Acceptation des preuves

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois January 2019. (Rev. # 2053)

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• < Preuve

Introduction

In a criminal hearing, a trier of fact will generally determine facts based solely on admissible evidence given through witnesses, physical exhibits, and admissions by the parties.The adversarial system depends on the production of evidence by parties in order to guarantee "its sufficiency and trustworthiness." It is not for the judges "go looking for evidence" and it is irrelevant that other relevant materials may exist out there that was not adduced.

Evidence provides a means of allowing facts to be proved for the purpose of deciding issues in litigation. The trier of fact may only consider evidence that is admissible, material and relevant. Even then, evidence that creates undue prejudice may nonetheless be ruled inadmissible.

The purpose of the rules of evidence are to permit the trier-of-fact to "get at the truth and properly determine the issues."

Admissibility is exclusively the responsibility of the judge while the findings of fact is exclusively the responsibility of the jury.

Duty to Review Evidence

The judge has a duty to exclude all inadmissible evidence, regardless of whether the issue is raised by counsel.

Onus

A judge may only base a decision on "evidence presented at trial, except where judicial notice may be taken" or any other findings permitted under the Code.

The party seeking to tender evidence must meet the necessary threshold requirements of admissibility before it can be considered.

Requirements Before Acceptance

For a trier-of-fact to receive evidence, the judge must be satisfied that the evidence is:

1. relevant,
2. material,
3. not barred by rules of admissibility, and
4. not subject to discretionary exclusion.

Once relevance and materiality is established, the evidence is admissible except where captured by an exclusionary rule.

While the rules of evidence always apply to criminal matters, courts are entitled to be flexible with the evidence rules in order to "prevent miscarriages of justice."

Objection to Acceptance of Evidence

On application to exclude evidence, counsel should be required to "state with reasonable particularity the grounds upon which the application for exclusion is made."

Barring "unusual and unforeseen circumstances" any objections to the admission of evidence must be "taken before or when that evidence is tendered, not afterwards." Unusual circumstances "do not include previously known yet unpursued Charter applications or a change in counsel."

Consent to Admit

The existence of consent between the parties to admit evidence will generally the judge to accept the evidence irrespective of its lawful admissibility unless it impacts trial fairness.

Defence Evidence Favoured

The courts should be reluctant to use exclusionary rules to prevent the accused from adducing evidence as it may support the defence.

The standard for exclusion of defence-led evidence is more demanding as it uphold the "fundamental tenet of our justice system that it is generally better to produce an inaccurate acquittal than a wrongful conviction."

Appellate Review

The admissibility of evidence is a question of law and is reviewable on a standard of correctness. Admission of irrelevant or otherwise inadmissible evidence may be an error of law.

Statutory Source of Rules

Provincial Laws of Evidence

How applicable

40 In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings.

R.S., c. E-10, s. 37

– CEA

The effect of s. 40 should be apply to matters that are within provincial competence and does not extend to those matters of exclusively federal competence.

Relevance and Materiality

• Relevance and Materiality

Rules of Admissibility

Courts must only consider admissible evidence. Where evidence is relevant and material the evidence should be admitted unless their exclusion is justified.

The "modern trend" has been to admit any evidence that is relevant and probative— subject to the recognized exclusions and exceptions—and allow the trier of fact to determine the weight to a particular piece of evidence.

Admissible evidence must have at least "some probative value."

Real evidence that has been proven to be relevant and material are prima facie admissible regardless of whether the investigative conduct to seize the evidence was lawful or not.

Much of the entirety of the rules of evidence concerns the question of what is admissible evidence. As such, admissibility of evidence can be better understood as evidence that is not prohibited by exclusionary rules. Frequently encountered rules of exclusion include:

1. Witness competence
2. Hearsay
3. Opinion
4. Character
5. Conduct on occasions separate from the offence
6. Illegally obtained evidence

Discretionary Exclusion of Evidence

In addition to the application of specific rules exclusionary rules of evidence, there is a residual common law discretion to exclude any evidence where the prejudicial effect of the evidence outweighs the probative value.

Procedure

Whenever evidence is tendered, a judge may ask counsel for the purpose of tendering the evidence and counsel should give a response.

See Also

• Analyzing Testimony
• Standard of Proof