incongruous and deceptive conduct. [Complainant #1] has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly." Complainant 2 "An inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each differing version of the events was put forward by this witness as a sincere and accurate recollection," he said. "When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness." Complainant 3 "[She] claimed that she did not think it was important to disclose this intimate contact and said she wasn't "specifically" asked about post-assault sexual activity with Mr. Ghomeshi. She ultimately acknowledged that she left out things because she felt it didn't fit 'the pattern.' And when pressed further in cross-examination, she said that she did not think that what had happened between them at her home qualified as 'sex.'" Credibility of complainant in sex charge often weighs heavy at trial. Issue Decision Reasoning Ratio Rozon Notes - Just for laughs creator; portrayed in the media as a sexual predator; numerous women denounced sexual assaults committed by him; One complaint was prosecuted; The accusation dated back to 1980; very old facts - More than twenty other women went to the media; none of their complaints were retained as accusations; Issue of consistency and credibility if the victims repeat numerous inconsistencies; prior inconsistent statements - Difference between an omission and a calculated omission, and changing facts (lying); both come to play when it comes to credibility; DISCUSSION - Question of whether social media movement of denunciations regarding sexual assault is fair? Does not give the accused a fair trial; reputation can be damaged On the other hand, individuals might be going to social media for other reasons; for safety reasons, identification of what sexual assault can be, creating a safe space to denounce it, etc. - Should the onus of proof be reversed for sex crimes? Some have proposed alternative modes of justice; out of court steps should be taken; Rehabilitation of aggressor, support for victims, creating dialogue is encouraged between parties 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 7 Opinion and Expert Evidence Rationale - Justice system based on relevance; evidence is admissible if it is relevant, unless there is an exclusionary rule, or prejudice overweighs its probative value. - Witnesses can only discuss facts, but cannot make inferences on these facts; opinion evidence, which is presumptively inadmissible. Why can’t ordinary witnesses discuss opinion? Inferences are reserved for the trier of fact (juries); why? Jury might put too much weight or be biased by the opinion of the witness; Opinion Evidence - General rule: Witnesses cannot give opinion testimony. However there are exceptions. I. The Exclusionary Rule and Two Exception - Opinion evidence is generally inadmissible. The role of witnesses is to testify to the facts of which they have personal knowledge. The witnesses’ opinions on those facts are generally irrelevant and thus inadmissible White Burgess : « Witnesses are to testify as to the facts which they perceived, not as the inferences – that is the opinion – that they drew from them. » This includes matters relating to the knowledge, observation and experience. It is the job of the jury to form opinions. Witnesses provide the raw material that enables the trier of fact to make findings, or form opinions, based on the admissible evidence Otherwise, risk of misleading the jury. - Two exceptions: 1. Ordinary witnesses may be permitted to communicate their perceptions in the form of opinion on matters that are: Within common knowledge and Based on multiple perceptions that can best be expressed in a compendious format E.g. age, speed, identity, physical/emotional state 2. Where the trier of fact requires assistance in order to understand the significance of the evidence, or requires assistance to determine what inferences can properly be drawn from the evidence, and expert may be permitted to provide assistance in the form of opinion evidence 1. Lay Opinion Exception Opinion - When is lay opinion admissible? Lay opinion, being an opinion of a person who is not qualified as an expert, can be admissible in trial where the opinion constitutes a “compendious statement” of the observations of a witness in relation to matters of common experience where no special knowledge is required and the opinion is so close to fact that it is impossible to separate the two. R v Graat (1982) - Lay opinion should usually have the following characteristics to be accepted: Witness has personal knowledge of the observed facts Witness is in a better position than the trier of fact to draw the inference Witness has the necessary experiential capacity to draw the inference; and The opinion is a compendious mode of speaking and the witness could not as accurately described the facts without expressing it in this manner 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v Graat (1982) Facts G was stopped for impaired driving. The police had seen him speeding, swerving, smelling alcohol, etc. They never got a chance to do a breathalyzer because he had heart problems. At trial, three police officer testified not only as to their observations of his odour and behaviour, but also offered their opinion that he was intoxicated to the point that his ability to drive was impaired. The defence did not object. - The TJ accepted the opinion of the two more experienced officers and convicted. Should these opinions have been excluded? No Dickson J: - There are already too many rules, exception, sub exceptions and sub-sub-exceptions in the law of evidence. - The non-exhaustive list of subjects on which non-experts can give opinion evidence is lengthy: 1. ID of handwriting, persons and things, 2. Apparent age 3. Bodily plight or condition 4. Emotional states 5. Condition of things 6. Certain questions of value and 7. Estimates of speed and distances. Issue Decision Reasoning Ratio - We should go back to first principles. The first issue is relevance. This is a matter of applying logic and experience to the circumstances of the particular case. Then, the question is if, even if probative, the evidence must be excluded by reasons of a clear ground of policy or law. - Here, the relation between the evidence and the ultimate probandum is direct and logical, and there is no policy rationale for exclusion (no risk of misleading the jury). It’s not usurping the function of the jury. The concern of that issue is covered by relevance: the court need not hear superfluous evidence. - There is no reason to exclude opinion where the expression of opinion would be more accurate than the expression of facts, where the facts are too complicated or evanescent to be recalled and related in a coherent fashion, but ntl lead to an unmistakable opinion. It’s much easier to say someone is drunk than to relate all the factors that led you to that conclusion. So, opinion should be allowed where it’s no more than a “compendious statement of fact” (<-- this is the exception under which it is allowed). Let’s not be “fetishistic” about the ultimate issue rue. - There is no need for a specialist (expert evidence) on this issue. Same goes for whether the person is too drunk to drive. The operation of vehicles is a matter of common experience. Could be very detrimental to the defence if they want to bring a witness to express that the driving was fine. Whether someone’s ability to drive is impaired is a question of fact, despite that it will be expressed, often, in that language of the Code. - Note: even if the evidence is admitted, it is still possible that the jury gives it no weight. - Two caveats: 1. Lots of judicial discretion. 2. Cops opinions should not be given more weight in these circumstances. They are not being called to testify as experts or on the basis of their experience. Their evidence is “not entitled to preference just because they may have extensive experience with impaired drivers.” [That’s exactly what the TJ did!] Witnesses may give their opinion on issues of common experience where the expressing of an opinion is more straightforward than the expression of each discrete fact that gave rise to the opinion. In such cases, the testimony of those with experience in the matter is not to be given preferential treatment because they are not testifying as experts. Graat Notes - Anthony Graat was pulled over by London, Ontario police. To the officers he appeared intoxicated and so was arrested for impaired driving. At the scene of the arrest Graat complained of chest pains and so was taken to the hospital. Due to the stop at the hospital the two-hour limit in which to get a breathalyzer test expired. At trial the only evidence the Crown could lead with was the testimony of the police officers. The defence tried to have the evidence excluded as opinion evidence. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi - Supreme Court found: The witnesses all had an opportunity for personal observations. They were not deciding a matter for the court to decide as the weight of the evidence is entirely a matter for the judge who could accept all or part or none of their evidence. Justice Dickson, writing for a unanimous court, held that the statements were admissible. Despite their experience, the police officers were not considered experts for determining intoxication and so were limited to giving testimony on observed facts. The trial judge however had discretion to admit certain types of opinion evidence where the distinction between opinion and fact are not clear. Dickson rejected the "ultimate issue" doctrine, which prohibits opinion evidence on matters that concern the ultimate legal issue of the trial. - Observations: High speed and weaving Smelled alcohol Bloodshot eyes Unsteady on his feet - Three police officers testifying to these observations; upon examining, provided opinion that his ability to drive was impaired by alcohol Is this opinion evidence admissible? Compendious lay opinion: cannot testify to the facts without giving an opinion, or there is no need for an expert, as some types of facts are capable of being understood by a lay person. - Sherrard v Jacob; list of examples of opinion being admissible Identification of handwriting, persons and things Apparent age Bodily plight or condition of a person, including death and illness Emotional state of a person (distressed, aggressive, angry, affectionate, depressed, etc.) Condition of things (worn, shabby, used or new) Certain questions of value Estimates of speed and distance - Dickson J wants to return to broad principles; difference between opinion and fact is difficult to delineate. Admissibility is determined first, by asking whether the evidence sought to be admitted is 2. Expert Opinion Exception - Expert witness: can give an opinion on facts perceived by him an issue that is likely outside the experience and knowledge of the trier of fact (lay person) Expert opinion is allowed because ordinary people would be unable to reach an appropriate conclusion without that evidence. - Expert must have special knowledge in the matter - Expert evidence is important but we have to be extremely careful because of the aura of authority and legitimacy they have A. Requirements for Admissibility - Four criteria to determine admissibility of expert evidence (Mohan, then Abbey): 1. Relevance 2. Necessity (to allow the fact-finder to appreciate the issues in question) 3. Whether there’s an exclusionary rule Proper qualification of the witness Canada R v Mohan (1994) Facts - The accused was convicted of sexual assault on four of his patients—girls aged 13-16. The TJ excluded evidence, heard in a voir dire, that the accused did not fit the profile of the kind of person who could commit all four these offences. The shrink had ID’d three categories of sexual offenders, saying that the perpetrator would have to fall into two, which was a special sub category that did not match the accused’s profile. 2021/09/20 Evidence Issue Reasoning Ratio Nadya Goorachurn Walid Hijazi What are the criteria for the admissibility of expert testimony? - Sopinka 1. Relevance: The threshold test is just whether it tends to establish a fact in issue. But, the impact on the trial process must also be considered (whether its value is worth what it costs 🡪 Probative value vs prejudicial effect). Whether these issues are called ‘legal relevance’ or exclusionary rules, the effect is the same. The reliability vs. effect factor has special significant for experts. Two issues to deal with: (1) Is it likely to assist the jury? and (2) Is the jury likely to be overwhelmed by the “mystical infallibility” of the evidence? Risk of giving too much credit to an expert because of its credentials. Still need to consider whether it would distort the fact-finding process or overwhelm and distract the jury. Though there is no longer any general exclusionary rule on opinion as to the ultimate issue, the concern remains, and the trial cannot become a contest of experts. 2. Necessity in Assisting the Trier of Fact: In Abbey, Dickson stated that the purpose of experts is to provide ready-made inferences that the trier of fact couldn’t draw. Whether the evidence is ‘helpful’ sets the bar too low, but the necessity test shouldn’t be applied strictly. What is required is that the opinion be necessary in the sense that it provides information ‘which is likely to be outside the experience and knowledge of a Judge or Jury’ Technical nature of the evidence? The issue is whether the average person could appreciate the issues without the help of the expert. 3. Absence of Any Exclusionary Rule: Compliance with criteria a), b), d) will not ensure the admissibility if it falls afoul of an exclusionary rule of evidence separate and aprat from the opinion rule itself. 4. A properly qualified expert: Must be someone who has particular knowledge through study or experience. There must be an accepted methodology for the evidence to be reliable, which goes to both admissibility and weight. Evidence advancing a novel theory or technique must be subject to special scrutiny at the reliability and necessity stages. The closer the evidence approaches the ultimate issue, the stricter the application of this principle. Four conditions of the admissibility of expert opinion: relevance/reliability, necessity, absence of an exclusionary rule and the proper qualifications of the witness. Canada R v Abbey (2009) Facts Whether an expert could give an opinion on the meaning of a tear drop tattoo worn by a gang member. There were alternative meanings: (i) that there had been a death of a fellow gang member or family member of the tattoo wearer; (ii) that the tattoo wearer had served time in prison; or (iii) that the tattoo wearer had murdered a rival gang member. On appeal, the expert was permitted to give all possible meanings, but not an opinion as to the which of the three meanings seemed most likely (namely murder — remember the admonition about usurping the role of the trier of fact). What are the limits to an expert testimony? Sopinka - Mohan created a principled approach to replace the previous laissez-faire. - Reformulation: two steps criteria: 1. The party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. Preconditions: opinion relates to a matter that is properly the subject of expert evidence, witness must be qualified, must not violate an exclusionary rule, must be logically relevant to a material issue Relevance can refer not only to relevance to an issue but also to whether it’s sufficiently probative Yes/No steps; Evidence that does not meet all of the preconditions to admissibility must be excluded. 4 preconditions to admissibility: 1. The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence. 2. The witness must be qualifying to give the opinion. 3. The proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and 4. The proposed opinion must be logically relevant to a material issue. 2. The TJ must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow form the admission of the expert evidence Gatekeeper function Issue Reasoning 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Ratio Notes Require judicial discretion: not bright line rules. Weight competing considerations. Cost-benefit analysis and case specific. The jury doesn't required help? Then O benefit and vice-versa. But also evaluated the costs : Costs: consumption of time, prejudice and confusion, inability of jury to make effective/critical assessment, unduly protracting and complicating proceedings, advantage to party with best ability to pay experts. Q: consideration of the extent to which the proffered opinion evidence is necessary to a proper adjudication of the fact to which it is directed. - In that cases, the expert evidence could be limited to the introduction alone of the possible meanings for the tattoo without providing his analysis of the specific meaning attributable to Mr. Abbey’s tattoo. - Reformulation of Mohan: expert opinion evidence. It is admissible if: 1) Necessary. 2) Expert’s qualified; 3) Evidence is logically relevant to matter in issue 4) No exclusionary rule Reformulation of Mohan: expert opinion evidence. It is admissible if 1. The party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. 2. The TJ must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow form the admission of the expert evidence B. Preconditions for Admissibility - R v Abbey, 2009: TJ must first define the nature and scope of the expert opinion and then look at the 4 preconditions: 1. The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence. 2. The witness must be qualify to give the opinion. 3. The proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and 4. The proposed opinion must be logically relevant to a material issue. - White Burgess Langille Inman: Cromwell adopted this formula but added that he would added necessity as a threshold requirement. So it is incorporated below. 1. Logical Relevance and Materiality (4th condition) R v Abbey, 2009: Relevance: two types: 1. Logical relevance: requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence This is the thing to evaluate at the precondition admissibility 2. legal relevance i.e not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission (Cost/Benefit) This is what the judge need to evaluate during the second phase. This is what was identify in Mohan but Abbey changed it in two different steps. 2. Defining the Nature and Scope of the Evidence - Before deciding admissibility, a TJ must determine the nature and scope of the proposed expert evidence. In doing so, he sets the boundaries. - The determination of the scope of the proposed expert opinion occurred will be made after a voir-dire. Then the TJ decided the exact scope of the proposed opinion that may be admissible. Prevented a expert to give ordinary opinion that are out of his specialized knowledge to influence the jury. 3. Necessity and Propriety of Hearing Expert Opinion Evidence - Two dimensions to the proposition that one must assess whether proffered evidence is the proper subject of expert testimony: 1. Evidence must be necessary according to the judicial definition sets out in R. v. DD and R v K(A). 2. An expert can’t offer an opinion on a pure question of domestic law 4. Qualifications 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi - An expert witness must be shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify (Mohan). This criterion has tended to be interpreted leniently by courts, and few experts witnesses fail to meet this threshold (although experts are frequently found to be unqualified in respect of some part of their evidence. 5. Other Exclusionary Rules - Normally, to be admit, an evidence must not be excluded by an exclusionary rule or must be within an exception. There needs to be exception for each exclusionary rules that applies. But in case of interaction between hearsay and expert opinion evidence, it is relaxed. 3. Necessity Canada R v DD (2000) Facts - Beau-père demande à sa belle-fille de toucher son pénis. Elle était une jeune enfant. 2 ans et demi plus tard, elle en parle à une amie à l’école. L’amie en parle aux responsables de l’école et des poursuites sont intentées. Question de la défense sur la raison pour laquelle ça a été si long avant qu’elle en parle. - La Couronne fait témoigner son psychologue pour contrer l’inférence que le délai doit affecter la crédibilité de la plaignante. Is an expert evidence is necessary to counter the inference that delay can affect the credibility of the complainant Yes - Necessity i.e wheter the expert will provide information which is likely to be outside the ordinary experience and knowledge of the trier of fact. More than just helpful but not too strict too. - The TJ is in the best position to answer the question of if an expert evidence is necessary to counter the inference that delay can affect the credibility of the complainant. - The psychologist had special knowledge goes beyond the ordinarily knowledge and expertise of the jury. Confront the myths surrounding the way a child is suppose to react after a physical abuse. No ‘normal’ way of responding. - It’s not because it’s about normal human behavior than an expert can’t be necessary. Always apply the flexibility of the test of Mohan/Abbey. Social science should not be judged differently. Jurors don’t know everything there is to know about human nature. - Dissent (Major): The content of the expert evidence admitted in this case was not unique or scientifically puzzling but was rather the proper subject for a simple jury instruction. - Necessity i.e wheter the expert will provide information which is likely to be outside the ordinary experience and knowledge of the trier of fact. - The psychologist had special knowledge goes beyond the ordinarily knowledge and expertise of the jury. Issue Decision Reasoning Ratio Canada R v K(A) (1999) Facts Accused charged with sexually assaulting children in his family. Crown want to adduce expert opinion to 1) to show that the complainants show behavioral patterns consistent with child abuse and 2) to explain that certain behaviours by the complainants (such as delayed disclosure after a period of denial of the abuse) were not unusual for victims of sexual abuse. What is the ‘necessary’ criteria limits? - The proposed expert opinion evidence must not only be relevant and worth receiving as discussed above, it must be necessary to assist the trier of fact. If the trier of fact can form his or her own conclusions on the facts without help, the opinion of an expert, even thought it may be relevant, is unnecessary and inadmissible. - Alternatives questions that should be asked: a. Will the evidence enable the trier of fact to appreciate the technicalities of the matter in issue? b. Will it provide info outside of the experience of the average juror (or trier of fact)? c. Is the trier of fact likely to form an incorrect opinion without the evidence? Issue Reasoning - In a case of credibility, let’s not forget that this is a question reserved to the trier of fact and not of a proper subject of a witness’s behavior. Evidence tendered to show that is not unusual for sexual offence complainants to delay reporting incidents of abuse may be admissible, if it meets the criteria in this particular case. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi But, any evidence tendered to show directly or indirectly that the complainant is more or less likely to be telling the truth due to the delay is inadmissible and is not the proper subject of an expert testimony. K(A) Notes Charron provided the following outline for the relevance and necessity factors: Relevance Does the expert opinion relate to a fact in issue? Does it tend to prove the fact? Is the evidence sufficiently probative to warrant its admission to prove that fact? a) To what extent is the opinion founded on proven facts? b) To what extent does the evidence support the inference sought to be obtained from it? c) To what extent is the matter in issue? d) To what extent is the evidence reliable? e) What is the level of complexity of the evidence? Is it comprehensible or likely to confuse the jury? f) To what extent is it controversial? Will it require extensive cross or the calling of other experts? Necessity Will the evidence enable the trier of fact to appreciate the technicalities of the matter in issue? Will it provide info outside of the experience of the average juror? Is the trier of fact likely to form an incorrect opinion without the evidence? Is the need for the evidence sufficient to overcome its potential prejudicial effect? a) Is there other evidence available to determine the issue in question? b) What is the level of complexity of the evidence? c) Easily understood or likely to confuse? - The Abbey reformulation of the precondition that the expert opinion be a matter which is properly the subject of expert evidence is understand as requiring that the trier of fact would be unable to come to a proper decision in the absence of the expert opinion evidence. In Lavallée (see below), Wilson clarify that human science often required expert too. Not only engineering and pure science. « Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it ? The average member of the public (…) » can be forgiven to think that this syndrome seems illogical. Particular risk with myths and stereotypes. - The expert evidence is then necessary because without it, the reasonable man can’t make a proper judgement. - In cases such as these (Lavallée), admission of expert evidence can be properly admitted when: 1. Expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of a lay person 2. It is difficult for lay person to comprehend the battered-wife syndrome 3. Expert evidence can assist the jury in dispelling these myths 4. Expert testimony relating to the ability of an accused to perceive danger from her mate may go to the issue of whether she ‘reasonably apprehended’ death or grievous bodily harm on a particular occasion 5. Expert evidence pertaining to why an accused remained in the battering relationship may be relevant in assessing the nature and extent of the alleged abuse 6. By providing evidence as to why accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killer her batterer was the only way to save her own life - Ultimately, it is up to the jury to decide whether, in fact, the accused’s perceptions and actions were reasonable. In that sense, expert evidence does not usurp that function of the jury. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi 4. Qualifications - An expert witness must be shown to have acquired special or peculiar knowledge throught study or experience in respect of the matters on which he or she undertakes to testify (Mohan). This criterion has tended to be interpreted leniently by courts, and few experts witnesses fail to meet this threshold (although experts are frequently found to be unqualified in respect of some part of their evidence. Canada White Burgess Langille Inman v Abbott and Haliburton Co (2015) Facts - The plaintiffs sued the former auditors of their company for professional negligence. The defendants brought a motion for summary dismissal. To resist the motion, the plaintiffs commissioned an expert from an accounting firm in forensic accounting to opine on the standard of care. -The appellants brought a preliminary motion to have her evidence struck on the basis of a reasonable apprehension of bias. They argued that the plaintiffs started the action after they had retained auditors from a different branch of an accounting firm to perform various accounting tasks and which in their view revealed problems with the defendants' previous work. The defendants argued that there was a reasonable apprehension that the expert from would be biased because of the risk that her firm would itself be sued if her evidence was rejected, or if she changed her evidence. - The motion was granted at first instance, but a majority of the Court of Appeal allowed the appeal, concluding that the motions judge erred in excluding the affidavit What is the standard for independence and impartiality requirement? - The duty to provide independent assistance to the Court by way of objective unbiased opinion has been stated many times by common law courts around the world. - Lots of territories have formal rules that requires witnesses to comply with their duty to the courts. Ex: Ontario Rules of Civil Procedure: « provide opinion evidence that is fair, objective and non-partisan ». His duty is to the courts and not to the parties. Must deliver his statement objectively, impartially and thoroughly. - « I would hold that an expert’s lack of independence and impartiality goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted. » - “Expert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If a witness is unable or unwilling to fulfill that duty, they do not qualify to perform the role of an expert and should be excluded.” The admissibility of the evidence should be scrutinized at the time it is proffered, and not allow an easy entry (…) If he doesn’t qualify to these criteria, an expert is not fitted to give his expert opinion. - This concern should be address initially in the ‘qualified to perform the role of an expert’ element of the Mohan framework. The expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish tha this threshold is met. R. v. McIntosh: Is this qualification standard too low? Does the Court abdicates his fact findings role to expert? Issue Reasoning Ratio Note 5. Other Exclusionary Rules - Normally, to be admit, an evidence must not be excluded by an exclusionary rule or must be within an exception. There needs to be exception for each exclusionary rules that applies. But in case of interaction between hearsay and expert opinion evidence, it is relaxed. Canada R v Abbey (1982) Facts - Accused was charged with importing cocaine and possession of cocaine for the purpose of trafficking. Both Crown and defendant’s psychiatrist agreed that the accused suffered from a disease of the mind known as hypomania, but they differed regarding whether or not he was capable of appreciating the nature and quality of his acts. They did agree that he knew that what he was doing was wrong. Evidence showed that the accused had a delusion that he was in receipt of power from an external source and that he thought this source would protect him from punishment - TJ give effect to that defence and the BC dismissed the appeal. 2021/09/20 Evidence Issue Decision Reasoning Ratio Nadya Goorachurn Walid Hijazi - The Crown appealed on the basis that the TJ had erred in treating hearsay evidence conveyed by the psychiatric witnesses as proof of the truth of its content. - What is it that an accused must fail to appreciate before he can be found legally insane.Trial judge erred in holding that a person who by reason of disease of the mind does not ‘appreciate’ the penal consequences of his action is insane within the meaning of s 16(2)] ? - The Crown contends that the TJ misdirected himself with respect to the use which could be made of hearsay evidence introduced during the testimony of the psychiatrists who were called as witnesses he would have accepted and treated as factual much of the hearsay evidence given by the expert opinion. - Exception to the exception: expert witnesses may testify to their opinion on matters involving their expertise and may also, incidentally, base their opinions upon hearsay. - An expert is there to give an opinion. And the opinion more often than not will be based on second-hand evidence. This is especially true of the opinions of psychiatrists. Thus, an expert opinion based on second-hand evidence is admissible, if relevant. The expert is authorized to give the circumstances on which is opinion is based. BUT It is not in order to establish the veracity of the second-hand evidence then it’s not hearsay evidence. - The statements on which such opinions are based are not admissible in prrof of their truth but rather as indicating the basis upon which the medical opinion was formed in accordance with recognized professional procedures. - When such testimony is admitted, careful charge to the jury by the judge or direction to himself is essential. - « In my view, the trial judge erred in law in treating as factual the hearsay evidence upon which the opinions of the psychiatrist were based. - A delusion which renders an accused incapable of appreciating that the penal sanctions attaching to the commission of the crime are applicable to him does not go to the mens rea of the offence, does not render him incapable of appreciating the nature and quality of the act, and does not bring into operation the ‘first arm’ of the insanity defence (not guilty because of a failure to appreciate the nature and quality of an act) - The hearsay rule does not operate to exclude such evidence because it is not admitted to prove the fact of what the expert has been told. Canada R v Lavallée (1990) Facts - L had been with her common-law partner for 3-4 years. It was a frequently violent relationship. One night, he beat her up, handed her a gun, and said that if she didn’t kill him, he would come back later and kill her. She blew the back of his head off while he was leaving the room. - The jury acquitted. The TJ allowed evidence of a psychiatrist who had interviewed her and her mother, reviewed the police file, and reviewed her hospital file. She did not testify. His testimony was hearsay. The crown moved to have the entire testimony withdrawn because it was unnecessary and that he should not have testified as to her credibility, as she never took the stand. The TJ ruled that the concern could be better addressed though a proper instruction - Was the evidence admissible? Was the TJ’s charge proper? Yes, yes. Wilson - As stated first in Kelliher and then by Dickson J. in Abbey, the function of expert evidence is to provide ready-made inferences for triers of fact on matter outside of their experience. There is a long-standing recognition of the admissibility of psychiatric evidence. - Ratios of Abbey: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based. 3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion. 4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. Importance of the instruction of the judge: p. 291-292. « In my view, as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the TJ cannot subsequently instruct the jusry to completely ignore the testimony. The judge Issue Decision Reasoning 2021/09/20 Evidence Ratio Nadya Goorachurn Walid Hijazi must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion. » Where the factual basis of an expert’s opinion is a mélange of admissible and inadmissible evidence the duty of the TJ is to caution the jury that the weight attributable to the expert testimony is directly related to the amount and quality of admissible evidence on which it relies. Evidence obtain in his expertise: A physician, per example, determines daily questions of immense importance on the basis of the observations of colleagues, often in the form of second or third hearsay. If a Court would ignore those, it would gives no credit to all the circumstantial guarantee of trustworthiness that surround it. Evidence obtain by a party: A source of information way more suspect. Then the court need independent proof of that evidence. This needs to be reflected in the weight to be given to the opinions. Often, it’s in between, and the weigth given to that information must reflect it. - Here, for the s. 34(2) defence, she needs to establish both a reasonable fear for her own life and a reasonable apprehension that her act was the only option. - Here, the testimony can shed light on why her apprehension of death would be reasonable even though it was not “imminent”. It can also explain why she would feel so trapped as to not apprehend other alternatives. - So, the evidence is admissible to assist the fact-finder in drawing inferences that a layperson would miss. This is applicable to battered-wife syndrome, as there as some stereotypes that need to be overcome. It can explain the nature of her fear and why she didn’t seek alternative recourses. - “Where an expert’s opinion is based in part upon suspect information and in part upon either admitted facts or fact sought to be proved, the matter is purely one of weight.” - Thus, the TJ did not err in admitting the evidence - Expert evidence is admissible to assist the fact-finder in drawing inferences that a layperson would miss. - This is applicable to battered-wife syndrome, as there as some stereotypes that need to be overcome. It can explain the nature of her fear and why she didn’t seek alternative recourses. C. Assessing the Benefits and Costs of the Evidence R v Abbey, 2009: Assessing the Benefits and Costs of the evidence: - Benefit side: probative potential of the evidence and the significance of the issue to which the evidence is directed. Need to focus on the reliability: reliability concerns not only the subject matter of the evidence, but also the methodology used by the expert, his expertise, and if he is impartial and objective. Similar evaluation than the jury at trial: but only if the evidence is worthy of being heard by the jury. - Cost side: various risks inherent in the admissibility of expert opinion evidence. The judge must act has a gatekeeper regarding the admission. Consumption of time, prejudice and confusion. Risk that a jury abdicate its fact-finding role. Risk that the expert is being unduly protracting and complicating procedure. Advantage for the party for the most resources. 1. Reliability A. Scientific Evidence - R v K (A) (1999): novel scientific theory must be subjected to special scrutiny to determine whether it meets a basic threshold of reliability before it is admitted. Even if it’s part of a recognized field, the judge must be vigilant. The state of scientific knowledge is fluid. Spectrum with junk science and quasi-certainty Whether the technique can be demonstrably tested, the existence of peer review for the theory or technique, the existence of publication, the testing or validation employing control and error measurement, and some recognition or acceptance in the relevant scientific field. - R v Mohan: Test for new scientific technique: The party needs to establish that the evidence is relevant and that it passes a minimum threshold of reliability. And the evidence must be outside the experience of the trier of fact. And it must be provided by a qualified expert. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi 1. 2. 2 questions pertinentes: Is the evidence likely to assist the jury in its fact-finding mission, or is it likely to confuse and confound the jury? Is the jury likely to be overwhelmed by the "mystic infallibility" of the evidence, or will the jury be able to keep an open mind and objectively assess the worth of the evidence? - The expert must be sure that his testimony won’t go beyond the strict frontiers of his expertise and what is allowed by the crown. And he can’t cross the barriers of scientific knowledge that has been permit by the Crown. B. Novel Scientific Evidence: An Unsettled Question? - Mohan stated that: « expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability ». C. Non-Scientific Expert Opinion Evidence - Listed of factors that may help a TJ to assess the reliability of evidence (Abbey, 2009): it is not a closed list!: 1. To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training? 2. To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field? 3. What are the particular expert's qualifications within that discipline, profession or area of specialized training? 4. To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available? 5. To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury? 6. To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced? 7. To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert? 8. To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises? To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process? A. Scientific Evidence Established a more rigorous approach to assessing the reliability of expert scientific evidence; articulates the criteria by which reliability of scientific evidence should be assessed. US Daubert v Merrell Dow Pharmaceuticals Facts Daubert and Schuller had been born with serious birth defects. They and their parents sued Merrell Dow Pharmaceuticals Inc., claiming that the drug Bendectin had caused the birth defects. Merrell Dow removed the case to federal court, and then moved for summary judgment because their expert submitted documents showing that no published scientific study demonstrated a link between Bendectin and birth defects. Daubert and Schuller submitted expert evidence of their own that suggested that Bendectin could cause birth defects. Daubert and Schuller's evidence, however, was based on in vitro and in vivo animal studies, pharmacological studies, and reanalysis of other published studies, and these methodologies had not yet gained acceptance within the general scientific community. S0 excluded. What is the standard for admitting expert evidence? - In a 1923 case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the D.C. Circuit held that evidence could be admitted in court only if "the thing from which the deduction is made" is "sufficiently established to have gained general acceptance in the particular field in which it belongs." - The plaintiffs successfully argued that after Congress adopted the Federal Rules of Evidence in 1975, Frye was no longer the governing standard for admitting scientific evidence in trials held in federal court. Issue Reasoning 2021/09/20 Evidence Ratio Notes Nadya Goorachurn Walid Hijazi - Rule 702 of the Federal Rules of Evidence provides (in part): If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise... The text of Rule 702 did not make admissibility of expert testimony depend on general acceptance, and there was no evidence that Congress intended to incorporate a general acceptance standard into Rule 702. Frye made 'general acceptance' the exclusive test for admitting expert testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials." - Three key provisions of the Rules governed admission of expert testimony in court. 1. First, scientific knowledge, meaning that the testimony must be scientific in nature and must be grounded in "knowledge." Of course, science does not claim to know anything with absolute certainty; science "represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement." The "scientific knowledge" contemplated by Rule 702 had to be arrived at by the scientific method. 2. Second, the scientific knowledge must assist the trier of fact in understanding the evidence or determining a fact in issue in the case. The trier of fact is often either a jury or a judge; but other fact finders may exist within the contemplation of the federal rules of evidence. To be helpful to the trier of fact, there must be a "valid scientific connection to the pertinent inquiry as a prerequisite to admissibility." 3. Third, the Rules expressly provided that the judge would make the threshold determination regarding whether certain scientific knowledge would indeed assist the trier of fact in the manner contemplated by Rule 702. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." This preliminary assessment can turn on whether something has been tested, whether an idea has been subjected to scientific peer review or published in scientific journals, the rate of error involved in the technique, and even general acceptance, among other things. It focuses on methodology and principles, not the ultimate conclusions generated. - The Court stressed that the new standard under Rule 702 was rooted in the judicial process and intended to be distinct and separate from the search for scientific truth. "Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. . - « We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes. » - Two requirements: Whether the expert is proposing to testify to; 1. Scientific knowledge, that 2. Will assist the trier of fact to understand or determine a fact in issue. - This reliable foundation test was adopted by the Canadian Court in R v J-L J, 2000. Factors listed are pertinent. Not only useful when evaluating a new science, but also when the technique is not new, when use for a novel purpose per example. E.g. Expert opinion evidence will be treated as novel if it constitutes a new application of pre-existing techniques. B. Novel Scientific Knowledge Canada R v Trochym (2007) Facts Case of murder. The police asked the neighbor to undergo hypnosis to improve her memory. During hypnosis session, she stated that the accused had arrived to the apartment on the date of the murder. -TJ held that the witness could testify in accordance with her hypnotically enhanced recollection. What is the threshold reliability of a new scientific technique? - « Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. Thus, the admissibility of scientific evidence is not frozen in time. » - « While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. » - A party wishing to rely on novel scientific evidence must established that it is sufficiently reliable (Mohan). The 4 step test : Issue Reasoning 2021/09/20 Evidence Ratio Nadya Goorachurn Walid Hijazi 1. whether the . . . technique can be and has been tested [;] 2. whether the . . . technique has been subjected to peer review and publication [;] 3. the known or potential rate of error . . .; and, 4. whether the theory or technique used has been generally accepted. . . . - Techniques that are sufficiently reliable for therapeutic purposes are not necessarily sufficiently reliable for use as evidence in a court of law where an accused’s liberty is at stake. - Application of the test to hypnosis: not sufficiently reliable. Perhaps most troubling is the potential rate of error in the additional information obtained through hypnosis when it is used for forensic purposes. At the present time, there is no way of knowing whether such information will be accurate or inaccurate. Such uncertainty is unacceptable in a court of law. While hypnosis has been the subject of extensive study and peer review, much of the literature is inconclusive or highly contradictory regarding the reliability of the science in the judicial context. Dissent (Bastarache) - This technique has been used for more than 30 years in Court… It is not a new science. - In Canada, the trend has always been to hold a voir dire examining the entire factual context surrounding the hypnosis evidence, with experts called to discuss the science of hypnosis and give their opinion as to whether the evidence in issue is sufficiently reliable to be admitted. (…) Clearly, the use of hypnosis evidence has been put to judicial scrutiny. - J.-L.J. was not intended, as my colleague appears to suggest, to set down a rigid formula where the results must be proved beyond a reasonable doubt before scientific evidence can be admitted. (…) Well-established scientific methods accepted by our courts do not need to be systematically reassessed under J.-L.J. - Also, the test of the majority requires a quasi-consensus for the scientific community, which was reject in Daubert for the ‘reliable foundation’ test (confirmed in Mohan) All testimony by a witness on matters covered during hypnosis is absolutely inadmissible. D. The Ultimate Issue - The ‘ultimate issue’ rule is the proposition than an expert witness may not offer testimony that touches upon the ultimate question that must be decided by the trier of fact. The closer the expert evidence is to the ultimate issue, the more strictly the tests of necessity and reliability must be applied. If there is expert assistance, the TJ must necessarily instruct the jury that he the final determination of the outcome. 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 8 Hearsay Introduction Definition - Hearsay evidence is any statement, either written or oral, which was made out of court, but is presented in court to prove the truth of that statement Subramanian v Public Prosecutor (1965) - Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceedings in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein. Canada Subramanian v Public Prosecutor (1965) Facts Accused was convicted of being in possession of 20 rounds of ammunition, contrary to the Emergency Regulation 1951 of the Federation of Malaya and sentenced to death. He put forth a defence of duress saying that terrorists made him hold the ammunition for them to use. At trial the accused described how he was forced to accompany the terrorists, and the judge held all conversation with the bandits as inadmissible hearsay evidence. Should the evidence have been admitted? Did the exclusion of the evidence prevent the accused from advancing his defence of duress? Yes, yes. - A statement is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. - It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. - The fact a statement was made can be frequently relevant in considering the mental state and conduct of the witness or of someone else in whose presence the statement was made. - In this case, statements may have been made to the accused by the terrorists which, true or not, if they had been believed by the accused, might have reasonably induced in him an apprehension of instant death if he failed to conform to their wishes. Basic principle of hearsay. Issue Decision Reasoning Ratio Subramanian Notes In Subramaniam, it is held that an out-of-court statement that is offered just for the fact that it was said and not for the truth of its contents, is NOT hearsay and is therefore admissible. Ex: domestic violence case in which a non-party reported the abuse to the police. The fact that the call was made can be admitted to explain why the police went to the house (though NOT to show that the abuse actually occurred – that would be offering it for the truth of its contents). When you’re admitting evidence like this, the idea is that you can assess the credibility of the witness testifying to it (e.g. the police officer on the stand). Again, the only thing you’re using the evidence for is to show it happened, not for its truth. Evidence offered for the fact that it was said can be relevant to show things like state of mind… Dangers of Hearsay - Dangers of an out of court statement being admitted include: Impossibility of cross-examination; cannot assess credibility of witness, through: 1. Demeanour 2. Sincerity 3. Use of language 4. Memory 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi 5. Perceptual ability In order to impeach the credibility of the witness - Compromise trial fairness - Why is hearsay an issue, but describing events for example, are permitted? Possibility of mishearing Possibility of misunderstanding Two levels of interpretation; hearing the statement and recounting it. Possibility of lying; easy to fabricate Possibility of motive distorting recounting of statements Hearsay Elements of Hearsay 1. A declarant (who does not testify) 2. A recipient (who does testify) 3. A statement (that is being tendered) and 4. A purpose for introducing the statement (proof of the truth of its content) - The prohibited purpose consists of admission for the purpose of proving the “truth” of its contents - Otherwise, it is admissible evidence; Statements that are used to show the recipient had notice, knowledge, or motive; - Traditionally hearsay applies to oral statements and written statements. While “statements” are usually in the form of spoken or written words it will include conduct that communicates meaning such as a head shake or nod. R v Khelawon (2006) Implied assertion - An implied assertion (implied hearsay/hearsay by conduct) is act or utterance that conveys some information to the recipient in an implied manner. - Such conduct can include: Nodding the head Pointing to someone in accusation Pointing at something Shrugging shoulders Showing something to someone - Courts do not make a distinction between implied assertions and explicit hearsay R v Baldree Canada R v Baldree (2013) Facts - Two officers responded to a suspected break-in at an apartment. The officers entered and immediately detected an odour and discover drogues. The police seized from Baldree (the person who answered) a cellular telephone and some cash found in his possession. - At the police station, Baldree’s phone rang and an officer answered it. At trial, the officer testified that the caller asked for Baldree and requested an ounce of marihuana for the price of $150. He agreed to deliver the drugs at the price that Baldree usually charged. As part of the transaction, the caller gave his address. The police made no effort to locate or interview the caller and he was not called as a witness at trial. - Counsel for Baldree promptly objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed. Having concluded that the officer’s testimony was not hearsay, the trial judge found it unnecessary to weigh its probative value against its prejudicial effect. Whether the exclusionary rule that apply against hearsay applies to “express hearsay” only, or to “implied hearsay” as well. Yes - No evidence is hearsay on its face. As mentioned at the outset, its admissibility depends on the purpose for which it is sought to be admitted. Evidence is hearsay — and presumptively inadmissible — if it is tendered to make proof of the truth of its contents. Issue Decision Reasoning 2021/09/20 Evidence Ratio Nadya Goorachurn Walid Hijazi - The defining features of hearsay are (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant - In short, hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion. Apart from the inability of the trier of fact to assess the declarant’s demeanour in making the assertion, courts and commentators have identified four specific concerns. They relate to the declarant’s perception, memory, narration, and sincerity: Khelawon, Express or implied hearsay both purports to prove the truth of what the person not called as a witness is alleged to have asserted. With respect to their logical relevance, there is thus no substantive distinction between express and implied hearsay. The principled reasons for their presumptive inadmissibility apply equally to both. In both instances, the relevance of the out-of-court statement is not that the statement was made, but rather what the content of the statement purports to prove. And, in both instances, what the statement purports to prove is the truth of what the persons not called has a witness is alleged to have asserted, expressly or by implication. Same dangers: risk of misperception, unintentionally or knowingly misleading manner, wrong memory, etc. - Ce ouï-dire est qualifié d'implicite puisqu'il ressort implicitement de la conversation que l'Intimé est un vendeur de drogue, même si l'inconnu qui a appelé n'a pas spécifiquement mentionné ce fait. - In this case, the Crown adduced the evidence as proof of the truth of its contents. - The Crown essentially asked the Court to conclude that the unknown caller intended to purchase marijuana from Baldree because he believed him to be a drug dealer. - The relevance of the statement thus hinges on the truth of the declarant’s underlying belief. Any inference can be drawn from the statement necessarily assumes its veracity. Even if the caller was entirely sincere in his belief that Baldree was a drug dealer, that did not address why the caller believed what he believed — and whether his belief was in fact true or not. « Had the caller stated that he wanted to buy drugs from Mr. Baldree because Mr. Baldree sells drugs, this would have amounted to an express assertion that Mr. Baldree is a drug dealer. Thus framed, the caller’s assertion would doubtless have constituted hearsay. But the caller stated instead that he was calling because he wished to purchase drugs from Mr. Baldree. His assertion that Mr. Baldree is a drug dealer was no less manifest in substance, though implicit rather than explicit in form. » - « There is no principled or meaningful distinction between (a) “I am calling Mr. Baldree because I want to purchase drugs from him” and (b) “I am calling Mr. Baldree because he sells drugs”. In either form, this out-of-court statement is being offered for an identical purpose: to prove the truth of the declarant’s assertion that Mr. Baldree sells drugs. » An out-of-court implied assertions by a person not called as a witness in the proceedings is characterized as hearsay where it is tendered in evidence to make proof of the truth of its contents. When is it not Hearsay? - While an out of Court statement offered for the truth of its contents is hearsay, an out-of-court statement that is offered for some other purpose is not hearsay and is not subject to the general exclusionary rule. Any out of court statement that is adduced simply to prove the statement was made is not hearsay. The statement is admissible as long as it is relevant. - Typical non-hearsay use of out-of-court statements include: Officers testifying to their reasonable beliefs - Non-Hearsay: State of mind Narrative purposes; to understand the witnesses’ reaction Traditional Exceptions to Hearsay - Statements that fall within the traditional categories of hearsay expectations are presumptively admissible. They can nevertheless be challenged under the principles of necessity and reliability - Traditional categories 1. Res Gestae, Spontaneous utterances and Dying declarations 2. Statements Against Interest Exception 2021/09/20 Evidence 3. 4. Nadya Goorachurn Walid Hijazi Co-Conspirators Exception to Hearsay; Carter exception, if hearsay is done by a co-conspirator to further the conspiracy, it is allowed to be used against all co-conspirators Admission of Hearsay Evidence at Preliminary Inquiry 1. Spontaneous Utterances (Res Gestae) - Spontaneous or excited utterances (res gestae) are a traditional class of exception to the hearsay rule Definition - Spontaneous exclamation made without premeditation or artifice and before the speaker had time to concoct something; Professor argues that indeed, heat of the moment can lead to unreliable statements; emotions are high Elements 1. There is a startling occasion 2. There is an utterance or statement made before there is time to fabricate 3. The utterance must relate to the startling occasion; and 4. The declarant must personally observe the matter of which they speak Examples - The risk of fabrication and deception is mitigated by stress or pressure of the act at the time of utterance - Res gestae would exist if the person yelled “FIRE” upon notice that a fire had broken out in a crowded movie theater. This declaration can be interpreted as proof that a fire actually happened. - “Put your hands in the air” during a hold up; Is it res gestae? I would argue no Dying Declarations - Dying declarations re only admissible where the declarant’s death is the issue of the case and where the statement speaks to the circumstances of the death Elements 1. The deceased had hopeless expectation of almost immediate death 2. The statement was about the circumstances of the death 3. The statement would have been admissible if the deceased had been able to testify 4. The offence involved the homicide of the victim R v Clark UK Ratten v Reginam (1972) Facts Husband accidentally shot wife. She called the police two minutes prior from the shooting. Issue Decision Reasoning Was the call admissible? Yes. The test for determining admissibility, as Lord Wilberforce framed it in Ratten v. The Queen, supra at pp. 389-90, is the following: “[T]he test should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location, while being relevant factors are not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.” - Considered res gestae; Shouting “get me the police please” shows victim’s state of mind just before fatal shooting. Ratio 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi 2. Statements against Interest Definition - An out of court declaration which is against the pecuniary or proprietary interest of the declarant has long been accepted as admissible evidence as an exception to hearsay rule Rationale - Confidence is placed in the probable trustworthiness of such statements primarily because it is assumed that one would not concede the existence of such a detrimental fact unless it were true. A second closely related reason is the improbability that one would consciously make an unfavourable statement falsely. It is essential that the deceased should have made a statement of some fact of the truth of which he had peculiar knowledge. - Professor states that this is not necessarily true; A mother could lie to protect their daughter Pecuniary Interest v Penal Interest - Statement against Penal interest may be admissible, but this is not the case in R v O’Brian. Canada R v O’Brian (1978) Facts Martin Edward O’Brien and Paul Jensen were jointly charged with possession of a narcotic for the purpose of trafficking. O’Brien was arrested and convicted; Jensen fled the country. Following O’Brien’s conviction, Jensen returned to Canada. He told O’Brien’s counsel, Mr. Simons, that he, Jensen, alone had committed the act. He agreed to testify to that effect. Before the hearing, Jensen died. Leave to adduce fresh evidence was obtained from the British Columbia Court of Appeal. Mr. Simons repeated Jensen’s statement before that Court. On the strength of Mr. Simons’ testimony the Court allowed the appeal and directed an acquittal. The substantial question upon which this Crown appeal turns is whether Mr. Simons’ evidence was inadmissible as hearsay. Is Jenson’s statement admissible, as an exception to hearsay of Statement against Interest (penal)? No, he admitted to the drugs being his only if it were assured it would not be used against him criminally. Mr. Justice McFarlane, of the British Columbia Court, was of opinion that the evidence of Mr. Simons was not hearsay. It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. This succinct formulation of the hearsay rule which one finds in Subramaniam v. Public Prosecutor, at p. 970, was repeated with approval in Ratten v. Reginam, at p. 805. The evidence of Mr. Simons was offered for the purpose of proving the truth of the matter asserted. It was sought, through that evidence, to prove that Jensen, and not O’Brien, had committed the act with which O’Brien stood charged, or at least to raise a reasonable doubt as to O’Brien’s guilt. That is the classic touchstone of inadmissible hearsay. Before this Court counsel for O’Brien sought to support the admissibility of Mr. Simons’ testimony as falling within an exception to the hearsay rule. It was contended that a hearsay statement by a deceased person against his interest constitutes such an exception. The exception rests upon necessity and presumed trustworthiness. The witness is dead; there is no other evidence available on the point. It is considered that declarations made by persons against their own interests are “extremely unlikely to be false” per Fletcher Jensen had consulted counsel. According to Mr. Simons’ notes of the interview, Jensen told him “no affidavits—O.K. to talk to Martin’s [O’Brien’s] lawyer—lawyer says to take Canada Evidence Act.” There was presumably always the possibility that the stay of proceedings against Jensen might be lifted—the record is silent as to the reason for the stay—but the entire circumstances in which the statement was made negative the conclusion Jensen apprehended exposing himself to prosecution. The statement was made in the privacy of Mr. Simons’ office. The public confession was to be in circumstances in which his words could not be used nor be receivable in evidence against him in any criminal trial. The guarantee of trustworthiness of a statement made out of Court flows from the fact that the statement is to the “deceased’s immediate prejudice.” To be admissible there must be a realization by the declarant that the statement may well be used against him. That is the very thing Jensen wished to avoid. He had no intention of furnishing evidence against himself. His obvious desire was not to create damaging evidence, detrimental to his penal interest. Yet, that is the very basis upon which admissibility of extra-judicial declarations of penal interest rests. In my opinion, the statements of Jensen to Mr. Simons failed to meet the requirements for admissibility. Viewed from Jensen’s subjectivity, the statements were not against interest. Failure to fall within the exception is, therefore, fatal to the admissibility of Mr. Simons’ hearsay. Statement against Penal Interest does not apply if the witness does not want the statement to be used against him criminally. Issue Decision Reasoning Ratio 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Canada R v Pelletier (1978) Facts Manslaughter charge. Accused attempts to introduce evidence of a statement made by D to police that it was D who assaulted the deceased, although he did so in self defense Is the statement of D admissible? Does it matter that the declarant’s statement is on its face exculpatory or inculpatory? Whether a declaration against penal interest was admissible as being more incriminatory than exculpatory and because, in the circumstances, the declarant was not available. Hearsay allowed within Statement against Penal Interest exception. - Considered D’s statement in its totality (with extrinsic evidence)—determined it was admissible evidence. D saying that he did something, but he has an excuse, still goes against his penal interest (1) Still allow this exception even where D is not dead (was outside the jurisdiction, whereabouts unknown) (2) Where some favourable aspect and some prejudicial aspect to statement, consider it in its entirety Issue Decision Reasoning Ratio Canada Lucier v R (1982) Facts Accused was charged with arson in the burning of his house. A friend of the accused, who was severely burned and died a few days later, made two statements at the hospital to R.C.M.P. officers admitting that he had personally set the house afire and had been hired by the accused to do so. At trial, the statements were admitted into evidence and the accused convicted. An appeal was dismissed by the Court of Appeal. Is the statement admissible under the Statement against Penal Interest Exception? No Having regard to the judgment of this Court in the Demeter and O’Brien cases, it must now be recognized that in a proper case, statements tendered on behalf of the accused and made by an unavailable person may be admitted at trial if they can be shown to have been made against the penal interest of the person making them; but neither the two cases to which I have just referred nor any of the wealth of authorities cited in the courts below apply such a rule to statements which have an inculpatory effect on the accused. On the contrary, wherever such statements have been admitted it will be found that they have an exculpatory effect. The difference is a very real one because a statement implicating the accused in the crime with which he is charged emanating from the lips of one who is no longer available to give evidence robs the accused of the invaluable weapon of cross-examination which has always been one of the mainstays of fairness in our courts. In the present case the statements made by Dumont which were tendered by the prosecutor are obviously inculpatory of the appellant and in my opinion this is not a “proper case” for admitting them so that the learned trial judge did err in permitting their introduction into evidence and I would accordingly allow this appeal on the first ground specified in the Notice of Appeal, quash the conviction and direct a new trial in accordance with the alternative relief sought by the appellant. Statement against Penal Interest cannot be raised to the exception of hearsay when the statement is inculpatory towards the accused. Issue Decision Reasoning Ratio Principled Approach - Based on the concepts of necessity and reliability - What is considered a necessity: Unavailable: dead, left the country, insanity reasons - Hearsay will be admitted when the judge believes the dangers of the hearsay have been mitigated; the evidence is reliable, and the dangers are not present. - These exceptions do not raise the concerns of absence of cross-examination, as they are inherently reliable 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Class 9 Hearsay: Principled Approach Recap - Historically, hearsay has been approached with caution, except for several exceptions; Generally, the exceptions all rested on one conclusion; it was trustworthy/reliable; - If Crown wanted to introduce hearsay, a voir dire is held to determine whether it is admissible; - In the past, when Crown wanted to introduce an out-of-court statement, it would be argued that it was hearsay by the defense; Crown would argue that it is non-hearsay; what is the purpose of introducing that the statement was made? Goes to the witness’s state of mind and post-behaviour; can establish narrative, and adds weight to the events that followed afterwards; Introduction to Principled Approach - Why did the Supreme Court open the door to hearsay in Khan? - The principled approach is an exception to the hearsay rule of inadmissibility; - Certain types of hearsay statements present minimal dangers and its exclusion would impede accurate fact finding - Two conditions: 1. Necessity 2. Reliability 1. Necessity - The declarant is not available to testify; Co accused cannot be compelled Dead Missing Forgetful Refusal to testify (found in contempt of court) Child (young, similarly to Khan) 2. Reliability - The evidence must pass a standard of threshold reliability before it can be admitted into evidence; - Threshold Reliability; Admissibility of the evidence, on which the judge pronounces themselves at the voir dire; “Gatekeeper” - Once it is in, the Ultimate Reliability is determined by the trier of fact - This requires that the evidence be sufficiently reliable to overcome the dangers arising from the difficulty of testing it; Because of the way in which it came about, its contents are trustworthy; “Inherent Reliability”, “Indicia” Circumstances permit the ultimate trier of fact to sufficiently assess its worth; Corroborative evidence - Its role was clarified in Bradshaw; 2.1 Threshold Reliability 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi 1) The statement is made under oath o solemn affirmation after a warning as to possible sanctions if the person is untruthful 2) The statement is videotaped or recorded in its entirety; demeanour is demonstrated; Without this, can argue that the full context of the statement is not present; 3) The opposing party has a full opportunity to cross-examine the witness of the statement - Circumstances in which the hearsay statement came about make it sufficiently reliable that contemporaneous cross-examination would add little, if anything, to the process; - Basis to rationally evaluate the statement, by the trial judge at the voir dire; Admissibility 2.2 Ultimate Reliability - Reliance of the evidence to determine the ultimate issue at trial - What degree the statement should be believed; - Requires consideration of the “entirety of the evidence” Canada R v Khan (1990) Facts A doctor is accused of sexually assaulting a very young girl. Four-year-old girl tells her mother after leaving doctor’s office that the doctor had promised her a lollipop if he let her do things to her – mother would not have known about such activities except for these statements. TJ decided that child was no competent to testify reliably, and the statements by the mother did not fall under any of the traditional hearsay exceptions. So TJ reject the statement. Can mother testify as to what daughter had told her outside office? Admissible as it was necessary and reliable McLachlin J: - The argument is to permit statements made by children regarding sexual abuse. Cannot extend spontaneous declaration rule – would be to distort that exception. The declaration was made too long after the act to fit into these exceptions to the hearsay rule. - McLachlin J adopts a more relaxed approach to hearsay – necessity and reliability. Is the statement necessary? – according to the test per Lord Pierce in Myers it was difficult to obtain other evidence. “The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary.” Is it reliable. Matters relevant here will vary and it should not be considered that all statements on sexual abuse should be considered reliable. « the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence should always be reliable » - “I conclude that the mother’s statement in the case at bar should have been received. It was necessary, the child’s viva voce evidence having been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting (i.e. no influence by mother). Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally, her statement was corroborated by real evidence.” [p. 548] (the real evidence being the semen stain) Flexibility - Hearsay evidence on child’s statement relating to a crime committed against themselves can be admitted (but not always) subject to necessity and reliability and such safeguards. Issue Decision Reasoning Ratio Khan Notes - The semen stain on her shoulder was corroborative evidence; - Building blocks for the principled approach; 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi - Strict rules must be relaxed especially in cases dealing with children and sexual abuse - Indicia that can help determine reliability: timing, demeanour, personality of the child, absence of any reason to expect fabrication in the statements, etc. - This case reflects the SCC’s frustration with the fact that children’s statements were systematically being excluded b/c of these rigid rules. - When there’s a case by judge and jury – judge first decides whether evdce is admissible, i.e. whether there are circumstantial guarantees of trustworthiness, not whether it’s true or not. Under old approach, judge would decide first whether something was admissible, and then would decide its reliability. Now, with principled approach, reliability is a part of admissibility. - The aftermath of this decision was uncertainty as to whether the principled approach applied only to this specific instance of children, or was meant to reform the law of evidence generally in regards to hearsay Canada R v Smith (1992) Facts Victim and accused had come from Detroit to Ontario and were supposed to be involved in a drug smuggling operation. Accused abandoned victim at a hotel when victim refused to get involved. Four phone calls made by the deceased to her mother. First two calls are admissible – call to ask for a ride after accused abandoned her; and then again to say she still needed the ride. Third was to say that victim was coming back after all with a lift of the accused. Fourth seems to put accused near location where deceased’s body was found, but that call is not in issue. Are the first three calls admissible? The first two yes, the third no because of lack of reliability - Hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible (i.e. necessary), where the circumstances under which the statements were made satisfy the criteria of necessity and reliability, and subject to the residual discretion of the trial judge to exclude evidence when its probative value is slight and undue prejudice might result to the accused. - Necessity means necessary to prove a fact in issue. Necessity i.e [two] alternatives: receiving the statements whitout the test (cross-examination, etc.) or leaving the knowledge altogether unutilized. If some substitute for cross-examination is found to have been present, there is ground for making an exception. In situations where the relevant direct evidence is not, for a variety of reasons, available (death, insanity, out of jurisdiction, emotional trauma, etc.) - If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established. Reliable doesn’t require to be established with absolute certainty. Certain categories already provide a functional substitute for cross-examination: No plan of falsification could be formed, Or when other considerations, such as the danger of easy detection or the fear of punishment would counteract the risk of falsification, Or when the statements was made under such conditions of publicity that an error would have been detected and corrected. The preliminary determination of reliability is to be made exclusively by the trial judge before the evidence is admitted Issue Decision Reasoning - In determining whether the phone calls were reliable, Lamer C.J. held that the first two were, but the third was not (the fourth was not in issue on appeal to this Court). - With respect to the first two: Necessity: She’s dead. Reliability: There was no reason to doubt K’s veracity — “[s]he had no known reason to lie” — and The traditional dangers associated with hearsay — perception, memory and credibility — “were not present to any significant degree” (p. 935) - With respect to the third phone call, however, Lamer C.J. held that 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi “the conditions under which the statement was made do not . . . provide that circumstantial guarantee of trustworthiness that would justify its admission without the possibility of cross-examination” (p. 935). First, he held that the decease may have been mistaken about Smith returning to the hotel, or about his purpose in returning (p. 936). Second, he held that she might have lied to prevent her mother from sending another man to pick her up. With respect to this second possibility, Lamer C.J. held that the fact that K had been travelling under an assumed name with a credit card which she knew was either stolen or forged demonstrated that she was “at least capable of deceit” (p. 936). Principled Approach elaborated in Khan is given a broader application. Ratio Smith Notes - In this case, the SCC gave what they said in Khan a broader scope – i.e. not just sexual assault. « (…) in our recent decision Khan, we indicated that the categorical approach to exception to the hearsay rule has the potential to undermine, rather than further, the policy of avoiding the frailties of certain types of evidence, which the hearsay rule was originally fashioned to avoid ». z « What is important in my view, is the departure signalled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence, subject to a limited number of defined categorical exceptions, and a movement towards an approach governed by the principles which underlie the rule and its exceptions alike. » Canada R v B(KG) (1993) Facts Three of B’s friends made statements in which they told the police that B was responsible for stabbing and killing the victim in the course of a fight. The three recanted their statements at trial. (They subsequently plead guilty to perjury.) The Crown sought to admit the prior statements to police for the truth of their contents. Although the trial judge had no doubt the recantations were false, he followed the traditional common law (“orthodox”) rule that the statements could be used only to impeach the witnesses. In light of the doubtfulness of the other identification evidence, the trial judge acquitted B. Can prior inconsistent statements by a witness other than the accused be admitted for the truth of their contents (as opposed to only to impeach the witness’s credibility) Yes, if necessity and reliability can be shown Lamer J: - Although the prohibition on hearsay was not always recognized as the basis for the rule, similar “dangers” were cited as reasons against admission, namely absence of an oath or affirmation, inability of the trier of fact to assess demeanour, and lack of contemporaneous cross-examination. It is the province and duty of the Court to formulate a new rule (p. 777). - A voir dire must be held to determine if there are any circumstances which call into question the reliability (see below) only if the party who want to introduce the evidence wants to make substantive use of the evidence (not only to impeach the credibility of the witness). - He held that “evidence of prior inconsistent statements of a witness other than an accused should be substantively admissible on a principled basis, following this Court’s decisions in Khan and Smith” with the requirements of reliability and necessity “adapted and refined in this particular context, given the particular problems raised by the nature of such statements” (p. 783). The focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence. There will be “sufficient circumstantial guarantees of reliability” to render such statements substantively admissible where: 1. The statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation (+ warning concerning possible consequence of lying) (alternative: statement made to a person in authority)) (pp217-219), 2. The statement is videotaped in its entirety (permits the TJ to evaluate the witness will he does his statements), and Issue Decision Reasoning 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi The opposing party, whether the Crown or the defense, has a full opportunity to cross‑examine the witness respecting the statement (this is an adequate substitute for not being able to cross-examine the witness at the moment where he first made the statement that he now wants to contradict) - Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires. - Necessity is not to be equated with the unavailability of the witness. Here, necessity is based on the unavailability of the testimony because of the witness recanting, not the witness. But depends on the facts of each case. If there is enough reliability, then necessity can be sufficient. - The trial judge still retains residual discretion to exclude the evidence, even if all the above requirements have been fulfilled. - The trial judge also must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct; confession rule rationale - Can only apply to cases where a confession is made by the declarant and not naked hearsay statements such as “Y said he saw X fire the gun”. Principled Approach analysis applied to Prior Inconsistent Statements, to be taken for the truth of their content. 3. Ratio B (KG) Notes Adverse witnesses 9 (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement; This touches credibility, but not the truth of the prior inconsistent statements - In this case, the necessity arose from the fact that the witnesses recanted the statements (not death); they were present at trial. -A Canada R v Hawkins (1996) Facts Hawkins, a police officer, was charged with obstructing justice and corruptly accepting money. His then girlfriend, G, testified at his preliminary inquiry. After testifying the first time, G brought an application to testify again and recanted much of what she had said, with explanations. By the time of the trial, Hawkins and G were married and therefore G was incompetent to testify under s. 4 of the Canada Evidence Act. The TJ held that the evidence was not admissible under the principled approach because it was not sufficiently reliable. Hawkins was acquitted. Is the girlfriend’s previous testimony admissible Yes, under the principled approach to hearsay - Court refuses to modify the common law rule of spousal incompetency as invited to do. - At CML a spouse is not compellable to testify against his/her spouse. - A spouse can be competent for the defence. Comes from ancient rule that accused is not competent to testify in his own defence. - A majority of the Court holds that the preliminary inquiry testimony could be read in at trial under the principled approach to the admission of hearsay. - Necessity: hearsay evidence will be necessary in circumstances where the declarant is unavailable to testify at trial and where the party is unable to obtain evidence of a similar quality from another source. Necessity must be assessed in a flexible way (not a closed enumerated list of causes. Example of this list is at s.715 C.c.) Necessity criterion can still be met even if the declarant is not unavailable in the strict physical sense. Issue Decision Reasoning 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi « (…) we are satisfied that G was unavailable to testify (…) The prosecution could not call upon G. for the purpose of the necessity criterion (spousal incompetency and no other means of presenting evidence of a similar value before the Court). If the witness is unavailable to testify, necessity is usually fulfilled – in this case court found witness “unavailable to testify”. - Reliability: the requirement of reliability will be satisfied where the hearsay statement was made under circumstances which provide sufficient guarantees of its trustworthiness. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.” (paragraph 75) The Tj continues to be vested with the residual discretion to exclude such statements where their PV is outweighed by their risk of prejudice. “...we find that a witness’s recorded testimony before a preliminary inquiry bears sufficient hallmarks of trustworthiness to permit the trier of fact to make substantive use of such statements at trial. The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross-examination, more than adequately compensate for the trier of fact’s inability to observe the demeanour of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility.” The substance of her incriminating statements represented party admissions (i.e H told me X) which fall under a recognized exception to the hearsay rule. The Tj erred in his application: applied an ‘ultimate reliability’ rather than a ‘thresold reliability’ Ratio - Dissent: Admitting this evidence violates the policy underlying s. 4 (Married witness’s) and should not be permitted Prior statement given at preliminary inquiry will often lead to admissibility under the Principled Approach Canada R v Khelawon (2006) Facts In May 1999, five elderly residents of a retirement home told various people that they were assaulted by the manager of the home Khelawon. At the time of trial, approximately two and a half years later, four of the complainants had died of causes unrelated to the assaults, and the fifth was no longer competent to testify. Only one of the complainants had testified at the preliminary inquiry. The central issue at trial was whether the hearsay statements provided by the complainants had sufficient threshold reliability to be received in evidence. TJ held that the hearsay statements from each of the complainants were sufficiently reliable to be admitted in evidence, based in large part on the “striking” similarity between them. He ultimately admitted the videotaped statements of Mr. Skupien and Mr. Dinino and found Mr. Khelawon guilty of the offences in respect of those two. He acquitted him on the remaining counts. At the Court of Appeal, the majority found that the statements should be excluded, and that Grossi J’s decision was at odds with Starr where Iacobucci held that “corroborating . . . evidence” should not be considered in determining threshold reliability. The Court also found that, although a trier of fact might conclude, using similar fact reasoning, that the same person committed all of the crimes, this is an issue going to ultimate reliability, not threshold reliability. Only the latter is relevant in determining admissibility. 1) What factors should be considered in deciding whether evidence is sufficiently reliable under the principled approach? 2) Can corroborating evidence be considered? 3) Should the complainants’ hearsay statements should be received in evidence? 1. Any relevant evidence 2. Yes 3. No should be excluded Charron J (everyone else concurring) - All relevant evidence is admissible. One exception to this rule is that hearsay is presumptively inadmissible. The central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. The essential defining features of hearsay are the following: Issue Decision Reasoning 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi 1. the fact that the statement is adduced to prove the truth of its contents and 2. the absence of a contemporaneous opportunity to cross-examine the declarant. Prior to admitting hearsay statements under the principled exception, the TJ must determine on a voir dire that necessity and reliability have been established. The onus is on the person who seeks to adduce evidence to establish these criteria on a balance of probabilities. - However, in some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. Thus certain exceptions were crafted for situations where the dangers of receiving the evidence were sufficiently alleviated. The principled approach must be applied with this same concern in mind. A hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. However, in certain cases, even if the two criteria are met, the TJ has the discretion to exclude the evidence where its PV outweigh his PE. - The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder. Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine. Starr: A distinction must be made between ‘ultimate reliability’ and ‘threshold reliability’. Only the latter is inquired into on the admissibility voir dire. - This distinction between threshold and ultimate reliability reflects the distinction between admissibility and reliance. Admissibility is determined by the trial judge based on the rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. - I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed (i.e. overturning Starr (para 215-217)). Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. All relevant factors should be admitted during the stage of admissibility including extrinsic circumstances, as corroborating or conflicting evidence. In considering admissibility we should consider whether there will be a possibility for the trier of fact to determine the accuracy of a statement despite there not being an opportunity for cross-examination « In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility — it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire. » “When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. - Functional Approach to a Hearsay Admissibility Inquiry: i.e. focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers 1. Is it hearsay? i.e. only if admitted for truth of contents and there is no opportunity for cross 2. If yes, then it is presumptively inadmissible. 3. Does it fall into one of the exceptions? If yes, then the evidence is admissible. Unless it falls in one of the rare exceptions 4. Under the principled approach, the reliability requirement is met by showing either that There is no concern about the truth of the statement because of the circumstances in which it came out; or Ex: Khan et Smith There is no concern because the truth and accuracy of the statement can otherwise be tested (e.g. the statement was made in formal proceedings) Ex: B.(K.G.) et Hawkins Mixed situations: In R. v. U. (F.J.) the striking similarities between the complainant's prior inconsistent out-of-court statement and the accused's independent statement were so compelling that the very high reliability of the complainant's statement rendered its substantive admission necessary 2021/09/20 Evidence Nadya Goorachurn Walid Hijazi Ratio But we can also imagine other circumstances: existence of corroborating evidence and other substitutes for adversarial process. Application to this case: - Although Mr. Skupien’s death before the commencement of the trial made it necessary to resort to his evidence in this form, the statement was not sufficiently reliable to overcome the dangers it presented. - There are no adequate substitutes here for testing the evidence and so the Crown could only rely on the inherent trustworthiness of the statements. The circumstances in which they came about did not provide reasonable assurances of inherent reliability. To the contrary, they gave rise to several serious issues including: whether Mr. Skupien was mentally competent, whether he understood the consequences of making his statement, whether he was influenced in making the allegations by a disgruntled employee who had been fired by Mr. Khelawon, whether his statement was motivated by a general dissatisfaction about the management of the home, and whether his injuries were caused by a fall rather than the assault. « The TJ’s finding that the evidence was sufficiently trustworthy was based on the ‘striking similarities’ between the statements of the 5 complainants. I too would not reject the possibility that the presence of striking similarity between statements from different complainants could well provide sufficient cogency to warrant the admission of hearsay evidence in an appropriate case. However, the statements of the other complainants posed even greater difficulties than M. Skulpien. » New approach to hearsay, clarifies its role and application. Khelawon Notes - Khelawon is the case to refer to in regards to hearsay, its definition, and the principled approach; - Reminds us that hearsay is generally inadmissible; It can only be admitted under the Principled Approach [102] Mr. Skupien’s hearsay statements were presumptively inadmissible. None of the traditional hearsay exceptions could assist the Crown in proving its case. The evidence could only be admitted under the principled exception to the hearsay rule. 1. Hearsay is presumptively inadmissible 2. Traditional hearsay exceptions must me assessed to determine whether it falls under one of them. 3. If it does not, the evidence can only be admitted under the principled exception to the hearsay rule. read 677-706
