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Admission of Evidence
To be admitted into court, evidence must be relevant. Relevant evidence would be anything that makes a fact in the indictment more or less likely to be true. For an assault charge, any evidence about the victims injuries would be relevant to proving an assault occurred. Likewise evidence of no injury would be relevant to the defence, especially if the charge was assault causing bodily injury. Any evidence tending to show the location of the accused during the incident would be relevant. The fact that the accused assaulted the same victim a week prior would be relevant because it shows specific propensity towards violence to the victim.
Relevance is necessary to admit evidence but it is not sufficient. Say there exists evidence that the accused assaulted the same twice, with month between each assault. The probative value is high because the behavior is very similar to the charge. There is also potential for prejudice due to this evidence. The judge or jury may dislike the accused due to his violent behavior and refuse to fairly consider his story about the second assault. See R. v. Seaboyer for better understanding of this evidentiary requirement.
The following rules should be used to decide what evidence you are going to present and how you will get it admitted. If you believe the crown's question to a witness breaks one of the rules or will cause a witness to answer in a way that breaks the rules you stand up immediately and say to the judge that you object, then you name the rule you think was broken.
Similar Fact Evidence
Similar fact evidence relies on the principal that people have behaviors that repeat. If two crimes are committed in a similar way it may be because the same person committed both. Factors to consider are the:
i) time between the alleged incidents,
ii) the possibility of collusion between witnesses,
iii) the strength of the identification evidence linking the defendant to the incidents. See this case of bank robberys in Montreal where the suspect was identified by the colour of his cell phone and his lack of an English accent.
Once classified as similar fact evidence proof of the first incident is admissible to show the second, similar incident, was more likely to have been committed by this defendant. Without first being ruled as similar fact evidence by a judge seperate prior bad acts by the accused are considered bad character evidence and inadmissable.
Physical things that are relevant to a trial are termed 'real evidence'. This can include recordings, photos, narcotics, blood samples, latent fingerprints, computer hard drives, etc. In order to be admissible the object must be authenticated. This first entails
When one side calls a witness to the stand it is called direct examination. During a direct examination leading questions are not allowed. A leading question is one that implies an answer (Did Mr. Defendant strike you in the face outside the bar?). Leading questions often provoke merely a yes or no answer. The result is the lawyer testifying, not the witness. When conducting direct examinations your questions should begin with who, what, where, when, why or how to avoid leading the witness. Prepare your witness for court by making sure they know what information you need from them including details. Questions used to introduce a witness to the court like occupation, city of residence etc. should be asked in a leading way when it is irrelevant to the case because it saves time.
On rare occasions the crown/defendant's own witness will become hostile and refuse to answer fully or tells a story different from what they previously told you. In this case section 9 of the Canada Evidence Act may allow counsel to cross examine their own witness. In order to succeed under s.9 the witness must be proved to be hostile. Hostility may be inferred from the demeanor of the witness or from his answers. Another way to show hostility is to prove that the witness made a out of court statement that contradicts his in court testimony, then, s.9(2) allows you to cross examine the witness on why their story has changed. Then if judge decides that the witness is hostile counsel is allowed to introduce bad character evidence (like previous convictions) and ask leading questions.
If you believe that a witness you require may not attend court voluntarily you can get the court clerk to issue a subpoena which, after being served personally on the witness, compels their presence in court. In these cases you shoud be extremely cautious as you may no longer like what your compelled witness has to say.
In Ontario Civil proceedings section 53.01(4) allows a judge to permit leading questions if the witness is unable or unwilling to give answers. FORM53A is used for civil summons.
The credibility of a witness is relevant to the likeliness that their testimony is true. General questions testing credibility by asking of past fights or other reasons to dislike the accused are admissible. Any witness convicted of fraud or perjury could be questioned on that.
Say you know a witness will lie in response to a certain question unrelated to the case at trial ("You cheated on your husband with Ricky"), and you have proof of the lie (Ricky is in Court and he brought photos!). Koufis v. The King states that "credibility cannot arise in connection with questions relating to an extraneous matter that has not been opened by the [direct] examination". So unless Mrs. Witness proclaimed her fidelity to her husband previously her credibility cannot be attacked with Ricky. Ricky's testimony would be inadmissible. This is called the rule against collateral attack. This in turn leads to critical advice to any would-be witness: do not make statements about how nice and good you are on the stand. You may open the door and allow evidence against your credibility that would have otherwise been inadmissible.
The accused has extra protections against bad character evidence. Should the accused choose to testify and have prior convictions, s.12 of the Evidence Act allows the crown to ask about previous convictions. If the past conviction was for a very bad crime long ago then the past conviction may be excluded with a Corbett application. Even if the conviction(s) are admitted the crown is only allowed to ask questions such as: Were you convicted of mischief on Jan 11 2009? They cannot ask about the details or circumstances surrounding the convictions.
Normally witnesses leave the courtroom and never hear other witnesses testify. This prevents later witnesses from matching the stories of the first ones. The exception is the defendant who must be present for the whole trial. To ensure the defendant does not lose any credibility the defendant should always be called first before other defence witnesses (assuming the defendant chooses to testify).
If the defendant does take the stand the crown will cross examine him. During this cross examine the crown should never ask the accused why another witness is lying. Questions like "What possible reason does Mr. Witness have to lie in court under oath?" are irrelevant and put the pursuasive burden on the defendant, contrary to the law.
Rule Against Oath Helping
No witness may claim to know that another witness is honest. It is the judge or jury's job to decide how believable each witness is. The police witness should not testify the following: "Mrs. Victim was giving a story that was credible, with detail, believable..." If this happens object immediately.
A witness can be honest and credible but still mistaken. Often it is easier to convince a jury the witness is merely mistaken and not lying. Reliability can be attacked by showing the witness had poor conditions for observation (dark, blocked view, etc) or by showing the witness was intoxicated, ill, or nearsighted. Details of the crime given to a witness by the police, media, or crown can corrupt the witness's testimony.
To test a witness' reliability ask them what the weather was like on the day in question. Go to the scene of the incident and photograph anything remarkable or memorable. Ask the witness of these things along with the general layout of the location. If the witness answers incorrectly you may need to call your own witness to contradict them. Judges can take only limited judicial notice of the weather (example: a judge will not need testimony to help decide that Hamilton is cold in February, but would need testimony to decide that it was overcast on March, 17th 2015).
Reliability is especially important when identification is at issue. The police may have done an improper lineup to identify the accused. A witness should be given a stack of pictures and told the suspect may or may not be present, they should be made to go through the stack one at time so they cannot compare one photo to another. If a witness is given one page with photos of six faces they tend to just pick out the one that looks most similar to the suspect. Request disclosure of video of the photo lineup. If the proper procedure was not followed or if no video exists you should cross examine the officer who did the lineup. Consider asking the officer if they had ever shown a photo lineup containing no pictures of a suspect was included. This would have helped the officer make sure the ID witness is not unreliable.
Cross On Previous Statements
Often the police disclosure will contain transcripts of conversations with witnesses. While the witness is testifying you must pay close attention to this statement. If the witness changes their story you can use the statement to discredit them. This would go as follows:
Counsel: You made a statement to at the police on Jan 26th 2001? (describe where and when of the statement)
Counsel: you knew that your information would be used in a criminal investigation and therefore needed to be complete and accurate? (You signed the statement endorsing the truth of its contents? etc etc.)
Counsel (After asking to approach the witness): Please read this part of the statement (the contradiction). Is that true?
Witness: Yes/No (either way they lose)
This approach is very useful to discredit a witness but the witness' probable explanation should be anticipated. You may not like the reason their story changed, say if someone threatened the witness after the police interviewed them. Also, the above approach can be modified if the witness omitted important details in the statement that they now conveniently recall in Court. If you like the old statement better that the new testimony the following may get the witness to adopt the old statement.
Counsel: Your statement was given 2 hours after the incident so the details would have been fresh in your mind?
Counsel: It has been 14 months since that night.
Counsel: Your recollection on that night would have been more accurate than today?
Counsel: Asks the witness to read the part of the statement they want them to adopt.
Counsel: This part of the statement is true?
Witness: Yes (hopefully)
All this requires a previous statement. Possible sources include court transcripts certified by the registrar, or video/audio recordings, perhaps even email, text or other documents. Section 11 of the Canada Evidence Act allows you to prove previous oral statements when a witness at trial denies they made the out of court statement. You prove this by calling as a witness a person who heard the oral statement.
Rule in Brown v. Dunn
In a trial the crown's witnesses all testify first, before the defence's. This means that the crown witnesses cannot respond to the accused's version of events because they have not yet heard the accused testify. In order to preserve trial fairness the defendant's counsel must confront the crown witnesses in all the ways in which their story is different from the accused's version of events.
The scope of this rule is described in R. v. Drydgen. Any evidence you intend to tender that contradicts what the witness said or lowers the witness' credibility must be brought up on cross examination so the witness can respond. Just because the crown witness and yours have differences in their stories does not make them contradictory. It is only when the differences are mutually exclusive (the two versions could not both be true or are unlikely to both be true) that this rule applies.
Any statement by the accused to the authorities, made outside Court, and tendered by the crown falls under the rule for confessions. This includes statements where the accused admits to nothing criminal. These statements are inadmissible unless the crown proves, beyond a reasonable doubt, that the statement was given voluntarily.
The judge looks for specific criteria, described in R. v. Oickle to decide if the accused voluntarily chose to speak. Any threats, direct or veiled, by the police will almost certainly render the statement involuntary. This can include threats to arrest or interrogate other persons close to the accused. Promises or inducements made in the form of a quid pro quo (like a confession in exchange for ignoring a more serious charge) will also often result in an involuntary statement. The police told Oickle that he failed a polygraph (lie detector) and thus they knew he was guilty so Oickle confessed. The deception by the police (polygraph results are often inaccurate and are inadmissible in Canada) was not enough to render the statement involuntary. Generally, police deception claiming to possess incriminating evidence does not negate voluntariness. The defendant must have an 'operating mind' during the statement so any evidence of intoxication or mental disease would be relevant. R. v. Ducharme describes how the entire confession should be videotaped if made at the police station. Lack of video undermines crown's ability to prove the voluntariness, especially if the crime is serious and the confession occurred at the police station.
Persons in authority include police, corrections officers, those acting on behalf of police, and any persons the accused reasonably believes to be agents of the prosecution. An undercover informant is a police agent. If the accused was unaware the person was an informant then they would not be considered a person in authority.
If the confession is admitted then any exculpatory parts should be admitted as well (despite the lack of a hearsay exception). This is especially important where the accused proclaims their innocence for hours before the police finally get an admission. It is highly relevant if the defendant confessed becuase they though it the only way to end the interrogation. The judge shouldn't tell the jury that the incriminating parts are more likely to be true than the denials. See R. v. Rojas.
Hearsay is testimony where the original speaker is not present to testify in Court. The statement must be used for its truth in order to be hearsay. Depending on what purpose it is used for a statement may or may not be hearsay. (Example: witness testifies that Moe told her Mr. Burns owned a revolver. This is hearsay if used to prove that Burns had a gun. It is not hearsay if used only to prove the witness had reason to fear the Mr. Burns because she thought Mr. Burns was armed). Presumptively hearsay is inadmissible. This is because the declarant did not have to swear an oath and cannot be cross examined on their statement. Here is a list of exceptions where hearsay is admissible:
Dying Declaration: The declarant must believe they are about to die and name the person responsible for their wounds.
Res Gestae: translates roughly to 'things done'. Something said in response to a physical or visual sensation ("Don't tase me bro!") or a statement occurring during commission of an offence ("Hand me the keys you fucking cocksucker").
Stated Intentions: The declarant says they are going to Hagarsville for a few days. Unless there is reason to suspect the truth of the statement.
Business Records: made in the ordinary course of business by a qualified person. 'Best Evidence Rule' allows opposing counsel to request the original document.
Past Recollection Recorded: is often used when a witness can no longer remember what they told police during an investigation. Allowable if a reliable record was made during the out of court statement and the record was made while the witness' memory was fresh. See R. v. Sipes where the record was a drawing.
Statement Against Own Interest: a statement that makes a person look more guilty of a crime or admits any sort of liability. ("Sorry, I totaled your car.") Includes confessions given to civilians.
In case none of the exceptions apply there is a possibility the hearsay is still admissible. The hearsay must be both necessary and reliable. There should be no motive to lie. If the original declarant is alive and available it is often hard to prove the necessity of admitting the hearsay.
The police collect fingerprints from most accused charged criminal offences. These prints are stored in a electronic database (AFIS) that continiously searches all crime scene prints against all prints from arrested individuals. The extremely interesting and thoughtful descision of Justice Funt in R. v. Bornyk (which has since been overturned on appeal to the BCCA) explains the police procedure for matching fingerprints along with possible attacks the defence can run against this evidence:
1) The police have a specific, detailed, and orangized procedure for determining print matches. The problem is that despite all these facts the process is still subjective and not always reproducible. Get the police to admit this in your cross examination.
2) Due to the subjectivity inherently involved in a match the fingerprint officer shoud be able to show the judge/jury the parts that match so the judge/jury can "trust in their own eyes". If the judge cannot see the parts used to match the prints then you should argue that the testimony be disregarded.
3) In the RCMP any fingerprint analyst who makes a single mistaken match losses their credentials and cannot do this forensic work again. After a match is made by one officer another officer must verify the match. If the verifying officer does not agree then one of the two officers is at risk of lossing their certification. This presents two avenues of attack, first both officers have a strong motivation to agree for personal reasons, they don't want to loose their hard won professional qualifications.
4) The second reason is that no RCMP fingerprint officer will ever have made a mistaken ID. (They really like to admit this on the stand) The problem is that it is useful for people to learn from mistakes so they know how to improve.
5) If the verification officer does not testify then the original matching officer cannot refer to their confirmation of his match, this is hearsay.
Information from Detective Miller of the Hamilton Police Forensic Branch is that their Officers are also removed for making a incorrect match. They also must verify each others matches. I would request disclosure on the training and matching procedures if I were to be faced with this issue at trial. A match is much weaker when police recover only a single print and they cannot tell which finger on the defendant the print came from. More reliable are mulitple print matches from known fingers. Note that everyones fingerprints change over time. Gather and read sources listed in paragraph 32 in R. v. Bornyk for useful material to use in your cross examination.
Quashing Search Warrants
Often evidence will be gathered as a result of judicial authorization to search a location or arrest a person. If the underlying authorization can be removed this evidence may become inadmissable at trial. In order to get a warrant police need to present a judge with an ITO (information to obtain) containing reasonable and probable grounds to believe that an offence has been or is being committed, and that the authorization sought will afford evidence of that offence. This hearing is 'ex parte' meaning only the crown is present. This fact obliges the police to include any known facts that hurt their application.
This procedure presents several avenues for attacking a warrant. First, the accused can argue that the police withheld relevant information that would have resulted in the judge denying the warrant. Second, the accused can argue that the police had no reason to believe part or all of the ITO and that once this part is removed the ITO is no longer sufficient to sustain a warrant. Third, the accused can argue that the information used to obtain the warrant was itself obtained in violation of the Charter just as in R. v. Kokesch. To show the judge what the police really knew the information from the disclosure package should be used to cross examine the officer who swore to the ITO.
Just because the warrant is valid does NOT mean the way the police searched was reasonable. In R. v. Genest the police attacked the house with a small army without announcing their presence and requesting entry. In order to justify this extreme approach the police would have needed to show that the accused was armed or violent or that evidence would be destroyed if they did not immediately storm the house. Following this reasoning a no-knock warrant would be more likely to survive a challenge if the target was a crack house as compared with a grow-op. It is interesting that two of three Alberta Court of Appeal justices strongly disliked the police wearing balaclavas when serving a search warrant in Cornell v. R. and an Ontario judge ruled unreasonable a search where police dumped everything on the floor.
Things to Look For In a ITO:
- requests (to seize or search for things) that are NOT supported by the evidence (like to seize firearms during a search for stolen property).
- missing information which would make the judge think it less likely the accused was involved in the offence (Look in the disclosure and do your own investigation, what did the police really know about the accused, informants, or other suspects. Talk to people).
- any incentives offered by police to informants should be included in the ITO along any reasons to distrust the informant.
- information that attacks the accused's character and is irrelevant to the offence under investigation.
- any serial number, mode number, or name used to identify an object that was searched/seized should be checked for correctness.
- the Narcotic Control Act requires an officer named in the warrant must shown up to searches of dwellings and: "The naming requirement ensures that there is at least one officer who is responsible for the search, who must be personally present and must supervise the search. Because of the greater infringement of the individual's interests caused by the extensive power to search a dwelling-house, some officer must be accountable for the way the search is carried out. The courts have consistently held that a failure to name the officer in a s. 10(2) warrant means that the warrant is invalid: Re Goodbaum and The Queen".
- a warrant issued under s.443 of the Criminal Code must be executed during the day.
- the search warrant presented to you by police should be signed by a judge in order to show judicial authorization.
- if the search was authorized through telephone section 487.1(4)(a) of the criminal Code requires an explanation of why it was not practical for police to go in person to a judge or justice of the peace.
There is legal protection for "private communications" which are communications that the sender would not expect unintended people to receive. A letter posted to an individual would be private since only the recipient would be expected to read it. A radio broadcast would not be private since anyone can tune in. What if the broadcast was encrypted? Section 9(1)(c) of the Radiocommuncation Act makes it illegal to break satellite or other programming encryption but I could find no law prohibiting decryption in general.
Usually, a judicial warrant based upon probable cause is necessary to legally intercept any private communications. "Intercept" does not include police listening with only their ears to a conversation. You can legally record any conversation you are a part of. You need the consent of only a single participant of a conversation in order to legally record the whole thing (think police informant).
In order to be valid wiretap authorization must state: 1) the offences being investigated by the wiretap, 2) the type of communication, 3) the identity of the people or places targeted, 4) the period of validity (60 days from issue).
Regarding the risk of recording in general, if you and your friends are arrested and the police put you all in the same place assume that you are being recorded. In certian situations the police have planted bugs and used parabolic microphones to listen to supposed criminal conversations. A warrant would certianly be required to enter private property and place a bug without consent of the owner.
An informant is invariably getting something in return for their testimony. The police often reduce charges or provide support for bail or parole applications. You should cross examine the informant as to what they expect from the crown and ask them what charges they are facing. Find out if their trial or sentencing hearing has been delayed and if so why. The exchange is implicit and the crown will specifically state in writing that the informant will not be rewarded but common sense states that no criminal would freely assist the crown. You must prove this a 'quid pro quo' transaction because this provides the informant with an incentive to lie. Try to prove that the informant is a bought witness.
If the informant is valuable the police may try to conceal their identity so they can be used again. In Bisaillon v. Keable Justice Beetz said a witness cannot be asked if they are a police informant. Obviously, confidential informants will not often testify, but their hearsay can be used to convince a judge to issue a search warrant. It is not illegal to investigate who the CI is on your own but publicly outing the informant could attract a charge of criminal negligence. If you suspect that you are under survellance by a police informant you should discover if any friends of yours have recently been arrested, charged with a crime, or has had their homes searched. Arrest records and charge sheets (concerning those 18 years and older) are, by default, open to public inspection upon request at the court registry. Court hearings scheduled for tommorow are listed online, these lists include names. The court may seal certain information, including names of defendants.
The law on informer privilege is complicated. If the informer is a 'material witness' to the alleged offence their identity would not be protected. Similarly, if the police direct or influence the course of events between the informer and the accused, it may well be that the person is an agent of the state and is not protected by informer privilege. In R v Broyles (1991), 68 C.C.C. (3d) 308, the Supreme Court of Canada adopted the following test to apply in instances in which the informer receives information directly from an accused: “Would the exchange between the accused and informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?” If such an informer makes false statements to induce the commission of an offence their testimony alone would often not be enough to convict.
It is important that a informant who buys drugs bn behalf of the police be searched by the police before the alleged purchase transaction. If the police fail to do this the seller could argue on court that the informant brought their own drugs to the . Many people who buy drugs to help the police are themselves facing criminal charges.
Searches by K-9 Units
The ability of dogs to identify certain scents is better than any technology in existance today (source: some DARPA study). This usually means that a police dog's positive signal (usually barking or laying down next to the scent's source) is probable grounds for a physical search. The dog sniff itself is also a search in of itself but it requires only resonable suspicion of a criminal offence. (NOTE: that the dog in this case had a claimed success rate of 90-92%)
To attack these grounds three themes must be communicated to the court. Firstly, it is the nature of a dog to please its human master. Second, dogs are excellent readers of human body language. And thirdly, the traning and rewards given to the dog make the dog more likely to please its master and less likely to correctly identify the target scent. The first theme is a direct result of natural selection. A dog that people didn't like didn't get fed and probably never lived long enough to reproduce. With police dogs this trait is even stronger because they are bred specifically to have a higher drive to please the master. The extreme extent, and overriding nature, of this breeding is apparent when police dogs sometimes break off their own canines while biting a suspect. No wolf who exhibited this behavour in the wild would survive. The second theme is related to the first. Dogs that can read human body language know when their behaviour is approved of by humans. Both natural selection and breeding favour this ability. The third theme ties the first two together: It has been proven scientifically that some police dogs will signal the precence of drugs no matter what as long as they think they will be rewarded. The dogs know when they are expected to signal because they can accurately read the handler's body language including his attitude towards the suspect. In U.S. v. Bentley a dog handler gave the dog food every time it signalled even if there no drugs. Traning and rewarding the dog in this way pretty much destroys its value as a reliable indicator of drugs.
To prevail in court you will need to request disclosure of police dog training material and records and then use this to cross examine the dogs handler. Your goal is to show that the dog's basic nature combined with flawed training and the handler's expectation of a postive signal made it unreliable (thus removing the probable grounds to search required by the Charter of Rights). People like dogs (see above), by placing the blame on the handler's biased beliefs you have a higher chance of convincing people to distrust the pair's results. Crucial to your odds of success is whether the dog was trained and tested using a 'double blind' setup. (where the handler, along with the dog, is completely unaware and unbiased about where the drugs are hidden) Without any proof that the dog passed double blind trials is no scientific basis for accepting the dog's signals. You may also want cross examine the handler about the dog's false positive rate and how it is measured.
Almost any person including a child can be called to testify at a trial provided they have relevant information and are competent (not crazy). If the witness refuses to answer they can be held in contempt of court until they agree to testify. Clearly there are limits to this; both the accused and their lawyer know lots of relevant information but can almost never be forced to testify. The Common Law and s.4(3) of the Canada Evidence Act protects one spouse from testifying about the private communications they recieved from the other spouse. Seperately, if one spouse witnessed the other commit some crime and the crown subpoenas them to the trial the witness spouse can usually choose whether to testify or refuse. This immunity for the witness spouse is born of the Common Law. The main difference between your spouse and your lawyer is that your spouse can volunteer to testify against you while your lawyer cannot.
There are other weaker types of privilege that cover doctors, therapists, and priests. In these cases the judge decides whether the benefits of confidentiality to the doctor-patient relationship is more important than the value of the doctor's testimony in the trial.