Rules of Evidence Explained for Canadians with Law Clerk Training

If you’re interested in becoming a law clerk, one thing you’ll definitely want to know about law is how rules of evidence work. The regulation of evidence in court cases is based on both federal and provincial law. In Ontario, most civil proceedings are governed by both Ontario’s Evidence Act and the Rules of Civil Procedure. Federally, they are regulated by the Canada Evidence Act.

As a law clerk, you’ll work alongside lawyers and judges and sift through research and documents before trials to give a judge the best possible foundation to proceed with. That’s why it’s important to know what’s required for evidence to have a significant impact, as there can be subtle differences between how they apply to each case.

Rules of evidence are important to learn, especially as you could work under either a federal or provincial court of law, but what are the most significant things about it? Here’s a rundown of what you need to know if you’re seeking a career as a law clerk.

Students in Law Clerk Courses Should Know All Evidence Counts Unless the Law Says Otherwise

Students earning their law clerk diploma will learn about Canada’s legal system and how certain procedures go, especially as laws can change over time. It’s worth mentioning that a basic principle of evidence law is that all relevant evidence is admissible unless excluded for legal reasons. The evidence needs to not only be relevant (meaning to have an effect on the facts’ probability) and material, but also not be vulnerable to exclusion by rules of admissibility.

Courts also reserve the right to exclude any evidence based on probative value versus its prejudicial effect (or, how a piece of evidence can prove something versus undermining the court’s ability to find the truth), as the latter must outweigh the former to avoid impacting the trial’s fairness. The jury having strong emotional reactions to the evidence, taking too long with it, or any other unsuitable use could affect the court’s perception of the evidence’s importance.

Students working as a law clerk after their program will learn that probative value must outweigh prejudicial effect
Students working as a law clerk after their program will learn that probative value must outweigh prejudicial effect

Certain Types of Evidence are Typically Excluded

Since many judges will ask law clerks for counsel when trying to reach a decision, remember that there are three prominent examples of inadmissible evidence: hearsay, character evidence, and opinion evidence. Hearsay is where out-of-court statements are presented in court to prove a truth. This type of evidence is usually considered unreliable, due to the risk of leading to a decision based on secondary evidence, or the individual making the statement not being cross-examined, among other reasons.

Character evidence relates to the reputation, personality, and/or behaviour of the accused prior to the alleged offence. Lastly, opinion evidence is where a witness testifies based on beliefs or inference, rather than knowledge of those facts — though they can provide inferences if deemed useful. This is divided between expert opinion, and lay opinion (the opinion of a non-expert). As your law clerk program will teach you about ethics and conducting legal research, knowing what can’t be used as evidence is just as important as knowing what can.

Certain types of evidence are usually inadmissible, but exceptions can be made
Certain types of evidence are usually inadmissible, but exceptions can be made

Exceptions Can be Made Where Evidence is Concerned

One of your main job responsibilities after completing your law clerk training will be to extensively research laws that are relevant to your case. It’s important to remember that there are nuances with how laws apply to certain cases — for instance, there are examples of admissible evidence in spite of the aforementioned rules.

With hearsay, these include where the evidence is trustworthy and needed to prove a fact, where inconsistent statements were made by the witness, or admissions made by the accused. The Ontario Evidence Act also says that documents made from an ordinary course of business can be used even if they would usually fall under hearsay.

Exceptions can also be made for the admissibility of character evidence if there’s evidence of bad character, which can be used as circumstantial proof of probative value trumping prejudicial effect. With opinion evidence, exceptions can be given in cases where the opinion requires no specific expertise — including the condition of objects, of a person, or identifying individuals in photos or a video recording.

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