Chapters 1-6

Question 1

What is tactical burden for both criminal and civil law?

Answer 1

Tactical burden refers to when a Crown has presented a case that will likely result in conviction unless the accused testifies or calls evidence.

This is the case for both criminal and civil matters.

Question 2

What is burden of proof?

Answer 2

A party’s obligation to prove certain facts or matters in issue.

Question 3

Who has the burden of proof in criminal matters?

What are the exceptions if any?

Answer 3

The crown has the burden of proof except in situations where there is a charter violation or in certain types of bail hearings.

Question 4

Who has the burden of proof in a civil case?

Answer 4

Plaintiff has the burden of proof.

Question 5

What is the air of reality test?

Answer 5

The air of reality test is a test done by triers of fact in determining whether a defence put forth by a defendant has an evidential foundation, prior to permitting it to be considered by a jury.

Basically, does the evidence support the defence.

Question 6

What consists of the air of reality test?

Answer 6

Does the evidence before the court reasonably lend itself to support such a defence, if not, trier of fact is instructed to disregard the defence.

Question 7

What does the case R v Cinoous represent?

Answer 7

Air of Reality Test.

Question 8

What is the standard of proof in a criminal matter?

Answer 8

Proof beyond a reasonable doubt.

Question 9

What does the case of R v Litchus represent?

Answer 9

How to explain “reasonable doubt”.

Question 10

In criminal matters, does standard of proof apply to all pieces of evidence?

Answer 10

No, proof beyond a reasonable doubt does not apply to individual pieces of evidence.

Question 11

What does the case of R v Morin represent?

Answer 11

Trier of fact must consider evidence as a whole in determining whether guilt has been proven beyond a reasonable doubt. The jury need not agree on any single fact except for ultimate conclusion.

Question 12

What is the standard of proof in civil matters?

Answer 12

Balance of probabilities.

Question 13

What is the standard of proof in administrative tribunals?

Answer 13

Balance of probabilities

Question 14

What is a prima facie case?

Answer 14

A case in which the Crown or Plaintiff will succeed if the defendant does not call any evidence.

Question 15

What is a presumption?

Answer 15

A fact taken to be true without requiring formal proof.

Question 16

What are presumptions in criminal matters?

Answer 16

• Presumption of innocence
• Person under age 14 is presumed to have capacity to testify.
• Some presumptions assist the crown- often with issue of “intent”

Question 17

What are presumptions in civil matters?

Answer 17

• Presumptions that an adult is mentally competent.

- Res Ipsa Loquitur- the thing speaks for itself if under sole control of defendant. (Donoghue v Stevenson)

Question 18

What is judicial notice?

Answer 18

A judge recognizing a fact without making a party prove it.

Examples include: December 25th is Christmas Day, Hamilton is a city in Ontario.

Question 19

What is different about judicial notice in administrative tribunals? (Administrative notice)

Answer 19

The scope for judicial notice is increased are as evidence is much less formal, as well as proceedings, and many tribunal members are considered to be experts in their fields.

Question 20

What is social framework facts?

Answer 20

Where judicial notice takes notice of facts pertaining to social conditions for certain persons who qualify without evidence being called.

Example: persons of colour and societies history with racial profiling.

Question 21

What is the test for determining if evidence can be admitted?

Answer 21

Threshold Test

Question 22

Evidence must be ______ and _____ to be admitted.

Answer 22

Relevant and material

Question 23

What is a material fact?

Answer 23

A fact that relates to any matter in dispute between parties (something the parties are arguing about)

Question 24

What is a relevant fact?

Answer 24

A fact that logically helps to prove a material fact in the proceeding. A fact that makes the proposition it is advanced to support more likely or less likely.

Question 25

What is this referring to, and what are the blanks?

“The fact makes the propositions it is advanced to support ________ or _______”

Answer 25

Relevance/relevant fact

more likely or less likely.

Question 26

What is conditional relevance?

Answer 26

A term describing evidence that may not initially appear relevant but is admitted on the condition that its relevance to the matter will be established.

Question 27

What is hearsay?

Answer 27

A statement, originally made out of court, that is repeated in court for the truth of its contents.

Question 28

What are the traditional exceptions to hearsay?

Answer 28

Admissions by a Party
Declarations Against Interest
Dying Declarations (can someone who heard that give evidence in court)
Res Gestae or Spontaneous Statements
Business Records
Prior Testimony of a Witness
Prior Statements Made by a Witness
Prior Identifications
Past Recollection Recorded
Oral Histories of Aboriginal Peoples

Question 29

What is the test for hearsay?

Answer 29

Is the proposed evidence a statement originally made outside the courtroom?
Is it being submitted in court to show that what was said is true?
Is the maker of the statement available to be cross-examined in the proceeding?

Statement made out of court?
Is it true?
Cross examineable?

Question 30

What is post-offence conduct?

Answer 30

The behaviour of the accused after the alleged act.

Question 31

What kind of evidence is post-offence conduct?

Answer 31

Circumstantial evidence- as it cannot prove what the accused did as a whole, but can be taken into consideration by a judge/jury.

Question 32

What are informal admissions?

Answer 32

A statement made by a party (plaintiff, defendant, accused) outside of court, can be admitted against them by the opposing party for the truth of its contents.

Question 33

What are formal admissions?

Answer 33

A party admits certain facts are true, relieving the opposing side from proving those facts at trial.

Question 34

Where are formal admissions most commonly used?

Answer 34

Civil cases. They are far more common than in criminal matters, and it is due to trial efficacy/ focus on real issues, as well as cost consequences if non controversial matters not admitted and are later proved in trial.

Question 35

What is a dying declaration?

Answer 35

A statement made by a person who is certain they are about to die

Question 36

What are the components of a dying declaration?

Answer 36

• The maker of the statement must be deceased.
• At the time of making the statement, the person making it must have known that he or she was going to die almost immediately.
• The statement must be one that would have been admissible if the person who made it had lived. (testifying to something they saw)
• The statement is about who or what caused the maker of the statement to die. (usually talking about homicide case, identifies accused or what caused death)
• The criminal case in which either the Crown or the defence is seeking to admit the statement is one in which the charge relates to the death of the statement-maker.
• Statement maker is dead.
• Must have know they would die immediately
• Statement would have been one that was admissable had they not died.
• Statement is who/what/where of how they died.
• Statement revolves around their death.

Question 37

What is a spontaneous statement?

Answer 37

A statement made in an excited state or expressing an existing physical, mental, or emotional state.

In addition, the concern about concoction or lying is minimized when an event takes place and a person comments on the event without having an opportunity to fabricate a story.

Example: Someone is injured badly and shouts they know who did it before they pass out from pain- less likely to be a lie.

Question 38

What is past recollection recorded?

Answer 38

A witness may refer to notes or statement to jog memory of the incident that occurred months or years prior
However, the note is hearsay

Question 39

What is the test for past recollection recorded?

Answer 39

1. The past recollection must have been recorded in some reliable way (written and signed)
2. At the time, it must have been sufficiently fresh and vivid to be probably accurate (day of statement)
3. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time (civilian - I wanted to tell the truth, police officer – it’s my job)
4. The original record itself must be used, if it is procurable
5. Statement must have been recorded reliably.
6. Must have been fresh and vivid to be accurate.
7. Witness must ensure the record was accurately representing knowledge at the time (civilian - I wanted to tell the truth, police officer – it’s my job)
8. Original must be used, if procurable

Question 40

What is present memory revived?

Answer 40

In this situation the witness now remembers certain details and is able to testify to them after having used their previous statement or notes to refresh their memory – the witness now remembers the details

Question 41

What case set the 4 requirements for past recollection recorded?

Answer 41

R v Meddoui

Question 42

In regard to oral histories of aboriginal peoples, what is established in order to prove the existence of an aboriginal right?

Answer 42

1. There must be a modern practice, tradition, or custom (i.e., salmon fishing for trade);
2. Continuity from pre-contact times to the present;
3. The practice, tradition, or custom must have been integral to the people’s culture; and
4. The people must have had a distinctive society.

Question 43

What was the 2 common threads for judge made exceptions to the hearsay rule as established in wigmore’s criteria?

Answer 43

Reliability and necessity.

Question 44

What is necessity?

Answer 44

That the only manner in which the statement can be admitted is by way of hearsay

Question 45

What is reliability?

Answer 45

When a party makes an admission that would hurt their case, it is generally more reliable. Founded on notion that people will lie to make themselves look better, not worse.

Question 46

What are declarations against interest and how do necessity and reliability relate to it?

Answer 46

Declarations against interest revolve around those who make a statement that is seen as reliable due to the fact it may harm their own interests if true, no reason for worldly gain in lying (reliability) or the person who made the statement is unavailable to give evidence at the proceeding (they must have died) (necessity)

Question 47

What does charge to the jury mean?

Answer 47

Judge’s instructions to the jury, before the jury begins deliberations, regarding the applicable law, standard of proof, and available defences.