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.

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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.  

Criminal vs. Civil Cases

In this post, law student volunteer Tracy Chen explains the different between criminal and civil law cases.

Criminal Law

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The purpose of criminal law is to punish behaviour that offends society as a whole, even though only one person may have been harmed. A criminal case involves prosecution by the Crown (government) against an individual. The Criminal Code contains the offences set out by the federal government that are considered criminal. The person charged with offence is called “the accused” and is presumed innocent until proven guilty.  

In a criminal trial, the prosecution must prove the accused is guilty of the charge beyond a reasonable doubt. In addition, if any evidence was obtained in violation of the accused’s Canadian Charter of Rights and Freedoms rights, the judge may decide not to admit such evidence. For example, in the recent Tori Stafford trial, the judge declared that police had violated the accused, Michael Rafferty’s section 8 Charter right against unreasonable search and seizure. The judge threw out the evidence the police obtained from his hard drive, Blackberry and laptop. If an accused is found not guilty, he or she is acquitted and released.

If the accused is found guilty of a crime, the judge must consider an appropriate sentence, which can include a fine, community service or imprisonment, among others.

Civil Law

The purpose of civil law is to address disagreements between individuals, for example, disagreements arising in business contracts or negligence claims. A civil lawsuit refers to a private case where an individual, known as the plaintiff is suing another, known as the defendant.  

The plaintiff must prove the defendant’s liability to the judge or jury on a balance of probabilities, which means more than 50 per cent (more likely than not). The burden of proof to show that the defendant is liable is lower in civil cases compared to the burden of proof for guilt in criminal cases because there is more on the line in criminal suits where the accused's freedom and liberty is at stake. 

Remedies in civil law suits can be money damages, declaratory (the court can rule on rights or duties of one of the parties), or injunctions (the court can order parties to do or not do something). Money remedies are the most frequent.

A person may undergo a criminal and civil trial for the same conduct. One of the most famous American cases is former football player OJ Simpson, who was charged with the murders of his ex-wife and her friend, was found innocent in his criminal trial, but was found liable in their wrongful deaths in a civil lawsuit. 

             

To read more about the Tori Stafford case: 
http://www.thestar.com/news/gta/crime/article/1176503--tori-stafford-trial-how-michael-rafferty-s-charter-rights-were-violated
To read more about the OJ Simpson case: http://www.trutv.com/library/crime/notorious_murders/famous/simpson/dead_16.html

Sources:

http://www.justice.gc.ca/eng/dept-min/pub/just/08.html

http://canadian-lawyers.ca/Legal-Help-and-Resources/Civil-and-Criminal-in-Canada.html

This blogpost is written by Tracy Chen, a law student at Osgoode Hall Law School. All info was reviewed by a JFCY staff lawyer.

Teenage Drunk Driving

Scenario:

Johnny,17, was at a party at the start of the summer and he wanted to celebrate. At this party they were serving alcoholic drinks. Johnny had 6 beers to drink. After some dancing, he decided to go home because he had a 2 AM curfew.

Johnny: I need to get home before 2am or my parents are going to be so mad!

Sam: You can’t drive home you had a lot to drink.

Johnny: It’s okay dude, I can handle it. My place is only a 15 minute drive away.

Sam: I really don’t think you should drive, you can’t even walk in a straight line.

Johnny: Dude, seriously relax, I will be fine

Sam: Alright, if you say so. Call me when you get home.

Johnny: Peace!

Did Sam handle the situation well? Since Johnny was intoxicated, Sam could have taken matters into his own hands and taken Johnny’s car keys away.

As Johnny was driving home, he saw sirens in his rear view mirror, it was the police. Johnny pulled over and waited for the police officer to approach his vehicle. Johnny was very afraid at this moment because he was worried about being charged with some form of drunk driving offence.

Officer: Can I see your license and registration please?

Johnny: Yes, you can.

Officer: You smell like alcohol. Have you been drinking tonight?

Johnny: I had a little bit to drink Officer.

The police asked him to submit to a breathalyzer sample. Not wanting to get in any more trouble, Johnny complied and blew into the breathalyzer. His blood alcohol content revealed that he had more than 80 mg of alcohol per 100 millilitres of blood. The officer arrested Johnny on the spot and he is now concerned about the legal ramifications of what he has done.

The Law: Impaired Driving and Driving with Blood Alcohol Over 0.08

There are a number of legal issues at work here. This blog post post focuses on drunk driving. Please read other JFCY posts on underage drinking; see also Concerts and Underage Drinking, and on what happens if you drive with alcohol in your system on a G2 license.

Across Canada, it is a criminal offence to operate a vehicle while impaired by alcohol or drugs and/or while having a blood alcohol content of 80 milligrams of alcohol in 100 millilitres of blood or more  (called “0.08”).

With high blood alcohol levels, adults and youths may be charged with impaired driving. Impaired driving, which means driving while your ability is affected by alcohol or drugs, is a crime under the Criminal Code of Canada under Section 253(1)(a). Driving with a blood alcohol content of 0.08 or more is also a crime under Section 253(1)(b). Your vehicle does not even have to be moving; you can be charged if you are impaired behind the wheel, even if you have not started to drive. If convicted or found guilty, you will be sentenced by a court.  

It is also a criminal offence to refuse to provide a breathalyzer sample without a reasonable excuse. Not knowing you have to provide a sample, or saying that a lawyer told you not to blow for a breathalyzer are NOT reasonable excuses. This is covered by Section 254 of the Criminal Code which also explains how the breathalyzer process works.

Since Johnny is a youth, between the ages of 12 and 17, the Youth Criminal Justice Act applies to him. As a result it is not possible to predict as clearly what sentence he could get if found guilty. However, this also changes the way the police officer must interact with Johnny. For example, s. 146 of the YCJA imposes a different standard for obtaining evidence, not binding youth to certain written and/or oral statements that were obtained when the youth didn’t have the opportunity to speak with a parent and/or alawyer.  Also, police must speak to youth using words that the youth is able to understand.  

Please note that there are additional penalties related to the Highway Traffic Act in Ontario that will apply. Please see the JFCY blog post on G2 license offences for more information.

Now although this scenario didn’t turn out fatal, it is very possible it may have. Johnny might have killed someone on his way home. This is one fatally which happened in Toronto recently. This was the end result...

The scenario and conclusion were written by PLE Team volunteer Diana Rozo (a York U student).  Legal info was written by JFCY summer law student Jeremy Ozier and reviewed by JFCY. 

Fighting back: SELF DEFENCE AND THE LAW

Scenario

Jared, a grade ten student, is walking home from a friend’s house one night when he sees three grade twelve boys who go to his school. He remembers that these boys are tough and have been in several physical fights. Jared attempts to pass by the boys without any confrontation, but the boys stop him in his path and start asking him questions.

“Where are you going so fast?” says one.

“Can’t say hi?” says another of the boys.

Jared begins to feel intimidated. He attempts to walk around the boys but they push him back in front of them. Jared retaliates in reaction, punching one of the boys and breaks the boys’ nose. The response stuns the boys and Jared quickly runs away, escaping the boys. When he gets home he tells his parents what has happened, and they encourage him to call the police and let them know what has happened.

Legal questions:

When the three boys surrounded Jared and shoved him, was this considered assault?

If yes, does this qualify Jared’s reaction (a punch) as self-defense?

Legal answers:

Many youth feel that if someone else throws the first punch (for example) then anything that follows is legally acceptable since they are acting in ‘self defence’. This is not always the case. It is important to understand what self-defence really is.

1. Yes, this is an assault. An assault involves any application of force, or touching, to another person without their consent. This includes shoving them, or hitting them with something, or using your fists. It would also be an assault if the boys threatened Jared or attempted to hit him and missed, as long as Jared reasonably believed they could do so if they wanted. Swinging a punch at someone and not hitting is still an assault.
2. Yes, this does qualify Jared’s reaction as self-defence. Every person who is unlawfully assaulted without having provoked the assault is justified in repelling that force, using his or her own force, so long as that force is not intended to cause death or grievous bodily harm, and is no more than necessary to defend him or herself.
3. As mentioned above, self-defence must not be intended to cause death or serious bodily harm, and it must be no more than necessary to defend yourself. If someone punches you, you don’t have the right to punch them until they are seriously hurt or killed. Self-defence must be both reasonable and necessary in the circumstances.

Blog post by PLE Team Volunteer Marsha Rampersaud and JFCY summer law student Jeremy Ozier.