Comprehensive Notes: Evidence Rules, Voir Dire, and Trial Process (Canada) l

Overview of the Rules of Evidence (Canada)

• All evidence in court is governed by the rules of evidence, found in the Canada Evidence Act. These rules are complex, developed through precedent and statutes, and crucial for criminal practice. Do not expect to memorize all details before your first day, but familiarize yourself with the Act and key concepts.
• Evidence rules can feel overwhelming; voir dire is a central tool for addressing admissibility challenges.
• Voir dire defined: a trial within the main trial where admissibility of evidence is argued privately to the judge (jury and observers are typically excluded). The Crown and defense each argue whether the evidence should be admitted. The jury does not hear these arguments.
• Purpose of voir dire: prevent the jury from being influenced by evidence that is ultimately inadmissible.
• Common context: voir dire is most often used for challenges to admissibility of evidence, but it can occur in civil cases as well; some voir dire can be lengthy (days to weeks) depending on complexity.
• Anecdotal context: long voir dire in murder-defense cases can involve complex discovery, including evidence gathered by private investigators, neighbor witness statements, and potential privacy/inadmissibility issues.
• A notable illustrative case involved a med‑school student, drug dealing, a murder, and a private investigator who prompted re-interviews with neighbors; this raised complex questions about what statements could be admitted and how the private investigator’s actions affected admissibility and evidence integrity.
• Self-incrimination and Section 13 (Charter): In Canada, the right against self-incrimination is protected by Section 13 of the Charter. This prevents witnesses from being compelled to provide evidence that could be used against them in future criminal proceedings. It does not grant blanket immunity from testifying, but it restricts how their prior statements can be used.
• Key consequences of Section 13:
  • A witness may refuse to answer questions that would incriminate them in a criminal proceeding.
  • Evidence given by a witness in one case cannot be used against them in a different criminal court, with one exception: perjury. Statements used to prove perjury can be admitted.
  • This protection interacts with real-world scenarios where witnesses might volunteer information that could later be used against them; careful handling is required to avoid self-incrimination pitfalls.
• Privileged communications: Certain communications are protected as confidential (privileged) and generally cannot be used as evidence unless a court orders disclosure. Common examples include:
  • Spouses cannot be compelled to testify against each other in criminal cases.
  • Lawyer–client communications are privileged.
  • Doctor–patient communications are privileged.
  • Clergy–penitent communications are privileged.
• Exceptions to privilege exist; disclosure orders are only granted in very specific circumstances, often easier to obtain in family court than in criminal matters.
• Similar fact evidence: Evidence showing the accused committed similar offenses in the past. It helps the Crown argue a pattern or propensity but can unfairly prejudice the jury. Courts exercise caution because weight given to this evidence can make or break a case. The guardian duty is to ensure the jury does not place undue emphasis on past behavior as proof of guilt in the current offense.
• Hearsay: A statement made outside of court by someone not testifying in court is generally inadmissible. There are exceptions, including reliability and necessity requirements. A typical hearsay example would be someone saying, “X told me Y did it,” without the declarant testifying themselves. If the declarant is unavailable (e.g., deceased), some exceptions may apply.
• Opinion evidence: Evidence about matters outside the judge or jury’s direct experience. Distinctions:
  • Expert opinion: Provided by someone with specialized training (e.g., blood-spatter analysts, medical examiners, engineers).
  • Lay opinion: Opinions based on common experience; limited scope compared to expert opinion.
• Character evidence: Evidence about the character of the accused. Rules differ between prosecution and defense:
  • Crown cannot rely on evidence of the defendant’s bad character to prove guilt.
  • Defense may introduce character evidence; once a defense presents good character, the Crown may respond with evidence of bad character to rebut.
  • In sexual assault cases, there are heightened limitations on using prior sexual history as propensity evidence (specific rules apply).
• Photographs and video evidence: Visual evidence must be scrutinized for accuracy and completeness. Photographs can be misleading and easily manipulated. Text messages are particularly susceptible to fabrication or messaging manipulation, including AI‑generated content. Courts consider reliability, authenticity, and context.
• Electronic devices and video evidence: Admissibility requires proper collection and privacy considerations. Key principles:
  • Evidence must be obtained by lawful means and with appropriate warrants or statutory authority.
  • Where video evidence is from a public space, there is generally no reasonable expectation of privacy; public surveillance does not require a warrant.
  • Private residences generally require a warrant to record video; privacy rights are weighed against public safety concerns.
  • Interception of electronic communications without a warrant may be allowed in emergencies where immediate action is needed to prevent a serious crime and one party is performing or at risk of the act.
• Polygraph evidence: In Canada, polygraph results are not admissible in court (policy since 1977). They may be used by police during investigations but not presented to the trier of fact.
• Confessions: Confessions can be inculpatory (admitting guilt) or exculpatory (denying guilt). The manner in which a confession was obtained matters: coercion, leniency promises, or excessive questioning can render a confession inadmissible. False confessions do occur and are a real concern.
• Legally obtained evidence: The Charter requires that evidence obtained illegally or in violation of Charter rights be excluded from use in court (the exclusionary doctrine).
• Trial structure: opening statements, examination‑in‑chief, cross‑examination, re‑examination, and then the defense's opening statements and evidence follow a set order in many criminal trials. After evidence, closing arguments occur from both sides.
• Charge to the jury: The judge delivers the charge to the jury, outlining applicable law and guiding the jury on how to apply it to the evidence. Proper instruction is critical; improper instructions are common grounds for appeals.
• Deliberations and verdict: The jury decides the facts (non‑legal questions) and applies the law as charged by the judge. The jury must decide with a standard of beyond a reasonable doubt. If a juror cannot reach unanimity, a hung jury results, and a new trial may be ordered.
• Reasonable doubt and verdicts: The jury must be convinced beyond a reasonable doubt of guilt. If reasonable doubt exists, the accused must be acquitted. A unanimous verdict is required in criminal trials in most jurisdictions; absence of unanimous agreement can lead to a hung jury.
• Foreperson and verdict presentation: The foreperson presents the verdict; jurors are instructed not to disclose deliberations. If the defendant is acquitted, the defendant is released; if guilty, sentencing occurs (not always immediately).
• Sentencing considerations: Sentencing can occur after a delay (e.g., weeks or months). The judge ultimately determines the sentence within statutory minimums and maximums, though judges have discretion within those bounds. The Crown may provide sentencing recommendations, but the judge has the final discretion.
• Appeals: Appeals commonly arise from errors in jury instruction, misapplication of law, or other trial process issues rather than the verdict alone.
• Practical reflections and classroom context from the instructor:
  • Independent work and presentation timelines were discussed, including additional PowerPoint review questions and module pacing.
  • Future modules include sentencing until release and the Youth Criminal Justice Act.
  • A sense of the long timelines for criminal proceedings and the importance of careful evidence handling was emphasized.

Voir Dire: Admissibility and Trial Within a Trial

• Voir dire purpose: decide admissibility without jurors present; protect jury from tainted evidence.
• Typical timing: Crown and defense argue admissibility; judge rules; jury is not present for this argument.
• Common reasons for voir dire: challenging admissibility due to legality of collection, privacy issues, relevance, or prejudice concerns.
• Variability: voir dire can be lengthy (sometimes days or longer) when evidence is highly complex or contested.
• Civil vs criminal: voir dire can occur in civil cases as well, but is most common in criminal trials for evidentiary issues.
• Example discussion: an investigator’s role in uncovering additional witness statements can trigger voir dire to determine whether those statements should be admitted.

Self-Incrimination and Section 13 of the Charter

• The Canadian Charter protection: Section 13 protects witnesses from self‑incrimination and restricts use of their statements against them in subsequent criminal proceedings.
• Practical effects:
  • A witness may decline to answer questions that would incriminate them in a future case.
  • But witness statements used to prove perjury are admissible in some circumstances.
  • Statements made in one court cannot be used against a witness in another criminal case unless it relates to perjury.
• Illustration/notes: an example described involved a witness who supplied marijuana and later offered testimony; the police thanked the witness for cooperating, highlighting how the legal framework can treat such statements differently depending on the context and purpose of the testimony.

Privileged Communications

• Definition: communications that are confidential and protected from disclosure in court.
• Common privileged relationships: spouse, lawyer–client, clergy–penitent, doctor–patient.
• Exceptions: privileged communications can sometimes be overridden by court orders in specific circumstances; typically easier to obtain in family court than criminal court.
• How privilege affects evidence: privileged communications are not ordinarily admissible as evidence unless a formal disclosure order is issued.

Types of Evidence and Admissibility

• Similar fact evidence
  • Definition: evidence showing a propensity or pattern by the accused (e.g., past similar acts).
  • Significance: can support or rebut claims about the current offense, but risks prejudicing the jury; requires careful weighting.
  • Guardian role: courts guard against improper reliance; the weight given to similar facts must be carefully controlled.
• Hearsay
  • Definition: a statement made outside of court by someone not testifying in court.
  • General rule: inadmissible.
  • Exceptions: may be admitted if the declarant is unavailable (e.g., dead) and the statement is reliable and necessary under the circumstances.
• Opinion evidence
  • Expert opinion: allowed when the witness has specialized knowledge that helps the fact‑finder understand the evidence.
  • Lay opinion: allowed if it is based on common experience and not overly technical.
• Character evidence
  • Purpose: to establish the character of the accused.
  • Crown limitations: cannot use past character to prove guilt; must rely on current facts.
  • Defense use: can introduce character evidence; once defense highlights good character, Crown can respond with bad character to negate the defense.
• Photographs and text messages
  • Photographs: potential for misrepresentation; must establish authenticity and completeness.
  • Text messages: highly susceptible to manipulation or fake content; require corroboration.
  • Digital content risk: AI manipulation and edits complicate authenticity. Courts require scrutiny of source and integrity.
• Electronic devices and video evidence
  • Legal collection: must follow criminal code procedures; privacy rights are weighed; warrants are typically required where reasonable expectations of privacy exist.
  • Public vs private: video in public places is generally admissible; private residence video requires a warrant.
  • Balancing test: courts balance privacy interests with societal safety.
• Polygraph evidence
  • Admissibility: polygraphs are not admissible in Canadian courts (since 1977).
• Confessions
  • Types: inculpatory (confessing guilt) and exculpatory (denying guilt).
  • Coercion risk: promises of leniency or coercive questioning can render confessions inadmissible.
  • False confessions: a known concern; courts scrutinize the circumstances under which confessions were obtained.
• Legally obtained evidence
  • Core principle: evidence obtained in violation of Charter rights is generally inadmissible.

Evidence Obtaining and Privacy Considerations

• Warrant requirements: video and electronic surveillance often require warrants, depending on location (private vs public) and privacy expectations.
• Emergency exceptions: intercepts without a warrant may be allowed if immediate action is needed to prevent serious harm, and one party is performing or the intended victim is involved.
• Public surveillance: video in public places does not violate privacy expectations; ownership and use of the footage may still be subject to other legal considerations.

Confessions and Coercion

• Inculpatory vs exculpatory confessions clarified above.
• Coercive interrogation risks: leniency promises, prolonged questioning, or pressure tactics can invalidate a confession for purposes of admissibility.
• The broader principle: reliability and voluntariness of statements are central to admissibility.

Trial Structure and Procedure

• Opening statements
  • Crown presents initial overview of case; the defense may follow with its opening.
• Crown evidence and defense evidence
  • Examination‑in‑chief: Crown calls witnesses and presents testimony.
  • Cross‑examination: Defense questions Crown witnesses to challenge their testimony.
  • Re‑examination: Crown may clarify points raised during cross‑examination.
  • Defense opening statements and defense evidence proceed in a symmetrical fashion.
• Closing statements
  • Crown closing statements followed by defense closing statements.
• Charge to the jury
  • The judge provides directives on the legal standards and how to apply the law to the evidence.
  • Clear and correct instruction is essential; errors can be grounds for appeal.
• Jury deliberations and verdict
  • The jury determines the facts and applies the law as charged.
  • Requirements for verdict: beyond a reasonable doubt; unanimous verdict in most criminal trials.
  • If reasonable doubt exists, the jury must acquit.
  • Jury may request clarifications from the judge during deliberations.
• Unanimity and hung juries
  • If the jury cannot reach unanimous verdict after deliberations, a hung jury occurs.
  • A hung jury typically leads to a mistrial and a new trial with a new jury; a hung jury verdict cannot be appealed as such.
  • Potential biases and preconceptions can impact juror flexibility; jurors are encouraged to remain open to changing positions as evidence is weighed.
• After verdict
  • Foreperson presents the verdict to the court.
  • Jurors are instructed to keep deliberations confidential.
  • If acquitted, the defendant is released; if found guilty, sentencing occurs.
• Sentencing (timing and discretion)
  • Sentencing may be delayed (e.g., weeks or months). Up to ninety days is sometimes cited as a maximum window for certain decisions, but the exact timing can vary by jurisdiction and case.
  • Sentencing standards: minimums and maximums in the Criminal Code bound judges, but substantial discretion remains within those bounds.
  • Sentencing recommendations from the Crown are not binding; the judge has final discretion.

Appeals and Post‑Trial Considerations

• Appeals commonly hinge on judicial errors in instructions to the jury, misapplication of the law, or significant procedural errors that affected fairness.
• The admissibility and impact of key pieces of evidence can be central to appellate arguments.

Practical and Educational Observations

• The instructor highlighted the volume of independent work and the need for planning when preparing presentations.
• Upcoming modules include sentencing until release and the Youth Criminal Justice Act.
• The overall emphasis is on careful, evidence‑driven analysis and an understanding of how procedural rules shape outcomes in criminal trials.