UNIVERSITY OF TORONTO 2 9 9 FACULTY of LAW 9 4 3 2 9 0 1 6 7 1 3 EVIDENCE LAW (0102) (LAW241H1F) Fall Semester - 2012 SUPPLEMENTARY CASEBOOK Prepared by: P. Andras Schreck and Apple Newton-Smith Adjunct Professors of Law, University of Toronto, Faculty of Law Storage Class Times: Tuesday and Thursday, 4:10 p.m. to 6:00 p.m. KE 8440 . S37 2012 c. 1 FACULTY OF LAW |m _ ^ ,\\i OF TORONTO EVIDENCE LAW (0102) (LAW24IH1F) Fal! Semester - 2012 SUPPLEMENTARY CASEBOOK Prepared by: P. Andras Schreck and Apple Newton-Smith Adjunct Professors of Law, University of Toronto, Faculty of Law Class Times: Tuesday and Thursday, 4:10 p.m. to 6:00 p.m. Digitized by the Internet Archive in 2018 with funding from University of Toronto https://archive.org/details/evidencelaw0102s00schr EVIDENCE LAW (0102) (LAW241H1F) Fall Semester-2012 SUPPLEMENTARY CASEBOOK INDEX Course Syllabus. (i) Hamish Stewart Handout, “Overview of the Common Law Trial”. 1 Canadian Judicial Council, Model Jury Instructions. 4 Hamish Stewart Handout, “Chapter 2: A Brief Summary”. 64 R. v. N.S., 2010 ONCA 670. 67 R. v. Morris, [1983J 2 S.C.R. 190. 91 R. v. Sadiqi, [2009] O.J. No. 2974. 103 R. v. Shafia, [2012] O.J. No. 1446. 117 R. v. Baldree, [2012] O.J. No. 924. 124 R. v. Ferris, [1994] A.J. No. 19 and [1994] S.C.J. No. 97. 152 R. v. S.G.T., [2010] S.C.J. No. 20. 178 R. v. Singh, [2007] S.C.J. No. 48. 200 R. v. Sinclair, [2010] S.C.J. No. 35. 229 R. v. Cote, [2011] S.C.J. No. 46... 284 (i) EVIDENCE LAW (0102) (LAW241H1F) Fall Semester - 2012 P. Andras Schreck Adjunct Professors of Law Apple Newton-Smith University of Toronto, Faculty of Law Email: [email protected] [email protected] Class Location: TBA Class Times: Tuesday and Thursday, 4:10 p.m. to 6:00 p.m. (4 hours per week) After Class Consultation: Please email either one of us at any time. We will contact you and arrange for a meeting, whether by phone or in person. At its simplest, evidence is about proving or disproving facts. In studying it, we will examine what lawyers and their clients can and cannot use in a trial to persuade a trier of fact, whether judge or jury, to make a finding of fact in their favour. Truth, fairness and justice are not synonyms. Justice or fairness often require that the truth, that is, evidence known to be factually accurate, be excluded from the court record. Truth-seeking is a central judicial function, but a just result does not necessarily mean arriving at the truth. The law of evidence is an intellectual discipline, difficult both practically and theoretically, that organizes modes of inference and judgment, establishes principles, rules, and guidelines, employs judicial discretion, relies upon morals, values, and truths, and tries to eliminate prejudices, all in order to permit a judge and jury to decide a case in a manner that is just and that maintains and promotes both the integrity of our legal system and its legitimacy in our community. In this course, students will be introduced to, and be asked to discuss and debate, the basic principles of the law of evidence and will establish the ability to think through problems of proof, how to resolve them, and how to construct evidentiary arguments, for and against. The ability to use evidence law to argue for or against admissibility is the prime aim of the course. The c*Law” of Evidence is ever-changing. Knowing certain cases now will be of no value, in some contexts, even six months from now. Therefore, knowing the content of the cases is of less importance than is the ability to use the things said and decided in the cases generally to develop an argument. (ii) Required Course Materials: 1. Stewart, Hamish, et al. ed.. Evidence, A Canadian Casebook, 3rd Edition (Toronto: Edmond Montgomery, 2011) (referred to as “Stewart”) 2. Schreck and Newton-Smith’s collection of Supplementary Course Materials (2012) (referred to as “Supplementary Casebook” Stewart is available for purchase at the University of Toronto Book Store. The Supplementary Casebooks have been printed by the Bookstore and should be available there in a single volume. Other material may be assigned along the way, and the readings described below may be altered. Suggested Introductory Texts on Canadian Evidence Law: Bryant, Alan W., Lederman, Sidney N, and Fuerst, Michelle K. Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, 3rd (Toronto: Butterworths-LexisNexis, 2009) iL Paciocco, David M., and Steusser, Lee, The Law of Evidence, 5 Edition (Toronto: Irwin Law, 2011) Delisle, Ronald J, and Duffaimont, Lisa. Canadian Evidence Law in a Nutshell, 3rd Edition (Toronto: Thomson Reuters Canada Ltd., 2009) Salhany, Roger E. The Practical Guide to Evidence in Criminal Cases, 7th Edition (Toronto, Thomson Reuters Canada Ltd., 2010) Evaluation Examination (100%) The final examination, written over three hours, is worth 100% of the final grade. The final will be open book; students are welcome to bring the Stewart textbook and their notes. Class Preparation and Participation: Preparation for class is crucial. This class is intended to analyze and critique cases, not review them. Not all assigned cases will be discussed in class, and some will be discussed in more detail than in others. All assigned cases and all assigned readings form the subject matter of the examination. If a particular case is not discussed in class, and if you have questions about it or wish to discuss it, please email one of us, and we will set up a time with you to do so. September 4 INTRODUCTORY CONCEPTS AND PRINCIPLES Introduction • Stewart, Chapter 1, “Sources and Goals of the Law of Evidence”, pp. 3-19 September 6 Evidence Law, the Adversary System, and Trial by Jury • Hamish Stewart Handout, “Overview of the Common Law Trial” - Supplementary Casebook, pp. 1-3 • Canadian Judicial Council, Model Jury Instructions o Preliminary Instructions ■ Chapter 1: Instructions to the Jury Panel - Supplementary Casebook pp. 5-7 ■ Chapter 3: Opening Instructions to the Trial Jury - Supplementary Casebook pp. 8-10 ■ Chapter 4: Instructions on Trial Procedure - Supplementary Casebook pp. 11-14 o Final Instructions ■ Chapter 8: Duties of Jurors - Supplementary Casebook pp. 29-31 ■ Chapter 10: Types of Evidence, Sections 10.1 and 10.2 - Supplementary Casebook, p. 36 September 11 Assessing Oral Evidence • Hamish Stewart Handout, “Chapter 2: A Brief Summary” - Supplementary Casebook pp. 64-66 • The Examination of Witnesses - Stewart pp. 76-79 • Some Aspects of Cross-Examination - Stewart pp. 79-86 • Canadian Judicial Council, Model Jury Instructions o Preliminary Instructions ■ Chapter 4: Instructions on Trial Procedure, Section 4.11, Supplementary Casebook pp. 13-14 ■ Chapter 9: General Principles, Sections 9.4; 9.5; 9.6 - Supplementary Casebook pp. 33-35 • R. v. N.S., 2010 ONCA 670 - Supplementary Casebook pp. 67-90 September 13 ADMISSIBILITY OR EXCLUSION OF EVIDENCE Relevance • Stewart, pp. 3-7; 87-95 • R. v. Morris, [1983] 2 S.C.R. 190 - Supplementary Casebook, pp. 91-102 Probative Value v. Prejudicial Effect • Stewart, 95-125 (iv) September 18 Opinion Evidence • Stewart pp. 261-291; 309-317 • R. v. Sadiqi, [2009] O.J. No. 2974 - Supplementary Casebook, pp. 103- 116 • R. v. Shafia, [2012] O.J. No. 1446 - Supplementary Casebook, pp. 117- 123 • Canadian Judicial Council, Model Jury Instructions o Mid-Trial Instructions ■ Chapter 7: Section 7.18 - Supplementary Casebook pp. 22-23 o Final Instructions ■ Chapter 10: Types of Evidence, Sections 10.3 and 10.4 - Supplementary Casebook pp. 36-37 September 27 Hearsay • Hearsay or Not? Stewart, pp. 129-139; 145-147; 149-159 • R. v. Baldree, [2012] O.J. No. 924 - Supplementary Casebook pp. 124-151 October 2 Hearsay (continued) • R. v. Ferris, [1994] A.J. No. 19 and [1994] S.C.J. No. 97 - Supplementary Casebook pp. 152-177 • Stewart pp. 154; 156-179; 192-194 October 4 The “Principled” Approach to Hearsay • Stewart pp. 194-225 October 9 The “Principled” Approach to Hearsay (continued) • Stewart, pp. 225-260 October 11 Credibility • Means of Assessing Credibility - Stewart, pp. 319-323 • Limits on Supporting Credibility - Stewart, p. 323 o The Accused’s Reputation for Veracity - Stewart, pp. 329- 332 o Prior Consistent Statements - Stewart, pp. 333-344 October 16 Credibility (continued) • Impeaching Credibility - Stewart, p. 344 o Witness’s Bad Reputation for Veracity - Stewart, pp. 348- 353 o Prior Inconsistent Statements - Stewart, pp. 353-358