Evidence law

Question 1

S. 91(27) of the Constitution Act

Answer 1

Gives feds exclusive power over criminal law, including procedure.

Question 2

s. 92(13) and (14) of the Constitution Act

Answer 2

(13) Provinces have exclusive authority over property and civil rights.
(14) Gives the provinces jurisdiction over the administration of justice in the province, including procedure in civil matters

Question 3

“Fundamental rule” of evidence.

Answer 3

Everything that is RELEVANT to a fact in issue will be admissible unless there’s a legal reason for excluding it.

Question 4

Underlying values of fundamental rule of evidence.

Answer 4

• truth
• fairness
• Efficiency

Question 5

Direct evidence

Answer 5

When witnesses testify to what they have seen, hear, or done and acceptance of their testimony is sufficient to PROVE the fact in issue.

Question 6

Circumstantial evidence.

Answer 6

When witnesses or exhibits testify to things from which its necessary to draw inferences/conclusions to prove the facts in issue.

Question 7

What is proof beyond a reasonable doubt?

Answer 7

“A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence” (Lifchus)

Question 8

What is a directed verdict and the test for getting one?

Answer 8

The accused can ask the cause of action or count on the indictment be dismissed.

TEST: is there evidence upon which, a reasonable jury, properly instructed could convict on?

Question 9

Evidentiary burden

Answer 9

The burden to show the mere existence of evidence capable of putting an issue into play (doesn’t require “proof” of anything).

Question 10

Persuasive burden

Answer 10

The burden to show that the evidence establishes something to a required “onus of proof” (BOP v BARD, depending on the circumstances)

Question 11

S. 16 - Witness whose capacity is in question

Answer 11

16 (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, 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.

Question 12

Examination in chief

Answer 12

The party offering a witness calls that witness to testify. That party then questions them (no leading questions, must be open).

Question 13

Cross examination

Answer 13

The opposing party questions the witness (questioner can and often does suggest answers to the witness)

Question 14

Present memory refreshed

Answer 14

Witness can refresh their memory “by any means” (including through inadmissible evidence).

Question 15

Past recollection recorded

Answer 15

In a case like this, the witness has NO present recollection of the event, which is what was previously recorded.

For record to be admitted, following preconditions: 1. Doc made at or w/in a reasonable time of event 2. Must have been made personally by the witness or someone in the witness’s presence 3. The witness must be able to confirm that, the time, they recorded the event truthfully 4. Finally, it’s necessary that the witness’ memory on the subject be exhausted before such a record can be admitted

Question 16

The confrontation rule.

Answer 16

Duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’ credibility or present contradictory evidence.

Question 17

What is relevance?

Answer 17

The relationship between two acts (it is relevant). Does the evidence in question, as a matter of logic and human experience, make the matter more or less likely?

But also; relevance has to be sufficiently probative to justify its admission.

Question 18

What is probative value?

Answer 18

The degree of relevance to the facts in issue and the strength of the inferences that can be drawn.

Question 19

What is prejudicial effect?

Answer 19

Moral prejudice = the evidence is likely to arouse the jury’s emotions of prejudice, hostility or sympathy

Reasoning prejudice = the evidence is likely to create a side issue that will unduly distract the jury

Question 20

What are the 2 concepts that credibility encompasses?

Answer 20

1. Veracity - considerations about sincerity and truthfulness
2. Reliability - is the witness honest/sincere but mistaken?

Question 21

What are the rules related to bolstering credibility?

Answer 21

1. Rule against oath healing: A party can NOT lead evidence limited to showing the witness is generally credible (rule does not apply if witness’s credibility is attacked). Also; generally an A is entitled to call good character evidence as part of their defence. The A alone can personally testify to specific acts of good character but other witnesses are limited to testifying about general reputation.
2. Prior consistent statements: general prohibition (or exclusionary rule) against tendering prior consistent statements.

Question 22

What is the EDGAR exception to the usual prohibition against prior consistent statements?

Answer 22

Spontaneous exculpatory statements by an A when first confronted by cops CAN have probative value. May be admissible IF accused testifies and is exposed to cross.

Question 23

The collateral fact rule

Answer 23

The tendering of SUBSEQUENT evidence to contradict on witness on matters that are NOT material is not allowed.

Question 24

Principles from Corbett

Answer 24

1. Evidence of an A’s criminal record has legit value in relation to credibility
2. Must have confidence that juries will follow instructions
3. Convictions for offences of dishonesty will be much more probative of the rationale behind behind s. 12 than other offences.
4. Conviction for offences identical or similar to the offences before the court may attract the “Corbett principle” providing that them does NOT otherwise mislead the jury.
5. The remoteness or nearness of the convictions to the present charges is also a consideration.

Question 25

What is s. 9(2) and when would you use it?

Answer 25

Section in the CEA for challenging the credibility of your OWN witness. Offers you a shortcut for crossing on the statements your own witness made without a finding that they’re adverse.

Question 26

What is the Milgaard procedure?

Answer 26

Allows for s. 9(2) cross on the inconsistent statement (non-adverse witness)

Question 27

A vetrovec witness

Answer 27

A special, discretionary instruction relating to unsavoury or disreputable witnesses.

Question 28

What are the Clarke principles?

Answer 28

Do you know the reputation of the witness as to truth and veracity in the community in which the witness resides?

If yes;

Is that reputation good or bad?

Question 29

How does Khela, following Vetrovec define “unsavoury witness”?

Answer 29

All witnesses who, bc of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial cannot be trusted to tell the truth.

Question 30

What is the Mohan test for expert admissibility?

Answer 30

1. Relevance
2. Necessity in assisting the trier of fact
3. Absence of any exclusionary rule
4. A properly qualified expert

Question 31

What is meant by “persons in authority”?

Answer 31

Anyone formally involved in the arrest OR someone the A believed could control the proceedings (subjective) and that believe was OBJECTIVELY reasonable?

Question 32

What is 4 point voluntariness test from Oikle?

Answer 32

1. Were there inducements (threats or promises)?
2. Was there a lack of operating mind?
3. Was there oppression?
4. Dirty tricks?

Question 33

What is the derived confessions rule?

Answer 33

testimony will be excluded if the taining factors that made it involuntary the first time were present during the second (relevant factors: time span, same people, pointing to the first statements?)

Question 34

What 3 things must be considered when looking to exclude under s. 24(2)?

Answer 34

1. Was the evidence “obtained in a manner”…
2. “if it is established”…
3. “bring the admin of justice into disrepute”…

Question 35

What to consider when determining whether a piece of evidence will bring the admin of justice into disrepute? (Hint: it’s an objective test)

Answer 35

1. The seriousness of the charter infringing state conduct
2. The impact of the breach on the Charter-protected interest of the accused
3. Society’s interest in adjudication of the case on its merits

Question 36

What is s. 24(1) of the Charter and why would you use it?

Answer 36

S. 24(1) is another remedy section (for the exclusion of evidence). Used to exclude when evidence wasn’t “obtained in a manner” that violated a charter protected right. So 24(1) is used as a catch all to exclude evidence where it can’t fit into 24(2)

Question 37

What is s. 13 and who does it protect?

Answer 37

A charter section dealing w/ cross protection; basically saying you can’t use evidence from one proceeding to incriminate in another.

ONLY applies to accused persons, not witnesses (no limits on how previous statements by witnesses can be used).

Question 38

What are the exceptions to the general rule against introducing bad character evidence of the accused?

Answer 38

1. Character directly in issue (subject of litigation, A puts it in issue)
2. Circumstantial evidence of guilt (similar fact evidence)

Question 39

What’s an example of a situation in which he A could tender of a non-accused witness’s disposition, provided the probative value doesn’t outweigh prejudice?

Answer 39

Evidence of alternate suspects = relevant to an issue at trial (ie who did the crime)

Question 40

When can the CROWN lead general character evidence of a non-accused?

Answer 40

When the accused points to a third party suspect (and even then, only to rebut the inference that the defence seeks to infer)

Question 41

What is hearsay?

Answer 41

1. An out of court statement that is 2. Introduced to prove the truth of its contents.

Question 42

What are the pigeon holed exceptions?

Answer 42

1. Res gestae: excited utterances
2. Statements against interest: test is from Young
3. Prior judicial proceedings
4. Statements concerning bodily and mental condition.
5. State of mind exception
6. Statement of present intention (depends on the reasonableness of the inference; test if from PR)
7. Statements by parties
8. Business records

Question 43

How do you treat implied assertions that are hearsay? Ie, there’s no “truth” in the statement.

Answer 43

No differently than direct assertions.

Question 44

What does the “necessary” component of the principled exception to hearsay mean?

Answer 44

That the evidence couldn’t otherwise be REASONABLY obtained.

Not necessary to the Crown’s case and NOT absolutely necessary.

Question 45

What does the “reliability” component of the principled exception to hearsay mean?

Answer 45

1. Either there is procedural reliability (adequate substitutes for testing truth and accuracy)
2. OR substantive reliability (sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy)

Question 46

What does the “reliability” component of the principled exception to hearsay mean?

Answer 46

1. Either there is procedural reliability (adequate substitutes for testing truth and accuracy)
2. OR substantive reliability (sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy)

Question 47

When is substantive reliability established?

Answer 47

1. When statement is unlikely to change under cross

2. TJ can consider if anything corroborates or conflicts with that statement

Question 48

When can a TJ rely on corroborative evidence to establish substantive reliability?

Answer 48

If it shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness or accuracy. But corr. evidence also MUST:

1. go to the truthfulness or accuracy of the material aspects of the hearsay statement
2. assist in overcoming the hearsay dangers (Does so if it’s combined effect shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about the accuracy of, the material aspects of the statements)

Question 49

What are the 2 kinds of privilege?

Answer 49

1. class privilege

2. case by case privilege

Question 50

What are the 3 exceptions to solicitor/client privilege?

Answer 50

1. Comms to facilitate a criminal purpose
2. Public safety
3. Innocence at stake

Question 51

What is the test to determining whether communications between a solicitor and client are priviledged?

Answer 51

1. The communication must be between a solicitor and client or solicitor’s staff
2. Must be for the purpose of seeking legal advice
3. Must be intended to be confidential