Main Body

Chapter 3: What You Need To Know About Evidence

“Evidence forms the building blocks of the investigative process and for the final product to be built properly, evidence must be recognized, collected, documented, protected, validated, analyzed, disclosed, and presented in a manner which is acceptable to the court.”

The term “evidence”, as it relates to investigation, speaks to a wide range of information sources that might eventually inform the court to prove or disprove points at issue before the trier of fact. Sources of evidence can include anything from the observations of witnesses to the examination and analysis of physical objects. It can even include the spatial relationships between people, places, and objects within the timeline of events. From the various forms of evidence, the court can draw inferences and reach conclusions to determine if a charge has been proven beyond a reasonable doubt.

Considering the critical nature of evidence within the court system, there are a wide variety of definitions and protocols that have evolved to direct the way evidence is defined for consideration by the court. Many of these protocols are specifically addressed and defined within the provisions of the Canada Evidence Act (Government of Canada, 2017).

In this chapter, we will look at some of the key definitions and protocols that an investigator should understand to carry out the investigative process:

  1. The probative value of evidence
  2. Relevant evidence
  3. Direct evidence
  4. Circumstantial evidence
  5. Inculpatory evidence
  6. Exculpatory evidence
  7. Corroborative evidence
  8. Disclosure of evidence
  9. Witness evidence
  10. Hearsay evidence
  11. Search and seizure of evidence
  12. Exclusion of evidence

Topic 1: The Probative Value of Evidence

Each piece of relevant evidence will be considered based on its “probative value”, which is the weight or persuasive value that the court assigns to that particular piece of evidence when considering its value towards proving a point of fact in question for the case being heard. This probative value of evidence goes towards the judge, or the judge and jury, reaching their decision of proof beyond a reasonable doubt in criminal court, or proof within a balance of probabilities in civil court.

Eye Witness Evidence

A competent, compellable, independent, eye witness with excellent physical and mental capabilities, who has seen the criminal event take place and can recount the facts will generally satisfy the court and provide evidence that has high probative value. In assessing the probative value of witness evidence, the court will consider several factors that we will discuss in more detail in our chapter on witness management. These include:

  • The witness type as either eye witness or corroborative witness
  • The witness competency to testify
  • The witness compellability to testify
  • The level of witness independence from the event
  • The witness credibility based on assessment of physical limitations

Physical Evidence

The court will also generally attribute a high probative value to physical exhibits. The court likes physical evidence because they are items the court can see and examine to interpret the facts in issue for proof beyond a reasonable doubt. Physical evidence can include just about anything, such as weapons, fingerprints, shoe prints, tire marks, tool impression, hair, fiber, or body fluids. These kinds of physical exhibits of evidence can be examined and analyzed by experts who can provide the court with expert opinions that connect the item of evidence to a person, place, or the criminal event. This allows the court to consider circumstantial connections of the accused to the crime scene or the accused to the victim. For example, in the case where the fingerprints of a suspect are found at a crime scene, and a DNA match of a murder victim’s blood is found on that suspect’s clothing, forensic connections could be made and, in the absence of an explanation, the court would likely find this physical evidence to be relevant and compelling evidence with high probative value.

Topic 2: Relevant Evidence

Relevant evidence speaks to an issue before court in relation to the charge being heard. Relevant evidence includes both direct evidence and indirect circumstantial evidence. For either direct or indirect circumstantial evidence to be considered relevant to the court, it must relate to the elements of the offence that need to be proven. If the evidence does not relate to proving the place, time, identity of the accused, or criminal acts within the offence itself, the evidence will not be considered relevant to the charge. The prosecution may present evidence in the form of a physical exhibit that the court can see and examine to consider, or they may present evidence in the form of witness testimony, in which case the witness is telling the court what they perceived within the limits of their senses.

Types of Evidence chart. Direct Evidence and Indirect Evidence.

Topic 3: Direct Evidence

Direct evidence is evidence that will prove the point in fact without interpretation of circumstances. (Justice Department Canada, 2017). It is any evidence that can show the court that something occurred without the need for the judge to make inferences or assumptions to reach a conclusion. An eyewitness who saw the accused shoot a victim would be able to provide direct evidence. Similarly, a security camera showing the accused committing a crime or a statement of confession from the accused admitting to the crime could also be considered direct evidence. Direct evidence should not be confused with the concept of direct examination, which is the initial examination and questioning of a witness at trial by the party who called that witness. And, although each witness who provides evidence could, in theory, be providing direct testimony of their own knowledge and experiences, that evidence is often not direct evidence of the offence itself.

Topic 4: Circumstantial Evidence

Indirect evidence, also called circumstantial evidence, is all other evidence, such as the fingerprint of an accused found at the crime scene. Indirect evidence does not by itself prove the offence, but through interpretation of the circumstances and in conjunction with other evidence may contribute to a body of evidence that could prove guilt beyond a reasonable doubt (Justice Department Canada, 2017). Strong circumstantial evidence that only leads to one logical conclusion can sometimes become the evidence the court uses in reaching belief beyond a reasonable doubt to convict an accused. It requires assumptions and logical inferences to be made by the court to attribute meaning to the evidence.

“When one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases.” (MacDonell, 1820)

Circumstantial evidence demonstrates the spatial relationships between suspects, victims, timelines, and the criminal event. These spatial relationships can sometimes demonstrate that an accused person had a combination of intent, motive, opportunity, and/or the means to commit the offence, which are all meaningful features of criminal conduct.

Circumstantial evidence of intent can sometimes be shown through indirect evidence of a suspect planning to commit the offence, and/or planning to escape and dispose of evidence after the offence. A pre-crime statement about the plan could demonstrate both intent and motive, such as, “I really need some money. I’m going to rob that bank tomorrow.”

Circumstantial evidence of conflict, vengeance, financial gain from the commission of the offence can also become evidence of motive.

Circumstantial evidence of opportunity can be illustrated by showing a suspect had access to a victim or a crime scene at the time of the criminal event, and this access provided opportunity to commit the crime.

Circumstantial evidence of means can sometimes be demonstrated by showing the suspect had the physical capabilities and/or the tools or weapons to commit the offence.

Presenting this kind of circumstantial evidence can assist the court in confirming assumptions and inferences to reach conclusions assigning probative value to connections between the accused and a person or a place and the physical evidence. These circumstantial connections can create the essential links between a suspect and the crime.

There are many ways of making linkages to demonstrate circumstantial connections. These range from forensic analysis of fingerprints or DNA that connect an accused to the crime scene or victim, to witness evidence describing criminal conduct on the part of an accused before, during, or after the offence. The possibilities and variations of when or how circumstantial evidence will emerge are endless. It falls upon the investigator to consider the big picture of all the evidence and then analytically develop theories of how events may have happened. Once a reasonable theory has been formed, evidence of circumstantial connections can be validated through further investigation and analysis of physical exhibits to connect a suspect to the crime.

Topic 5: Inculpatory Evidence

Inculpatory evidence is any evidence that will directly or indirectly link an accused person to the offence being investigated. For an investigator, inculpatory evidence can be found in the victim’s complaint, physical evidence, witness accounts, or the circumstantial relationships that are examined, analyzed, and recorded during the investigative process. It can be anything from the direct evidence of an eyewitness who saw the accused committing the crime, to the circumstantial evidence of a fingerprint found in a location connecting the accused to the victim or the crime scene.

Naturally, direct evidence that shows the accused committed the crime is the preferred inculpatory evidence, but, in practice, this it is frequently not available. The investigator must look for and interpret other sources for evidence and information. Often, many pieces of circumstantial evidence are required to build a case that allows the investigator to achieve reasonable grounds to believe, and enables the court to reach their belief beyond a reasonable doubt.

A single fingerprint found on the outside driver’s door of a stolen car would not be sufficient for the court to find an accused guilty of car theft. However, if you added witness evidence to show that the accused was seen near the car at the time it was stolen, and a security camera recording of the accused walking off the parking lot where the stolen car was dumped, and the police finding the accused leaving the dump site where he attempted to toss the keys of that stolen car into the bushes, the court would likely have proof beyond a reasonable doubt.

If an abundance of inculpatory circumstantial evidence can be located for presentation to the court that leads to a single logical conclusion, the court will often reach their conclusion of proof beyond a reasonable doubt, unless exculpatory evidence is presented by the defence to create a reasonable doubt.

Topic 6: Exculpatory Evidence

Exculpatory evidence is the exact opposite of inculpatory evidence in that it tends to show the accused person or the suspect did not commit the offence. It is important for an investigator to not only look for inculpatory evidence, but to also consider evidence from an exculpatory perspective. Considering evidence from the exculpatory perspective demonstrates that an investigator is being objective and is not falling into the trap of tunnel vision. If it is possible to find exculpatory evidence that shows the suspect is not responsible for the offence, it is helpful for police because it allows for the elimination of that suspect and the redirecting of the investigation to pursue the real perpetrator.

Sometimes, exculpatory evidence will be presented by the defence at trial to show the accused was not involved in the offence or perhaps only involved to a lesser degree. In our previous circumstantial case of car theft, there is strong circumstantial case; but what if the defence produces the following exculpatory evidence where:

  • A tow truck dispatcher testifies at the trial and produces records showing the accused is a tow truck driver;
  • On the date of the car theft, the accused was dispatched to the site of the car theft to assist a motorist locked out of his car;
  • The accused testifies that he only assisted another male to gain entry to the stolen car because he could see the car keys on the front seat;
  • The accused explains that, after opening the car, he agreed to meet this male at the parking lot where the car was left parked;
  • He accepted the keys of the stolen car from the other male to tow the vehicle later to a service station from that location;
  • When approached by police, he stated that he became nervous and suspicious about the car he had just towed; and
  • He tried to throw the keys away because he has a previous criminal record and knew the police would not believe him.

Provided with this kind of exculpatory evidence, the court might dismiss the case against the accused.

Having read this, you may be thinking that this exculpatory evidence and defence sounds a little vague, which is the dilemma that often faces the court. If they can find guilt beyond a reasonable doubt, they will convict, but if the defence can present evidence that creates a reasonable doubt, they will make a ruling of not guilty. Experienced criminals can be very masterful at coming up with alternate explanations of their involvement in criminal events, and it is sometimes helpful for investigators to consider if the fabrication of an alternate explanation will be possible. If an alternate explanation can be anticipated, additional investigation can sometimes challenge the untrue aspects of the alternate possibilities.

Topic 7: Corroborative Evidence

The term corroborative evidence essentially refers to any type of evidence that tends to support the meaning, validity, or truthfulness of another piece of evidence that has already been presented to the court. A piece of corroborative evidence may take the form of a physical item, such as a DNA sample from an accused matching the DNA found on a victim, thus corroborating a victim’s testimony. Corroborative evidence might also come from the statement of one independent witness providing testimony that matches the account of events described by another witness. If it can be shown that these two witnesses were separated and did not collaborate or hear each other’s account, their statements could be accepted by the court as mutually corroborative accounts of the same event.

The courts assign a great deal of probative value to corroborative evidence because it assists the court in reaching their belief beyond a reasonable doubt. For investigators, it is important to not just look for the minimum amount of evidence apparent at the scene of a crime. Investigation must also seek out other evidence that can corroborate the facts attested to by witnesses or victims in their accounts of the event. An interesting example of corroborative evidence can be found in the court’s acceptance of a police investigators notes as being circumstantially corroborative of that officer’s evidence and account of the events. When a police investigator testifies in court, they are usually given permission by the court to refer to their notes to refresh their memory and provide a full account of the events. If the investigator’s notes are detailed and accurate, the court can give significant weight to the officer’s account of those events. If the notes lack detail or are incomplete on significant points, the court may assign less value to the accuracy of the investigator’s account.

For the court, detailed notes properly made at the time corroborate the officer’s evidence and represent a circumstantial guarantee of trustworthiness for the officer’s testimony (McRory, 2014).

Topic 8: Disclosure of Evidence

It is important for an investigator to be aware that all aspects of their investigation may become subject to disclosure as potential evidence for court. As part of the process of fundamental justice within the Canadian Charter of Rights and Freedoms, a person charged with an offence has the right to full disclosure of all the evidence of the investigation (R v Stinchcombe, 1991). This means that any evidence or information gathered during the police investigation must be available for the defence to review and determine if that evidence could assist the accused in presenting a defence to the charge before the court.

In the disclosure process, the decision to disclose or not to disclose is the exclusive domain of the crown prosecutor and, although police investigators may submit information and evidence to the prosecutor with the request that the information be considered an exception to the disclosure rules, the final decision is that of the crown. That said, even the decision of the crown may be challenged by the defence and that then becomes a final decision for the Judge. The prosecutor will ask the police to provide a full disclosure of the evidence gathered during their investigation.

The list of what should form part of a normal disclosure will typically include:

  • Charging document
  • Particulars of the offence
  • Witness statements
  • Audio/video evidence statements by witnesses
  • Statements by the accused
  • Accused’s criminal record
  • Expert witness reports
  • Notebooks and Police reports
  • Exhibits
  • Search warrants
  • Authorizations to intercept private communications
  • Similar fact evidence
  • Identification evidence
  • Witnesses’ criminal records
  • Reports to Crown Counsel recommending charges
  • Witness impeachment material

It is worth stressing that police notes and reports relating to the investigation are typically studied very carefully by the defence to ensure they are complete and have been completely disclosed. Disclosure will also include investigation notes and reports that relate to alternate persons considered, investigated, and eliminated as suspects in the crime for which the accused is being tried. If alternate suspects were identified and not eliminated during the investigation, that lack of investigation may form the basis for a defence to the charge.

The issues relating to the disclosure of evidence have been the subject of several Supreme Court of Canada rulings and a few exceptions to disclosure had been identified where certain information does not need to be disclosed. These exceptions to disclosure were outlined in the benchmark disclosure case of R v Stinchcombe (1991). These exceptions include:

  • Information that is clearly irrelevant
  • Information that is considered privileged
  • Information that would expose an ongoing police investigation
  • Information that would compromise the safety of a witness

For an investigator, the requirement to comply with disclosure is one of the best reasons to make sure notes and reports are complete and accurately reflect the investigation and actions taken during the investigation. From the court’s perspective, there will never be any excuse for a police investigator to intentionally conceal or fail to disclose evidence or information.

Topic 9: Witness Evidence

Witness evidence is evidence obtained from any person who may be able to provide the court with information that will assist in the adjudication of the charges being tried. This means that witnesses are not only persons found as victims of a crime or on-scene observers of the criminal event. They may also be persons who can inform the court on events leading up to the crime, or activities taking place after the crime.

These after-the-crime activities do not just relate to activities of the suspect, but also include the entire range of activities required to investigate the crime. Consequently, every police officer involved in the investigation, and every person involved in the handling, examination, and analysis of evidence to be presented in court, is a potential witness.

Issues relating to the collection of witness evidence will be discussed in more detail in Chapter 7 on Witness Management.

Topic 10: Hearsay Evidence

Hearsay evidence, as the name implies, is evidence that a witness has heard as a communication from another party. In addition to verbal communication, legal interpretations of the meaning of hearsay evidence also include other types of person-to-person communication, such as written statements or even gestures intended to convey a message. As defined by John Sopinka in his book, The Law of Evidence, hearsay is:

Written or oral statements or communicative conduct made by persons otherwise than in testimony at the proceedings in which it is offered, are inadmissible if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein (Sopinka, 1999, p. 173).

Hearsay evidence is generally considered to be inadmissible in court at the trial of an accused person for several reasons; however, there are exceptions where the court will consider accepting hearsay evidence (Thompson, 2013). The reasons why hearsay is not openly accepted by the court include the rationale that:

  • The court generally applies the best-evidence rule to evidence being presented and the best evidence would come from the person who gives the firsthand account of events;
  • The original person who makes the communication that becomes hearsay, is not available to be put under oath and cross-examined by the defense;
  • In hearing the evidence, the court does not have the opportunity to hear the communicator firsthand and assess their demeanor to gauge their credibility; and
  • The court recognizes that communication that has been heard and is being repeated is subject to interpretation. Restatement of what was heard can deteriorate the content of the message.

The court will consider accepting hearsay evidence as an exception to the hearsay rule in cases where:

  • There is a dying declaration
  • A witness is the recipient of a spontaneous utterance
  • The witness is testifying to hearsay from a child witness who is not competent

Dying Declarations

Exceptions to the hearsay rule include the dying declaration of a homicide victim. This type of declaration is allowed since it is traditionally believed that a person facing imminent death would not lie. Justice Eyre in the 1789 English case of R v Woodcock stated:

The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; the situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice” (R v Woodcock, 1789).

Per the rules of the Canada Evidence Act (Government of Canada, 2015), for a dying declaration to be acceptable to the court, the victim:

  • Must be a victim of 1st or 2nd degree murder, manslaughter, or criminal negligence causing death;
  • Must be making a statement in regards to the cause of death;
  • Must know at the time they make the statement that their death is imminent;
  • Must be someone who would have been a competent witness had they lived; and
  • Must die of their injuries within a reasonable time after the statement was made.

This is a delicate area because in cases where the victim of a serious assault is in danger of dying, the investigator may have the opportunity to gain evidence by taking a statement from that victim; however, that statement would need to include some acknowledgement by the victim that they believed they are in imminent danger of dying (Sebetic, 1950).

Recipient of a Spontaneous Utterance

In cases where a witness hears a spontaneous utterance of a victim, the court may accept the witnesses restating of that utterance if, according to Ratten v R (1971):

… the statement providing it is made in such conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused (Ratten v R, 1971).

Hearsay of Statement From a Child Witness Who is Not Competent

In cases where a child witness is not competent or available to provide evidence, the parent or another adult, who has heard a statement from that child, may be permitted to provide that information by way of hearsay to the court. These circumstances have been illustrated in case law from the case of R v Khan (1990). In this case, the mother of a 3 ½ year old girl was not present when the child was sexually assaulted by her doctor during an examination. However, immediately after the examination, the child made explicate statements of what happened to the mother and provided descriptions of acts that a child could not have made up. From this case, the court did consider hearsay evidence as an exception to the hearsay rule. The case of R v Khan created what has become known as the “principled approach” and it allows that hearsay evidence may be admissible if two conditions are proven. These conditions are necessity and reliability.

In R v Khan (1990), the S.C.C. defined necessity as instances where:

  • A child was not competent to testify by reason of young age;
  • A child is unable to testify;
  • A child is unavailable to testify; or
  • In the opinion of an expert psychologist providing testimony would be too traumatic and harmful to the child.

In R v Khan (1990), the court defined reliability factors as relating to the credibility of the person’s observations and these included:

  • When the hearsay statement was made about the offence;
  • The nature of the child’s demeanor;
  • The level of the child’s intelligence and understanding; and
  • The lack of a reason for the child to have fabricated the story.

Since the adoption of the Khan Rule, the rules of hearsay have expanded on the principled approach that if the evidence is considered necessary to prove a fact in issue at the trial, the hearsay evidence being submitted is found to be reliable (Dostal, 2012). To prove reliability, the crown must submit evidence that demonstrates the circumstantial guarantee of trustworthiness. This definition of reliability was further articulated in R v Smith:

“The criterion of “reliability” or the circumstantial guarantee of trustworthiness — is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established” (R v Smith, 1992).

An interesting aspect of hearsay evidence that sometimes confuses new investigators is that during any investigation, the investigator is searching out and retrieving hearsay accounts of events from various witnesses. From these hearsay accounts, the investigator is considering the evidence and using that hearsay information to form reasonable grounds to believe and take action. This is a totally acceptable and legally authorized process, and, if ever questioned in court regarding the process of forming reasonable grounds on the basis of hearsay, the investigator can qualify their actions by pointing out their intent to call upon the original witness to provide the court with the unfettered firsthand account of events. Investigators are merely the people empowered to assemble the available facts and information from various sources found in witnesses and crime scene evidence. As an investigator assembles the evidence they are empowered to form reasonable grounds for belief and take actions of search, seizure, arrest, and charges to commence the court process. Once in court, the investigator’s testimony will only relate to the things they have done in person or statements they have heard as exceptions to the hearsay rule while forming of reasonable grounds to take action.

Topic 11: Search and Seizure of Evidence

In order for items of physical evidence to be accepted by the court as exhibits, each item of evidence must meet the test of having been searched for and seized using the correct lawful authorities. There are a number of ways in which items of evidence may be legally searched for and seized.

Investigators may search for and seize or receive items of evidence:

  • By consent of the person being searched
  • On authority of a search warrant under Section 487(1) of the Criminal Code of Canada
  • As part of a search incidental to the lawful arrest of a suspect
  • As part of a safety search incidental to the lawful detention of a suspect
  • Under the doctrine of evidence in plain view at a lawfully entered crime scene

It is important to note that when evidence is being presented to the court, the investigator will be held accountable to provide an explanation of the circumstances under which an item of evidence was searched for and seized. This may involve the investigator articulating not only details of how they discovered the item, but also circumstances to illustrate the offence committed and their authority to arrest, detain, and/or enter a crime scene lawfully

With similar accountability, when a Section 487(1) Criminal Code warrant is issued, the police are required in advance to swear an affidavit of facts articulating their reasonable grounds to believe that an offence has been committed and the evidence of that offence exists in the premises to be searched. This warrant and the affidavit of facts can be examined and challenged at the trial. As we proceed through this book we will discuss the process of developing the mental map that enables an investigator to meet the challenge of seeing and articulating the issues of lawful authority to search and seize evidence.

Topic 12: Exclusion of Evidence by the Court

In hearing any case, the court has the authority to either accept or exclude any piece of evidence being presented. An evaluation is applied to all evidence to determine if it will be admissible or excluded. The types of evidence that can be admitted or excluded range from the physical exhibits found at the crime scene, to the accounts of events provided by witnesses to a confession taken from a suspect. For investigators, it is important to understand that any piece of evidence could be challenged by the defence for exclusion. If challenged, the court will decide if evidence should be excluded based on a number of rules and depending on the type of evidence being presented.

In the case of witness evidence, the court will first consider if the witness is competent and compellable to give evidence. A competent witness is generally a compellable witness (R v Schell, 2004). Competent means legally qualified to testify, and compellable means legally permitted to testify. Witness competence and compellability are each decided based upon several factors that will be discussed later in the witness management portion of this book.

If a witness is found to be both competent and compellable, the court will hear their testimony and will then consider the value of the evidence provided after assessing the credibility of the witness. If a witness is found to be either not competent or not compellable, their evidence will be excluded at trial.

Like witness evidence, physical evidence is also evaluated by the court to determine its admissibility at trial based upon a number of factors. These factors will be discussed further in our chapter on crime scene management; however, they include:

  • If the evidence was lawfully seized
  • How the evidence was collected, marked, and preserved
  • If the evidence was somehow contaminated
  • If the chain of continuity for the evidence has been properly maintained

A flaw in any of these factors can result in evidence being excluded at trial. In addition, the court can completely exclude any evidence that has been obtained following a violation of the Charter Rights and Freedoms of the accused person. Such infringements on these guaranteed rights and freedoms would include:

  • Improper or unauthorized search of a person or a person’s property
  • Improper taking of a statement from a suspect by failing to provide the appropriate warning and caution under section 10 of the Charter
  • Failing to provide proper opportunity for the arrested or detained person to speak with counsel after arrest or detainment
  • Failing to properly disclose all the evidence prior to trial to allow the accused to make full defence to the charge

Section 24 of the Canadian Charter of Right and Freedoms states:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Practices regarding what evidence may be brought against an individual in trials are addressed by section 24(2). When evidence is obtained through the violation of a Charter right, the claimant is able to apply to have the evidence excluded from the trial under this section (Government of Canada, 2015).

The exclusion of evidence flowing from a Charter violation is not automatic, and there is significant case law that the court will consider to determine if evidence will be excluded.

In the case R v Grant (2009), the Supreme Court of Canada created a new test to determine when the administration of justice has been brought into disrepute (replacing the 1987 test in R v Collins). The Grant test lists three factors the courts must consider:

(1) the seriousness of the Charter infringing conduct (focusing on a review of how society would view the actions of the state),

(2) the impact of the breach on the Charter protected interests of the accused (focusing on a review of how the state’s actions affected the accused), and

(3) society’s interests in the adjudication of the case on its merits (focusing on a review of the importance and reliability of the evidence) (R v Grant, 2009).

Knowing the rules for evidence collection, handling, and preservation can assist an investigator to avoid errors that could exclude evidence at trial. Following the rules that define Charter violations can assist an investigator to avoid having valuable evidence excluded completely at trial because of a charter violation. These topics will all be covered in more detail as we proceed through the various chapters to follow.

Summary

Evidence is a key feature to any investigation, so it is important for investigators to understand the various legal definitions of evidence, the various types of evidence, and the manner in which evidence is considered and weighed by the court. Evidence forms the building blocks of the investigative process and for the final product to be built properly, evidence must be recognized, collected, documented, protected, validated, analyzed, disclosed, and presented in a manner that will be acceptable to the court. As we proceed through this book, evidence will continue to be a key element for consideration in the development of proper investigative processes.

Study Questions

  1. What do we mean when we say that evidence will be considered by the court on its “probative value”?
  2. What is direct evidence?
  3. Provide three examples of direct evidence.
  4. Can an accused be convicted of circumstantial evidence alone?
  5. What is inculpatory evidence?
  6. What is exculpatory evidence?
  7. What is corroborative evidence?
  8. What are the exceptions to the requirement of full disclosure?
  9. Is hearsay evidence ever admissible in court?
  10. When can evidence be excluded by a court?
  11. If evidence was illegally obtained, is it automatically excluded by the court?