7. Evidence

Evidence is defined as “the facts used to support an assertion or conclusion”. The judge will decide based on the evidence that is presented at trial.

It is the responsibility of the Crown to prove beyond a reasonable doubt that you committed the offence(s). This means that if the judge or jury has some doubt that you did it, they cannot find you guilty. To determine if the Crown can prove this take a look at what evidence the Crown plans to use. Evidence is also important to prove a defence, if you plan to present one.

Disclosure

The Crown is required to give you copies of the information that they have against you and the evidence that they intend to call at your trial, including the exhibits or documents they intend to enter as evidence, as well as any other relevant information the Crown does not intend to present. This is called disclosure. This should include all relevant information, whether it is favourable or unfavourable to your case.

Usually you receive at least an initial disclosure package on your first appearance, but it may not be ready at that time. If you have not received disclosure from the Crown after your first appearance, or you think the disclosure you have is incomplete, you should contact them.  See section 2.3 Disclosure for more information.

Rules of evidence

Only evidence that is not privileged (excluded for some legal reason), but is relevant and material to your case is allowed to be presented in court.

Relevant: evidence that relates directly to the issues in your case.

For example, if you want to show a witness to a robbery is unreliable:

• Relevant Evidence: the witness’ history of lying (having a record for perjury or whose evidence was not accepted in a previous case.
• Not Relevant Evidence: the witness’ sexual history.

Material: evidence that is important or essential to the issues in your case.

For example, if you want to show that a Crown witness is unreliable

• Material Evidence: the witness has a conviction for perjury a year ago.
• Not Material Evidence: the witness has a youth conviction record for shoplifting 40 years ago.

If the Crown feels that any evidence that you introduce is not relevant or material, they may object and ask the judge to exclude the evidence. Likewise, you too have the right to object to any evidence introduced by the Crown if you believe that it is irrelevant or immaterial. To object, simply stand up and when the judge recognizes you, let the judge know what you object to and why you object.

You can also object if the Crown wishes to introduce evidence that may be protected by privilege. Evidence may be privileged if, for example, it concerns legal advice from a lawyer you have consulted or hired to represent you for part of this lawsuit. There are other examples of privilege.

Sometimes, the identity of the person who made a document or made a statement may be in doubt. As a result, the evidence may be unreliable. Unreliable evidence may be excluded or not given any weight (importance).

Hearsay

There are certain types of evidence that are not generally allowed. “Hearsay” is information being offered for the truth of what was said, but is something that you (or another witness) learned from someone else, without the witness having first-hand knowledge of it. Hearsay evidence is generally not allowed, but there are exceptions. This is a complex area of the law, on which you should get legal advice, if you don’t understand it. Here just the basics will be provided.

If you want to prove Jane rode her bike yesterday:

• “My brother told me that Jane Smith told him that she biked to work yesterday” is hearsay.
• “I saw Jane Smith arriving at work on her bike yesterday” is not hearsay, because you observed it.

If John testifies that he heard Mary say that she wrote a note, it would be hearsay if you wanted to use John’s statement to prove that Mary wrote the note. However, it is not hearsay if John actually saw Mary write the note and testifies that he saw her write it.

Exceptions to hearsay

Sometimes, hearsay can be introduced as evidence. In order for hearsay to be admissible as an exception to the rule that hearsay is generally inadmissible, the evidence must be necessary and reliable. The judge will also weigh the probative value (importance) and the prejudicial effect (potential harm) of the evidence.

• Necessary: Hearsay evidence is necessary if it is important evidence and there is no other way to have the evidence entered. For example, if an eye witness died but they made a statement to the police soon after the offence.
• Reliable: Hearsay evidence might be reliable if it can be trusted because of the circumstances in which the statement or document was made. For example, a statement may have been videotaped or made under oath. It must come from a reliable person, or it must be shown that the person who made the statements had no reason to lie.

Find out if the Crown is going to use such evidence. The following are some common exceptions to the hearsay rule:

Unavailable witness: Hearsay evidence might be necessary if the person who saw or heard something is not available to the court or is suffering from some disability. For example, hearsay evidence may be necessary and admissible if a witness has died and therefore cannot testify.

Business records: Another exception to the hearsay rule, under legislation in the Canada Evidence Act and provincial / territorial evidence acts, is business record evidence. For example, statements and records prepared in the usual course of business, by a bank, or company, are generally admissible as proof of the information set out in the statements or records, as long as:

• the statements or records were made in the ordinary course of a person’s/company’s duties;
• the witness has personal knowledge of how the statements or records were made;
• the witness had a duty to make the statements or records; and
• the witness has no reason to misrepresent or lie about the contents of the statements or records.

State of mind: Hearsay evidence can be introduced not for the truth of what was said by someone who is not a witness, but to show the witnesses’ intentions or state of mind when they were told something – e.g. “Alice told me that there was a truck coming fast down the hill, that appeared to have no brakes, so I took evasive action to avoid it”. In this example, you can introduce evidence of statements made by the other person as a basis for your state of mind or intention. However, when you introduce such evidence, you cannot take the statement out of context. You also cannot only provide the parts that you wish, and you cannot unfairly edit the other person’s statements. You must put the whole of the statement to the court.

Admissions by you, the accused: Any admission you may have made may be placed into evidence by the Crown (not by you), if certain conditions are satisfied. For example, the Crown may ask the judge to allow it to introduce into evidence a statement that the Crown says you made to the police. But before the Crown is allowed to place the statement into evidence, the Crown must satisfy the judge, beyond a reasonable doubt, that the statement the Crown wants to admit was made by you and that you made it voluntarily.

“Voluntary” generally means that the police did not threaten you into making the statement. It also means that the police did not induce you make the statement (e.g. promise that things would go better if you made the statement). The Crown must prove that you knew what you were saying when you made the statement. If the Crown cannot prove these things, the admission will not be allowed.

In legal matters, there are two types of evidence:

• “Real” Evidence (Things): This can be any physical or electronic record or document (discussed in more detail below) that provides information, (e.g. contracts, receipts, emails, pictures, videos, etc.), or any type of thing (e.g. drugs, weapon, clothing, blood sample); and
• Oral evidence: This is testimony given in court (e.g. by a witness or the accused).

Oral evidence may be direct evidence (the witness saying “I saw that it was raining outside”) or circumstantial evidence (“I believe it had been raining outside because X can in wearing a rain coat that was covered with water drops”). The evidence should support your position and allow the judge to make the conclusion you want. For example, if your conclusion is “it is raining outside”, your evidence to support this might be that the witness saw it raining, or that the witness had good reason to assume it was raining because, of the wet raincoat.

Document evidence is not just paper documents. Document evidence could be a picture, video, sound recording, text message, email or something else, introduced by agreement of the Crown and the accused, or referenced in the evidence of a witness. The Crown will most likely need a range of document evidence to prove their case. For example, in a criminal case documents might include photographs of the crime scene, police statements or 9-1-1 call recordings.

If you plan to put documents into evidence, you need to have your document evidence organized, and present it to a Crown witness to verify it, or, in your evidence, put it in by agreement of the Crown, or through a witness you call.

Things that have been entered into evidence are called “exhibits” and each exhibit is logged in the court’s record. Each exhibit is numbered for easy reference. You should make a list of the things that are entered into evidence and their exhibit number, or ask the court clerk for a copy of the exhibit list at the end of each court day.

If you wish to enter a document, photograph or object as an exhibit, you must either have the agreement of the Crown or have a witness identify the thing. Identifying the thing means that the witness is able to say that they made, saw or had possession of the thing and that they recognize it.

You must then show the item to the Crown, and then ask that it be entered as an exhibit. The judge will consider whether it is allowed, and then enter it or refuse to enter it as an exhibit. If it is entered, the court clerk will then assign a number to the exhibit.

When an exhibit is a written document that you want to rely on to support your case, you must prove that:

• it is accurate;
• it fairly represents the facts and is free of any intention to mislead; and
• it can be verified on oath or affirmation by a witness (the author or another person capable of doing so).

When an exhibit is an object rather than a document, you must prove that:

• it is relevant to an issue in the case;
• it is authentic or real, for example it is the original object and that it has not changed in any way that could be misleading; and
• you must be able to account for everything that happened to the object (called continuity) since you acquired it.

When the exhibit is a photograph, videotape, audiotape or any other kind of recording, like a computer file, you must prove that:

• it is accurate;
• it fairly represents the facts and are free of any intention to mislead through, for example, editing or camera angles; and
• the witness (the person who made the recording) can verify it on oath or affirmation.

Ideally, it is best if you can put the original document or recording into evidence. However, if you cannot produce the original, you may be able to get someone to authenticate the copy if authentication is required.

Steps for dealing with document evidence

• Gather: In criminal cases, the Crown should provide you with the disclosure package with the relevant documents that the Crown has. Collect any additional documents you want to rely on that are relevant to your case, (e.g. receipt, assessments, emails, medical records, etc.). Make sure you have each witness’ statements and notes. If you think you are missing a document, write to Crown to request it.
• Organize: You need a system for sorting all of the document evidence you will gather or that has been provided to you by the Crown. It will be helpful to have a series of containers to hold the document evidence. Some people use envelopes, file folders, boxes, and / or filing cabinets. The key is to have a system that will help keep you organized.

Sort your documents according to the issues. Create separate files for each issue. For example, have one file about communications you had with the victim prior to the offence. Alternatively, you could sort by date of when things happened and draft a chronology of events.

As you gather document evidence, you will find it helpful to create sub-categories for some of the key issues. For example, you may wish to separate the police notes and statements by police officer. Whatever works for you – have a system and stick to it.

• Assess: Consider each document. Is it really helping your case? How? Be specific. Judges do not like reading through stacks of irrelevant or immaterial information. Include only relevant evidence that supports the point you are trying to prove.

Third Party Documents

Sometimes, you can ask that someone other than the police give you documents as long as they relate to you or to the witnesses who will give evidence at trial. These are “third party records”. Third parties are not usually obligated to disclose them without their consent or a court order. Helpful third-party records sometimes include: medical records, psychiatric records, therapeutic records, counseling records, education records, employment records, etc.

All of the documents that you intend to use at your trial must be available for the trial. To make certain that they are available, you can ask the third party for the documents, or apply for a court order (usually a few weeks before the trial to allow for the steps that follow) for those documents to be produced. If you wish to make this application, called an O’Connor application, you must serve a copy of the application on the Crown and the person who has those documents. You must also serve a subpoena on the person who has or is responsible for those documents. You will need to show that the documents are relevant. If they are found to be relevant then the documents may be ordered for the judge’s inspection. After inspecting them, the judge will decide what portions of the disclosure will be provided to you. You should seek legal advice for such an application.

Oral evidence is when a person testifies. To testify means to make oral statements in court that are sworn or affirmed to be true. If you decide to testify you are a witness in your own case. We will discuss your testimony and the testimony of other witnesses separately.

You have the right to remain silent. You do not have to testify. The fact that you do not testify cannot be used against you.

During the trial, you will be able to take the witness stand and testify in support of your own position, if you wish. When doing this you will be testifying just like any other witness. You will have to take an oath or affirm to tell the truth. If you decide to testify you will talk about (give your version (narrative) as to what happened) the facts of the case. When you are done, you will be cross-examined by the Crown.

When testifying, you will not be allowed to argue your case. This means that you cannot explain the legal issues or why you believe the court should decide in your favour. The time to make your argument is when all the evidence is finished and you give your closing arguments.

There are some special rules about evidence you can be asked about:

• Criminal record

If you have a criminal record, you may not want the judge and jury to know about any previous convictions, particularly if you have a record of offences like those you are now charged. Before you testify, you can ask the judge to order that the Crown not cross-examine you about all or part of your criminal record. The judge will decide on what part of your criminal record can be used at trial.

• Good character

You should also know that if you say that you are not the type of person who would commit the offences with which you are charged; the Crown will then be allowed to cross-examine you about your character. The Crown can do this whenever you say something positive about your character, even if you just say something like “I am an honest person” or “I never steal”. If you give evidence that you have a good character, the Crown can introduce evidence to suggest that you have a bad character.

The Dos and Don’ts of testifying

If you plan to testify, fill out the Testimony Worksheet before to prepare.

Download the Worksheet

For each issue of you case write out the main points you want to show, what evidence you have to support it and any specific documents you will be presenting.

You may decide to ask people to come to court to give evidence on your behalf as witnesses. This is not mandatory; you can decide not to call witnesses. Some accused persons will decide not to call a witness because they believe the Crown cannot prove their case. However, it is a very strategic decision as to whether you should call evidence – a lawyer’s advice is usually very helpful. Nevertheless, if you don’t call witnesses or testify yourself, a jury or judge will only have the Crown’s evidence on which to base their decision.

If you bring witnesses to court to testify in your defence (you will usually have to subpoena them to come beforehand – see below), they will need to answer questions asked by you, the Crown, and the judge. When the witness you call to court is testifying, you will get to ask questions first.

Who to call as a witness

You may call witnesses to give evidence on any relevant and material issue raised in your criminal case. You should only call a witness if they can give evidence that will help you strengthen your position or weaken the Crown’s case. If you have documents you want to present to the court, you may need to have a witness explain them or verify their authenticity. Witnesses can also give evidence on things they heard or saw. For example, if your neighbour told you about seeing a fire in your backyard, you could have your neighbour provide this information in court, if it is relevant.

Where there is a choice, it is important that the witnesses you choose are credible, articulate, and sincere. You cannot tell your witnesses what to say, except to tell them that they must tell the truth. A witness cannot lie when they answer. If they do, it may hurt your case, and there may be serious penalties against them for perjury, such as a fine or jail time. But it is helpful to review with your witnesses the questions that you will ask and the information they will provide. Be sure the witness understands they may also be cross-examined. It is helpful to consider what questions the Crown or the judge may ask. Remember that it is not the number of witnesses you call that counts, but the relevance and importance of what they have to say.

Calling witnesses

A witness is notified that they need to attend court when you send them a court form called a subpoena to witness. A blank form may be obtained from the courthouse staff. You will fill out the name and address of the witness and serve it (deliver it personally to them) on the witness. In some jurisdictions you will file the subpoena with the sheriffs, bailiffs or other court officials who will serve the witness. You may be required to file the form in court before you serve it on your witness. Defence witnesses are usually not paid, but they may be entitled to compensation from you for travel costs and expenses – check your jurisdiction’s rules in this regard.

If a witness fails to come to the trial and they have received a subpoena, the court can issue a warrant for their arrest.

Remind your witnesses to bring with them any documents they have relating to your case that you wish to bring up during your trial.

Expert witness

In certain situations, you may want to call an expert to present evidence. An expert witness is a person who has special knowledge about something, such as medicine, or engineering, or most anything that may be the subject of special knowledge. An expert witness is called to shed light on issues that are complex and outside of the common knowledge that the judge or jury may possess.

Usually witnesses are not allowed to present their opinions at court. Evidence given by an expert witness is an exception to this rule. Experts can talk about their opinion on something within their field of expertise. Experts cannot offer opinions outside of their area of expertise. For example, a coroner cannot provide an opinion about a forgery, but can provide an opinion about how a victim they examined died. Expert witnesses may be entitled to a certain amount of money from the person who calls them as a witness as compensation for the time spent in coming to court along with travelling and meal expenses.

If you want to present expert evidence in court, you must:

1. Get the expert to prepare a written report;
2. Deliver this report to the Crown before the trial;
3. Have the court accept the witness as being an expert;
4. Notify the expert to come to court in the same way as for other witnesses (see above); and
5. Pay any applicable fees or expenses for the expert witness.

Expert report

For an expert to testify at a trial you need to give the Crown notice of the name of the expert and a description of their area of expertise, as well as a statement of their qualifications. You must do this at least 30 days before the trial (unless the rules in your jurisdiction or a judge specifies a different notice period). You must also serve the Crown with a report from that expert a reasonable time before the trial.  See s. 657.3 of the Criminal Code.   

The requirements for expert reports vary across Canada so you should review your own jurisdiction’s Criminal Rules of Court. Usually, however, the report should set out the expert’s name, address, qualifications and describe what the expert will say at trial. The report must state the expert’s findings, opinions and conclusions. It must also state the documents, calculations and data that they used in reaching their opinions or conclusions.

The judge will not accept a summary of the report prepared by you or another party. The full report by the expert must be used at trial. In most cases, the expert will also have to be at the trial to explain their opinion and answer questions about it.

Once they produce the report, that expert may be questioned by you and the Crown at trial. You can ask about their opinions, including any discussions between the expert and the person who hired the expert.

Establishing a witness is an expert

Before an expert witness can give their opinion to the court, the judge must agree that the witness is an expert. Depending on the practice in your jurisdiction, a voir dire hearing is held to allow the judge to decide this. 

In the voir dire hearing the person calling the expert must convince the trial judge of three things. First, that the expert will actually offer relevant information regarding the case. Second, that the expert is a qualified expert in their field. Third, that the evidence they will provide cannot be excluded for any legal reason.

To show that your expert witness is a qualified expert, it must be established that they have the right training and / or experience to give an opinion on a particular subject. First, tell the judge what subject or field you are asking the expert to testify about (e.g. pathology, psychiatry, accounting, engineering, etc.).  Then ask the expert about their education, qualifications, work, and other experience in that subject area or field. The Crown will then have a chance to cross-examine the expert about the proposed area of expertise and their qualifications or experience in that field.

If the Crown calls an expert witness and you do not agree that the Crown’s expert is qualified, you may cross-examine the expert on their qualifications.

The judge decides if the witness is qualified to give expert evidence, and in what field of expertise.

If the Crown calls an expert witness and the judge accepts that they are properly qualified to give their opinion as an expert, you still have the right to question the expert about the facts they relied on to form any opinion they give. You can still disagree with the expert’s analysis or conclusions. When you cross-examine the expert, you might focus on showing that the facts used by the expert in forming the opinion are different than the facts in the case. Or, that the opinion itself is wrong.

If the judge decides that the expert is not qualified, that witness may still give evidence about facts of which they have personal knowledge, but they are not allowed to give opinion evidence.

Take inventory of your evidence (both documental and oral) and fill out the Evidence Inventory Worksheet. This will help you keep track of your evidence so you can recognize any gaps in your evidence, can be sure to ask key questions and can present a stronger case.

Download the Worksheet

Fill in the worksheet organized by issues. Identify the issue the evidence falls into, what the evidence is and any identifying details about it, and why the evidence is important to your case.

For example: Issue: proving self-defence; Evidence: video recording outside bar; Specifics: recording shows other guy coming at you with a knife, attacking first; Relevance: had to hit him in self-defence.