Sources and Goals of the Law of Evidence 2



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David Suk’s Criminal Evidence Summary, Professor Klein, Fall 2015

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Sources and Goals of the Law of Evidence 2

Intro, Definitions, Purposes of Evidence Law 2

Sources of the Law of Evidence 2

Burden of Proof (Presumption of Innocence) 3

Quantum of Proof 3

Presumptions, reverse onus (text 825-27) 3



Relevancy 3

Character Evidence 5

The ACCUSED is generally allowed to lead CHARACTER EVIDENCE 5

The CROWN cannot generally lead CHARACTER EVIDENCE (EXCEPTIONS BELOW) 5

What can character evidence consist of? (when adduced by Crown OR accused) 5



PUTTING CHARACTER IN ISSUE (SUCH THAT THE CROWN CAN ADDUCE CHARACTER EVIDENCE) 6

SIMILAR FACT EVIDENCE (A TYPE OF CHARACTER EVIDENCE THE CROWN MAY ADUCE) 6

The Principled Approach to similar fact evidence (evidence of prior bad acts) 6

The Problems associated with similar fact evidnce 7

The Old Approach to similar fact evidence [BAD LAW!] 8



Character Evidence Concerning Third Parties 8

CREDIBILITY 9

General and introductory concerns 9



Supporting Credibility 9

Rule against oath-helping 9

Prior Consistent Statements 10

Recent Fabrication in sexual assault 11



Impeaching Credibility 11

The Collateral Facts Bar and Corroboration 13

Collateral Facts Bar 13

Corroboration (see from page 381) 14

Expert Opinion Evidence 14

Lay Opinion Evidence 14

Expert Opinion Evidence 15

Cases involving experts in the context of CHARACTER 16



Hearsay 16

Rationale for the Hearsay Rule 17



Overall Approach to Hearsay 17

Hearsay Exceptions 19

Spontaneous exclamations 19

Statements against penal interest 19

Testimony from prior criminal proceedings: 20

State of Mind 20

Dying Declaration? 21



Privilege 21

Solicitor Client 22

Exceptions to Solicitor-Client Privilege 22

Informant Privilege 23

Case-by case privilege 23

COMPETENCE AND COMPELLABILITY OF WITNESSES 24

Sources and Goals of the Law of Evidence

Intro, Definitions, Purposes of Evidence Law


  • Definition: Evidence = all the means by which any alleged matter of fact is established or disproved (Black’s Law Dictionary).

  • The law of evidence is primarily concerned with the means of proof that can be put before the trier of fact at trial, the permissible uses of the proof by trier of fact, and how the means of proof may be presented/tested

  • The basic question underlying the law of evidence: what is true for legal purposes?

  • The truth that the law of evidence constructs is built not only of factual truth, but also of other values such as social efficiency, individual rights, and fairness.

  • The law of evidence developed on the basis of the jury, the people who decide what is true for legal purposes. So the evolution of the law proceeded according to what the jury should or shouldn’t see.

Goals of evidence law

  • Truth-seeking (e.g. presumption of admissibility of all relevant evidence; expert evidence to counteract stereotypes)

  • Ensuring a fair trial process (e.g. the privilege against self-incrimination)

  • Promoting efficiency in trials (e.g. pre-trial disclosure and discovery; the “collateral facts” bar)

  • Protecting important relationships – privilege (e.g. privileges)

  • Safeguarding the integrity of justice (e.g. excluding unconstitutionally obtained evidence)

  • Of course, these goals sometimes conflict with one another. E.g., sometimes privileged info is admissible b/c it is so important re: truth seeking.

  • Avoiding wrongful acquittals (e.g. elimination of old corroboration requirements for testimony of children, sexual assault complainants, related to truth seeking, but also about ridding the process of stereotypes that get embedded within the law)

  • Avoiding re-victimizing complainants (e.g. by eliminating rules permitting the prior sexual history of complainants in sexual assault cases)

  • Avoiding wrongful convictions (e.g. rules around prior criminal acts and bad acts – generally not admissible evidence to avoid rounding up the usual suspects; the high burden of proof)



Sources of the Law of Evidence


1. Common Law

2. Statutes: No Canadian jurisdiction has enacted a comprehensive code of evidence



  • The federal Canada Evidence Act and the provincial evidence acts modify the common law on what they do address (these statutes are near incomprehensible without an understanding of the common law)

  • Criminal Code, Controlled Drug and Substances Act each have evidentiary provisions governing the matters to which they apply

3. The Constitution: The law of evidence is of course restrained by constitutional requirements

  • Federalism: Parliament has jurisdiction over criminal law and procedure; therefore, they also have legislative jurisdiction over evidentiary rules applying to criminal law/procedure

  • But see. s. 40 of the Canada Evidence Act – expressly incorporates provincial evidence acts

  • The Charter: see ss. 11(d) (presumption of innocence), s. 11(c) (right not to be compelled as a witness against oneself, s. 13 (right against self-incrimination), s. 7, s. 24



Burden of Proof (Presumption of Innocence)


  • The Crown bears the burden of proof for criminal offenses. Accused persons are, that is, presumed innocent until they are proven guilty (CC s 6(1)(a); Charter 11(d)).



Quantum of Proof


  • The burden of proof for criminal offences is “beyond a reasonable doubt.”

  • This phrase has a special meaning in the criminal law context (Lifchus).

  • A reasonable doubt is not an imaginary or frivolous doubt. (Lifchus)

  • A RD is based on evidence, reason, and common sense rather than sympathy or prejudice. (Lifchus)

  • A jury need not be able to articulate its doubts in order for these doubts to be reasonable. (Lifchus)

  • “Beyond a reasonable doubt” requires more than the balance of probabilities, but less than absolute certainty, though it lies closer to absolute certainty than the balance of probabilities (R v Starr).

  • “beyond a reasonable doubt” refers to the guilt of the accused – each element of the offence, that is, must be proven beyond a reasonable doubt. The phrase does not refer to individual pieces of evidence. These need not be proven beyond a reasonable doubt. Rather, the jury is to evaluate all admissible evidence as a whole, taking into account its strengths and weaknesses, in determining whether the Crown has proven each element of the offence beyond a reasonable doubt. (Morin)



Presumptions, reverse onus (text 825-27)


  • Presumption = legal device enabling, or requiring, a trier of fact to reach a conclusion about a particular fact where there is no evidence about that fact, or where a legal rule states that the fact may, or must, be inferred from other facts.

  • Two types:

  • Presumption without a basic fact: A certain conclusion (presumed fact) must be drawn until the contrary is proved.

  • E.g., the presumption of innocence.

  • Presumption with a basic fact: A certain conclusion (presumed fact) may (permissive) or must (mandatory) be drawn if some other fact (the basic fact) is proved or admitted.

  • E.g., the presumption that a person intends the natural consequence of his/her actions. The basic fact is the conduct of the person, the presumed fact is the intention to cause the result of that conduct.

  • This is a permissive, not a mandatory presumption.

  • Either rebuttable or irrebuttable.

  • When rebuttable, may be rebutted in three ways:

  • Accused may be required to raise a reasonable doubt as to its existence

  • Accused may be required to adduce sufficient evidence to bring into question the truth of the presumed fact. I don’t understand this one.

  • Accused may have a legal or persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact.

  • E.g., the presumption of innocence, though standard is beyond a reasonable doubt, not balance of probabilities.

  • E.g., the presumption that a person intends the natural consequences of his/her actions is rebuttable – the accused can lead or point to evidence of mistake, incapacity, intoxication, or any other factor that might have negated his intent.


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