Ontario Police Evidence Session 3 PDF

www.opcva.ca Evidence Session 3 Types of Evidence Admissibility of Evidence for Court Purposes Prepared By: Instructor S. Labanich Presentation Date: January 2023 Version: BCT January 2023SL © Queen's Printer for Ontario General Rule of Admissibility “…it is a fundamental principle of our law...

www.opcva.ca Evidence Session 3 Types of Evidence Admissibility of Evidence for Court Purposes Prepared By: Instructor S. Labanich Presentation Date: January 2023 Version: BCT January 2023SL © Queen's Printer for Ontario General Rule of Admissibility “…it is a fundamental principle of our law of evidence that any information that has a tendency to prove a fact in issue should be admitted in evidence unless its exclusion is justified on some other grounds….” 2 Objectives Learners will be able to: • Understand authorities in relation to evidence • Understand the admissibility of evidence as it relates to the court process • Define the different types of evidence • Recognize terms and definitions related to evidence 3 Evidence Where Do Our Authorities Come From? Canadian Charter of Rights and Freedom Canada Evidence Act Ontario Evidence Act Case Law Common Law 4 Evidence Duty Requirements Duties of a Police Officer s. 42 PSA • Investigate crimes • Apprehend criminals • Participate in prosecutions Law Enforcement Agency policies Ministry of Solicitor General Guidelines • Standards • Directives 5 Evidence Role of the Police Preserve Identify Collect Tender P.I.C.T 6 General Rule of Admissibility Evidence that is relevant is admissible unless excluded by some positive rule of evidence. • Not your job to determine what is admissible. Your job is to obtain and disclose ALL evidence you have collected in your investigation • Collect and tender the evidence, then the court will rule on its admissibility 7 Principles of Admissibility Principle of Relevancy Must be relevant - apply to the matter before the court Helps to prove or disprove the facts in issue 8 Principles of Admissibility Principle of Best Evidence Courts prefer the best or original evidence Not always possible to produce the original (stolen load of meat, large quantities of stolen goods, injuries) If original evidence is not possible to produce may use other means such as: • Photos • Transcripts • Medical Records 9 Evidence Disclosure R v. Stinchcombe SCC 1991 Police are required to provide the Crown (prosecuting Crown) with the fruits of their investigation (evidence). 10 Evidence Disclosure It is relevant if it is • Not clearly irrelevant and/or • May be of assistance to the defence Consequences of non-disclosure • Adjournment • Stay of proceedings 11 Evidence Disclosure May delay disclosure • To protect an ongoing investigation If information is privileged • Informant/solicitor/client Only the person with privilege can give up that privilege Privacy rights of individuals involved 12 Evidence Privileged Information Privileged Information: Information gathered during an investigation which is not disclosed to the defense due to privilege. Examples: • Personal information of victims/witnesses (e.g. address, DOB, phone number) • Information that may compromise the safety of victims/witnesses • Surveillance and investigative techniques • Confidential Informant information • Communication between the Police and Crown 13 Evidence Terms and Definitions Evidence: is something or a set of things used in combination that if permitted by the court are helpful in forming a conclusion or judgement. What types of things constitute evidence? • Testimony • Documents • Real (objects) 14 Evidence Testimony Testimony: witnesses relate what they perceive of their own senses in spoken word or any form in which they can communicate Witnesses communicate evidence based on their 5 senses – this is referred to as direct evidence Look in the CEA and find the sections related to a person with a physical or mental difficulty testifying 15 Evidence Testimony Hearsay: evidence that has been told to a witness by others rather than what the witness has observed/experienced directly • Can be used to corroborate what a witness/victim has reported • Is generally inadmissible in court however there are exceptions if it meets the necessity and reliability test • Still needs to be collected. 16 Evidence Testimony Exceptions to the hearsay rule: • Dying declaration • Res gestae statements or spontaneous utterances • Statements made by an accused after RTC, caution (secondary caution if required) • Khan principle (R v. Khan SCC 1990) – in relation to children’s statements 17 Evidence Testimony Competent Witness: Someone that has the capacity to provide evidence • Must be able to understand and respond to questions • Ability may be impacted by age, mental capacity, physical injury (brain injury), impairment by drugs or alcohol • Properly preparing witnesses prior to trial can increase their competence Look up the sections for: Spouses Capacity in Question over age of 14-years Person under 14-years of age 18 Evidence Testimony Compellable Witness: someone who is obligated or required to give evidence Police are notified by their organizations – this is a legal order under the PSA How do we compel someone to court that is not an accused? Subpoena 19 Evidence Real Evidence Real Evidence is something tangible that you can touch Example: • Objects such as a baseball bat, a knife, pry bar, screwdriver, bottle • Hold up note • Photographs left by an accused at a scene or taken by an accused 20 Evidence Documentary Evidence Documentary Evidence: documents that help support the facts in issue and may include: • Crime scene photos taken by Police Identification • Bank records • Cell phone records • Intoxilyzer reports • Certificate of Analysis from the Centre of Forensic Science (CFS) • Autopsy report Notice of Intention to produce these documents must be given within a reasonable time to the accused. 21 Evidence Documentary Evidence Third party records are records that a person (victim/witness) has a reasonable expectation of privacy to. For police to seize/obtain third party records from a victim/witness they must have informed consent or judicial authorization Does not include any records made during an investigation such as officer notes or police reports. What types of records do you have a reasonable expectation of privacy to? 22 Evidence Documentary Evidence Informed Consent: • • • • • • Capacity to give consent Knowledge of what is being asked for Knowledge of the contents of the record Knowledge of the right to refuse consent Consent is freely and voluntarily given Knowledge of the right to withdraw consent before the search is executed • Knowledge of consequences of giving consent • Knowledge of procedures available for asserting or relinquishing rights and having the issue determined by the court • Independent Legal Advice 23 Evidence Corroboration Corroboration is independent evidence that tends to support another piece of evidence to prove a fact in issue. Where do you find corroborating evidence? • Statements of witnesses • Video surveillance recording • DNA evidence • Inculpatory statement of the accused 24 Evidence Circumstantial Circumstantial Evidence: infers or suggests that some fact is true from the existence of other proven facts. A reasonable assumption based on the circumstances. Examples: • A person is seen running away from a crime scene • A person is seen hanging around a house and later the house is broken into • A road rage incident is witnessed and hours later one of the participants in the road rage incident has their vehicle vandalized 25 Evidence Presumption of Fact Presumption of Fact: a logical conclusion which may be drawn from circumstantial evidence, based on reason and common sense Example: you can presume that someone running from a crime scene committed the crime Presumption of fact is arguable (rebuttable) 26 Evidence Presumption of Law Presumption of Law: • Set out and located within the Statute • Can be arguable (rebuttable) or non-arguable (irrebuttable) Examples (to be looked up in the code): • A child under 12 cannot be held criminally liable s. 13 C.C. – irrebuttable • A person is presumed innocent until… s. 6 C.C. or s. 11 CA – irrebuttable • s. 348(2) C.C. Break and Enter Presumptions - rebuttable 27 Evidence Terms and Definitions Mens Rea: intention to commit the act; state of mind to commit the crime The guilty mind 28 Evidence Terms and Definitions Actus Reus: an act prohibited or forbidden by law; the physical act of committing the crime The guilty act 29 Evidence Legal Justification or Excuse Legal justification or excuse: a sufficient or acceptable excuse or explanation made in court that justifies an otherwise illegal/criminal act Examples: • A police shooting is a homicide, however if the officer is justified in using force, then this is a legal justification • Unlawfully in a dwelling – without lawful excuse s. 349 CC • Without colour of right – s. 322 CC 30 Evidence Other considerations – Lost Evidence What if evidence is lost or destroyed? •Is it evidence? •Is it lost? •How did it go missing? Intentional destruction of relevant information to thwart full answer and defense may result in a stay of proceedings 31 Evidence Other considerations – Lost Evidence Test - Can the accused demonstrate that the missing evidence would assist the defense? If it is simply the fact of missing witnesses or documentation of unknown evidentiary value, then the test is not met 32 Evidence Other considerations – Expert Evidence An expert is someone with special knowledge and experience that is outside the knowledge of the trier of fact May include experts to explain behaviour Q: How many experts may each side present? Q: When might police be qualified as expert witnesses? 33 Homework Suggested Reading: Introduction to Evidence study guide - found on the OPCVA under Evidence/Evidence Study Guides 34