Anyone mounting a defence against criminal charges in Ontario needs to understand the role evidence plays in the court system’s determination of guilt or innocence. In most cases evidence becomes the benchmark from which the court determines whether criminal charges have been proven beyond a reasonable doubt. The role of evidence is so important that protocols in the Canada Evidence Act guide how evidence should be considered and used by the courts during trials.
While an experienced criminal defence lawyer will be familiar with the Act and how to best use or respond to evidence introduced at trial, the lawyers of Mass Tsang have drafted this short primer on the different types of evidence and how each is addressed at trial. This should help those facing criminal charges better understand what evidence-related challenges they might face at trial, but those charged with criminal offences should always seek the services of a skilled criminal lawyer to ensure the best possible outcome. Mass Tsang lawyers have successfully defended 1,000-plus Greater Toronto Area clients from criminal charges and stand ready to help you with your criminal defence.
Direct Versus Indirect Evidence
In general, there are two overriding evidence types: direct evidence and indirect evidence. Direct evidence refers to evidence that can be presented to show that the crime happened without the need for interpretation. A confession, eyewitness accounts of the actual crime as it was being committed, and security camera footage of the crime are all types of direct evidence.
Also known as circumstantial evidence, indirect evidence includes any evidence that may not prove that the offence occurred on its own but, when combined with other evidence and interpretation, may add up to prove guilt beyond the reasonable doubt threshold. Fingerprints or DNA found at a crime scene are a type of indirect evidence, as are witness accounts that can demonstrate a connection between the crime and the accused. Circumstantial evidence can also be used to show that the accused had the intent, opportunity, motive, and tools to commit the crime.
Whether direct or indirect, evidence needs to have relevance to any elements of the charges that need to be proven in court. Because relevance can be subjective, evidence is often challenged on this basis.
Understanding Inculpatory and Exculpatory Evidence
Inculpatory evidence is the term used to describe any direct or indirect evidence that links the accused to the crime. Exculpatory evidence describes any direct or indirect evidence that can show how the accused is not linked to the crime. Inculpatory evidence is typically entered into trial by the Crown and exculpatory evidence generally introduced by the defence. However, either is subject to being challenged in a manner that may reverse its usage. For example, if the defence challenges inculpatory security camera footage by showing that the images suggest that the perpetrator is five inches taller than the defendant, the evidence might raise enough reasonable doubt to become exculpatory.
Boosting A Case with Corroborative Evidence
The term corroborative evidence describes any evidence that is being used to bolster other evidence that has already been introduced to the court. Forms of this evidence can include witness testimony that closely matches that provided by another witness, or physical evidence that was described by a witness. Most evidence introduced by the crown tends to be corroborative because it all adds up to surmount the reasonable doubt threshold.
The Problem with Hearsay
The term hearsay refers to evidence that a witness has learned about from another party. This can be in the form of verbal discussion or written communications. Hearsay is generally inadmissible at trial because it is not a first-hand account and the original communications and its purveyor cannot be assessed by the court or cross-examined by the defence. Exceptions to hearsay exclusion in court include:
- A dying declaration made by a homicide victim.
- Hearsay originally from a child witness who is not competent.
- A witness detailing a spontaneous utterance made by a victim.
Court Rules Relating to Evidence
Combined with the Canadian Charter of Rights and Freedoms, the Evidence Act helps dictate pretrial evidence handling as well as its use during trial. The Charter deems that anyone charged with an offence has the right to pretrial disclosure of evidence collected by police investigators and Crown prosecutors. Such disclosure includes everything from all Crown and law enforcement documents involved in the case to witness statements and identification of physical evidence. While failure to disclose evidence can lead a judge to rule the evidence as inadmissible, there are disclosure exclusions, including:
- Information clearly irrelevant to the case.
- Information that might expose an ongoing investigation.
- Information that might threaten a witness’s safety.
- Information deemed privileged.
Physical evidence introduced in court must have been acquired lawfully by authorities, who must be able to detail all elements of lawful search and seizure used to take possession of it. To be admissible evidence must have been acquired by:
- The authority vested in a legal search warrant.
- Consent of a person being searched.
- Part of a search made during a lawful arrest of a suspect.
- Part of a safety search made during a lawful detention of a suspect.
- Observing it in plain view at a lawfully entered crime scene.
During trial, judges have the authority to either accept or exclude any evidence introduced to the court. Judges typically evaluate all evidence to determine its admissibility and both the Crown and the defence can challenge any evidence introduced.
Generally speaking, witness evidence is evaluated on the basis of competence—legally qualified to testify—and compellability—legally permitted to testify. If a witness is lacking in either, their evidence will usually be excluded. Physical evidence is evaluated on a number of factors, including the previously mentioned lawful seizure, as well as how it has been maintained and if it has somehow become contaminated.
Both types of evidence are also subject to examination for potential Charter rights violations. For example, failing to provide the accused with timely consultation with counsel after an arrest could render any related evidence gained as a result of statements made by the accused inadmissible. In excluding evidence based on Charter Rights violations, judges weigh the importance and reliability of the evidence against the damage the violation does to the administration of justice. Thus, a Charter Rights violation does not automatically lead to the exclusion of related evidence.
Consult with Mass Tsang for your Criminal Defence Needs
Mass Tsang criminal lawyers are highly experienced at making the best use of exculpatory and inculpatory evidence introduced at trial in the Greater Toronto Area. Our legal strategies focus in on both the collection of exculpatory evidence and on appropriately responding to the Crown’s evidence received through disclosure.
If you or a loved one is facing criminal charges in the Ontario court system, don’t gamble with your future by defending yourself on your own. Given the potential penalties, criminal record, and disruption to your life that can result from a guilty conviction, contact the highly experienced lawyers at Mass Tsang to ensure the most effective defense for securing the most favorable outcome.