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Evidence - Subjects Table of Contents (R-Z)
REASONABLE PERSON
The 'reasonable person' is a notional model used sometimes in law to adjudge when behaviour is 'unreasonable', and thus subject to some legal sanction.
Evidence Cases - Reasonable Person
REFRESHING MEMORY
'Refreshing memory' typically refers to the use of contemporaneous-to-event made notes to stimulate recall of events that the witness did see.
Evidence Cases - Refreshing Memory
RELEVANCE
Evidence Cases - Relevance (+)
RELIABILITY
Evidence Cases - Reliability
RES IPSA LOQUITOR
'Res ipsa loquitor' is latin for the term "the thing speaks for itself". It's a broad form of circumstantial evidence in tort where the circumstances are so obvious and singular that such things as identity of the tortfeasor and causation cannot be questioned.
Evidence Cases - Res Ipsa Loquitor
SELF-INCRIMINATION
In civil and administrative proceedings a risk sometimes arises for a witness that by answering questions truthfully that they may incriminate themselves. This gives rise to the policy issue of whether it is more desirable to accept that risk (and it's related risk of incentivizing fabrication), or to bar the use of such answers in subsequent criminal proceedings. In Canada, this policy issue has been answered in by latter option (ie. barring further criminal use) by Charter s.13 ['Self-incrimination'] - which still leaves the witness with the risk of 'derivative use' of such answers, in that such answers still provide police with knowledge of what happened so that they may prove it otherwise than through the witness.
Evidence Cases - Self-Incrimination
Evidence Act (Ont), s.9(1) Witness not excused from answering questions tending to criminate
Evidence Act (Ont), s.9(2) Answer not to be used in evidence against witness
SEPARATE PROCEEDINGS
This is about the cross-over use of evidence from one proceeding to another, separate proceeding.
Evidence Cases - Separate Proceedings
SIGNATURES
Evidence Cases - Signatures
SIMILAR FACT, CHARACTER AND RELATED EVIDENCE
This area of evidence law was a mess when I studied it in law school, and IMHO it's still a mess. The common thread may be that of 'character' evidence, attempting to challenge the credibility - or even simply the character - ie. they are a 'bad' person and deserve to suffer, sometimes regardless of their behaviour in this situation) - of someone adverse to your interests, like the defendant. It can involves basic emotions, commonly hatred or spite against the target. In it's 'similar fact' mode it seeks to admit evidence of 'similar facts' that - while strictly unrelated to the case - can, with enough past repetitions, show that 'they're the kind of person who does stuff like this'.
The below several sub-titles reflect the different terms used in law to label what may in fact be the same single, basic theme. However, I have yet to see a good amalgamation of the issues into one single unified doctrine.
Evidence Cases - Similar Facts (+)
Evidence Cases - Similar Fact (Handy) (+)
Evidence Cases - Character Evidence
Evidence Cases - Discreditable Conduct
Evidence Cases - Prior Discreditable Conduct
Evidence Cases - Collateral Fact
Evidence Cases - 'Propensity Reasoning'
Evidence Cases - 'Profile Reasoning'
'SOCIAL CONTEXT'
This is a developing new category of evidence law, used here to address the implications of racism. There is a separate sub-topic: Racism.
Evidence Cases - 'Social Context'
SOCIAL SCIENCE
'Social science' evidence is just that, mostly from expert witnesses. The field has undergone radical potential change with the Environment - Precautionary Principle (PP), which started in environmental law and now can apply broadly to other social science issues as well. The PP provides that:... Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. [Bergen Ministerial Declaration on Sustainable Development (1990), para 7] This amounts to a reduced 'standard of proof' for such social science issues, reflecting the widespread social recognition that our world needs increased regulatory aid.
Evidence Cases - Social Science
SPECULATION
This evidence theme has received recent debate attention with the Kruk (SCC, 2024) case [see: Assumptions, above], with it's focus on (and tolerance of) 'common-sense assumptions'. IMHO this amounts to a sub-set development of 'inference' law, where conclusions are drawn by induction from specific instances and deduction from general principles.
Evidence Cases - Speculation
SPOLIATION OF EVIDENCE
This is an interesting theme - the destruction of evidence, sometimes intentionally to prevent it's use.
Evidence Cases - Spoliation of Evidence
STANDARD OF PROOF
The baselines for 'standards of proof' are that for civil and administrative law cases it is 'balance of probabilities', and for criminal cases it's 'beyond a reasonable doubt'. That said, civil law sometimes requires a higher standard of proof in certain matters (eg. 'clear and convincing'), such as fraud or professional discipline. As well, for the preliminary class proceeding certification it is the lower 'some basis in fact'. In criminal matters it's almost always 'beyond a reasonable doubt' when judging the entire case, but it can be lower for particular criminal law interlocutory sub-issues.
Evidence Cases - Standard of Proof
STATUTORY ADMISSIBILITY
Evidence Cases - Statutory Admissibility
STEREOTYPICAL THINKING
This evidence principle reflects a relatively new legal culture focus on prejudicial thinking, mostly regarding past presumptions regarding sexual offence victim behaviour and racism. Given it's nature it is sometimes tied to the similar recent focus on 'common sense assumptions' [Kruk (SCC, 2024)] and inferences.
Evidence Cases - Stereotypical Thinking (+)
SUMMONS
Evidence Cases - Summons
Evidence Act (Ont), s.19 Attendance of witnesses (note the unusual 'insertion' to Evidence Act, s.19, ss.4-11)]
Interprovincial Summonses Act
TAILORED EVIDENCE
The issue of 'tailored evidence' can arise where someone suggests that the witness' testimony is too 'neat', or designed to mesh with what they have learned from disclosure or discovery.
Evidence Cases - Tailored Evidence
TRANSCRIPTS AND RECORDINGS
Evidence Cases - Transcipts and Recordings
Evidence Act (Ont), s.5(1-3) Recordings and Transcripts of Evidence
Evidence Act (Ont), Reg 158/03 - Certification of Recordings and Transcripts
WAGG ORDERS
'Wagg' applications are relatively new procedures wherein parties in civil litigation may apply to the court for a disclosure 'screening process' to obtain Crown documents for use in their proceedings. It was felt that the public (ie. Crown) interest regarding privilege or other confidentiality principles required a more regularized process to resolve these increasingly common procedures.
Evidence Cases - Wagg Orders
WITNESSES
General
Evidence Cases - Witness - General
Examination Stages
Direct Examination
Evidence Cases - Adverse Witness
Evidence Act (Ont), s.23. How far a party may discredit his or her own witness
Cross-Examination
Evidence Cases - Cross-Examination
Evidence Cases - Browne v Dunn (+)
Evidence Act (Ont), s.20. Examination of witnesses, proof of contradictory written statements
Evidence Act (Ont), s.21. Proof of contradictory oral statements
Re-Examination
Evidence Cases - Re-examination
Evidence Cases - Rebuttal
Recalling Witnesses
Evidence Cases - Recalling Witnesses [RCP R53.01(3)]
Other
Issues
Evidence Cases - Exclusion of Witnesses
Evidence Cases - Trauma Memory
Evidence Cases - Witness - Videotaped
Witness Behaviour
Evidence Cases - Witness Demeanour
Evidence Cases - Witness Embellishment
Evidence Cases - Candour
Certain Witnesses
SPPA 4.9(1) - Mediators, etc., not compellable [#ADMIN]
Crown Witnesses Act
EVIDENCE ACT (CANADA)
The Canada Evidence Act (CEA) applies to "all criminal proceedings and to all civil proceedings and other matters whatever respecting which Parliament has jurisdiction" [s.2 CEA], which means federal statutes. There are fewer federal evidence cases so for the time being I have not yet split the CEA into separate sections.
Evidence Act (Cda)SOR/2005-30 Secure Electronic Signature Regulations Evidence Cases - CEA - Open Court [s.38]
Evidence Cases - CEA - Failure to Testify [s.4(6)]
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