Real Evidence
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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."[1] It is evidence that "conveys a relevant first-hand sense impression to the trier of fact."[2]
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."[3]
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.[4]
- Burden
The burden of authenticating real evidence rests on the party seeking to tender the evidence.[5]
- Authentication
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.[6]
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.”[7]
Real evidence may be authenticated using circumstantial evidence.[8] For example, a video may be authenticated by any witness who can provide evidence that the "video in question is a substantially accurate and fair depiction of what it purports to depict."[9]
- Role of Judge
A judge is regularly permitted to examine pieces of real evidence. By doing so, does not turn them into a "witness."[10]
There is no obligation on the judge to provide notice to the parties to examine a piece of real evidence adduced into evidence, [11]
- Appeal
The standard for the admission of evidence is a question of law and reviewable on a standard of correctness.[12]
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.[13]
- ↑
R v Letavine, 2011 ONCJ 444 (CanLII), per Dechert J, at para 157
See also Watt, Manual of Criminal Evidence at s. 10.01 - ↑
Letavine, supra, at para 157
Watt at s. 10.01 - ↑ R v Swift, 2005 CanLII 34230 (ON CA), 33 CR (6th) 269, per MacPherson JA, at para 152
- ↑
R v Penney, 2000 CanLII 28396 (NLSCTD), 582 APR 286, per Schwartz J, at paras 22 to 29
- ↑
R v Punia, 2016 ONSC 2990 (CanLII), per Coroza J, at para 28
- ↑
R v Rowbotham, 1977 CanLII 1913 (ON CJ), 33 CCC (2d) 411 (Ont. Co. Ct), per Borins J - authentication of a audio recording required "prima facie case"
R v Sandham, 2009 CanLII 59151 (ON SC), per Heeney J, - authentication of an email
R v Parsons et al, 1977 CanLII 55 (ON CA), 37 CCC (2d) 497, per Dubin JA - authentication of a audio recording requires "some evidence"
R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), 13 CR (7th) 128, per Trotter J - affirms "some evidence" standard - ↑ R v Avanes et al, 2015 ONCJ 606 (CanLII), 25 CR (7th) 26, per Band J
- ↑
R v Bulldog, 2015 ABCA 251 (CanLII), 326 CCC (3d) 385, per curiam, at para 35
- ↑
Bulldog, ibid., at para 37
- ↑ R v Meer, 2015 ABCA 141 (CanLII), per curiam (2:1), at para 88
- ↑ Meer, ibid., at para 88
- ↑
Bulldog, ibid., at para 17
R v Underwood, 2008 ABCA 263 (CanLII), 174 CRR (2d) 211, per curiam, at para 10 - ↑
Bulldog, supra, at para 17
R v Redford, 2014 ABCA 336 (CanLII), 319 CCC (3d) 170, per Paperny JA (2:1), at para 12
Procedure
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.
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.[2]
It has been suggested that there is no need to introduce the real evidence in every case.[3]
- ↑ "Evidence: Principles and Problems" by Delisle, et al., at p. 299
- ↑
R v Crocker, 2015 CanLII 1001 (NL PC), per Gorman J, at para 40
- ↑
R v Donald, 1958 CanLII 470 (NB CA), 121 CCC 304, 28 CR 206 (NBCA), per Bridges JA
see also R v Penney, 2000 CanLII 28396 (NLSCTD), 582 APR 286, per Schwartz J, at para 45
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.[1]
- ↑
R v Malvoisin, 2006 CanLII 33304 (ON CA), [2006] OJ No 3931, per curiam
R v Abdi, 1997 CanLII 4448 (ON CA), [1997] OJ No 2651, 34 OR (3d) 499, per Robins JA
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.[1]
A number of facts may be determined from fingerprints:[2]
- 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.[3]
This evidence can also be used to infer 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.[4]
- ↑ See Expert Evidence for details
- ↑ See discussion in R v DDT, 2009 ONCA 918 (CanLII), 257 OAC 258, per Epstein JA
- ↑
R v Mars, 2006 CanLII 3460 (ON CA), 205 CCC (3d) 376, per Doherty JA, at para 19
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. - ↑ R v Lepage, 1995 CanLII 123 (SCC), [1995] 1 SCR 654, per Sopinka J (3:2)
Computer Forensic Evidence
Any data found on a computer that was generated by an automated process is considered real evidence.[1]
- ↑ R v Mondor, 2014 ONCJ 135 (CanLII), per Greene J, 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...)