View source for Real Evidence

{{LevelZero}}{{HeaderEvidence}}
==General Principles==

Real evidence consists of all ''tangible'' evidence, physical objects such as, tape recordings, computer printouts or photographs.
It is evidence where "the trier of fact uses its own senses to make observations and draw conclusion, rather than being told about the object by a witness".<Ref>
R v Letavine, [http://canlii.ca/t/fn48x 2011 ONCJ 444] (CanLII) at para 157<Br>
See also Watt, Manual of Criminal Evidence at s. 10.01
</ref> It is evidence that "conveys a relevant ''first-hand sense impression'' to the trier of fact".<Ref>
Letavine at para 157<Br>
Watt at s. 10.01
</ref>

Real evidence, as with all other evidence, must first be relevant. Secondly, it must be authentic.

Not all physical objects are "real evidence", however. A photo line-up is not real evidence, rather it is "an aide to identification".<ref>
R v Swift, [http://canlii.ca/t/1lnnt 2005 CanLII 34230] at para 152
</ref>

There are two theoretical approaches to admitting photographs and videos that have been applied in courts. There is the "silent witness" theory where the images speak for themselves after they have been authenticated. Then there is the "illustrative theory" whereby the images are simply supplemental to the oral testimony of a witness.<ref>
R v Penney, [http://canlii.ca/t/2dxdh 2000 CanLII 28396] (NL SCTD), at paras 22 to 29<Br>
</ref>

'''Burden'''<br>
The burden of authenticating real evidence rests on the party seeking to tender the evidence.<ref>
R v Punia, [http://canlii.ca/t/gr540 2016 ONSC 2990] (CanLII) at para 28<br>
</ref>

'''Authentication'''<br>
The standard of proof for the authentication of real evidence should be "prima facie case of authentication" or "some evidence", there is no need to prove a fact on a standard of balance of probability or reasonable doubt.<ref>
R v Rowbotham, (1977) 33 CCC (2d) 411 (Ont. Co. Ct){{NOCANLII}} - authentication of a audio recording required "prima facie case"
R v Sandham, [http://canlii.ca/t/26d4c 2009 CanLII 59151] (ON SC), - authentication of an email<br>
R v Parsons et al., [http://canlii.ca/t/1vqxz 1977 CanLII 55] (ON CA) - authentication of a audio recording requires "some evidence"
R v Andalib-Goortani, [http://canlii.ca/t/gdq8v 2014 ONSC 4690] (CanLII) - affirms "some evidence" standard
</ref>

To be authentic the common law requires that there must be “evidence sufficient to support a finding that the evidence sought to be admitted is what it purports to be.”<ref>
R v Avanes et al., [http://canlii.ca/t/gltb6 2015 ONCJ 606] (CanLII)
</ref>

'''Appeal'''<br>
The standard for the admission of evidence is a question of law and reviewable on a standard of correctness.<Ref>
R v Bulldog, [http://canlii.ca/t/gk9xr 2015 ABCA 251] (CanLII) at para 17<br>
R v Underwood, [http://canlii.ca/t/1zl1f 2008 ABCA 263] (CanLII) at para 10
</ref>

The question of the evidence meeting the standard is reviewable as mixed fact and law and reviewable on a standard of palpable and overriding error.<ref>
Bulldog at para 17<br>
R v Redford, [http://canlii.ca/t/gf1gr 2014 ABCA 336] (CanLII) at para 12<br>
</ref>

{{reflist|2}}
===Procedure===
There is no fixed formula for submitting real evidence, however, it is recommended that a procedure for submitting evidence be followed such as:<ref>"Evidence: Principles and Problems" by ''Delisle, et al.'' at p. 299</ref> 
# 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.

As a matter of practice, the party adducing copies of evidence, there should be two copies given to the court. One is for the witness and the other for the judge to review.<ref>
R v Crocker, [http://canlii.ca/t/gfzvs 2015 CanLII 1001] (NL PC), at para 40<br>
</ref>

It has been suggested that there is no need to introduce the real evidence in every case.<ref>
R. v Donald (1958), 121 CCC 304, 28 C.R. 206 (NBCA){{NOCANLII}}<br>
see also R v Penney, [http://canlii.ca/t/2dxdh 2000 CanLII 28396] (NL SCTD), at para 45<Br>
</ref>

{{reflist|2}}

== Demonstrative Evidence ==
* see [[Demonstrative Evidence]]

==Physical Objects==

===Handwriting and signatures===
The trier-of-fact may make comparisons of handwriting without the need of expert evidence as it is analogous to comparison of video evidence.<ref>
R v Malvoisin, [http://canlii.ca/t/1pnwj 2006 CanLII 33304] (ON CA), [2006] O.J. No. 3931<br> 
R v Abdi, [http://canlii.ca/t/6hcz 1997 CanLII 4448] (ON CA), [1997] O.J. No. 2651, 34 O.R. (3d) 499<br>
</ref>

{{Reflist|2}}

===Fingerprints===
Fingerprint evidence is relevant to establish that a print left in a location was from a particular person, most likely the accused, which tends to inculpate the accused. This needs to be established by expert evidence.<ref>
See [[Expert Evidence]] for details
</ref>

A number of facts may be determined from fingerprints:<ref>
See discussion in R v D.D.T., [http://canlii.ca/t/2754v 2009 ONCA 918] (CanLII)
</ref>
* whether the accused touched the object
* whether anyone else may have touched the object
* the manner of touch or grip the persons had on the object including the orientation of the hand(s).
* the recency of the touching based on the cleanliness of the object, the weather, and moisture

Most often all that will be gleaned from the fingerprint is that the object was touched by the accused. It will take other circumstantial evidence to establish that the accused touched the object at the relevant time and place.<ref>
R v Mars [http://canlii.ca/t/1mjp2 2006 CanLII 3460] (ON CA), (2006), 205 CCC (3d) 376 (Ont. C.A.), at para 19<br>
DDT – Acquittal entered after conviction for break and enter based solely on fingerprint evidence. It was found on reasonable to infer accuse left fingerprint during break in.
</ref>

This evidence can also be used to infer [[Possession|personal possession within the meaning of s. 4(3)]]. When such an inference can be drawn will depend on the circumstances of the case and all the evidence. Such determination is a question of fact.<ref>
R v Lepage, [1995] 1 SCR 654, [http://canlii.ca/t/1frn1 1995 CanLII 123] (SCC)</ref>

{{reflist|2}}

==Computer Forensic Evidence==
{{seealso|Electronic Documents}}
Any data found on a computer that was generated by an automated process is considered real evidence.<ref>
R v Mondor, [http://canlii.ca/t/g6986 2014 ONCJ 135] (CanLII) at para 17 ("...Information that is gathered and recorded electronically by an automated process, either with or without human intervention, can be introduced as real evidence...)
</ref>

{{reflist|2}}

== Photographs ==
In order to admit photographic evidence in Court, the party submitting the evidence must establish that:<ref>
R v Creemer and Cormier, [1968] 1 CCC 14{{NOCANLII}} at 22<br>
R v Schaffner, [1988] NSJ No. 334{{NOCANLII}} at pp. 509-511<br>
R v Murphy, [http://canlii.ca/t/flrt0 2011 NSCA 54] (CanLII) at para 48<br>
R v Maloney (No. 2) (1976), 29 CCC (2d) 431 (Ont. Co. Ct.){{NOCANLII}}<br>
R v Penney, [http://canlii.ca/t/4v9z 2002 NFCA 15] (CanLII)<br>
R v J.S.C., [http://canlii.ca/t/fxf0f 2013 ABCA 157] (CanLII), [2013] A.J. No. 455 (C.A.)<br> 
R v Adams, [http://canlii.ca/t/flrt0 2011 NSCA 54] (CanLII)<br>
R v Andalib-Goortani, [http://canlii.ca/t/gdq8v 2014 ONSC 4690] (CanLII)<br>
Sydney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th edition (Toronto: LexisNexis, 2014), at pp. 44-45 and pp. 1294-1296<br>
David Watt, Watt’s Manual of Criminal Evidence, 2013 (Toronto: Thomson Reuters, 2014), at p. 88<br>
David Paciocco, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 462
</ref>
* 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:<ref>Schaffner{{supra}}</ref>
* the photographer
* a person present when the photograph was taken
* a person qualified to state that the representation is accurate, or
* an expert witness

A jury or witness should not look at any images or pictures until the question of authenticity has been resolved.<Ref>
R v Andalib-Goortani, [http://canlii.ca/t/gdq8v 2014 ONSC 4690] (CanLII)<br>
</ref>

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.<Ref>
R v Sophonow, [http://canlii.ca/t/1npjz 1986 CanLII 104] (MB CA), (1986) 25 CCC (3d) 415</ref>

'''Appellate Review'''<br>
The admissibility of photos is reviewed on the standard of correctness.<Ref>
R v Blea, [http://canlii.ca/t/fpw8w 2012 ABCA 41] (CanLII), [2012] AJ No 106 at para 31</ref>

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===Autopsy and Crime Scene Photographs===
Graphic photographs of autopsies or crime scenes should not be admitted where the "inflamatory and prejudicial effect" of the pictures outweigh the probative value.<ref>
R v Sipes, [http://canlii.ca/t/fxh4v 2011 BCSC 920] (CanLII)<br>
see also R v C.L.S., [http://canlii.ca/t/2fbzd 2009 MBQB 130] (CanLII)<br>
R v Hindessa, [http://canlii.ca/t/25nl2 2009 CanLII 48837] (ON SC) <br>
R v J.S.R., [http://canlii.ca/t/21980 2008 CanLII 54304] (ON SC), 236 CCC (3d) 486 (S.C.J.)<br>
R v Sandham, [http://canlii.ca/t/26f5f 2008 CanLII 84097] (ON SC), 2008 CarswellOnt 9312 (S.C.J.)<br>
R v Bartkowski, [http://canlii.ca/t/1l2wr 2004 BCSC 442] (CanLII)<br>
R v Kinkead, [http://canlii.ca/t/1w7x4 1999 CanLII 14909] (ON SC), 1999 CarswellOnt 1264 (S.C.J.)<br>
R v Hill, [http://canlii.ca/t/2djj9 2010 ONSC 6321] (CanLII)<br>
R v Ansari, [http://canlii.ca/t/21v0f 2008 BCSC 1415] (CanLII)<br>
</ref>

In jury trials, the judge must be particularly cautious to protect the accused's right to a trial.<Ref>
Sipes{{supra}} at para 21<br>
</ref>

The most typical purpose of admitting autopsy photographs themselves include:<ref>
R v C.L.S. et al., [http://canlii.ca/t/2fbzd 2009 MBQB 130] (CanLII), at para 5<br>
R v Schaefer, [1993] O.J. No. 71 (Ont. Ct of Jus. (Gen. Div.)){{NOCANLII}} at para 24<br>
see also R v Currie, [http://canlii.ca/t/1wd0q 2000 CanLII 22822] (ON SC), [2000] O.J. No. 392 (Sup. Ct. of Just.), per Dambrot J, at para 6<br>
</ref>
#to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;
#to illustrate minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds;
#to corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;
#to link the injuries of the deceased to the murder weapon;
#to provide assistance as to the issues of intent and whether the murder was planned and deliberate;
#to help the jury determine the truth of the theories put forth by the crown or defence, e.g.:  as to which accused committed the crime; as to whether the crime was committed in self-defence;
The judge is recommended to evaluate the photographs or videos as follows:<ref>
R v Dupe, [http://canlii.ca/t/2f8cj 2010 ONSC 6440] (CanLII), per Dambrot J, at para 5<br>
R v Kinkead, [http://canlii.ca/t/1w7x4 1999 CanLII 14909] (ON SC), 1999 CarswellOnt 1264 (S.C.J.)<Br>
</ref>
# identify the issues to which the photos are relevant;
# The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses.
#The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue ... or because the risk that the jury may use the evidence improperly to prove a fact in issue.
#The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

The photos must also be "dependably accurate, fair and authentic.<ref>
R v Teerhuis-Moar, [http://canlii.ca/t/22cbj 2009 MBQB 22] (CanLII), [2009] M.J. No. 27 (Q.B.) at para 66<br>
</ref>

The judge can consider the regularity in which the public are exposed to imagery of brutality and violence when evaluating the prejudice arising from the photographs.<Ref>
Kinkead{{supra}} at para 17<br>
</ref>
Given the growing exposure of the public to graphic violence, there is a growing trend to permit admission of materials so long as the evidence is sufficiently probative.<ref>
e.g. Sipes{{supra}} at para 23 ("we are exposed to more violence in more graphic detail, and are less likely to be swayed by terrible images ...Therefore, there should be few cases where photographs or videotapes are excluded because of their inflammatory prejudice - provided they have probative value to the case making them worth seeing")<br>
</ref>

{{reflist|2}}

===Photographs in Lieu of Exhibits=== 
See [[Proof of Ownership]]

== Audio and Video Recordings ==
The requirements for admitting video evidence is similar as those of photos. Specifically, 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. Accordingly, if it "is established that a videotape has not been altered or changed, and it depicts the scene of a crime, then it becomes admissible and relevant evidence."<ref>
R v Nikolovski [http://canlii.ca/t/1fr59 1996 CanLII 158] (SCC), [1996] 3 SCR 1197 ("Once it is established that a videotape has not been altered or changed, and it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but is to a certain extent, testimonial evidence as well")<br>
R v Penney (2002), [http://canlii.ca/t/4v9z 2002 NFCA 15] (CanLII), 163 CCC (3d) 329 (Nfld. & Lab. C.A.), at pp. 335 and 342<br>
R v Andalib-Goortani, [http://canlii.ca/t/gdq8v 2014 ONSC 4690] (CanLII)<br>
</ref>

'''Onus'''<br>
The onus is on the Crown to establish that the video is authentic.<Ref>
R v Antone, [http://canlii.ca/t/gk91r 2015 BCSC 1243] (CanLII), at para 33<br>
</ref> The necessary standard will vary depending on "the substantial accuracy of the video recording, taking into account the purpose for which the evidence is tendered and the relative need for precision or accuracy in the video recording."<ref>
R v Crawford, [http://canlii.ca/t/g2ljb 2013 BCSC 2402] (CanLII) at para 49<Br>
see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown, [http://canlii.ca/t/1q8x9 2007 NLTD 10] (CanLII)<br>
</ref>

'''Authentication'''<br>
Authenticating a video tape does not require expert evidence however should include some details verifying the accuracy of the tape to the recording system, the date of recording, the accuracy of the time stamp, and identify the setup of the system.<Ref>
Doughty<br>
see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown
</ref>

There is no obligation to prove that the video was unaltered before it can be authenticated as long as it is "substantially accurate and fair representation".<ref>
R v Bulldog, [http://canlii.ca/t/gk9xr 2015 ABCA 251] (CanLII) at para 33 ("It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show.")
</ref>
However, if it proven that the tape was not altered or changed and it depicts relevant information than it will be admissible.<ref>
Nikolovski{{supra}} at para 28<Br>
</ref>

Proof of the tape's integrity is not necessary to admission.<Ref>
R v Punia, [http://canlii.ca/t/gr540 2016 ONSC 2990] (CanLII) at para 29<Br>
</ref>Nor is proof of the speaker's identity.<ref>
Punia{{ibid}} at para 29<br>
</ref>

Where someone can only authenticate parts of the video and not others, it remains open to the judge to only admit those parts that were authenticated, excluding those segments that were not spoken to.<Ref>
R. v Caughlin (1987), 40 CCC (3d) 247 (B.C. Co. Ct.){{NOCANLII}}<br>
R v Penney, [http://canlii.ca/t/2dxdh 2000 CanLII 28396] (NL SCTD), at para 39<Br>
</ref>

Gaps in a video tape should generally go to weight.<ref>
R v Penney, [http://canlii.ca/t/2dxdh 2000 CanLII 28396] (NL SCTD), at para 38<Br>
</ref>
This however should normally be accompanied by some explanation as to the reasons there are gaps.<Ref>
Penney at para 40
</ref>

'''Best Evidence Rule'''<br>
The best evidence rule has minimal, if any application, to a copy of a video recording as opposed to the original.<Ref>
Penney at paras 41 to 43<br>
</ref>

'''Weight'''<Br>
Sufficiency of quality and clarity of a video is a question of fact. Review is limited.<ref>
R v Abdi, [http://canlii.ca/t/flst9 2011 ONCA 446] (CanLII), at para 6
</ref>

'''Corroboration'''<Br>
As long as the video recording is of sufficient quality, the trier-of-fact can identify the accused without corroborating evidence.<Ref>
R v Nikolovski [http://canlii.ca/t/1fr59 1996 CanLII 158] (SCC), [1996] 3 SCR 1197<br>
R v Leaney, [http://canlii.ca/t/2dkv9 1987 ABCA 206] (CanLII), (1987) 38 CCC (3d) 263</ref>

The video footage evidence is considered real evidence and so cannot be said to "hearsay".<ref>
see Nikolovski{{supra}}</ref>

Excessive editing of a video tape may have created sufficient distortions that would render a video tape inadmissible on the basis of lack of authenticity and reliability.<ref>
R v Doughty, [http://canlii.ca/t/225c0 2009 ABPC 8] (CanLII), [2009] AJ No 34<br>
</ref>

'''Video Statement'''<br>
For a videotape statement to be admissible it must be possible for the trier of fact to "form a fair and reliable assessment of the substance" of what is recorded. Where there may be issues to adequately here and understand the content the judge may require a transcript be made to assist the trier of fact before admitting it.<ref>
R v Broomfield, [http://canlii.ca/t/2f382 2010 NLTD 202] (CanLII)
</ref>

During an investigation by police, they may audio or video record any part of their interactions with witnesses or accused. There is no requirement that the subject consent to the police's actions but it would be expected that the police put the subject on notice that they are being recorded.<ref>
R v Young, [http://canlii.ca/t/272f7 2009 ONCA 891] (CanLII) at para 9 <br>
</ref>

Judge required a transcript before admitting video statement of a complaint in a sex assault case.<ref>
Broomfield{{supra}}
</ref>

A typed transcript however is not part of the legal duty of the crown to disclose relevant evidence.<ref>
Broomfield{{supra}}
</ref>

{{reflist|2}}
===Video re-enactments===
Courts should be cautious when dealing with video re-enactments where the accused is not participating. It may have the tenancy to overly influence the jury.<ref>R v MacDonald [http://canlii.ca/t/1fbcc 2000 CanLII 16799] (ON CA), (2000), 134 O.A.C. 167 at 36</ref> Nevertheless, the admissibility turns on whether the prejudicial effect outweighs the probative value.<ref>MacDonald{{ibid}} at 41</ref>

{{reflist|2}}

== 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 conversations 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.<Ref>
R v Lepage, [http://canlii.ca/t/1w8mr 2008 BCCA 132] (CanLII)
</ref>

A recording of an accused's voice post arrest for the purpose of voice identification does not require a caution or warrant.<ref>
R v Wu, [http://canlii.ca/t/2dfbc 2010 ABCA 337] (CanLII)
</ref>

{{reflist|2}}

==Child Pornographic Images and Video==
{{seealso|Child Pornography (Offence)}}

In practice images and videos are typically admitted by way of the adducing of digital storage media (such as a CD/DVD) accompanied by a printed sample of the materials and/or a written description of the contents of the media.<ref>
e.g. R v Twigg, [http://canlii.ca/t/fwcnw 2013 ONCJ 96] (CanLII) at para 1
</ref>

During a trial, where the accused has formally admitted to the nature of the images or videos being child pornography and so viewing is not essential to the issue before the Court, the Crown can be prevented from leading evidence of the images that must be viewed by the judge. Instead, it is entirely in the discretion of the court to review the exhibits during trial.<ref>R v Haimour, [http://canlii.ca/t/27g9t 2010 ABQB 7] (CanLII) considered but not ruled on in R v Haimour, [http://canlii.ca/t/flb59 2011 ABCA 143] (CanLII) at para 13</ref>

Judges are required to accept into evidence and review images of child pornography submitted by the Crown as part of sentencing where the usual exclusionary principles do not apply.<ref>R v Hunt, [http://canlii.ca/t/1tfxh 2002 ABCA 155] (CanLII) at para 16<br>
R v P.M., [http://canlii.ca/t/fqlfq 2012 ONCA 162] (CanLII)<br>
</ref> This includes reviewing the contents of discs should they be provided to the court.<ref>
R v P.M.</ref>

There does not seem to be a strict requirement to introduce sample images before the court where there is consent of the defence.<ref>
e.g. R v Ahmed, [http://canlii.ca/t/fq34d 2012 ONCJ 71] (CanLII) at para 28<br>
</ref>

{{reflist|2}}

See also [[Disclosure#Disclosing_Child_Pornographic_Materials]]

==See Also==
* See [[Traditional Exceptions to Hearsay#Video_Statement_of_Under_18_Year_Old|Video Statement of Under 18 Year Old]]
* [[Circumstantial Evidence]]
* [[Discretionary Exclusion of Evidence]]