Evidence & Misc

Question 1

R. v. Nikolovski [1996] 3 RCS

Answer 1

Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, it becomes admissible and relevant evidence.

No need for corroboration,

Question 2

R. v. Bluecloud

Answer 2

• Non-alteration of video is sufficient but not necessary.
• Video doesn’t have to be of crime scene itself.
• Video doesn’t have to be unaltered – but does not need be a substantially accurate and fair representation.

Question 3

R. v. B. (C.) 2019 ONCA 380

Answer 3

SMS messages are admissible under CEA (s. 33.1) or Common law and requires

“evidence capable of supporting a finding that the electronic document is what it purports to be.”

The requirement is not onerous and may be established by either or both direct and circumstantial evidence.

Question 4

R. v. Badger, 2022 SCC 20

Answer 4

Eyewitness ID admitted as res gestae, despite subsequent failure to ID at trial

Question 5

R. v. Gerrard, 2022 SCC 13

Answer 5

1) absence of evidence of a motive to lie cannot be equated with evidence disproving a particular motive to lie; and

2) the burden of proof cannot be reversed by requiring the accused to demonstrate a motive to lie or explain why the complainant made the allegations

Question 6

R. v. O.A., 2022 ONCA 565

Answer 6

Certain BB and/or replica guns satisfy the definition of “firearm” in s.2 of the Code.

See: Pig’s Eye Test

Question 7

R. v. Oickle SCC 2000

Answer 7

• any statement made by A to person in authority inadmissible unless prove voluntariness BRD that there is operating mind and no:
• threats or promises
• Oppressive conditions
• Other police trickery, i.e. would it be shocking to the community

LEGITIMATE tactics can be used - R. v. Hebert

Question 8

R. v. KGB

Answer 8

Prior inconsistent statement

• Witness is available and contradicts previously sworn statement
• Declarant present for cross-examination
• Must go through s.9(2) of CEA to cross examine (leave of court)

Question 9

R. v. Khan

Answer 9

Prior CONSISTENT statement
Witness not available but his account through other witnesses (i.e. officer who took statement) is
No, or limited, opportunity to cross-examine declarant
Low reliability threshhold for prior consistent statements
Must be triggered by counsel
(i.e. must always prove necessity)

Question 10

s. 719(3) / Summers Credit

Answer 10

1.5 - 1 is the max, 1:1 is the standard.

Question 11

R. v. Duncan

Answer 11

The 1.5:1 Summers credit already takes into account the difficult and restrictive circumstances offenders often encounter during pre-sentence custody

The Duncan mitigation addresses exceptionally punitive conditions which go beyond the restrictions associated with pre-sentence custody.

REQUIRES EVIDENCE (is separate and apart from Summers)

Question 12

R. v. Furey, 2022 SCC 52

Answer 12

If high enough reliability -> relax necessity (but not vice versa)

Question 13

R. v. S.S., 2023 SCC 1

Answer 13

R. v. S.S., 2023 SCC 1 - Child complainant’s videotaped statement sufficiently reliable to be admitted as the only real evidence at trial.

Procedural reliability: whether the trier of fact will be in a position to rationally evaluate the evidence - R. v. Khelawon, 2006 SCC 57

Substantive reliability: describes a statement so reliable that it is unlikely to change under cross-examination. - R. v. Bradshaw, 2017 SCC

NB:

1. Hearsay?
2. Traditional common law exception?
3. Principled Approach?
4. If necessary and sufficiently reliable AND PV > PE -> TJ can admit

Question 14

R. v. Hilbach, 2023 SCC 3

Answer 14

Robbery firearm MMPs UPHELD

Question 15

R. v. Hills, 2023 SCC 2

Answer 15

Reckless discharge handgun man minimum STRUCK