Dispensing with Proof, Corroboration, and Real Evidence

Question 1

describe formal admissions of fact in civil context

Answer 1

○ Formal admissions governed by rules of court (rule 26 in BC)
○ Formal admissions are conclusive - court is bound even if evidence contradicts it
○ Formal admission can be made by statement in pleadings or failure to deliver pleadings, by an ASF, by an oral statement at trial (or by silence in face of statements of opposing council) or by a letter written by a partys solicitor or by a reply or failure to reply to a request to admit facts
○ Costs encourage party to make reasonable admissions to further economy of the trial and narrow issues to be tried

Question 2

Describe formal admissions of fact in crim context

Answer 2

○ Pre-hearing conference
● CC 625.1 (1) → Judge may order that a conference between the prosecutor and the accused or counsel be held prior to the proceedings to consider the matters that would be better decided before the start of the proceedings (for efficiency and fairness)
● (2) Mandatory pre-trial hearing for jury trials
● Admissions at trial - CC 655 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 with proof thereof.
● Guilty plea is a formal admission of facts necessary to establish offence - not of any further facts alleged
○ Waives procedural rughts
○ Can change if valid grounds (BOP)
○ In considering the validity of a guilty plea the judge will consider: voluntary, unequivocal, properly informed (nature of allegation ,effect of plea, consequences of it), and whether justice has been done overall.
○ An otherwise valid plea may be withdrawn if constitutional rights have been infringed (ex crown breach of disclosure)

Question 3

What is an agreed statement of fact

Answer 3

Agreed Statement of Fact (ASF)
● Allowed under CC
● Dfd will ask admissions of plf or vice versa. Request to admit certain facts. If accepted, no evidence needs to be called. Accepted as true.
● If not admitted and fact is later proven, will get costs. → Dont just ignore these.
● If witness recants info in a ASF then the principled approach to hearsay says it may be admissible for truth of contents

Question 4

Test for Judicial notice

Answer 4

● Legal Tests - A judge may take judicial notice of facts without requiring parties to adduce evidence of them, of facts that:
○ So generally known and accepted in the community that it cant be reasonably questioned (can be in narrow geographic community)
○ Can be determined or verified by resort to sources of info whose accuracy cannot be reasonably in dispute

Question 5

Kinds of facts subject to judicial notice

Answer 5

○ Adjudicative Facts - material to what actually happened
○ Legislative Facts - legislative intent, social context of leg, policy reasons for leg (common in constitutional case)
○ Social Framework Facts - Academic literature in fields like social science to reslove tough issues. Openly debated as to whether this is proper judicial notice application or just common practice of appellate courts.
■ Ideally social science evidence done by experts, but nobody will call a judge on it if they do it instead
○ Courts MUST take JN of such matters as the history of colonialism, displacement, residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for aboriginal peoples. Provides context for understanding/evaluating case specific info. (Ipeelee)

Question 6

Can judges take judicial notice of laws?

Answer 6

○ General rule: Court may take notice of domestic laws. Foreign court requires counsel to prove to court. CEA 17, 18.
○ BCEA s24
○ Must take JN of prior decisions of their own court - as holding of law not fact

Question 7

Purpose of Judicial Notice

Answer 7

● Purpose of JN: dispense of unnecessary proof and avoid situation where court reaches a factual conclusion which contradicts readily accessible sources of indisputable accuracy which would bring into question the courts fact finding process
● Those affected by the result who are not in the court shouldnt be burdened by a result that is produced by inadequate counsel work
● Commentary
○ Prof Thayer → JN should be used more since legal reasoning depends on unproven but reliable assumptions, if counsel disagreed they can rebut with evidence
○ Prof Morgan -> JN has enormous potential for abuse.. Probability should be so great as to make the truth of the proposition notoriously indisputable among reasonable men
○ Prof Davis → court must consider whether fact is close to centre of controversy or merely background, whether the facts are adjudicative or legislative, and the degree of certainty or doubt with respect to the fact

Question 8

What is real evidence and how can it be admitted?

Answer 8

● Original item evidence (ex smoking gun, entered as exhibit)
● The legal prereq for admission of evidence/ authentication → must establish that the object is truly what it is held out to be. Onus on counsel to rule out contrary possibilities.
● The usual steps to authenticate real evidence:
○ Call witness with personal knowledge of the object
○ Ask witness to describe it before showing it to them
○ Allow witness to examine the object and identify it as genuine
○ Task that the object be entered as an exhibit with an appropriate stamp applied by clerk

Question 9

Test for admitting photos/videos

Answer 9

○ R v Creemer (NSCA)
■ Accuracy in accurately representing the facts
■ Fairness and absence of any intent to mislead
■ Verification on oath by a person capable of doing so (photographer, person present when taken, person qualified to state that representation is accurate, expert witness)
○ Special concerns with prejudicial effect vs probative value - biased recreation of party’s on version of events.

Question 10

What is the best evidence rule

Answer 10

● If a party has access to more than one type of evidence all relating to the same material issue the party must lead the more reliable/trustworthy evidence
● If a party is unable to lead best evidence available, then as a matter of PF, party may call another kind of evidence so long as it is otherwise admissible

Question 11

CL rules for admitting documents generally

Answer 11

● CL Rules:
○ If doc is 30yrs old, no circumstances indicating fraud, and is produced from a place where custody would have been natural, it is presumed authentic.
○ A signed letter in response to earlier correspondence is presumed authentic
○ The best evidence rule often insisted on original document instead of a copy - this has been overruled by statute
○ Docs produced in the usual course of busienss or occupation were admissible under a distinct exception to the hearsay rule. Again, this has for the most part been overborne by the development of statutory rules

Question 12

What is the req for admission of computer generated evidence under CEA

Answer 12

○ Computer Generated Evidence → Key component is how the info was entered at the time of input. This is the key time to assess reliability.

Question 13

What are the reqs for admitting business records under CEA

Answer 13

○ Business Records → copy is good enough as long as produced in usual and ordinary course of business

Question 14

What are the reqs for admitting gov docs under CEA

Answer 14

○ Government Boots → verified as true on oath or affidavit by officer of government department (strict)

Question 15

What are the reqs for admitting corporate docs under the CEA

Answer 15

○ Corporate Docs → certified copy notarized (for ex articles of incorporation, corporate bylaws)

Question 16

What are the reqs for admitting financial institution records under CEA

Answer 16

○ Financial Institution Records → usual and ordinary course of business, custody and control of instuttue at time transaction made, and true copy. (for statements of account etc)

Question 17

What are the reqs for admitting wills/probates under CEA?

Answer 17

○ Wills / Probates → copy stamped with court seal served 10 days in advance to other party

Question 18

What are the reqs for admitting land titles under CEA

Answer 18

○ Land title → true copy with registrars seal on copy

Question 19

What are the reqs for admitting proof of commercial transactions under CEA?

Answer 19

○ Proof of commercial transactions → copy OK but must be served on other party 5 days in advance, other party may within 4 days require proof of original record (ie can challenge authenticity and then you need original - but challenger will likely be dinged with costs if it is true)

Question 20

What is BC electronic discovery

Answer 20

○ Online space where docs can be uploaded and other side can access.
○ Certain requirements such as dates they must be uploaded before pre trial conference, virus checks etc

Question 21

What is demonstrative aid evidence

Answer 21

Demonstrative Aid Evidence
●	Distinction from Real Evidence: real evidence as exhibits are in and of themselves proof of what happened. Demonstrative aid evidence helps explain other evidence
●	Two examples:
○	Computer Software:
○	Forensic DNA Evidence

Question 22

What are requirements for authenticating DNA evidence to use as a demonstrative aid

Answer 22

○ Forensic DNA Evidence
■ CC gives legislative force to national database
■ Key point during crim trial is to compare the DNA of sample taken from scene with DNA of accused
■ Authentication - must rule out possibility of contamination - if raised early can be done in voir dire
● Crime scene preserved against cross contamination?
● Sample properly collected without cross contamination (gloves?)
● Sample properly stored? (water contamination?)
● Testing facility had a standard testing procedure
● DNA analyst properly performed the procedure
■ DNA profiles are a demonstrative aid because explain significance of samples taken from scene and from accused.

Question 23

What is required for expert use of software as demonstrative aid?

Answer 23

○ Computer Software:
■ Expert use of software as demostrative aids:
● Expert testimony is relevant and admissible and the model relates to that evidence
● Expert whose testimony the model relates to is familiar with it
● Model fairly and accurately reflects experts evidence
● Model will aid trier of fact in understanding/evaluating the evidence
■ Ex crash simulation software: expert inputs software variables and it provides visual simulation. Expert prepares a report and stores the simulation in a file for display in court

Question 24

Describe Corroborative Evidence

Answer 24

● Tends to be more relaxed in crim than civil
● Corroborative Evidence: evidence which if proven helps confirm the veracity of other evidence
○ Note: Cant convict on perjury w/o corroboration

● Types of:
○ A) can convict in the absence of corroborative evidence but only after trier is given instructions on the dangers of convicting without corroborative proof
–> Judge can by discretion where a matter of common sense there are concerns about witness testimony give a direction to jury on the use of the witnesses testimony
■ Whether a vetrovec warning is required depends on credibility of witness and the importance of the evidence to the crowns case. (more important, more likely mandatory)
○ Framework for direction - Khela:
■ Draw attention of jury to testimonial evidence requiring special scrutiny
■ Explain why special scrutiny needed
■ Caution jury that it is dangerous to convict on unconfirmed evidence of this sort though the jury is entitled to do so if satisfied true
■ The jury in determining veracity of suspect evidence should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to guilt of accused

Discretionary warnings for ID evidence
● Often given in cases where ID evidence where:
○ Initial ID occurred in poor circumstances
○ Improper ID procedures used
○ Suggestive influences used
○ Dissimilarity btwn initial ID by witness and the suspect who is IDd, the jury mus be told that the purpoted ID has no probative value
○ If initial ID is questionable, jury may be told that they are entitled to give the “dock identification” no weight

○ B) Cannot reach a verdict in the absence of corroborative proof
■ Cant convict on treason with only evidence of one witness unless it is corroborated
■ Viewing the scene → rare. Inquisitorial trier of fact.

Question 25

Describe Vetrovec rule and the framework for the direction

Answer 25

Vetrovec - gets rid of old corroboration categories and replaces with discretionary warning
● There should be no technical rigid rules that apply categorically
● Individual case by case basis
● Judge can by discretion where a matter of common sense there are concerns about witness testimony give a direction to jury on the use of the witnesses testimony
■ Whether a vetrovec warning is required depends on credibility of witness and the importance of the evidence to the crowns case. (more important, more likely mandatory)

Framework for direction - Khela:
■ Draw attention of jury to testimonial evidence requiring special scrutiny
■ Explain why special scrutiny needed
■ Caution jury that it is dangerous to convict on unconfirmed evidence of this sort though the jury is entitled to do so if satisfied true
■ The jury in determining veracity of suspect evidence should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to guilt of accused

Question 26

Discretionary warning for identification evidence + when to use

Answer 26

● Often given in cases where ID evidence where:
○ Initial ID occurred in poor circumstances
○ Improper ID procedures used
○ Suggestive influences used
○ Dissimilarity btwn initial ID by witness and the suspect who is IDd, the jury mus be told that the purpoted ID has no probative value
○ If initial ID is questionable, jury may be told that they are entitled to give the “dock identification” no weight
● Note: if you mess it up, will run into confirmation bias. Canadian courts know this but still allow subsequent ID lineups to try again… other places dont. But more tries mean more confirmation bias. Judge will need to warn jury to give less weight. Leaves choice to jury… is this enough to alleviate concern???