Evidence law notes - PDF

Evidence Law Notes: =================== **PART 1: INTRODUCTION** **ADVERSARY SYSTEM** - This system operates on the principle that truth emerges from the competition between opposing parties \[common law\] **[Two Systems of Fact Finding: ]** 1. **Adversarial System**: The judge plays a p...

Evidence Law Notes: =================== **PART 1: INTRODUCTION** **ADVERSARY SYSTEM** - This system operates on the principle that truth emerges from the competition between opposing parties \[common law\] **[Two Systems of Fact Finding: ]** 1. **Adversarial System**: The judge plays a passive role, NOT engaging in the investigation themselves, BUT instead overseeing the process as the two sides present their evidence and arguments. 2. **Inquisitorial System**: The judge conducts the inquiry and investigation into the case, rather than just presiding over a contest between two opposing parties Judge is more like a detective **CASE LAW: Phillips v Ford Motor Co.** +-----------------------------------+-----------------------------------+ | Ratio/ Principal / RULE | The adversarial system requires | | | an **impartial trier of facts.** | | | | | | Facts presented must receive a | | | "**dispassionate and impartial** | | | consideration to arrive at the | | | trust of the matters in | | | controversy. | | | | | | A trial is not intended to be a | | | scientific exploration with the | | | presiding Judge assuming the role | | | of a research director; It is a | | | forum established for the purpose | | | of providing justice for the | | | litigants" | +===================================+===================================+ | Facts | Plaintiff sued for damages | | | arising out of a car accident. | +-----------------------------------+-----------------------------------+ | Issue | The main issue was whether a car | | | accident was caused by a | | | defective brake mechanism or | | | driver error. | +-----------------------------------+-----------------------------------+ | Decision | New trial Ordered | +-----------------------------------+-----------------------------------+ **ADMISSIBILITY OF EVIDENCE** **PART 2: STRUCTURAL ELEMENTS OF THE LAW OF EVIDENCE** **BURDEN OF PROOF** **The Standard Required to Meet the Burden of Proof** 1. **A Balance of Probabilities Applies in most civil cases** a. The initiating party has a duty to prove the claim on a balance of probabilities there is a fair probability that the plaintiff's version is the correct one based on the evidence. Even if the defendant offers some other logical explanation b. *[If the plaintiff can show that their case is 50% more probable, they will succeed. ]* 2. **Beyond a Reasonable Doubt Criminal standard (high)** c. The high standard applies because the accused will attract criminal liability should he be proven guilty. d. It has the potential to completely change a person's life in terms of future career prospects, and freedom. As a result, the Crown must convince the jury beyond reasonable doubt that the defendant is guilty of the changes brought against them, and through evidence that there is no other reasonable explanation for the crime committed. **ALLOCATION:** **Who Should Bear the Burden?** **[CIVIL CASE]** - The Burden is usually on the Plaintiff -- person who brings case - The burden is lower than criminal. Claims must be proven on a preponderance of evidence, or a BALANCE OF PROBABILITIES. - If the evidence is such that a tribunal can say "we think it is more probable than not", the burden is discharged. - If the probabilities are equal, it is NOT discharged. ***CASE LAW: FONTAINE v INSURANCE CORP of BRITISH COLUMBIA*** +-----------------------------------+-----------------------------------+ | Facts: | Plaintiff claimed damages for | | | negligence with respect to the | | | death of her husband in a car | | | crash. [She] | | | [claimed] ***res ipsa | | | loquitir*** -- ***the thing spoke | | | for itself.*** The circumstances | | | of the crash were obscured by bad | | | weather and the trial Judge found | | | negligence had not been proven | | | against the driver. | +===================================+===================================+ | Issue | Whether res ipsa loquitir | | | applied? If so, what is it\'s | | | effect? | +-----------------------------------+-----------------------------------+ | Rule/Ratio | RIL arises where the | | | circumstances of the occurrence | | | permit an interference of | | | negligence attributable to the | | | defendant. For RIL to apply, the | | | circumstances must "shout facts | | | aloud" | | | | | | **RIL cannot be used to shift the | | | plaintiff's burden onto the | | | defendant.** | +-----------------------------------+-----------------------------------+ | Analysis | RIL is defeated by a single | | | possible inference of | | | non-negligence | | | | | | The burden does not shift to the | | | defense any anytime -- the | | | plaintiff retains the onus to | | | establish that there are no other | | | possible inferences besides | | | negligence. RIL itself is a claim | | | that all circumstantial evidence | | | points only to negligence, and a | | | single possible inference in | | | which there would not be | | | negligence defeats the claim. | | | | | | The circumstances of the accident | | | did not need the threshold -- | | | many facts (date, time, etc.) of | | | the accident are not known. | +-----------------------------------+-----------------------------------+ | Conclusion: | The doctrine is not well defined | | | or used often anymore. It\'s use | | | has been restricted to cases | | | where the facts permitted an | | | inference of negligence and there | | | as no other reasonable | | | explanation for it. | +-----------------------------------+-----------------------------------+ **Preliminary Findings of Fact (Admissibility Stage)** **Measure of EVIDENTIAL BURDEN --** the obligation of a party to present sufficient evidence to support their claims or defenses in legal proceedings - Evidentiary Burden (tactical burden, minor), include the obligation of [ensuring that there is evidence in the case on an issue to put it into play. ] - Failing to satisfy this burden will prevent the issue from being considered by the trier of fact. - The **party with the evidential burden is not** required **to** **convince** the trier of fact of anything, **only to point out evidence which suggests certain facts existed**. - ***R v Schwartz (Rule):*** Evidentiary burden is a lesser burden you must adduce evidence to put a particular issue in play. The party with the evidentiary burden is NOT required to convince the trier of fact anything and is required only to point to evidence suggesting that certain facts exist. **Criminal Cases:** - The prosecution must prove the defendant's guilt BARD - EB: The defendant may need to present evidence for certain defenses (self-defense) **Civil Case:** - The plaintiff must prove their case on a balance of probabilities - **EB**: the defendant may need to prove evidence to country the plaintiffs' claims - **Case Law: F.H. v McDougall (2008) -- clarifies the standard of proof** - **Facts**: P was a student of a residential school. 40 years later P brought a suit alleging his supervisor assaulted him on 4 occasions. At trial the judge found P was credible witness despite certain inconsistencies in his testimony. - The BCCA overturned the appeal, holding that the TJ failed to consider the inconsistencies in P's testimony. Closer scrutiny was required in cases where moral blameworthiness is alleged. - **Issue**: Whether the balance of probabilities burden ought to be shifted to the criminal burden according to the seriousness of allegations? - **Rule**: There is only 1 civil standard of proof at common law, and it is proof on a BOP. **The criminal standard is NOT to be applied in civil cases**. There is no presumption of innocence in civil cases. - **Analysis**: there is no shifting standard of probability in civil cases -- judges ought to scrutinize evidence with 'greater care' in serious circumstances. - The law operates on a binary system 0-1. Either the event happened, or it didn't. Having 60% or 70% probability for example would not be coherent or understandable for a decision maker like 51% is. **Measure of Burden of PERSUASION --** the obligation to prove one's assertions in a legal dispute - Persuasive Burden (legal burden, primary burden) includes the requirement of satisfying the trier of fact that a certain mater proposition has been made out. - The party who is unable to persuade the trier of fact of his version of the facts loses the case. - ***R v Schwartz (Rule):*** Persuasive burden is a burden to make out a material proposition. The burden on the Crown is to prove guilt BARD is a type of persuasion burden. 1. **[CRIMINAL CASE]** the measure is beyond a reasonable doubt -- measure should leave no reasonable doubt about defendant's guilt. **Case law: Woolmington v DPP** [**Ratio**: The HOL held that the prosecution must prove the defendant's guilt BARD, and] [the BOP should not shift to the defendant] 2. **CIVIL CASE** preponderance of evidence meaning the evidence must show something is more likely true than not. **ADMITTING EVIDENCE: RELEVANCE AND MATERIALITY:** **[RELEVANCE]** **Threshold for Relevance:** - For evidence to be relevant, it must help prove or disprove an important face in the case. The bar for what counts as relevant is low. - **Making Inferences More Probable:** Evidence is relevent if it makes a particular inference (conclusion drawn from facts) more likely compared to other possible explanations. - It does not need to be extremely valuable or convincing -- just helpful in connecting to the legal issue at hand. **Relevancy & Sufficiency** - **[Relevance]**: Does the evidence have a logical connection to the legal issue? - **[Sufficiency]**: Is there enough evidence to support a verdict or allow the jury to decide the issue? - **[Focus on Connection:]** Relevance is about whether the evidence has a logical link to the case, not about how much impact it has. The evaluation of its weight or significance happens later. **What is the standard of relevance or probative quality which evidence must meet if it is to be determined?** **Assessing Logical Probative Value:** - For evidence to have any value there must be a premise, a generalization that one makes allowing the inference to be made. - **[Premises Matter]**: The relevance of evidence depends on the assumptions or premises it relies on. ***For example**, evidence of blooming roses might suggest it's spring, based on the assumption roses bloom in spring.* - For evidence to have any value there must be a premise, a generalization that one makes allowing the inference to be made. - **[Judges Role:]** Judges use their personal knowledge to determine if the evidence is relevant if they remain impartial. The relevance to evidence is based on whether the premise used to connect the evidence to the legal issue is accurate. - **[Challenging Relevance]**: To [EXCLUDE] evidence, argue against the premises that justify its relevance. If the basic assumption is wrong, the evidence might be less relevant and inadmissible. **[Test for Relevance: ]** ***Does the evidence have some tendency as a matter of human experience to support the inference for which it is being advanced? (Watson)*** **Relevance and Human Experience:** - The principle highlighted is that evidence is considered relevant if it has a tendency, based on human experience and logic, to support the inference it is meant to advance. In other words, the evidence must make the fact it is intended to prove (Fact B) more likely to be true given the presence of another Fact (Fact A) **Determination of Relevance:** - **[Relevance Test:]** To determine if the evidence is relevant, assess whether the existence of Fact A makes the existence or non-existence of Fact B more probable than it would without Fact A. - [Meaning] evaluating whether, logically and from human experience perspective, Fact A supports Fact B in a way that impacts the probability of Fact B being true of fact. - **[Material Facts]**: For evidence to be deemed relevant, Fact B (the fact that Fact A is supposed to support) must be a material fact in issue or relevant to a material fact in issue within the litigation. - Material facts are those significant to resolving the legal dispute. **[ADMISSIBILITY:]** - If fact A is deemed relevant to Fact B (as it makes Fact B more probable), then Fact A is considered prima facie admissible. - "Prima Facie Admissible" means that the evidence is initially deemed acceptable for consideration unless proven otherwise. **CASE LAW: *R v WATSON*** Conflict in expert evidence about how many bullets struck the victim. This was an important issue because if the deceased was shot 7 times (compared with 5), a different gun would have to have been used. - ONCA ordered a new trial. The proposed evidence of the witness was relevant. - **TEST**: "Does the evidence offered, as a matter of logic and human experience, tend to prove or disprove a fact in issue in the trial?" - This concept contains logical relevance and materiality - Relevance must be assessed in the context of the entire case and the respective positions of the Crown and Defense - **[Two Key Questions in this case: ]** - Does the fact that the deceased always carried a gun make it more likely he was in possession of a gun when he was shot? - Does the fact that the deceased was in possession of a gun when he was shot make it less likely that the appellant was party to a plan to kill the deceased? - **[Habit is an inference of conduct from conduct different that disposition]** - Involves repeated and specific response to a particular sit. - There was evidence that the accused carried a gun like a credit card - **If relevant,** consider whether the prejudicial effects outweigh the evidence's probative value - The evidence that the deceased carried a gun wasn't being used to suggest that he was dangerous or of bad character - The evidence wasn't used to justify the killing, just to extricate the appellate from any involvement in the shooting - Relevance can only be fully assessed in the context of the other evidence at trial on going dynamic process **Thayerian View of Relevance RULE:** 1. Nothing is to be received which is not logically probative of some matter required to be proven; and 2. Everything which is probative should be admitted, unless a clear ground of policy or law excludes it; but 3. Some matters, while exhibiting some minor degree of probative value should not be admitted because they were too speculative, remote, or dangerous. **Thayer's statement** outlines two key principles regarding the admissibility of evidence: 1. Only evidence that is logically probative of a matter requiring proof should be accepted 2. Relevant evidence should generally be admitted unless there are clear policy or legal reasons for exclusion - Judges have discretionary power to exclude evidence even if it\'s relevant, based on factors like its minimal significance, potential for jury misunderstanding or broader public policy concerns. This has led to the establishment of **rules of exclusion,** which arose from judges systematically rejecting certain types of evidence over time - **A key exclusionary rule is that evidence aimed solely at proving the accused's disposition (i.e., their character or likelihood of committing the crime) is inadmissible.** Thus, evidence that only demonstrates disposition does not meet the criteria for admissibility in court. **Case Law: R v Cloutier \[1979\]** -- SCC wrongly considers the sufficiency of the connection +-----------------------------------+-----------------------------------+ | **Facts:** | The accused charged with | | | importing narcotics. The RCMP are | | | onto him, so they inspect his | | | crate at the airport and find a | | | bag of marijuana. They seized the | | | marijuana from the crate, and | | | searched C's room. The trial | | | judge excluded the evidence of | | | marijuana found in C's room, | | | because it was irrelevant to his | | | importing narcotics | +===================================+===================================+ | **Issue** | Whether C knew that the marijuana | | | was in the crate. | +-----------------------------------+-----------------------------------+ | **Analysis** | **[Pratte J:]** | | | | | | "For one fact to be relevant to | | | another, **there must be a | | | connection or nexus between the | | | two** which makes it possible to | | | **infer the existence of one from | | | the existence of the other."** | | | *need a logical nexus between the | | | two facts.* | | | | | | ***Issue**: whether C knew...* | | | | | | - **[Theory 1:]** | | | If he's really into MJ, he's | | | more likely to know it\'s in | | | the crate ***NOT relevant**, | | | no proof he knew the contents | | | of the crate* | | | | | | - **[Theory 2]**: | | | Greater motive to import MJ | | | if he's really into it, so he | | | has a supply *seems logically | | | relevant BUT **Majority said | | | no**.* | | | | | | | | | | | | - *"There is not sufficiently | | | close logical connection b/w | | | the facts and that which is | | | sought to be proved".* | | | | | | - ***Problem --** Sufficiently | | | suggests weight is being | | | considered* | | | | | | **DISSENTING:** | | | | | | - Says there is some logical | | | connection of the evidence to | | | motive | | | | | | - The majority is considering | | | the weight | | | | | | **Critique** | | | | | | - Majority is looking for a | | | connection or nexus, but then | | | look for sufficiency of that | | | nexus | | | | | | - They're mixing up relevance | | | with the potential for | | | prejudice of the evidence. | +-----------------------------------+-----------------------------------+ **Case law: R v Morris \[1983\] page 147** The Supreme Court adopted the Thayerian view of relevance and rejected the Wigmore view that a piece of information must have a minimum probative value before it can be considered relevant. +-----------------------------------+-----------------------------------+ | **Facts:** | Morris was convicted of having | | | conspired with others to import | | | and traffic heroin into Canada | | | from Hong Kong. He appealed on | | | the grounds that the [trial judge | | | erred in admitting into | | | evidence] and in | | | taking into consideration a | | | newspaper clipping found in the | | | home of the accused entitled "The | | | Heroin Trade Moves to Pakistan". | | | | | | - **[Defense | | | argued]** no this | | | is a completely different | | | place, different setting also | | | it would be prejudicial. | +===================================+===================================+ | **Issue** | ***Whether the newspaper clipping | | | was relevant to the appellant's | | | conviction as a heroin dealer?\ | | | *** | +-----------------------------------+-----------------------------------+ | **Rule** | Relevance is determined by asking | | | if a piece of evidence has any | | | logically probative value to a | | | legal issue. **For one fact to be | | | relevant to another, there must | | | be a connection between the two | | | which makes it possible to infer | | | the existence of one from the | | | existence of the other.** | | | | | | The weight to be given to is a | | | question for the trier of fact, | | | subject to the discretion of the | | | TJ to exclude evidence where the | | | probative value is minimal, and | | | the prejudicial effect is great. | +-----------------------------------+-----------------------------------+ | **Analysis** | **[Mclntye for the | | | MAJORITY:]** | | | | | | The unexplained presence of the | | | newspaper clipping amongst the | | | possessions of the appellant | | | could lead an inference that he | | | had an interest in the subject of | | | that clipping. Though the | | | probative value of such evidence | | | may be low, admissibility should | | | not be confused for weight. | | | \[said it\'s good enough\] | | | | | | **Lamer J DISSENTING:** | | | | | | Evidence ought not to be | | | admissible if its only purpose is | | | to prove that the accused is the | | | type of man who is more likely to | | | commit a crime of the kind with | | | which he is charged. Such | | | evidence is viewed as having no | | | real probative value regarding | | | the specific crime attributed to | | | the accused. There is no | | | sufficient logical connection | | | between the one and the other. | | | | | | **[Judges also retain | | | discretionary power to exclude | | | logically relevant evidence | | | where: ]** | | | | | | - It is of too slight of a | | | significance. | | | | | | - It has too conjectural and | | | remote a connection | | | | | | - Being dangerous in their | | | effect on the jury (likely to | | | be misused or overestimated | | | by that body, being | | | impolitic). | | | | | | Here the relevance of the | | | slipping is solely to the | | | accused's disposition -- the | | | reasoning being that -- because | | | persons who are traffickers are | | | more likely to keep such | | | information than not, people who | | | keep such information are more | | | likely to be traffickers than | | | people who do not. \[said value | | | outweighed by its potential for | | | prejudice\] | +-----------------------------------+-----------------------------------+ | **Conclusion:** | The newspaper clipping was | | | relevant | | | | | | - This case corrects for | | | Cloutier there are no degree | | | of relevance. | | | | | | Evidence is relevant whenever | | | there is a connection, as a | | | matter of logic and human | | | experience between the evidence | | | and the fact in issue evidence is | | | either relevant or it isn't. | +-----------------------------------+-----------------------------------+ | **Notes:** | This case is a landmark for the | | | Canadian approach to relevance. | | | The competing Wigmore view was | | | that to be relevant, the evidence | | | must have a plus value -- it must | | | possess a minimum probative | | | value. Instead, we now have an | | | extremely low threshold to | | | relevance -- does it logically | | | make anything that is a legal | | | issue more or less probable, to | | | any degree? | +-----------------------------------+-----------------------------------+ **[INDUCTIVE] REASONING page 83-100, 154-164; 350-354** - Derives conclusions based on the uniformity of PRIOR human experience - **Problem** = highly subjective and often grounded in erroneous assumptions about human behavior. This has been particularly pronounced issue in homicide cases *(R v White)* - Involves drawing general conclusions or inferences from specific pieces of evidence presented in court. **Case Law: R v ARP** **DEDUCTIVE REASONING?** **DIRECT and CIRCUMSTANTIAL EVIDENCE:** In discharging their persuasive burden, the Crown may tender direct or circumstantial evidence: **[DIRECT EVIDENCE]**: - Is sensory and involves experiencing a material fact directly through one's senses***. For Example: "I saw the accused shoot the victim".*** After the witness is deemed to be competent, the only question is whether the trier of fact believes the witness's account. - **[One Potential Source of Error = Credibility]**: The witness may be wrong, intentionally, or accidentally. - Direct evidence is [not] [necessarily] [more] reliable -- in the case of the eyewitness evidence, **for example**, juries must be instructed on the specific frailties of the evidence, and both judges and juries must be highly attuned to inherent fragilities in direct evidence **[CIRCUMSTANTIAL EVIDENCE: ]** - Tends to provide a factual matter through other element or circumstances from which the occurrence of the event in issue can reasonably be inferred**. *For example, "I saw the accused standing over the victim with a gun, but I didn't see him shoot the gum".*** - **Two Potential Sources of Error =** [the witness may be wrong OR, the proposed inference may be wrong] (either bc there is not a sufficient basis for the inference on the evidence, or because the proposed inference cannot reasonably and logically be drawn from the established facts). **Case Law: R v Watson** +-----------------------------------+-----------------------------------+ | **Facts:** | Accused was charged with second | | | degree murder and was convicted | | | of manslaughter. The victim has | | | been at his business premises | | | with his friends. The accused, | | | together with his friends, | | | arrived in the evening. Not long | | | afterward, the victim was shot | | | and killed, and the accused's | | | friend was wounded. | | | | | | - There was a conflict in | | | expert evidence as to how | | | many bullets struck the | | | victim | | | | | | The **pathologist** who performed | | | the autopsy c[laimed the victim | | | was shot seven | | | times]. A **firearms | | | expert** testified the [victim | | | was shot five times]. | | | | | | The **defense contested the | | | admission of the evidence** of | | | Clive Mair, a friend of the | | | deceased, who testified the | | | deceased always carried a gun. | +===================================+===================================+ | **Issue** | 1. *Whether the fact that the | | | deceased always carried a gun | | | make it more likely that he | | | was in possession of a gun | | | when he was shot?* | | | | | | 2. *Whether the fact that the | | | deceased was in possession of | | | a gun when he was shot make | | | it less likely that the | | | appellant was party to a plan | | | to kill or do harm to the | | | deceased formed some time | | | prior to his arrival with H | | | and C at the rental unit? **\ | | | *** | +-----------------------------------+-----------------------------------+ | **Rule** | **Relevancy must be assessed in | | | the context of the entire case** | | | and the respective positions | | | taken by the Crown and the | | | defense. | | | | | | **All relevant evidence is | | | admissible**, subject to a | | | discretion to exclude matters | | | that may unduly prejudice, | | | mislead or confuse the trier of | | | fact, take up too much time, or | | | that should otherwise be excluded | | | on clear grounds of law or | | | policy. | | | | | | **No minimum probative value is | | | required for evidence to be | | | deemed relevant (Morris).** Any | | | matter that has any tendency, as | | | a matter of logic and human | | | experience, to prove a fact in | | | issue, is admissible in evidence, | | | subject to the overriding | | | judicial discretion to exclude | | | such matters for the practical | | | and policy reasons already | | | identified. | | | | | | The fact that a person is in the | | | habit of doing a certain thing in | | | a given situation suggests that | | | one a specific occasion in which | | | those circumstances arose the | | | person acted in accordance with | | | established practice. **Evidence | | | of habit is therefore properly | | | viewed as circumstantial evidence | | | that a person acted in a certain | | | way o the occasion in issue.** | | | | | | **A finding that evidence is | | | relevant does not determine its | | | admissibility. Relevant evidence | | | will be excluded if it runs afoul | | | of exclusionary rules, or if a | | | person balancing of its probative | | | value against its prejudicial | | | effect warrants its exclusion.** | +-----------------------------------+-----------------------------------+ | **Analysis** | The absence of a direct | | | connection does not determine | | | relevance. If it did, most | | | circumstantial evidence would be | | | inadmissible. | | | | | | Where a person's conduct in given | | | circumstances in the issue, | | | evidence that the person | | | repeatedly acted in a certain way | | | when those circumstances arose in | | | the past has been received as | | | **circumstantial evidence that | | | the person acted in conformity | | | with past practice on the | | | occasion in question.** | | | | | | **[Evidence of Habit is NOT the | | | same as evidence of disposition | | | ]** | | | | | | - **Evidence of Habit** = | | | inference of conduct on a | | | given occasion based on | | | established patterns of past | | | conduct | | | | | | - **Evidence of disposition** = | | | inference of state of mind | | | from a person's conduct on | | | one or more previous | | | occasions and further | | | inference of conduct on the | | | specific occasion based on | | | the existence of that state | | | of mind | | | | | | - **Habit** = a person's | | | regular practice of | | | responding to a particular | | | kind of situation with a | | | specific type of conduct | | | {i.e., get angry every time | | | he sees his friend} | +-----------------------------------+-----------------------------------+ | **Conclusion:** | The fact that the accused has a | | | habit of keeping a gun was | | | relevant to the question whether | | | he had one when shot. | | | | | | - The further inference from | | | possession to use is | | | essential to make Mair's | | | evidence relevant to any | | | issue in the trial | | | | | | - The deceased and C were shot | | | evidence does NOT suggest C | | | shot himself -- he was shot | | | by a different gun than the | | | one used to shoot the | | | deceased -- jury could have | | | inferred deceased shot C | | | | | | - Evidence supporting the | | | inferences that the deceased | | | was armed and used a weapon | | | during the confrontation made | | | the defense position as to | | | the appellant's | | | non-involvement in any plan | | | to kill or do harm to the | | | deceased more viable than it | | | would have been if those | | | inferences were not available | | | So is Mair's evidence | | | relevant? | | | | | | **Should We Exclude the | | | Evidence?** | | | | | | - The evidence that the | | | deceased always carried a gun | | | suggested that he was a | | | potentially dangerous person | | | and reflected adversely on | | | his character. Evidence | | | suggesting the accused is a | | | person of bad character is | | | subject to a specific | | | exclusionary rule to which | | | there are exceptions. | | | | | | | | | | | | - There is however **no such | | | exclusionary rule in criminal | | | cases** where otherwise | | | relevant **evidence | | | suggests** that the | | | **deceased is a person of bad | | | character.** | | | | | | | | | | | | - In this case, the proposed | | | evidence had significant | | | probative value and the | | | record already suggests the | | | deceased was of bad | | | character. | | | | | | - The admission of Mair's | | | evidence would NOT, therefore | | | have introduced an element of | | | potential prejudice into the | | | trial which was not already | | | present. | +-----------------------------------+-----------------------------------+ | **Final Decision** | The Evidence WAS admitted. | +-----------------------------------+-----------------------------------+ **MATERIALITY p.150** - Evidence must be **rationally probative** of the fact sought to be thereby established; BUT it must also concern a matter in issue b/w the parties (must be material) - A fact may have some logical relation to the case but **will not be admissible UNLESS it is logically related to the legal argument being made in the case.** Otherwise, it is immaterial and so irrelevant - **Example**: Accused is charged with possession of undersized lobsters. **Issue: possession*: whether the accused have possession of the undersized lobsters?*** - Evidence that he didn't know he had the lobsters = **irrelevant**. - Objecting to his evidence the prosecutor is not saying that the evidence would fail to rationally persuade the TOF regarding the accused state of mind, but RATHER that the accused state of mind does not matter. - This evidence goes to his state of mind, not the issue of possession (R v Pierce Fisheries Ltd \[1970\]). - Courts decided as a matter of substantive law, there is NO mens rea requirement for the offence of possession of undersized lobsters; the offence was decided to be one of absolute liability. - The evidence tendered was relevant to the matter sought to be established but what was sought to be established was beside the point = immaterial. **MULTIPLE RELEVANCE P.151** - The same piece of evidence may be relevent to different matters. Though evidence may be inadmissible for one purpose as violating of a certain policy, **it may be admissible when tendered for another purpose.** - **Example:** evidence of character could be relevant to both credibility and disposition. The rule of evidence can **exclude** such evidence if tendered to prove that the person acted in agreement with that character on the occasion under review but **admit** the same if tendered to impact the credibility of a witness. **RELEVANCE AND SOCIAL CONTEXT** - There is no set rule for relevancy. In the final analysis, the decision rest with the individual judge to dictate relevancy, but can be dictated by the judge's culture, age, sexual orientation, gender, racial or ethnic background and socioeconomic statue. leave it to the trial judge's sound exercise and experience, subject to review - The reasonable person is not purely objective: The realization that the hypothetical, reasonable person is to some degree reflective of the judges' own preconceptions is what makes an appreciation of social context so important - "An understanding of how other legitimately view the circumstances serves to counteract the subjectivity of the judge's own view of the world". **CASE LAW: R v Lavallee \[1990\] -- p.152...** +-----------------------------------+-----------------------------------+ | **Facts:** | A **battered woman shot her | | | partner i**n the back of the head | | | as he left her room. | | | | | | He has threatened to kill her. | | | | | | A psychiatrist described the | | | accused's terror and her | | | inability to escape the | | | relationship and opined that the | | | shooting was the '*final | | | desperate act'* of a woman who | | | *sincerely believe* she would be | | | killed that night. | +===================================+===================================+ | **Issue** | **The court had to decide:** | | | Whether the psychiatric evidence | | | was properly received? And if the | | | evidence was relevant to a | | | material issue? ***\ | | | *** | +-----------------------------------+-----------------------------------+ | **Rule** | Social context evidence can be | | | admitted in certain | | | circumstances, but it must be | | | relevant to a legal issue. | +-----------------------------------+-----------------------------------+ | **Analysis** | [Expert evidence of psychological | | | effect of battering on partners | | | must be relevant to the mental | | | state of the | | | appellant.] The | | | common public needs help | | | understanding [battered wife | | | syndrome.] | | | | | | The definition of what is | | | reasonable must e adapted to | | | circumstances which are, by and | | | large, foreign to the world | | | inhabited by the hypothetical | | | "reasonable man". | | | | | | **[Assumptions were brought to | | | bear on the respondent in (R v | | | Whynot \[1983\])]** | | | | | | Where evidence exists that an | | | accused is in a battering | | | relationship, expert testimony | | | can assist the jury in | | | determining whether the accused | | | has a "reasonable" apprehension | | | of death when she acted by | | | explaining the heightened | | | sensitivity of a battered women | | | to her partners acts. | | | | | | - They went on to say "without | | | such testimony I am skeptical | | | that the average factfinder | | | would be capable of | | | appreciating why her | | | subjective fear may have been | | | reasonable in the context of | | | the relationship. | | | | | | - "*Afterall the [hypothetical | | | "reasonable man" observing | | | only the final incident may | | | have been unlikely to | | | recognize the batterer's | | | threat as potentially | | | lethal."]* | | | | | | **Applying this to the case at | | | bar as an example,** the | | | "reasonable man might have | | | thought, as the majority of the | | | COA seemed to, that it was | | | unlikely that Rust would make | | | good on his threat to kill the | | | appellant that night because they | | | had guest staying over. | +-----------------------------------+-----------------------------------+ | **Conclusion:** | The fact that the accused has a | | | habit of keeping a gun was | | | relevant to the question whether | | | he had one when shot. | | | | | | - The further inference from | | | possession to use is | | | essential to make Mair's | | | evidence relevant to any | | | issue in the trial | | | | | | - The deceased and C were shot | | | evidence does NOT suggest C | | | shot himself -- he was shot | | | by a different gun than the | | | one used to shoot the | | | deceased -- jury could have | | | inferred deceased shot C | | | | | | - Evidence supporting the | | | inferences that the deceased | | | was armed and used a weapon | | | during the confrontation made | | | the defense position as to | | | the appellant's | | | non-involvement in any plan | | | to kill or do harm to the | | | deceased more viable than it | | | would have been if those | | | inferences were not available | | | So is Mair's evidence | | | relevant? | | | | | | **Should We Exclude the | | | Evidence?** | | | | | | - The evidence that the | | | deceased always carried a gun | | | suggested that he was a | | | potentially dangerous person | | | and reflected adversely on | | | his character. Evidence | | | suggesting the accused is a | | | person of bad character is | | | subject to a specific | | | exclusionary rule to which | | | there are exceptions. | | | | | | | | | | | | - There is however **no such | | | exclusionary rule in criminal | | | cases** where otherwise | | | relevant **evidence | | | suggests** that the | | | **deceased is a person of bad | | | character.** | | | | | | | | | | | | - In this case, the proposed | | | evidence had significant | | | probative value and the | | | record already suggests the | | | deceased was of bad | | | character. | | | | | | - The admission of Mair's | | | evidence would NOT, therefore | | | have introduced an element of | | | potential prejudice into the | | | trial which was not already | | | present. | +-----------------------------------+-----------------------------------+ | **Final Decision** | Wilson J hold, the trial judges | | | charge to the jury was adequate, | | | and the appeal ought to be | | | allowed. | +-----------------------------------+-----------------------------------+ **CASE LAW: R v S. (R.D.) \[1997\] -- page 154** +-----------------------------------+-----------------------------------+ | **Ratio:** | Social context of evidence can be | | | admitted by taking **judicial | | | notice** or by expert evidence. | | | The extent to which a judge may | | | rely on social context evidence | | | acquired from person knowledge | | | and judicial experience has | | | proved highly controversial. | +===================================+===================================+ | **Facts** | Black youth was charged with a | | | series of offences involving an | | | encounter with a police officer. | | | At trial, the judge weighed the | | | evidence and determined that the | | | accused (black youth) should be | | | acquitted. | | | | | | In his reasoning the TJ Justice | | | Sparks in response to a | | | rhetorical question by the Crown, | | | that police officer have been | | | known to mislead the court in the | | | past and they have been known to | | | overreact particularly with | | | non-while groups, that would | | | indicate a questionable state of | | | mind. | | | | | | - The crown challenged the | | | comments as raising a | | | ***reasonable apprehension of | | | bias*** | | | | | | Crowns appeal was allowed -- new | | | trial ordered on the basis that | | | the judges remarks give rise to | | | RAB. Judgement was upheld by | | | Majority of the NS COA. | +-----------------------------------+-----------------------------------+ | **Issue** | Whether the Judge's comments in | | | her reasons gave rise to a | | | reasonable apprehension of bias. | +-----------------------------------+-----------------------------------+ | **Analysis** | **CORY J:** | | | | | | In some circumstances, it may be | | | acceptable for a judge to | | | acknowledge that racism in | | | society might be for example the | | | motive for the overreaction of a | | | police officer. | | | | | | **BUT** it would be dangerous for | | | a judge to suggest that a | | | particular person overreacted | | | because of racism **unless** | | | there is evidence adduced to | | | sustain this finding. It would be | | | equally inappropriate to suggest | | | that female complaints in sexual | | | assault cases ought to be more | | | readily believed than make | | | accused persons solely based on | | | the history of sexual violence | | | against women by men. | | | | | | Where there is no evidence | | | linking the generalization to the | | | witness, these situations might | | | leave the judge open to | | | allegation of bias on the basis | | | that credibility of the | | | individual witness was prejudged | | | according to stereotypical | | | generalizations. | | | | | | **MAJOR J: pg. 159** | | | | | | Be careful of stereotyping, just | | | because some police officers like | | | that all do. | | | | | | The trial judge could be | | | perceived as assigning less | | | weight to the police officer's | | | evidence because he is testifying | | | in the prosecution of an accused | | | who is of a different race | | | | | | Whether racism exists in our | | | society is not the question. The | | | issue is whether there was | | | evidence before the court upon | | | which to base a finding that | | | these police officer's actions | | | were motivated by racism. There | | | was no evidence presented at | | | trial. | | | | | | The fact that some other police | | | officers of some other occasions | | | have lied or overreacted is | | | irrelevant. Life experience is | | | not a substitute for evidence. | | | There was NO evidence before the | | | judge to support conclusions | | | reached. | | | | | | **L'H-D: pg 160** | | | | | | While judges can never be | | | neutral, they should strive for | | | impartiality. Differing | | | experiences of judges assist then | | | in their decision-making process | | | and will be reflected in their | | | judgements, so as long as these | | | experiences are relevant to the | | | cases, are not based on | | | inappropriate stereotypes, and do | | | not prevent a fair and just | | | determination of the cases based | | | on the facts in evidence. | | | | | | An understanding of the context | | | or background essential to | | | judging may be gained from | | | testimony from expert witnesses | | | in order to put the case in | | | context, from academic studies | | | properly placed before the court, | | | and from the judge's personal | | | understanding and experience of | | | the society in which the judge | | | lives and works. | +-----------------------------------+-----------------------------------+ | **Final Decision** | A 6-3 majority of the Supreme | | | Court held that there was no | | | reasonable apprehension of bias | | | allowed the appeals and restored | | | the acquittals. | +-----------------------------------+-----------------------------------+ **Thinking Point:** If we accept that we must rely on informed generalizations to draw links between two facts in order to conclude that a fact is relevant or when assessing credibility, how is what Justice Sparks did in ***R v S. (R.D.)*** different from a trier of fact who concludes that a witness is not credible because he or she has a criminal record or has provided inconsistent statements, or that a witness; flight from the scene is evidence of a guilty mind? Professor Connie Backhouse, "Bias in Canadian Law: A lopsided Precipice", observation: \[...\] ***R v Hamilton (rule):*** R v RDS draws a distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of social context, and findings of fact based on evidence viewed through the lens of personal judicial experience and social context. The latter is proper, and former is not. **DISCRETION** - Recognizing discretion, a trial just recognizes room for choice, room for judgement. - Not meant to be calculus rigidly applied rather best to catalog the factors which are important to the sound exercise of direction. - Discretion when applied to a court of justice means sound discretion guided by law. It must be governed by rule not by humor; it must not be arbitrary, vague, and fanciful but legal and regular ***(Lord Mansfield in R v Wilkes (1770))*** **EXCLUSIONARY DISCRETION:** - [Discretion can be used to **exclude evidence in FIVE circumstances:** ] - Where it is read into or explicitly stated in statue - Where probative value is outweighed by the prejudicial effect. - Where evidence is tendered by the accused discretion to exclude subject to a higher standard that the probative value is substantially outweighed by the prejudicial effect. - Where it must be excluded to ensure a fair trial under the Charter. - Where the evidence has been obtained in violation of Charter rights under section 24(2) **(ii) Discretion to Exclude Read into a Statue under the Charter** **[Criminal Cases -- Common Law 164-190]** **[Section 12(1) Canada Evidence Act: ]** **CASE LAW*: R v Corbett*: \[Illegal drug trade\]** +-----------------------------------+-----------------------------------+ | **Facts:** | Accused was convicted of murder | | | and he appealed, arguing that he | | | was deprived of his right to a | | | fair hearing by the reason of | | | introduction evidence of his | | | earlier conviction of murder. | | | | | | He argued that, if he was called | | | as a witness, section 12 of the | | | Canada Evidence Act, would NOT | | | apply to him because of section | | | 11(d) of the Charter, and he | | | could NOT be cross-examined as to | | | his prior criminal record. Under | | | ***section 12,*** ***"a witness | | | may be cross-examined as to | | | whether the witness has been | | | convicted of any offence..."*** | +===================================+===================================+ | **Issue:** | ***Whether section 12 of the | | | Canada Evidence Act is | | | constitutional?*** | +-----------------------------------+-----------------------------------+ | **Rule:** | **Discretion may be read into a | | | statue.** Here [there is a | | | discretion within section | | | 12] to disallow CE on | | | the prior criminal record of the | | | accused. | | | | | | [The organizing principles of the | | | Law of Evidence (La Forest | | | **Dissent**) ] | | | | | | - All relevant evidence is | | | admissible, subject to | | | direction to exclude maters | | | that may unduly prejudice, | | | mislead or confuse the trier | | | of fact, take up too much | | | time, or should otherwise be | | | excluded on clear grounds of | | | policy. | | | | | | - The more similar the offence | | | to which the previous | | | conviction relates to the | | | conduct for which the accused | | | is on trial, the greater the | | | prejudice harbored by its | | | admission | | | | | | - A court should be very Chary | | | of admitting evidence of a | | | previous conviction for a | | | similar crime, especially | | | when the rationale for the | | | stringent test for admitting | | | "similar fact" evidence is | | | kept in mind. | +-----------------------------------+-----------------------------------+ | **Analysis:** | Had the accused's record not been | | | revealed, the jury would have | | | been left with quite incorrect | | | impression that, while all the | | | Crown witnesses were hardened | | | criminals, the accused has an | | | unblemished past. It cannot be | | | the case that nothing short of | | | this entirely misleading | | | situation is required to satisfy | | | the accused right to a fair | | | trial. | | | | | | Depriving the jury of the info | | | relevant to credibility creates a | | | serious risk bc the jury will be | | | presented with a misleading | | | picture | | | | | | The best way to alleviate these | | | risks is to give the jury all the | | | information and at the same time | | | give them clear direction as to | | | the **limited use** they are to | | | make of such information. | | | | | | **[La Forest J: Dissenting | | | Opinion: ]** | | | | | | - The prejudicial potential | | | harbored by the admission at | | | trial for murder of a | | | previous conviction for | | | non-capital murder is | | | manifestly profound. The | | | probative value of this item | | | of evidence in relation to | | | credibility is a best | | | trifling. | | | | | | - Discretion CANNOT be | | | exercised in a vacuum. It is | | | only with ref to the | | | circumstances of the case | | | that its exercise becomes | | | meaningful. The circumstances | | | of the present case militate | | | towards exclusion | +-----------------------------------+-----------------------------------+ | **Conclusion:** | s.12 CEA, when read in | | | conjunction with the salutary | | | common law discretion to exclude | | | prejudicial evidence, DOES NOT | | | violate the accused's right to a | | | fair trial or deprive him of his | | | liberty to except in accordance | | | with the principles of | | | fundamental justice. | | | | | | Trial Judge ERRED in law in | | | failing to recognize the | | | existence of the exclusionary | | | discretion described above and | | | consequently in admitting into | | | evidence the previous conviction | | | of Murder. The introduction of | | | evidence was unjustifiably | | | prejudicial to the fairness of | | | the appellant's trial. | | | | | | Appeal allowed -- Conviction | | | quashed and order a new trial | | | pursuant to section 613(2)(b) of | | | the Criminal Code. | +-----------------------------------+-----------------------------------+ | **Notes:** | "The recognition of a discretion | | | to exclude evidence when its | | | probative value is overshadowed | | | by prejudicial effect ensures | | | that the legitimate interests of | | | both the public and the accused | | | are considered. The factors that | | | should be considered in | | | exercising this discretion ensure | | | that this occurs. The recognition | | | and proper exercise of this | | | discretion, therefore, ensures | | | that s. 12 is constitutionally | | | valid." | | | | | | **Can the jury make and act on | | | such discretion?** | | | | | | Jury instructions permitting | | | evidence to be used for one | | | purpose while prohibiting it\'s | | | use for some other purposes are | | | known as "limiting instructions". | | | Despite reasonable doubts about | | | their effectiveness, limiting | | | instructions are routinely used | | | in Canadian Jury trials to | | | address a variety of evidence | | | problems | +-----------------------------------+-----------------------------------+ **\ CASE LAW: *R v POTVIN* \[Discretion read into s. 715) pg. 173** +-----------------------------------+-----------------------------------+ | **Facts:** | ***SCC** had to deal with the | | | admissibility of former | | | testimony. Accused and two others | | | (D. & T) were charged with | | | murder.* The Crown called as a | | | witness, although D has testified | | | at the preliminary inquiry, he | | | refused to testify at trial. | | | | | | The transcript of D's testimony | | | was received into evidence at | | | trial pursuant to section 715 | | | Criminal Code, and the accused | | | was convicted. The **[SCC allowed | | | the appeal.]** | +===================================+===================================+ | **Issue:** | ***Whether the testimony was | | | prejudicial or unfair?\ | | | *** | +-----------------------------------+-----------------------------------+ | **Rule** | Evidence may be excluded if it is | | | highly prejudicial to the accused | | | and of only modest probative | | | value. **Even evidence of high | | | probative value could be excluded | | | if admission would render the | | | trial unfair.\ | | | ** | +-----------------------------------+-----------------------------------+ | **Analysis** | The statutory provision did not | | | violate s.7 or 11(d) of the | | | Charter, however the trial judge | | | has a discretion to exclude | | | former testimony, even though the | | | statutory conditions have been | | | met. In this case the trial judge | | | failed to exercise that | | | discretion. | | | | | | Discretion could be aimed at | | | situations which there has been | | | unfairness in the manner in which | | | evidence was obtained (i.e., | | | Crown was aware at the time when | | | the evidence was initially taken | | | that the witness would not be | | | available to testify at the trial | | | but did not inform the accused of | | | this fact so that he could make | | | the best use of the opportunity | | | to CE the witness at the earlier | | | proceeding.) **OR** | | | | | | the effect of the admission of | | | previously taken evidence on the | | | fairness of the trial. Evidence | | | may be excluded if it is highly | | | prejudicial to the accused and of | | | only modest probative value. | +-----------------------------------+-----------------------------------+ **CASE LAW: *R v L (DO)* page 174 -- \[discretion being read into s.715.1\]** **Issue:** ***Whether the VIDEOTAPED statements of young complainants in sexual assault cases admissible pursuant to section 715.1 of CC? and whether s.715.1 accord with the principals of fundamental justice?*** -------------- ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Analysis** Section 715.1 does NOT violate Charter as **there is discretion in the trial judge.** The incorporation of judicial discretion into section, which permits a trial judge to edit or refuse to admit videotaped evidence where its prejudicial effect outweighs its probative value, ensures that s.715.1 is consistent with the POFJ and a right to a fair trial is protected by section 7 and 11(d) of the Charter. **Notes** Potvin and L. (D.O.) -- the statutory provision say nothing about discretion, in the trial judge. The judges in the SCC to ensure a fair trial -- read the requirement in. **(iii) BALANCING PROBATIVE VALUE AND PREJUDICIAL EFFECT (p. 175)** - Even where evidence is relevant, material, and admissible, the court retains a discretionary ability to exclude evidence where the probative value of the evidence is exceeded by its prejudicial effect of where necessary to ensure trial fairness (R v Cloutier) - **[Discretionary power derives from]** both the Common Law and s. 24(1) of the Charter (R v Spackman, 2009). The Common-law is protected under s.11(d) -- which protects the right to a fair hearing. - The law is primarily inclusionary and will tend to admit all evidence that is logically probative of some fact in issue, subject to the rules of exclusion and exception. Where is does not fall into exclusion or exception the issues with the evidence only goes to weight (R v Corbett). - The discretionary power allows for a cost-benefit analysis to determine if the value of the evidence to determine the case correctly ***\"is worth the cost of its introduction to the litigation process" (R v Cyr \[2012\]).*** This will involve considering the prejudicial effect including the m