Methods of Presenting Evidence

AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
Pages519-591
519
CHAPTER 9
METHODS OF
PRESENTING EVIDENCE
1. GENERAL
There are two ways in which evidence can be presented: as “oral evi-
dence” or as “real evidence.” “Oral evidence” is testimonial informa-
tion furnished by witnesses who communicate their observations or
opinions about the matters in issue directly to the trier of fact. “Real
evidence” consists of items or things that the trier of fact can view
directly. Exceptionally, additional data for factual decision-maki ng can
be considered by triers of fact through tightly controlled doctrines of
“judicial notice” that authorize tr iers of fact to consider information that
has not been presented as evidence in the case. This chapter describes
these three methods of presenting information oral evidence, real
evidence, and judicial notice. It also canvasses some of the rules of
admissibility that govern the presentation of each kind of information.
The discussion in this chapter of the rules of admissibility related to
real evidence and judicial notice is quite comprehensive. Not so in
the case of oral evidence. Oral evidence is by far the most common
method of placing information before the trier of fact, and the rules
of admissibility described throughout this volume tend to address the
admissibility of oral evidence. Moreover, although all forms of infor-
mation can raise issues of credibility and reliability, these issues are
far more likely to arise, and to be more intense, in the case of oral evi-
dence. The particular focus on credibi lity and reliability in this context
has engendered an intricate body of law relating to the admission and
THE LAW OF EVIDENCE520
use of secondarily material evidence about the credibility and reliabil-
ity of oral evidence. For practical and pedagogical reasons, we have
chosen to reserve discussion of a number of these rules for the next
two chapters: Chapter 10, “Evidence about Credibility and Reliability,”
and Chapter 11, “Secondary Materialit y and Your Own Wit ness.” In the
present chapter, we will proceed by exploring the calling of witnesses
to provide oral evidence, the competence and compellability of wit-
nesses, and the process of examining and cross-examining witnesses.
We will then fully consider the law of real evidence, including the con-
duct of views, as well as the doctrine of judicial notice. We will also
introduce special procedures for child witnesses.
2. THE CALLING OF WITNESSES
Our trial system is based on the calling of witnesses. Typically, wit-
nesses will provide their testimony in court, orally. However, provision
is made in civil cases for summary trial proceedings, applications, and
motions where the testimony of a witness may be given in whole or in
part by affidavit a document attested to by the witness containing
the witness’s evidence. Affidavit evidence is rarer in criminal cases,
although some preliminary motions and special forms of proof at trial
are supported by affidav its. Even where the ev idence of a witne ss is pro-
vided by affidavit in either civil or criminal cases, the opposing party
will generally have opport unity to cross-examine or quest ion the affiant.
In order to give testimony, the witness must be “competent” to do
so. Competency means that the w itness is legally qualified to testi fy. At
common law, many potentially valuable witnesses were not competent
to testify. The common law judges were concerned that some categor-
ies of witnesses were prone to giving inaccurate or perjured testimony.
Therefore, at common law, people were precluded from testifying on
grounds of interest, infamy (should the witness have a criminal his-
tory), infancy, insanity, disbelief in a Supreme Being, and marriage.
Even accused persons were once incompetent to testify at their own
trials because of their interest in the outcome. The common law rules
barring certain persons from testifying have largely been swept aside
by statute. For example, all of the provincial and territorial Evidence
Acts have a provision comparable to section 3 of the Canada Evidence
Act,1 which reads: “A person is not incompetent to give evidence by
reason of interest or crime.”
1 Canada Evide nce Act, RSC 1985, c C-5 [Cana da Evidence Act].
Methods of Pre senting Evidence521
Before offering testimony, a witness must swear an oath, or affirm
to tell the truth, or promise to tell the truth. There are legal tests that
must be passed before each of these three procedural options may be
used. These tests now double as the legal tests for competency. If wit-
nesses qualify to testify according to any one of those tests, then they
will be allowed to testify; their frailties are treated as a matter of cred-
ibility for the trier of fact to assess.
The general rule is that a court is entitled to the evidence of every
competent person.2 Therefore, almost all witnesses can be forced or
“compelled” to take the stand to testify.3 However, the common law and
some statutes continue to make some witnesses “non-compellable.”
Non-compellable witnesses may choose to testify but cannot be forced
to do so against their will. For example, at common law, judges are not
compellable witnesses if called to testify about the adjudication of mat-
ters before them,4 and there are many enactment s that make government
officers and admini strators non-compellable as witnesse s in proceedings
relating to the discharge of their duties. There are other non-compel-
lability provisions, such as the Criminal Code, section 276.2(2),5 which
makes sexual offence complainants non-compellable during a voir dire
into the admissibility of their sexual history. Still, non-compellability
rules are not encountered frequently in practice, with one exception:
accused persons cannot be forced to testify at their trials because of the
privilege against self-incrimination, now entrenched in section 11(c) of
the Charter.6
Persons who are compellable can be directed to testify by judicial
order or by service of a subpoena. A subpoena ad testificandum requires
that the person attend to give ev idence. A subpoena duces tecum requires
not only that the person attend to give evidence, but also that the
2 R v National Post, [2010] 1 SCR 477 at para 1.
3 Unfortunately, the relev ant terms are not used consi stently. We use the terms
“compellabilit y” and “non-compellability ” in their common law sense to de scribe
whether the wit ness can be forced to take t he stand. Canada Evidence A ct, above
note 1, s 4(2) uses the term “uncompel lable” to describe what we would ter m
“non-compellable.” There are prov isions in provincial a nd territorial Evidenc e
Acts that us e the term “not compellable” to desc ribe the right of witne sses who
must testif y to refuse to answer par ticular questions. I n contrast, the common
law uses th e term “privilege” to descr ibe the entitlement of a testi fying witnes s
to refuse to an swer specific question s, as do we.
4 R v Moran (1987), 21 OAC 257, leave to app eal to SCC refused, [1988] SCCA No 213.
5 Criminal Cod e, RSC 1985, c C-46 [Criminal Code].
6 Canadi an Charter of Rights and Freedoms, Part I of t he Constitution Act, 1982, being
Schedule B to the Can ada Act 1982 (UK), 1982, c 11 [Charter]. See C hapter 7, Sec-
tion 4, “The Non-compellabil ity of Accused Persons at Their Ow n Trials,” which
addresse s the issue of competency and compat ibility in provincia l prosecutions.

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