THE TRIAL IN CANADIAN
COURTS – Part 3
RULES AND TYPES OF EVIDENCE
LAW 12
MUNDY - 2008
RULES/TYPES OF EVIDENCE
Admissibility of evidence means
whether evidence should be allowed to
be presented to a judge or jury to weigh
an accused’s guilt or innocence
 If there is doubt on either side whether
any evidence should be admitted, a voir
dire is held
 During this, jury leaves and both sides
make presentations to judge
 Judge then rules on whether it is admitted

SELF-INCRIMINATION
Self-incrimination is grounds under
which a witness can refuse to respond to
a question asked while on the stand
 Witness is protected from having any
statements they make on stand that might
“incriminate that witness in any other
proceeding”
 Exception is perjury, in which witness
gives intentionally misleading evidence

PRIVILEGED COMMUNICATIONS
This category of communication cannot
be required to be presented in court as
evidence
 Example – spouses are not required to
give testimony against accused; they are,
however, able to give as defence
 Other examples: parishioners & clergy,
patients & doctors, etc.

SIMILAR FACT EVIDENCE
Evidence that shows the accused has
committed similar offences in the past
 Purpose is to show accused has a pattern
of criminal behaviour (if, for ex., accused
claims it was an accident
 However, voir dire is held to determine if
any similar fact evidence is relevant to
case

HEARSAY EVIDENCE
Evidence not given from the personal
knowledge or experience of the witness
testifying
 Given when witness gives testimony
regarding what someone else said or
wrote
 Ex. – On stand, Mr. A testifies, “Ms. B told
me that she saw Mr. C rob the grocery
store.”

HEARSAY EVIDENCE, cont’d.
Hearsay evidence cannot be admitted as
evidence
 Exceptions:

◦ out-of-court statement (but only to show
statement was made, not admitted for its
content)
◦ Witness quoting from someone dying (now
dead and cannot testify)
◦ Evidence considered necessary & reliable
OPINION EVIDENCE
Evidence by witness regarding their
thoughts, assumptions, conclusions about
what they experienced
 Ex. – “He was staggering and couldn’t
speak clearly. I think he was drunk.”
 Exceptions – qualified experts on a
subject are allowed to give opinion, but
only where topic is beyond knowledge of
both judge and jury

CHARACTER EVIDENCE
Evidence showing accused as having
either positive or negative traits
 Crown is restricted use of this kind of
evidence; therefore it cannot use prior
convictions as evidence towards case
 However, if defence gives character
evidence, Crown allowed to refute it by
introducing evidence to contrary (such as
prior convictions)

CHARACTER EVIDENCE

As well, if accused decides to take stand
and testify, Crown may cross-examine, but
only to determine if any statements made
were false (i.e. – cannot attack credibility
of accused)
PHOTOGRAPHS
Can be admitted as evidence only if they
are accurate depiction of crime scene
 Photographer or developer may take
stand to answer questions on process of
picture taken (to ensure photo is valid)
 Photos meant merely to incite jury can be
considered inadmissible by judge

ELECTRONIC DEVICES & VIDEO
SURVEILLANCE

Considering principle of “reasonable
expectation of privacy”, recording
conversations that are private are not
admitted as evidence; UNLESS:
◦ Police have secured a court order authorizing
them to do so
◦ One of the two parties involved in the
conversation have consented to being
recorded
ELECTRONIC DEVICES & VIDEO
SURVEILLANCE
In emergencies in which serious harm can
be prevented, police are allowed to
record conversations
 Video surveillance is also admissible if
recording public areas
 If video or listening devices are used to
‘spy’ on person or their property, search
warrant is required first

POLYGRAPH EVIDENCE
Polygraph (lie detector) evidence cannot
be admitted as evidence, deemed as
hearsay evidence
 Only evidence can be what the accused
said; however, polygraph operator cannot
give testimony as to whether analysis
showed person’s responses to be truth or
lies

CONFESSION
Acknowledgement by accused that some
or all of charges/accusations are true
 Can be admitted as evidence if:

◦ Given after accused was arrested and given
rights to legal counsel
◦ Confession was voluntary (i.e.- not made
while tortured, lengthy questioning, or given
leniency if confessed)
CONFESSION
2 types:
 Inculpatory confession – admission of
guilt
 Exculpatory confession – denial of guilt

ILLEGALLY OBTAINED EVIDENCE
Typically not admitted as evidence
 However, can be admitted if judge rules
that evidence does not bring “the
administration of justice into disrepute”
