User:Patar knight/Canadian evidence law

Canadian evidence law refers to the law of evidence in the Canadian legal system. It encompasses the rules derived from statutes such as the Canada Evidence Act and its provincial equivalents, the common law, and the constitution that govern what information can be brought up in court, what inferences the trier of fact is allowed to draw from that information, and how facts are proven.

In jury trials, the admissibility of evidence is determined in a voir dire. Decisions made by judges about admissibility are frequent grounds of appeal in the Canadian legal system.

Sources and historical background
The four main sources of Canadian evidence law are the common law, statutes such as the Canada Evidence Act and its provincial equivalents, Indigenous law, and the Constitution of Canada.

Common law
The preponderance of evidence law in Canada is derived from the common law, and certain areas such as hearsay, burden and quantum of proof, and expert evidence are almost exclusively so. Recent decisions of the Supreme Court of Canada (SCC) have also been influential in modifying Canadian evidence law, beginning a trend of moving from a simpler, categorical approach to excluding evidence to a more complicated system focused on function and principle as well as eliminating outdated stereotypical assumptions.

Statutes
Unlike the United States, which consolidated all of its evidence rules into the comprehensive Federal Rules of Evidence which displaced the prior common law, no jurisdiction in Canada has such a rule set. While statutes like the Canada Evidence Act and its provincial equivalents exist, they refer and depend heavily on the common law. So although they sometimes modify or add new rules to the common law, they primarily act in a supplementary rule. The existence of different federal and provincial rules is derived from the separation of powers under Section 91 and Section 92 of the Constitution Act, 1867. Matters in the federal jurisdiction like criminal law use the federal rules while provincial matters such as contract law use provincial rules, except in cases where the case involves the federal government.

Indigenous law
As held in Calder v British Columbia (AG), the legal traditions of Indigenous peoples in Canada are presumed to exist unless explicitly extinguished, and in Delgamuukw v British Columbia, the SCC held that oral histories are a valid source of historical evidence in cases in involving Indigenous rights. Similarly, SCC cases like R v Marshall in 1999 and R v Van der Peet in 1996, recognized the special challenges faced by Indigenous claimants because of the oral nature of their community history, and recognized the that they had to be fairly balanced with other forms of evidence. However, the SCC in the 2001 case of Mitchell v MNR also held that evidence from Indigenous law was only valid inasmuch as it met the principles of common law evidentiary rules.

Charter of Rights and Freedoms
After the implementation of the Charter of Rights and Freedoms in 1982 as part of the Constitution Act, 1982, constitutional law has increasingly played a larger role in Canadian evidence law. Old common law rules that were found to be out of step with the Charter were voided and replaced by the SCC in cases such as R v Seaboyer; R v Gayme (1991), R v Swain (1991), R v Daviault (1994), and R v Stone (1999). The SCC also held in the 1995 case of Hill v Church of Scientology of Toronto that new common law rules developed by the court for actions between private parties with no governmental involvement had to be Charter compliant.

Notable sections of the Charter that are directly relevant to evidence law include the presumption of innocence until proven guilty in Section 11 and the right against self-incrimination in Section 13. Some cases have incorporated important evidentiary principles as principles of fundamental justice in Section 7, such as the SCC rulings in R v Seaboyer and R v Hebert. The Charter also enumerates certain protected rights of the accused during investigation such as protection against unreasonable search and seizure under Section 8, protection against arbitrary detention and imprisonment under Section 9, and the right to get counsel without delay under Section 10. The Charter also provides relief for evidence obtained in violation of the Charter, because Section 24 says that "the [improperly obtained] evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Fundamental rule of evidence
The fundamental rule of evidence law is that anything relevant to a fact at issue is admissible unless there's a legal issue to exclude it. In the 1983 SCC case Morris v R, Justice Lamer, dissenting, cited James Bradley Thayer's formulation of this fundamental rule as "(1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it" to be representative the state of the law in Canada.

Relevance
Relevance is determined via a two step test. The first step, "factual relevance" or often just referred to as "relevance" requires the evidence to either make a fact at issue in the case more likely to be true, or less likely to be true. The second step, "legal relevance" or "materiality" demands that the issue made more or less likely to be true by the evidence is legally significant. For example, in criminal cases where the threshold for mens rea is an objective standard, facts relating to the defendant's subjective knowledge would be irrelevant unless relevant to another issue in the case. Justice Charron, in the 2001 Court of Appeal for Ontario case of R v Collins, said that "Relevance was established at law, if as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced. The evidence is material if it is directed at a matter in issue in the case."

Reasons to exclude
However, not everything that is materially relevant to an issue should be admissible. Some evidence can negatively impact the ability of the trier of fact to reach the correct outcome. For example. hearsay, while often relevant is very unreliable if the evidence cannot be cross examined in court. Similarly while the character of the defendant is relevant, it is generally excluded because it causes the trier of fact to be more likely to convict solely because of the fact that the accused has poor character instead of based on the actual facts of the case.

Other evidence is excluded because while relevant, its inclusion would unnecessarily prolong and confuse the trial. For example, the collateral facts bar prevents cross-examining a witness about lies they made about matters not relevant to the matter at trial, because although witness credibility is relevant, allowing any potential lie to be the subject of cross-examination would slow down the trial process and essentially create a trial within a trial for each witness.

Evidence may also be disallowed on procedural grounds meant to guarantee fairness. For example, if a party withholds relevant evidence during the discovery process, then the evidence would be barred from inclusion in the subsequent trial unless it could be reintroduced without prejudice. Evidence obtained in violation of the Charter can be excluded by Section 24.2 inclusion "would bring the administration of justice into disrepute." Certain forms of privilege such as those given to the solicitor-client relationship are also protected from disclosure because their confidentiality is seen as essential to a fair justice system. Similarly, evidence found by a non-adversarial party such as the judge would not be admissible because the common law considers fact-finding to be best handled by the parties.

Generally in criminal law, any piece of relevant evidence can be excluded where its probative value is outweighed by its prejudicial effect and would result in unfairness to the accused because of its effect on the fact-finding process. This deals with certain types of evidence that may be probative in one respect but prejudicial in another such as a criminal record, which may be probative for credibility but prejudicial because it leads people to think an accused person is guilty simply because of their prior convictions. A judge can deal with the balancing of probative value and prejudicial effect by allowing the evidence in whole and charging the jury about how it should properly be used or excluding all or part of the evidence.

General test for admissibility of evidence
The general test for admissibility is as follows: In a jury trial, the judge may hold a voir dire, a trial within a trial in the absence of the jury to determine if a certain piece of evidence is admissible to be presented before the jury.
 * 1) Is the evidence both factually and legally relevant?
 * 2) Is the evidence barred because of a law or rule?
 * 3) Is the evidence more prejudicial than probative? Or if the evidence is tendered by the accused in a criminal crime, is it significantly more prejudicial than probative?

Weight
Just because evidence has been ruled to be admissible only means that the trier of fact will have to consider it during the trial to reach their conclusion. However, the trier of fact does not have to believe the evidence is true or that the inferences they have been asked to draw from that evidence by the parties are true. Once admitted by a judge, then the trier of fact can assign whatever importance they want to any piece of evidence, subject to any cautions given by the trial judge. The exception to this rule is when a statute states that proof of one fact is proof of another fact, such as section 139(3) of the Criminal Code, which states that if one is found to have attempted to persuade another to not testify at a trial with threats or bribes is deemed to have willfully attempted to obstruct justice.

Witnesses
Like other common law jurisdictions, all facts at issue in a trial in Canada can generally only be introduced through the oral evidence of witnesses and anything physical object or documentary that is presented as evidence in a trial must be identified by a witness before being admitted, though some statutory exceptions exist such as section 51 of the Controlled Drugs and Substances Act, which states that a certificate or report of the drugs in question if proof of the veracity of the claims in the analysis report, unless there is evidence which would refute that presumption.

Competence
All witnesses who appear in court must be competent to stand trial. With a few exceptions, every adult is a competent witness legally capable of testifying and can be compelled by subpoena to attend court and testify for a party. Previously in common law, the parties to a case, their spouses, and convicted felons were automatically deemed incompetent because of reliability issues, though this has been overturned by statute. The only exception being that the accused is still incompetent to testify for the prosecution in their own criminal trial, which is primarily justified by constitutional, not evidential reasons. In common law, children and anyone who did not understand the oath were not allowed to testify, but this was rectified by sections 16.1 and 16 of the Canada Evidence Act, which allowed oath substitutes.

Oaths, solemn affirmations, and oath substitutes
All witnesses who take the stand must formally declare that they will tell the truth by either swearing an oath, making a solemn affirmation, or meeting the statutory requirements for oath substitutes. Originally English case law from the mid 18th century allowed non-Christians to swear oaths as long as they believed in some supreme being that would punish any oathbreaking. Canadian statutes have since removed the requirement to allow atheists and other non-believers to testify via a solemn affirmation, though some provincial statutes still require a "conscientious objection" to the religious oath.

In the 1966 Manitoba Court of Appeal case R v Bannerman, Justice Dickson held that espousing a belief in Christian Hell or divine punishment for lying was not a condition for swearing in a witness, and that merely understanding that one is assuming a moral obligation to tell the truth is sufficient. This ruling was appealed to the Supreme Court, who declined to hear it. Subsequent case law such as the 1982 and 1990 cases of R v Fletcher and R v Leonard in the Court of Appeal for Ontario supported the outcome in Bannerman, holding that anyone who understood the solemnity of the oath and the added responsibility to tell the truth in court after having sworn the oath compared to ordinary interactions, could be a witness.

In the 1979 Ontario Court of Appeal case R v Walsh, the distinction between an oath and a solemn affirmation was further blurred. In that case, the trial judge had found that a satanist who felt no obligation to the community and who admitted that he might lie if he benefited from it was not a competent witness. This was despite the proposed witness also saying that he had a strong personal compulsion to tell the truth because he otherwise would not be able to live with himself and that he knew committing would be a crime and that he would suffer penal consequences. The court held that while solely depending on his personal views was insufficient to establish competency, the court could use his understanding of perjury and its consequences to establish that he understood the extra obligation of telling the truth in court as opposed to out of court.

The common law rule that children and those who did not understand the meaning of the oath were incompetent was superseded in Canadian law by Section 16 of the Canada Evidence Act, which set out rules for when testimony of children and people with a diminished mental capacity would be allowed in the absence of a formal oath.

Unsworn evidence
In the common law, anyone who incapable of understanding the meaning of an oath was incompetent to testify. This was overtaken by statute, as sections 16 and 16.1 of the Canada Evidence Act respectively allow the testimony of people with diminished mental capacities and children, provided they meet the requirements for an oath substitute.

The 1990 SCC case of R v Khan, the decision by Justice McLachlin clarified the law around unsworn evidence. At the trial level, the judge had did not allow the testimony of a four-year-old girl into evidence because she did not understand the importance of not lying in court and because despite her intelligence and understanding that telling a lie in general was bad, she was only four. This was overturned by the Ontario Court of Appeal, whose decision was endorsed by McLachlin in Khan. The SCC agreed with the ONCA that the trial judge should not have applied the Bannerman test for sworn testimony, which required an appreciation of why it was especially important to tell the truth in court, to the section 16 provisions for a child's testimony, which only requires intelligence and an understanding of a duty to tell the truth. The SCC also agreed with the ONCA that section 16 did not distinguish between children of different ages, so the trial judge's finding about her intelligence and awareness of the consequences of lying was sufficient to allow the testimony in despite the young age of the witness.

After Khan, the Canada Evidence Act was amended so that there only two criteria for admitting the testimony of those over the age of fourteen whose competency is challenged and who do not understand the nature of an oath or solemn affirmation. The revised section 16.3 only requires a person to be able to communicate the evidence and promise to tell the truth, with the burden of proof for determining if there is an issue being placed on the party challenging the witness's capacity.

The meaning of "communicate the evidence" was clarified by the Supreme Court in the 1993 case of R v Marquard. There, McLachlin writing for the majority, said that one's ability to communicate the evidence was subject to a test to ensure that the proposed witness was generally able to perceive events, remember events, and then communicate those events. The dissent in that case, written by Justice L'Heureux-Dube, argued that the majority's decision would be too harsh in disqualifying the testimony of children, and that only being able to communicate the events was required and questions about recollection and perception should go towards weight.

In 2006, the Canada Evidence Act was amended to add section 16.1 to specify the requirements from children's testimony separately form section 16, which became the rules for those whose mental capacity was challenged. So while both Khan and Marquard  dealt with child witnesses, the reasoning in those decisions was superseded by the terms of section 16.1, and now only apply to section 16. The new provisions presumed that anyone under fourteen had the capacity to testify, and that their testimony could be received if they could understand and respond to questions and would promise to tell the truth. The statute also barred any such witnesses from being questioned about their understanding of their promise to tell the truth during the inquiry into whether to allow the evidence or not.

The new section 16.1 was considered by the 2012 SCC case of R v DAI about the interplay between sections 16 and 16.1. In DAI, Chief Justice McLachlin, writing for the majority, held that the protection for children from questioning about if their understood a promise to tell the truth also applied to adults with diminished mental capacity under section 16. McLachlin argued that be

Examination of witnesses
Evidence in a trial is brought out through the oral testimony of witnesses when counsel calling the witnesses elicits responses in the examination in chief while the opposing counsel is permitted to cross examine them to try elicit helpful responses to to discredit the witness's testimony. The key difference between the two types of examination is that examinations in chief can only be conducted with open-ended questions, while cross examinations can and typically will use leading questions that suggest a particular answer. Cross examination of witnesses who are not the accused are very broad since they can be asked about both relevant facts and other matters that would hurt their credibility, as long as it's not prohibited in the interests by the collateral facts bar. On the other hand, there are multiple protections for when the accused is cross examined to protect them from being asked, among other things about their character, their exercise of their right to remain silent, and the motive behind their obviously exculpatory testimony.

The English common law rule established by the House of Lords in the 1893 case of Browne v Dunn was initially treated with hesitancy in Canadian law, but has largely been adopted. This so-called "duty to cross examine" rule holds that any party leading evidence contradictory to the testimony of the other party's witnesses must put that evidence to those witnesses to give them a chance to respond in the interest of fairness. In the 2000 Ontario Court of Appeal case of R v McNeill, Justice Moldaver presumed that the duty existed and suggested as solutions giving the party left unable to respond the chance to recall to take the stand again and when reall is impractical or ruled out by the judge, for a special jury charge to be read noting the fact that some of the testimony was only uncontradicted because the witness had not been given a chance to reply.

In R v Lyttle, a 2004 SCC case, the Supreme Court held that the courts below were wrong in forcing a defendant to lead evidence that would make a factual foundation for questions that they wished to ask in good faith on cross examination of the prosecution witnesses. In Lyttle, the defendant had asked questions in cross examination about why the police report speculated that the incident in question was related to drug debt and not a theft as the complainant had claimed, and about the complainant's history with drug convictions and dealing. However, because the defendant had been forced to call the officers who authored that report as witnesses, per section 651(d) of the Criminal Code, he had to forfeit the right to address the jury last.

Testimonial factors
The four relevant testimonial factors in whether to believe a witness's testimony are: Although "credibility" can apply to the combination of these factors plus non-testimonial factors such as character or criminal record, some commentators felt the need to distinguish credibility – if the witness is testifying honestly – and reliability – if their testimony is accurate – because a witness can be sincerely telling inaccurate information that they believe to be true or be generally uncredible in their testimony but telling the truth about a specific issue.
 * 1) Their use of language (e.g. What is the meaning that the witness is intending with their word choice?)
 * 2) Their sincerity. (e.g. Do they believe what they are saying?)
 * 3) Their memory (e.g. What factors such as time, vividness, intervening discussions about the events have affected their recalling of the events?)
 * 4) Their perception (e.g. What factors such as intoxication, technological aids, visibility, affected their ability to accurately perceive the events?)

Refreshing memory or using past recorded memory
A witness is entitled to refresh their memory before or during their testimony. In the 2002 SCC case of R v Fliss, Justice Binnie decided that a witness could refresh their memory through any means, even if the stimulus used was inadmissible evidence since ultimately it is the recollection and not the stimulus that is the evidence at trial. Past recollection recorded on the other hand is distinct from present memory refreshed, and allows witnesses who cannot clearly remember the events in question by using a document – typically made by that witness – which recorded their past recollection of the events.

The following conditions for allowing the allowing past recollection recorded are based on the work of John Henry Wigmore as adopted by the SCC in Fliss:
 * 1) The method of recording the past recollection must be reliable.
 * 2) The recollection has to be vivid enough to have likely still been accurate at the time of recording.
 * 3) The witness has to affirm that the record is an accurate representation of their recollection of the events at the time.
 * 4) If possible, the original copy of the record should be used.