1. Introduction
1.1 The Interaction of Truth and Justice:
· They are not co-extensive
· You can have justice at the expense of truth: Ex: By erecting barriers on the methods of acquisition of the truth, in the name of justice (e.g. torture).
· You may have a higher quotient of justice in sacrificing the truth than in obtaining it.
1.2 Fixed Rules v. Discretionary Stds:
· The law has undergone a self-examination of the traditional category approach to the admissibility of evidence.
· Rules are certain but inflexible, Stds are flexible but inevitably administered uncertainly
1.3 Themes in the Course:
i. Overriding Discretion:
– The existence of a residual and overriding discretion to exclude evidence whose PV > PE. (Corbett)
ii. Burden of Proof:
a. Who has the burden of providing evidence?
b. Who has the burden of proving facts?
– In criminal law, either the defence or the crown may bear an evidentiary burden, but only the prosecution may bear a legal burden.
iii. Std of Proof:
– The weight or measure of proof that is necessary to produce a conviction or acquittal.
– In a criminal trial the std is proof beyond a reasonable doubt.
– In Civil trials the std is proof on a balance of probabilities.
iv. Relevance: The criterion of admissibility.
v. Similar Fact Evidence:
– Does evidence of what a person has done in the past provide a valid premise that may be admitted to strengthen the case of the prosecution?
– Problematic b/c:
a. Risk that the jury will judge the accused for what he did in the past rather than in the present case.
b. Risk that the jury will pass judgement on the accused’s character, rather than his or her conduct.
vi. Character Evidence:
vii. Hearsay Evidence:
– Problematic b/c:
a. Statements at issue were not made under oath.
b. We may be able to cross-X the witness, but we cannot cross-X the declarant.
c. Witness may have misheard (Broken telephone syndrome)
– Traditionally, there was a general exclusionary rule against the admissibility of hearsay evidence, subject to certain categorical exceptions.
– Khan: SCC began distancing itself from the category approach to hearsay b/c it was too formalistic and uncertain. SCC adopted the position that hearsay might be admitted even if it did not fall w/in any of the traditional categories, if it fell w/in the exercise of a residual discretion by the TJ to admit such evidence where it is reliable and necessary.
viii. Opinion Evidence:
a. Lay Opinion:
b. Expert Opinion: SCC has begun to restrict the admissibility of expert testimony.
ix. Illegally Obtained Evidence:
– It may be that the only way to ensure that the police act legally is to exclude all such evidence. (Wray was the high water mark in this regard.)
– General rule of exclusion of involuntary statements subject to exception where its truth can be confirmed.
– Many critics have argued that this rule sanctions police brutality.
1.4 R. v. Corbett
· Only the fact of a prior conviction is allowed. A prior conviction is not a fact for sim fact evidence!
· S. 12 has been criticized:
a. Is a prior conviction relevant where it is not related to truth telling?
b. It is inconsistent w/ the principle of rehabilitation. (Forgive and forget, you served your time).
– Trier of fact is not required to disbelieve a defendant that has been convicted of a previous offence. The trier of fact may take these factors into consideration in assessing what weight should be accorded to the fact of a previous conviction, in assessing the accused’s credibility.
· Can the inference that what the accused has done affects whether he should be believed, from the inference that what he has done makes him more likely to be the kind of person who would be more likely to have committed the crime?
– Distinction collapses in a perjury case. How can you tell the jury that the accused prior convictions are relevant to whether he should be believed, but not relevant to whether he is the type of person who would commit the present offence, which is lying.
· How broadly should Corbett be interpreted? If Corbett is correct, and there is an overriding judicial discretion to exclude evidence that is admissible pursuant to s. 12, can the same be said of any rule which purports to allow for the admissibility of certain evidence. In other words, how narrowly must this judgement be interpreted? Does it apply only to evidence of previous convictions?
· Is there an overriding discretion to include expressly excluded evidence? If there is a residual discretion to exclude evidence that is expressly admissible pursuant to the statute, is there also an overriding discretion to include evidence that is expressly excluded?
· R. v. Starr – Iacobucci: Evidence that was previously inadmissible under the traditional category approach to hearsay evidence might still be admissible in the exercise of a residual judicial discretion to include h
iolation of the presumption of innocence for accused to bear an evidentiary or tactical burden.
· Where there is a reverse onus and the accused is required to prove a defence on a balance of probabilities.
· Where a legislative presumption is created that is a statutory fiction. i.e. Where proof of fact A beyond a reasonable doubt does not necessarily result in fact B being proved beyond a reasonable doubt. In such a case, where B is an essential element of the offence, a conviction might occur despite the existence of a reasonable doubt.
R. v. Downey [1992] S.C.R.; R. v. Laba [1994] S.C.R.; R. v. Audet [1996] 2 S.C.R.
· Healy: Evidentiary burden in Audet violates the presumption of innocence, b/c it effectively requires the defence to answer the prosecution’s case. The presumption relieves the prosecution of the burden of proving all of the elements of the offence, rather than merely imposing an evidentiary burden on the accused to raise a reasonable doubt as to a defence. In the latter type of case, at least the prosecution is still required to prove all of the elements of the offence. Unless it does so, the accused does not have to say a word, and is still entitled to an acquittal. In this case, the defence must defend his innocence even though the prosecution has not necessarily succeeded in persuading the trier of fact of the accused’s guilt beyond a reasonable doubt.
· Ryan (and Healy and P+S): All evidentiary burdens violate the presumption of innocence, b/c if the prosecution succeeds in proving the basic fact beyond a reasonable doubt, but not the presumed fact, and there is no evidence to rebut the presumption, the accused must be convicted despite the presence of a reasonable doubt. Also, even a defence is an essential part of an offence. Theoretically, the accused should therefore be entitled to be presumed to have acted w/in the ambit of that defence until the prosecution succeeds in proving that he has not, beyond a reasonable doubt.
