EVIDENCE SYLLABUS ( )

Transcription

1 2017 Fall Term Professor Tanovich 1. DESCRIPTION EVIDENCE SYLLABUS ( ) The law of evidence is procedural in nature. It is aimed at control and regulation in an effort to fairly promote the search for truth. Those it controls through rules of admissibility and proof include the fact-finder, the lawyers and witnesses. The law of evidence consists of many rules and exceptions to the rules. As a result, the general guiding principles often get lost in a mass of cases and statutory provisions. In an effort to promote learning, the course is organized around the general principles and their application in various contexts. The goal of the course is to briefly summarize the leading principles in lectures and then to critically explore the principles in context through case studies, problems and other class exercises. The course is organized into four parts. The first part will examine the location of evidence law: adversarial adjudication, the purpose of evidence law and its theoretical foundations. The second part will introduce you to the structural elements of the law of evidence including: burdens of proof, relevance, inductive reasoning, exclusionary discretion, limiting instructions, and exclusionary rules (character, sexual history evidence, hearsay, confessions, opinion evidence and privilege). The third part will examine how evidence is led including formal admissions, judicial notice, real evidence and witnesses. The fourth part will explore the basic rules governing fact-finding including assessing direct and circumstantial evidence.

2 2. LEARNING OUTCOMES By the end of this course, a student should be able to: Identify the purpose of the law of evidence and how that purpose informs which evidence we admit and how we use it in the relevant system of adjudication; Identify the basic foundational elements of the common law approach to the law of evidence; Reason persuasively in the context of fact-finding; Effectively identify admissibility issues with respect to evidence; Effectively identify and critically assess the basic principles and rules governing the proof of matters and evaluation of evidence in adjudicative proceedings; Provide some theoretical and social context to the rules; and Apply the law to new facts Many of the cases we will read in class involve sexual violence or sexual assault offences, often by men against women. As part of the course, we will spend time thinking about how evidence law can better respond to, and enhance, the fair adjudication of sexual assault cases. It is normal for students to have strong and sometimes conflicting feelings or reactions on this particular topic. Respectful participation is a requirement of this course, agreement with others viewpoints is not. In light of this, the course discussions may be understandably difficult for any student for any variety of reasons. If you or someone you know find the readings or class discussions to be disruptive to your well-being, please consider making use of the available supports on and off-campus. This link provides more information about those resources: 3. USE OF COMPUTERS IN CLASS The use of computers in class for non-class purposes has become a serious issue in Universities both in terms of its impact on learning and as a distraction for both the Professor and fellow students. As a result, I have adopted the following policy for my class based on a similar protocol developed by my colleague Professor Kalajdzic: Before each class begins, please disconnect all audible signals on watches, computers, cell phones, or any other noisemaking device. If you are using a computer in class, you should be using it only for class work. 2

3 4. CLASSES Tues/Thurs pm - Moot Court (1100) 5. TEXTS (i) Required Delisle, Stuart, Tanovich & Dufraimont, Evidence: Principles and Problems (11 th edition) (Toronto: Thomson Carswell, 2015) (CB) Supplementary Readings (posted on Blackboard) Canada Evidence Act Ontario Evidence Act 6. RELEVANT POLICIES (i) Grading (ii) Plagiarism (ii) Human Rights (iii) University Sexual Assault Policy (iv) Religious Accommodation _1.pdf 3

4 Student evaluations of instructors will take place during the last two weeks of the term. 7. EVALUATION (i) Codification Proposing Rule of Evidence (40%) The Minister of Justice has decided to engage in a substantial reform of the Canada Evidence Act/Criminal Code and to codify the rules of evidence. This assignment requires you to identify a systemic issue we have talked about in this course that negatively impacts the accused, witnesses or complainants and to propose a rule to address it. You are not limited to criminal cases and can address a systemic issue in the context of civil/administrative tribunal cases. In that case, you would be working under the Attorney General of Ontario and proposing a provision/amendment to the Ontario Evidence Act or Statutory Powers Procedure Act. In thinking about this assignment, it would be helpful to review the arguments advanced in favour/against codifying rules of evidence (see CB 30-33). Details: (a) You can work in groups of up to five (5) students. (b) You should clearly identify: (i) the nature of the systemic issue and support for your assertion of the existence of the systemic issue (you can rely on academic articles, newspaper reports, dissenting judgments, government reports, other relevant social science evidence); (ii) how it manifests itself in a particular area of the law of evidence; (ii) how your proposed rule would address the systemic issue; (iv) whether your rule is over-ruling a common law precedent; (v) whether your rule is consistent with other rules of evidence; (vi) how you would respond to any resistance by the defence bar, Crowns or judges to the rule. (c) You are free to choose to present your new rule in whatever format you wish but I think it makes sense to think about what you are doing and how you would propose it if you were working with the Department of Justice (federally) or the Attorney General's office (provincially). For example, here is the proposed Bill C-51 dealing with amendments to sections 276 and 278 in sexual assault cases: For those who want to be particularly creative, I think you could think about identifying the resistance and responding to it in the form of a series of questions and answers as might occur either in the House of Commons/Legislature or in 4

5 Committee. (d) The maximum length including footnotes/endnotes is 15 single sided pages double-spaced with normal margins/12 point font. Your title page and table of contents do not count as part of the page limit. (e) You will be graded on the following factors: the extent to which you have addressed the contents of (b); the clarity and insightfulness of the writing and proposed rule; originality and feasibility. (f) Due Date: You are to a copy of the assignment to my assistant Barbara Pare (barbpare@uwindsor.ca) by 12:00 pm on Monday November 13, (g) Assignments handed in after the due date will be subject to a 10% per day deduction (a day defined as any time between 12:01 pm to 12:00 pm). Students seeking to hand in a late assignment without penalty need to apply to the Academic Status Committee on the basis of medical or compassionate grounds. (ii) Final Exam (60%) DATE: Wednesday, December 13, 2017 at 1:00 pm LENGTH: 2 hours FORMAT: It will be an open book multiple-choice (MC) format. MC questions are used by the Law Society for their licensing exams ( and by the NCA (National Committee for Accreditation) ( for their accreditation exams. To assist you in preparing and answering these types of questions, please consider the following instructions given to NCA students: Applicants must choose the best answer from five possible options provided. Each item has only one best answer, and applicants will receive credit only when they have selected the best answer. Any item for which the applicant indicates more than one answer on their answer sheet, the answer will be marked as incorrect. You should consider the following strategies to optimize your performance: Carefully read all instructions and the background facts for each set of questions. Read each item and all options carefully before selecting an answer. Be careful not to make assumptions that are not supported by the facts set out in an item. 5

6 Try to answer every item. There are no penalties for failure to choose an answer or for choosing an incorrect answer. If you do not know the answer to an item, mark that item and move on to the next one. Finish the items you are able to answer more easily before returning to the more difficult items. In some cases, a previous item will spark your memory about the answer to another item. Check your answers carefully to ensure that you have indicated the correct answer for all questions. Use any extra time to review the exam to ensure that you have answered all items. Two of the most popular techniques for answering multiple-choice items are the answer search method and the elimination method. The answer search method involves reading the stem of an item and trying to answer it without consulting the five options listed below it, then choosing the option that most closely matches your answer. The elimination method involves reading each option first and immediately eliminating the options you believe to be incorrect, then reading the stem of the item along with each of the remaining options and choosing the best one available. 8. OFFICE HOURS Tuesday (12:30-1:30 pm) (extended office hours will be posted prior to the final exam) Also available by appointment Office: Room 2123 (ext. 2966) - tanovich@uwindsor.ca ( ) (twitter) - (website) 6

7 9. OUR WORKING CASE HYPOTHETICAL The following is the working case hypothetical that we will use throughout the course to help understand the rules and how they apply. R v Samuel On November 25, 2015, an incident occurred in the early morning hours following a confrontation outside a restaurant. Jordan, a local White drug-dealer, was shot in the chest with a handgun. The bullet went through his chest and was not located. An unknown person called 911 at 1:33 a.m. On that call, the person is overheard saying someone has been shot. Mark, who is White, was present at the scene when the police responded. He told the first officer at the scene that a young Black male shot the victim and that he had fled the scene and got into a blue vehicle. The police found Samuel, who is Black and thirty years old, sitting in a blue car a few blocks from the crime scene. He was wearing a business suit and talking on his phone. The police asked him to accompany them down to the police station. He complied even though he knew he was not under arrest. occurred: While in the police car on the way to the station, the following conversation Q. Samuel. We know you shot the victim. Why? A. No way. I am innocent. I had nothing to do with the shooting. Q. We have your fingerprints on the gun. A. No way. I saw two White men fighting about a drug deal that went bad and then one of them shoot a gun. I was scared when I saw what happened and fled. 7

8 I was on the phone with my girlfriend telling her what happened. At the police station, Samuel refused to answer any further questions. One of the officers saw a tattoo of a handgun on his arm with the inscription my only access to power. He took a picture of Samuel s arm. He was eventually released. Mark has since disappeared and cannot be located. Before he left, Mark retained a lawyer and advised him that he was the one who shot Jordan. The police attempted to interview Jordan at the hospital. When Constable Daly arrived, Jordan appeared to be unconscious. He started to ask Jordan questions about the shooting. Jordan was not responsive. During the questioning, Daly thought he saw Jordan blinking his eyes. He asked Jordan to blink once if he could hear the questions. Jordan blinked once. He then asked Jordan to blink twice if he was aware that he had been shot. Jordan blinked twice. Daly then asked Jordan if he knew the person who shot him. Jordan did not respond. Constable Daly then showed him a picture of Samuel and asked him to blink twice if the person in the picture was the shooter. Jordan blinked twice. Based on his earlier response, Daly took this to mean yes. Shortly thereafter, Jordan entered into a coma. Two weeks later, Constable Daly read about Adrian Owen in an article Neuroscience: The mind reader. According to the article, Owen, a scientist, has created a technique using brain scans to determine whether the person is conscious and to communicate with them. In one study using the scientific method, Owen found that five of 54 patients in a coma were able to demonstrate consciousness and respond to whether 8

9 they were in pain as a result of his technique. According to the article: Owen s discovery, reported in 2010, caused a medical furor. Medical ethicist Joseph Fins and neurologist Nicholas Schiff, both at Weill Cornell Medical Centre in New York, called it a potential game changer for clinical practice. Many researchers disagree with Owen s contention that these individuals are conscious. But Owen takes a practical approach to applying the technology, hoping that it will identify patients who might respond to rehabilitation The article also indicated that Owen was now at the University of Western Ontario where he received a twenty (20) million dollar grant. Owen agreed to try his technique on Jordan. It was a success and Owen was prepared to testify that according to the imaging, Jordan provided answers that identified Samuel as the person who shot him. Jordan recovered from his coma but now has no memory of the shooting. Based on all of the evidence, Samuel was charged with attempted murder. As it turns out, Samuel s lawyer shares space with Mark s lawyer. A warrant was obtained for Samuel s home. In it, they found rap lyrics that included the following: I just unload then I re-load I take that 30-30, Right now it s that 12 gauge shotty Bullets in your chest and your throat I m tryna get you bodied I don t like being on the left It s my Heartless Man Woop! Woop! MOB Klick Heartless ya Ya ain t no way to save me, Drug Trafficker Gun black like Africa I m in a murder beef Face up casket shut So I shut a movie down for acting up Before trial, Samuel s lawyer hired a private investigator (PI). The PI wanted to interview Jordan but Samuel s lawyer told him that since he was the victim, he could not interview 9

10 him without permission from the Crown. The PI was able to gain access to Jordan s Facebook page and wall by pretending to be a drug buyer. On that page, the PI found pictures of Jordan and Mark smoking crack together and a conversation about the sale of drugs. The PI took screen shots of the pages using a program on his laptop computer. The police interviewed Jordan and he denied knowing Mark. The police were unable to access his Facebook page because it had been taken down. At the preliminary inquiry, the justice concluded that there was sufficient evidence to move the case to trial. QUESTIONS 1. What pieces of evidence may the Crown and defence rely on to advance their case? Are there any ethical issues raised? (September 5) 2. The Crown objects to the admissibility of the Facebook photos arguing that they are not relevant. How do you respond as defence counsel? (September 14) 3. What fairness issues are raised by the various pieces of evidence the Crown may try to rely on? (September 19) 4. The Crown seeks to rely on the rap lyrics found in Samuel s apartment. What arguments will they make? How should the defence respond? (September 19) 5. The defence theory is that it was Mark who shot Jordan and that he was covering up his involvement by wrongfully accusing Samuel. The defence wants to lead Mark s criminal record for drug trafficking and evidence from a witness that three years ago, Mark shot a drug dealer after a deal went bad. Will the trial judge permit the defence to lead this evidence? Does leading it put Samuel s character in issue? (September 26) 6. Are there any hearsay issues raised by the evidence the Crown seeks to tender? What arguments will the defence raise? How will the trial judge likely respond? (October 3) 7. Are there any VCR issues raised by the evidence the Crown seeks to tender? (October 10) 10

11 8. Are there any opinion evidence issues raised by the evidence the Crown seeks to tender? What arguments will the defence raise? How will the trial judge likely rule? (October 12) 9. Are there issues of authentication raised by any relevant pieces of evidence? How are they likely to be resolved? (October 26) 10. The defence intends to call Samuel to testify but is concerned about how his criminal record will be perceived by the jury and wants to know whether there is an legal remedy available. Samuel has a criminal record from 2009 for possession of marijuana and assault police. What arguments will you make as defence counsel? (November 16) 11. The defence wants to lead Samuel s statement to the police so that the jury is aware that Samuel has always maintained his innocence. How will the Crown respond? How will the trial judge likely rule? (November 21) In answering these questions, I am looking to see that: (a) you have correctly identified a relevant statutory, common law or constitutional rule to have the evidence admitted or excluded; (b) that you have correctly identified whether the rule is triggered in the circumstances; (c) that you have correctly identified the relevant cases; and (d) that you have provided a preliminary opinion on whether the evidence would be admissible based on your assessment of the jurisprudence, the facts (including whether any additional facts are required) and any relevant social context evidence. 11

12 10. CLASS AND READING SCHEDULE PART I - INTRODUCTION READINGS DATE 1. The Course Syllabus September 5 2. What is the Law of Evidence? Working Case 3. The Forum: Adversarial CB 1-2; September 7 Adjudication 4. Purpose CB 2-10; ; A Theory of Admissibility CB PART II STRUCTURAL READINGS DATE ELEMENTS OF THE LAW OF EVIDENCE 1. Burdens Allocation CB 43-53; 103 September 12 Measure of Evidential Burden (i) Criminal Cases (ii) Civil Cases Measure of Persuasive Burden (i) Criminal Cases (ii) Civil Cases (i) CB (ii) CB (i) CB (ii) CB Relevance CB September Inductive Reasoning CB 75-87; September Exclusionary Discretion (i) (i) CB ; September 21 Criminal Cases (ii) CB Common Law (ii) Criminal Cases - Charter (iii) Civil Cases (iii) CB Limiting Instructions CB R v White 2011 SCC 13 at paras September 26 12

13 6. Exclusionary Rules Character Evidence CB ; September 26 Nature & Purpose Good (i) CB Character (i) Criminal Cases (ii) Civil Cases (ii) CB ; Nature & Purpose Bad Character (i) True Character Purpose Similar Fact Evidence & Third Parties Nature & Purpose Bad Character (i) Limited Character Purpose Rebutting Good Character Evidence Tit for Tat (ii) Material Fact (iii) (i) CB 224; ; (ii) CB (i) CB ; (ii) CB (iii) CB Credibility Sexual History Evidence CB ; R v Boone 2016 ONCA 227 R v Barton 2017 ABCA 216 September 28 October 3 October 5 Hearsay CB October 10 Identification CB Principled Approach CB October 12 R v Bradshaw 2017 SCC 35 Voluntary Confessions Rule CB ; ; October 17 Opinion Evidence CB October 19 Lay Opinion Evidence CB R v B(H) 2016 ONCA 953 Expert Opinion Evidence CB ; ;

14 PART III MECHANICS OF READINGS DATE PROOF 1. Formal Admissions CB October Judicial Notice CB Real Evidence CB ; October Witnesses October 31 Competence CB ; ; Compellability CB Special Measures: Children s CB ; Evidence Direct Examination CB ; November 2/14 Cross-Examination CB Impeachment CB ; November 16 Bolstering Credibility/Rehabilitation CB R v Santhosh 2016 ONCA 731; R v Tash 2013 ONCA 380 November 21 PART IV FACT- FINDING 1. Direct Evidence Assessing Credibility (i) Demeanour Evidence (ii) Other Relevant Considerations (iii) Applying WD READINGS (i) CB ; R v Levert (2001) 159 CCC (3d) 71 (Ont CA); R v M(T) 2014 ONCA 854 (ii) See above under Character Evidence, Children s Evidence, Impeachment, Rehabilitation (iii) CB Identification Evidence CB Circumstantial R v Villaroman 2016 SCC 33 Evidence 3. Corroboration CB DATE November 28/30 14