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Proving your Case

Your case to the court is presented through evidence. Evidence may be given by witnesses, including you, and by presenting materials to support your case, such as documents, diagrams and photos. It is the quality of your evidence that is important not the quantity. For example, it is usually not necessary to have more than one witness testify to the same facts.

Some evidence may also be presented by agreement. This can happen when certain evidence is not in dispute. For example, both parties may agree on what work or services were requested and the time frame for the work or services, even if they disagree about the quality. Determining which facts can be agreed upon can be discussed at the Case Management Conference for Small Claims cases and at the Pre-Trial Conference for Queen’s Bench cases. Agreed facts can also be discussed at the start of a trial with the judge inviting the parties to indicate their agreement regarding the filing of routine evidence.

The basic rules about evidence in court cases are that it must be...

  • Reliable
  • Relevant
  • Sworn
  • Facts, not Opinions
  • Based on Personal Knowledge

The judge will determine whether the evidence you propose to submit is relevant and reliable. Relevant means that it would affect the outcome of the case. For example, you may not be allowed to call another dissatisfied customer of the defendant because this would not be considered relevant to your case against the defendant.

Reliable means that the evidence has credibility or is believable. Second-hand evidence is called "hearsay" and is generally not allowed because it is not as reliable as first-hand evidence. If a witness tries to testify about what someone, other than the other party, said about the case it is hearsay. If a document is presented by someone other than the person who created the document this is also hearsay. Hearsay evidence may be admitted if the judge has found that it is both necessary and reliable. Questions about hearsay evidence should be discussed at the Case Management Conference (Small Claims cases) or Pre-Trial Conference (Queen’s Bench cases.) If the judge rules that your evidence cannot be presented because it is not relevant and/or reliable you must accept that ruling and move forward.

Best Evidence

Courts can be faced with conflicting evidence about what has happened in a particular case. Some of the things that a court might consider in deciding between different versions of events include...

  • Did the person giving the evidence contradict themselves by giving different accounts at different times?
  • Are there details to back up what the person is saying?
  • Is the person giving the evidence being evasive – i.e. attempting to avoid saying anything about certain issues?
  • Does the person giving the evidence have a stake in the outcome of the case? It is common for the person bringing the case to be their own witness, and usually it is necessary, but evidence from someone who is a neutral party can be very helpful.

Sworn Testimony

Any person giving evidence to the court must swear or affirm to tell the truth. This helps to ensure that the evidence before the court is reliable. The difference between an oath and an affirmation is that an oath refers to God. People can choose to take an oath or an affirmation, depending on their personal beliefs. It is a criminal offence, called perjury, to knowingly make false statements after taking an oath or affirming to tell the truth. Witnesses who appear in court will be asked to swear an oath or affirm to tell the truth before they begin their testimony.

Affidavits

For some cases the court will make their decision based on written testimony in the form of an Affidavit. Affidavits must be signed in front of a Commissioner for Oaths or a Notary Public who will ask the person signing to take an oath or affirm that the contents of the Affidavit are true. The Commissioner for Oaths or Notary Public does not consider the content of the Affidavit or provide any advice about the case. You can look in the yellow pages to find a Commissioner for Oaths or a Notary Public. They will charge a fee for their service. You can also take your court documents to the courthouse where the case will be heard and staff at the court house will provide this service for free.

Exhibits to Affidavits

If your case is being decided on Affidavit evidence you can attach documents to your Affidavit to support what you are saying. For example, you might attach a receipt to support what you have said about the cost of an item or a service.

Remember evidence is sworn testimony. If you attach, for example, a letter from someone that supports your case that letter is not evidence because the person did not swear it is true. If someone has something to say that supports your case either have them prepare their own Affidavit or call them as a witness.

Introduce the document in your Affidavit. This means you state what it is and that it is attached as an Exhibit.

Letter the Exhibits starting with A. So for the first document you attach you would say it is attached as exhibit A, for the second exhibit B etc.

Do not attach the same document more than once. If you refer to it again use the same letter you used when you first introduced it.

Mark the documents with the letter and bring them when you swear the Affidavit.

Giving Evidence

Evidence to support your case is either given by Affidavit or through testimony as a witness in court, depending on the circumstances. In both cases the following are important points to keep in mind:

  • Tell the truth – It is a criminal offence to knowingly make a false statement.
  • Base your statements on personal knowledge - if you are a witness you can generally only testify about things you have personal knowledge of, not about things you heard about from someone else. In an Affidavit you can include things the other party told you. In an Affidavit you can also, in some cases, include something that someone other than the other party has told you. You must say in your Affidavit that your information is based on what someone else told you and you must believe the information to be true. You must also say why that person cannot make their own Affidavit setting out this information.
  • Include facts not opinions – Affidavits and witnesses provide the court with information about what has happened not about what the persons thinks or feels about what happened. If your Affidavit contains arguments or speculation the court can refuse to consider it. If you start arguing your case when you are being a witness the other side can object.
  • Include all the relevant facts and don’t include information that is not relevant – If you include facts that are not relevant the court can refuse to accept all or part of your Affidavit. If you testify about things that are not relevant the other side can object.
  • Be precise – avoid generalities and use names and exact dates. For example say “On November 1, 2018 John Smith did not meet me at the arranged time to discuss how he could repair the work he had done” instead of something like “John Smith often missed arranged appointments.”
  • Make it easy to understand – when testifying or making an Affidavit use simple language and short sentences. Organize the facts (chronologically is usually best) so that your story is easy to follow.
  • Keep it as short as you can – include all the relevant information without rambling or repeating.

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