Methods of Presenting Evidence

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

519

CHA PTER 9

METHODS OF

PRESENTING E VIDENCE

1. GENER AL

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

THE LAW OF EVIDENCE520

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.

2. THE CALLING OF WITNESSES

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.