A photograph is admissible in evidence if it accurately represents the facts, is not tendered with the intention not mislead and is verified on oath by a person capable to do so.
R. v. Nikolovski (1996) (SCC)
Facts: Accused was convicted of robbing a convenience store. The sole witness (store clerk) could not identify the accused with certainty even after viewing the robbery on videotape. Trial judge relied on her own comparison between the accused and the robber in the videotape to conclude that accused was the robber.
Issue: Can a videotape alone provide the necessary evidence to enable the trier of fact to identify the accused as the perpetrator of the crime?
Held: So long as a videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identify of the perpetrator – provides relevant and admissible evidence on the issue of identity.
It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for identifying the accused as the perpetrator.
The jury of trial judge sitting alone must be able to review the videotape during their deliberations, but the judge must be subject to the same cautions as a jury.
Views
If it is physically impossible to bring the real evidence into the courtroom, the courtroom may have to go to the evidence and take a view - rare, but they do occur (e.g. scene of the accident)
Decision as to whether a view will be taken is properly within the discretion of the judge, who will assess the importance of the evidence against the disruption of the trial necessitated by the adjournment.
Competence: whether or not the witness is legally allowed to be a witness (enter the stand and give testimony)
Refers to the ability to 1) observe, 2) remember and 3) communicate (intellectual ability to understand questions and give intelligent answers and moral responsibility to speak the truth)
Restrictions are now usually confined to children, spouses of the accused and persons of diminished mental capacity.
Compellability: assumes that we have a competent witness, but notwithstanding competence, can the witness be compelled to enter the witness stand and testify (or to provide document)
Privilege: arises once you have a competent and compellable witness in the box. Two type:
Some privileges prevent the witness from answering questions (e.g. cannot breach client-lawyer confidentiality)
Some allow the witness to refuse to answer certain questions (e.g. spousal or marital privilege)
More recently, oaths have become more liberalized – no longer need to swear on the Christian Bible, but may swear on other religious texts or relics.
Further, now some people may not swear an oath at all (usually for religious reasons) and instead make a “solemn affirmation”.
The CEA prescribes no particular forms of an oath.
CEA s. 14 allows individuals to take a non-religious form of an oath called a solemn affirmation stating that they “solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.”
Children (under 14)
Issue about to what extent we should be concerned about the evidence of children, especially when they are very young.
Old regime: a child under 14 could not testify until the judge had conducted an inquiry to determine if the child understood the nature and quality of the oath. Further, their testimony had to be corroborated by other evidence.
Today: no longer a requirement of corroborating evidence before a child’s testimony will be accepted - children’s evidence is no longer regarded as being inherently unreliable.
However, must still treat the evidence with care – there may situations where it will be dangerous to accept the evidence of children.
Old s. 16 is still the procedure for challenging the competency of a witness, but is limited to people over the age of 14.
There are almost identical provisions under s. 14 of the BCEA, which still remain in force despite the amendments to the CEA.
Part of a gradual evolution in the assessment of the ability of children to testify. Now more a matter of allowing children to testify and letting the judge or jury assess the reliability of the evidence.
Old s. 16 of the CEA
New s. 16.1 of the CEA
Judges automatically inquired into the capacity of all children witnesses to testify.
Children are presumed competent to testify. The burden is on the party challenging the child’s capacity to show that there is an issues as to the capacity of the proposed witness to testify.
If a child could understand the nature of an oath or solemn affirmation and was able to communicate the evidence, the child could give sworn evidence.
Children shall never give sworn evidence (evidence under an oath or solemn affirmation). Child witnesses always give “unsworn evidence” – that is, evidence given under a promise to tell the truth.
The standard of competence for a child to give unsworn evidence is that the child must be able to “communicate.” In light of Marquard,this involved a capacity to observe, recollect and communicate.
The standard of competence for child to give unsworn evidence is that the child must be able to understand and respond to questions.
If a child was to give evidence on a promise to tell the truth, judicial interpretation held that the judge should first ensure that the witness understood the nature of a promise to tell the truth and what it mean to tell the truth.
No child witness shall be asked any questions regarding their understanding of the nature of the promise to tell the truth to determine whether their evidence shall be received by the court.
Although the section did not state this, unsworn evidence had the same effect as evidence taken under oath or solemn affirmation.
The statute now explicitly states that unworn evidence of a child has the same effect as if it had been given under oath.
Mental Capacity
CEA s. 16(1): If a proposed witness is 14 or older and their mental capacity is challenged, then the court shall conduct an inquiry to determine:
(a) whether the person understands the nature of an oath or a solemn affirmation and
(b) whether the person is able to communicate the evidence.
