Evidence
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Law 309 - Evidence INTRODUCTION .......................................................................................................................................................4 PURPOSES OF EVIDENCE LAW....................................................................................................................................5 ORGANIZATION OF THE LEGAL PROFESSION (GUEST SPEAKER) ................................................................................5 THE ADVERSARIAL SYSTEM ......................................................................................................................................6 Criticisms of the Adversarial System ...................................................................................................................6 SOURCES OF LAW OF EVIDENCE ................................................................................................................................7 Legal Ethics .........................................................................................................................................................7 CIVIL VS. CRIMINAL PROCEEDINGS ...........................................................................................................................8 THE TRIAL PROCESS ..................................................................................................................................................8 BURDEN AND STANDARD OF PROOF ................................................................................................................9 TYPES OF EVIDENCE: DIRECT AND CIRCUMSTANTIAL ................................................................................................ 10 EVIDENTIAL BURDEN .............................................................................................................................................. 11 When is it an issue? ............................................................................................................................................ 11 R. v. Arcuri (2001) (SCC) .................................................................................................................................. 11 Monteleone v. R. (1987) (SCC) – Old Authority ................................................................................................ 12 What is the test when the issue arises? .............................................................................................................. 12 To what extent can the judge weigh the evidence in these circumstances? ........................................................ 12 Affirmative Defences .......................................................................................................................................... 13 R. v. Cinous (2002) (SCC).................................................................................................................................. 13 R. v. Fontaine (2004) (SCC) .............................................................................................................................. 13 What is the proper procedure? .......................................................................................................................... 14 R. v. Rowbotham (1994) (SCC) .......................................................................................................................... 14 BURDEN OF PERSUASION ......................................................................................................................................... 14 Jury Instruction on the Meaning of “Beyond a Reasonable Doubt” ................................................................. 15 R. v. Lifchus (1997) (SCC) ................................................................................................................................. 15 R. v. Starr (2000) (SCC) ..................................................................................................................................... 15 R. v. W. (D.) (1991) (SCC) ................................................................................................................................. 15 PRESUMPTIONS ..................................................................................................................................................... 17 REVERSE ONUS PRESUMPTIONS .............................................................................................................................. 18 Post Charter: Oakes Test – sets out the Charter approach to the reverse onus problem .................................. 18 R. v. Whyte (1988) (SCC) ................................................................................................................................... 19 Chaulk, R. v. (1990) (S.C.C.) ............................................................................................................................. 19 MANDATORY PRESUMPTIONS .................................................................................................................................. 20 RELEVANCE AND DISCRETION TO EXCLUDE ............................................................................................. 20 RELEVANCE ............................................................................................................................................................. 20 Morris, R. v. (1983) (S.C.C.) .............................................................................................................................. 20 Probative Value.................................................................................................................................................. 21 Materiality.......................................................................................................................................................... 21 Lavallee, R. v. (1990) (S.C.C.) ........................................................................................................................... 21 Multiple Relevance ............................................................................................................................................. 22 SOCIAL CONTEXT EVIDENCE ............................................................................. ERROR! BOOKMARK NOT DEFINED. Lavallee, R. v. (1990) (S.C.C.) ........................................................................................................................... 38 R. v. S.(R.D.) (1997) (S.C.C.) ............................................................................................................................. 38 DISCRETION TO EXCLUDE ........................................................................................................................................ 22 Corbett, R. v. (1988) (S.C.C.) ............................................................................................................................. 22 Potvin, R v. (1989) (S.C.C.) ............................................................................................................................... 23 Seaboyer, R v. (1992) (S.C.C.) ........................................................................................................................... 23 Harrer, R. v. (1995) (S.C.C.) ............................................................................................................................. 24 EXCLUSIONARY RULES....................................................................................................................................... 25 CHARACTER EVIDENCE RULE .................................................................................................................................. 25 Character vs. Habit ............................................................................................................................................ 25 R. v. Watson (1997) (Ont. C.A.) - criminal ........................................................................................................ 26 What is character evidence? .............................................................................................................................. 27 Why does the common law view character evidence as problematic? ............................................................... 27 When will character evidence be admitted/excluded? ....................................................................................... 27 How might the accused lead good character evidence and thus put character in issue? .................................. 28 What form may character evidence take? .......................................................................................................... 28 R. v. Brown (1999) (Ont. CA) ............................................................................................................................ 31 R. v. Profit (1993) (SCC).................................................................................................................................... 31 How may the Crown respond when the accused puts their character at issue? ................................................ 28 SIMILAR FACT EVIDENCE ........................................................................................................................................ 29 Arp, R. v. (1998) (S.C.C.) .................................................................................................................................. 29 R. v. Handy (SCC) (2002) .................................................................................................................................. 30 Similar Fact Test ................................................................................................................................................ 31 CHARACTER EVIDENCE OF THIRD PARTIES ............................................................................................................. 32 Self-Defence ....................................................................................................................................................... 33 Sexual Assault .................................................................................................................................................... 33 Seaboyer, R v. (1992) (S.C.C.) ........................................................................................................................... 33 Darrach (2000) (SCC) ....................................................................................................................................... 35 MECHANICS OF PROOF ....................................................................................................................................... 35 FORMAL ADMISSION OF FACT ...................................................................................................................................... 35 JUDICIAL NOTICE..................................................................................................................................................... 36 Adjudicative Facts.............................................................................................................................................. 36 Legislative Facts ................................................................................................................................................ 37 Social Framework Facts .................................................................................................................................... 38 Lavallee, R. v. (1990) (S.C.C.) ............................................................................. Error! Bookmark not defined. R.D.S., R. v. (1997) (S.C.C.) ................................................................................. Error! Bookmark not defined. R. v. Spence (2005) (SCC) .................................................................................................................................. 40 Judicial Notice of Personal Knowledge ............................................................................................................. 40 Judicial Notice of Foreign Law .......................................................................................................................... 40 REAL EVIDENCE .................................................................................................................................................... 41 REAL EVIDENCE ...................................................................................................................................................... 41 DEMONSTRATIVE EVIDENCE ................................................................................................................................... 42 DOCUMENTS ............................................................................................................................................................ 43 Best Evidence Rule ............................................................................................................................................. 43 Aboriginal Oral Histories .................................................................................................................................. 44 PHOTOGRAPHS ......................................................................................................................................................... 44 VIEWS...................................................................................................................................................................... 45 WITNESSES .............................................................................................................................................................. 45 COMPETENCE AND COMPELLABILITY ...................................................................................................................... 45 Oaths .................................................................................................................................................................. 46 CHILDREN (UNDER 14) ............................................................................................................................................ 46 Mental Capacity ................................................................................................................................................. 47 SPOUSAL INCOMPETENCY RULE .............................................................................................................................. 47 Test for Spousal Incompetency: ......................................................................................................................... 48 SELF-INCRIMINATION ......................................................................................................................................... 49 BEFORE TRIAL ......................................................................................................................................................... 49 Common Law: Right to Silence (Turcotte) ......................................................................................................... 49 R. v. Turcotte (2005) (SCC) ............................................................................................................................... 49 Common Law Confession Rule .......................................................................................................................... 50 Charter Right to s. 7 (Hebert) ............................................................................................................................ 50 R. v. Hebert (1990) (SCC) .................................................................................................................................. 50 WITNESS TESTIMONY .............................................................................................................................................. 51 CEA s. 5 – Compels an Answer but Gives Use Immunity .................................................................................. 51 Charter s. 13 (Henry) – Incriminating Evidence Shall Not be used in Other Proceedings ............................... 51 R. v. Mannion ..................................................................................................................................................... 52 R. v. Kuldip (1990) ............................................................................................................................................. 52 R. v. Noel ............................................................................................................................................................ 53 R. v. Henry (2005) (SCC) – Leading Authority .................................................................................................. 53 Derivative Use Immunity.................................................................................................................................... 55 Drawing Adverse Inference................................................................................................................................ 55 R. v. Noble (1997) (SCC) ................................................................................................................................... 56 MANNER OF QUESTIONING ............................................................................................................................... 56 WHEN ARE LEADING QUESTIONS APPROPRIATE?...................................................................................................... 56 WHAT IS THE DIFFERENCE BETWEEN PRESENT RECOLLECTION REVIVED AND PAST RECOLLECTION RECORDED?..... 57 Videotaped Statements by Children ................................................................................................................... 59 WHAT ARE THE SCOPE AND LIMITS OF CROSS-EXAMINATION? ................................................................................. 59 Limits: guiding case is Lyttle ............................................................................................................................. 59 R. v. Lyttle (2004) (SCC) .................................................................................................................................... 59 Duty to cross—generally no duty to cross.......................................................................................................... 60 COLLATERAL FACTS RULE ...................................................................................................................................... 60 IMPEACHMENT ...................................................................................................................................................... 61 PRIOR INCONSISTENT STATEMENT .......................................................................................................................... 62 Impeaching your Opponents Witness ................................................................................................................. 62 Impeaching Your own Witness ........................................................................................................................... 63 BIAS ........................................................................................................................................................................ 64 CHARACTER OF WITNESSES..................................................................................................................................... 65 R. v. Clarke (1998) (Ont. CA) ............................................................................................................................ 65 Accused as a Witness ......................................................................................................................................... 65 DEFECTS IN THE CAPACITY OF A WITNESS .............................................................................................................. 66 SUPPORTING CREDIBILITY ............................................................................................................................... 67 USE OF EXPERTS ...................................................................................................................................................... 68 Marquard Distinction ........................................................................................................................................ 68 R v. Marquard (1993) ........................................................................................................................................ 69 DEMEANOUR AND CREDIBILITY .............................................................................................................................. 69 CORROBORATION .................................................................................................................................................... 70 Classic Rules of Corroboration ......................................................................................................................... 70 Modern Law of Corroboration ........................................................................................................................... 70 Vetrovec v. The Queen (1982) (SCC) ................................................................................................................. 71 HEARSAY RULE...................................................................................................................................................... 72 INTRODUCTION TO THE HEARSAY DANGERS ........................................................................................................... 72 IDENTIFYING HEARSAY EVIDENCE .......................................................................................................................... 72 R. v. Khelawon (2006) (SCC) ............................................................................................................................. 73 R. v. Tat (1997) (Ont C.A.) ................................................................................................................................. 73 APPROACHES TO HEARSAY...................................................................................................................................... 74 Khan, R. v. (1990) (S.C.C.) McLachlin J. .......................................................................................................... 74 Principled Approach .......................................................................................................................................... 74 R. v. KGB (1993) (SCC) ..................................................................................................................................... 76 Starr, R. v. (2000) (S.C.C.) ................................................................................................................................. 76 R. v. Khelawon (2006) (SCC) ............................................................................................................................. 77 Functional Approach – Khelawon ..................................................................................................................... 77 Foster on the Impact of Khelawon and Starr ..................................................................................................... 78 Determining Necessity ....................................................................................................................................... 78 EXCEPTIONS TO THE HEARSAY RULE ...................................................................................................................... 79 Admissions ......................................................................................................................................................... 79 CONFESSIONS .......................................................................................................................................................... 81 Mandatory voir dire for admissibility of “confessions”, may waive, burden of proof varies ............................ 83 R. v. Singh (2007) ............................................................................................................................................... 84 Common Law Confessions Rule ......................................................................................................................... 85 Charter Rights to silence .................................................................................................................................... 85 Prior Inconsistent Statements ............................................................................................................................ 85 R v. B(KG) “KGB” (1993) ................................................................................................................................. 86 CATEGORICAL EXCEPTIONS..................................................................................................................................... 86 OPINION EVIDENCE AND EXPERTS ................................................................................................................. 90 NON-EXPERT / LAY OPINION EVIDENCE .................................................................................................................. 91 EXPERT OPINION EVIDENCE .................................................................................................................................... 92 Novel Science ..................................................................................................................................................... 93 PRIVILEGE ............................................................................................................................................................... 96 Case-by-Case Privilege ...................................................................................................................................... 99 Informer Privilege ............................................................................................................................................ 100 Introduction Law of Evidence: provides lawyers with rules and principles that govern the admissibility of material offered by them in an effort to prove or disprove the existence of material fact. Rules and principles governing when information used to make propositions will not be admitted into the courtroom – inquisitive model Can think of 3 types of law: Substantive law i.e. legal obligations enforceable at law Procedural / adjectival law i.e. modifies / how to go about enforcing substantive law i.e. how to prepare your case and get it into court Law of Evidence i.e. what you can do when in court to prove your case i.e. what you can put before the trier of fact (some think of this as part of procedural law). The law of admissibility forms the biggest chunk of the law of evidence. Counsel should not introduce evidence during trial unless sure it’s admissible, otherwise should forewarn judge and jury will never see it if inadmissible. Separation between law and fact: Trier of law (the judge) decides questions of law (after hearing submissions from counsel on what they think the law is), including statutes, case law, constitution, questions of admissibility of evidence, and basically anything palatable to the judge (e.g. judge may consider writings of sociologists, historians, etc. in determining the law, such as the meaning of “equality”) Trier of fact (the jury, or if none the judge which is most common) decides what weight to put on evidence according to how persuasive they thought it was Facts + Law = Result (i.e. without evidence to prove the facts, even the best law will not help) Your “theory” = what you submit happened Purposes of Evidence Law Important to understand the purposes of the law of evidence so as to be able to attack/defend a particular rule, and because the S.C.C. takes a purposive approach to law in general. Keep unreliable evidence away from trier of fact, such as certain hearsay evidence, opinion evidence (easy to have, hard to test), character evidence, and involuntary statements by an accused (such as confessions). This is motivated by a number of purposes: Desire to maximize probability of determining the truth i.e. jury more likely to find the truth with reliable evidence Desire to ensure fairness to the parties, so in our adversarial system want to enable each party to put forward all relevant evidence they can muster but not fair if unreliable, and neither party has to put forward evidence that would help the other side (subject to rules such as discovery, production notices, etc). Can balance competing claims to fairness by comparing the probative value (i.e. what will the information prove) v. prejudice caused Desire to maintain public respect for the administration of justice, which can be furthered by disallowing unreliable evidence. Even if relevant and reliable might still exclude for social purposes that trump determination of the truth in this particular case. Organization of the Legal Profession (Guest Speaker) Lawyers Interest Groups – CBA, Trial Layers Association of BC, etc. – promote primarily the interests of lawyers and in some cases the public Pubic Interest Regulators – Law Society, Federation of Law Societies of Canada – s.3 mandated to uphold and protect the public interest in the administration of justice 31 benchers, 25 are lawyers (elected by the lawyers of that region); 6 nonlawyers appointed by the government as “watchdogs” Law Society Rules Professional Conduct Handbook Independence of lawyers and judges – self-governing, uninfluenced/untainted by the objectives of a larger body (government, big business, etc.) Solicitor/Client Privilege of communications for the purpose of seeking legal advice: Most important privilege/fundamental principle; suggested that the adversary system could not function without this privilege (clients must trust in lawyer in order to establish full defence) Must be protected unless absolutely necessary Exceptions: if the communications are in furtherance of a crime (particularly one causing serious bodily harm or death) or fraud, “innocence at stake exception”, “public safety exception” Duration: privilege lasts forever Litigation brief privilege: protects the information collected/put together for a case – this privilege ends once the file is complete The Adversarial System Two particular factors influencing evidence law were the adversarial trial system and the historical tension between judge and jury Adversarial trial system (generally English speaking world): Each must prepare and represent their own interests in the case, with an impartial adjudicator sitting back and listening. So assumes each party can gather all the necessary information i.e. assumes equal resources on both sides, which is course is not true. Many rules of evidence based on this – for example, you are given the chance to rebut medical evidence by bringing forward your own expert, but such experts can cost $500/hour preparation plus $5000/day in court. Thus huge disadvantage in the adversarial system if you do not have money. Assumes that both parties are willing to “play the game.” For example, an accused may refuse to participate which will make questionable the fairness of the proceedings (if they refuse to talk to counsel for example) or they may disrupt the proceedings (in which case they can be removed from the court room and the trial can continue) Contrast with inquisitorial system (Civilian, generally non-English speaking world): The state allocates resources to find facts (e.g. investigating magistrates) in criminal and some civil cases), based on the idea that the parties do not have equal access to resources. There is a tendency to assume that the inquisitorial system is bad and that the adversarial system is good; however, the resources problem only really arises in the adversarial system. If one party refuses to participate, an investigating magistrate (for example) can continue to search out the facts on their behalf. Criticisms of the Adversarial System Adversarial system is often criticized for not being sufficiently driven towards the finding of truth. In every other walk of life, we adopt some form of the inquisitorial, not adversarial system (e.g. science, police investigation, etc.) While truth is a supremely important objective of a trial, it is not the only one. Notion of the judge as a neutral referee: Not clear that this is the best way to get to the truth Assumption that the sides are equally matched Very difficult for a judge to be neutral when the sides are not in fact equally matched. Extent to which a judge can comment on the evidence in a jury trial: Strict division of labour – law if for the judge, the facts are for the jury In certain circumstances, judge must make some sort of comment The question becomes how heavily a jury should be influenced by the opinions of the judge Nature of facts and evidence: Presents a version of reality that is enormously filtered Eye witness testimony is highly unreliable Disclosure: In civil trials, there is almost complete disclosure However, in criminal cases, evidence is subject to many rules of disclosure Sources of Law of Evidence Sources of Canadian law of evidence are (in “trumping” order): Constitution, such as s.24(2) of Charter - evidentiary remedy arising when Charter right has been violated (“would” in s.24 means “could”) Statutory (more important in UK, and codified in US as the Federal Rules of Evidence FRE). For example: Canada Evidence Act (CEA) and BC Evidence Act (BCEA) – these statutes are not evidence codes, rather they are an overlay on the common law Make provincial laws of evidence applicable in federal proceedings as long as they don’t conflict with federal law. Criminal Code has specific provisions regarding evidence Almost all statutes dealing with dispute resolution have evidence provisions (such as the Young Offenders Act) Common law (law of evidence primarily judge-made here in Canada) Majority of law of evidence is derived from the common law! Salituro – changes that are made to the common law of evidence should be incremental, rather than sudden, sweeping changes. Legal Ethics Lawyers owe a duty to: their client, themselves, the court, the public, and their opponent. R v. Lawes CL rule: trial judges are entitled to express views/opinions on the evidence “as strongly as the circumstances permit” provided they do not have the effect of usurping the role of the jury by taking a contested issue away from them or subverting their independence CL recognizes that comments are both necessary and desirable R v. Stichcombe – duty to disclose evidence in criminal trials is not reciprocal – only the Crown has this duty to the accused. Cowles v. Balac – Rules of Professional Conduct (Law Society) 4.03(2) - A lawyer shall not approach or deal with a person who is represented by another lawyer, save through or with the consent of that party’s lawyer. Civil vs. Criminal Proceedings Generally rules of evidence are the same in civil and criminal proceedings (such as hearsay, opinion, solicitor-client privilege), although: Some rules are just for one type, but clear from their wording (e.g. involuntary statements by the accused only for criminal, rules of capacity for writing a will only for civil) Although same rules, they may be applied differently in terms of weights/balancing (only money is at stake in civil cases, but liberty in criminal so more concern about potential unfairness in the probative v. prejudice balancing). Similarly between evidence presented by Crown (bar perhaps higher so more likely inadmissible) v. evidence presented by accused (bar perhaps lower so more likely admissible). Rules of evidence in administrative tribunals generally very different – only considering courts here (in administrative tribunals the statute usually says rules of evidence do not apply but rather the tribunal may consider anything it thinks reliable, relevant and helpful, although statute probably will say that certain privileges remain such as client-solicitor) The Trial Process Pre-trial preparation including preparation of witnesses e.g. show them documents, practice direct and cross examination. Also consider: Legal constraints e.g. substantive law restrictions such as what questions can be asked of witnesses Ethical constraints of Law Society, client-solicitor privilege, etc. Will include pre-trial discovery (civil – broad test being potentially relevant, criminal discovery is governed by Stinchcombe, R. v. (1991) (S.C.C.)) Voir dire: Before the trial starts, certain evidentiary issues are determined by the trial judge in a voir dire (mini trial). Jury may be excluded or present. Jury selection – local courtroom procedures Plaintiff / Crown opening statement to jury of their “theory” outlining their argument – must be careful not to refer to any evidence that might be ruled inadmissible (otherwise opposing side can call for a mistrial). Generally, opening statements should be factual and not argumentative, although varies from jurisdiction to jurisdiction how this is measured. Plaintiff / Crown presents all their evidence i.e. has “carriage” of the trial (i.e. no sandbagging in Canada – cannot keep some key evidence and present it later to catch opponents off-guard). For each witness called (that gets over the hurdle of competency): Both the “stage” and the format of questioning are called direct examination or examination in chief. Must ask all questions of your witness at this time (again, no sandbagging) Cross-examination by opposing party (if they have questions of the witness) Each witness who takes the stand puts his or her credibility into issue, Cross examination designed to impeach (i.e. call into question witness’ credibility of) a witness may focus on a number of areas: Defendant/accused may motion judge to dismiss case due to lack of Crown / plaintiff evidence, known as “no evidence motion” or “motion for a directed verdict of acquittal”. Judge may grant directed verdict on all, part, or none of the case. No evidence motion / non suit application / directed acquittal: defence gets a chance to stand up and say that there’s not evidence in this trial, upon which a jury, even if they believed it all, could convict. Judge will either enter acquittal or for the defence. Insufficient evidence motion (really in civil cases): judge, on balance we don’t think they’ve met their burden. The evidence is insufficient to win the case. Requires the judge to weigh the evidence, it means that if you lose, you lose the case, the case is over. Defendant / accused now has carriage of the trial, and if it chooses to call evidence: Opening statement (unless earlier) Puts forward it’s entire case. For each witness, same as above (examination in chief, cross examine, reexamine, and possibly re-cross examination, etc.) Crown/ Plaintiff can reopen: Very rare, only if some new issue arises and the crown must respond. Then defence will get sir-rebuttal Plaintiff / Crown reply i.e. rebuttal evidence for addressing matters that came up in defense case that could not have been reasonably anticipated (e.g. if accused raised defense of necessity Crown can now rebut that) or if things are now admissible that were not before (e.g. if accused lead evidence of their character then their character is now a fact in issue and Crown can lead evidence to rebut. Closing addresses are made (i.e. counsel tells jury their “theory” and suggests how to use/evaluate the evidence and what inferences to make). Closing statements arise only if there’s a jury Civil: plaintiff always gives first then defence will respond. Criminal: s.651(3) CC says Crown goes last. If you don’t call any evidence and don’t present a case, you do get to go last. Burden and Standard of Proof Persuasive Burden: requires meeting a standard of proof Generally the party asserting a fact has the burden of proof to establish that fact Standard of proof: Formally in civil cases: balance of probabilities Formally in criminal cases: Crown has onus of establishing the case beyond a reasonable doubt. However, in practice the standard can vary e.g. higher in a civil case with serious stigma such as fraud or sexual abuse e.g. lower in minor criminal cases such as minor traffic offence Even if a case is meritorious, will still fail if it cannot meet the standard of proof - Fontaine Evidential Burden: There has to be some evidence to support a claim (not necessarily proof) before it may be brought before a court. If you want the trier of fact to consider something, then you have to have some evidence to support the claim. Fontaine v. ICBC Facts: Car accident, defendant’s husband was killed, very few details about the accident. Burden on the plaintiff to show that the defendant was negligent in driving. Held: Although the plaintiff’s claim may have been meritorious, since she was unable to meet the standard of proof, the case failed. Types of Evidence: Direct and Circumstantial Can alternatively classify evidence as direct or circumstantial: Direct: evidence, which if believed, establishes a material fact in issue (without any inferences needing to be drawn) – of course two different pieces of evidence may give contradictory direct evidence (e.g. one witness says the light was red, the other green, and if both equally believable the plaintiff in a civil case would lose since they have the burden of proof to show over 50% balance of probability – applies not just to testimony, but also to documentary evidence, such as a videotape showing it was green) Evidence by a witness who has themselves perceived a fact in a case (“I saw the accused…”) Trier of fact may then question the reliability of this evidence Physical ability to perceive (eyesight, hearing, etc.) Moral (motive to lie, character, etc.) Circumstantial: evidence, even if believed, that still requires the trier of fact to make an inference to establish a fact in issue (i.e. they have to reason) e.g. witness didn’t see the color of the light (the probandum – the fact in issue) but they did see traffic moving northbound (the probans – a fact to prove the fact in issue) suggesting the light in that direction was green Two step process: Even if the witnesses testimony is reliable, there is still the second difficulty of drawing an accurate inference More tenuous than direct evidence. However, it is still very important and a great number of criminal cases are decided based on circumstantial evidence. Evidential Burden When is it an issue? Sole issue: is there enough evidence adduced by the Crown/plaintiff to justify this matter proceeding to the next stage. Most important is at the close of the case for the Crown/plaintiff – at this point, the defence may move to question the strength of the evidence brought by the plaintiff by bringing a defence. Next stage: defence submitting a defence May have to decided whether or not to put the accused on the stand As a general rule, judges are not permitted to weigh the evidence in determining whether or not it should be placed before the jury. Stages of the trial where the evidential burden may arise: Preliminary inquiry – must make the decision whether or not to proceed to trial Arcuri – did the crown meet the evidential burden out of the preliminary inquiry? Extradition – judge at an extradition hearing must decide whether the person requesting the extradition has at least satisfied the evidential burden. (Sheppard) Move for summary judgment (judgment without trial) – Rule 18 Affirmative Defence Is there sufficient evidence to allow the affirmative defence to be put before the jury? As the more recent authority, Arcuri likely holds more weight, which may suggest that the Supreme Court is becoming more open to the reality that addressing the evidential burden may inevitably require some weighing of the evidence, at least where circumstantial evidence is involve. However, where there is direct evidence the traditional rule that the weighing of evidence is a matter for the jury may still prevail (Sheppard, Monteleone) R. v. Arcuri (2001) (SCC) Held: The question asked by a preliminary inquiry judge is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely: whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Test is the same whether the evidence is direct or circumstantial When no direct evidence is presented, the question then becomes whether the remaining elements of the offence may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because with circumstantial evidence there is an inferential gap between the evidence and the matter to be established. USA v. Sheppard (1977) Facts: Involved an application for extradition. The primary evidence for the extradition was based on an affidavit from a convicted drug dealer who had purchased immunity. The extradition judge rejected the evidence as unworthy of belief and refused the extradition. Held: The extradition judge overstepped his bounds in withdrawing the case from the jury – the weighing of the evidence is always a matter for the jury. Monteleone v. R. (1987) (SCC) – Old Authority Fact: Accused was charged with arson. Circumstantial evidence that he may or may not have started the fire intentionally. Judge gave a directed verdict of acquittal based on what he believed was a lack of evidence for arson (no evidence of financial difficulty or that he would substantially profit from the fire). Held: It is not open to the judge in a jury trial to consider the weight of the evidence. This is the function of the jury and it should be left to them. What is the test when the issue arises? Basic test = whether there is any evidence upon which a reasonably instructed jury could properly convict and that the judge is not to weigh that evidence. Focus on close of the Crown’s case and affirmative defence Criminal: Whether there is any evidence upon which a reasonable jury properly instructed could convict? (Sheperd, Arcuri) Not asking if the persuasive burden has been met, simply whether there is some evidence – not a matter of guilt or innocence. Not a question of whether the evidence is sufficient to convict, but whether the evidence exists. Civil: Calvin Forest Products v. Tembec Inc. (2006) (OCA) – similar Whether the inference that the plaintiff seeks in his or her favour could be drawn from the evidence adduced, if the trier of fact chose to accept it. Laufer v. Bucklaschuk (1999) (Man. CA) Two forms of non-suit: Case one: Crown or plaintiff have brought no evidence for a certain charge – there is no evidence that could lead a jury to convict – impossible to convict Case two: There is some evidence, but it’s so weak that there is no way that the jury could convict on it. To what extent can the judge weigh the evidence in these circumstances? Sheppard (extradition case) – trial judge should not weigh the reliability of the evidence at all Arcuri – the court conceded that its impossible for the trial judge to not engage in a limited weighing of the evidence. Supreme Court is hinting at allowing a limited amount of weighing, although they are very sensitive to the contention that this interferes with the role of the jury. Here the relationship between direct and circumstantial evidence become important: If the Crown has adduced direct evidence of guilt, then there is not much room for weighing evidence. But if the evidence is circumstantial, and you assume its true, you still have to address if the properly instructed jury would draw an inference – difficult to do without weighing the evidence In essence, in this test you are asking whether based on this evidence it’s possible that it could be used to establish guilt beyond a reasonable doubt – essentially bleeding into the persuasive burden. Affirmative Defences Cinous – Majority discusses the basic features of the air of reality test and maintains fairly staunchly that there should be no promulgation of different rules for different circumstances. The air of reality test – does this defence have an air of reality – this adds an objective test to the evidential burden. Supreme Court claims that the air of reality test is the same as the regular evidential burden test, although some would argue that the air of reality test is in fact more rigorous. R. v. Cinous (2002) (SCC) Facts: Accused was charged with first degree murder. He preemptively shot and killed another man who he feared might later have killed him, though there was no present danger at the time of the murder. The accused claimed self-defence. Issue: Whether there is an air of reality to the defence of self-defence in this case. Reasoning: There are two principles in the air of reality test: (1) A trial judge must put to the jury all defenses that arise on the facts, whether or no they are specifically raised by the accused. (2) A trial judge has a positive duty to keep from the jury defenses lacking an evidential foundation. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. It is an question of law whether the defence should be put before the jury Weak defenses should be withdrawn from the jury (in contrast to Fontaine, which states that there should be no weighing of the evidence by the judge) R. v. Fontaine (2004) (SCC) Facts: Accused charged with first degree murder. Claimed the defence of mental disorder automatism. Trial judge refused to put this defence before the jury. Held: Trial judge had erred in not putting the defence before the jury. If there is any basis on which the jury could be persuaded, the defence must be put to them. Weighing is not part of assessing whether the evidentiary burden has been met. What is the proper procedure? Difference between criminal and civil cases: Criminal: the judge must rule on a directed verdict for acquittal at that time that the motion is brought and cannot postpone the decision Rowbotham - the SCC modified the common law rule that if there is a jury trial, only the jury can convict or acquit. Instead, a trial judge who makes a motion for directed acquittal may now themselves acquit the accused. However, the judge may not direct the jury to convict. Civil cases: if you make a motion for a non-suit, you are electing to call no evidence. Non-suit: defendant makes an application for judgment at the close of the plaintiff’s case on the ground that the plaintiff has failed to make out a case for the defendant to answer. R. v. Rowbotham (1994) (SCC) Facts: Trial judge directed the jury to acquit the accused. The jury returned to say that some of them still believed that the accused was guilty. Held: Common law procedure with respect to directed verdicts should be modified: Trial judge should now say “as a matter of law, I am withdrawing the case from you and I am entering the verdict I would otherwise direct you to give as a matter of law.” After Morgentaler, the Criminal Code was amended so that where an appeal court overturns the acquittal by a jury, a new trial must be called. Burden of Persuasion Persuasive Burden: requires meeting a standard of proof Generally the party asserting a fact has the burden of proof to establish that fact Standard of proof: Formally in civil cases: balance of probabilities Formally in criminal cases: Crown has onus of establishing the case beyond a reasonable doubt. However, there is no absolute standard and degrees of satisfaction may vary along a continuum dependant on all the circumstances and consequences of a particular case. In practice the standard can vary: e.g. higher in a civil case with serious stigma such as fraud or sexual abuse e.g. lower in minor criminal cases such as minor traffic offence Jury Instruction on the Meaning of “Beyond a Reasonable Doubt” R. v. Lifchus (1997) (SCC) Facts: The trial judge instructed the jury that “beyond a reasonable doubt” was to be interpreted “in their ordinary, natural, everyday sense.” The accused was convicted of fraud. Court of Appeal: Trial judge had erred in instructing the jury in the meaning of “beyond a reasonable doubt” as an ordinary expression. New trial ordered. Held: Suggested a “model charge” which could provide necessary instruction as to the meaning of the phrase “beyond a reasonable doubt” “Even if you believe the accused is probably guilty or likely guilty, this 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 on 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.” R. v. Starr (2000) (SCC) Facts: Accused was convicted of two counts of first degree murder. As in Lifchus, the reasonable doubt instruction given to the jury was called into question. Held: Iacobucci offered the following advice: “A jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions in civil trials.” Inappropriate to define the standard of proof through examples from daily life – not easily quantifiable, cannot be explained by analogy Criminal standard of proof has special significance unique to criminal trials “An effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.” “As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for jury to convict.” R. v. W. (D.) (1991) (SCC) – Quoted in Lifchus to develop sample charge Facts: At trial, the accused was convicted of sexual assault. On appeal, it was objected that the trial judge erred in framing the core issue to the jury as whether they believed the complainant or whether they believed the appellant. Held: A trial judge may instruct the jury on the question of credibility along these lines: A reasonable doubt is not an imaginary or frivlous doubt, must bnot be based on sympathy or prejudice, but rather based on reason and common sense: (1) If you believe the evidence of the accused, obviously you must acquit. (2) If you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit. (3) Even if you are not left in doubt by the evidence of the accused, you must ask whether you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. Where there are two competing versions, the jury can’t be told which to believe – R v. W. (D.) R. v. Morin (1988) (SCC) Facts: Accused acquitted on charge of first degree murder. Argued that he was not the killer, but in the alternative, if he was the killer that he was not guilty by reason of insanity. Trial judge invited the jury to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence. Court of Appeal: Ordered a new trial. Held: Confirmed the order for a new trial: Trial judge erred in instructing the jury to apply the reasonable doubt standard to each individual piece of evidence. “Proof beyond a reasonable doubt does not apply to the individual items of evidence of the separate pieces of evidence in the case, but to the total body of evidence upon which the Crown relies to prove guilt. R. v. Quercia (1990) (Ont. C.A.) Facts: Accused was charged with aggravated sexual assault. At trial, he was convicted entirely on the basis of an eyewitness account by the victim. Issue: Was the verdict unreasonable. Held: The trial judge had properly and thoroughly instructed the jury on the lack of reliability of eyewitness testimony. Verdict was unreasonable since the evidence identifying the appellant was significantly flawed and standing alone could not justify a conviction. R. v. Munoz (2006) (Ont. S.C.J.) Facts: Two accused charged with trying to kill one of the accused’s wife. There was no direct evidence implicating the accused. Reasoning: Discusses the distinction before deductive and inductive logic: Process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience – the conclusion flows from an interpretation of that evidence derived from experience. A conclusion that may, not must be drawn in the circumstances A trier of fact may draw factual inferences from the evidence. The inference must however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. Inductive reasoning is a two step process: Basis for the inference must be established from the objective facts Then the inference must be drawn Very difficult to establish if the evidential burden has been met without considering the persuasive burden. Presumptions Presumption = process or a legal consequence whereby we infer the existence of a presumed fact when certain other basic facts have been established by evidence. A mere presumption involves no rule as to the weight of evidence necessary to meet it True presumption = devices which leave open to inquiry the matters presumed but which demand a finding if the opponent does nothing. There are different types of presumptions: Basic rules such as presumption of innocence Can think of rebuttable vs. irrebuttable presumptions, but really no irrebuttable presumptions since can always challenge them on Charter Ways to establish facts without evidence, e.g. Presumption of legitimacy of children i.e. a child born of a married woman is presumed the child of the woman’s husband Presumption of competence to execute a will R. v. Proudlock (1979) (SCC) Facts: Accused was charged with breaking and entering. S. 306(2) of the Criminal Code provides that “in the absence of any evidence on the contrary” breaking and entering is presumed to be with the intent of committing an indictable offence. Reasoning: The accused does not have to “establish” a defence of an excuse, all that he has to do is raise a reasonable doubt. The accused may remain silent, but if there is a prima facie case against them and there is no evidence adduced that could raise a reasonable doubt, they will face certain conviction. False Presumptions The term “presumption” is only legitimately used when the matter presumed is left open to further inquiry. R. v. Nicholl (2004) (Ont. CA) Facts: Accused was charged with possession of stolen property. Doctrine of recent possession – if you are found of the possession of recently stolen goods, the jury may infer that they knew the goods were stolen. Reasoning: Jury should be told that they may, not that they must, find the accused guilty in these circumstances. Comment: A process which permits, but does not demand, a finding does not deserve the label presumptions. Reverse Onus Presumptions Reverse onus presumptions impose a legal burden where opposing party must disprove a presumed fact on the balance of probabilities E.g. Motor vehicle offences – person found in drivers seat is assumed to have care and control of a vehicle unless accused can establish they were not. Problem: all reverse onus provisions that apply against the accused are prima facie in violation of the Charter s.11(d) assumption of innocence because there may be enough evidence to raise a reasonable doubt about existence of a presumed fact, but not enough to disprove it on the balance of probabilities (although often saved by s.1) E.g. Oakes, R. v. (1986) (S.C.C.): Narcotics Control Act s.8 said that a person found in possession of narcotics was presumed to be in possession for purpose of trafficking. S.C.C. held this provision was unconstitutional (violated s.11(d) and not saved by s.1). Now, Crown must prove this presumption with evidence. R. v. Appleby (1971) (SCC) – Pre-Charter Case Facts: Accused was charged with having care and control of a vehicle while his ability to drive was impaired by alcohol. Reasoning: Before the Charter, an accused could be convicted even if there was a reasonable doubt, but only because the Bill of Rights was a statute. Parliament could expressly enact a persuasive burden on the accused. Comment: Similarly, in Woolmington v. Director of Public Prosecutions (1935) (HL) (another pre-Charter case), the court found that there was a presumption of innocence unless there is a statutory provision on the contrary. Post Charter: Oakes Test – sets out the Charter approach to the reverse onus problem Oakes Test The Court presents a two step test to justify a limitation under s. 1: It must be "objectively relate to concerns which are pressing and substantial in a free and democratic society" Must be shown "that the means chosen are reasonable and demonstrably justified" – proportionality test (see below) Proportionality test: Was provision carefully designed to achieve the objective i.e. is provision rationally connected to the objective? The provision should impair the right or freedom in question as little as possible The effects of the provision should be proportional to the objective. R. v. Whyte (1988) (SCC) “The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists” – which is a breach of the presumption of innocence.” “If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt…” If the Charter is to mean anything, any statute that convicts people to which there must be a reasonable doubt, must be in violation of the Charter However, violations may be justified under the Oakes test Chaulk, R. v. (1990) (S.C.C.) Facts: Chaulk entered house, stole, and killed the occupant. He suffered from a paranoid psychosis and believed he was above the law. A week after the killing, he confessed. Issue: Does the presumption of sanity embodied in s. 16(2) (used to be 16(4) at the time of this trial) violate s.11(d) of the Charter, the presumption of innocence? Decision (Lamer): Yes, s.16 (2) shift of burden violates Charter s.11(d) (since it requires accused to prove insanity/mental disorder on the balance of probabilities, which may permit a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the sanity of the accused) However, s.16(2) is justified by s. 1. Passes the Oakes test: The objective of s.16(2) is to avoid placing an impossible burden of proof on the Crown (i.e. Crown would have a nearly impossible burden of demonstrating that every accused was not insane/mentally disordered). This is sufficiently important to warrant limiting constitutionally protected rights Parliament has chosen from a range of means that impair s. 11(d) as little as possible. Finally, there is proportionality between the effects of the measure and the objective. Provisions may be struck down if they violate the presumption of innocence: R. v. Laba (1994) (SCC) Reasoning: The SCC decided that s. 394(1)(b) of the Criminal Code violated s. 11(d) of the Charter and could not be save under s. 1. Found that simply striking out the offending words “unless he establishes that” in the provision was insufficient. Instead, they decided to write into the provision that guilt would be mandated “in the absence of evidence which raised a reasonable doubt.” In other words, they read in the evidential burden where they had struck out the persuasive burden R. v. Curtis (1998) (Ont. CA) The wording of s. 215(2) of the Criminal Code contained the reverse onus clause “the proof of which lies upon him.” SCC found that this violated s. 11(d) Reverse onus clause was declared to be of no force and effect – essentially excising the offending provision. Mandatory Presumptions Mandatory presumptions only impose an evidentiary burden where opposing party need merely raise a reasonable doubt about it E.g. blood alcohol rule: “absent any evidence to the contrary” Boyle, R. v. (1983) (Ont. C.A.) Criminal Code s.354(2) says if in possession of motor vehicle with obliterated serial number it is to be presumed that accused knew it was stolen – although there may be no evidence to the contrary, still seems jury could have reasonable doubt as to whether accused knew, and Ontario C.A. struck down s.354(2). Downey, R. v. (1992) (S.C.C.) Criminal Code s.212(3) presumption that someone living with a prostitute lives off of the avails of prostitution, absent evidence to the contrary. S.C.C. said this violated s.11(d) since could lead to a conviction in the face of reasonable doubt. Relevance and Discretion to Exclude Relevance Evidence that tends to make the desired inference more probable than it would be without that evidence is relevant As long as the evidence that is brought forward is not harmful and doesn’t waste too much time, it’s not usually contentious if irrelevant is brought before the court. Morris, R. v. (1983) (S.C.C.) Facts: accused charged with importation of narcotics. Police found newspaper clippings about drug business in foreign country (expanding heroin trade in SE Asia). Convicted. Issue: Was the newspaper clipping properly admitted into evidence? BCCA (2-1): Yes. Dissent: newspaper clipping was not even relevant Majority decision (4-3): newspaper clippings admissible for Crown to invite inference that accused is guilty The whole court agreed that the evidence was relevant, but the point of contention was whether it should have been admitted. McIntyre (majority): I completely agree with the law that were applying, but I don’t agree with how Lamer characterizes the clipping. Properly admitted, relevant, but of low probative value. Shouldn’t confuse the probative value of the evidence with its admissibility – even if the evidence if weak (or even slightly prejudicial) it should be admitted. Trial judge has discretion to admit, and should not be second guessed. Dissent: sole purpose of the evidence was to discredit the accused’s general disposition. Probative Value Probative value = the significance that a trier of fact assigns to an item of evidence, the strength of the inference it supports Materiality Materiality = what is it that the opponent has to prove; the fact sought to be established must concern a matter in issue between the parties The issues of the case determined by: Substantive law Pleadings Certain procedural rules Evidence that is tendered may be relevant to the matter sought to be established but what was sought to be established was beside the point; it is immaterial. E.g. Accused is charged with possession of undersized lobsters. Defence adduces evidence that the accused didn’t know that there were undersized lobsters in his catch. However, there is no mens rea requirement so the accused state of mind is doesn’t matter – it’s immaterial. Lavallee, R. v. (1990) (S.C.C.) Facts: wife killed husband after years of abuse, defense based on her fear and ‘battered wife syndrome’. The wife testified, and some of what she claimed was corroborated by hospital records. Wife relied on self-defence. History of abuse, but there was a significant gap in time between any threats and the time she shot her husband. Issue: statutory definition of self-defence didn’t require immanence, but common law had established this requirement. Crown argued that a history of abuse was immaterial. Decision: Expanded the definition of self-defence – the evidence of past abuse then became of material importance (no longer immaterial) Comment: note there was a base of evidence here (i.e. wife’s testimony, hospital records, etc. showing long history of violence) and the social background information was accepted in order to provide context to this base of evidence. Multiple Relevance A single piece of evidence may be relevant to different matters. However, though evidence may be admissible when tendered for one purpose, in may nonetheless be inadmissible when tendered for another purpose. Discretion to Exclude Admissibility Relevant evident is admissible unless: Exclusionary rule (reliability) – evidence must be reliable Exclusionary rule (other value) – some values (such as privilege) are more important than reliability (i.e. exclude information even if it is reliable on some other grounds) Exclusionary discretion – prejudicial effect outweighs the probative value Four scenarios where there may be judicial discretion to exclude evidence: Discretion may be read into a statute (Corbett) Recent shift Discretion at common law to weigh the prejudicial effect against the probative value (Corbett, Seaboyer) Where it was the accused that was trying to get the benefit of the exclusionary discretion, it isn’t just simple balancing: prejudicial effect had to be substantially higher than the probative value (Seaboyer) To ensure a fair trial – new and uncertain Has arisen in two kind of cases: extradition (out of Canada) and cases of extradited Canadians (back to Canada) Deals with the extraterritorial application of the Charter Canada Evidence Act s. 12 Allows cross-examination of any witness of their previous criminal record Only comes into effect if you are on the witness stand (can’t simply file the criminal record with the court) Trier of fact should know about your criminal record so that they can assess your credibility (in theory) Prior to the Charter, the judge had no discretion to stop this kind of crossexamination Applies to everyone including the accused who decides to take a stand Corbett, R. v. (1988) (S.C.C.) Facts: Accused had previously been convicted of murder. Defence moved to allow him to be questioned on this conviction on the witness stand. Issue: Whether s. 12 of the CEA violated section 11(d) of the Charter Held: read into the statute the principle that the trial judge has discretion to not allow such cross-examination if it would unduly prejudice accused and if accused put their credibility in issue to restrict use only to credibility, not to infer accused is particular type of person that would commit this type of an offence. Allow the Crown to do indirectly what they cannot do directly Comment: one of the first decisions where the SCC abandoned Wray in favour of a balancing test. Although the cross-examination was permissible under the statute and had been interpreted pre-Charter, they read the discretion in so that it wouldn’t violate the Charter. Before the Charter, there was no way for the judge to prevent this type of cross-examination Potvin, R v. (1989) (S.C.C.) Facts: Potvin and 2 others charged with second degree murder. One of the others refused to testify at trial, but did so at the preliminary inquiry. Generally, defence at preliminary inquiry just listens, and does not cross-examine since does not want to give their case away. At trial, Crown succeeded in having preliminary evidence admitted. Issue: Defence argued s. 7 Charter violation Decision: Held s. 715 constitutional. Took a statute that appeared to put the question in the hands of the Crown and gave the court the discretion to exclude where the prejudicial effect outweighed the prejudicial value. There must have been an opportunity to cross-examine, but there need not have been actual cross-examination. Although noted that if Crown had reason for thinking witness might not be available for cross-examination at trial (e.g. have cancer) should be bad practice to not tell defence at time of preliminary inquiry. Read in the discretion of the court to exclude evidence. Seaboyer, R v. (1992) (S.C.C.) Facts: Seaboyer accused of sexual assault of a friend visiting his school. He wanted to put forward evidence that she routinely came to the school to engage sexually with him and others, but s.276 (the original “rape shield provision”) didn’t allow it. Issue: Whether the legislative amendment impaired the right of crossexamination to such an extent that it impaired the accused’s right to full answer and defence. Does s. 276 violate s. 7 or s. 11(d) of the Charter? Decision: s.276 found unconstitutional, because: It may exclude evidence which is relevant to a defence of mistake (concerning consent) and the probative value of which is not substantially outweighed by potential prejudice to the trial process (the price of potentially convicting innocent people outweighs the risk of the jury drawing illegitimate inferences from such evidence) Address the issue of the judges ability to exclude evidence: Denounce the law in Wray – is instead a straight forward balancing of probative value vs. potential prejudice. In the old case of Wray, the court held that evidence would only be excluded where the potential prejudice significantly outweighed the probative value. Added the additional provision that where it is the accused who wants the discretionary exercise, the balancing test is more onerous: Courts have been very cautious in restricting the power of the accused to call evidence in their defence Where it was the accused that was trying to get the benefit of the exclusionary discretion, it isn’t just simple balancing: prejudicial effect had to be substantially higher than the probative value Harrer, R. v. (1995) (S.C.C.) Apart from the fixed rules of exclusion, judges have the exclusionary discretion to rule relevant evidence inadmissible if its potential for prejudice outweighs its probative value Probative value determined according to: Reliability / strength of the evidence. Strength / extent of the inferences it leads to. Importance of fact in issue those inferences relate to. Potential for prejudice means potential to make trial unfair, and includes: Fairness to parties and to witnesses Potentially distorting effect it could have on the outcome of the case E.g. could it invite improper inferences E.g. extent to which it could excite / inflame the jury E.g. character evidence can lead jurors to think accused is bad type of person and such people do things such as what accused is charged with E.g. extent to which it may confuse the issues Practicalities of presentation and response Recall judge can admit it at large, or just for limited use with curative instruction to jury, so would argue whether or not curative instruction can overcome potential prejudice. White Under the BC Motor Vehicle Act, you are required to file a report of an accident. Issue: If the accident results in a criminal prosecution, it this required report admissible Held: Judge may use discretion to decide whether report should be admitted because its admission may violate the Charter. R. v. Hunter (2001) (Ont. C.A.) Facts: Accused was charged with attempted murder. A police officer purported to hear part of the conversation between the accused and someone else. Overhears an inculpatory statement. Issue: is the statement admissible? Held: Statement was excluded: May have some probative value, but is far outweighed by the prejudicial effect since only heard a fragment of the conversation (don’t know the full context of a statement) True meaning of the statement was highly speculative (low probative value), but the prejudicial effect was obvious. Anderson v. Maple Ridge (District) (1993) (BCCA) Facts: Plaintiff alleged that the defendant municipality had been negligent with the placement of a stop sign and road markings. A witness wanted to bring testimony that there had been a significant reduction in car crashes since the stop sign was moved. Trial court: Evidence of subsequent repair is inadmissible – if there is some kind of hazard and you repair the hazard, then this evidence shouldn’t be brought back to haunt you. BBCA: Overruled. The scope of the discretion of the court trying a civil case to exclude otherwise relevant evidence because of its prejudicial effect is a complex question that can be left to another day. But whatever the scope may be, it was exceeded in this case. Exclusionary Rules Common law exclusionary rules - all based upon the reliability of evidence Character Evidence Opinion Evidence Hearsay Privilege Character Evidence Rule Character vs. Habit Character evidence is any evidence that invites an inference that a person is a certain type of person and further, invites inference that they acted consistently with that character type The more general the evidence is, the more likely it is to be considered character evidence. E.g. to say someone cheats at cards, is violent, has previous convictions, is honest / truthful, is likely to have lied, etc. Sometimes character evidence is referred to as evidence of disposition or of propensity Distinguish from evidence of habit (i.e. did something in a regular way e.g. “Sue always arrived at work at 8:50am” or “Fred always wore a suit to church”) which can be admissible so long as doesn’t lead to prejudicial inferences. The more the evidence conforms to evidence of specific reactions on a regular basis to a specific situation = more likely to be evidence of habit Generally tends to be circumstantial evidence Courts are generally more receptive evidence of habit as opposed to evidence of character. One way to try and slip character evidence into a trial is to frame it as evidence of habit. Evidence of habit generally have a higher probative value and a lower potential for prejudice However, to be admitted, evidence of habit must be sufficiently regular or uniform and the circumstances must be sufficiently similar Courts are largely concerned with preventing the admission of evidence that is prejudicial, distracting or simply time-consuming. Example Cases: Belknap v. Meakes (1989) (BCCA) - civil Facts: A new trial was requested in a case where a doctor had been sued in negligence. Trial judge said that evidence of what the doctor usually did as habit cannot be used to establish what the doctor did on this particular occasion. Issue: Whether evidence of habit could be used as evidence in a malpractice suit Held: There is no reason why habit should not be used as evidence either of negligent action or careful action Evidence of habit is admissible because evidence of what ordinarily would have been done demonstrates a probability that the general case will be followed in a particular case (in the absence of evidence of what happened in the actual case). Devgan v. College of Physicians & Surgeons (Ontario) (2005) (Div. Ct.) - civil Facts: Medical malpractice case where a doctor charged exorbitant fees for treatment and failed to fairly and accurately explain the likelihood of success. Issue: whether a doctor was allowed to lead witnesses who reported that he had not claimed that he would be able to cure him. Held: Evidence inadmissible. Was not evidence of habit since the testimony of 3 or 4 patients only represented a small sample from hundreds of patients – did not have sufficient probative value. Comment: Important question is not whether the evidence is evidence of habit, but whether the evidence can be discredited. R. v. Watson (1997) (Ont. C.A.) - criminal Facts: Accused was charged with first degree murder. In order to support his claim of self-defence, the accused wanted to introduce witness testimony that the deceased had had a habit of carrying a gun. Issue: Is this evidence of habit relevant? Trial judge: Evidence of habit was inadmissible - no evidence that the deceased has a gun in his possession on that particular day. Held: Evidence was admissible: Evidence supporting the inference that the deceased and used a weapon during the confrontation was relevant Evidence of habit proceeds on the basis that repeated conduct in a given situation is a reliable predictor of conduct in a given situation Comment: For evidence to fall afoul of the character evidence of rule, it must be discredited. What is character evidence? Character evidence = Evidence of some kind of disposition or propensity on the part of the accused to act in a certain way that leads to the inference that they acted in they way on a particular occasion As a basic rule, character evidence is relevant. However, the Crown is forbidden to use it in their opening case. However, if the defence introduces evidence to try and establish good character, then the doors are open for the Crown respond with evidence of bad character. Character evidence is always relevant in these cases: Character may be a core issue pursuant to the substantive law E.g. in a child custody cases, with one side saying the other is a bad parent / alcoholic, character is centrally important E.g. in defamation cases trials usually involves allegations that defendant said plaintiff has a bad character, and defence is the truth of these statements Character very relevant at sentencing hearing of accused. Character evidence about a third party which is being led to help assess the state of mind of the accused – may not be admitted to show that they acted violently, but only that the accused might have had reason to expect violence from the accused E.g. in self-defence, may be able to show that a third parties propensity for violence bolsters the honestly held belief that accused thought his life to be in danger Why does the common law view character evidence as problematic? Concern with such evidence is that a jury will not be able to assess the issue adequately since distracted by evidence of bad character of the accused, taking focus off the facts Worried that they may convict not because the Crown has fully established their case, but because the jury thinks that they are a bad person May be time consuming to examine character evidence Accused should be defending against a particular charge, not against their whole life When will character evidence be admitted/excluded? Generally excluded in civil cases (211-212) In criminal cases, the accused may lead character evidence (215-216) Crown may NOT lead character evidence as part of their case-in-chief (218, 28081) However, if the accused leads evidence that puts their character in question, the Crown may respond by leading their own character evidence How might the accused lead good character evidence and thus put character in issue? (221) By cross-examining a Crown witness By bringing a defence witness to testify on the character of the accused Putting the accused on the stand What form may character evidence take? Evidence of general reputation (218-220) – general reputation in the relevant community. Cannot be the witness’s personal opinion. Rowton Rule: the only evidence of bad character that is admissible from character witnesses is evidence of general reputation – not simply evidence of personal opinion However, in practice this rule is not often strictly adhered to and witnesses will give their personal opinion without objection Expert evidence (discussed later) Increasingly, experts such as psychologists or psychiatrists will testify as to the “character” of the accused Anything that the accused says as a witness (223-227) McNamara – Accused was charged with conspiracy to defraud. When asked how he ran his company he responded “Like any company should be run, legally.” Judge ruled that the accused had put his character for honesty at issue and that the Crown was therefore permitted to question him on his character. McFadden – An accused charged with first degree murder stated that “I have the most beautiful wife in the world. I worship the ground she walks on”. BCCA held that in making this statement he had put his character for sexual morality at issue by conveying that he would not get involved with another woman. What may not be? Personal opinion (tends not to be observed all that strictly) Specific acts – generally shouldn’t be evidence about specific good or bad actions undertaken by the accused How may the Crown respond when the accused puts their character at issue? By cross-examining the defense’s witness By cross-examining the accused – s. 12 allows the accused to be cross-examined on their previous criminal record. But only comes into play once they are on the witness stand! S. 666 – where an accused puts their character at issue, the Crown may respond by questioning them about their previous criminal record By bringing evidence of specific (bad) acts Crown may call its own reputation witnesses, but only after the accused has brought their character into issue during the defence case Crown may call expert witnesses What’s the difference between s.666 of CC and s.12 of CEA? Both about convictions of the accused: S.666 is about character, s.12 is about credibility. Procedural: If it’s character the accused must have put their character at issue (666). S.666 allows previous convictions if accused has put their character at issue, irrespective of whether they have taken the stand. S.12 only comes up if accused takes the stand or will take the stand. Similar Fact Evidence Similar fact evidence: previous conduct of the accused which is similar to the activity presently charged General rule: “Similar fact evidence is… presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a BOP 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” (Handy) Where acts are so strikingly similar that the evidence is no longer just regarding character, it has significant PV regarding another element of the offence; objective likelihood of a coincidence is slight – where PV high then more likely admission (Arp) Strict exception to bar on character evidence (if not sufficiently probative then = character evidence and inadmissible) Judges are to instruct the jury that they may use this evidence to prove a particular point (identity, mens rea, et.c) but not to engage in reasoning that says the jury is the type of person that would commit this offence. Burden on the crown to show that probative value outweighs the prejudice. One of the rare instances in evidence where burden on the Crown. Sweitzer v. R. (1982) (S.C.C.) Facts: accused charged with 12 counts of rape, convicted at trial Decision: There was no direct or circumstantial evidence for those rapes actually convicted for, and was effectively convicted for them based on evidence of the other counts Cannot use similarities from other counts to convict – there must be some direct or circumstantial evidence for each specific count. Arp, R. v. (1998) (S.C.C.) Dramatically changed the law regarding Crown offering evidence of the accused’s bad character, and previous cases only still good law as far as consistent with it. Decision: If Crown wants to lead evidence of bad character of the accused, starting point is inadmissible, unless probative value (for something other than just showing bad character) significantly outweighs potential for prejudice (which always attaches). To assess probative value, consider: The strength of the evidence The extent to which the proposed evidence supports the inferences sought to be made from it The extent to which the matters it tends to prove are at issue in the proceedings To assess potential for prejudice, consider: How discreditable the conduct or character is The extent to which it may support an inference of guilt based solely on bad character The extent to which it may confuse the issues The accused’s ability to respond to it And it is mandatory for judge to give charge to jury telling them: Can’t use evidence of bad character or similar fact evidence to infer accused was a particular type of person or that it makes accused more likely to have committed offence What the evidence is relevant for R. v. Handy (SCC) (2002) Facts: charged with sexual assault of a woman who went to a hotel and initially agreed to sex. She said no later on but he had abusive sexual and anal intercourse with her, choked and hit her. Crown wanted to call his ex wife whom he subjected to gruesome sexual violence where she had said no. He denied all. At trial: evidence admitted on the basis that it specifically established a pattern where he used an initially consented sexual scenario and turning it into a non-consensual one. Appealed on the grounds that the jury ought not to have considered evidence of alleged misconduct outside the subject matter of the charge and that it was highly prejudicial, and that the facts weren’t similar in any event. Appeal: PP outweighed the probative value. The acts were disparate in nature and this case is one time where as previous was with wife of long term relationship. Credibility of the ex wife was problematic. Ratio: when it’s closely related to the details of the offence, it’s no longer just showing character. General rule: evidence of misconduct which does no more than blacken his character is inadmissible. Policy: its potential for prejudice, distraction and time consumption. Exception: where previous misconduct may be so highly relevant that its probative value outweighs any potential for misuse. Sopinka test: it would be an affront to common sense to suggest that the similarities are just a coincidence. R. v. Brown (1999) (Ont. CA) Facts: Accused was charged with shaking a young child to death. Unrepresented accused called witnesses to testify to his good character. Then took the stand himself. Accused’s own son then testified that his father had assaulted him as a child. Held: New trial ordered. The son’s evidence did not come within the similar fact exception – the son’s allegations bore no resemblance to the case for which the accused was charged. Comment: don’t want the trial to become mired in the Crown trying to discount the good character evidence brought by the defence on every single point. This risks that the issue of the crime for which the accused is currently charged will be lost in the back and forth of trying to bring and discredit character evidence. R. v. Profit (1993) (SCC) Facts: School principal was convicted of sexual offences involving students. Issue: CA appeal divided on the probative value of character evidence. Should there be a special rule for sex offence cases? Held: Yes, there should be because sexual offences against children are generally committed out of the blue, it is less relevant for the defence to introduce evidence of good character. Similar Fact Test Identify the Non-Character Issue (relevance) Evaluate the Probative Value of the SFE Evaluate the Potential for Prejudice: Moral and Reasoning Balance the Probative value outweigh the potential for prejudice Charge the jury if PV > PP – this can’t go to character but for proof of non-char E Starting point: Similar Fact Evidence (SFE) is presumptively inadmissible. (Handy) Crown must show on balance of probabilities that PV outweighs PP 1) Identify non-character issue: (relevance) a) eg. Identity, i.e. so specific that it shows the same person committed the crimes b) eg. actus reus, presence or absence of consent c) eg. mens rea (Smith - wife found dead in bath tub, just like 2 previous wives→ rel to a.r. and m.r.) d) eg. to rebut defence (Makin - couple was arguing death of 2 infants was an accident, but Crown could show 8 other children died in exactly the same circumstances went to whether acts were designed or accidental; rebutted defence) 2) Evaluate probative value of evidence for the specific issue (Handy) Turns on the degree of connection between the prior act and the current charge Consider: Proximity in time of the similar acts—degree of connectedness Extent to which the other acts are similar in detail to the charged conduct Number of occurrences of the similar acts: see R. v. Smith Circumstances surrounding or relating to the similar acts Any distinctive feature(s) unifying the incidents Intervening events - generally points to something that severs the connection Any other factor which would tend to support or rebut the underlying unity of the similar acts - solidity of identity; how sure are you that the accused is the one associated with the prior act - allegation vs. conviction etc. and is there evidence of collusion or fabrication (i.e. copycatting—was there opportunity for fabrication): Collusion b/n witnesses may deprive similar fact evidence of most of its probative value (Handy) 3) Determine “prejudicial effect”: Counter w/ concerns over “moral prejudice” – potential stigma of bad personhood, and “reasoning prejudice”, including potential confusion and distraction of the jury from the actual charge against the respondent. The strength of the SFE must outweigh both moral and reasoning prejudice (Handy) Comprised of two elements: Moral prejudice: likelihood of drawing a prohibited character inference Risks an “unfocussed trial and wrongful convictions” Consider: how inflammatory are prior similar acts, force of the character inference Reasoning prejudice: (quality of E) concern that jury will be distracted If the facts are complex, jury might be distracted by the past acts Jury may be revolted by prior acts - jury may be distracted from actual charge 4) Balance the probative value versus the potential for prejudice. What amount of probative value is necessary? Court kind of iffy on this in Handy – don’t have to be 100% convinced, but also nature of SFE that is admissible are things like hallmarks and calling cards So is the probative value SO HIGH that the chance of mere coincidence is extremely slight 5) Charge to jury: permitted to use evidence as proof of the specific issue, but not for prohibited character reasoning (Arp) Character Evidence of Third Parties With third parties there is no longer presumption of innocence concerns w/ wrongful conviction (liberty of other witness not at stake) - so general purpose of why do not admit Character E is no longer present Thus, evidence of bad character is admissible whenever it is relevant to an issue at trial But PV v PP always in background as residual discretion General rule: if evidence of the bad character of the third party is relevant to some issue at trial it is admissible. Therefore, since there is no presumption of exclusion our primary concern is relevance. Self-Defence The defence may bring up bad character of 3rd party when an accused asserts affirmative defence - i.e. self-defence: defence turns on bad conduct of another person which may put 3rd person’s character on table Distinguish though where accused knows of prior bad acts - apprehension that an assault was happening; question of whether the accused acted reasonably (prior acts admissible to support reasonableness of accused’s apprehension) Versus scenario where accused wants to introduce prior bad acts that they did not know about (not evidence about apprehension, rather evidence on 3rd party’s character) Sexual Assault Old law: could admit evidence of past history to show the character of the complainant. Supported the twin myths that a woman who was sexually experienced was: more likely to consent less likely to tell the truth 1982: introduced s.276 - no evidence of past sexual history could be introduced 1991: Seaboyer - s.276 violated s. 7 and s. 11(d) S.276 went too far to protect equality (women) After Seaboyer, Parliament changed s.276 again Evidence of past sexual history cannot be used to support one of the twin myths Evidence can be allowed if it is relevant and significant (s.276(2) and(3)) 2000: s.276 confirmed as striking the right balance Seaboyer, R v. (1992) (S.C.C.) Facts: Seaboyer accused of sexual assault of a friend visiting his school. He wanted to put forward evidence that she routinely came to the school to engage sexually with him and others, but s.276 (the original “rape shield provision”) didn’t allow it. Issue: Does s. 276 violate s. 7 or s. 11(d) of the Charter? Decision: s.276 found unconstitutional, because: The limitation was too narrow It may exclude evidence which is relevant to a defence of mistake (concerning consent) and the probative value of which is not substantially outweighed by potential prejudice to the trial process (the price of potentially convicting innocent people outweighs the risk of the jury drawing illegitimate inferences from such evidence) S.C.C. suggested broader circumstances in which sexual activity evidence might be admissible: Evidence of specific instances of sexual conduct tending to prove that a person other than the accused caused the physical consequences of the rape alleged by prosecution. Evidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant. Evidence of prior sexual conduct known to the accused at time of the act charged, tending to prove that the accused believed that the complainant was consenting to the act charged. Evidence of prior sexual conduct which meets requirements for the reception of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that complainant consented or is unreliable witness. Evidence tending to rebut proof introduced by prosecution regarding complainants sexual conduct. In response to Seaboyer, the Criminal Code was amended. S.276 was repealed and replaced: S.276(1) applies to list of sex related offences: Evidence cannot be admitted just to show one of the “twin myths”: that previous sexual activity of complainant, or previous activity with accused, makes complainant more likely to have consented this time (s.276(1)(a)) or is less believable (s.276(1)(b)) For other purposes (i.e. not to pursue the twin myths), evidence relating to sexual history can be admissible e.g. to show MR not present due to mistaken belief in consent, and judge has discretion whether to allow in evidence s.276(2) but it must: Be relevant to current case (s.276(2)(b)) – this replaces the limit to 3 circumstances found unconstitutional in Seaboyer It must have significant probative value (can it help to prove anything), and must not be substantially outweighed by potential prejudice (s.276(2)(c)) Factors for judge to consider when determining whether or not to admit are laid out in s. 276(3), of which perhaps (c) alone would have been sufficient a) Interests of justice, including the right of the accused to make full answer and defence b) Society’s interest in encouraging the reporting of sexual assault offences c) Whether there is a reasonable prospect that the evidence will assist in arriving at a just determination d) Need to remove from fact-finding any discriminatory belief or bias e) Risk that evidence my unduly raise sentiments of prejudice, sympathy or hostility in the jury f) Potential prejudice to complainant’s personal dignity and right of privacy g) Right to personal security and full protection and benefit of the law h) Any other factor that the judge considers relevant Changed when an how an accused could raise the defence of mistaken belief – modified common law position s.273.2(b) for the defence of mistaken belief in consent, requires that the accused took reasonable steps to ascertain if consent was being given i.e. objective element added by Parliament Imposes on an accused who is attempting to raise the defence of consent a duty to demonstrate that they took “reasonable” steps – objective due diligence standard Could still be mistake as to consent, but will only allow mistake if reasonable steps were nonetheless taken However, s. 277 was left intact: 277. In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, 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 Darrach (2000) (SCC) The current s.276 strikes the right balance. Leaves the door open just a crack so that sexual evidence can be admitted if absolutely necessary. It addresses the myths of women’s sexuality. It will be rare that evidence of prior sexual history will be admissible Mechanics of Proof Formal Admission of Fact Formal admissions of fact = both sides agree upon fact(s) taking them out of contention, so no evidence need be presented E.g. defendant may admit they were negligent, but dispute damages. Sometimes all the facts are agreed to (e.g. in corporate cases) and the parties file an “agreed statement of facts”, leaving the trial to determine the law Beware, the word “admission” is used to also mean: Statement by an accused to a person in authority or agent of the state Statement by anyone Section 655 Criminal Code: Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing w/ proof thereof Castellani v. R. (1970) (SCC) Unlike civil cases, in criminal cases there are no pleadings and thus no precisely worded allegations of fact may be admitted categorically. The accused is under no obligation to admit to an alleged fact, rather he has the choice to admit or decline it. R. v. Proctor (1991) (Man. C.A.) Either the Crown or defence may admit a fact if they want to But Crown has to accept admission of a fact of the defence – cannot refuse to accept an admission where the Crown’s purpose is to keep an issue alive just to prejudice the accused’s case Judicial Notice Taking judicial notice = a matter of judicial notice means the judge will simply accept some fact without requiring evidence to establish it. Judge can take judicial notice on their own initiative or counsel can invite the court to take judicial notice of such facts. In either case the court should give counsel opportunity to make submissions on appropriateness of taking judicial notice (unless the fact is totally indisputable). Once judicial notice is taken it is final. Adjudicative Facts Adjudicative facts are those specific facts essential to resolving the dispute b/n the two parties (i.e. determining if accused had red hair) “who did what, where, when, how and w/ what motive or intent” – must be proven by admissible E Judicial notice of adjudicative facts: Begin with strong proposition that a court is to decide case exclusively on facts (relevant and admissible evidence) before it – courts are not supposed to do own fact finding – parties are in control Doctrine of Judicial notice is an exception to this: there are some facts that are so obvious that we’ll allow judicial notice – “I take judicial notice that X is true” – a way of having a fact form part of what trier of fact makes decision upon w/out going through standard channels of E – in absence of admissible E Reasons for taking judicial notice: Efficiency i.e. don’t want to waste time proving common knowledge Credibility/reputation of administration of justice i.e. if didn’t accept indisputable facts would being administration of justice into disrepute Doctrine of judicial notice: 2 different rationales: Thayer – said we take notice of adjudicative facts as a tool of convenience – way of speeding up trials – he viewed it as a discretionary thing used to speed up trial and is presumptive i.e. can intro E to disprove Morgan – says that judicial notice exists to protect the credibility / reputation of the justice system – i.e. having to demand proof for some sorts of facts would make a mockery of the trial system – and so he sees it as mandatory and conclusive – must take notice of adjudicative facts – by and large in CDA we accept Morgan’s approach – judicial notice is mandatory and final Morgan Criteria: To warrant judicial notice the probability must be so great as to make the truth of the proposition notoriously indisputable among reasonable men Boundaries of Judicial Notice: Generally two broad categories of facts that judicial notice may be taken of: Facts that are notorious / common knowledge of every person of ordinary understanding and intelligence i.e. so generally known and accepted that cannot be reasonably questioned (e.g. bees sting, alcohol can intoxicate, sun rises in the East, reform school doesn’t always work, but note can depend on locality e.g. Victoria is in BC acceptable in BC but might fall into the next category outside of BC). Facts that can be readily / clearly determined / verified by resort to authoritative sources whose accuracy cannot reasonably be questioned (e.g. texts, atlases, dictionaries – although of course if opposing side thinks there’s a forgery or error can submit judicial notice should not be taken) Note that the closer an issue is to the core of the litigation (i.e. too important to the outcome of the case) less chance court will take judicial notice of it and so evidence will be required. E.g. Zundel, R. v. (1987) (Ont. C.A.): Issue: Crown requested judge take judicial notice of the Holocaust during WWII Decision: court would not since was at the core of the litigation, and so wanted evidence of it Legislative Facts Judicial notice of legislative facts. Post-charter, the courts now had an important new power to determining constitutionality of legislation based on phrases such as “life, liberty and security of the person”, “democracy”, “fundamental justice”, but needed help in interpreting such words. Legislative Facts = Facts that have to do with law or interpreting law – these are broad facts about social, theoretical, economic context that are used by judges to decide questions of law – i.e. referring to history, social value (e.g. values under Charter), etc. Note such interpretations are findings of law, not findings of fact and hence are for the judge to make. Thus post-Charter, courts (especially S.C.C.) started looking beyond the law at a wide variety of social science research and facts, such as history, sociology, theology, political science, practices in other countries, etc. which had been unknown prior to 1982. Such info is amorphous and not likely to be ‘indisputable’ (e.g. works on two theologian’s may be presented that give different interpretations of aspects from the Bible) and counsel can dispute the credibility of whatever research/information other side presents. Social Framework Facts Judicial notice of social framework facts = “social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case” E.g. Lavallee and battered spouse syndrome – helping us to interpret a situation – or background on racial profiling – to help you to determine a fact (contextual info helping you determine a fact) Emerging category – neither adjudicative (not about specific fact at issue) nor legislative (not being used to decide a legal issue) Cannot raise these issues unless there is an evidentiary hook – has to be an issue – social framework facts have to be relevant Note that judges rely a great deal on social context facts without saying a word about judicial notice Lavallee, R. v. (1990) (S.C.C.) Facts: wife killed husband after years of abuse, defense based on her fear and ‘battered wife syndrome’. The wife testified, and some of what she claimed was corroborated by hospital records. Decision: court took judicial notice of facts which provided background for understanding behavior of battered women Comment: note there was a base of evidence here (i.e. wife’s testimony, hospital records, etc. showing long history of violence) and the social background information was accepted in order to provide context to this base of evidence. R. v. S.(R.D.) (1997) (S.C.C.) Facts: struggle between police officer and accused, accused claimed was responding to racism by police officer Issue: was trial judge correct in taking judicial notice of background contextual information on racism among police officers and how this can lead to them over reacting Decision: contentious with 6-3 decision, and the majority was split 2-4: Dissent (3) one extreme: the background info was not relevant at all, should have simply looked at the facts of the event – trial judge was stereotyping police officers as being racist which resulted in acquittal Life experience is important in a myriad of decisions, but of no value in reaching conclusions for which there is no evidence. There was no evidence before the trial judge to support the conclusions she reached (overreaction based upon race). Majority (4) other extreme: background info can be broadly used through judicial notice Majority (2) in middle: found trial judge’s reasoning troubling/unfortunate, but nothing in her reasons to convince them she had misapplied judicial notice Rule: trial judge can take judicial notice of social conditions and can charge jury on it to help with findings of fact, but there must be a sufficient linkage between the evidence in the case and the background info. In the absence of evidence, reliance on general propositions simply leads to inappropriate and unfair speculation. Comment: less clear than Lavallee since less of a base of facts here (single scuffle) compared to long history of violence with Lavallee Reveals a lot about how trials unfold Dissenters and concurring judges most worried by the fact that there was no evidence adduced relating to police racism – although there may be link between race and overreaction, there was no evidence adduced of this link Contrast with Lavallee where there was significant evidence adduced regarding the existence of battered wife syndrome Foster’s opinion: There was evidence on which she could conclude that there was some evidence of police overreaction, but there was no evidence that it was racially motivated. However, evidence of the overreaction itself would have been sufficient to raise a reasonable doubt and acquit. R. v. Malott Raises concerns that the treatment of expert evidence on battered woman syndrome, which is admissible to combat the myths and stereotypes within society about battered women, has led to the new stereotype of the battered woman. Comment: The courts earlier description of battered wife syndrome in Lavallee may have been in error and too restrictive. In earlier cases such as Lavallee, the courts often championed the need for a wide approach to judicial notice in order to bring social context evidence into the courtroom. However, the courts have more recently began to back away from this generous approach in favour of a more cautious interpretation of judicial notice. Increasing concern about the evidence that is coming down under judicial notice, particularly social framework facts. The closer evidence gets to the core of the issue, the more nervous we should be about taking judicial notice of it. Should instead be brought in under expert evidence. The leading case on judicial notice is now: R. v. Spence (2005) (SCC) Facts: Black accused charged with robbing an East Indian pizza parlour. There was concern that the fact that the victim was East Indian might prejudice the jury against him. Issue: Can the judge take judicial notice of the fact that jurors could be influenced by the race of the victim and that they ought to be probed on this fact? Also concern over the Americanization of the jury process Held: The closer the fact approaches the key issue in the case, the more the court ought to insist on compliance with the stricter Morgan criteria (notoriously indisputable) For adjudicative issues, the strict Morgan criteria applies More discretion for judicial notice with social and legislative facts BUT social framework facts, when judicially noticed, must be linked to the facts at hand As with legislative facts, social facts are general – they are not specific to the circumstances to a particular case, but if properly linked to the adjudicative facts, they help to explain aspects of the evidence. Comment: It was also discussed the possibility that even legislative and social facts should be established by expert testimony rather than through reliance on judicial notice – preference for social science evidence to be presented through experts who can be cross-examined. Judicial Notice of Personal Knowledge Judges are not permitted to use their personal knowledge to take judicial notice - Cannot fill in the gaps in the evidence because they happen to know something – has to be something that can be established in the evidence or which you can take judicial notice of. However, may be difficult to tell is a judge is basing a decision on his own knowledge or general knowledge held by reasonable people. A Note on Credibility R. v. Bartleman When placed on the stand, Aboriginal people may be perceived a less credible because they do not look counsel in the eye when answering questions This is a cultural issue because in native culture it was considered inappropriate to stare at someone directly in the eyes – this was social context evidence that may be relevant in assessing the demeanour of the accused on the stand Judicial Notice of Foreign Law Judicial notice of certain “foreign” laws Judges are expected to know the law of your own jurisdiction (BC, Federal), but not necessarily the law of other jurisdictions like, say Peru Domestic law in BC is the binding law here (federal + BC etc), and in determining questions of law (e.g. interpreting BC statute) counsel may show judge laws from other jurisdictions (i.e. foreign laws from Alberta or India). Sometimes the foreign law itself is an issue (e.g. were couple married when they lived in India where laws vary state to state and religion to religion). To determine the law in foreign jurisdiction is a finding of fact and generally evidence may be required e.g. expert witnesses such as lawyers from that jurisdiction may be presented etc. However, Evidence Acts (e.g.) say that judicial notice must be taken of certain laws (so no evidence required). E.g. BCEA s.24 includes Acts and ordinances of other provinces, UK, and British Commonwealth. E.g. In Manitoba judicial notice shall be taken of laws of US as well Real Evidence Types of Evidence Evidence can be classified as one of 4 types: Witness Testimony a.k.a. oral or verbal evidence a.k.a. viva voce (“in live voice”) Documentary Evidence i.e. documents, records, writings or any statement/thought/idea that has been recoded, includes x-rays, computer records, photographs, videotapes, a candlestick with an engraving on it (offered as evidence for the writing) Real Evidence i.e. things e.g. alleged murder weapon (the bloody candlestick), body fluid samples, pieces of fiber (note the DNA report on the fiber would be documentary evidence) Demonstrations to help the court visualize something, such as a witness getting out of box and showing how they moved when attacked, or a scale model of an accident location. Will often be on video, to avoid possibility of demonstration going wrong e.g. model not working in court. Real Evidence This is the point where the judge screens out evidence that is so unreliable it’s not worth spending any time on i.e. listening to or looking at, and would only confuse/prejudice the case Depends on form of the offer (whereas all following tests depend on content of the offer, referred to by Wigmore as “tenor” of the offer): Witnesses must be competent (see below) Real evidence must be identified & continuity: As with documents (see above), three ways to identify: by admission, direct evidence (e.g. police officer says “yes, that’s the knife we pulled out of the deceased”) or circumstantial evidence (i.e. anything that invites an inference connecting the thing with what it is purported to be) As well, continuity must be established i.e. must have kept track of the thing and kept it secure (e.g. from being tampered with) at all times, from when it was first collected, through testing/storage, to presentation at trial. This may involve calling a number of witnesses to verify this e.g. police officer who first collected it, person who stored it, person who tested it, etc. Courts are strict on this e.g. in the case of drugs R. v. Parsons (1977) (Ont. C.A.) Getting past the judge with real evidence is pretty easy (i.e. satisfying the judge that there is sufficient evidence to admit) Determination of whether statutory conditions precedent have been fulfilled rests exclusively with the trial judge and are properly determined in a voir dire On appeal, the court was critical of the extent of the voir dire conducted by the trial judge because it tended to usurp the role of the jury. R. v. MacPherson (2005) (BCSC) The continuity of possession of the substance from the accused to the law enforcement officer to the analyst are crucial. However, proof of continuity is not a legal requirement and gaps in continuity are not fatal to the Crown’s case unless they raise a reasonable doubt about the exhibit’s integrity. Demonstrative Evidence Distinction between real evidence and demonstrative evidence: Real evidence consists of physical objects that form the evidence itself (e.g. bloody shirt, narcotics, gun) Threshold: must be authenticated Demonstrative evidence consists of demonstrations, charts, models and other tools that assist the trier in understanding the evidence Threshold: judge must be satisfied that the demonstration will genuinely assist the trier of fact and not distort the fact finding. R. v. Howard and Trudel (1983) (Ont. CA) Facts: Dispute over the authenticity of footprint evidence. Crown expert witness said the footprints came from the accused, while the defence expert witness disagreed. Held: Whether demonstrations (in the court room) are to be permitted is largely at the discretion of the trial judge and appeal courts are reluctant to second guess them on this issue. In court demonstrations may involve significant confusion and delay, and the trial judge is in the best position to make this judgement Comment: Court room demonstrations are generally only permitted in rare cases R. v. Collins (2001) (Ont. CA) Facts: The Crown led evidence of an out-of-court experiment where a firearms expert fired test shots in the same place where the victim had been shot (accused charged with negligence.” Held: Evidence was admissible to show what happened when a gun was fired in the way suggested byt the witnesses. “In a nutshell, experiment evidence, if it is relevant to an issue in the case, should generally be admitted” – subject to the trial judge’s discretion to exclude the evidence where the prejudice that would flow from its admission clearly outweighs is value. Relevance of the experimental evidence will depend on the degree of similarity between the replication and the original event. Documents Documents are the most common form of real evidence Documents must be authenticated. Three ways to authenticate: By admission (production) i.e. parties admit i.e. agree that the documents are authentic (typical); ancient documents which have been kept in appropriately secure storage Through direct evidence i.e. a witness on the stand says “yes, that’s the contract”, or “yes, that’s the letter I wrote”. Through circumstantial evidence i.e. any evidence that implies a reasonable inference that the document is minimally reliable i.e. that suggests it is what it purports to be Note opponent party may still dispute it’s authenticity, but just need something to get it in at this stage, and once admitted, other evidence (e.g. handwriting experts, fingerprints, etc.) can be admitted so that trier of fact can weigh the competing evidence to make final determination of authenticity With photographs/videotapes best to run them by the judge before showing them if they have any potential to be prejudicial (e.g. gruesome) to avoid chance of mis-trial. Note also Canadian judges generally do not like editing/slowing down videos due to potential to mislead Best Evidence Rule Although the best evidence rule (essentially that the best evidence should always be provided) used to be one of the most fundamental laws of evidence, it now only applies to documents Best Evidence Rule = requires that when the terms of a document are material, proof of the terms of the document must be by production of the original. However, secondary evidence may be introduced if the proponent can satisfy the court that original is lost or destroyed or is the possession of another and cannot be obtained. R. v. Controni (1977) (Ont. CA) The only remaining instance of the best evidence rule is where the original document is available in your hands, you must produce it (i.e. you cannot give secondary evidence by producing a copy instead). Nowadays, we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. Aboriginal Oral Histories Delgamuukw v. BC (1997) (SCC) Issue: Whether the trial judge had erred in refusing to admit or give independent weight to oral histories submitted by the aboriginal appellants. In the Aboriginal tradition the purpose of repeating orals accounts from the past is broader than the role of written histories in Western society. Oral histories may be difficult to admit because they are woven with history, legend, politics and moral obligations, which interferes with the determination of historical truth As out of court statements passed through generations, they also tend to fall afoul of the hearsay rule. The law of evidence must be adapted in order that this type of evidence can be accommodated and placed on equal footing with other types of historical evidence. Since most aboriginal societies do not keep written records, a failure to do so would impose an impossible burden of proof on aboriginal peoples and trivialize their rights. Mitchell v. Minister of National Revenue (2001) (SCC) Although the majority in Delgamuukw ruled that the rules of evidence must be adapted to accommodate oral histories, they did not mandate blanket admissibility of such evidence or the weight it should be accorded – must be determined on a case by case basis. Aboriginal oral histories must meet the test of usefulness on two grounds: Must offer evidence of ancestral practices and their significance that cannot be obtained through any other grounds. Evidence must be reliable – but must avoid “facile assumption based on Eurocentric traditions” Photographs R. v. Schaffner (1988) (NSCA) A photograph is admissible in evidence if it accurately represents the facts, is not tendered with the intention not mislead and is verified on oath by a person capable to do so. R. v. Nikolovski (1996) (SCC) Facts: Accused was convicted of robbing a convenience store. The sole witness (store clerk) could not identify the accused with certainty even after viewing the robbery on videotape. Trial judge relied on her own comparison between the accused and the robber in the videotape to conclude that accused was the robber. Issue: Can a videotape alone provide the necessary evidence to enable the trier of fact to identify the accused as the perpetrator of the crime? Held: So long as a videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identify of the perpetrator – provides relevant and admissible evidence on the issue of identity. It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for identifying the accused as the perpetrator. The jury of trial judge sitting alone must be able to review the videotape during their deliberations, but the judge must be subject to the same cautions as a jury. Views If it is physically impossible to bring the real evidence into the courtroom, the courtroom may have to go to the evidence and take a view - rare, but they do occur (e.g. scene of the accident) Decision as to whether a view will be taken is properly within the discretion of the judge, who will assess the importance of the evidence against the disruption of the trial necessitated by the adjournment. Witnesses Competence and Compellability Competence: whether or not the witness is legally allowed to be a witness (enter the stand and give testimony) Refers to the ability to 1) observe, 2) remember and 3) communicate (intellectual ability to understand questions and give intelligent answers and moral responsibility to speak the truth) Although historically competence was more restricted, it has opened up significantly: Restrictions are now usually confined to children, spouses of the accused and persons of diminished mental capacity. Compellability: assumes that we have a competent witness, but notwithstanding competence, can the witness be compelled to enter the witness stand and testify (or to provide document) Privilege: arises once you have a competent and compellable witness in the box. Two type: Some privileges prevent the witness from answering questions (e.g. cannot breach client-lawyer confidentiality) Some allow the witness to refuse to answer certain questions (e.g. spousal or marital privilege) Oaths Historical evolution: At common law, witnesses were required to take an oath in order to be considered competent More recently, oaths have become more liberalized – no longer need to swear on the Christian Bible, but may swear on other religious texts or relics. Further, now some people may not swear an oath at all (usually for religious reasons) and instead make a “solemn affirmation”. The CEA prescribes no particular forms of an oath. CEA s. 14 allows individuals to take a non-religious form of an oath called a solemn affirmation stating that they “solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.” Children (under 14) Issue about to what extent we should be concerned about the evidence of children, especially when they are very young. Old regime: a child under 14 could not testify until the judge had conducted an inquiry to determine if the child understood the nature and quality of the oath. Further, their testimony had to be corroborated by other evidence. Today: no longer a requirement of corroborating evidence before a child’s testimony will be accepted - children’s evidence is no longer regarded as being inherently unreliable. However, must still treat the evidence with care – there may situations where it will be dangerous to accept the evidence of children. Old s. 16 is still the procedure for challenging the competency of a witness, but is limited to people over the age of 14. There are almost identical provisions under s. 14 of the BCEA, which still remain in force despite the amendments to the CEA. New s. 16.1 has only been in power for about a year, so relatively untested. Part of a gradual evolution in the assessment of the ability of children to testify. Now more a matter of allowing children to testify and letting the judge or jury assess the reliability of the evidence. Old s. 16 of the CEA Judges automatically inquired into the capacity of all children witnesses to testify. New s. 16.1 of the CEA Children are presumed competent to testify. The burden is on the party challenging the child’s capacity to show that there is an issues as to the capacity of the proposed witness to testify. If a child could understand the nature of Children shall never give sworn an oath or solemn affirmation and was evidence (evidence under an oath or able to communicate the evidence, the solemn affirmation). Child witnesses child could give sworn evidence. always give “unsworn evidence” – that is, evidence given under a promise to tell the truth. The standard of competence for a child to The standard of competence for child to give unsworn evidence is that the child give unsworn evidence is that the child must be able to “communicate.” In light must be able to understand and respond of Marquard, this involved a capacity to to questions. observe, recollect and communicate. If a child was to give evidence on a No child witness shall be asked any promise to tell the truth, judicial questions regarding their understanding interpretation held that the judge should of the nature of the promise to tell the first ensure that the witness understood truth to determine whether their the nature of a promise to tell the truth evidence shall be received by the court. and what it mean to tell the truth. Although the section did not state this, The statute now explicitly states that unsworn evidence had the same effect as unworn evidence of a child has the evidence taken under oath or solemn same effect as if it had been given affirmation. under oath. Mental Capacity CEA s. 16(1): If a proposed witness is 14 or older and their mental capacity is challenged, then the court shall conduct an inquiry to determine: (a) whether the person understands the nature of an oath or a solemn affirmation and (b) whether the person is able to communicate the evidence. Spousal Incompetency Rule At common law, party’s litigant (e.g. accused) and spouse were incompetent in both civil and criminal cases Now, in civil proceedings, party’s litigants are competent and compellable (e.g. see BCEA s.7) Now, in criminal proceedings, common law partially changed by CEA s.4 by removing the incompetency of spouses: s.4(1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, of the person charged is a competent witness for the defence (not for the Crown!) whether the person so charged is charged solely or jointly with another. The accused is in control of their defense so no compellability issue for accused by defense. Note accused remains incompetent for the Crown (and s.11(c) of the Charter says accused cannot be compelled by Crown) Exceptions: When is a spouse competent/compellable for Crown? By common law spouse is generally not competent - Salituro Wife or husband of accused is both competent and compellable for the Crown: s.4(2) specified sexual/morals offences or s.4(4) specified serious offence where complainant/victim under 14 – spouse s.4(5) Nothing in this section affects a situation where a wife or husband of accused may at common law be called as a witness without the consent of that person. I.e. preserves common law exceptions. Where the threat involves a threat the life, liberty or health of the spouse, they are competent to testify at common law, though unclear if this means that they are also compellable. Has been interpreted fairly liberally in terms of what constitutes a threat to life, liberty or health. Salituro: if there is evidence that the marriage is irretrievably broken down and they are irreconcilably separated, then spousal incompetency doesn’t apply Who is a spouse? “Common law spouse” is used quite loosely, although it has a very specific meaning. Must be legally married before you can invoke spousal privilege or spousal immunity – has to be more than just living together. Since the legalization of same-sex marriage, these relationships have been incorporated into law Test for Spousal Incompetency: Is the witness the spouse of the accused? (includes same-sex marriage, if common law then not included but open to Charter challenge) Spouse of accused is competent and therefore compellable for the accused (4(1) CEA) Spouse of accused is neither competent nor compellable for the prosecution (4(1) CEA does not speak about the prosecution and so the common law rule from Salituro still applies) Unless one of the following exceptions applies: The crime is of a sexual nature (4(2) CEA) Against children under age of 14 (4(2) CEA) The accused has threatened the well being of the spouse or children (4(5) CEA) The spouses are irreparably separated (Salituro preserved by 4(5) CEA) – irreconcilability is determined by judge test = “no reasonable prospect of reconciliation” (Salituro) – this makes the spouse competent (but does not address compellability) 4(3) Spousal privilege When placed on the stand, the spouse has the right to refuse to answer certain questions when they are on the witness stand. This is different from spousal privilege (4(3) CEA) Privilege still intact even where are a competent and compellable witness (how does this effect irreconcilably separated spouses?) Self-Incrimination Designed to prevent state from being able to conscript the accused – based on PFJ that should not be compelled to testify against oneself Up to crown to prove case against you Non-Testimonial Aspects Since the Charter, courts have recognized that the broad principle against selfincrimination can be extended to non-testimonial evidence. However, for our purposes we will only be discussing self-incrimination in the context of testimonial evidence. Before Trial Common Law: Right to Silence (Turcotte) Need to distinguish between: Common law right to silence: applies prior to arrest or detention Section 7 right to silence (Hebert): is only triggered upon detention R. v. Turcotte (2005) (SCC) Facts: Three victims murdered. Accused admitted to finding the victims, but denied killing them. Had called the police and asked for a car to come, but refused to answer police questions about why they should send a car. Judge instructed the jury that they could not use the accused’s refusal to answer questions to draw an inference of guilt. He later instructed the jury that it could be considered “post offence conduct” and that it was the only substantial evidence proving guilt. Issue: Did the trial judge err in designating the accused’s refusal to answer questions as “post-offence conduct”? Held: It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt. There are circumstances where the right to silence must bend: E.g. Accused fails to provide an alibi in a timely and adequate manner Since the accused was under no duty to speak to the police, his failure to do so was irrelevant The accused’s refusal to answer questions, although not admissible as “post offence conduct”, was admissible as an inextricable part of the narrative between the accused and the police. However, having admitted his silence into evidence, the trial judge was obliged to tell the jury in the clearest of terms that it could not be used to support an inference of guilt. To avoid prejudicial effect, the jury must be instructed on: Proper purposes for which the evidence may be used Impermissible inference which must not be drawn from silence Limited probative value of silence Dangers of relying on such evidence Common Law Confession Rule Confession admitted if Crown shows (burden of proof) it was obtained voluntarily Confession = out-of-court statement, oral or in writing, either exculpatory or inculpatory The governing principle: confession is “voluntary” if it has not been obtained: Either by fear of prejudice (e.g. beaten up) or hope of advantage (e.g. tell us and we won’t charge you or your family) Exercised or held out by a person in authority (e.g. police) Charter Right to s. 7 (Hebert) Limits on s. 7 right to silence – triggered by detention (doesn’t apply to undercover operations) State may not indirectly undermine your right to silence through coercive means Right to silence doesn’t affect confessions made to cell mate Not violated where undercover agent doesn’t actively elicit information from the detainee (may sit passively) Essence of the rule is choice – if you’ve clearly asserted your right to silence, this right may not be undermined by police trickery R. v. Hebert (1990) (SCC) Facts: suspect phoned lawyer, then told police did not want to make statements to them, and put in cell. Undercover cop engaged accused in conversation, led to incriminating statements. Rule: although ruling from pre-Charter case Rothman v. The Queen (1981) (S.C.C.) might have allowed this kind of deception because not subjectively person in authority. However, the Charter presents additional considerations: Pre-trial right to remain silent is a fundamental principle of justice under s. 7 of the Charter Police must not engage in tricks to effectively deprive a person in custody of the right to choose whether to speak to the police or not Police can question the accused in the absence of counsel after the accused has retained counsel provided the police do not do anything to effectively deprive the accused of his choice to speak or not to speak Right to silence only applies after the accused is in police detention Right to silence does not prohibit admissibility of voluntary statements made to fellow cellmates (providing the cellmate is not a state agent) Right to silence not violated if an undercover police agent simply observes and listens to any conversations which the accused may have, as long as the agent does not “actively elicit information” Witness Testimony CEA s. 5 – Compels an Answer but Gives Use Immunity Witness invokes s. 5 when apprehend a risk of self-incrimination Judge has limited role in policing the use of this section (after Noël has limited role in making sure it is invoked in good faith but by and large the statute and not the judge confers the immunity) History at Common Law At common law, when testifying the accused may refuse to answer a question on the principle that is may self-incriminate them. S.5 of the CEA: takes away the common law privilege of refusing to answer, compels the witness to answer, and then enacts a statutory protection – use immunity Those answers may not be used against you in any subsequent prosecution. CEA s. 5 5(1) abrogates CL rule and 5(2) sets out the use immunity: S. 5(1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person. S. 5(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence. Charter s. 13 (Henry) – Incriminating Evidence Shall Not be used in Other Proceedings Section 13: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence s. 13 does not require the witness to invoke the right is activated as soon as witness testifies and the later charged with an offence So like s. 5 offers “use immunity” but ex post facto Also does not protect you in cases of perjury So sections activated differently but once activated have same effect and s. 13 almost entirely eclipses s. 5 of the CEA If clearly about incriminating then s. 13 sufficient But may want to refer to s. 5 out of an abundance of caution Noel: explains the theory behind s. 13 described as quid pro quo i.e. in exchange for compelling you to answer, we will give you a use immunity R. v. Dubois Facts: Accused admitted at 1st trial that he killed the deceased but says that was self-defence self-defence plea rejected and he was convicted. On appeal some other point found to have been a misdirection so goes to 2nd trial where Dubois chooses not to take the stand and Crown wants to use prior testimony. Held: on the plain reading of s. 13 this would violate what s. 13 directed at and also contrary to s. 11(c) – cannot use testimony from first trial in second trial So “proceedings” include 2nd trials (that are essentially the same trial) and thus is the source of all the problems with s. 13 R. v. Mannion Facts: Rape charge. Accused testified at first trial and later decides to testify at his second trial. However, his second testimony was different from his original testimony. Crown wanted to cross-examine him on this issue. Held: You cannot cross-examine the accused on his earlier testimony because it would be using his original testimony to incriminate the accused. R. v. Kuldip (1990) Facts: Accused charged w/ failure to stop at a scene of an accident defence is that immediately left scene to go to report the accident at the police station convicted and then on appeal conviction quashed and goes to 2nd trial on same charge. Issue: At 1st trial, Kuldip testifies about Const. Brown when he relates how he went to station immediately after the accident but find out that Brown was not working at this time and so at 2nd trial Kuldip does not say that Const Brown was at station when relating his actions and so Crown wants to impeach this as an inconsistent statement Defence argues s. 13 but court disagrees Held: Made a distinction between cross-examination: Intended to incriminate (goes to the heart of their defence) – impermissible as in Mannion Intended to question credibility – then permissible Only prohibits incriminatory uses of past testimony if the purpose is simply to impeach (to show an inconsistency) then this is permissible cross-examine on credibility. But after this case, questions on the difference between impeaching (attacking credibility) and incriminating: Addressed in Noel – 1st case where both s. 5 and s. 13 at play together R. v. Noel Facts: Accused charged w/ and found guilty of murder had previously testified at his brother’s trial where invoked s. 5 of CEA and admitted to being an accomplice to the murder. Later during his own trial for murder, clear that can not use these statements for substantive content – but issue over use to impeach credibility. Noel in own trial as his defence argues that not an accomplice, had nothing to do with murder and only helped to dispose of the body. So crown faced with inconsistent statement and crown wants to follow Kuldip to impeach – BUT statement is very incriminating and asking jury to ignore this and use it anyways so court reinterprets Kuldip Held: That Kuldip only applies for circumstances in which there is no realistic danger that the prior testimony will be used to incriminate the accused But differentiating between two uses will be tenuous (in this case too intermingled) – but essentially where prior testimony is impeaching but also tends in some way to incriminate then s. 13 will not permit Crown to use the prior testimony This has the effect of rolling Kuldip back to cover almost nothing – so fact that crown trying to use to impeach will not erode s. 13 unless there is “no possibility … to draw inference of guilt” and will only have evidence used in “exceptional circumstances” – likely where the point you are impeaching on is pretty trivial Need to distinguish between Dubois, Mannion and Kuldip where the accused voluntarily testified and Noel where the accused was compelled to testify. Summary of Henry Left Dubois in tact – ruled that it was in fact a case of compelled testimony Basically overruled Mannion Left the result of Kuldip, but got rid of the distinction Left Noel in tact R. v. Henry (2005) (SCC) – Leading Authority Facts: Accused was convicted of murder. The testimony given by the accused at his first trial varied significantly from his testimony at his second trial. The Crown cross-examined the accused extensively on the inconsistencies between the two testimonies. The defence tried to appeal to s. 13 for protection BCCA: Section 13 could not be interpreted so as to create a constitutional right to swear falsely in one’s own defence – doesn’t give you the right to make up a new story when your first one fails. Held: Appeal dismissed. The consistent theme of s. 13 is that the purpose is to protect individuals from being indirectly compelled to incriminate themselves (asserted in Dubois, Kuldip, Noel) The court addressed a number of previous court decisions: Dubois: an attempt to compel testimony at a retrial Held: concluded that the reference in s. 13 to “other proceedings” includes a retrial on the same indictment and therefore extended protection to them. UPHELD: The rationale for extending s. 13 to a retrial is because when a new trial is ordered, the accused is entitled not to testify at all – allowing the Crown to file the testimony given by the accused at a previous trial would be indirectly compelling the accused to testify Mannion: involved the use of prior voluntary testimony of the accused at the retrial Held: Followed Dubois in extending s. 13 protection to a retrial OVERTURNED: Distinguished from Dubois where the earlier testimony had been compelled and the Crown sought to pre-empt the right of the accused not to testify. However, in Mannion, the accused freely testified at both his first and second trial - therefore there was no compulsion. S. 13 is not available to an accused who freely chooses to testify at his or her retrial on the same indictment “Accused persons who testify at their first trial and then volunteer inconsistent testimony at the retrial on the same charge are in no need of protection from being indirectly compelled to incriminate themselves and s. 13 protection should not be available to them.” Kuldip: involved the use of prior voluntary testimony of the accused at the retrial Held: allowed cross-examination of the accused on the inconsistent testimony he volunteered at his first trial. UPHELD: Cross-examination of the accused on inconsistent testimony should be allowed. HOWEVER: Get rid of the distinction between compelling a witness with intent to incriminate and intent to impeach credibility – if the contradiction reasonably gives rise to an inference of guilt, s. 13 does not preclude the trier of fact from drawing the common sense inference. Noel: attempts by the Crown to use the compelled testimony of a witness at an earlier trial who had become the accused at the later trial. Held: Earlier compelled testimony as a witness is not admissible at a later trial as an accused – violated the protection of s. 5(2). UPHELD: The witness was compelled by s. 5(1) of the CEA to testify as a witness and consequently invoked the protection of s. 5(2) – that this evidence shall not be used against them for any purpose, including impeachment of credibility. FURTHER, under CEA s. 5 and Charter s. 13, prior compelled evidence should be inadmissible against the accused except in a prosecution for perjury or for giving contradictory evidence. Overall comments: When viewing cases of this nature, it’s important to return to the core theme of Dubois: the purpose of s. 13, when viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves. To the extent that other cases are inconsistent with the rationale of compulsion, they should no longer be regarded as authoritative. Summary of s. 13 After Henry Section 13 only protects against the use of prior compelled testimony, and not against the use of testimony previously volunteered. Where an accused was earlier compelled to testify when they were not an accused (triggering s. 5 protection), such earlier testimony cannot be used to incriminate or to attack credibility (getting rid of the Kuldip distinction). Derivative Use Immunity S. 5 and 13 are concerned with “use immunity” but what about derivative use? Eg. Ben testifies at Trial that knew the accused had committed an armed robbery because I buried the gun at my house and so police go to look for the gun and find it At Ben’s prosecution for accessory clearly prior statement barred because of s. 13 but what about the gun? S. 5 and 13 do not provide derivative use immunity However the courts have said that section 7 (with a bit of 11(d)) provides a derivative use immunity So if state trying to use evidence against the accused that it would not have found but for earlier testimony at a judicial proceeding, s 7 provides this immunity (i.e. principle against self-incrimination and fairness of trial) the crown would then have to show on balance of probabilities that the evidence would have been discovered anyways Drawing Adverse Inference Can an adverse inference be drawn from refusing to speak and then refusing to testify? Before Noble, the law was that an adverse inference could be drawn CEA S. 4(6) Neither the judge nor the prosecutor can make a comment on the failure of the accused to testify (but open for the defence to do so). BUT it is the judge’s responsibility to instruct the jury NOT to put the accused silence on the scales! This is a fundamental flaw in the law Cannot look into jury’s reasoning or speculate on their reasoning and so no way to test the effects of this flaw (comments by Sopinka J in Noble) R. v. Noble (1997) (SCC) Facts: Accused identified in apartment block parking lot – conviction based on apartment manager’s testimony on the ID and on accused’s silence. Held: It is fundamental that the accused’s silence not be used against him goes against fundamental principle that not a competent and compellable witness for the Crown (i.e. fundamental principle regarding self-incrimination and conscription of E), and undermines the right to silence and presumption of innocence. Fundamental then that accused silence not be granted evidential weight s. 7,11 (c) & (d), 13!! Exception to Rights of the Accused: Alibi The Crown can cross-examine the accused on his or her alibi narrow exception to the impermissibility of using silence as evidence against accused – easy to fabricate alibi and diversion from main inquiry. Also where alibi defence not disclosed at a sufficiently early time to permit Crown to investigate, the trier of fact may draw and adverse inference from the accused’s pre-trial silence (exception to accused’s right to silence and drawing adverse inference regarding credibility based on failure to testify at trial) These exceptions dealt with via s. 7 and PFJ balancing as seen to be ok by court Note on Corporations: Miller Corporations do not benefit from this privilege and employees of the corporation can be compelled to testify against the corporation. Manner of Questioning When are leading questions appropriate? Leading question: questions which directly or indirectly suggest to the witness the answer he is to give. Leading questions are appropriate: During cross-examination – they are the essence of cross-examination Not permitted in direct examination (examination-in-chief), but there are exceptions: Generally allowed when nothing important is at stake (e.g. asking their address, name, background history) A party must not lead their witness on material points - anything relating to the material facts of the case or the credibility of the witness Maves v. Grand Trunk Pacific Railway Co (1913) (Alta. C.A.) counsel must not ask leading questions (i.e. must not lead your own witness) with respect to important matters in dispute i.e. questions that assume facts not yet in evidence or that suggest an answer: E.g. “what color was the light” is ok, but “the light was green wasn’t it” is not ok if the light’s color is at the core of the litigation However, “when you saw D’s car hit P, where were you” is ok if the witness just said they saw D’s car hit P, although should not often repeat witness’s evidence like this if it was clear (i.e. seen as trying to increase influence on jury) Should lead in some situations (but only the kind of questions where an answer is suggested) such as: Introductory matters e.g. presenting an expert’s CV (“you have published XYZ have you not” so expert doesn’t appear too big-headed) Identification of persons or things Contradiction of statements made by another Complicated or technical matters Where leave has been obtained to cross-examine an adverse witness Witness is having trouble and leave is granted to lead witness Where question will refresh memory and leave has been granted Any other case where leave has been granted in the interests of justice However, in exercising his discretion to allow leading questions, the trial judge should not treat the exceptions as a shopping list. R. v. Rose (2001) (SCC) Crown counsel examining-in-chief a person who has made a deal with the Crown to implicate the accused. Provides a transcript of leading questions. When you read this directed examination, it reads more like a cross-examination because leading questions are the essence of cross-examination. However, leading questions are not permitted (with a few exceptions) in the examination-in-chief. In this case there was failure on the part of the defence counsel to adequately object to leading questions. What is the difference between present recollection revived and past recollection recorded? Present recollection revived – e.g. witness on stand under stress forgets crucial point, need something to jog their memory, and although Rappy, US v. (1946) perhaps fanciful (a “song, a scent, a photograph, and allusion, even a past statement known to be false”) counsel can backtrack and ask a few more questions to revive witness’s memory. But if that doesn’t help, can move to show witness previous statements / documents / transcripts / photographs / etc (e.g. notes made by police officer during investigation or at discovery), and if that doesn’t work can ask for adjournment, but of course credibility going down and opposing side will remind jury of this Contrast to using such evidence (e.g. previous statements) substantially: the refresher statement/document is not substantive so usually not considered evidence (so can’t refer to it in closing arguments for example) but often want to get it on the record (e.g. in case of appeal) as an “exhibit for identification” (which is anything that has been used/looked at in court but is not evidence i.e. has not been authenticated and has no claim as to admissibility as evidence) R. v. Wilks (2005) (Man. CA) The following elements must be demonstrated to establish a foundation for refreshing the recollection of a witness: Witness knows the facts, but has a memory lapse on the stand Witness know his report or other writing will refresh his memory Witness is given and reads the pertinent part of his report or other writing Witness states his memory has now been refreshed Witness now testifies what he knows, without further aid of the report or other writing. Past recollection recorded: the record or document itself is the evidence because the witness has no independent recollection of the event. Courts impose stringent criteria to allow this kind of evidence to be introduced – most jurists view it as an exception to the hearsay rule. No expectation that the witness would still have this recollection in memory but document made at or near the time of the event when the memory of the witness was still fresh (e.g. very detailed or routine recorder info, would actually be suspicious if witness claimed to remember it). R. v. Wilks (2005) (Man. CA) Criteria for admitting past recollection recorded from Wigmore on Evidence: The past recollection must have been recorded in some reliable way At the time of recording, it must be have been sufficient fresh and vivid to be probably accurate. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time.” The original record itself. Must be used, if it is procurable. R. v. B(KG) (1998) (Ont. CA) Court simply said that there is nothing wrong with looking at your previous summary to refresh your memory: When a witness refreshes her memory from some external source or event, she has a present memory, albeit one that has been refreshed How reliable and truthful her recollection is will be determined by the trier of fact R. v. Mattis (1998) (Ont. Prov. Div.) Notebooks of the two officers were essentially identical – led to the suspicion that one officer had simply copied the notebook from the other. No evidence was offered as to how the notebooks could be identical Would be unsafe to base conviction absent confirming evidence Videotaped Statements by Children Criminal Code s.715.1 and s.715.2: in sexual offence cases, if complainant or witness under 18 (at time of alleged offence) or with mental or physical disability that affects their ability to testify, a videotape made shortly after alleged offence of witness/complainant describing the acts in question, is admissible if adopted by the complainant/witness. Concerns over these sections about full answer and defense, and ability to confront R. v. L (DO) (1993) (S.C.C.) upheld constitutionality of s.715.1 (and no doubt s.715.2 would be similar). R. v. F (C) (1997) (S.C.C.) concerned meaning of “adopt” – if witness cannot adopt the whole videotape either because they don’t remember it all or because their current recollection is now inconsistent with some of what they said in videotape, still admissible since: Perhaps most needed in such situation since often child witnesses do forget parts of what happened Videotape shortly after events more likely to be accurate than testimony now Purpose of s.715.1 is to enhance truth seeking role of the courts by preserving early account and preventing further injury to child through involvement in the criminal process What are the scope and limits of cross-examination? Scope Unlike in the US where cross-examination is confined to attacking credibility, in Canada cross-examination is wide open – as long as its relevant, you can delve into anything Limits Always subject to the trial judges overriding discretion to ensure that it’s not irrelevant, abusive, etc. Two main issues: Are there limits on what you can ask in cross-examination? Is there ever a duty to cross-examine? What are the consequences of not cross-examining a witness on an important factual issue? When can a party bring independent E to contradict an answer given in cross? Limits: guiding case is Lyttle R. v. Lyttle (2004) (SCC) Facts: Accused charged w/ assault after being picked out of a line-up – defence theory based on crown disclosure that the victim was beaten over drug debt and intentionally picked out the wrong attacker from the line – Crown does not call officers who mounted this theory, forcing defence to call them as witnesses and give up stat right to address jury last. Issue: Debate over whether or not you can ask questions to pursue a theory that can’t be proven with other evidence—some suggestion that you couldn’t but this is then taken up on appeal Held: Counsel often believe a fact to be true w/out being able to prove it w/ facts other than cross-examination. Court clarifies by noting that can’t go on fishing expedition in crossexamination - but where have good faith basis for asking the questions then okay. Good faith basis comes from the lawyer’s sense of the likely accuracy of the information / evidence available to him and the purpose / relevance to the case. The right of cross must be broadly construed, but not abused. Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their PV. If has good faith basis for pursuing line of cross-examination then allowed to do so. Broad limits turn on good faith and ethical conduct of examining counsel. Rests on responsibility of lawyer as officer of court. Duty to cross—generally no duty to cross If somewhere else in your case by adducing E or arguing in submissions to jury, you are going to suggest that a witness was lying or mistaken (i.e. impeach) then you have to put this to the witness so has chance to explain - Rule in Browne v. Dunn, R. v. Dyck, R v. McNeill – rule in Browne v. Dunn is still in force (Ont CA in 2000) Seriousness will determine consequence—mistrial in serious cases or in less serious judge may put witness back on stand Rule from Brown v. Dunn Although it is not required that every witness be cross-examined, in certain instances fairness demands that it occur: if a party is going to contradict an opponent’s witness, that party should challenge the witness on cross-examination and give them an opportunity to confess or deny. Browne v. Dunn (1893) (English H.L.) – it is wrong to lie in wait – “If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him …” (in this case counsel closed with the argument that the witnesses were liars, but they had never been cross-examined). Howard – not open to the examiner to put a fact, or even hypothetical fact, that which will not become a part of the case (556) Collateral Facts Rule Is the collateral facts rule a rule about cross-examination? – NO!!! The collateral facts rule: the answer of a witness to a question concerning a collateral (i.e. side as opposed to core) matter cannot be contradicted by extrinsic evidence (i.e. evidence of any form other than out of the mouth of the witness you want to contradict). Two leading cases: Hitchcock (1847) (English Ct. Exch.) and Krause (1986) (S.C.C.) Collateral facts rule is a rule of practical necessity (trials have to end at some point, can’t have collateral spin-offs going on forever). So, ask how important is the matter and how long will it take, and is it worth the time to admit the impeaching evidence. Depends on the nature of the impeaching evidence: Evidence that relates to a substantive issue and a credibility issue. Not collateral Evidence that does not relate to a substantive issue in the case, but has relevance to credibility and is more than a mere contradiction. Not collateral Evidence that is relevant to credibility, but is a mere contradiction. Caught by the collateral facts rule! If your going to ask a question about a collateral matter, then you are stuck with the answer – cannot lead other evidence to contradict! McCormick If its important, its not collateral There are three kinds of facts that meet the test of being not collateral: Facts that are independently provable because they are relevant to the substantial issues in the case Independently provable through extrinsic evidence to impeach the credibility of the witness Lynchpin facts: not directly relevant to an issue in the case, don’t go to testimonial capacity Cases where a witness has claimed to see something that is critical but counsel has evidence that the witness was not there at the time – whole testimony relies on their being present Impeachment Impeachment: seeking to undermine the credibility and reliability of a witness – challenging that witness’ testimonial capacity Broadly speaking, there are five ways to attack the credibility of a witness: Attack the witness of prior inconsistent statement – probably the most effective and most frequently used Show that the witness is biased – emotional ties of kinship, hostility to a party, pecuniary interest, etc. Attack the character of the witness Show defect in the capacity of the witness to testify Bring another witness to contradict the testimony of the witness Prior Inconsistent Statement Important distinction between using a prior inconsistent statement to impeach your opponent’s witness and to impeach your own witness In the former, natural to want to attach the witness as part of the opposing case. The latter generally only arises when you are blindsided by your own witness – they have important evidence to give for you side, but they decide they are not going to cooperate. Impeaching your Opponents Witness The common law limitations with respect to collateral facts have been written into s. 10 and 11 of the CEA S. 10 governs cross-examinations on a written statement: witness may be crossexamined as to previous statements that they made in writing (or reduced to writing from an audio or video record) without showing the witness the statement prior to cross-examination Common law governs cross-examination on an oral statement: impeachment by proof of a prior contradictory statement could only be done if preceded by crossexamination of the witness on that particular matter. S. 11 deals with permission to prove extrinsic evidence and put it before a witness: the circumstances under which the statement was made must be mentioned to the witness before they can be asked whether or not they made the statement Proof that a witness made a prior inconsistent statement may be gained: Directly from the witness during cross-examination, or By proof from another witness Generally four steps in cross-examining on a prior inconsistent statement: Confirm with some precision the witness’ evidence in chief Confront them with the fact that they made an earlier statement Highlight the contradiction Decide on a strategy: Explore the contradiction to show the witness cannot be believed Leave the argument to counsel’s final address Get the earlier statement admitted as the truth Where the witness claims to have no knowledge of a fact about which he made a previous statement: An affirmative answer that was contradictory to a previous statement could be impeached However, a negative answer is not damaging, but merely disappointing, and may not be impeached. Impeaching Your own Witness If your witness changes their testimony at the critical moment, or says “I don’t remember, their counsel is usually taken by surprise CEA s. 9 contemplates situations where witness causing you trouble and you want to discredit them CEA s. 9(1): You are not allowed to impeach your own witness by showing general evidence of bad character. However, if in the opinion of the court, the witness proves “averse”, you may contradict them or show that the witness gave prior inconsistent statement. Definition of Averse – Wawanesa Averse was taken to mean “opposed in interest” which would include “hostile” but of course could be much broader CEA s. 9(2): If your witness made a prior written or recorded statement that is inconsistent with their present testimony, the court may, without proof that the witness is averse, allow you to cross-examine your witness on that statement (not at large). Issue with Impeaching Your Own Witness By putting someone on stand, you’re vouching for their credibility; can’t impeach them. Problem: someone has info that helps your case but is being very unhelpful. Witness forgets: can refresh memory pre-trial or On stand: “present recollection refreshed:” no leading questions ; can revive memory by “song, scent, photograph, an illusion, past statement ” (US v. Rappy) Extent to which witness needs refreshing goes to weight/credibility Witness couldn’t be expected to remember Past recollection recorded: witness can rely on document as a source of testimony if witness is able to assert that document accurately represents witness’ recollection at time recorded [eg. police notes, accountant’s financial statements] Witness becomes uncooperative or inconsistent (s. 9 CEA) Dealing with an “adverse” witness: At CL: could ask to treat witness as hostile and impeach and lead them. More then unhelpful, actually shows attitude against the party examining. Judge looks at demeanour and substance of the evidence. High onus to meet hostile. Adverse Witness: s.9 CEA has taken over CL rule. Lower standard than common law (Wawanesa), taking a position contrary to examiner s. 9(1) CEA: can have witness declared adverse adverse witness: judge concludes witness has assumed in her testimony a position opposite to that of the party calling them (have become “unfavourable”) – old CL standard higher “hostile animus” considers: demeanour, attitude, seeming credibility, circumstances (eg. threat/bribe), inconsistencies If found adverse, can cross-examine at large Re. prior oral statement - s. 11 CEA [can cross-examine on oral statement and prove by calling other witness, but have to give witness enough info re. the supposed occasion such that she can explain/confirm/contradict statement] s. 9(2) CEA: re. prior recorded inconsistent statement: judge can allow crossexamination on that statement Confined to written statments don’t have to apply to have them declared adverse can’t cross–examine at large can later use this statement to have witness declared adverse through 9(1) [easier to go through 9(2)] STEPS: Have witness going sideways—do you have written statement? If not go to 9(1) voir dire to have declared adverse; If yes ask “would anything help refresh your memory?” (give heads up that going to impeach) If W still says no can admit via 9(2) and then can use 9(2) evidence to go back to 9(1) impeach more generally What is the jury allowed to use the prior statement for though? credibility Whether you can use if for truth depends on hearsay R. v. Vivar (2004) (Ont. SCJ) Court declared the Crown’s own witness to be adverse and thus permitted the Crown to lead evidence on prior inconsistent statement under s. 9(1). R. v. Malik (2003) (BCSC) Arose in the “Air India” bombing trial Court declined to declare the witness “hostile” under the common law rule Hostile amicus is more than an interest at variance with that of the Crown Bias There are many different ways which bias of the witness may be used to impeach them. There are not set criteria for establishing bias, but they may include examples such as family or employment relationship or bribery to testify falsely. Once bias is established, since such feeling betray emotional partiality that may impair the witness’s ability to testify, evidence of bias is not collateral, but rather may be elicited in cross-examination or by extrinsic proof. If it is intended to impeach the witness by evidence of his prior conduct illustrating bias, it should be preceded by a cross-examination of the witness on this issue. R. v. Ellard (2003) (BCCA) Facts: Kelly Ellard was charged with the drowning death of Reena Virk. Ellard admitted to being involved in the swarming that preceded her death, but not the killing. Denied admitting being involved in the killings to other witness. In crossexamination, Ellard was asked to provide a reason why the witnesses would lie about the admissions. Issue: Credibility of the witnesses Held: Cross-examination held to be unfair because it shifted the burden of proof. A new trial was ordered. Character of Witnesses Historically, you could ask a witness for their opinion on the credibility of another witness. However, this has become more restrictive over time. Rowton Rule: the only evidence of bad character that is admissible from character witnesses is evidence of general reputation – not simply evidence of personal opinion Judges have discretion not to permit personal opinion on credibility to prevent “legal clutter” in the courtroom - might result in each side simply marching in a line of witnesses willing to offer their personal opinion on the lack of credibility of the opposing witness. May prevent such evidence on the basis of normally trifling value in comparison to the time take up to hear it. R. v. Clarke (1998) (Ont. CA) OCA attempted to call a hault to the line of witnesses brought to testify on the reputation of the accused Series of questions: Do you know the reputation of the witness as to the truth and veracity in the community in which the witness resides? If yes Is that reputation good or bad? From that reputation, would you believe the witness on oath? Judge has the discretion to allow questions 1 + 2, but shouldn’t generally allow question 3 – becomes a matter of personal opinion Accused as a Witness Some courts have recognized that the accused who chooses to become a witness exposes himself to a greater possibility of prejudice than an ordinary witness. The accused has special protections as a witness: Davison – have to bear in mind the dual nature of the accused as a witness – both the witness and the accused. As the accused, they are protected by an underlying policy rule against the introduction of evidence that shows them to be a person of bad character As a witness, their credibility is subject to attack under cross-examination Limitations are imposed with respect to the cross-examination of an accused which do not apply to an ordinary witness Policy rule which protects an accused against attack on their character lest the jury be diverted from the issue at hand, is not wholly subordinated by the rule which permits an accused to take the stand and be cross-examined on credibility. Different rules for regular witness and the accused as witness: Ordinary witness: open to cross-examination at large as to credibility Accused as witness: aside from questions regarding previous convictions, should not be cross-examined with regard to previous misconduct or unsavoury associations unrelated to the charge However, cross-examination relevant to prove the falsity of the accused’s evidence doesn’t fall within this ban. Titus - Cannot ask the accused about crimes for which they were not charged or crimes for which they are currently awaiting trial. CEA s. 12 only allows cross-examination on prior convictions. However, its open to ask witnesses that are NOT the accused about any criminal activity for which they may be awaiting trial. Hutton v. Way (1997) (Ont. CA) Civil cases demonstrating that the criminal record of the plaintiff should not have been put into evidence. The improper admission of the criminal record and the charge of sexual assault may well have coloured the quantum of damages awarded. R. v. Jones (1988) (Ont. CA) The appellant had not led any evidence of good character on his own behalf and thus had not put his character in issue. Improper for the prosecution to cross-examine him with respect to bad character Defects in the Capacity of a Witness The cross-examiner is always entitled, subject to the trial judges discretion, to attempt impeachment by questioning the witness’s general capacity to observe, recollect and communicate. When a witness, through physical or mental disease or abnormality, is not capable of giving a true or reliable account, an expert witness should be able to give evidence about the existence of this defect in capacity. R. v. Toohey (1962) (English HL) Allegation of assault against a gang of you boys by another boy. Question of whether the boy had actually been assaulted or whether he suffered from a mental defect that caused unusual hysteria and lead him to believe in events that may not have happened. Allowed expert evidence about the testimonial capacity of the witness. Can lead expert evidence to show that a witness lack a particular testimonial capacity, or at least an impaired testimonial capacity. Supporting Credibility General Rules on attempting to enhance credibility: Leading Evidence: Party may not ask questions or lead evidence solely to bolster the credibility own witness (little intros are generally okay) Rule against oath-helping: Presumption today is that when a competent witness swears and oath etc. that he or she is credible and so prohibit calling witnesses to speak to another’s credibility Credibility is always at issue but generally not allowed to bring E for the sole purpose of bolstering your witnesses credibility General rule: you may not attempt to support the credibility of your own witnesses until they have been impeached by the other side. May not lead evidence of a witnesses prior consistent statements – time consuming, redundant, unnecessary Prior consistent statement = must be consistent with previous testimony – made as a witness on the stand. Rationale: not probative of it truth (may be a consistent liar), even if has some PV it is minimal, if trier of fact expected to accept the statement for its truth then = hearsay and not admissible Exceptions where the rule against prior consistent statement is relaxed for reasons of fairness: Recent fabrication (to rebut): If the other side attacks the credibility by stating you fabricated this evidence after some point at which the event actually took place then can admit (allowed to rebut allegation of recent fabrication)—must be recent – i.e. if accused suggests that witness fabricating from outset then prior statement inadmissible Eg. At trial witness says attacker was blonde but not included in police statement. Crown can introduce E that prior to police statement the witness said the attacker was blonde to show that you had not fabricated a statement after the police statement. Not oath-helping rather is offered to rebut the allegation of recent fabrication. Express Assertion: why wasn’t this in your police report Implicit Assertion: any time the other side suggests that your witness made their testimony up respond with a PCS to show it pre-existed the time they suggest where witness fabricated E (come up when inference is raised in jury’s mind) Prior identification: Quality of identification – when witness identifies accused in court, evidence that the witness previously identified the accused is admissible to allow both parties to explore the reliability of the identification Recent complaint: Doctrine of Recent Complaint: Old CL rule applied to sexual offence cases — prior consistent statement of complainants in sexual assaults used to be automatically admissible because there used to be a requirement for recent complaints. Done away w/ in CC s. 275 “The rules relating to E of recent complaint are hereby abrogated: This does not mean though that the complainant can’t be cross-examined on the delayed complaint. Not uncommon for an accused to point to a delay to suggest that the complainant concocted the story. So still have the application of broader recent fabrication rules and thus the situation is not much different since complainant can still be asked about this. Crown can respond w/ prior consistent statement Narrative (vague) Prior consistent statements of a witness are admissible where they form part of the witness’s “narrative” F(JE) – specifically aimed at assault and abuse cases – complaints not admissible for truth of contents but for fact of their existence (and so not considered hearsay which requires E to be adduced for truth) – Also, narrative is considered probative Use of Experts Cannot call expert to testify that in his opinion the witness is telling the truth But can call expert to testify where not considered oath-helping — so evidence given that is relevant to credibility not about credibility No longer oath-helping but providing finder of fact with information otherwise outside their normal experience and so is necessary for them to make a sound evaluation Marquard Distinction There are two forms of possible expert E: Experts cannot give evidence about credibility – nothing that amounts to “I believe this person is telling the truth” E that draws a conclusion about your witnesses ultimate credibility is not admissible - Kyselka But can give evidence relevant to credibility – may testify to general propositions relevant to the ability of the accused to give testimony Evidence that is on human conduct and particular psychological and physical factors that are helpful and necessary in the jury’s assessment of credibility is admissible - Marquard Has to be a qualified expert and judge has to give a jury charge that credibility at end of day is their responsibility — do not be unduly influenced by expert E) So when faced with problem ask: is this about human behaviour OR about this witness? R v. Kyselka (1962) Facts: 3 Accused charged w/ raping young girl. Expert testified about the 16 yr old complainant’s mental capacity and issue of consent. Issue: Crown asks about the ability to fabricate stories. Expert testifies that not imaginative enough to concoct stories and so evidence on credibility – likely a truthful person Held: This was excluded but the scenario in this case is unclear – determined to be evidence about credibility because the jury could assess this issue on own—so usurping jury’s function and likely to confuse if allow such oath-helping evidence in. R v. Marquard (1993) Kid burned by nana case. Expert E about the fact that the child’s recollection/story of the event changed. Expert testifies that children frequently tell lies initially in such circumstances and information about why a child might lie to hospital staff on its own is admissible (setting context that jury may not necessarily know). Evidence would have been admissible if had ended here, but continues to describe the specific case and goes too far (gives her opinion about credibility). This case gives a restatement about the general principles “it is an axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion (may be too readily accepted as convenient way for jury to resolve difficult issue) unless testimony about feature’s of the witness’s evidence that are beyond lay person’s ability (put in context) Marquard restates rules on expert evidence: The witness must be an expert in the particular area of human conduct in Q The evidence must be of the sort that the jury needs because the problem is beyond their ordinary experience Jury must be carefully instructed as to its function and duty in making the final decision w/out being unduly influenced by the expert nature of the evidence Demeanour and Credibility Doubtful whether judges or jurors can accurately discern from the witnesses demeanour or tone of voice whether they are telling the truth Generally, bodily movements and the sound of the voice are better indicators than facial demeanour, but then only if the observer is acquainted with the normal mannerisms of the witness. However, judges, lawyers, jurors etc. are generally no better than chance at picking out a liar. R. v. Norman Issue: whether the trial judge had determined credibility on the basis of demeanour The credibility of witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. Intelligence, upbringing, education, race, culture, social status, etc. may impact a witnesses’ demeanour but have little bearing on their truthfulness. Corroboration Classic Rules of Corroboration The classic rules of corroboration were generally linked to the law of competence: women and children Judges were required to instruct jury that it was necessary to have corroborating evidence. Corroborating evidence was very strictly defined: evidence had to confirm a material particular and implicate the accused On the one hand, the law was under inclusive b/c it did not require corroboration for jail house confessions. On the other, it was over inclusive in that, trust worthy or not, child, woman under sexual assault, required it. It was also highly complex and did not address the central issue: whether the witness was telling the truth. Law of E has long considered some people and some allegations as presumptively less worthy of belief Short of calling then incompetent, the law viewed certain people and allegations as suspect Rules of Corroboration – not permitted to convict unless this witness’ evidence is supported by other evidence and historically has been a complex set of largely normative rules on how to figure out whose evidence required corroboration I.e. children, sexual assault victims, accomplices — all embedded with structural and ideological assumptions) Eventually these assumptions questioned referred to as a blind and empty formalism in need of reform Modern Law of Corroboration Now there are only three crimes which require corroboration: High Treason, Forgery, Procuring a feigned marriage Treason is case where do require corroboration s. 47 of CC—require material particular by E that implicates the accused Also see in forgery — s. 132 CC Corroboration rule for children is gone 659 s. CCC Corroboration around certain crimes—s. 274 of CC abrogates any formal corroboration rule around sexual crimes Main Vetrovec: There are no categories of witnesses that demand corroboration No magical way to instruct jury clear and sharp warning re dangers Brooks – if the person’s really unsavoury, it could be mandatory. E.g. jailhouse informants. Vetrovec v. The Queen (1982) (SCC) Facts: Accused charged with conspiracy to traffic in heroin – evidence of accomplices obviously important Issue: Should the E of an accomplice require corroboration? Should the judge comment on uncorroborated evidence of accomplice where it is testimony that might be relied upon to legally convict? Held: Court agreed that the evidence met the old corroboration test but then said that the old CL rule should be adjusted — refer to Law Reform Commission Caution required - identify couple of major problems with CL rule Procedurally old rule very cumbersome and complex Principled concern as well — no longer principled on old rationales So court says that the old strict rule doesn’t make sense — to much focus on formal stuff and not enough on central issue Cannot fix a rule to apply to all accomplices all that can be said is that the testimony of some may be untrustworthy and that “there is no special category for accomplices” Rule: if a judge concludes that a witness is unsavory and that this witness plays more than a minor role in the Crown’s case, then they may offer a sharp and clear warning drawing the attention of the jury to the risks of accepting the evidence of this witness without further supporting evidence. PRINCIPLE: in some cases, the jury should be warned about trusting a particular witness, and should look for evidence that makes them more comfortable with particular evidence Where the judge concludes witness is unsavoury (Q of law), and Jailhouse informants are likely unsavoury (Brooks) “Accomplices or of disreputable character” (Vetrovec) No longer concerned with particular kinds/categories of witnesses, but should be cautious for unsavoury witness whose testimony is central to the trial E.g. Unsavoury reputation (criminal convictions), agreed to testify for immunity / money, has some motive besides the pursuit of truth, is a jailhouse informer, admitted to a criminal record but offered excuses for convictions [from standard Vetrovec Warning guidelines] The witness plays more than a minor role in the Crown’s case, “Central position” in the purported demonstration of guilt (Vetrovec) Cn give a “clear and sharp warning to attract the attention of the juror to the risks of adopting, w/o more, the evidence of the witness.” She may, when helpful, give examples of the type of evidence that could help, but ultimately Not concerned w/ strict rules of corroboration evidence [which required that evidence both (1) confirms witness’ testimony in ‘some material particular’ and (2) had to implicate accused] Any evidence that’s helpful can be relied upon if helps jury believe unsavoury witness Goal is to have jury appreciate the risk and look for some evidence that will make them more confident re. the testimony of the unsavoury witness. The strength of the warning will vary w/ the degree of unsavoury-ness Hearsay Rule Introduction to the Hearsay Dangers Why we are concerned w/ hearsay stems from how we run CL trials — i.e. all E comes in through a witness Why do we require this? - “Hearsay Dangers” Best Evidence Rule: Accepted CL principle that we always want the best E available and insist on original not copy Oath: CL also puts a lot of stock in the binding value of the oath Chance to Observe and Assess Credibility: Central thing in determining facts of case is assessing the witnesses credibility — i.e. how the jury weighs E and so we want E to come in through a witness so that the finder of fact has this opportunity to evaluate Cross-Examination: Law has faith in capacity of cross to determine truth — E is thus tested in front of the jury Problem w/ hearsay it offends the above 4 principles “The Hearsay Dangers” R v. KGB Lamer J identifies these hearsay dangers – main worry is that the E is not subject to the rigors of the adversarial process Identifying Hearsay Evidence Principle: Out of court statements offered for the truth of its contents = hearsay and are presumptively inadmissible Out of court = statement by person not on stand Statement = does not just refer to spoken word, includes documents, photographs, etc. ANY assertion, as well as implied statements Offered for the truth of its contents = don’t know if is hearsay until know what the info is being offered for Only hearsay if the info is being offered as factually true, i.e. for the jury to rely upon as containing accurate info (key problem) If just made as a reference to an event that occurred not about substance then not hearsay (offered as act v. offered as truth) – Subramaniam Ask yourself: would this info be just as useful if the info in the statement was absolutely false? If yes then offered for some other use. Identifying Hearsay: What is the statement in issue? Is the declarant of the statement in issue on the stand right now? Is the statement offered for the truth of the information it contains or is it offered simply as an event that happened? Implied Statements: Implicit hearsay — when statement of declarant not on stand is offered for the truth of the fact that it implies and so turns out to be offered for the truth of the fact that it implies. R. v. Khelawon (2006) (SCC) The essential defining features of hearsay are: The fact that the statement is adduced to prove the truth of its contents When a statement is tendered as proof, the trier of fact’s inability to test the reliability of the statement raises real concerns The absence of a contemporaneous opportunity to cross-examine the declarant. Occurs when a witness does not adopt or repeat the information contained an out-of-court statement Concerns over the reliability of the statement also arise when the witness doesn’t recant the out of court statement but claims to have no memory of making the statement, or of the incident itself. Therefore, hearsay may extend to out-of-court statements even when the declarant is before the court. R. v. Tat (1997) (Ont C.A.) Facts: A witness testified that when he identified the accused in a police interview, much of what he had said was based on things he had been told by others and not on his own observations. Also admitted that he may have incorrectly identified the accused in a photograph. Held: Two situations where out-of-court statements of identification may be admissible: Where the identifying witness identifies the accused at trial (i.e. in the court room) Where the identifying witness is unable to identify the accused at trial, but can testify that they previously gave an accurate description or made an accurate identification Further, those who heard the description given by the witness or witnessed the identification may give evidence of what the witness said or did Approaches to Hearsay Historically: formerly “the rule against hearsay” was that hearsay was generally inadmissible subject to hard exceptions Exceptions were where there was reason to think it necessary and reliable enough so that fairness to party offering outweighed unfairness to other side not being able to cross-examine D Ares v. Venner (1970) (S.C.C.) said categories of exceptions were not closed (cited in Khan). These exceptions were usually tightly defined and applied rigidly which could lead to unfairness. E.g. dying declarations admissible even if made by D slowly dying and against their enemy or hated family member Modern approach is a flexible “principled approach to hearsay” – this was in response to some of the old unfairness from rigid rules: Khan, R. v. (1990) (S.C.C.) McLachlin J. Issue: Concerned admissibility of mothers evidence about what child had said about sexual assault 15 minutes after leaving Khan’s office (and there was physical evidence (stains on clothing) corroborating child’s statement) Arguments: it was argued mother’s evidence should be admissible either under res gestae exception to rule against hearsay, or as a new exception (for hearsay concerning children and sexual assault and statements made shortly after event) Decision: McLachlin said not under res gestae, and didn’t want to create a new exception (quoting Ares v. Venner) to the rule against hearsay (since if allowed exception here, then why not in many other such circumstances e.g. for statement made just after bank robbery, etc). So did not pigeonhole into new exception. Rather tended toward a principled approach, and said that in this case (which is on periphery of existing exceptions) evidence of mother should admissible if it was: Reasonably necessary Reasonably reliable: Comment: trial judge will determine reasonably necessary and reasonably reliable in voir dire, and will not tell jury why thought it reasonably reliable since this could usurp jury’s job in determining ultimate reliability Principled Approach Khan decision was well-received by both courts and academics, and 2 years later it was broadened: Smith, R. v. (1992) (S.C.C.) Lamer C.J. (unanimous) Lamer CJ: “this court’s decision in Khan, therefore, signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity.” Principled approach from Khan described as hearsay will be admissible if it is: Reasonably necessary Not “necessary to the prosecution’s case” Must be given a flexible definition, capable of encompassing diverse situations. Comment: may include situations where declarant is unavailable because dead or can’t be subpoenaed from other county or perhaps can’t afford to travel to court (conflicting case law on such economic reasons), or maybe also because for some reason declarant can’t tell their whole story, because nervous / young / forgetful / too traumatised to testify / incompetent to testify because child or mentally ill Reasonably reliable Can speculate/hypothesize as to possibility of declarant having been mistaken or dishonest Looking for a reasonable circumstantial guarantee of trustworthiness which is a function of the circumstances under which the statement in question was made Comment: subsequent cases have referred to this as threshold reliability. Threshold reliability likely to be higher requirement for hearsay offered by the Crown than by the accused, and in criminal than civil cases “Where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.” - Smith Probative value outweighs the potential for prejudice Probative value determined according to: Reliability / strength of the evidence. Strength / extent of the inferences it leads to. Importance of fact in issue those inferences relate to. Potential for prejudice means potential to make trial unfair, and includes: Fairness to parties and to witnesses Potentially distorting effect it could have on the outcome of the case E.g. could it invite improper inferences E.g. extent to which it could excite / inflame the jury E.g. character evidence can lead jurors to think accused is bad type of person and such people do things such as what accused is charged with E.g. extent to which it may confuse the issues Practicalities of presentation and response R. v. KGB (1993) (SCC) Facts: Street fight death 4 men involved: accused and 3 “witnesses” who are questioned by police (videotaped) but change story on stand regarding accused’s incriminating statement. On s. 9 admission of tape Crown impeaches with prior statement – cannot use though since they want to rely on this statement as truth (it is their best evidence) – prior to KGB inadmissible they say that they had lied during investigation – trial judge holds that evidence can go to credibility not identity later the 3 plead guilty to perjury Issue: Substantive admissibility of prior inconsistent statements by witness other than accused Held: Court decides to analyse in light of Kahn and Smith (pre-Starr) Affirm reliability and necessity and articulate that prior inconsistent statements will be admissible for their truth if they are necessary and reliable Necessity: how do you determine necessity? Where else can we get the statements’ truth from – no other way it can be relied upon – i.e. no other way to get evidence of same value since witness now refuses to cooperate Reliability: Most analysis occurs under this branch – indicia of reliability – i.e. looking to Smith – this is a question of law and not fact. If you have statement under oath, solemn affirmation, after a warning about consequences of not telling truth, and if it is video-taped in its entirety this is sufficiently reliable – although have only seen this applied to videos, could apply elsewhere. And if the opposing party, has a full opportunity to cross the witness now on the stand respecting this prior statement Starr, R. v. (2000) (S.C.C.) Says definitively that principled approach should be used i.e. that hearsay is admissible only if it is reasonably necessary, reasonably reliable and probative value outweighs potential for prejudice Further, old exceptions (i.e. pre-Smith) still helpful but must be interpreted / re-examined in a manner consistent with principled approach (and so are open to question – e.g. old dying declarations made against enemy would now unlikely be admissible, since not reasonably reliable). When determining reasonable / threshold reliability should only take into account the circumstances of the statement (including relationship between D and who they were talking about, history of D’s perjury, etc). So cannot take other evidence into account, otherwise judge would be usurping role of the jury (e.g. if the statement is corroborated by other evidence, as McLachlin seemed to suggest in Khan.) – reversed in R. v. Khelawon So should always now start with Smith, but if the issue looks like it falls within one of the old exceptions to the “rule against hearsay” mention it and the idea behind it, but say now open to review. R. v. Khelawon (2006) (SCC) It has long been recognized that a rigid application of the hearsay rule would result in the unwarranted loss of much valuable evidence. Governing framework summarized in R. v. Mapara Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. Traditional exceptions to the hearsay rule remain presumptively in place A hearsay exception can be challenged to determine whether it is supported by the indicia of necessity and reliability as required by the principled approach In rare cases, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established in a voir dire. Distinction between threshold and ultimate reliability: Ultimate reliability is concerned with whether the statement is true or not Threshold reliability is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. Functional Approach – Khelawon Step One: Is the proposed evidence hearsay? Requires that: The evidence is being tendered for its truth There is no opportunity to cross-examine the declarant Step Two: Hearsay evidence is presumptively inadmissible – general exclusionary rule Step Three: Is there a traditional exception to the hearsay rule? If the evidence falls within one of the traditional common law exceptions, then it is admissible - Starr However, in rare cases the exception itself may be challenged. Step Four: Exceptions – principled approach – must establish the necessity and reliability of the hearsay evidence. Two primary ways to satisfy the reliability requirement: Show that there is no real concern over the truth of the statement – show that the statement was made in circumstances where there is a high probability of its trustworthiness Show that there is no real concern from the fact that the statement arises in hearsay form because its truth and accuracy can nonetheless be adequately tested. Overrules Starr with respect to limiting the inquiry to the circumstances surrounding the making of the statement Now allows for some consideration of extrinsic corroborating evidence! Allows for case by case flexibility looking to all the facts Foster on the Impact of Khelawon and Starr There is still a distinction between threshold and ultimate reliability. There has to be, because there is a distinction between admissibility and probative value. The judge decides if the hearsay is admissible, including the question of threshold reliability The jury decides its probative value in the context of all the evidence in the case and whether this evidence meets the burden of proof on the crown. However, Khelawon departs from Starr by making it clear that factors relevant to deciding admissibility (meaning whether the hearsay is reasonably necessary and sufficiently reliable to "pass the judge" and go to the jury) should not be categorized in advance but will depend on the facts of each case. The SCC describes this as a "functional" approach, which is another way of saying that it is more in accord with the "principled" approach announced in Khan, etc. Starr, on the other hand, stated that some factors - such as the presence or absence of corroborating or conflicting evidence, the reputation of the declarant for truthfulness, etc. - were relevant only to ultimate reliability. That is, they were solely for the jury. The judge was not to consider them when deciding threshold reliability. This was inconsistent with the SCC's own decisions in cases such as Khan and Smith and, rather like KGB, seemed to head us all back to a "rule-based" approach. Khelawon changes this. The trick for the trial judge is deciding threshold reliability without invading the province of the jury. As Justice Charron puts it, "it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be predetermined on the admissibility voir dire" Determining Necessity R. v. Parrott (2001) (SCC) Although the concept of necessity must be given a flexible definition capable of encompassing diverse situations, it must nevertheless be established on the facts of each particular case R. v. Couture (2007) (SCC) Facts: A controversial 5-4 decision in which the SCC dismissed the Crown’s appeal and ordered a new trial for David Couture, a man sentenced to life in prison without the possibility of parole for sixteen years. In July of 2003 David Couture had been convicted of two counts of second degree murder. The victims were Couture’s former live-in girlfriend, Darlinda Lee Ritchey and her friend, Karen Ann Baker, both of whom went missing in 1986. Owing to a lack of forensic evidence and eyewitness testimony, the convictions were based in large part on two out-of-court statements made by Couture’s wife, Darlene, to police in 1997. Owing to the spousal incompetency rule, Mrs. Couture could neither be called as a courtroom witness, nor could she be cross-examined regarding her statements to police. Her statements were thus hearsay and the legal issue became one of admissibility. Her statements were nonetheless admitted at trial because they were deemed to have met the separate requirements of ‘necessity’ and threshold ‘reliability’ which constitute the principled exception to the hearsay rule. In order to justify the admissibility of Darlene Couture’s statements, the trial judge relied heavily upon the SCC’s 2006 decision in R. v. Hawkins. In Hawkins, a case concerning a police officer charged with obstructing justice and corruptly accepting money, it was held that a spouse’s hearsay statements could be admitted according to the exception to the hearsay rule. Held: At the SCC, the majority (consisting of McLachlin C.J. and Binnie, LeBel, Fish and Charron JJ) found that the admission of Darlene Couture’s statements under the principled exception of hearsay would seriously undermine the spousal incompetency rule and its objectives. This, of course, stands in contrast with the SCC’s decision in Hawkins. Thus, the majority found ample reasons to distinguish Hawkins. The Court stated that: “It is important to keep the spousal incompetency inquiry analytically distinct from the hearsay inquiry. As explained earlier, the spousal incompetency rule is based on different rationales that are unconnected to the reliability concerns arising from the hearsay nature of the evidence.” Comment: Ultimately, the majority and the minority equally emerge at two polar extremes concerning the relationship between the spousal incompetency rule and those governing hearsay evidence. Exceptions to the Hearsay Rule Admissions Admission is admissible only against the party making the statement. Admissions of a party is the most important exception to the old rule against hearsay Beware “admissions” also used: For agreed statement of facts, a.k.a. “formal admissions” e.g. the accused admits he stabbed her For “confessions” – statements by accused to person in authority or agent of state Good rule of thumb: “Anything the other side ever said or did will be admissible so long as it has something to do with the case”. Huge amounts of hearsay are admitted in this way and often important for showing state of mind, and chances of the courts changing this under Smith unlikely (since usually sufficiently reliable and necessary etc.) and the party (e.g. accused) can always testify against it) This admissions exception includes each of the following: Statement made by the opposing party Example: law suit between two parties in a car accident – driver states “I’m so sorry, it was my fault” Act of the opposing party Admissions may be implied / inferred from a party’s conduct. Generally admissible, but will depend on the inferences likely to be drawn. E.g. Accused flees from the scene of a crime or when police visits accused’s home. Inference being this is an admission of guilt. Probative value considered low compared to potential for prejudice, so likely inadmissible (at least in criminal cases). Statement by a third person which is expressly or impliedly adopted by the opposing party i.e. “adoptive statements” (really “adopted” statements): Express adopted admission by words or conduct I.e. the party in some way indicates an acceptance or belief in the truth of the hearsay statement E.g. party says “I agree with what John said” then makes what John said admissible for the truth of John’s statement. E.g. Streu, R. v. (1989) (S.C.C.) accused charged with possession of stolen tires, Crown needs to prove they actually were stolen and relied on certain admissions made by the accused (“my friend told me he ripped them off”) to the police, accused held to have expressly adopted views of his friend they were stolen, so words of friend admissible for their truth Streu - where an accused makes an out of court admission, the test for whether or not the accused clearly adopts the admission is whether the accused treats the admission as true and acts upon it. Admissions by silence or some other non-express conduct that implies party adopted the statement I.e. a third person says or does something amounting to a statement, either in the presence of the party or it is brought to the party’s attention, then infer by what the party does or says that they accept that statement If a reasonable person would have said something, then silence may be considered as accepting the statement as true. However, cannot use the right to silence as a response – Chambers – cannot used the silence of the accused as an admission of guilt Fairly high burden on offering party to show strong basis for inferring party accepted the statement (party should generally be allowed to remain silent) so generally inadmissible unless it cried out for a response or party’s behaviour so unusual as to be suspicious Law of Agency (“vicarious admissions”): statement by opposing party’s agent (e.g. employee, partner) For principle to be bound by the statement of the agent, and hence to fall under admissions exception, requires: An agency relationship (e.g. employer-employee) with opposing party being the principle Statement made within the scope of that agency relationship i.e. statement within the scope of the authority of the agent Statement made during the existence of that agency relationship Common example of agency is partnerships, where each partner is in an agency-principle relationship with each of the other partners Confessions Unlike normal admissions, confessions are special - an admission is a confession if its made to a person in authority. Admissibility of a “confession” is determined exclusively by the law of confessions. A “confession” is evidence of a statement by an accused made out of court offered by the Crown to a person in authority or agent of the state A statement Includes words spoken, document written, assertive conduct that conveys meaning / substitute for words (e.g. pointed to where the body is buried) By an accused By the accused (so only dealing with criminal law here) on trial right now, includes any statement made by them during their entire life Made out of court Made in any setting outside a court of law or (perhaps) administrative tribunal, coroner’s inquest, etc. So a statement by accused in a previous trial does not fit here (instead see protection against self-incrimination) Made to a person in authority or agent of the state If statement made by accused to anyone else, admitted under the admissions exception to the old rule against hearsay (see above) Because its made to a person in authority, a whole bunch of other rules kick in - special kind of admission. Person of authority = someone officially involved in the arrest, examination of prosecution of the accused. Offered in evidence by the Crown Statements by accused can’t usually be offered by accused since self-serving Subjective test to determine who is a person in authority: Rothman v. R. (1981) (S.C.C.) Facts: accused in custody told police he didn’t want to talk to them. Police put undercover P.O. in cell with him, and he made inculpatory statements to undercover P.O. not realizing he was a P.O. Decision: A person in authority is a person whom the accused subjectively perceived could affect criminal proceedings against them. Not so here, so statements admitted. Comment: has since been overruled on it’s facts by Hebert & Broyles, but subjective test is still good law Hodgson, R v. (1998) (S.C.C.) Facts: parents of sexual offence claimants dissatisfied with police progress, so acted as vigilantes and roughed-up accused resulting in accused making inculpatory statements. Decision: Parents were not agents of the state. No evidence that accused perceived parent was a person of authority (even though parents had talked to police) Thus the statement was not a confession (and so admissible under the admissions exception). Test for admissibility for person in authority who is not an agent of the state: common law voluntariness = old voluntariness + admitting evidence will not being administration of justice into disrepute Up until the 1960’s mostly concerned with reliability: Ibrahim (1914) (J.C.P.C.) Involuntary if obtained by Fear of prejudice (e.g. violence or threats of violence) or Hope of advantage (e.g. allow food or sleep, offers a deal to lessen charge, won’t charge your brother, and certain phrases became taboo for police such as “it would be better if” or “there is a hard way and an easy way”) and held out by a person in authority and inducement caused the statement In 1960’s and 1970’s expanded beyond mere reliability to concerns of due process (i.e. rights / fairness to accused) and some courts used a separate oppression test that made statements inadmissible due to atmosphere of oppression even though no inducement held out to the accused (i.e. no fear of prejudice or hope of advantage). Rothman v. R. (1981) (S.C.C.) Facts: accused in custody told police he didn’t want to talk to them. Police put undercover P.O. in cell with him, and he made inculpatory statements to undercover P.O. not realizing he was a P.O. Decision: police can use tricks (such as undercover P.O. here) to get a confession from accused but not dirty tricks (so no dressing up as a priest and going into cell, nor as a lawyer or social worker). Modern era: KGB, R. v. (1993) (S.C.C.) Decision: Lamer C.J. in obiter said admissible only if voluntary, which involves two things: Traditional voluntariness, and Will not being administration of justice into disrepute Oickle (2000) (S.C.C.) Facts: Accused questioned about 8 fires set offered help if confesses, encouraged to confess, police officers lie to him about polygraph, refer to fiancé, minimize legal consequences of confessing etc. Held: Courts say this is not a problem (i.e. to breach CL confession rule have to really cross the line) But case useful in that gives a clear articulation on rule Crown must establish BRD that choice to speak to the authority was voluntary in the sense that it was note overborne by inducements, oppressive circs, or the lack of an operating mind so concern with voluntariness broadly defined (look to entire circs – context) Court states that questioning can be: persistent, accusatorial, suggesting benefits of confession OK, moral inducements OK, developing sense of trust OK Notes that accused reminded of rights many times, told he could leave etc., never told that he could only get help if confessed (no quid pro quo offered) Questioning cannot be hostile, aggressive, intimidating, cannot imply threats or hold out promises, fabricate evidence Who is an agent of the state? E.g. anyone working for the state, such as police officers (uniformed and undercover), prison guards, Crown counsel, etc. Hebert, R v. (1990) (S.C.C.) Facts: after accused said he didn’t want to make a statement, undercover P.O. went into cell of accused Decision: Doesn’t matter that accused didn’t subjectively know undercover P.O. was agent of the state. To determine if agent of the state, use objective test. Here, undercover P.O. clearly an agent of the state. Recognizing the power imbalance between accused and state, especially when accused in custody, if: Accused under arrest / charged / detained / a suspect, and Accused indicated they didn’t want to make any statements. Then Charter s.7 implies a right to silence, and a right not to have state use it’s coercive power to get any statements Sweeney (2000) (Ont. C.A.): all common law on voluntariness has been subsumed into Charter s.7 analysis i.e. if involuntary under common law, then violates s.7. Mandatory voir dire for admissibility of “confessions”, may waive, burden of proof varies A voir dire is mandatory to determine admissibility of statements by accused to person in authority or agent of the state. If Crown doesn’t request a voir dire before asking witness about statement, judge should immediately order one. If statement made to person in authority: Crown must prove beyond a reasonable doubt it was made voluntarily If statement made to agent of the state: If a subtle case: burden on defence to show Charter violation, so must show on a balance of probabilities that it was an agent of the state, that the statements were actively elicited, etc. But if question of oppression / traditional notion of voluntariness (i.e. fear of prejudice or hope of advantage) Crown gets to decide whether or not they will put the statement is in once its determined to be voluntary. But the whole statement must go in, subject to editing for fairness – some elements may hurt the accused, others may help. Oickle (2000) (S.C.C.) Facts: concerned arson, accused took polygraph test and failed it, police immediately afterwards interviewed him and obtained statements that helped their investigation against him. Issue: was whether these statements were voluntary or made in an atmosphere of oppression, and who had burden in voir dire to show this. Decision: where there is a question of whether an agent of the state acting oppressively, burden in voir dire will be on the Crown to show statements were made voluntarily (and this was the case here). R. v. Spencer (2007) Facts: Accused charged with robbery. Wanted to make a deal with the cops so that his girlfriend would not be accused. Held 5-2: A promise renders a statement involuntary if the quid pro quo raises a strong enough inducement to raise a reasonable doubt that the will of the suspect was overborne. Ruled that the accused will had not been overborne. R. v. Singh (2007) Facts: Accused was in custody. Stated that he didn’t want to talk, but the police persisted at great length. Eventually, accused does make some admissions that are useful to the Crown though not fully inculpatory. Issue: Accused did not contest the trial judges finding that the confession was voluntary. Only issue was whether even though the confession was voluntary, his section 7 right to silence nonetheless meant that it should be excluded. Held 5-4: in a situation like this, the common law confessions rule and the section 7 right to silence are essentially equivalent. Having determined that the confession was voluntary, the section 7 right to silence has therefore not been violated – his will had not been overborne. Para 38: Summary of Oickle – reminds us that the common law confessions rule is important and has certainly not been overshadowed by s. 7 right to silence: Has a broader scope: while the Charter is only triggered upon arrest or detention, the CL confessions rule kicks in whenever the accused is questioned by a person in authority. Charter has a different burden and standard of proof. For the confessions rule, the burden is on the state to prove beyond a reasonable doubt that the statement was voluntary. For s. 7, accused must show on a balance of probabilities that there was Charter violation. Remedies are different: if a Charter right to silence is violated, still discretion to admit it under s. 24. However, if the common law confessions rule is violated, there is an automatic exclusion Para 39 – describes situations where there is clear distinction between the confessions rule and s. 7 Turcott: pre-trial right to silence S. 7 may be invoked to prevent cross-examination on your silence Hebert – cannot use police trickery to undermine your choice not to speak. Cannot actively elicit, but may passively observe. Sweeney – derivative evidence - ?? Burden of Proof Evidence Standard Goal Common Law Confessions Rule Charter Rights to silence More procedural advantages – easier for the accused to prove Crown has to prove that confession was obtained voluntarily Evidence is excluded no matter what More protections – tends to catch more Key is if accused thought that the person was an authority – beyond a reasonable doubt Reliability and fairness Accused has to prove that there was a breach of rights If breach of rights – must go through 24.2 exclusion of evidence analysis Objective test of whether accused was denied the real choice – balance of probabilities Protection of rights Prior Inconsistent Statements Background to KGB: Transitional case in determining exceptions – i.e. this case came down between Smith and Starr So this case shows us how the categorical approach fits the principled approach Issue over Prior inconsistent statements: Subject to Collateral Facts Bar and s. 9 and 11 of CEA You can impeach a witness on a prior inconsistent statement – but what was the use you could make of a prior inconsistent statement? Credibility only prior statement does not snap in as truth (this statement is not raised for that “truth”) – this was the CL rule up to KGB – prior inconsistent statements admissible for credibility and not for truth since they are hearsay May be able to get around the hearsay rule though following KGB Declarant in stand: But hearsay dangers do arise with prior inconsistent statements even when declarant is on the stand If cannot get witness to adopt the prior inconsistent statement then: No oath on original statement No opportunity to observe the making of statement No cross-examinaiton of original statement Analogous to a declarant-less statement R v. B(KG) “KGB” (1993) Facts: Street fight death 4 men involved: accused and 3 “witnesses” who are questioned by police (videotaped) but change story on stand regarding accused’s incriminating statement; on s. 9 admission of tape Crown impeaches with prior statement – cannot use though since they want to rely on this statement as truth (it is their best evidence) – prior to KGB inadmissible they say that they had lied during investigation – trial judge holds that evidence can go to credibility not identity later the 3 plead guilty to perjury Issue: Substantive admissibility of prior inconsistent statements by witness other than accused Held: Court decides to analyse in light of Kahn and Smith (pre-Starr) Affirm reliability and necessity and articulate that prior inconsistent statements will be admissible for their truth if they are necessary and reliable Necessity: how do you determine necessity? Where else can we get the statements’ truth from – no other way it can be relied upon – i.e. no other way to get evidence of same value since witness now refuses to cooperate Reliability: Most analysis occurs under this branch – indicia of reliability – i.e. looking to Smith – this is a Q of law and not fact. If you have statement under oath, solemn affirmation, after a warning about consequences of not telling truth, and if it is video-taped in its entirety this is sufficiently reliable – although have only seen this applied to videos, could apply elsewhere; And if the opposing part, has a full opportunity to cross-examine the witness now on the stand respecting this prior statement So new categorical exception with principles of Smith in mind KGB provided criteria to even allow prior inconsistent statement of ordinary witnesses to go in. Categorical Exceptions Not as solid as above exceptions, but do come up from time to time – important to understand the CL background and then consider how they might be critiqued with principled approach Spontaneous Declarations: Exceptions for statements where such spontaneity that the possibility for concoction or fabrication could be discounted – CL rule was that res gestae were admissible if Related to a startling event or condition And made while the declarant is under the stress of excitement caused by the event or condition - Clark Bedingfield – no longer a contemporaneousness requirement. R v. Clark (1983) Facts: Was this murder or self-defence? (stabbed with comb 16 times! After confronted by accused now says she was going to retrieve lawn chairs and acted in SD) Issue: Witness was neighbour and so hearsay statement is her testimony of deceased’s statement “help! I’ve been murdered, I’ve been stabbed!” – Admitted at trial for truth of contents Held: Affirmed by Ont CA, as spontaneous utterance Question how useful is this? Not very – but how does court understand the rationale of this exception note the absence of hearsay dangers – no time to concoct or distort, considered reliable. But is this acceptable? The person may be mistaken in their perception regardless of lack of time to fabricate, especially when stressed. Statements of physical condition: Where person appears to be experiencing a particular physical condition, the statement containing that claim is admissible but only to prove that the person was experiencing the condition at the time and to establish its duration Natural expressions that come out of injury or illness Eg. Someone dies of unexplained stroke but two day earlier had been punched in back of head by accused – witness testifies that later the victim expressed that his head really hurt, and next morning states “my head still hurts and I feel really woozy” – victim dies and accused charged – hearsay but admissible under this exception to prove that head hurt and continued to hurt (causation) Theory at law was that statements of physical pain are reliable (past pain not admissible though—had to be current; statements of why are also not admissible) Statements of mental state: Move from physical to mental state – emotions, intentions, plans, motives of the declarant – when a person explicitly describes his or her present state of mind (emotion, intent, motive, plan), the person’s statement to that effect is admissible where the state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion. Common ex. “I am afraid” uttered by person not available to take stand – if it is explicit then offering for the truth of its contents – whereas “I have no friends” – not offered for truth of its contents speaks about declarant’s perception (like “they were communists”) So I am sad = hearsay; I have no friends, no one likes me = not hearsay Theory is that people generally describe their emotions accurately Statements against interest: Law presumed that people would not say things that would hurt them financially unless true – rule was that statements of pecuniary interest would be admissible if could show: 1) that the declarant was not available, 2) the statement was in fact made against the declarant’s interest and 3) that the declarant had personal knowledge of the facts stated More recently, expanded to include statements against penal interest, but its hedged with so many exceptions that it is fairly insignificant R v. Demeter Rule on statements against penal interest: declarant apprehended a vulnerability to penal consequences, that vulnerability must be immediate not remote, the situation must be taken into account as a whole – if not contrary to penal interest in its totality, the statement is not admissible, if unclear, the court must consider whether there are other circumstances linking the declarant with the crime or b/n the declarant and the accused, and the declarant must be unavailable and refusal to testify does not count – this is unusual and applies to penal consequences only – concern over veracity R v. Lucier (1982) Facts: Accused charged with arson – another guy says that he set fire at request of Lucier – then other guy dies and Crown tries to use statement against Lucier – SCC says no Held: No clear expression of why but likely a result of accused’s right to full answer and defence and notion that in case where Crown offers, it may be a case of declarant wanting to bring others down with him. Following Lucier SCC says this categorical exception applies only where statement against penal interest used for exculpatory purposes (asymmetrical operation – Crown cannot use) since inculpatory statement evidence robs accused of right to cross-examination Dying Declarations: Admissible if: 1) the deceased had a settled, hopeless expectation of almost immediate death, 2) the statement has to have been about the circumstances of that death, 3) the statement would have to have been admissible if around to testify, 4) the offence involved is the homicide of the deceased So extremely narrow exception Apply principled approach and even if don’t meet this category can use Smith and Kahn rules Prior Judicial Proceedings Where declarant has testified at a prior judicial proceeding and come trial time is unable to or unavailable to testify Statement made under oath and generally w/ opportunity for crossexamination and so basis for the exception now governed by statute – used to be governed by CL rule on prior testimony had to establish otherwise unavailable issues and parties in cases are substantially the same has to be testimony – i.e. from a prior judicial proceeding – sworn testimony opposing party had to have full opportunity to cross the original statement If all of these satisfied then admissible This rule has been dealt with by s. 715 Criminal Code 715 715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person is dead, has since become and is insane, is so ill that he is unable to travel or testify, or is absent from Canada, and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. R v. Potvin (1989) Facts: Three charged with 2nd degree murder after B & E to steal jewellery – one testified at prelim but later refuses to testify at appellant’s trial prelim evidence admitted at trial under what is now s. 715 Issues: Can the appellant’s testimony from the prelim inquiry be introduced where the appellant refuses to testify at trial? In other words does s. 715 of the CC violate 7 & 11(d) & 12 of the Charter? Held: S. 715 does not violate s. 7 PFJ Evidence given under oath at previous proceeding is admissible where witness unavailable at trial provided the accused had an opportunity to cross-examine the witness when evidence originally given – and safeguards affirm that it is the best evidence in the circumstances S. 715 and s. 7 only about the opportunity to cross-examine and so strategic choice not to cross does not count (so this tells about how to define full opportunity) this is not met where accused deprived of right to counsel Testimony from Prior Civil Proceedings: BC Rules of Court rule 40(4) – do not have the same considerations as in criminal context – broad prior testimony rule but have the discretions 40(4) Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence. s. 71 BCEA – A prior conviction can be used by a plaintiff in a damages suit against a defendant as evidence of liability. Must be a same facts situations – e.g. criminal conviction of careless driving could be used in a civil suit against the same driver. Not a matter of attacking credibility, rather going in under the plaintiff’s case in chief as part of their evidence Business Records Strong categorical exception for statements made in course of duty (old CL exception) based on absence of hearsay dangers No motive to lie Businesses rely on these records and job of recorder is to be accurate and so indicia of reliability Generally made at time events happen Ares v. Venner – business records admissible if made reasonably contemporaneously, in the ordinary course of duty, by persons having knowledge of the matters, who are under a duty to make the record or report, and there is no motive to misrepresent the matter CEA 30 (Business Records and so displaces Ares v. Venner) 30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record. Opinion Evidence and Experts Note the potential for opinion evidence regarding someone’s credibility or character – opinion evidence is not containable in its own separate box Graat v. R. (1982) (S.C.C.) Opinion evidence is any inference from primary observed fact “Except for the sake of convenience there is little, if any virtue in any distinction resting on the tenuous and frequently false antithesis between fact and opinion. The line between fact and opinion is not clear.” I.e. it’s a judgement call in any particular case. Some cases will be easy: e.g. “the light was red / she had bloodshot eyes / she was staggering” is primary observed fact, whereas “she was drunk / he was driving very fast / having difficulty driving due to alcohol” is opinion But what about: “Mary was angry / agitated / sweating”. Ask: what makes you think Mary was sweating – you see wet skin (that is perhaps the fact), and you infer she is sweating (maybe it’s raining). A single witness may give a mix of primary observed fact and opinion evidence e.g. a doctor first testifies as to what they saw (“the victim’s leg was bent sideways”) then an expert opinion (e.g. a diagnosis or prognosis) Concerns with Opinion Evidence Concern 1: Purpose of witnesses is to testify to primary observed facts, inferences to be drawn from those facts is the job of the jury, and don’t want the trier of fact usurped by witnesses Concern 2: reliability issue: anyone can have an opinion, can’t perjure yourself giving it, and can’t be effectively cross-examined over it Concern 3: Jury might be beguiled / unduly impressed by expert opinion evidence, simply accepting it’s ready made inferences as true, and trial degenerates into a fight between experts (“trial by expert”) Also the two sides in a case may have very differing resources to pay experts, leading to unfairness Turning point for recognizing this concern was Béland, R. v. (1987) (S.C.C.) which made all polygraph testing inadmissible for any purpose Old exclusionary rule (as with old rule against hearsay): opinion evidence is inadmissible, with exceptions, two of which were (which are still useful memory aid, and admissible opinion evidence still fits into one or the other of these): Admissible non-expert / lay witness / compendious statement opinion evidence Admissible expert opinion evidence Current approach: principled, flexible (looking at offer in particular case), no starting point as inadmissible – can improve justice at cost of predictability. Non-Expert / Lay Opinion Evidence Really a rule against speculating where the witness has no real personal knowledge – the more vague the opinion is, the more likely it will be excluded However, cannot truly separate fact from opinion – the more closely tied the opinion is to the facts of the case, the more likely it will be admissible. Leading case is Graat v. R. (1982) (S.C.C.) - non-expert / lay opinion evidence is admissible if two criteria are satisfied: Matter about which person is offering is within common knowledge or experience i.e. does not require expertise. E.g. age, the car looked old, was travelling fast, she looked tired. Will depend on the particular community e.g. in area without bank machines lay person’s opinion about them will not be admissible, nor will city persons opinion on speed of snow-shoeing And either: The opinion will be helpful to trier of fact (which tends to be fairly low hurdle to meet since other side can cross-examine) or It is a compendious statement of fact i.e. (as in this case) it’s the only way the witness can give his/her story i.e. as a bold assertion E.g. witness testifies that someone was drunk, but cannot provide any more details / primary observed facts (i.e. no testimony about odour of breath, ability to walk, etc.), perhaps because at the time they weighed the facts, came up with an opinion, then forgot the facts. This kind of evidence will likely carry little weight after cross-examination. Expert Opinion Evidence E.g. what size scalpel for appendectomy, how properly build a bridge, etc. i.e. doesn’t have to be a doctor or PhD, but expert opinion does have to be outside of normal common knowledge When counsel presents an expert witness, they will usually ask them hypothetical questions, such as “assume a man had 18 beers, would he have capacity to form intent to murder?” Note other side can cross-examine your expert witness, and likely to ask questions to bring up inconsistencies and qualifications, and to question credibility such as are you being paid for giving your opinion, do you do this a lot and if so do is your opinion always for one side, Mohan, R. v. (1994) (S.C.C.) Facts: paediatrician charged with sexual assault on patients. Psychiatrist experts called by defence said some offences consistent with pedophile and others with sexual psychopath, and in our opinion the accused does not fit the profile of either (i.e. expert opinion about accused’s character, that they were not the type of person to do such things) Decision Sopinka J unanimous: evidence is inadmissible due to problems of reliability and that it might beguile the jury. Test, and now always repeated mantra (called the “Mohan necessity and reliability analysis” or the “Mohan 4-step test”, but not so clear and perhaps S.C.C. was trying to shoehorn into the Smith hearsay analysis): the admissibility of expert opinion evidence is determined according to the variable application of four criteria Necessity in assisting the trier of fact - likely to be outside the knowledge and experience of the judge and the jury “Relevance” rather relevant and reliable, like threshold reliability in hearsay analysis) Essentially a cost-benefit analysis A properly qualified expert – can acquire expertise through experience as well as academic training/certification The absence of any exclusionary rule that would be offended by the admission of he opinion (this is superfluous, and was only listed in the case since the evidence in question in this case was also character evidence) Comment: suggested better way to organise this is: The evidence must be necessary i.e. expertise is required since info is beyond common knowledge or experience J-L. J. (2000) (S.C.C.) – if novel science (see below), must be essential i.e. unable to come to a reasonable decision without the expert evidence (so not just necessary) Necessity is more than just helpful, and dangers of opinion evidence not to be merely tolerated The particular witness offering the opinion must be qualified in the area i.e. an expert Witness has to be satisfactorily qualified, but doesn’t restrict to only Dr’s, PhD’s, engineers, etc., can include anyone with special knowledge/expertise beyond common knowledge e.g. someone with special knowledge of illegal drug business Look at experience, recognition by peers, books, papers, etc. to decide if sufficiently expert Of course want the best most-specialized expert witness, but that can cost a lot, and court will recognize limited resources of parties to hire the best and err on the side of qualifying witnesses as experts The evidence must be not just relevant, but also reliable Concerned with the danger that the trier of fact will be beguiled / unduly impressed by the expert evidence, so judges have responsibility to be gatekeepers and to caution the jury from being overly impressed (note prior to this case expert evidence just had to be helpful, so adding this requirement goes against current move to letting things in and letting jury decide what weight to give) Novel Science Focus in Mohan was on “novel science” or “junk science” – discretion is still upon the judge to accept or reject the expert opinion Novel science = anything new, not mainstream i.e. not generally accepted by experts in the field e.g. a new way to perform an operation, a new theory Concern: how to separate good novel science from mere quackery / mad scientist, which can be difficult. R. v. Trochym (2007) (SCC) Facts: Important evidence in the case against Trochym was obtained after a neighbour underwent hypnosis and remembered that she had witnessed Trochym leaving the victim's apartment hours after the murder. Issue: Question of expert evidence since issue of whether hypnotism itself was reliable. Held: evidence obtained through hypnosis should not be used in criminal cases because testimony based on such evidence is not "sufficiently reliable" in a court of law. Because the use of hypnosis as a forensic test doesn’t meet the Mohan test, afraid the hypnotism itself may taint the witness and they will not be able to testify on the case Majority applied the J.(J.L.) test for a reliable foundation for novel science evidence: Can the technique be tested and has it been tested? Has the technique been subject to peer review and publication? What is the potential rate of error? Has the technique been generally accepted Essentially the old American test from Frye: expert opinion on science is admissible if that science / technique / theory is generally accepted in the relevant discipline (i.e. peer analysis) Ultimate issue rule: Old rule: opinion evidence (lay or expert) cannot be given on an ultimate issue (i.e. issue at core of the litigation). Rule reflected concern about “trial by expert”. Rule has been clearly rejected: Rule doesn’t apply with respect to lay opinion: Graat Rule doesn’t apply with respect to expert opinion: Burns (1994) (S.C.C.) and Mohan Use of textbooks / experts previous writings: Direct / examination in chief of your own expert witness: Can elevate / beef up your expert witness’ opinion by getting their opinions on books written by other (better / more prestigious) experts in the field. Must first ask your expert witness if they find the book authoritative, and if so, you can read passages and ask your expert witness if they adopt that statement. Courts allow this, partly as recognition that funds are limited (and so can’t call the textbook writer) and your expert can then be cross-examined on it. Cross examination of other side’s expert witness: Can use books to confront expert’s opinion First ask expert witness if they find the book authoritative and relevant: If not, that’s the end of the matter (judge won’t let you badger the witness) (Marquard) If they do, can try to get, for example, qualifications Opposition would then be required to bring their own expert to get this other theory or opinion before the court. When calling or cross-examining expert witnesses look into their previous writings, to find out if their opinion has changed significantly / repeatedly / or if there are inconsistencies. With your own witness may want to address a significant change to explain why. On cross-examination with other side’s witness, may be able to use this to question their credibility. Problem in Abbey Abbey sets out more restrictive conditions for the use of expert evidence than did previous decision. Four propositions – if true, then if there is no independent evidence, then inadmissible and completely irrelevant: An expert opinion is admissible if relevant, even if it is based on a second-hand evidence. 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. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. Appears to be a spectrum of how much underlying factual basis needs to be established by admissible evidence before putting weight on the export opinion, according to how inherently reliable / contentious is the underlying factual basis: Abbey – need admissible evidence to establish entire underlying factual basis before putting any weight on expert opinion of accused’s insanity (based on hearsay from accused) – here accused and his mother were telling stories to doctor, but in accused’s interest to sound insane to doctor, so perhaps factual basis inherently unreliable Lavallee – so long as some admissible evidence established some of the underlying factual basis, can put weight on expert opinion about battered wife syndrome (but requires warning from judge that the less the factual basis is established, the less weight should be given to the opinion evidence) – reliability of wife’s claims of abuse somewhere in the middle, part of it corroborated, not so easily verifiable Sopinka – makes a distinction between: Evidence that an expert obtains from a party to litigation touching a matter directly in issue (as in Abbey) E.g. a psychiatrist questioning a witness/accused – have to trust a single judgment that the testimony is true Evidence that an expert obtains and acts upon within the scope of their expertise Hypothetical Questions When counsel presents an expert witness, they will usually ask them hypothetical questions, such as “assume a man had 18 beers, would he have capacity to form intent to murder?” (which is good trial practise since also allows you to submit your theory of events to the jury). Have to know the assumptions that the expert is making Was the opinion is based on that assumption? How many of those assumptions were established in evidence? As you go through the hypothetical questions, the weight of the opinion will vary depending on to the extent with which the assumptions on which the opinion is based have been proven in the evidence. Bleta - However, trial judge has discretion to require counsel to elicit expert’s opinion from hypothetical question to ensure that underlying factual basis on which expert’s opinion is based is clear to the jury Exchange of Expert Reports Provisions like BC Supreme Court rule 40A – requires you to give 60 days notice to the other side of expert reports that you would like to file Also requires you provide 60 days notice of calling an expert witness Other side can cross-examine that they be able to cross-examine the witness R.40A(1): rule 40A governs the admissibility of expert evidence in conventional trials. R.40A(2): a written statement setting out an expert’s opinion is admissible provided that all parties of record have received a copy of the statement at least 60 days prior to the trial. R.40A(3): the same requirements apply for the admissibility of expert oral testimony. R.40A(5): a written statement by an expert must include reference to the expert’s qualifications and any facts or assumptions on which the opinion is based R. 40A(9),(10),(11): the party against whom the evidence is tendered may require the expert to attend at the trial for cross-examination. s. 7 CEA: cannot bring more than 5 experts to support your case Privilege With privilege (i.e. information that must be kept secret so inadmissible), protection against self-incrimination, and exclusion of illegally obtained evidence rules, can exclude reliable evidence (that may be important for fairness in this particular trial) but there are other social concerns that are more important than this one trial. But of course should apply such rules cautiously. Privilege v. confidentiality: If something is confidential, it is not significant in eyes of Evidence law – so moment a court wants the confidential info can subpoena for it, unless it is privileged – ex. medical records are confidential but not privileged (in most cases) Waiver of privilege – every privilege is owned by someone – and only person that holds the privilege can waive it and are also the only ones who can invoke it. Historically there are a number of class privileges, but apparently no new class privileges will be created (unless by legislation): Gruenke (1991) (S.C.C.) there is no general priest-penitent / spiritual advisor-advisee class privilege, so such evidence can be admissible. Similarly in Ryan (1989) (Nfld. C.A.) there is no class privilege for psychiatrist-patient. However, even without privilege, a duty of confidence may still exist without privilege e.g. priest-penitent, doctor-patient, so may have a cause of action for damages for a breach of duty of confidence (but this is totally different to admissibility) Existing class privileges (i.e. recognized prior to Gruenke): Gruenke: even if something fits within one of these, if other party can convince judge the particular piece of evidence shouldn’t be privileged on a principled basis (i.e. see “Wigmore four” criteria below on case-by-case privilege) then judge can admit it (thus another example of evidence law becoming more flexible& fair but less predictable). Important to distinguish between solicitor-client privilege and litigation privilege: Solicitor-client privilege commences as soon as there is contact between the lawyer and client and even survives the death of the claim. Only way the privilege can be lost if the client waives the privilege – must be done sedulously. Includes communications conducted through agents of either the client or solicitor. Doesn’t depend on whether there is any litigation going on. Communications with third parties are generally not covered by this privilege. Litigation privilege – rationale is purely the nature of the adversarial system – can’t show your cards to the other side. Only applies once litigation has been launched or being contemplated. Ends once the litigation is over. Covers third party reports, so long as the dominant purpose of these reports was for litigation. Solicitor-client class privilege (considered most important privilege – justice depends on it) A communication between a solicitor and a client, made in confidence and related to the seeking, forming or giving of legal advice, is privileged information. Exceptions (and note since these override what is considered the most important type of privilege, it will also override other types of privilege): there is no privilege for: Communications that are themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime. Innocence at stake exception: Would result in the withholding of evidence that “would likely” enable an accused to establish his/her innocence (McClure (2001) (S.C.C.)) Procedure: Is there evidence in the communication that could raise a reasonable doubt? If yes, then the judge will look at the file where the alleged communication is and must determine if there is in fact a communication that would likely raise a reasonable doubt. In order to be admitted, must: Be no other source of the information in that communication Be unable establish a reasonable doubt without that communication Use and derivative use immunity – information can only be used in this particular case and not in subsequent cases Very difficult for an accused to meet this test – only two cases so far and neither Supreme Court decision has been successful Courts very reluctant to recognize this type of exception Public safety exception: Where public safety is at risk (the “public safety” exception). E.g. Smith v. Jones (1999) (S.C.C.) Facts: concerned attempt to declare accused a dangerous offender and so get indefinite prison sentence, accused had told psychiatrist retained by defence counsel that he wanted to kill victims, and psychiatrist report said he was dangerous. Thus report no use to defence, and they told psychiatrist he mustn’t tell anyone about it due to privilege. Psychiatrist sought court order to be able to release report to prosecution. Decision: defence retained psychiatrist can release report to prosecution since public interest at risk from dangerous offender. Test: privilege will be set aside if there is an imminent risk of serious bodily harm or death to an identifiable person Imminent can include “when I get out of jail” Dissent – not a duty on the psychiatrist, but a permission to reveal the warning, not the specific information Spousal communication class privilege (e.g. for criminal proceedings): Codified in CEA s.4(3): No husband / wife is compellable to disclose any communication made to him / her by his / her wife / husband during their marriage Purely statutory – created when spouses became competent witnesses – construed very narrowly Spouse can be asked, but they have the general right to refuse to answer The purpose of this is to protect matrimonial harmony. Communication between spouses: Note it is the recipient spouse that enjoys the privilege (i.e. if husband says something to wife, it is the wife who chooses whether or not to waive the privilege – this is opposite to other rules where it is the speaker who enjoys privilege) Note also it is “any communication” i.e. communication did not have to be made in confidence, as with solicitor-client privilege Doesn’t survive the marriage – if he marriage end, the privilege ends Must be formally married; doesn’t apply to common law spouses Likely also applies to unmarried and same-sex couples (Miron v. Trudel, Egan v. Canada, and M v. H.). Rumping v. Director of Public Prosecutions (1962) (H.L.) Facts: A husband wrote a letter to his wife in which he confessed to murdering a man. Argued that the letter was inadmissible because of spousal privilege. Held: Letter was admissible: Privilege only operates where the witness is on the stand If there is other evidence of the communication (e.g. letter, recorded statement) this may still be admissible Wiretap and other electronic interception: CEA s. 178.16(5): Any information obtained by an interception, that, but for the interception would have been privileged, remains privileged and inadmissible withtout the consent of the person employing the privilege. Lloyd v. R. (1982) (SCC) Facts: Conversation between a wife and a husband were intercepted via a wire tap. Held: Even through the wiretap was lawful, under the spousal privilege the spouse has the right not to have this information revealed – therefore, inadmissible. Therefore, electronic interception – still privileged Other interception – Rumping still stands Zylstra (Ont. CA) – if a spouse can be compelled to take the stand and can be asked about confidential communications with her spouse, she still has the right to refuse to answer because of spousal privilege. Sort of defeats the purpose of compelling the witness to take the stand. “Without prejudice” communication – ethically, we want to resolve a conflict without litigation. Want to encourage parties to settle and don’t want communications to put them at a disadvantage to settling. By putting “without prejudice” in the communication, ensures that this communication can not be used against you as a previous indication to settle on a particular point, or for a particular amount, etc. Case-by-Case Privilege If not recognized under one of the established class privileges such as solicitor-client etc., then must argue that it fits in under the Wigmore criteria, which can be very difficult. Case-by-case privilege claims (Gruenke): Judges have discretion on a case-by-case basis to rule a particular piece of evidence privileged based on the “Wigmore four” criteria: Communication must have originated in a confidence that it would not be disclosed. This confidence must be essential to the full and satisfactory maintenance of the relation between the parties. This relation must be one which the community thinks ought to be diligently fostered. The injury to the relation that would result by disclosure must outweigh the benefit gained in the litigation by disclosure. MA v. Ryan – demonstrates unlikelihood that courts will recognize new class privileges Facts: Defendant was plaintiff’s psychiatrist and some kind of sexual interaction occurred P files civil suit and he does not deny but argues that it was consensual and so could not have caused the trauma P alleges it caused. During this, P goes to another psychiatrist and is very upfront about need for confidentiality. Dr. R requests the other psychiatrist’s notes – Held: SCC begins by rejecting class privilege and so if not going to grant class privilege here then unlikely that would grant ever Did not recognize a new class privilege but rather applied the Wigmore caseby-case test However, ordered partial disclosure of the second psychiatrists records Therapists notes not admissible But admitted the occurrence of the therapy Prefer flexibility over certainty Informer Privilege Protects police informants from having their identity disclosed. Held by both the Crown (reporting and public interest) and the informant (individual safety). To waive it, you have to have consent from both. Purpose: To encourage reporting of crime, To protect informants. Used to be a fixed rule of law with no discretion by the judge to waive public policy Exception: innocence at stake exception Will probably only arise in a few instances Where the informer was a material witness to the crime Where the informer is an agent-provocateur Where there is an allegation of an unconstitutional search or wiretap Informers identity is only revealed in rare exceptions R. v. Liepert (1997) Facts: Anonymous tip about grow-op and then search and arrest accused – accused wanted the crime-stopper’s tip-sheet and refused Issue: raised a novel issue and expresses concern for the anonymous tipster since no way to be sure that they would edit the tip so that the tipster could not be identified, especially by the accused Held: Informer privacy is of such importance that once found not balanced with other considerations and does not erode right to full answer and defence The privilege belongs to the Crown and the informer – can only be waived by the informer There is only one exception: innocence at stake. If the accused can convince the judge that the disclosure is necessary to preserve innocence, it can be allowed (similar to McClure application) Only arises in situations in which this tipster has a pivotal role in showing the innocence of the accused. Scope covers any information that could implicitly reveal the identity of the informant; not just the identity of the informant. The anonymous person is the most at risk, you should just exclude everything because you don’t know what information could show their identity. Procedure: Accused must show a basis for disclosure (must be innocence at stake) if a basis is shown, the judge reviews the information to see whether the information is necessary to prove the accused’s innocence if it is, the judge reveals only as much info as is necessary Skipping Protection of Third Party Witnesses But important distinctions: Disclosure (Stinchcombe) – Crown must make full disclosure of all the evidence in its defence, unless it is irrelevant or privilege. But if it asserts that it will not disclose, then the court will interpret any issues around disclosure with more favour to the accused Production – where evidence is in the hands of a third party. Issue: under what circumstances can a litigant get production of evidence from third parties? SCC has analyszed it in terms of balancing Charter values: 3rd party right to privacy against the accused’s right to full answer and defence Admissibility (Shearing) – may have something produced to you, but nonetheless may not be admissible O’Conner – governs everything but sexual offences S.278.1-.0 – governs sexual offences
