Canadian Criminal Evidence/Real Evidence

Introduction

Real evidence consists of all tangible evidence, physical objects such as , tape recordings, computer printouts or photographs. Real evidence, as all other evidence, must first be relevant. Secondly, it must be authentic.

Authentication is often proven by having witnesses identify the object and verify its authenticity. The leading case on authentication of real evidence is in R. v. Parsons. The case hinged on a wiretap whose lawfulness was in question. The issue was handled in a voir dire. However, on appeal the Court said that an issue for the trier of fact to determine not the trial judge. The judge must only determine if the evidence has met the minimum statutory requirement.

There is no fixed formula for submitting real evidence, however, it is recommended that a procedure for submitting evidence be followed such as:^[1]

call a witness with personal knowledge of the object;
ask the witness to describe the object before showing it to the witness;
allow the witness to examine and identify it as genuine; and
ask that the object be entered as an exhibit, with the appropriate stamp applied by the clerk.

Demonstrative Evidence

Demonstrative evidence includes charts, models, and experiments. They are used as tools to assist the judge in their understanding the of case. They are not "real evidence" is the strictest meaning as they are not objects that form part of the incident.

With demonstrative evidence, there is no need for the formal authentication. Instead, the only standard is that of whether the evidence is relevant and whether it is an accurate representation of what it is supposed to depict. The primary consideration of the court is whether the item can assist the court or whether it warps or distorts the fact-finding process.^[2]

↑ "Evidence: Principles and Problems" by Delisle, et al. at p. 299
↑ Delisle, Stuart, Tanovich, "Evidence: Principles and Problems" 7th Ed. at p. 301

Experiments

Experimental evidence is admissible as demonstrative evidence.

Where the experimental evidence is relevant and materials it will tend to be admitted, unless the discretionary exclusion rule is applied.^[1]

If the evidence requires inferences using special knowledge, the adducing party will need to admit it as expert evidence.^[2]

The courts generally are very cautious about allowing demonstrative evidence in the form of in-court experiments as the environment of a court does not allow for a good duplication of the events at issue.^[3] This includes video re-enactment performed by officers.^[4]

As a general rule, the relevancy and admissibility will depend on the degree of accuracy the recreation is to the original event.^[5]

Experiments in more controlled situations are more likely to be admitted. A ballistics expert who takes a firearm used in an alleged shooting can be permitted to perform tests on the weapon to determine its accuracy.^[6]

Anytime that experiments are admitted before a jury, limiting instructions should be given.^[7]

↑ R. v. Collins 2001 CanLII 24124 (ON CA), (2001), 160 C.C.C. (3d) 85 (Ont. C.A.) at para. 21
R. v. Cyr, 2012 ONCA 919 (CanLII) at para. 119
↑ Cyr at para. 119
↑ See R v Howard and Trudel, (1983 3 CCC 3d 399 (ONCA) - Judge refused demo
↑ R v. MacDonald (2000) 146 CCC 3d 525 (ONCA) - video of police re-enacting struggle denied
R. v. Nikitin 2003 176 CCC 3d 225 - video of school bus crossing re-enactment permitted
↑ Cyr at para. 120
Collins at para. 22
R. v. Nikitin 2003 CanLII 18062 (ON CA), (2003), 176 C.C.C. (3d) 225 (Ont. C.A.), at para. 14
↑ Collins
↑ Cyr at para. 121
Nikitin, at para. 15

Views

A “view” is where the trier-of-fact, be it judge or jury, is permitted to attend the location of the event at issue in trial to better understand the evidence. The view may be requested by either party or on the judge’s motion under s. 652:

View
652. (1) The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial.
Directions to prevent communication
(2) Where a view is ordered under subsection (1), the judge shall give any directions that he considers necessary for the purpose of preventing undue communication by any person with members of the jury, but failure to comply with any directions given under this subsection does not affect the validity of the proceedings.
Who shall attend
(3) Where a view is ordered under subsection (1), the accused and the judge shall attend.
R.S., c. C-34, s. 579.

– CCC

The order is made where it “is in the interest of justice”. This requires that the viewing of the location add something to the evidence. While the viewing itself does not amount to evidence, it is intended to be an aid that helps facilitate an understanding of the evidence.^[1]

Consequently, the view can be taken even after the close of evidence.^[2]

For a detailed review of law, see R. v. Polimac, 2006 CanLII 40110 (ON SC)

↑ R. v. Nasrallah, 2012 ONSC 2124
↑ R v Welsh 1997 CanLII 2570 (BCCA), [1997] BCJ No 2343

Photographs

In order to admit photographic evidence in the Court, the party submitting the evidence must establish that:^[1]

they accurately and truly represent the facts,
are fairly presented and without any intent to mislead and
are verified on oath by a person capable of doing so.

The person testifying to the photographs can be:^[2]

the photographer
a person present when the photograph was taken
a person qualified to state that the representation is accurate, or
an expert witness

The age of a person in a photograph is a question of fact for the trier-of-fact, and does not need an expert.

Police sketches based on eye-witness descriptions will be admissible where the sketch artist is available for cross-examination.^[3]

↑ R. v. Creemer and Cormier, [1968] 1 C.C.C. 14 at 22
R. v. Schaffner, [1988] N.S.J. No. 334
R. v. Murphy, 2011 NSCA 54 at 48
↑ R. v. Schaffner, [1988] N.S.J. No. 334
↑ R v Sophonow (1986) 25 CCC (3d) 415

Video

The requirements for admitting video evidence is the same as those of photos. However, in the case of video tape there is the added danger of potential of tape alterations (editing, slow-motion replay, etc.), so the judge must be even more cautious when admitting video evidence.

As long as the video recording is of sufficient quality, the trier-of-fact can identify the accused without corroborating evidence.^[1]

The video footage evidence is considered real evidence and so cannot be said to "hearsay".^[2]

↑ R v Nikolovski [1996] 3 SCR 1197
R v Leaney (1987) 38 CCC (3d) 263
↑ see R. v. Nikolovski 1996 CanLII 158 (SCC), (1996), 111 C.C.C. (3d) 403 (S.C.C.)

Video re-enactments

Courts should be cautious when dealing with video reenactments where the accused is not participating. It may have the tenancy to overly influence the jury.^[1] Nevertheless, the admissibility turns on whether the prejudicial effect outweighs the probative value.^[2]

↑ R. v. MacDonald 2000 CanLII 16799 (ON CA), (2000), 134 O.A.C. 167 at 36
↑ at 41

Audio

Audio recording are to be treated in the same manner as witness testimony, but with the added weight provided that it is a more accurate record of past conversations. The use of private recorded coversations in a criminal trial usually requires a voir dire to be held.

A police officer can give evidence of the accused's natural voice at time arrest to establish voice identification as long as their is no trickery used to induce the accused to speak.^[1]

↑ R. v. Lepage, 2008 BCCA 132