2016 Fall Term | Professor Tanovich ______________________________________________________________________________

EVIDENCE SYLLABUS (98-850)

1. DESCRIPTION

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 purpose of evidence law, some theoretical foundations and the role of

lawyers. The second part will introduce the student to some of the foundational

elements of evidence including relevance, inductive reasoning, authentication,

exclusionary discretion, limiting instructions, sufficiency and proof. The third part

will examine exclusionary rules involving bad character, hearsay, confessions,

expert opinion evidence and oath-helping. The fourth part will explore the basic

rules governing competence and compellability, questioning and impeachment of

witnesses.

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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

what 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: http://www.uwindsor.ca/sexual-assault/8/resources#on-

campus-resources.

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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 Associate Dean

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.

4. CLASSES

Tues/Thurs 10-12 pm - Moot Court (1100)

5. TEXTS

(i) Required

Delisle, Stuart, Tanovich & Dufraimont, Evidence: Principles and Problems (11th

edition) (Toronto: Thomson Carswell, 2015)

Supplementary Readings (Posted on our Blackboard site)

Canada Evidence Act (available http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-

c-5/latest/rsc-1985-c-c-5.html)

Ontario Evidence Act (available http://www.canlii.org/en/on/laws/stat/rso-1990-c-

e23/latest/rso-1990-c-e23.html)

(ii) Recommended

Hill, Tanovich & Strezos, McWilliams Canadian Criminal Evidence (5th ed)

(Canada Law Book)

Paciocco & Stuesser, The Law of Evidence (7th ed) (Irwin Law)

Sopinka, Lederman & Bryant, The Law of Evidence (4th ed) (Lexis-Nexis)

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6. RELEVANT POLICIES

(i) Grading http://www.uwindsor.ca/law/academic-coordinator/sites/uwindsor.ca.law.academic-coordinator/files/grading_policy_edited.pdf

(ii) Plagiarism

http://www.uwindsor.ca/law/academic-coordinator/sites/uwindsor.ca.law.academic-

coordinator/files/law_7_plagiarism_0.pdf

(iii) Human Rights

https://www.uwindsor.ca/law/academic-coordinator/sites/uwindsor.ca.law.academic-

coordinator/files/law_6_human_rt_poly_law_excerpts.pdf

(iv) University Sexual Assault Policy

http://www.uwindsor.ca/secretariat/sites/uwindsor.ca.secretariat/files/sexual_misconduct

_policy_approved_march_22_2016.docx.pdf

7. EVALUATION

(i) Quizzes (40% of Final Grade)

There will be three (3) quizzes worth 20 marks each. The questions will be either

true or false and/or multiple choice. The quizzes will be open book. The dates for

the quizzes are September 27, October 25, November 22. Your two best quizzes

will count (or if you have to miss one, the two that your write). You will have

20 minutes for each quiz. The quiz will take place during the first 30 minutes of

class on these days. We will take them up immediately after they are handed in.

(v) Final Exam (60% of Final Grade)

There will be a 2 hour open-book exam on Monday, Dec 19, 2016 at 1:00 pm. It

will be a hypothetical/short answer format.

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8. OFFICE HOURS

Tuesday (12:30-2:00 pm)

Also available by appointment

Office: Room 2123

(519) 253-3000 (ext. 2966)

tanovich@uwindsor.ca (e-mail)

@dtanovich (twitter)

http://athena.uwindsor.ca/law/tanovich (website)

Extended office hours will be posted prior to the Final Exam

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. In answering the questions posed

in the relevant sections of the Syllabus (and on the Final Exam), I am looking to see that:

(1) you have correctly identified a relevant statutory, common law or constitutional

rule to have the evidence admitted or excluded;

(2) that you have correctly identified whether the rule is triggered in the

circumstances;

(3) that you have correctly identified the relevant cases; and

(4) 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.

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

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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.

While in the police car on the way to the station, the following conversation

occurred:

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. 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.

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

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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 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 Joesph

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

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from his coma but now has no memory of the shooting.

Based on all of the evidence, Samuel was charged with attempted murder. A warrant

was obtained a warrant 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 nigga It’s my nigga 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 nigga 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 as he was the victim, he could not interview him

without permission from the Crown. The PI was able to gain access to Jordan’s Facebook

page by pretending to be a drug purchaser. On that page, the PI found pictures of Jordan

and Mark smoking crack together. At the preliminary inquiry, the justice concluded that

there was sufficient evidence to move the case to trial.

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9. CLASS AND READING SCHEDULE

INTRODUCTION TO COURSE

September 6 Syllabus

Introducing our working case hypothetical: R v Samuel (pages 5-8)

What pieces of evidence that the Crown will try to rely on as part of

their case?

What about the defence?

PART I – PURPOSE, THEORY AND LAWYERS

September 8 The Forum: The Adversarial System

Notes (pages 1-2)

Balancing the Search for Truth with Doing Justice

Notes (pages 2-7)

Imperial Oil v Jacques (page 5) & R v Mullins-Johnson (page 7) (should there be a

verdict of innocence?)

Notes (pages 9-12)/ R v Lawes (page 12)/ R v Salituro (page 28) (what is the role of

the trial judge? How far can the trial judge go in commenting on the evidence?

Changing the rules?)

Working Case Hypothetical: What fairness issues are raised by the various

pieces of evidence the Crown may try to rely on?

A Theory of Evidence

Mitchell v Canada (MNR) (page 416) (what are the essential elements of evidence

admissibility? What type of evidence did Mitchell want admitted to support his

claim that he was exempt from paying duty on goods imported from the US for

trading purposes?)

R v Khan (page 690) (what is a principled approach to admissibility?)

Case Study: Is There A Best Evidence Principle?

Notes: pages 409 (beginning with 3. Best Evidence Rule)-410

R v Cotroni (page 411) (copies of real evidence)

Section 31.2(1) of the Canada Evidence Act (electronic evidence)

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September 13

Legal Ethics and Privilege

Cowles v Balac (page 27) (can legal ethics impact admissibility?)

Notes (page 15)/ R v Felderhof (page 15)/ Dore v Barreau du Quebec (page 21)/ R

v Murray (page 23) (what is the ethical role of counsel in presenting evidence?)/

FLSC Physical Evidence Rule (pages 26-27)

Notes (page 989)/ Descoteaux v Mierzwinski (page 990) (what are the essential

elements of solicitor-client privilege? Is it a class privilege?)

MNR v Newport Pacific (page 1000) (what if the person giving the advice is not a

lawyer?)

R v McClure (page 1017) (can you be compelled to breach privilege to correct or

prevent a wrongful conviction?)

Working Case Hypothetical: What ethical issues are raised?

PART II - FOUNDATIONS

September 15

Relevance

Notes (pages 157-158)/ R v Morris (page 159) (what is relevance? How do we

determine it?)

Case Study#1: Character Evidence in Civil Cases

Notes (pages 228-229) (how is character evidence relevant?)

McArthur v Prudential Insurance (page 230)/ Rawdah v Evans (page 230)/

Plester v Wawanesa Mutual Insurance Co. (page 231) (when is character

evidence relevant in civil cases?)

Case Study #2: Good Character Evidence in Criminal Cases

Overview (pages 234)/ R v Levasseur (page 246)/ R v Profit (pages 235-236)

Case Study#3: Admissibility of Criminal Verdicts in Civil Cases

Problem #5 (page 212)

Working Case Hypothetical: The Crown objects to the admissibility of the

Facebook photos arguing that they are not relevant. How do you respond as

defence counsel?

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September 20/22 Inductive Reasoning

R v Munoz (page 75) (what is inductive reasoning? What role does it play in the law

of evidence?)

Case Study #1: After the Fact Conduct

R v White (page 80) (how can after-the-fact conduct be used? On what basis

did the majority conclude that lack of hesitation speaks to intent? What about

flight?

Case Study#2: Using Social Context

Notes: 163-166 (including R v Lavallee)/ R v RDS (page 166) (what is the

legacy of RDS?)

Dispensing With Proof: Admissions and Judicial Notice

R v Spence (page 383) (when can judicial notice of a fact be taken?)

Mock Argument (We will divide the class into three groups – defence appellate

counsel, Crown appellate counsel and appellate judge) The issue is whether

Judge Zucker in R v Ururyar 2016 ONCJ 448 at paras 371-424 (Supplementary

Readings) improperly used social context evidence in assessing credibility.

September 27

QUIZ #1

Authentication

Notes (pages 395-396)

Case Study#1: Crime Scene Videotapes

R v Nikolovski (page 397) (what is authentication? What is the threshold

test?)

Case Study#2: Social Media Evidence

R v Andalib-Goortani (page 402) and notes (page 408) (what was the concern

raised by the defence? Do you think the trial judge applied too high a

threshold?)

Working Case Hypothetical: Are there issues of authentication raised by any

relevant pieces of evidence? How are they likely to be resolved?

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September 29

Exclusionary Discretion

Notes (pages 176-179)

R v Seaboyer (page 187)/ R v Grant (page 190) (balancing probative value and

prejudicial effect)

R v Hart (page 194) and Note (page 196) (assessing reliability)

Case Study#1: Admissibility of Corrective Action

Anderson v Maple Ridge (page 198) and Notes (pages 201-202)

Case Study#2: Demonstrative Evidence

R v MacDonald (page 419)

Working Case Hypothetical: The Crown seeks to rely on the rap lyrics found

in Samuel’s apartment? What arguments will they make? How should the

defence respond?

October 4

Limiting Instructions

R v Corbett (page 179) (can they be followed?)

Sufficiency

R v Arcuri (page 108) (testing the case for the Crown)

R v Cinous (page 115) (testing the case for the defence)

Hryniak v Mauldin (page 119) (motion for summary judgment)

FL Receivables v Cobrand Foods (page 125) (motion for non-suit)

Case Study#1: Preliminary Inquiry Committal

Problem (page 112)

October 6

Proof

Peart v Peel Regional Police (page 46) (how do we allocate the burden of proof?

Should there be a reverse onus in cases involving racial profiling?)

FH v McDougall (page 54) (what is the balance of probabilities standard? Does it

shift depending on the nature of the allegations?)

R v Lifchus (page 61)/ R v Starr (page 63)/ R v W(D) (page 65) & R v S(JH) (page

66) (how do we define reasonable doubt? Applying reasonable doubt to credibility

assessments)/ Notes (pages 69-71)

Fontaine v Insurance Corp of BC (page 44)/ R v Villaroman 2016 SCC 33

(Supplementary Readings) (circumstantial evidence)

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PART III – EXCLUSIONARY RULES

October 11 Prior Sexual History

R v Seaboyer (page 304)/ Notes (pages 316-318)/ Bill C-49 (pages 319-321)/ R v

Darrach (page 324) (what are the relevant considerations in assessing

admissibility?)

R v Crosby (page 321) / R v Temertzoglou (page 329)/ R v S(LR) (page 332)/ R v

Boone 2016 ONCA 227 (Supplementary Readings) (when will the evidence have

significant probative value that is not outweighed by its prejudicial effect?)

October 13/18/20

Bad Character Evidence (Re: The Accused)

R v B (L) (page 224)/ R v Handy (237) (bad character trigger)

Notes (page 225)/ R v W(L) (page 226)/ R v Johnson (page 227) (returning to

relevance and non-character purpose)

Notes (pages 239-241)/ R v P(NA) (page 241)/ R v A(WA) (page 243)/ R v Parsons

(page 292)/ R v Vanezis (page 293) (putting character in issue)

Notes (pages 244-247)/ R v Brown (page 248) (proving character)

Case Study#1: Similar Fact Evidence

R v Handy (page 266)

Working Case Hypothetical: 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 from leading this

evidence? Does leading it put Samuel’s character in issue?

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October 25

QUIZ #2

Hearsay

Notes (pages 669-672)/ R v Khelawon (page 673)/R v Baltree (page 675)

(identifying hearsay)

R v Khelawon (page 711)/ Notes (pages 720-722) (principled approach to

admissibility)

R v Parrott (page 731) (necessity)

R v B(KG) (page 700)/R v U(FJ) (page 708)/R v Devine (page 725) (prior

inconsistent statements)

R v Blackman (page 722) (motive and reliability)

Working Case Hypothetical: 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 rule?

October 27

Voluntary Confessions Rule

R v Hodgson (page 804) (person in authority requirement)

R v Oickle (page 813) (meaning of voluntariness)/ Notes (page 826)

R v Moore-McFarlane (page 865) (video-taping interrogations)

R v Phillips (page 742) (obligation to lead entire statement)

R v Rojas (page 872) (mixed inculpatory/exculpatory statements & instructions to

jury)

Case Study #1: Mr. Big

R v Hart (page 839)

Working Case Hypothetical: Are there any VCR issues raised by the evidence

the Crown seeks to tender?

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Nov 1/3

Opinion Evidence

R v Graat (page 877) (lay opinion exception)

Notes (pages 881-884)/ White Burgess v Abbott (page 885) (the threshold test for

expert opinion evidence)

R v J(JL) (page 906) (reliability and novel hard science)

R v Abbey (page 897) (reliability and social science evidence)/ Notes (pages 905-

906)

R v D(D) (page 942)/R v Talbot (page 949) (necessity)

Working Case Hypothetical: 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?

November 7-11

Reading Week

November 15 Oath-Helping and Prior Consistent Statements

R v Beland (page 615) (general rule applied in context of polygraph results)

R v Stirling (page 622) (recent fabrication exception)

R v Dinardo (page 627)/R v Curto (page 629) (narrative exception)

Case Study#1: Exculpatory Arrest Statements

R v Edgar (page 630)

Working Case Hypothetical: 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?

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PART IV - WITNESSES

November 17

Competence and Compellability

Notes (pages 431-433)/ R v Kalever (page 433) (oath)/ Notes (pages 434-435)/ R v

J(TR) (page 435)

Section 14 of Canada Evidence Act (affirmation)

Case Study#1: Young Persons

Notes (pages 437-438)/ R v W(R) (page 431)

Section 16.1 of the Canada Evidence Act (pages 444-445)

Professor Bala article (pages 442-451)

R v Levogiannis (page 452)

Case Study#2: Witnesses With Intellectual Disabilities

Section 16 of the Canada Evidence Act (pages 454-455)

R v Parrott (pages 460-462)

Case Study#3: Spouses

Section 4(2) of the Canada Evidence Act (page 465)

Case Study#4: Accused

Section 4 and 5 of the Canada Evidence Act

R v Laboucan (page 589) (interest in the outcome)

R v Noble (page 491)/ Notes (pages 496-498)/ R v Prokofiew (adverse

inferences from failure to testify) (page 498)

November 22/24

QUIZ #3

Questioning

Notes (pages 507-510) / R v Rose (page 510) (leading questions)

R v Wilks (page 514) (refreshing memory and past recollection recorded)

R v R(AJ) (page 537) (ethical Crown cross-examination)

R v Schmaltz (page 542) (duty of trial judge to intervene)

R v McNeill (page 550) (duty to cross-examine)/ Notes (pages 553-554)

R v Lyttle (page 534) (good faith obligation)/ Notes (pages 536-537)

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November 29/December 1

Impeachment

Notes (pages 554-555)/ R v Krause (page 556) / R v Cassibo (page 558) (collateral

fact bar)

Case Study#1: Using Prior Inconsistent Statements

Section 10 and 11 of the Canada Evidence Act (statements of opposing

witness)

Case Study#2: Police Officers

R v Ghorvei (page 585)

Case Study#3: Section 12 and an Accused’s Prior Criminal Record

R v Underwood (page 609) (timing)

R v Corbett (page 179) (relevant factors)

R v Saroya (page 604) (application)

R v McFadyen (page 606) (application)

Working Case Hypothetical: 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 any 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?

END OF COURSE