Technology and the rules of evidence: part 2

By Kirsten McMahon, Associate Editor

In the second instalment of a series exploring the impact of technology on rules of evidence, Toronto family lawyer Gary Joseph provides an overview of some of their key principles.

The rules of evidence can be quite complex but are best understood by reference to their underlying principles, Toronto family lawyer Gary Joseph tells

“The rules of evidence are designed to preserve the integrity of the fact-finding process and are meant to ensure that all relevant material is before the trier of fact, while also ensuring that the process is not tainted by unduly prejudicial or unreliable evidence,” says Joseph, managing partner of MacDonald & Partners LLP.

In some instances, he says these principles give way to other considerations meant to preserve the integrity of the process — such as solicitor-client, settlement, or litigation privilege — leading to the exclusion of relevant evidence.

As a starting point, however, he says the admissibility of evidence is therefore governed by three questions:

  • Is it relevant?
  • Is it subject to an exclusionary rule?
  • Should it be excluded using the court’s residual discretion to exclude evidence that is unduly prejudicial, misleading, or inefficient?

“For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other,” Joseph says. “One fact is not relevant to another if it does not have real probative value with respect to the latter.”

Not all relevant evidence will be equally within reach of both parties, he says, noting that it is often exclusively possessed or controlled by one party. In those cases, the other party may seek production of that evidence through the discovery process.

“Much of the case law relating to disclosure in family law relates to financial disclosure and the courts have repeatedly emphasized the importance of making full and frank financial disclosure in family law,” Joseph says.

“The discovery process must be guided by the rules of evidence, such that neither party is entitled to the production of irrelevant or privileged material. Neither party is entitled to a fishing expedition,” he adds.

Joseph says the evidentiary record in any oral hearing will consist of both the viva voce evidence of witnesses and any documents that are admitted through them.

“While agreements can be reached between parties or counsel with respect to the admission of documentary evidence, documents must generally be entered through witnesses who are able to authenticate them,” he says, adding this requirement has been codified in s. 31.1 of the Canada Evidence Act with respect to the authentication of electronic documents.

“Simply put, authentication requires oral testimony with respect to how a document was produced, how it has been kept and how it has or has not been modified or altered,” Joseph says.

Because the rules of evidence were designed to facilitate the fact-finding process, numerous principles have been developed to promote efficiency, including the rule against prior consistent statements, the collateral fact rule and the concept of judicial notice, he says.

“An out of court statement made by a witness before they take the stand that is consistent with the testimony they give while on the stand is considered a ‘prior consistent statement’ and is generally inadmissible,” Joseph says.

The collateral fact rule, he says, limits a party’s ability to call rebuttal evidence to contradict a witness’s evidence on a collateral issue (i.e. an issue that relates to the witness’s credibility rather than the merits of the case).

Where the trial judge applies the collateral fact rule, he or she is using discretion to exclude evidence for trial efficiency reasons, Joseph says.

“In family law litigation, determining what is collateral can be difficult, particularly in the holistic analysis of parenting claims. However, as a general rule of thumb, where the evidence is offered only to disprove a statement made by another witness and is not independently relevant to any of the claims made, counsel should turn their mind to potential violations of the collateral fact rule,” he says.

As with the rule against prior consistent statements, numerous exceptions to the collateral fact rule have developed through the case law.

Another evidentiary rule that Joseph says bears mentioning is the so-called ‘best evidence rule,’ which requires the use of original documents where possible.

He says while several authors have described this rule as antiquated, best-evidence rule as they relate to electronic documents, have been formalized by provincial statutes.

Stay tuned for part three where Joseph will delve into hearsay evidence.

To read part one, click here.

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