Criminal Law Notebook

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]

Appeal

The standard for the admission of evidence is a question of law and reviewable on a standard of correctness.[10]

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.[11]

  1. ↑ R v Letavine, 2011 ONCJ 444 (CanLII), per Dechert J, at para 157
    See also Watt, Manual of Criminal Evidence at s. 10.01
  2. ↑ Letavine, supra, at para 157
    Watt at s. 10.01
  3. ↑ R v Swift, 2005 CanLII 34230 (ONCA), per MacPherson JA, at para 152
  4. ↑ R v Penney, 2000 CanLII 28396 (NLSCTD), per Schwartz J, at paras 22 to 29
  5. ↑ R v Punia, 2016 ONSC 2990 (CanLII), per Coroza J, at para 28
  6. ↑ 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 (ONSC), per Heeney J, - authentication of an email
    R v Parsons et al, 1977 CanLII 55 (ON CA), per Dubin JA - authentication of a audio recording requires "some evidence" R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J - affirms "some evidence" standard
  7. ↑ R v Avanes et al, 2015 ONCJ 606 (CanLII), per Band J
  8. ↑ R v Bulldog, 2015 ABCA 251 (CanLII), per curiam, at para 35
  9. ↑ Bulldog, ibid., at para 37
  10. ↑ Bulldog, ibid., at para 17
    R v Underwood, 2008 ABCA 263 (CanLII), per curiam, at para 10
  11. ↑ Bulldog, supra, at para 17
    R v Redford, 2014 ABCA 336 (CanLII), 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]

  1. call a witness with personal knowledge of the object;
  2. ask the witness to describe the object before showing it to the witness;
  3. allow the witness to examine and identify it as genuine; and
  4. 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]

  1. ↑ "Evidence: Principles and Problems" by Delisle, et al., at p. 299
  2. ↑ R v Crocker, 2015 CanLII 1001 (NLPC), per Gorman J, at para 40
  3. ↑ 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), 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]

  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]

  1. ↑ See Expert Evidence for details
  2. ↑ See discussion in R v DDT, 2009 ONCA 918 (CanLII), per Epstein JA
  3. ↑ R v Mars, 2006 CanLII 3460 (ON CA), 205 CCC (3d) 376 (Ont. C.A.), 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.
  4. ↑ R v Lepage, 1995 CanLII 123 (SCC), [1995] 1 SCR 654, per Sopinka J (3:2)

Computer Forensic Evidence

See also: Electronic Documents and Records

Any data found on a computer that was generated by an automated process is considered real evidence.[1]

  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...)

Photographs

In order to admit photographic evidence in 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

A jury or witness should not look at any images or pictures until the question of authenticity has been resolved.[3]

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.[4]

Appellate Review

The admissibility of photos is reviewed on the standard of correctness.[5]

  1. ↑ R v Creemer and Cormier, 1967 CanLII 711 (NSCA), [1968] 1 CCC 14, per MacQuarrie JA at 22
    R v Schaffner, 1988 CanLII 7108 (NSCA), [1988] NSJ No 334, per Matthews JA, at pp. 509-511
    R v Murphy, 2011 NSCA 54 (CanLII), per Farrar JA, at para 48
    R v Maloney (No. 2), 1976 CanLII 1372 (ON CJ), 29 CCC (2d) 431 (Ont. Co. Ct.), per LeSage J
    R v Penney, 2002 NFCA 15 (CanLII), per Welsh JA
    R v JSC, 2013 ABCA 157 (CanLII), [2013] AJ No 455 (CA), per curiam
    R v Adams, 2011 NSCA 54 (CanLII), per Farrar JA
    R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J
    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, 1294-1296
    David Watt, Watt’s Manual of Criminal Evidence, 2013 (Toronto: Thomson Reuters, 2014), at p. 88
    David Paciocco, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 462
  2. ↑ Schaffner, supra
  3. ↑ Andalib-Goortani, supra
  4. ↑ R v Sophonow, 1986 CanLII 104 (MB CA), 25 CCC (3d) 415, per Twaddle JA
  5. ↑ R v Blea, 2012 ABCA 41 (CanLII), [2012] AJ No 106, per curiam, at para 31

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.[1]

In jury trials, the judge must be particularly cautious to protect the accused's right to a trial.[2]

The most typical purpose of admitting autopsy photographs themselves include:[3]

  1. to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;
  2. to illustrate minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds;
  3. to corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;
  4. to link the injuries of the deceased to the murder weapon;
  5. to provide assistance as to the issues of intent and whether the murder was planned and deliberate;
  6. 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:[4]

  1. identify the issues to which the photos are relevant;
  2. 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.
  3. 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.
  4. 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.[5]

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.[6] 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.[7]

  1. ↑ R v Sipes, 2011 BCSC 920 (CanLII), per Smart J
    see also R v CLS, 2009 MBQB 130 (CanLII), per Beard J
    R v Hindessa, 2009 CanLII 48837 (ONSC), per Molloy J
    R v JSR, 2008 CanLII 54304 (ONSC), 236 CCC (3d) 486 (SCJ), per Nordheimer J
    R v Sandham, 2008 CanLII 84097 (ONSC), , 2008 CarswellOnt 9312 (SCJ), per Heeney J
    R v Bartkowski, 2004 BCSC 442 (CanLII), per Macaulay J
    R v Kinkead, 1999 CanLII 14909 (ONSC), 1999 CarswellOnt 1264 (SCJ), per LaForme J
    R v Hill, 2010 ONSC 6321 (CanLII), per Hambly J
    R v Ansari, 2008 BCSC 1415 (CanLII), per McEwan J
  2. ↑ Sipes, supra, at para 21
  3. ↑ R v CLS et al, 2009 MBQB 130 (CanLII), per Beard J, at para 5
    R v Schaefer, [1993] OJ No 71 (Ont. Ct of Jus. (Gen. Div.))(*no CanLII links) , at para 24
    see also R v Currie, 2000 CanLII 22822 (ONSC), [2000] OJ No 392 (Sup. Ct. of Just.), per Dambrot J, at para 6
  4. ↑ R v Dupe, 2010 ONSC 6440 (CanLII), per Dambrot J, at para 5
    R v Kinkead, 1999 CanLII 14909 (ONSC), 1999 CarswellOnt 1264 (SCJ), per Laforme J
  5. ↑ R v Teerhuis-Moar, 2009 MBQB 22 (CanLII), [2009] MJ No 27 (Q.B.), per Joyal J, at para 66
  6. ↑ Kinkead, supra, at para 17
  7. ↑ 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")

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."[1]

Burden of Proof

The onus is on the Crown to establish that the video is authentic.[2] 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."[3]

Authentication

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.[4]

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".[5] However, if it proven that the tape was not altered or changed and it depicts relevant information than it will be admissible.[6]

Proof of the tape's integrity is not necessary to admission.[7]Nor is proof of the speaker's identity.[8]

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.[9]

Gaps in a video tape should generally go to weight.[10] This however should normally be accompanied by some explanation as to the reasons there are gaps.[11]

Best Evidence Rule

The best evidence rule has minimal, if any application, to a copy of a video recording as opposed to the original.[12]

Weight

Sufficiency of quality and clarity of a video is a question of fact. Review is limited.[13]

Corroboration

As long as the video recording is of sufficient quality, the trier-of-fact can identify the accused without corroborating evidence.[14]

The video footage evidence is considered real evidence and so cannot be said to "hearsay".[15]

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.[16]

Video Statement

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.[17]

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.[18]

Judge required a transcript before admitting video statement of a complaint in a sex assault case.[19]

A typed transcript however is not part of the legal duty of the crown to disclose relevant evidence.[20]

  1. ↑ R v Nikolovski, 1996 CanLII 158 (SCC), per Cory J ("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")
    R v Penney, 2002 NFCA 15 (CanLII), 163 CCC (3d) 329 (Nfld. & Lab. C.A.), per Welsh JA, at pp. 335 and 342
    R v Andalib-Goortani, 2014 ONSC 4690 (CanLII), per Trotter J
  2. ↑ R v Antone, 2015 BCSC 1243 (CanLII), per Bowden J, at para 33
  3. ↑ R v Crawford, 2013 BCSC 2402 (CanLII), per Bruce J, at para 49
    see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown, 2007 NLTD 10 (CanLII), per Adams J
  4. ↑ Doughty, supra
    see also Browning Harvey Ltd. v NLAPPE Local 7003 and Persons Unknown, supra
  5. ↑ R v Bulldog, 2015 ABCA 251 (CanLII), per curiam, 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.")
  6. ↑ Nikolovski, supra, at para 28
  7. ↑ R v Punia, 2016 ONSC 2990 (CanLII), per Coroza J, at para 29
  8. ↑ Punia, ibid., at para 29
  9. ↑ R v Caughlin, 1987 CanLII 6771 (BC SC), 40 CCC (3d) 247 (B.C. Co. Ct.), per Godfrey J
    R v Penney, 2000 CanLII 28396 (NLSCTD), per Schwartz J, at para 39
  10. ↑ R v Penney, 2000 CanLII 28396 (NLSCTD), per Schwartz J, at para 38
  11. ↑ Penney, ibid., at para 40
  12. ↑ Penney, ibid., at paras 41 to 43
  13. ↑ R v Abdi, 2011 ONCA 446 (CanLII), per Rosenberg JA, at para 6
  14. ↑ R v Nikolovski, 1996 CanLII 158 (SCC), per Cory J
    R v Leaney, 1987 ABCA 206 (CanLII), 38 CCC (3d) 263, per Dea JA (2:1)
  15. ↑ see Nikolovski, supra
  16. ↑ R v Doughty, 2009 ABPC 8 (CanLII), [2009] AJ No 34, per Cummings J
  17. ↑ R v Broomfield, 2010 NLTD 202 (CanLII), per Goodridge J
  18. ↑ R v Young, 2009 ONCA 891 (CanLII), per curiam, at para 9
  19. ↑ Broomfield, supra
  20. ↑ Broomfield, supra

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.[1] Nevertheless, the admissibility turns on whether the prejudicial effect outweighs the probative value.[2]

  1. ↑ R v MacDonald, 2000 CanLII 16799 (ON CA), 134 OAC 167, per curiam at 36
  2. ↑ MacDonald, ibid. 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 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.[1]

A recording of an accused's voice post arrest for the purpose of voice identification does not require a caution or warrant.[2]

  1. ↑ R v Lepage, 2008 BCCA 132 (CanLII), per Hall JA
  2. ↑ R v Wu, 2010 ABCA 337 (CanLII), per curiam

Child Pornographic Images and Video

See also: 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.[1]

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.[2]

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.[3] This includes reviewing the contents of discs should they be provided to the court.[4]

There does not seem to be a strict requirement to introduce sample images before the court where there is consent of the defence.[5]

  1. ↑ e.g. R v Twigg, 2013 ONCJ 96 (CanLII), per George J, at para 1
  2. ↑ R v Haimour, 2010 ABQB 7 (CanLII), per Ouellette J considered but not ruled on in R v Haimour, 2011 ABCA 143 (CanLII), per curiam, at para 13
  3. ↑ R v Hunt, 2002 ABCA 155 (CanLII), per curiam, at para 16
    R v PM, 2012 ONCA 162 (CanLII), per Rosenberg JA
  4. ↑ PM, ibid.
  5. ↑ e.g. R v Ahmed, 2012 ONCJ 71 (CanLII), per Forsyth J, at para 28

See also Disclosure#Disclosing Child Pornographic Materials

See Also

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