Methods of Presenting Evidence

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 519-591

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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.