Evidence in the Criminal Law

In crime dramas like CSI, we often notice police officers gathering large amounts of weapons and shell in clear plastic bags. These bags have ‘evidence’ clearly marked on their cover, and are later used to convict the suspect. Driving past a real world crime scene, we similarly observe police officers sectioning off pieces of land or property with caution tape. This tape serves the purpose of keeping the public out of harms way, but also to ensure evidence remains unaltered from its original state. It must remain unaltered as it usually determines the guilt or innocence of the individual accused of the crime.

http://www.acpo.org/images/for.jpg

To put forward evidence, means to have information to be used in order to prove or disprove a certain matter of fact. 

The law of evidence uses rules and legal principles that control the proof of facts in legal proceedings. These rules and principles determine what can and cannot be considered evidence, and how much weight is to be given to each piece of evidence. Evidence law is also concerned with the type of proof, quality, and quantity required.

The law of evidence has two main purposes in our criminal justice system. Firstly, this law establishes a set of principles that work to take out facts of no use to the decision maker. In doing so, it helps decision makers like judges or the jury make unbiased conclusions. Secondly, evidence law helps reduce the large amount of information coming before the decision makers; it expedites legal proceedings. In addition, judges exercise a significant amount of discretion for what can and cannot be considered evidence during trial.

In furthering our understanding evidence, It is important to understand the burden of proof as it relates to the criminal justice system. The burden of proof is a party’s obligation to prove something is the case. In the criminal court, this burden or ‘onus’ is placed up on the Crown attorney, who must prove that an accused person has committed the alleged offence. The Crown attorney does this with the aid of evidence. In court, the accused is presumed innocent. In criminal court, the standard of proof is ‘beyond reasonable doubt’. The Crown attorney must be able to prove the accused is guilty beyond reasonable doubt in order to get a conviction or in the youth criminal justice system a finding of guilt.

There are three different forms of evidence. The first is ‘real evidence’, which consists of things that are tangible. This type of evidence includes physical objects such as tape recordings, printouts, and photographs. In order for real evidence to be used in court, it must be relevant, and trustworthy. This also includes ‘demonstrative evidence’ such as charts, models, and experiments.

The second form of evidence is ‘documentary evidence’. This type of evidence includes digital tape recording, business and personal records, court documents, video clips, and computer records. For documentary evidence, there is a requirement that it must be the original copy or form—unless unavailable—this is called the ‘best evidence rule’. All documentary evidence is established as authentic and relevant prior to their use. This is done through the use of affidavits, or a testimony.

The third type of evidence is ‘testimonial evidence’, also known as oral evidence. This evidence is given viva voce, or through oral speech. Testimonial evidence is received through answers to questions asked mainly by Crown attorneys and Defense counsels. For instance, when a police officer is answering the questions of a lawyer on the witness stand, he or she is testifying for or against the accused. Any witness that testifies must give an oath or affirmation prior to giving their evidence, they must be personally present in court, and are subject to cross-examination.

If you are being investigated as a suspect for a criminal offence: 

Youth who are charged with an offence under the age of eighteen are dealt with in accordance with the Youth Criminal Justice Act. It is important for young people who are accused with an offence to know that if he/she is being investigated for a charge AND HAVE NOT BEEN CHARGED he/she have no obligation to provide evidence to the investigating officer. This includes answering any questions. You have no obligation to go to a police station for questioning unless you arrested and taken to the station. Justice for Children and Youth recommends that youth to do not make a statement to the police.  The police have a burden to prove their case against you - you have no legal obligation to assist them. Anything that you say to a police officer can and will be used against you as evidence. The police officers will take notes of everything you say and provide this as evidence to the Crown attorney to be used against you. 

If you are charged with a criminal offence: 

When an accused attends to court for their first court appearance, if it is ready, they will be provided with disclosure. Disclosure is a package that includes all the evidence that was used by the police to lay the charge against the accused. This will include all of the police officers notes, any statements taken by witnesses/victims, DVD's of footage from security cameras/filmed statements, etc. In the Youth Criminal Justice System the Crown attorney is obligated to provide all disclosure to a young person who has been charged with an offence. 



Evidence has a significant role in the daily works of our criminal justice system. It ensures that all useful and valuable information gets placed in front of decision makers, like the Judge or Jury. The methods we use in court proceedings today have been developed over many decades, and attempt to ensure a fair and unbiased resolution to all legal disputes.

Information in this blogpost gathered from:
"Rules of Evidence: A Practical Approach" by: Doug Cochran, Michael Gulycz, & Mary Ann Kelly
http://en.wikibooks.org/wiki/Canadian_Criminal_Evidence

This blog post was written by Shawn Malik, a volunteer on JFCY's PLE team. All legal content was reviewed by a JFCY staff lawyer.  

Police Carding

You’re walking home after a long day at school and from the corner of your eye you notice a police cruiser approaching you. You think nothing of it, as you haven’t committed a crime.

Not too long after you hear a whistle, or a “hey you”, from the direction of the cruiser and find the officer inside motioning at you to approach his vehicle. Upon approaching the driver’s side of the car, the officer asks you questions like, “where were you going?” or, “do you have any illegal substances on you”. They continue with justifications for the stop, “you matched the description of a suspect in recent residential thefts”, or “we’re looking for an individual who matches your description”. Finally, they end by asking for your personal identification card, or information like your name, age, and address. 

This policing practice is called “carding”, and is named after the requesting of ID cards that are stored in police records. The Toronto Police are also now calling these types of stops ‘street checks’.  Carding or street checks are an unfortunate reality for many youth, disproportionately so, for young males belonging to ethnic minorities. When an individual is approached by an officer and asked for personal information, the individual can decline to answer as his or her rights are protected under the Charter of Rights and Freedoms, however in reality, failing to answer, or “not cooperating” can lead to greater problems over simply complying with the officer’s demands.  

Also, sometimes the officer has a reason to stop you and the authority to find out who you are.  For example, if there are a number of factors that lead the officer to suspect that you are involved in a particular criminal activity, or if you are being issued a ticket for an offence like trespassing or riding your bike without a bell, the officer has the authority to find out who you are.  If you don’t identify yourself, the officer could take you to the police station to find out who you are.  It is important to find out if you must stay in the presence of the police by asking, ‘am I free to go?’  If you are not free to go, you should also ask ‘why are you stopping me?’  It is up to you if you want to share more information with the police officers but most lawyers will give you the advice that beyond identifying yourself, you have a right to remain silent and say nothing else, regardless of whether your are doing anything wrong or not.  

Why do officers collect personal information from the public?

Also known as the “208” card, the index-size-card is used to gather information about community members. It is often justified as a method to reduce crime in high-risk communities across the city. Police are asked to document their daily practice, and are to be as detailed as possible, which includes taking detailed notes of incidents as they happen, and documenting their interactions with the members of the public. This information is collected on contact cards, and is gathered in the large quantities in communities where the incidents of crime are likely to occur. Also, filling out these contact cards is regarded as good police work; the cards have been used to obtain search warrants, identify witnesses, and even sometimes aiding in trials. The information of these contacts cards are than entered in to large databases that the police use to search for connections, persons of interest, and bystanders of previous crimes. These contact cards will also later be used for reference to future crimes.

Another justification for this practice is that if the job is done right, and all the ‘bad guys’ are removed from the neighbourhood, you will be less vulnerable to victimization. This also means officers will be needed in the neighbourhood, meaning individuals will no longer be carded.

The police have been under heavy scrutiny in Toronto, as well as other large cities such as New York and London, after recent research showing that the police had a tendency to stop racial minorities much more frequently. In Toronto, this practice lead to the Toronto Police Service Board asking the Chief of Police Bill Blair to collect statistics on the rates of different groups being stopped, and to address discriminatory practices. The Board will also soon require police to give out ‘receipts’ or copies of the card stating the purpose of the stop to each individual carded.  

On November 14^th, 2012, Justice for Children and Youth made a written submission and presentation to the Toronto Police Service Board about Toronto Police Service discrimination and carding practices.  See the written submission here and link to video here.

This post was written by JFCY volunteer Shawn Malik, a member of the PLE Team.  JFCY's Street Youth Legal Services lawyer, Johanna Macdonald, added some info and expertise.

It's not fair: Why are children and youth not protected from age-based discrimination in Ontario? And what can we do?

This blog post is a continuation from our post on September 21, 2012.

Comic made by PLE Team volunteer Shawn Malik

What can kids and teens do if they experience age-based discrimination in Ontario?

Unfortunately, not much...unless they up for a Charter challenge to the Ontario Human Rights Code.

As the law in Ontario currently stands, children and youth under age 18 are not protected from age-based discrimination. This is because definition of “age” at s. 10(1) in the Ontario Human Rights Code is “an age that is 18 years or more”. (*There is a small exception for 16 and 17 year-olds in the context of rental housing.)

The law means that people under age 18 cannot succeed in making an application under the Ontario Human Rights Code when they have experienced discrimination based on their age.

There are various scenarios when young people experience age discrimination in Canadian society. 

Here are a few examples:

q       Gyms and fitness facilities in condos, apartments and hotels that refuse entry to people under age 16.

q       Retail stores that only allow in two youth at one time.

q       Security guards and police officers who follow around youth, or otherwise unfairly monitor them, solely because of their age.

While young people are not protected from age-based discrimination by the Human Rights Code, the story does not end there.  This is because the Canadian Charter of Rights and Freedoms protects everyone, regardless of how young, from age-based discrimination that is created by our laws or government actors.  This means that laws made by the Federal, Provincial or Municipal government must NOT discriminate based on age. 

JFCY holds the opinion that the Ontario Human Rights Code violates the Charter because its definition of age discriminates against people under the age of 18. The definition of age in the Ontario Human Rights Code creates a clear distinction between those under age 18 and those over age 18, such that only those over age 18 are protected from age-based discrimination under the Code. The Code stereotypes, excludes, and devalues people under age 18. It assumes that people under age 18 are either not ever subject to, or not worthy of protection from age-based discrimination. Or, it places protection of children from other harms above protecting them from age-based discrimination, but is not responsive to individual circumstances where that may not be in a child’s best interest.

JFCY agrees that for reasons of safety and well-being, there are some distinctions that should be made between adults and children.  For example, it is reasonable for an employer to refuse to hire a seven-year old for a job, and for teens to be made to wait until a certain age to get their drivers license. However, the magic age should not be 18 for age-based protection from discrimination.  The definition of age in the Ontario Human Rights Code is not based on informed generalizations about children’s capacities, circumstances and needs. The definition of age in the Code is not effective in meeting the actual needs of claimants under age 18 and achieving the objective of the legislation, which is to prevent discrimination in society.

 JFCY supports some specific age-based protections to be carved into the Ontario Human Rights Code that seek to reasonably protect children in rationally necessary areas of life, as well as acknowledge that some types of discrimination should not be actionable.  Otherwise, all other age-based discrimination must be assessed on the test of whether there is a “bona fide and reasonable justification” (ie a good, sensible reason to discriminate).

There have been some Human Rights Tribunal cases dealing with the Canadian Charter of Rights and Freedoms and the Code in this context, but these cases are not “binding”.  There is a need for more cases to be brought forward on this issue in order to push for a change to this law. We see a specific need for cases that deal with age-based discrimination faced by youth and teens under age 18.  JFCY is up for this challenge and welcomes the opportunity to assist young people who believe they have experienced age-based discrimination in Ontario.

If you are under age 18 and live in Ontario and believe you have experienced age-based discrimination then please contact Justice for Children and Youth to discuss your legal rights and options.

To read a case that successfully challenged the definition of age in the Ontario Human Rights Code, click here.

This post was written by a JFCY staff lawyer.

Are youth protected from age-based discrimination?

Scenario:

Jordan, Mary, and John are 16 year-old high school students who are feeling hungry and exhausted after a long day in class! Naturally, a short walk down the road to the local gas station to get some refreshments is agreed upon, and they get going. 

 Upon arrival to the station's store, however, they see a clearly marked sign reading “ONLY 2 STUDENTS IN AT A TIME”. This sign is something the teenagers took offense to; they later expressed their concern with the store clerk in the hopes of some clarification, though they received more offensive comments. The clerk said that teenagers like them are more likely to shoplift, solely because of their age.

The store clerk has had his share of damage over the past years; various items have begun disappearing from his store since the school kids started visiting. As a small business owner, this cannot be tolerated as the ‘disappearances’ are costing him a fortune! It is for this reason; he is taking on a very harsh approach in terms of the operation of his store and his beliefs.

Are there existing laws that protect those under the age of 18 from such age-based discrimination from individuals like the station store clerk?

WHAT DO YOU THINK?

Should young people be protected by the law from age-based discrimination?  Why or why not?

Stay tuned for a new blog post in early October to learn about the law in this area and what, if anything, these youth can do.... 

This post was written by Shawn Malik, a JFCY volunteer on the PLE Team. 

Pot: What is the law?

Scenario:

Jeremy, 17, and his friends are excited to go to a big house party. Jeremy’s parents have even lent Jeremy their car for the evening on the condition that he not consume any drugs or alcohol. Along the way to the party, Jeremy stops to pick up his friend Jonathan. As Jonathan approaches the car, he pulls out a few small bags of weed and says to Jeremy “we are going to get sooo stoned tonight!” Jeremy, usually a good boy, decides to take a  small bag and put it in his pocket.  He doesn't plan on smoking it but doesn't want to look like a loser in front of his friends. Jeremy lets Jonathan smoke some weed en route to the party.

The two boys are stopped by the police for driving with a broken taillight. When the police officer approaches the car, she smells burnt marijuana and demands the boys exit the car. After a “pat down” search of Jonathan’s clothes, the officer discovers the bag of weed in one of Jonathan’s pockets.

QUESTION:

Can Jeremy be found guilty of possession even though he did not intend to use the drugs? Did the officer have the right to search inside Jeremy and Jonathan’s pockets?

Answer: Jeremy may be found guilty of possession even without the intention of using the weed. He had the drugs in his pocket and thus they were in his possession. (See s. 4(3)(b) of the Criminal Code.) 

Answer: the legitimacy of the search of Jonathan’s pocket depends on whether or not the officer had “reasonable grounds” to suspect Jonathan was committing an offence. (See s.495 of the Criminal Code.) Odour may form the basis of a reasonable suspicion. (To read a court case about this click here.)

MORE ON MARIJUANA AND THE LAW

Marijuana is the most commonly used illicit drug in Canada. Over 10 million Canadians are estimated to have used marijuana at least once in their lives. Although some advocacy groups continue to push for its decriminalization, marijuana and its derivatives remain illegal under the Controlled Drugs and Substances Act (CDSA).

There are legal consequences of possessing and distributing marijuana. Below is as a description of the charges, and examples of punishable activity, as well as some info on your rights during police searches.

CHARGE: Possession of marijuana

In the CDSA the definition of drug possession is borrowed from section 4(3) of the Criminal Code of Canada.   “Possess” means to have the drug on your person, but you may also be charged with possession if someone else is holding the drug for you or if you have it stashed someplace for future use. 

CHARGE: Trafficking of marijuana

The definition of “trafficking” under the CDSA is very broad. To traffic marijuana is “to sell, administer, give, transfer, transport, send or deliver the substance...” or to sell an authorization to purchase marijuana.  Selling does not require payment in exchange for the drug. Any kind of transporting/delivering, offer of sale and distribution –even if not in exchange for anything –can fall under trafficking. Consider a situation where a group of friends get together and smoke Marijuana that one person “picked up”. The individual who shared the drug has 'trafficked' regardless whether he asked his friends to pay or not.

You need not actually commit the crime of trafficking in order to be punished for more than mere possession. Possession for the purposes of trafficking is often punished just as heavily as actual trafficking.

 

Marijuana-related searches

Everyone has a right not to be “unreasonably” searched, but a police officer may search you with or without a warrant, provided there are reasonable grounds to believe you are in possession of a controlled substance. Where a police officer conducts a search without a warrant, s/he must justify the search afterwards in order to use the evidence obtained. 

There must be some factual basis for suspicion in order to justify the search. This might be a tip from an informant or something the police observed. Your reputation and criminal record are also admissible pieces of information the police may use to establish reasonable suspicion.

You can legally refuse consent to be searched, regardless to how many requests the police officers make to search you or enter your home or vehicle. However, the police may refuse to allow you entry into a restricted area unless you consent to a search.

Giving them voluntary consent makes police searches automatically legal.

In public, police can request you to stop and engage you in a conversation . Police can legally use false pretenses (lie), use intimidation techniques, and steadily attempt to persuade you into giving them permission for a search. But until they formally arrest you, you have a right to refuse consent for a search and walk away from them. It helps to remain respectful, to identify yourself, and avoid making quick movements (especially towards the pockets!). Avoiding having Marijuana in public, of course, helps.

If an arrest is made, remember that you have the right to remain silent and insist to speak with a lawyer.

For more info on your rights during a police stop or search, check out JFCY’s resources here: http://www.jfcy.org/ycj-police.html

This post was written by JFCY PLE Team Volunteer Shawn Malik and JFCY summer law student Robin McNamara.  Legal info was reviewed by JFCY.

Photo Sources:

http://www.canada.com/health/4610785.bin?size=620x400

http://tobaccoblog.blogetery.com/files/2011/11/possession-of-marijuana.jpg