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Evidence - Subjects Table of Contents (A-E)
GENERAL
Evidence Cases - General
ADMINISTRATIVE
This is a link to the 'evidence' subject in the Administrative Law topic. There are evidence issues specific to administrative law, which can be viewed as 'tribunal' law - like the LTB, the LAT, the OLRB and more.
Administrative - Evidence [#Administrative]
ADMISSIBILITY
Evidence Cases - Admissibility
Evidence Act (Ont), 6. Witnesses, not incapacitated by crime, etc.
Evidence Act (Ont), s.7 Admissibility notwithstanding interest or crime
Evidence Act (Ont), 8. Evidence of parties
ADMISSIONS
Evidence Cases - Admissions (includes Confessions) (+)
Evidence Cases - Mr.Big Confessions
Evidence Cases - Adoptive Admissions
ADULTERY
Evidence Act (Ont), s.10 Evidence in proceedings in consequence of adultery
ADVERSE INFERENCE/PRESUMPTION
'Adverse inferences' are negative presumptions that may sometimes be made when a party fails to call evidence that is logically available. There is a related sub-topic of 'inferences' (see below) which deals with conclusions that may be inferred from known facts.
Evidence Cases - Adverse Inferences (+)
Evidence Cases - Failure to Adduce
AFFIDAVITS
Evidence Cases - Affidavits
Evidence Act (Ont), s.46. Formal defects, when not to vitiate (1/2)
Evidence Act (Ont), s.47. Affidavit sworn before solicitor for a party
See related topics:
Civil Litigation Cases - Affidavits [#CIVLIT]
Criminal Cases - Affidavits [#CRIM]
ALIBI
Evidence Cases - Alibi
AMPLIFICATION
'Amplification' of court documents can be permitted to correct minor, technical errors.
Evidence Cases - Amplification
APOLOGY ACT
The Apology Act (AA) is a statutory restriction of common law 'admission' doctrine [see above], where - otherwise - an apology can be admitted in evidence and interpreted as, or towards, an admission of liability or fault. This is mostly relevant to tort law, though it can bear on contracts and insurance law as well. There are AA exceptions for criminal law, POA and limitations acknowledgements. [#insurance] [#limitations].
Evidence Cases - Apology Act
Apology Act, 2009 (AA) (Ont), s.1 Apology [definition]
Apology Act, 2009 (AA) (Ont), s.2 Effect of Apology on Liability; Inadmissibility of Apology; Exceptions
Apology Act, 2009 (AA) (Ont), s.3 AA Exception for Criminal and POA Proceedings
Apology Act, 2009 (AA) (Ont), s.4 AA Exception for Limitations Act Acknowledgements
APPLICATION
'Application' is the legal issue of what law a statute applies to. For example, EA (Ont) s.2 holds that "(t)his Act applies to all actions and other matters whatsoever respecting which the [SS: Ontario] Legislature has jurisdiction", which means that it applies to Ontario statutory law and procedures governed thereby.
Evidence Act (Ont), s.1 Definitions ['action']
Evidence Act (Ont), s.2 Application of Act (Application)
ARTIFICIAL INTELLIGENCE
Evidence Cases - Artificial Intelligence
ASSERTIVE CONDUCT
Evidence Cases - Assertive Conduct
ASSUMPTIONS
Evidence Cases - Assumptions (+)
AUDIO RECORDINGS
Evidence Cases - Audio Recordings
AUTHENTICATION
'Authentication' refers to proving that a document is authentic. Except for cases of suspected forgery this is often largely a formality, attempting to substitute copies for the originals as a matter of convenience. In most modern litigation all documents are admitted by the parties on consent as to authenticity, which is normally conducted in pre-trial discussion with counsel. Related law here is that of Business Records (see below) and Electronic Records (see below) - esp. the Electronic Commerce Act, 2000.
Evidence Cases - Authentication
Evidence Act (Ont), s.56 Where no attestation required
Evidence Act (Ont), s.57. Comparison of disputed writing with genuine
BANK RECORDS
Evidence Act (Ont), s.33(1-6) Books and records of banks
Evidence Act (Ont), s.34. Prints from photographic film
BILLS OF EXCHANGE [#BILLS OF EXCHANGE]
These is a separate topic: 'Bills of Exchange', though it is not yet well-elaborated.
Evidence Act (Ont), s.40. Protests of bills and notes
Evidence Act (Ont), s.41. Effect of certain certificates of notaries
BOOTSTRAPPING
Evidence Cases - Bootstrapping
BURDEN OF PROOF (also 'ONUS')
Evidence Cases - Burden of Proof
Evidence Cases - Onus of Proof
BUSINESS RECORDS
Evidence Cases - Business Records [EA s.35 (Ont)]
Evidence Act (Ont), s.35(1-5) Business records
Evidence Act (Ont), s.55. Proof of certain written instruments
CAPACITY
There is chronic confusion regarding the meaning of the legal terms: capacity, compellability and competency. Compellability is a legal term - if you are 'compellable' then you can be subject to a summons or similar procedure to require your attendence to witness in a legal proceeding. 'Capacity' is a primarily a mental health term - it refers to your ability to appreciate the implications of your diagnoses and treatment recommendations. 'Competency' is primarily a legal term - it refers to one's ability to give testimony and to make informed legal decisions, including but not limited to criminal matters .
Evidence Act (Ont), s.6 Witnesses, not incapacitated by crime, etc.
Evidence Act (Ont), s.14 Corroboration Required Where Party Incapable
CHILD WITNESSES
Evidence Cases - Child Witnesses
Evidence Act (Ont), s.18.1(1-3) Evidence of witness under 14
Evidence Act (Ont), s.18.2(1-2) Corroboration not required, witness under 14
Evidence Act (Ont), s.18.3(1-7) Videotaped testimony, witness under 18
Evidence Act (Ont), s.18.4(1-4) Special measures, witness under 18
Evidence Act (Ont), s.18.5(1-3) Support person, witness under 18
Evidence Act (Ont), s.18.6(1-2) Personal cross-examination by adverse party
CIRCUMSTANTIAL EVIDENCE
'Circumstantial evidence' is not direct evidence, but the result of applying rules of inference and deduction to other direct evidence. For instance, if we have videotaped evidence that the defendant entered into the park at 3am and left at 5am, that is 'circumstantial evidence' towards the conclusion that they committed an assault known to have occured in the park overnight.
Evidence Cases - Circumstantial Evidence (+)
COLLATERAL FACT RULE
The 'collateral fact rule' relates to impeachment of a witness, that is - casting doubt on their credibility through contradiction of their statements with known facts. The 'collateral fact rule' limits the issues that a party may be impeached on to those that are directly-related to central issues. For instance, if an essential issue in a case is the identity of the perpetrator you shouldn't be able to impeach them for lying about their income, but you should be able to impeach them for lying about the colour of clothes they were wearing at the time of the subject events.
Evidence Cases - Collateral Fact Rule
COLLOQUY
A 'colloquy' is a judge-counsel verbal exchange.
Evidence Cases - 'Colloquy'
COLLUSION
Evidence Cases - Collusion
COMPELLABILITY
There is chronic confusion regarding the meaning of the legal terms: capacity, compellability and competency. Compellability is a legal term - if you are 'compellable' then you can be subject to a summons or similar procedure to require your attendence to witness in a legal proceeding. 'Capacity' is a primarily a mental health term - it refers to your ability to appreciate the implications of your diagnoses and treatment recommendations. 'Competency' is primarily a legal term - it refers to one's ability to give testimony and to make informed legal decisions, including but not limited to criminal matters .
Evidence Cases - Compellability
Evidence Act (Ont), s.8(1-2) Evidence of parties and spouse
Evidence Act (Ont), s.11 Communications made during marriage
COMPETENCY
There is chronic confusion regarding the meaning of the legal terms: capacity, compellability and competency. Compellability is a legal term - if you are 'compellable' then you can be subject to a summons or similar procedure to require your attendence to witness in a legal proceeding. 'Capacity' is a primarily a mental health term - it refers to your ability to appreciate the implications of your diagnoses and treatment recommendations. 'Competency' is primarily a legal term - it refers to one's ability to give testimony and to make informed legal decisions, including but not limited to criminal matters .
Evidence Cases - Competency
Evidence Act (Ont), s.18(1-3) Presumption of competency
Evidence Act (Ont), s.1 Definitions ['spouse']
'CONFIRMATORY' EVIDENCE
Evidence Cases - 'Confirmatory' Evidence
COPIES, CERTIFICATION
Evidence Act (Ont), s.37. Proof of handwriting, when not required
Evidence Act (Ont), s.39(1-2) Copies of notarial acts in Quebec admissible
CORROBORATION
'Corroboration' is not a particular type of evidence, rather it describes the sequential calling of two (or more) pieces of evidence that support the same proposition. For instance, if one eyewitness identifies the defendant as being present in a certain place and time - and then a parking receipt does the same - then the parking receipt 'corroborates' their presence at the time and place. Sometimes statute law may require 'corroboration' before holding a fact as found [see: Evidence Act s.13 'Corroboration Required Where Estate Proceeding'].
Evidence Cases - Corroboration
COURT
Evidence Act (Ont), s.1 Definitions ['court']
CREDIBILITY
'Credibility' is probably the single most important principle of witness testimony: ie. is their testimony believable? Most credibility concerns revolve around intentional fabrication - but other factors such as the witness' eyesight, hearing, weather visibility and more can bear on it as well. See also The Criminal Law Notebook, by Peter Dostal: 'Credibility'.
Evidence Cases - Credibility (+)
CRIMINAL CONVICTIONS
It is generally accepted that proof of a prior criminal conviction may be called, obviously on the theory that criminals tend to lie more than non-criminals - sort of an categorical credibility 'impeachment'. While sometimes such evidence may be probative of the witness' credibility (eg. past convictions for fraud in a present securities regulation trial), in others it will be 'weighed' less or not at all (eg. past convictions for impaired driving in a theft trial).
Evidence Cases - Criminal Records (+)
Evidence Act (Ont), s.22. Proof of previous conviction of a witness
Evidence Act (Ont), s.22.1(1-3) Proof of conviction or discharge
DEMEANOUR EVIDENCE
'Demeanour evidence' (as I use the term here) means a witness' observations of the emotional state of a person that they are testifying about (ie. "He was angry at the time."). 'Witness demeanour' [a separate topic, see Witnesses (below)] means a witness' own demeanour while giving testimony.
Evidence Cases - Demeanour Evidence
DIRECT EVIDENCE
'Direct evidence' tends to refer to direct sensory evidence of a witness. It may be contrasted with other evidence concepts such as circumstantial evidence [which see, above].
Evidence Cases - Direct Evidence
DISCOVERY
Evidence Act (Ont), s.15 Use of examination for discovery of officer or employee of corporation at trial [#CIVLIT]
Below is the 'Civil Litigation' topic on the subject of Discovery.
Civil Litigation Cases - Discovery and Examinations Out-of-Court
DISCRETION
"The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.": Baker v. Canada (Minister of Citizenship and Immigration) (SCC, 1999), para 52.
Discretion - Evidence
DOCUMENTS
General
Evidence Cases - Documents
Courts of Justice Act (Ont), s.74 Destruction of court documents
Type of Documents
Evidence Cases - Official Documents
Public Documents Act (Fed)
EITHER/OR ADMISSION ERROR
Evidence Cases - Error of Either/Or Admission of Competing Evidence
ELECTRONIC RECORDS
Evidence Cases - Electronic Documents
Evidence Act (Ont), s.34.1(1-11) Electronic records
Electronic Commerce Act, 2000
International Electronic Communications Convention Act, 2017
EMBELLISHMENT
Evidence Cases - Embellishment
ESTATES
Estates - Corroboration
Evidence Act (Ont), s.13 Corroboration Required Where Estate Proceeding
Evidence Act (Ont), s.49. Effect of probate, etc., as evidence of will, etc.
Evidence Act (Ont), s.50. Proof in the case of will of real estate filed in courts outside Ontario
ESTOPPEL CERTIFICATE
Evidence Cases - Estoppel Certificate
EVIDENCE ACT (ONTARIO)
Ontario's Evidence Act (EA) applies to "all actions and other matters whatsoever respecting which the [SS: Ontario] Legislature has jurisdiction" [s.2 EA], which means Ontario statutes. All 60 sections of the EA have been 'split' topically across this Evidence topic.
Evidence Act (Ont)Reg 158/03 Certification of Recordings and Transcripts
EXAMINATIONS
This subject deals with discovery or examinations, sometimes taken in the course of civil litigation.
Evidence Act (Ont), s.48. Admissibility of copies of depositions
EXECUTION
Evidence Act (Ont), s.42 Proving titles under Small Claims Court executions
EXECUTIVE LEGAL OFFICER (ELO)
Evidence Cases - Executive Legal Officer (ELO)
EXHIBITS
Evidence Cases - Exhibits
Evidence Act (Ont), s.53. Registered instruments (under Registry Act)
Evidence Act (Ont), s.54. Filing copies of official documents
Evidence Act (Ont), s.56. Where no attestation required
Evidence Act (Ont), s.58. Where instruments offered in evidence may be impounded
Evidence Act (Ont), s.59. Evidence dispensed with under Vendors and Purchasers Act
EXTRINSIC EVIDENCE
'Extrinsic' evidence refers to things that are external or separate from the subject. It's corollary is 'intrinsic' evidence, which refers to inherent natural aspects of a subject (which see, above).
Evidence Cases - Extrinsic Evidence
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