Chapter 1: Evidence + Litigation process

What is evidence law?

law requiring good, reliable information and evidence be brought before a decision-maker so that they can make good, reliable decisions

What is the Goudge Inquiry?

The disgrace of Charles Smith

Who is the doctor that was the subject of the Goudge Inquiry and what was his title?

Charles Smith

Director of Pediatric forensic pathology at Sick Kids

How many cases was the doctor in the Goudge inquiry involved in and how many were found to be problematic?

45 total

Problems with 20

13 of the 20 involved convictions and 7 of the 13 have since been overturned

Brenda Waudby was accused of the death of her 21-month-old daughter Jenna. What types of evidence are discussed in the video relating to Jenna’s death?

False testimony, testimony of the babysitter, coroner report, autopsy report, reid technique used by police

What does the “presumption of innocence” in criminal trials mean?

accused is viewed as innocent up until the point where the judge makes their decision that they’re guilty beyond a reasonable doubt

In the Goudge inquiry, what is the “think dirty” memorandum?

Memo that told police that they should start from thinking people are guilty until they’re satisfied the person is proven innocent, which goes against the presumption of innocence

John Chipman divided the 20 cases where there were problems with Dr. Charles Smith’s work into three categories. What were they?

1. wrongful accusations

2. wrongful convictions - traditional sense

3. wrongful convictions - wrongful pleas

Wrongful accusations

the system worked; people went to trial, were acquitted or charges weren’t laid, and their were huge ramifications for the family and people involved

Wrongful convictions — traditional sense

someone saying they didn’t do it and are convicted and serve time anyway

Wrongful convictions — wrongful pleas

someone (i.e., parent) facing murder charges and in the end they plead guilty to a lesser charge because they have other dependents to look out for (pleading out being they look at the liklihood of being convicted)

As per the video with Justice Stephen Goudge, what does he identify as the value of public inquiries?

transparency

T/F: unreliable evidence can be used when accused weigh their options of whether they’ll succeed at trial, which is why it is super important that this evidence is truthful

true

What is the role of evidence?

to assist the trier of fact in determining the truth in a fair moment

How is the civil litigation process commenced?

filing a writ of statement of claim

How is the criminal litigation process commenced?

issuing an information

What are some key differences between civil and criminal law?

W NPCS

• What is being decided

• Nature of the wrong

• Parties involved

• Consequences

• Standard of proof

What are the parties to a criminal proceeding called?

Prosecutor

Accused

What are the parties to a civil proceeding called?

Plaintiff

Defendant

What is the standard of proof in a civil proceeding?

balance of probabilities

What is the standard of proof in a criminal proceeding?

beyond a reasonable doubt

What is being decided in a civil proceeding?

liability

What is being decided in a criminal proceeding?

guilt

Why is the criminal standard of proof higher than the civil?

because we’re dealing with someone’s liberty

Civil: who presents evidence first?

plaintiff

Criminal: who presents evidence first?

crown/prosecutor

Discovery

pre-trial process for civil that includes the sharing of evidence before the trial begins

Disclosure

pre-trial process for criminal that includes the sharing of evidence before the trial begins

Civil: who is the burden on to prove the standard of proof?

burden on the plaintiff

Criminal: who is the burden on to prove the standard of proof?

burden on the crown

What are the two main components of discovery?

1. discovery of documents/documentary discovery

2. examination of discovery

What is discovery of documents/documentary discovery?

documents being shared that are related to a specific criminal action (and determine whether they should be provided to the other side)

What is examination of discovery?

questioning under oath in advance of trial (i.e., voir dire)

Why do we have discovery prior to the trial?

preparation — allow the parties to know the case against them and assess both sides’ evidence to decide if it’s worth it to take it to trial/settle

Motion for Directed verdict of acquittal

the accused believes the prosecutor hasn’t met all the elements of their case

Motion for non-suit

the defendant believes the plaintiff hasn’t met all the elements of their case

Why is disclosure described as “asymmetrical in operation?”

it happens in one direction (crown —> accused (inbalance in power)

Why do we have disclosure prior to the trial?

the accused gets to make a meaningful choice on whether they want to settle, plead to a lesser and included offence, or if it’s worth it to take to trial

Adversarial system

judicial process inwhich parties present evidence before an impartial decision maker, who then makes a deicision in the case

By nature of an adversarial system, it is implied that only one party can be the __

winner

Inquisitorial system

the fact-finder investigates

The judicial process is ___ in Canada

adversarial

Adversarial system tempers “the quest for truth” with other values, meaning

it limits the power to the state to prosecute individuals by focusing on fairness and impartiality

How does evidence fit into the adversarial system?

It is a vehicle for transmission of information to the decision makers, and, as with any vehicle, we must ensure that it provides a safe and eligible conveyance (ensures reliable evidence put before decision maker because they can’t make good decisions with unhelpful information)

Judges must be, and appear to be

impartial

What is the case of Justice Bernd Zabel?

Justice suspended for wearing MAGA hat to court the day after Trump won 2016 election

What is the principle from the case of Justice Bernd Zabel?

Reasonable apprehension of bias: there doesn’t have to be actual bias

Article: Ford wants like-minded judges — what concerns does this raise in relation to public perception of judicial independence?

undermines the impartiality of the entire judicial system

What are the two decisions that must be made in a trial?

1. facts (what are they)

2. the law that applies (to the facts)

Who is/are the decision makers in an adversarial system (usually)?

judge

jury

Who is the trier of fact when there is no jury?

the judge

Who is the trier of fact when there is a jury?

the jury

Who is the trier of law when there is no jury

the judge — it is always the judge

Who is the trier of law when there is a jury?

the judge — the jury is never allowed to be this

Trier of fact

person in a trial who weighs the admissible evidence, assesses the credibility and reliability of witnesses and evidence, and renders a verdict; in a jury trial, the jury

Trier of law

person in a trial who controls the trial process, determines the admissibility of individual pieces of proposed evidence, and instructs the trier of fact on the applicable law; in a jury trial, the judge

Disabuse oneself of the evidence

forget the evidence

if a judge is alone and evidence must be excluded, the trier of law (judge) must __

disabuse themselves of the evidence

Voir Dire

examination that is designed to determine the admissibility of a proposed piece of evidence in the absence of the trier of fact

“to speak the truth”

A voir dire is used to

keep information from being wrongly considered by a jury

Charge to the jury

judges instructions to the jury, before the jury deliberations begin, regarding the applicable law, standard of proof, and available defences

What does a charge to the jury include?

SIR PARE

• *Standard of proof

• *Instructions on applicable law

• Review of evidence relating to law

• Possible verdicts

• *Available defences

• Requirements of unanimity

• Explanation of each side’s theories

Why is a charge to the jury often the subject of appeals?

its not properly communicated

Informed jury

jury either had knowledge of the parties and the facts beyond what they heard in court, or were charged with conducting an investigation of the facts on their own

What happens if theres a failure to reach a unanimous decision?

hung jury and the accused may be tried again by a new jury

Evidence law is about what ___ must go before a ___

facts

decision maker