What is the test for case-by-case privilege?
1. Originated in confidence
2. Confidence is essential to the relationship
3. Community believes the relationship should be fostered
4. The injury to the relation by disclosure > the benefit gained by correct disposal of litigation
What is the test and case for litigation privilege?
(Blank) Is the dominant purpose of the document for litigation?
What is the test and case(s) for admitting privileged documents when innocence is at stake?
(McClure, Brown)
Threshold (at stake): ∆ must establish:
a) the information is not available from any other source
b) he is otherwise unable to raise a reasonable doubt
If met, then innocence test
- ∆ must have evidence that the communications could raise a reasonable doubt as to guilt
- TJ should examine this evidence to determine if it, in fact, will raise a reasonable doubt
What is the test and case for the public safety exception to solicitor-client privilege?
(Smith v Jones) Public safety will outweigh SCP if a reasonable observer sees:
1. Clarity of risk and target
2. Seriousness (bodily harm or death)
3. Imminence
What is the test and case for solicitor-client privilege?
(Solosky) The communication must:
1. Be between a solicitor (or her agent) and client
2. Entail the seeking of legal advice
3. Be intended to be confidential
What is the test and case for determining if evidence was derived from a s 7 (right to silence) violation?
(S(RJ)) Whether, practically speaking, the Crown would have discovered the evidence but for a witness's testimony.
What is the test and cases for exclusion of evidence under s 24(2) of the Charter?
(Grant)
1. Was the evidence obtained in a manner that violated ∆'s charter right?
Consider temporal, causal, and contextual connection (Witter)
2. Would admitting the evidence bring the long-term administration of justice into disrepute?
a) how serious was the Charter-infringing state conduct?
b) what was the impact of the breach on the Charter-protected interests of ∆?
c) what is societies interest in adjudication on the merits?
What is the case and test for admitting confessions from undercover stings (Mr. Big operations)?
(Hart) Confessions are presumptively inadmissible.
1. Overcome when the Crown can establish PV>PE on a balance of probabilities
PV: reliability (nature of the operation, inducements, ∆'s personality, confession itself
PE: bad character evidence, moral and reasoning prejudice
2. Abuse of process for police misconduct
consider violence, threats of violence, preying on ∆'s vulnerabilities
What is the case and test for determining if evidence derived from an involuntary confession is also involuntary?
(SGT)
1. The same tainting features are present
2. The first statement is a "substantial factor" in making the second
(the second need not be given to a person in authority)
What is the test and cases for whether evidence from a prior testimony can be excluded under s 13?
(Henry, Nedelcu)
If the statement was compelled at trial 1 and incriminating, it cannot be used in trial 2.
What is the principle and case for a confession confirmed by subsequent fact?
(Rex v St Lawrence)
Where the discovery of the fact confirms the confession, then only that part of the confession is admissible.
What is the test and cases for the common law confessions rule?
1. Was the statement made to a person in authority (∆ burden)
Who ∆ reasonably believes can influence prosecution (Hodgson)
2. Was the statement voluntary (Crown burden BRD)
a) Inducements
fear of prejudice or hope of advantage; quid pro quo offers
b) Operating Mind
low bar - cognitive deficiencies (Whittle)
c) Oppression
deprivation of food, water; aggressive questioning - police tricks such as non-existant evidence
What is the new test and case for similar fact evidence?
(Handy) Crown must satisfy on BoP that the PV of the SFE in relation to a particular issue outweighs the PE
1. Issue in question: beyond just general disposition (i.e. identity, animus, intention, actus reus)
2. Requisite degree of similarity identity - extremely high; animus - low
3. Cogency of SFE
a) Connective factors (PV): proximity in time, similarity, number of occurrences, distinctive featurs, circumstances, intervening events
b) countervailing factors
moral PE: inflammatory nature of the acts
reasoning PE: existence of less prejudicial evidence, time consumption
4. Possibility of collusion (on a BoP)
What is the test and case of whether ∆ put his character in issue?
(McNamara No 1) Whether ∆, through the evidence, suggested he is not the king of person likely to commit the offence by
1. adducing evidence of good reputation
2. Testifying as to his own good character
3. Calling expert evidence of propensity or disposition
When can the crown introduce character evidence against ∆?
1. If it can satisfy the similar fact evidence test
2. To rebut assertion of good character (CX good character witness, adduce evidence of prior convictions under s 666, or perhaps prior bad acts)
What is the test and case to ask about a witness's veracity?
(Clarke) subject to PV, PE
1. Do you know the reputation of this witness in the community for ceravity?
2. Is it good or bad?
Third question not usually asked (PE>PV)
3. From that reputation, would you believe this witness under oath?
What are the two formulations of the collateral facts rule?
Broader (Phipson) rule: You may only present evidence on material issues or on matters of bias.
Broader (Wigmore) rule: You may present evidence on anything affecting testimonial factors that is sufficiently important.
What is the test and case for adducing prior consistent statements of the accused?
(Edgar) For out-of-court statements can be adduced for proof of consistency provided:
1. The accused takes the stand and undergoes CX
2. The statement was spontaneous and made on arrest or accusion.
What is the test for admitting expert opinion?
Stage 1: Preconditions
1. Logical Relevance
2. Proper Subject Matter (Nature/Scope)
3. Necessity (More than merely helpful, if jury instruction wouldn't suffice (DD) because there are technicalities(KA))
4. Qualification (Study or experience (Mohan))
5. Other exclusionary rule (Hearsay goes to weight, no evidence of only credibility)
Stage 2: Balancing
a) Probative value = reliability: Methodology (Daubert Factors), Expertise, Impartial and Objective
b) Prejudicial effect: consumption of time, resources, prejudice the jury
What are the Daubert factors and what are they used for?
Expert evidence, testing its reliability:
Falsifiability
Publication
Peer Review
Potential Error Rate
General Acceptance
What is lay opinion evidence permissible for?
Identification of handwriting, persons, things
Apparent age
Bodily plight of a person (illness, intoxication)
Emotional state of a person
Condition of things (worn, shabby, etc)
Certain questions of value
Estimates of speed and distance
What is the test for the principled approach to hearsay and what are the cases?
1. Is it reasonably necessary (Khan)
2. is there threshold reliability?
a) procedural reliability (KGB/Hawkins) (Oath, presence, CX); Would the material aspect change under CX? (Bradshaw)
b) Substantive reliability (Khan/Smith) (Circumstantial guarantees of trustworthiness - consider alternative explanations and corroborative evidence for the specific hearsay worry (Bradshaw))
What is the test and case for statements of intention exception to hearsay?
(P(R))
1. Are the statements relevant?
a) Do the statements permit one to draw a reasonable conclusion about the declarant's state of mind? (Consider plan, time)
b) If yes, is her state of mind directly or indirectly relevant to a fact in issue?
2. Should the statements be excluded because PE>PV? (PE is the danger the jury will use the statements for other purposes - like ∆'s disposition)
What is the canadian approach for statements against penal interest (and how does it differ for pecuniary)?
1. Declarant must be aware of vulnerability to penal consequences
2. Penal consequences can't be too remote
3. Statement as a whole must be against declarant's interest
4. Declarant must be unavailable to testify
5. What is the reliability of the statement (relation to accused, other evidence of guilt)
For pecuniary, declarant doesn't need to be aware the statement may be used again her.
What is the test and case for the res gestae exception to hearsay?
(Ratten) Whether the statement's spontaneity was such that concoction or distortion can be excluded. Does not need to be exactly contemporaneous (Clark)
What is required to communicate the evidence if capacity is in question? - Case
(Marquard) the basic ability to perceive, recall, and recount.
What are the 4 testimonial factors?
Language
Sincerity
Memory
Perception
What does a Corbett application entail?
Corbett application is for admitting prior convictions of an accused to impeach credibility. It determines what parts of ∆'s record may be subject to CX.
a) type of conviction: deceit, fraud, cheating, stealing have high PV. Offences similar to the current one have high PE.
b) Remoteness: high PE for old convictions
Fair treatment of witnesses on both sides.