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Evidence - Subjects Table of Contents (N-Q)
NARRATIVE
'Narrative' in this context is synonymous with 'background'. If the court feels evidence is reliable and uncontested they may allow a witness to 'sketch' or summarize fact backgrounds for time efficiency.
Evidence Cases - Narrative
NOTARIES
Evidence Cases - Notaries
Evidence Act (Ont), s.41 Effect of certain certificates of notaries
Notaries Act
OATHS AND AFFIRMATIONS
Evidence Cases - Commissioners for Taking Affidavits Act (CTAA)
Evidence Act (Ont), s.3-4 Administration of oaths and affirmations; Certification
Evidence Act (Ont), s.16 Mode of administering oath
Evidence Act (Ont), s.17 Affirmation in lieu of oath
Evidence Act (Ont), s.43 Solemn declaration
Evidence Act (Ont), s.44. Oaths, etc., administered by commissioned officers
Evidence Act (Ont), s.45. Oaths, etc., administered outside Ontario
Evidence Act (Ont), s.46. Formal defects, when not to vitiate (2/2)
Courts of Justice Act (Ont), s.92 Administration of Oaths
Commissioners for taking Affidavits Act
OATH-HELPING
'Oath-helping' is evidence directed at helping a witness' credibility. It is generally barred - though it can be allowed in criminal sentencing.
Evidence Cases - Oath-Helping
OBJECTIONS
These are the classic 'objections' you see in court movies. They should be raised when opponents on the other side are calling evidence that you don't want entered, should be made promptly and made with good legal reason (ie. one grounded in the law of evidence). That said, objecting while the other side is making their legal submissions is normally strongly discouraged - remember that you should have your designated time for disagreeing. Making objections requires you to be 'on your toes' and to anticipate what evidence you think the other side has. If you fail to object to such evidence you may be barred from objecting to it on appeal.
Evidence - Objections
O'CONNOR APPLICATIONS
'O'Connor applications' get their name from the criminal case of R v O'Connor (SCC, 1995). As I use the term, it refers to a party's attempt to compel evidence from third parties (ie. non-parties) in any type of proceeding, not just criminal. At date there is both common law and statutory law regarding O'Connor applications and the law has seen much development over the last 30 years.
Evidence Cases - O'Connor Applications
OPINION AND EXPERT EVIDENCE
The vast majority of these cases are regarding 'expert' evidence, but that can conceal the reality that expert evidence is really a sub-set of the larger area of 'opinion' evidence. The main value of a qualified expert witness is that they can give 'opinions' on the areas of their training and/or experience. That said, lay (ie. non-expert) witnesses can give opinions on things within the average person's experience - eg. were they drunk? were they driving too fast?.
Lay Opinion
Evidence Cases - Lay Opinion (+)
Expert Opinion
General
Evidence Cases - Expert Evidence - General
Evidence Cases - Expert Opinion - Practice
Rules of Civil Procedure
Evidence Cases - Expert Opinion - R53.03
Civil Litigation Cases - Evidence - Expert Opinion
Doctrine
Evidence Cases - Expert Opinion - Test (+) [White Burgess]
Evidence Cases - Expert Opinion - Criteria
Evidence Cases - Expert Opinion - Necessity [Mohan]
Issues
Evidence Cases - Expert Opinion - The 'Ultimate Issue'
Evidence Cases - Expert Opinion - Duties of Impartiality and Independence (+)
Evidence Cases - Expert Opinion - Expert versus Technical
Evidence Cases - Expert Opinion - Expert versus Judge
Evidence Cases - Expert Opinion - Credibility
Evidence Cases - Expert Opinion - Hearsay
Procedures
Evidence Cases - Expert Opinion - Qualification
Evidence Cases - Expert Opinion - Expert Report (Participation v Litigation Experts) (+)
Evidence Cases - Expert Opinion - Adopting Documents
Evidence Cases - Expert Opinion - Admissibility (Voir Dire)
Evidence Cases - Expert Opinion - Affidavits
Criminal
Evidence Cases - Expert Opinion - Criminal Disclosure
Evidence Cases - Expert Opinion - Police
Other
Evidence Cases - Expert Opinion - Administrative
Evidence Cases - Expert Opinion - Compensation
Evidence Cases - Expert Opinion - Non-Opinion Evidence
Evidence Cases - Expert Opinion - Profiling
Appeals
Evidence Cases - Expert Opinion - Standard of Review (SOR)
Evidence Act (Ont), s.12. Expert evidence
Civil Litigation - Evidence - Expert Evidence
PAROLE EVIDENCE
'Parole evidence' is a dated doctrine of Canadian contract law, which held that extrinsic or oral evidence may not be called to clarify terms of a contract. It has largely been superceded by the doctrine of 'surrounding circumstances' from Sattva Capital (SCC, 2014).
Evidence Cases - Parole Evidence
PARTY AGREEMENTS AS TO FACTS
Evidence - Party Agreements as to Facts
PHONE RECORDS
Evidence Cases - Phone Records
PHOTOGRAPHS
Evidence Cases - Photographs
POLICY GUIDELINES
While 'policies' have existed for most government agencies as long as they've existed, the rapid growth of administrative tribunals over the last 40 years has led to an equally-rapid growth of 'policy guidelines'. Such policy guidelines, made (hopefully) in accordance with the Statutory Powers Procedure Act (SPPA), overwhelmingly supercede the prior tribunal procedural rules which used to be entirely contained in the tribunal's home Act, regulations and the common law. Now these 'guidelines' (and similar documents called 'rules', 'practice directions' and otherwise) are published openly in any of the websites of over 100 Canadian and Ontario tribunals.
Evidence Cases - Policy Guidelines
POST-OFFENCE CONDUCT
Sometimes conduct after the commission of a criminal (or quasi-criminal) offence will be probative of whether the defendant is guilty or not. Such evidence will always be circumstantial, and examples can include fabrication and flight - though that by no means exhausts them.
Evidence Cases - Post-Offence Conduct (+)
POLYGRAPH EVIDENCE
Evidence Cases - Polygraph Evidence
PRACTICE
'Practice' here means practicing law. These notes and extracts are more in the nature of nitty-gritty procedures that seemingly no one else ever explains.
Evidence Cases - Practice
PREJUDICE
The term 'prejudice' (as used here) is integrally tied with the term 'probative' in a balancing dynamic. Judges (and other adjudicators) often face situations where an offered piece of evidence has some probative value (ie. it can support a factual conclusion) but it also has prejudicial aspects (ie. where human nature can lead to unfair additional presumptions) as well. In such situations, the court or tribunal must 'balance' the two aspects and decide whether to admit it or not. In civil and administrative (ie. non-criminal) proceedings the effect of admitting such evidence can be largely offset by the court's discretion to 'weigh' such evidence lightly (or not at all) - thus the expression: 'goes to weight'.
Evidence Cases - Prejudice (+)
PRESERVATION DEMANDS
Evidence Cases - Preservation Demands
PRIOR CONSISTENT STATEMENTS
'Prior consistent statements' refer to statements made at hearing which are consistent with statements made by that witness on a prior occasion - such as discovery, interview or in conversation. Generally, such statements are inadmissible - with exceptions to rebut an allegation of fabrication and for narrative background (for examples). The policy concern with allowing prior consistent statements is that repetition would tend to unfairly bolster the credibility of the statement.
Evidence Cases - Prior Consistent Statements (+)
PRIOR INCONSISTENT STATEMENTS
Following from the note on 'prior consistent statements' (above), prior inconsistent statements are logically available to 'impeach' [see Cross-examination] a witness on inconsistencies in prior statements.
Evidence Cases - Prior Inconsistent Statements
PRIVATE NOTES AT A HEARING
Sadly, this is a 'growth area' legal issue, at least in administrative law. Due to the inconsistency of tribunals in recording and being able to produce accessible and timely transcripts of hearings (and the tempting finger-tip availability of phone recorders), some parties (IMHO quite reasonably) are seeking to create their own or at least to have their notes admitted as fresh evidence on appeal or reconsideration. This gives rise to concerns in such bodies over accuracy and completeness, something which could be resolved if all tribunals taped all hearings, all the time.
Pardon the cynicism, but how hard could that be? A related sub-topic is Transcripts and Recordings (below).
Evidence Cases - Private Notes at a Hearing
PRIVILEGE
General
Evidence Cases - Privilege - General (includes Wigmore)
Evidence Cases - Privilege - Practice
Issues
Evidence Cases - Privilege - Statutory Exceptions
Evidence Cases - Privilege - Remedies for Breach
Evidence Cases - Privilege - Confidentiality
Solicitor-Client Privilege
Evidence Cases - Privilege - Solicitor-Client (+)
Litigation Privilege
Evidence Cases - Privilege - Litigation (+)
Evidence Cases - Privilege - Litigation and Solicitor-Client Privilege Contrasted
Crown Privilege
Evidence Act (Ont), s.30.1(1-7) Sharing of information within public sector not affecting privilege (Crown Privilege) [#Crown Liability]
Cabinet (Public Interest) Privilege
Evidence Cases - Privilege - Public Interest (Cabinet)
Evidence Cases - Privilege - Parliamentary Privilege [#LEGISLATURE]
Evidence Cases - Cabinet Confidences (+)
Crown Liability - Crown Disclosure
Evidence Act (Ont), s.30. Privilege in case of official documents (Cabinet privilege) [#Crown Liability]
Other Types of Privilege
Evidence Cases - Privilege - Settlement (+)
Evidence Cases - Privilege - Spousal Incompetency Rule
Evidence Cases - Privilege - Informer (+)
Evidence Cases - Privilege - Absolute
Evidence Cases - Privilege - Statutory
Evidence Cases - Privilege - Adjudicative (Deliberative) (+)
Evidence Cases - Privilege - Journalistic
Evidence Cases - Privilege - National Security
Exceptions to Privilege
Evidence Cases - Privilege - Override
Evidence Cases - Privilege - Waiver of Privilege
PROBATIVE
The term 'probative' (as used here) is integrally tied with the term 'prejudice' in a balancing dynamic. Judges (and other adjudicators) often face situation where an offered piece of evidence has some probative value (ie. it can support factual conclusions) but it also has prejudicial aspects (ie. where human nature can lead to unfair presumptions) as well. In such situations, the court or tribunal must 'balance' the two aspects and decide whether to admit it or not. In civil and administrative (ie. non-criminal) proceedings the effect of admitting such evidence can be largely offset by the court's discretion to 'weigh' such evidence lightly (or not at all) - thus the expression: 'goes to weight'.
Evidence Cases - Probative
PSYCHOLOGICAL INTERPRETATION OF EVIDENCE
Evidence Cases - Psychological Interpretation of Evidence
PUBLIC DOCUMENTS
Evidence Act (Ont), s.24. Letters patent
Evidence Act (Ont), s.25. Copies of statutes, etc.
Evidence Act (Ont), s.26. Proclamations, orders, etc.
Evidence Act (Ont), s.27. Orders signed by Secretary of State or member of Executive Council
Evidence Act (Ont), s.28. Notices in Gazette
Evidence Act (Ont), s.29. Public or official documents
Evidence Act (Ont), s.31 Books of accounts of municipalities and government departments
Evidence Act (Ont), s.32(1-2) Copies of public books or documents
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