R v Bulldog (ABCA): Admissibility of video recordings

By |2017-09-28T23:51:43-06:0001/10/2015|Evidence, Video|

CCTV camera In R v Bulldog, 2015 ABCA 251, the Alberta Court of Appeal provided useful guidance on the evidence necessary to introduce video recordings at trial. The court's reasoning can likely be applied to other pieces of demonstrative evidence, such as audio recordings and photographs. The case concerned an inmate-on-inmate assault which had occurred in an Edmonton correctional institution. More than one copy of a video recording of the  from a CCTV system in the institution had been made. The precise path by which the recording tendered by the Crown in court had been made was unclear to any witness who testified. The Crown did, however, call a witness who had seen the footage at an earlier time and testified that the recording was consistent with what they had earlier viewed. Other witnesses described the assault and their evidence provided details which were consistent with the recording that was tendered (though these eyewitness had not been shown the video). On the appeal, defence counsel argued, based upon R v Nikolovski, 1996 CanLII 158 (SCC), that the recording had not been sufficiently "authenticated". They submitted [...]

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R v Redford (ABCA): Service of certificate of analyses is to be proven on a balance of probabilities

By |2017-09-28T23:56:41-06:0029/10/2014|Evidence, Impaired Driving, Procedure and Practice, Standard of Proof|

The Criminal Code requires the Crown, where it seeks to enter a certificate of analyses of breath samples as evidence at trial, to prove that a copy of the certificate was given to the accused along with notice of the Crown's intention to rely upon the analyses: Criminal Code, s. 258(7). Until this decision, R v Redford, 2014 ABCA 336, there were conflicting lines of authority in Alberta as to whether proof of service of the certificate of analyses and the notice of intention to tender that certificate at trial was required to be proven on a balance of probabilities or beyond a reasonable doubt. The three member panel divided on this issue in Redford, delivering majority and minority reasons for judgment reserved. The majority decision was written by Justice Paperny, who held that the Crown's obligation is to prove service of the certificate and notice beyond a balance of probabilities, and not on the more onerous standard of beyond a reasonable doubt. Justice Paperny reasoned as follows: In general, though the ultimate burden of the Crown is to prove [...]

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R v Legge (ABCA): Common law spouses not compellable to testify against each other

By |2017-09-29T00:17:15-06:0008/07/2014|Evidence, Procedure and Practice, Spousal Testimony|

At a trial on several charges, the Crown had sought to call the common law spouse of the accused. The accused's spouse was intended to be the Crown's main witness. The spouse did not wish to testify. The trial judge ruled that the traditional common law rule that provided that married spouses were not compellable to testify against each other was discriminatory against those who lived in common law relationships comparable to that of married couples, and ought to be modified to provide protection to common law spouses as well. Given that the intended key witness could not be called, the Crown called no evidence and an acquittal was entered. The Crown appealed the acquittal, arguing that the trial judge's ruling on the non-compellability of common law spouses was in error. Madam Justice Paperny, writing for a unanimous panel of the Alberta Court of Appeal in a reserved judgment (2014 ABCA 213), concluded that the common law rule against compellability of spouses to testify against each other should be extended to common law spousal relationships, [...]

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R v Youvarajah (SCC): Admission of an agreed statement of facts under the principled exception to hearsay refused

By |2016-11-16T20:46:26-07:0025/07/2013|Evidence, Hearsay|

The Supreme Court of Canada released a decision today on the admissibility of an agreed statement of facts for the truth of its contents at trial. The accused and a youth, D.S., were charged separately in a homicide investigation. D.S. pleaded guilty to second degree murder. An agreed statement of facts was prepared, which he and his counsel signed in court. In the agreed statement of facts (“ASF”), D.S. implicated Youvarajah (“Y”) in the murder as well. At the trial of Y, D.S. partially recanted. D.S. continued to acknowledge he had been the shooter, but now said Y had not planned the murder and obtained the murder weapon, as was stated in the ASF. Instead, D.S. testified that the gun was his own and he shot the victim because of the way he was talking. At trial, the Crown had been able to cross-examine the accused on his prior inconsistent statement to some extent, although that examination was somewhat curtailed by concerns relating to solicitor-client privilege between D.S. and his counsel at his trial. There [...]

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