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MEANS OF PROOF (TESTIMONY (CML (🙉 Hearsay Rule: Hearsay is an out-of…

- - - - ✨ Starr & Khelawon [Exceptions & Principles - Reliability & Necessity]:
        
        Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place (Starr);
        
        A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principle approach. The exception can be modified as necessary to bring it into compliance;
        
        In '"rare cases," evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular case;
        
        If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
        
        Fulfilling reliability: a) show there is no real concern about whether the statement is true or not because of the circumstances in which it came about; b) show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested.
      - 🔫 Subramaniam [Fact not Contents' Truth]: Evidence of a statement made to a witness by a person who was not himself called as a witness is not hearsay evidence and is admissible when it is proposed to establish as evidence, not the truth of the statement, but the fact that it was made.
      - 💭 Starr [Particular Exceptions - State of Mind/Present Intentions - Prior Identification]:
        
        The “state of mind” or “present intentions” exception permits the admission of statements of intent or of other mental states for the truth of their contents and also, in the case of statements of intention in particular, to support an inference that the declarant followed through on the intended course of action, provided it is reasonable on the evidence for the trier of fact to infer that the declarant did so;
        
        Under the “prior identification” exception, prior statements identifying or describing the accused are admissible where the identifying witness 1) identifies the accused at trial, or 2) is unable to identify the accused at trial, but can testify that they previously gave an accurate description or made an accurate identification.
      - 📜 List of Exceptions: a) res gestae (fact that spoken - not for truth of content); b) dying declaration; c) information provided to doctor/caregiver about health; d) to prove statement was made at particular time; e) prior inconsistent statements; f) present intention; g) statements against one's own interests; h) spontaneous utterances; i) admissions/confessions; j) co-conspirators' statements; k) agents against principals; l) land documents; m) family records; n) business activity records; o) commercial reports; p) property documents; q) public records.
      - 👠 Bradshaw [Elaboration of Reliability]: Dangers of hearsay can be overcome by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Substantive reliability is established when the statement is unlikely to change under cross examination. To determine whether substantive reliability is established, the trial judge can consider the circumstances in which the statement was made and evidence that corroborates or conflicts with the statement. To determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:
        
        Identify the material aspects of the hearsay statement that are tendered for their truth;
        
        Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
        
        Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
        
        Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
    - - 💵White Burgess v. Haliburton [Expert Impartiality - Step 4 Mohan - Probative Value] Expert impartiality may be challenged at two points in the admissibility analysis.
        First an expert that is obviously biased will fail on the fourth step in Mohan (qualifications) because one of the qualifications to serve as an expert witness. Therefore, an expert that refused to give an unbiased opinion should be excluded on those grounds. However, even if the expert is retained by a party to the litigation, or if the expert shows signs of bias, they should only be excluded if they outright refuse to act impartially.
        Second the judge decides whether the probative value of biased expertise nevertheless justifies cost and risk of distorting the proceedings. Again, this goes to threshold admssibility.
        Once the judge is satisfied that this threshold is met, she is still permitted to allow the expert evidence and accord it very little weight in the final decision.
      - 🔨Kon Construction v. Terranova [Technology - No Need of Understanding] When an expert relies on computer software to inform his opinion, he does not need to be able to explain how the program works in order to draw conclusions, unless the program favours one kind of statistical modelling over another, in which case the expert may be required to defend his reasons for programming it one way or another. These questions should go to reliability and weight, not to admissibility.
        When an expert relies on data compiled by other people, such as technicians or scholars, his testimony does not become hearsay. We expect experts to have studied other authorities.
        P.S. This case also mentions that records kept in the ordinary course of business are an exception to the hearsay rule.
      - 🙅‍♀️R. v. JLJ [Disposition Evidence - Novel Science] in which an expert testified that the accused was not the kind of sexual deviant who would assault a child.
        Rule Regarding "Disposition Evidence": Typically, you cannot lead evidence that a person is a "type of person" except if you are aiming to show that they belong to a distinctive group. In order to testify that a person belongs or does not belong to a "distinctive group," the expert must rely on a standard profile:
        
        Standard in the sense that it is sufficiently abstracted from the general population to be a freestanding category, and not a "type" compiled on an ad hoc basis for the purposes of the litigation.
        
        Profile in the sense that the expert must be able to articulate with workable precision what exactly differentiates the group.
        
        [Novel Science Rule]: When faced with a novel method, the court must consider:
        
        Whether the theory can be, and has been, tested.
        
        Whether the theory has been published and peer-reviewed.
        
        The known or potential rate of error or the existence of standards
        
        Whether the technique has been generally accepted (this is the US approach).
      - 🙅‍♀️ R. v. Lavallée [Expert Evidence based on Hearsay] in which an expert describes "battered woman syndrome" on the basis of interviews with the accused.
        Rule: Statements made in interviews are hearsay, and are presumptively inadmissible for the purposes of proving their contents. However, the expert's opinion is admissible, and the jury should be very carefully instructed on the difference.
        
        Expert evidence based on hearsay is admissible if it is relevant.
        
        The hearsay is admissible as evidence of the information the expert used to form his opinion, but not of the contents of the hearsay.
        
        The trier of fact should take into account, in weighing the evidence, that the opinion is based on hearsay.
        
        Before any weight can be given to an expert's opinion, the facts upon which it is based must be proved to some extent. Not every single fact, but enough.
  - - - 👨‍🔬 Expert Evidence
        [When Admissible] Expert evidence will be admissible subject to the rules set out in Mohan, White Burgess, Kon Construction, LJL, and Lavallée etc.
        [When not Admissible]
        It will not be admissible if it is 1) a simple question of fact, 2) a question of law 3) an opinion on the final question, or 4) if there are concerns about the credibility or qualification of the expert. See the Common Law Section for these Rules
        
        👨‍🔬Weight of Expert Evidence JurisClasseur notes the following elements to consider in evaluating the weight that should be given to expert evidence: 1) Quality of reporting 2) Attitude in the presentation of report (i.e. does the expert avoid jargon, does he obscure findings with acronyms etc.) 3) Methodology and personal efforts (did the expert visit the site? did he interview the parties?) 4) Does the expert opine on a specific point or on the entirety of the dispute? 5) Does the expert have a relationship with either of the parties (See CML Jurisprudence) and 6) Does the expert opine on issues outside of his expertise?
    - - Promutuel Drummond - Hearsay Exception - Reliability - ⚖️ 2871 CCQ creates a new, large, and sui generis exception to the hearsay rule, allowing sufficiently reliable testimony to be admitted. This is necessary if statements were made a long time ago and a witness can't remember. This exception is subject to the trial judge's discretion. [Demonstrates shift away from CML evidence.]