Methods of Presenting Evidence

AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
There are two ways in which evidence can be presented: as “oral evi-
dence” or as “real evidence.” “Oral evidence” is testimonial inform a-
tion furnished by w itnesses who communicate their observations or
opinions about the matters in issue di rectly to the trier of fact. “Real
evidence” consists of items or thing s that the trier of fact can v iew
directly. Exceptionally, additional data for factual decision-maki ng can
be considered by triers of fact th rough tightly controlled doctrines of
“judicial notice” that authorize tr iers of fact to consider information that
has not been presented as ev idence in the case. This chapter describes
these three method s 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 in formation.
The discussion in thi s chapter of the rules of admis sibility 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 tr ier of fact, and the rules
of admissibility de scribed throughout this volume tend to address t he
admissibility of oral evidence. Moreover, although all forms of infor-
mation can raise i ssues of credibility and reli ability, these issues are
far more likely to arise, and to be more intense, in the case of oral ev i-
dence. The particular focus on credibi lity and reliability in this context
has engendered an intric ate body of law relating to the admis sion and
use of secondarily mater ial evidence about the credibility and reliabil-
ity of oral evidence. For practical and pedagogical reasons, we have
chosen to reserve di scussion 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 t he calling of witnes ses
to provide oral evidence, the competence and compellability of w it-
nesses, and the proces s of examining and cros s-examini ng 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 w itnesses.
Our trial s ystem is based on the calling of witnesses. Typically, wit-
nesses will provide their testimony in court, oral ly. However, provision
is made in civil c ases for summary t rial proceedings, applications, a nd
motions where the testimony of a witnes s may be given in whole or in
part by affidavit a document attested to by the witness containing
the witness’s evidence. Aff idavit evidence is rarer in cr iminal cases,
although some preliminar y motions and special forms of proof at tri al
are supported by affidav its. Even where the ev idence of a witne ss is pro-
vided by affidav it in either civil or crimi nal 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 witnesse s 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, infa my (should the witness have a crimina l 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 cer tain persons from test ifying 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 Evidence 521
Before offering testimony, a witness must swear a n 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 test s for competency. If w it-
nesses qualify to testify according to a ny one of those tests, then they
will be allowed to test ify; 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 ent itled to the evidence of every
competent pe rson.2 Therefore, almost all witnesses can be forced or
“compelled” to take the stand to testif y.3 However, the common law and
some statutes continue to make some witnes ses “non-compellable.”
Non-compellable witnesses m ay choose to testify but cannot be forced
to do so against their will. For example, at common law, judges are not
compellable witnesse s if called to testif y 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 admissibil ity of their sexual hi story. Still, non-compellability
rules are not encountered frequently in practice, w ith one exception:
accused persons ca nnot be forced to testify at their tr ials 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 te stify by judicial
order or by service of a subpoena. A subpoena ad testificandum require s
that the person attend to give ev idence. A subpoena duces tecum requires
not only that the person attend to give evidence, but also t hat 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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