Intro

Question 1

What are the sources of Evidence Law

Answer 1

Sources of Evidence Law
● CL (primarily)
○ Pursuit of justice and truth is purpose of these rules
● Statute
○ CEA, BCEA
■ Prov act applies where cause of action is under prov. Statute
■ S40 of CEA incorporates provincial provisions
○ No comprehensive code
○ Applicable statute will sometimes provide limited rules relevant to leg objective
○ Rules of Court
● Constitutional Law
○ Charter/constitution
■ Paramount s52(1)
○ Aboriginal rights jurisprudence (s35(1))
○ Federalist limitations on who can enact evidentiary provisions
● SCC says courts have general CL discretion to exclude any evidence whose prejudicial impact outweighs probative value in a given case

Question 2

Primary materiality

Answer 2

relates directly to issue btwn parties (ex eyewitness identification)

Question 3

Secondary materiality

Answer 3

used to evaluate evidence that has primary materiality (ex prior inconsistent statements)

Question 4

The two kinds of rules of evidence

Answer 4

● Exclusionary rules → break case by excluding important evidence
● Effective presentation of evidence –> Rules concern how evidence can be presented/evaluated

Question 5

Functions of Evidence Law

Answer 5

● Often rules are to assess if evidence should be excluded b/c unreliable
○ Probative value>prejudicial effect
● Assess how probative evidence can be used/evaluated
○ Can have restricted admissibility (only use for limited purpose)
● Address policy concerns for excluding despite reliability (ex privilege)

Question 6

How/Where is admissibility determined?

Answer 6

● Voir dire
● Oral submissions
○ Judge can decide right there if simple
○ More complex go to voir dire

Question 7

Fundamental Rule:

Answer 7

everything relevant is admissible unless there is a legal reason for excluding it.

Question 8

What kinds of reasons are there for excluding evidence?

Answer 8

○ Admission would distort fact finding function of court
○ Admission would prolong trial or confuse issues
○ Admission would undermine some important value besides fact finding (ex charter)
○ Probative value is outweighed by prejudicial effect
■ Arises jurys emotions, creates side issue, time consumption, unfair surprise

Question 9

To be admissible, evidence must be :

Answer 9

1. Factually relevant
   ● does it make a fact more or less likely to be true?
2. Legally relevant
   ● Materiality (legal relevance - directed at a matter in issue)?
3. Not inadmissible on grounds of law or policy
4. The probative value must outweigh prejudicial effect

Question 10

Criminal proceedings

Answer 10

● Witnesses
○ All facts proved through testimony elicited by counsels q’s or q’s from judge.
○ Examination in chief and then cross examination, then party who called may re-examine
○ No leading questions during examination in chief

Crim proceedings
○ Begins with charging document called the indictment → specifies the offence and contains some facts to be alleged by the crown
○ Crown has constitutional duty to disclose relevant info to defence, defense has no such duty
○ Accused pleads
○ If jury, jury decides all facts. Jury need only give verdict, no explanation or findings.
○ Trial judge decides all legal questions including admissibility of evidence. If no jury, judge also decides facts and must give reasons.
○ If accused pleads not guilty, crown calls witnesses first
○ At close of crown case, accused may bring a motion for a directed verdict of acquittal where crown has insufficient evidence to establish elements of the offence.
■ If granted, SCC held that trial judge should withdraw case from jury and enter acquittal himself
○ Accused then calls witnesses but doesn’t need to.
○ After evidence heard, trier will be addressed by counsel
○ Judge instructs jury
○ Jury retires for deliberations, of which it is a criminal offence to disclose except in limited circumstances.
1. Voir Dire to Determine Conditions Precedent to the Admission of Evidence
● Trial within a trial to determine the facts that are a necessary precedent to the admissibility of evidence
● Held usually in absence of jury where highly prejudicial
● Other issues, it is ok for voir dire to be held in presence of jury (ex determining if a child is competent to testify)
2. Appealing on the Basis of Evidence Rulings in Criminal Cases
● Part XXI of CC
● Accused can appeal on question of law or other grounds. Crown can only appeal on question of law.
● Decision to exclude evidence is QOL.
● Even if error made as to whether to admit evidence, will not allow appeal unless the error cause substantial wrong or a miscarriage of justice
● If appeal is allowed, can quash conviction, substitute verdict, or order a new trial
3. Fresh Evidence on appeal
● Allowed in some cases

Question 11

Civil Proceedings

Answer 11

● Witnesses
○ All facts proved through testimony elicited by counsels q’s or q’s from judge.
○ Examination in chief and then cross examination, then party who called may re-examine
○ No leading questions during examination in chief

Civil Proceedings
○ Begins with statement (and notice) of claim and statement of defence
■ Dont say too much in notice of claim, cant allege more than you can prove, but need to include enough to set out a cause of action recognized by law
■ Cant include reference to evidence in pleadings, just set out factual particulars
■ Need 4 copies of statement of claims:
● one to courthouse,
● one kept by plf/lawyer,
● one to dfd/lawyer,
● one is signed by dfd lawyer and attached as an exhibit to your affidavit to serve as proof that they got the statement of claim.
○ Pleadings from other parties
○ Pre-trial discovery
■ Party’s affidavit on production disclosing documents is important source of info
■ Admissions made in discovery can be read in to evidentiary record at trial
■ Discovery enables parties to assess strengths and weaknesses of the case
○ Jury in civil case can make more detailed findings than criminal… ex they may determine liability based on a series of questions rather than just liable vs not liable
● Evidence in Interlocutory Proceedings in Civil Matters
○ May be necessary to determine procedural issues prior to trial
■ Ex motion to add a party, motion for interlocutory injunction
○ Where facts must be established in support of interlocutory motion, the evidence is presented in sworn statements or affidavits
○ Witnesses might need to attend and be cross examined