1. law, govt and politics

Issues in the law of evidence
Jacob Stilman
LoGreco Stilman, Barristers
310- 4211 Yonge St, Toronto
tel 416 488 4110
www.lslaw.ca
Jstilman@lslaw.ca
EVIDENCE- fundamentals
-Relevance
-Materiality
-Admissibility
Relevance
• Relevance is not a legal concept, rather, a matter of everyday experience
and common sense. It is not an inherent characteristic of any item of
evidence, rather, exists as a relation between an item of evidence and a
proposition of fact that its proponent seeks to establish by its
introduction.
• An item of evidence is properly characterized and rejected as irrelevant if
it is not probative of the fact a party seeks to establish by its introduction
by reason of its natural, common sense connection with that fact. An
item of evidence isrelevant where it is probative of the fact a party seeks
to establish by its introduction through the same process of reasoning.
• (Watt- Manual of Criminal Evidence, Chap 3)
•
Example 1
• P. Needs to establish offence of Possession of
Property
• A. lives in room where alleged stolen property
is located
• P. wants to introduce evidence that A. has key
to the room
• Probative of access to room, which is a fact
necessary to establish element of offence
Example 2
• Same scenario• P. wants to introduce evidence of a waterbong found in the room
• Probative of ownership? Exclusivity of access
to room?
R. v. Morris[1983] 2SCR 190
• The accused was convicted of conspiring to
import and traffic heroin after a co-accused was
arrested on his return from Hong Kong with
heroin in his possession. Evidence against the
accused consisted primarily of telephone
conversations and meetings between the accused
and others connected to the co-accused, as well
as items found in his apartment including an
unexplained newspaper clipping headed "The
heroin trade moves to Pakistan".
Per McIntyre J. (Ritchie, Beetz and Estey JJ. concurring):
Depending on the trier's view and other evidence, it could have been inferred from the
newspaper clipping that preparatory steps in respect of importing narcotics had been
taken or contemplated. The necessary nexus between the evidence and the offence
therefore existed and the evidence was admissible. Although the probative value was low,
it was a matter of weight, not admissibility.
Per Lamer J. (dissenting) (Dickson and Wilson JJ. concurring):
Evidence adduced solely for the purpose of proving the accused's disposition to commit the
crime is inadmissible, except where the accused puts his character in issue through his
defence. However, admissiblity must be determined at the time the evidence is tendered, at
which time character was not in issue. As the clipping's sole relevancy was to prove the
accused's disposition, it was inadmissible. Even if the accused had raised the issue of
character through his examination of the Crown witness, the clipping was of such slight
probative value it should have been excluded in any event under the judge's general
discretionary power.
R. v. White [2011] 1 SCR 433
• A. Immediately flees from shooting scene
• A. defence is that gun went off accidentally
• P. arguing in closing that: the accused fled
with " . . . no hesitation . . . no shock, no
uncertainty on his part.“
• On appeal- issue of post offence conduct- Was
evidence of flight properly admissible
Per majority:
The conduct alluded to by the Crown was not the flight itself, but rather the accused's
failure to hesitate after his gun was fired into the victim's chest before he fled the scene.
It was less consistent with an accident and was thus relevant to the question of whether
the accused had the requisite intent for second degree murder. Divergence from a normal
range of reaction, though not determinative, was more consistent with an intentional
shooting than with an accident. The accused's lack of hesitation prior to fleeing the scene
was relevant to the issue of his level of culpability, thus this evidence was properly left
with the jury. The trial judge's caution was adequate to alert the jury to the risk associated
with this evidence and to allow it to weigh the evidence properly.
Dissent:
Despite the Crown's reliance on the accused's demeanour prior to flight, the trial judge
instructed the jury that it could make use of the evidence of flight itself as probative of intent,
an inference directly prohibited by this Court's 1994 decision, which held that a "no probative
value" instruction will be required when an accused's post-offence conduct is "equally
explained by" or "equally consistent with" two or more offences.
The use of such demeanour evidence in this case ought not to have been permitted to go to
the jury on the critical issue of murderous intent or accident. The demeanour description of " . .
. no hesitation . . . no shock, no uncertainty on his part" should have been the subject of a no
probative value instruction.
The trial judge's instruction was incorrect. The demeanour argument relied on by the Crown
invited a speculative and unreasonable finding of murderous intent. It was not probative of
intent and was therefore irrelevant.
Materiality
• Materiality is a legal concept that defines the status of the
propositions that a party seeks to establish by evidence to the
case at large. What matters is whether the fact the party seeks to
prove bears any relation to the issues in the case.
• What is in issue in a case, thus what is material, is determined by
the applicable substantive law, the issues raised by the
allegation(s) contained in the indictment, and the applicable
procedural law.
• Evidence is immaterial if the proposition of fact in that it is offered
to prove is not, under the governing substantive and procedural
law, an issue before the court. Evidence is material if it is offered
to prove or disprove a fact in issue.
(Watt- Manual of Criminal Evidence, Chap 4)
Example 1
•
•
•
•
Sexual assault charge
V. is under the age of 16
A. is adult
Assume both parties are fully aware of their
respective ages
• Is it material that V. was a willing participant?
Example 2
• Same scenario, but A. defence is that he was
unaware of V.’s age
• Is it material that V. was found in company of
A. in her high school uniform
R. v. Luciano
[2011] O.J. No. 399
• To make its way into a criminal trial, an item of
evidence must also be material. Evidence is
material if what it is offered to prove or disprove
is a fact in issue. What is in issue is determined by
and a function of the allegations contained in the
indictment and the governing procedural and
substantive law.
• If the fact the evidence is offered to prove is not
in issue, for example because of an admission,
the evidence is immaterial
Admissibility
• Admissibility is wholly and exclusively a creature of the law. The rules of
admissibility make up the bulk of the law of evidence. They are, for the
most part, negative. They exclude evidence, which is relevant and
material, for reasons that the law deems sufficient.
• The rules of admissibility are rooted in considerations of policy, but no
single organizing or justificatory principle underlies every rule. The basis
varies. In some instances, exclusionary rules are animated by fear of
fabrication. In others, concerns with efficiency in the trial process are
prominent. Some are born of a desire to avoid undue or unfair prejudice.
Yet others seek to protect a broader public interest. Evidence may be
excluded because its costs, as the law regards them, outweigh the benefits
that may accrue to the ascertainment of truth, and the correct disposal of
litigation.
• WATTCRIMEV §5.0
Principled Approach
Necessity, Reliability
Prejudicial vs. Probative
Whither the Hearsay Rule?
Reliability, Necessity
•
R. v. Khan [1990] 2 S.C.R. 531, [
•
A more flexible approach to hearsay, rooted in principle and policy, is the correct
direction to take, particularly where the declarant is a child and the statement
concerns sexual abuse. The first question should be whether reception of the
hearsay statement is necessary. (…)
The next question should be whether the evidence is reliable. Many
considerations, such as timing, demeanour, the personality of the child, the
intelligence and understanding of the child and the absence of any reason to
fabricate, may be relevant.
•
•
•
The mother's statement in this case describing her conversation with her daughter
should have been received. It was necessary, the child's viva voce evidence having
been rejected. It was also reliable. The child had no motive to falsify her story,
which emerged naturally and without prompting. The fact that she could not be
expected to have knowledge of such sexual acts imbued her statement with its
own peculiar stamp of reliability.
Necessity
• The inadmissibility of the child's evidence might
be one basis for a finding of necessity. But sound
evidence based on psychological assessments
that testimony in court might be traumatic for
the child or harm the child might also serve.
• Felixible, adaptive, approach- multiple
scenarios where necessity threshold is crossed
Other examples of Principled
Approach
R. v. Kimberly [2001] OJ no. 3603
R. v. Starr [2000] 2 SCR 144
R. v. B.(KG) [1993] 1 SCR 740
R v. Kimberly
• Murder of young female Dr. in her condo
garage
• Kimberly and Clancy on trial
• In BC, a deceased convict named Teed had
confessed to the murder, but later resiled
• Issue: Could the confession go before the
Jury?
Necessity- Kimberly
• The necessity inquiry mandated by the
principled approach to hearsay is
straightforward in this case. The admission of
hearsay evidence is necessary where the
declarant is unavailable to testify…
Teed killed himself prior to trial and was
obviously unavailable to testify.
Reliability- Kimberly
• The reliability requirement looks to threshold
reliability and not the ultimate truth of the
statements tendered.
• Threshold reliability is concerned not with
whether the statement is true or not; that is a
question of ultimate reliability. Instead, it is
concerned with whether or not the
circumstances surrounding the statement itself
provide circumstantial guarantees of
trustworthiness.
The hearsay dangers presented by Teed's British Columbia statements
run the full gamut of the dangers associated with hearsay evidence.
He was not under oath or any imperative to speak the truth. The
statements were not videotaped so there was no basis upon which a
jury could assess Teed's demeanour and, perhaps more importantly,
the interaction between Teed and his questioners. There is nothing
approaching a detailed summary, much less a verbatim record, of
what was said by Teed and what was said to Teed in these interviews.
Teed insisted that his conversations concerning the Warrick killing
should not be recorded. The only record of what he said consists of
brief notes made by the British Columbia investigators some time
after the various interviews. In the absence of anything approaching a
full and accurate record of what was said, it is virtually impossible to
discern either the contents or the context of Teed's British Columbia
statements. Finally, Teed was not subject to cross-examination when
he made these statements.
R. v. Starr
• Witness identified accused as person in car to police officer
• Witness testified and was not asked to identify accused
• Police officer gave evidence of witness's out-of-court
identification
• Trial judge admitted evidence under "prior identification"
exception to hearsay rule
• "Prior identification" exception only applies where
declarant does not give evidence or declines to identify
accused in response to questioning
• Neither situation pertained in present case — Out-of-court
identification likewise lacked both necessity and reliability
required to admit statement under principled analysis.
R.v. B(KG)
• W. providing video taped statement
implicating A- recanting at trial
• At trial, orthodox rule of prior inconsistent
statement applied: ie can only be used to
impeach declarants’s credibility, but not for its
truth
• New rule: Prior inconsistent statement can,
where sufficient guarantees of
trustworthiness are present
R.V B(KG) cont
• the statement is made under oath or solemn
affirmation following a warning as to the
existence of sanctions and the significance of the
oath or affirmation, (
• the statement is videotaped in its entirety
• the opposing party, whether the Crown or the
defence, has a full opportunity to cross-examine
the witness respecting the statement, there will
be sufficient circumstantial guarantees of
reliability to allow the jury to make substantive
use of the statement.
Probative vs. Prejudicial
(Just when you thought there was no
hope of exclusion)
Discretionary Exclusion of evidence
• The common law recognizes that a trial judge has a discretion to exclude
evidence, otherwise admissible, in certain circumstances. What is
required, in essence, is an assessment of the effect of the reception of
the evidence on the fairness of the trial.
• Evidence tendered by P, which is relevant, material, and otherwise
admissible, may be excluded in the application of a cost benefit analysis
on the ground that:
• i. its probative value is overborne by its prejudicial effect;
• ii. it involves an inordinate amount of time that is not commensurate
with its value;
• iii. it is misleading in that its effect on the trier of fact is out of proportion
to its reliability; or
• iv. it involves the needless presentation of cumulative evidence.
• (Watt- Chap 7)
What about the Defence? Same Standard?
Defence evidence, which is relevant, material, and
otherwise admissible, may be excluded only where
its probative value is substantially outweighed by
its prejudicial effect.
(Watt Chap. 7)
Therefore: Defence gets benefit og an asymmetrical
standard of admissibility under this approach
R. v. Buric [1996] O.J. No. 1657 (C.A)
It is the role of the trier of fact to assess the reliability of
evidence and the credibility of witnesses. A trial judge
does not have the authority to pre-empt a jury's
assessment of the evidence by …excluding evidence
where to do so would have the same practical effect as a
stay. A discretion exists to refuse to admit evidence
where to do so would cause an unfair trial. However, the
fact that evidence may be unreliable does not, per se,
render a trial unfair. The trial judge erred in concluding
that the quality of L's evidence was a question of
admissibility, rather than a question of weight for the
jury.
R. v. Khelawon, [2006] 2 S.C.R. 787
• The trial judge's function is to guard against the admission
of hearsay that is unnecessary or the reliability of which is
neither readily apparent from the trustworthiness of its
contents nor capable of being meaningfully tested by the
ultimate trier of fact. If the proponent of the evidence
cannot meet the twin criteria of necessity and reliability,
the general exclusionary rule prevails. In a criminal case,
D's inability to test the evidence may impact on trial
fairness, thereby giving the rule a constitutional
dimension. The trial judge also retains a residual
discretion to exclude admissible hearsay where its
prejudicial effect is out of proportion to its probative
value.
So, is there a rule, or not?
• Context is everything
• Cases will be fact driven
• Hearsay evidence will be still be scrutinized
more closely under the Nec/Rel doctrine
• Non-hearsay, but otherwise “unfair” evidence
is more likely to admitted where sole issue is
“reliability”
Stilman’s universal rules of evidence
• Distillation of a coherent and universally
applicable rule of admissibility is impossible
• Einstein’s elusive Unified Theory has a greater
chance of being proven before a predictable
set of rules of evidence emerge
• Everything is a “smell test”
• The guiltier the client, the more likely the
evidence goes in.