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Evidence - Photographs. R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court considers the use of photos as evidence, and whether that use invokes Browne v Dunn:[99] With respect to the injury photos not being shown to Mr. Reimer, I am not persuaded that this undermined the fairness of the trial or compromised the trial judge’s assessment of Mr. Reimer’s credibility. The failure of the Crown to confront Mr. Reimer with these photos was not a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). The rule in Browne v. Dunn is meant to prevent evidence from being used to contradict answers provided by a witness in their testimony where it would be unfair to do so without giving that witness a chance to explain the apparent contradiction. Mr. Reimer did not testify about whether the complainant was injured. Therefore, the photos were not being used to contradict any answers he had given. They were being offered instead as circumstantial evidence supporting the Crown case. . R. v. D.M.
In R. v. D.M. (Ont CA, 2023) the Court of Appeal considered that the foundation for a photograph may be made by anyone familiar with the scene from personal experience:[31] It is well-established that a person present for an event depicted in photographs may be in a position to authenticate photographs and that, as a result, it is not always necessary to call the photographer as a witness to authenticate photos: R. v. B.S., 2019 ONCA 72; David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 559.
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