Category Archives: Evidence

When Should Judicial Discretion Trump Expert Testimony?

By: Erin Sheley

PDF Version: When Should Judicial Discretion Trump Expert Testimony?

Case Commented On: R v Clark, 2016 ABCA 72 (CanLII)

In Regina v Clark the Alberta Court of Appeal reinforced the principle that trial courts should enjoy broad discretion in making evidentiary decisions. On the other side of the scale in this particular case was the great problem of ensuring the accuracy of witness identifications when they are the primary basis for conviction. In the United States at least, 70% of exonerations obtained through DNA evidence occurred in cases involving eyewitness misidentifications (see data collected by the Innocence Project, available here).

Clark involved a trial by judge of a bank robbery case. During the crime the suspect had partially obscured his face with a hood and a hat pulled down over most of his features (at paras 3-4). At trial, the Crown relied on the testimony of three eyewitnesses, and in particular that of one woman who had stood about 5-6 feet away from him at the bank counter and glanced at him several times during the robbery at para 54). Several other witnesses identified a photograph of the robber taken from the security camera as an individual who went by the street name “Lips,” a name by which the accused had identified himself to a police officer prior to the robbery (at para 51).

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Observations on the Fact/Opinion Distinction in Expert Opinion Evidence

By: Michael Nesbitt

PDF Version: Observations on the Fact/Opinion Distinction in Expert Opinion Evidence

Case Commented On: Dow Chemical Canada ULC v Nova Chemicals Corporation, 2015 ABQB 401 (CanLII)

This decision of the Court of Queen’s Bench concerns the admissibility of evidence given by a “lay witness” at trial and whether that evidence falls within an exception to the general rule that such a witness cannot give opinion evidence.

A central issue at trial was whether Nova failed to run at maximum capacity the ethylene production facility (E3) that it jointly owned with Dow. Nova’s defence was that there was a shortage of ethane – “the feedstock for E3” (at para 3) – which in turn meant that it could not run the E3 facility at full capacity.

Nova stated that it would call employees at E3 to offer testimony both about how E3 was operated and about the mechanical and operational constraints that may have limited the ability for E3 to run a full capacity. In other words, Nova wanted the employees to testify about the constraints they faced and why these would have prevented them from failing to run at maximum capacity. The dispute relevant to this comment arises out of the questioning of the first witness, a Mr. Ron Just, who was the optimizing engineer at E3 for much of the period at issue in the trial, and whether his testimony constituted fact evidence or inadmissible opinion evidence.

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Some Observations about Evidence in the Electronic Age

By: Shaun Fluker

PDF Version: Some Observations about Evidence in the Electronic Age

Case Commented On: Kon Construction v Terranova Development, 2015 ABCA 249

This Court of Appeal decision concerns a dispute over the performance of a contract. Terranova retained Kon Construction to grade lands for residential development. The work was to be done in 2005 but was delayed into 2006 and the agreement went sour. Kon Construction filed a claim for unpaid invoices and Terranova counterclaimed that Kon Construction breached the agreement on a number of grounds thereby allowing it to retain another firm to complete the grading work. At trial Madam Justice B.A.Brown ruled that Terranova did not have grounds to terminate its contract with Kon Construction and was therefore liable for a portion of the unpaid invoices which she found had been improperly inflated (Kon Construction v Terranova Development, 2014 ABQB 256). The issues on appeal were primarily on the admissibility of certain electronic records.

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Alberta’s Alcohol-Related Administrative Licence Suspension Regime: The Constitutional Challenge and the Challenge to the Evidence

PDF Version: Alberta’s Alcohol-Related Administrative Licence Suspension Regime: The Constitutional Challenge and the Challenge to the Evidence

Case commented on:  Sahaluk v Alberta (Transportation Safety Board), 2013 ABQB 683

Several applicants are challenging the constitutionality of Alberta’s Alcohol-Related Administrative Licence Suspension Regime, which requires those charged with impaired driving-related offences to surrender their drivers’ licences to police and suspends them from driving until the charges are disposed of (when a conviction may result in further driving prohibitions under the Criminal Code, RSC 1985, c C-46, with no credit given for the provincial suspension). This regime is found in section 88.1 of the Traffic Safety Act, RSA 2000, c T-6, which is being challenged on the basis that it violates the applicants’ rights under sections 7, 8 and 11(d) of the Canadian Charter of Rights and Freedoms, and is in pith and substance criminal law and therefore ultra vires the Province of Alberta. In this preliminary application, the Registrar of Motor Vehicle Services sought an order striking out parts of three affidavits filed on behalf of the applicants on the basis that they contained “frivolous, irrelevant or improper information” contrary to rule 3.68(4) of the Alberta Rules of Court, Alta. Reg. 124/2010.

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A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Cases Considered:  J.S. v. D.J.K., 2009 ABQB 426.

PDV Version: A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Justice Donald Lee is a prolific author of judgments posted to the Alberta Courts website, and one of the only Alberta judges to post decisions made under the Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) (see my earlier post Family Violence Cases in Alberta: A Snapshot). In one of his recent decisions, Justice Lee helpfully clarifies the evidentiary requirements for hearings to confirm emergency protection orders made under the PAFVA.

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