Friday, November 23, 2007

I Spent Last Night with Evidence

We have a love/hate relationship right now, Evidence and I. We're never really sure where the other one stands.

Luckily, I've absorbed enough to recognize the controversy over the evidential burden that seems to be highlighted in this article:

Supreme Court reinstates conviction of landlord Grover by: Betty Ann Adam,
The guilty verdict was overturned when two of three appeal court judges ruled that a properly instructed jury could have found that Grover's conduct was equally consistent with the conclusion that he didn't know the inspection had not been done and simply thought it was crucial that the inspection records be in perfect order.
Looks like the evidential burden test meets the rule in Hodge's Case - although, from the article I can't tell if this case was only based on circumstantial evidence, so I don't know if the Court actually tried to apply the rule or if the Court was just using Hodge's Case language. There has been some debate about whether a certain Supreme Court of Canada case (Charemski) resurrects the rule in Hodge's Case - I wonder if in the body of the judgment, the SCC will explicitly deal with this (IF it was an application of the rule in Hodge's Case).
"Where the accused testified and offered an explanation for his or her actions, which the trial judge rejected, it was not open to the Court of Appeal to acquit on the basis or speculation about a different possible explanation of conduct that was flatly contradicted by the accused's own testimony," the decision, handed down Thursday, states.
I'll bet this case will be in the next round of Evidence casebooks. Of course, it will be interesting to read the actual judgment, since the media report could have gotten it wrong - hmmm ... once I get a minute to breathe, I'll have to take a look-see.

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