Evidence.pptx

EVIDENCE Municipal Law Enforcement Officers’ Association (Ontario) 2021-03-22 1 mleoa.ca  “IT IS NOT WHAT WE THINK HAPPENED… IT’S WHA...

EVIDENCE Municipal Law Enforcement Officers’ Association (Ontario) 2021-03-22 1 mleoa.ca  “IT IS NOT WHAT WE THINK HAPPENED… IT’S WHAT WE CAN PROVE HAPPENED.” 2021-03-22 2 mleoa.ca  WHAT IS EVIDENCE? 2021-03-22 3 mleoa.ca  EVIDENCE IS…. Testimony of witnesses and the presentation of documents and things, which a court will permit to be used in legal proceedings as proof of facts. 2021-03-22 4 mleoa.ca  EVIDENCE  RELEVANT  RELIABLE, and  MUST FOLLOW THE RULES 2021-03-22 5 mleoa.ca  TYPES OF EVIDENCE There are 2 types of evidence: 1. Direct (testimony) 2. Real (documents, physical objects) This Photo by Unknown Author is licensed under CC BY 2021-03-22 6 mleoa.ca  DIRECT EVIDENCE Testimony: Oral statement of a witness, usually under oath of the facts that were perceived by that witness’s own senses which would pertain to the case  Saw  Heard  Felt  Smelled  Tasted 2021-03-22 7 mleoa.ca  REAL EVIDENCE OBJECTS AND THINGS: They must be introduced through testimony and their relationship to the case articulated by the witness before the courts Remember: Objects and things/documents cannot speak for themselves! 2021-03-22 8 mleoa.ca  REAL EVIDENCE Pertaining to objects or documents or photographs: Must be introduced through testimony of witness and their relationship to the case explained Before testifying…examine the object…is it the object or item you collected?? Can you explain how you know this?? Clearly identify and describe the object/item and explain its relevance 2021-03-22 9 mleoa.ca  REAL EVIDENCE A sign Garbage/refuse Items purchased Documentary evidence e.g. tax records, permit applications, photographs 2021-03-22 10 mleoa.ca  DOCUMENTARY EVIDENCE Documentary Evidence pertains to writings relevant to the case o Introduced by witness through their testimony – must explain relationship to the case o E.g. Receipts, deeds, letters, tax rolls, permit applications Where it is inconvenient or impractical to call the witness who is able to give direct evidence, an affidavit may be acceptable 2021-03-22 11 mleoa.ca  CHARGES? Who has the final say as to what charges will be tried in Court? The PROSECUTION 2021-03-22 12 mleoa.ca  OFFICER IN CHARGE This is YOU!!! The Officer in Charge (OIC) is the official who is the investigator or informant, and determines any charges against the defendant 2021-03-22 13 mleoa.ca  REASONABLE GROUNDS A set of FACTS or circumstances that would satisfy an ordinary, cautious, and prudent person that there is a reason to believe, and that which goes beyond mere suspicion 2021-03-22 14 mleoa.ca  ELEMENTS OF AN OFFENCE? (Facts in Issue) Elements of an offence are those factors found in the authorizing legislation which create the offence and must be proven beyond a reasonable doubt  Who  What  Where  When Elements of an Offence become “facts in issue” when in dispute. All elements of an offence are potentially facts in issue 2021-03-22 15 mleoa.ca  ELEMENTS OF AN OFFENCE Who is responsible to PROVE all of the Elements of an Offence/Facts in Issue? THE PROSECUTION (Prosecutor) MUST prove all of the elements/facts. 2021-03-22 16 mleoa.ca BURDEN OF PROOF The burden of proof lies with the PROSECUTION (Prosecutor) Must prove every element of the offence/fact in issue BEYOND A REASONABLE DOUBT If accepted by the court and not successfully challenged or rebutted through cross examination or defence evidence, could result in a conviction Burden now shifts to defence to establish a defence 2021-03-22 17 mleoa.ca  ELEMENTS OF AN OFFENCE Exercise #1 Operation of a taxicab without a municipal taxi driver’s licence. “No person shall, at any time, operate a taxicab without a municipal taxi driver’s licence within the Town of Shoeville” WHAT ARE THE ELEMENTS OF THE OFFENCE? 2021-03-22 18 mleoa.ca  EXERCISE #1  Identity of person operating the taxicab (WHO)  When did the offence take place (WHEN)  Where did the offence take place (specific location including municipality/province) (WHERE)  Was the vehicle a taxicab (WHAT)  Was the driver licensed (WHAT)  Was the vehicle operating as a taxicab – fare? (WHAT) 2021-03-22 19 mleoa.ca  ELEMENTS OF AN OFFENCE Exercise #2 Public Nuisance by-law of the Town of Shoeville “No person shall urinate, defecate, vomit or spit in a public place” WHAT ARE THE ELEMENTS OF THE OFFENCE? 2021-03-22 20 mleoa.ca  EXERCISE #2  Identity of the person (WHO)  Where did the offence occur (specific location, municipality/province) – jurisdiction (WHERE)  When did the offence occur (WHEN)  What was the action – urinating, defecating, vomiting, spitting (WHAT) 2021-03-22 21 mleoa.ca  ELEMENTS OF AN OFFENCE Exercise #3 Open Burning without a Permit “No person shall set an open fire without a permit” WHAT ARE THE ELEMENTS OF THE OFFENCE? 2021-03-22 22 mleoa.ca  EXERCISE #3  Identity of the person who set the fire (WHO)  When did the fire occur (WHEN)  Where did the fire occur (specific location, municipality/province) (WHERE)  Was it an open fire (definition) (WHAT)  Was there a permit (WHAT) 2021-03-22 23 mleoa.ca  REVIEW 2021-03-22 24 mleoa.ca  PROVING THE CASE 2021-03-22 25 mleoa.ca  REAL EVIDENCE AT THE SCENE Responsibilities of the investigating officer:  Preserve  Gather  Ensure continuity  Mark (time, date, initial) 2021-03-22 26 mleoa.ca  CONTINUITY OF EVIDENCE It is being able to account for an exhibit from the time is was seized to the time it was relied upon in court The fewer number of persons handling it, the better. You are responsible for proving continuous possession and must be able to identify the item even if it has left your possession. UNBROKEN CHAIN OF CONTROL> > > > > > > > > 2021-03-22 27 mleoa.ca  CORROBORATION Corroborating evidence is: that evidence with tends to strengthen, give weight to and make more certain other evidence 2021-03-22 28 mleoa.ca  RULES OF EVIDENCE - SOURCES SOURCES:  Canadian Charter of Rights and Freedoms  Canadian Evidence Act  Ontario Evidence Act  Federal Statutes  Provincial Statutes  Case Law  Common Law 2021-03-22 29 mleoa.ca  REVIEW 2021-03-22 30 mleoa.ca  BEST EVIDENCE RULE BEST EVIDENCE IS…. ORIGINAL EVIDENCE 2021-03-22 31 mleoa.ca  BEST EVIDENCE EXCEPTIONS  Photos  Lost or destroyed documents (through no fault of the witness)  Death of a witness 2021-03-22 32 mleoa.ca  CHARTER EXCLUSIONARY RULE If evidence is obtained in a manner that infringed or denied any right or freedom guaranteed in the Charter, the evidence will be excluded if it is deemed that it would bring the administration of justice into disrepute. 2021-03-22 33 mleoa.ca  HEARSAY EVIDENCE Hearsay Evidence is… Evidence that lacks first hand knowledge of the witness. This can apply to oral, written or physical evidence. Hearsay Evidence… cannot be tested through cross examination; and, Is generally inadmissible 2021-03-22 34 mleoa.ca  CIRCUMSTANTIAL EVIDENCE Circumstantial Evidence is… Evidence which suggests a fact is true, or untrue, because of the existence of other proven facts. It is not by itself, evidence of a fact. It is a PIECE OF A PUZZLE A number of facts when collectively examined support each other and a particular history Evidence which helps to support the validity of other evidence 2021-03-22 35 mleoa.ca  CIRCUMSTANTIAL EVIDENCE Example: Smoking in a Municipal Vehicle – Scenario  Caretaker of the vehicle emptied the ashtray that a.m.  Only Willy and his partner were in the truck today  Partner is a non-smoker  Matchbook with 2 matches missing is in console  2 cigarette butts of Willy’s brand are butted in the ashtray 2021-03-22 36 mleoa.ca  AT COURT 2021-03-22 37 mleoa.ca  PRELIMINARY HEARING A hearing to determine if there is enough evidence for a case to be brought to trial 2021-03-22 38 mleoa.ca  ADMISSIBLE EVIDENCE Evidence which the Justice of the Peace (Court) is willing and legally able to accept as part of the trial proceedings. 2021-03-22 39 mleoa.ca  VOIR DIRE A trial within a trial to determine the admissibility of evidence Witnesses/evidence are presented during a voir dire in relation to evidence in question regarding admissibility Justice of the Peace/Judge rules on admissibility 2021-03-22 40 mleoa.ca  WHO MAY EXAMINE YOUR NOTES AT TRIAL Opposing Counsel:  Intended to discredit witness, the testimony, or both  A good defence lawyer will do their best in court to show that you are mistaken, exaggerating, or blatantly lying about an event Justice of the Peace:  Can ask questions relating to notes to assist in his ruling 2021-03-22 41 mleoa.ca  COMPETENT Anyone who is legally able to testify Must be able to understand the difference between right and wrong 2021-03-22 42 mleoa.ca  COMPELLABLE Those individuals required by law to testify 2021-03-22 43 mleoa.ca  TYPES OF STATEMENTS  Inculpatory  Exculpatory  Self Serving 2021-03-22 44 mleoa.ca  INCULPATORY STATEMENT Statements made by a person that tends towards the defendant having committed the offence. 2021-03-22 45 mleoa.ca  EXCULPATORY STATEMENT Statements (incl. in written form/document) that relieves the defendant of guilt or responsibility 2021-03-22 46 mleoa.ca  SELF SERVING STATEMENT  Given by the accused to serve an alibi later introduced, or defer attention from themselves to another focus  It only serves their purpose. 2021-03-22 47 mleoa.ca  REVIEW & QUESTIONS 2021-03-22 48 mleoa.ca