Rules of process

Presenting evidence: tier of fact

Requires proof

Testimonial evidence Competence: capacity & responsibility/oath 14 and older: CEA s 16 Under 14: CEA 16.1Compellable criminal accused? Charter s 11c and s 13[other proceeding] Case specific Unsavoury witness? Vetrovec warningKhela: jury attention, explain why, caution jury, and look for another sourcePrior consistent statement? Repetition does not add to reliabilityExceptions: recent fabrication, circumstantial evidence, narrative, etc.Prior inconsistent statement? Does add to reliability Test: must be sufficiently connected to the case, used fairly, only used to discredit witness if the prior statement is proved

Real evidence RelevantAuthenticJudge confirms sufficient for rational finding, then jury decide authenticityNot overly prejudicial Case specific Authenticity Continuity?Photos or videos? Accuracy, fairness, verification of oath: Creemer and CormierDocuments? Best evidence rule Electronic documents? Proof of system integrity: Hirch

No proof

Formal admissions Not disputing these facts Judicial notice Test: SpenceNot subject to debate among reasonable persons? Or capable of immediate and accurate demonstration? If not, then no adjudicative, but social/legislative balances dispositive and reasonableAdjudicative factsLegislative factsSocial framework facts

Rules of admissibility

Relevant to material fact: Direct vs circumstantial evidence: Cinous

Exclusionary rules: truth-seeking, policy, pragmatic

Character evidence? propensity reasoning: habit vs prohibited inference Accused? bad character evidence is presumptively inadmissible test: extrinsic conduct, discreditable, only purpose is prohibited inferenceexception: creditability (CEA s 12), rebut good character evidence (CC 666), similar fact evidence [probative value outweighs prejudice] (Handy)Sex offence? Twin myths (Seaboyer; CC 276-277)Third-party? Generally just probative value vs prejudiceCo-accused: judge can exclude if substantially outweighed by prejudice Civil? Directly at issue or allegation of criminal nature Case specific Scopelliti application: self-defence and violent disposition	Hearsay? Presumptively inadmissibleHearsay exceptionAdmissionsAgainst pecuniary interestPenal interestDying declarationBusiness recordsPrior testimonyExcited utterancesPresent physical or mental condition Principled approach: reasonably necessary, threshold reliability (Bradshaw), safeguard interests of accused Case specific KGB statementsNecessityReliability: oath, presence, cross-examination, no coercion
Opinion evidence? Fact vs opinion? Specialize or ordinary opinion? Lay opinion: GraatExpert opinion? Logical relevance, necessity, no exclusionary rule, qualified AND discretionary gatekeeping: White BurgessReliable science?	Voluntary confessions? Person in authority? (Oickle) Threats or promises?Oppression?Lack of operating mind?“other police trickery”S 7: right to remain silence
Privilege? More worried about fairness than truth-seeking Class privilege: solicitor, litigation, settlement, informer, spousal, journalist Exception: Innocence at stake (reasonable doubt and procedural safeguards) and public safety (clarity, seriousness, imminence)Case-by-case privilege: WigmoreOriginate in confidenceFull and satisfactory for maintenance of relationShould be sedulously fosteredCost-benefit Third party recordsNon sexual: O’ConnorSexual: CC s 278	Exclusionary discretion Must weigh prejudicial effect vs probative valueCriminal cases can read it into statute (Corbett) E.g.  s11(d) of Charter or s12 of Canada Evidence actPrejudicial effect: unfairness by its misuse, undue consumption of time, or confusionCriminal cases must be (in favor of accused) substantial probative vs prejudicial (Seaboyer)

Rules of Reasoning

Error of law: if triers of law do not control the evidence appropriately, they would have erred in law: R v Smith (2011)

Civil vs criminal trials

• Civil trials do not take evidence law quite as seriously, which is a legal mistake (e.g. “giving it weight” is technically a legal error)
• Criminal law advance evidence law the most (easier to go to SCC)
• Criminal defense: prejudicial effect substantially outweighs the probative value

(Revised) W.(D.) Formula

• “First, if you believe the [exculpatory] evidence of the accused, obviously you must acquit.
• Second, if you do not believe [all of] the testimony of the accused but you are left in reasonable doubt by [any part of the accused’s testimony], you must acquit.
• Third, even if you are not left in [reasonable] doubt by [any part of the accused’s testimony], you must [consider all] of the evidence which you do accept, [and ask yourself whether that evidence proves] the guilt of the accused [beyond a reasonable doubt].”