Cdn Evidence Law
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Evidence Summary
I. DEFINITIONS:
Materiality: to be material and admissible, evid must relate to a fact that is of consequence to teo
litigation. [see p11]
Probative value: Evid must render the desired inference more or less likely than it would have been w/o
it. T of F may consult an expert to aid. Lacking probative value is inadmissible.
Multiple relevance: subject tot exclusionary rules, evid thats relev to one aspect, but irrel in another, is
still admissible.
Sufficiency: Suff if evid relates to whether the appropriate burden of proof had been met. Evid is suff if a
T of F cld reas conclude from the evid that a party has met its burdens.
Direct Evidence: either proves or disproves an issue, on estab of the credibility of the W who proffers it.
Circumstantial Evidence: require that the T of F make a determination based on an inference suggested
by the evid.
Opinion Rule: Ops are generally inadmissible, a W may only testify as to facts.
Burdens of Proof:
Legal Burden: or the Persuasive Burden, is the standard to which a party must discharge is duty to
prove the matter in issue in order to succeed at trial. Legal Burden in CRIM cases is Bey a Reas
Doubt. In CIVIL cases is on the Bal of Probs. This does not require that each piece of evid
satisfy the burden independently, but as a whole.
Evidential Burden: is the duty to go forward in an argument Ð- to adduce evid to support adopted
positions on all disputed issues. Evid Burden shifts b/w parties as prescribed by elements of the
offence and the rules of evidence.
Competence and Compellability: A W must be both to testify. [see p3]
Competence: a persons ability to participate effectively in legal proceedings. Person must possess the
1) ability to observe, 2) accurately recall observations, and 3) communicate such to the T of F.
Communicate: measure of intellectual ability and moral responsibility to tell the truth. Qs w/
respect to kids (s.16 CEA), mentally incompetent, and spouses of acc. (s.4 CEA).
Compellability: depends on the existence of a legal requirement that a person give testimony as a W.
CRIM: everyone subject to compellability, expect acc pursuant to s.11 Charter, and exclusionary
rules. CIVIL: Provl evid acts generally state no one is compellable in a civil suit,
II. GENERAL:
Three Questions that need to be asked:
1) How to present information
2) What information can we present
3) How to analyze information we receive
Evidence is meant to assist rules of substantive law.
The evidence presented at trial is often not too solid, it is a belief in what happened.
Factors that might influence testimony:
1) Observation
2) Memory
3) Communication
4) Willingness to provide accurate information
III. RULES:
Purpose: to assist
in the determination of truth through
fact-finding.
Must be relevant to be admissible. RELEVANCE: evidence that tends to prove or disprove a fact in issue, subject to certain exclusionary rules, the evidence must be both material and probative to be relevant. [see p11]
All relevant evidence is admissible (Rule of Inclusion)
All information is considered
But in our system, we are often told of rules that we cannot consider:
Exclusionary Rules: evid may be relevant but still excluded b/c falls w/in the following:
1) Rules that prohibit certain witnessed from testifying (Incompetence)
2) Rules of Compellability
3) Rules to stop people from testifying because of policy
4) Dont allow certain professionals to testify
5) Charter issues pursuant to 24(2), and s.276(2) CEA
6) Opinion rule
We deny certain evidence because:
1) certain evidence cannot be assessed (Hearsay)
2) It may not be truly useful
3) Collateral facts rule
4) Evidence obtained in violation of the Charter
Operation of Rules in Different Settings:
1) Canada Evidence Act
2) Ontario Evidence Act
These two sections never apply at the same time.
In Criminal Cases, use the Canada Evidence Act, in Civil use the Ontario, unless otherwise indicated.
Law of evidence varies depending on tribunal:
1) Civil small claims, no worry about hearsay rule
2) Criminal cases, more reluctant to deny access to 3rd party records (M.A. v. Ryan).
3) Tribunals will not apply the rules the same way the courts will, b/c they want people to have access:
A) Is this information valuable given the lessons the law of evidence have teaches us vs. Does policy insist it.
B) Check to see if special provision on evidence in legislation dealing with the tribunal. Do they fit the definition of a tribunal. Even if laws of evidence dont apply, it can provide some basis for arguments when before a tribunal.
The law of evidence applies differently depending on different stages: