An Introduction to Basic Evidence - Andreas Solomos, Toronto Family Lawyer, Children's Aid cases

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An Introduction to Basic Evidence


An Introduction to Basic Evidence
By:  Andreas Solomos, BBM; J.D.

1. What is evidence?
Evidence as used in courts has several meanings and has been defined in many esoteric ways. In simple terms, it means some relevant fact which establishes the truth or is submitted as proof of the very fact that something happened or did not happen.
In practical terms evidence is that which may be placed before the court in order that it may assist it to render a decision on a specific issue before it.
There are several forms of evidence:
i) Testimony Evidence;
ii) Documentary Evidence;
iii) Real Evidence; and
iv) Scientific Evidence.

Testimony is usually oral evidence of witnesses given under oath. Various rules of evidence deal specifically with oral evidence in specific situations, such as where a witness is allowed to testify behind a screen. As a general rule, nothing can be admitted as evidence before the court unless it vouched for viva voce (a Latin term meaning orally) by a witness. Even real evidence (which is described below) which exists independently of any statement by any witness, cannot be considered by the court in common law jurisdictions unless a witness identifies it and establishes its connection to the events under consideration.
Documentary Evidence is another form of evidence that became the subject of a considerable debate. A document may be introduced into evidence either as a piece of real evidence or as a proof of the truth of its contents. In the latter case it may constitute hearsay, and for this reason would not be normally admissible unless proven by a witness. Generally before a document can be admitted into evidence (a) it must be authenticated by the person who wishes to rely on it via the testimony of a witness and (b) for the document to be admitted as evidence of the truth of its contents, it must be shown to fall within one of the exceptions to the hearsay rule (see below about exceptions to hearsay rule).
Real Evidence refers to evidence adduced via tangible items. For example, narcotics and weapons were admitted as real or tangible evidence even though they have been obtained as a result of an unreasonable search.
Scientific Evidence is usually regarded as expert opinion evidence but in reality it should be regarded as distinct from the opinion itself. A number of factors would be helpful to the court in evaluating the soundness of ‘scientific’ evidence:
(i) Whether the theory or the technique can be and has been tested;
(ii) Whether the theory or the technique has been subjected to peer review and publication;
(iii) The known or potential rate of error or the existence of standards; and
(iv) Whether the theory or technique used has been generally accepted.

The bottom line is that all forms of evidence must be sufficiently reliable in order to persuade the court to accept it and use it to assist it in reaching a decision.

2. When evidentiary proof may not be required
Some evidence may be accepted by the court without the need to be scrutinized. Such evidence falls within the following categories:
(i) Admissions;
(ii) Legislative Facts;
(iii) Judicial Notice; and
(iv) Presumptions.

With respect to civil (in contrast to criminal) proceedings a formal admission represents a concession made by a party litigant. A formal admission will be accepted by the court if
 it is filed at the trial as agreed statement of fact;
 it is made as a statement in the pleadings;
 it is made by way of oral statement made to the judge by the party litigant or his lawyer with the intention that it be relied upon by the judge;
 it is set out in a letter or email written by a party litigant or his/her lawyer (if represented) prior to the trial;
 the party litigant replies to a request to admit facts admitting certain facts; and
 a party litigant fails to reply to a request to admit facts.

With respect to criminal cases, admissions may be made by an accused person, such as an admission by way of a guilty plea, when the accused admits the facts read on the record as being substantially correct.

Legislative Facts
Legislative facts are distinguished from adjudicative facts. The latter are those that concern things like who did what, where, when, how and with what motive or intent. Such facts must be proven by admissible evidence. On the other hand, legislative facts are those that establish the background and purpose of the legislation, including its economic, social and cultural context. Such facts are subject to less stringent admissibility requirements when a court is confronted with a question of law or policy on which it needs facts to guide its judgement. The judicial custom has been that the court may go anywhere for its facts and the usual resort for ascertainment of legislative facts is not through a formal proof by sworn witnesses and authenticated evidence but by the process of judicial notice.

Judicial Notice
The concept of judicial notice grew from the need to promote efficiency in the litigation process. There are three requirements to be met for the court to apply judicial notice.
(a) The subject matter must be one of common and general knowledge;
(b) The subject matter must be well established,  authoritatively settled and practically indisputable; and
(c) This common, general, and certain knowledge exist in the particular jurisdiction.

For example, the court is entitled to take judicial notice of facts of history whether past or contemporaneous and is entitled to rely on its own historical knowledge and research and to take judicial notice of broad social and economic facts.

There is certain evidence that raises a degree of probability in its favour to such a degree that it must prevail unless rebutted or the contrary is proven; for example, in cases regarding possession of stolen goods, courts in certain jurisdictions presume in fact that the person is the thief unless a reasonable explanation is offered or even though reasonably explained, the explanation is disbelieved. However, in criminal cases the main burden of proof (that of establishing guilt beyond a reasonable doubt) rests upon the prosecution.
The law of presumptions tends to be esoteric and beyond the scope of this publication.

3. How do courts measure the evidence?
Courts are not obliged to accept every piece of evidence. For evidence to be admissible, it must have some relevance to the issues the court must adjudicate upon. A fact may not be relevant if it does not have real probative value with respect to the very issue the court must decide.
Thus, evidence that is insignificant and remotely connected to the facts and issues may be given little or no weight by the court; similarly, evidence that is likely to be misused or overestimated by the jury may be excluded.
Generally, relevant evidence is evidence which, either by itself or in conjunction with other evidence tends to show the existence or non-existence of a fact in issue. Some courts, however, have pronounced that there is no minimum probative value required for evidence to be relevant.
Relevant evidence is often distinguished from material evidence. The latter is evidence of such significance as to be likely to influence the outcome of the trial. Thus, hypothetical allegations without a connection to the case and without a proven factual foundation will most likely be rejected.
Even if evidence is admitted, a court may give it little or no weight. For example, in many cases where an expert testifies the value of his/ her opinion will depend on the validity of the assumptions that formed that opinion. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist; therefore, the more the expert relies on facts not in evidence, the more the weight given to his/ her opinion will diminish.
If there is a trial by jury, normally judges refrain from evaluating the quality, weight or reliability of evidence when determining admissibility since the jury will decide the weight to be given to such evidence.

4. Hearsay
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of that is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it is made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made: Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965 (Malaysia P.C.) at 970.

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. However the Supreme Court of Canada in R. v. Khan [1990] 2 S.C.R. 531 held that this rule “has frequently proved unduly inflexible in dealing with new situations and new needs of the law.” In R. v. Khan, a 4-year old girl had told her mother details of a sexual assault by the accused physician. At trial the accused was acquitted after the judge held that the girl was incompetent to testify and that her mother’s statements about what the girl had told her were inadmissible as hearsay. The Supreme Court of Canada held that the mother’s evidence of what the girl had told her mother was admissible on two criteria: Reliability and Necessity. A statement may be said to be “reliable” when a circumstantial guarantee of trustworthiness is established.  The other criterion of “necessity” refers to the necessity of the hearsay evidence to prove the fact in issue. In Khan, the infant complainant was found by the trial judge not to be competent to testify herself. Hearsay evidence of her statement to her mother was necessary in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation.

The hearsay rule is subject to several exceptions. In Canada, these exceptions are:
i) Admissions of a Party;
ii) Business Records;
iii) Declarations Against Interest;
iv) Dying Declarations;
v) Prior Identification;
vi) Prior Testimony;
vii) Public Documents;
viii) Res Gestae (spontaneous utterances);
ix) State of Mind (with respect to statements of intent to support an inference that the deceased declarant followed through on an intended course of action)

Hearsay is a subject that quite often causes confusion even amongst lawyers. Even if a piece of evidence is hearsay, it may be admitted under one of the above-noted traditional exceptions or on the grounds of reliability and necessity.

©2020. Andreas Solomos, Barrister & Solicitor. All rights reserved.  

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