The admissibility of graphics and presentations as demonstrative aids in Canadian court proceedings.

• Author: McKee, S. Gordon

This article originally appeared in the April 2012 Trial Techniques and Tactics Committee Newsletter.

We are often asked by our international colleagues and clients what use, if any, can be made of computer graphics and presentations as demonstrative aids during Canadian court proceedings. (2) The use of simple demonstrative aids (3) is becoming commonplace in Canadian trials. But even very recently, Canadian counsel may have advised that the use of computer graphics and presentations is unusual, and largely limited to criminal and complex personal injury cases. While this is a valid perception, it is our view that the traditional reluctance to use demonstrative aids in Canadian courtrooms outside of that context is no longer warranted. There is a sparse, yet expanding, body of case law that can be applied to support new and effective uses of computer graphics and presentations at trial. The growing complexity of litigation, combined with cases involving complex scientific, medical, financial and other technical issues, have led to a growing acceptance among the bench to innovative, electronic forms of organizing and presenting evidence and argument at trial.

However, the movement towards increasing use of trial graphics and presentations has not changed the very formal nature of Canadian trial practice. All demonstrative aids are potentially subject to strict requirements as to their admissibility and use, particularly in jury trials. (4) Counsel and clients from outside Canada should be aware of the nuances of this emerging area of Canadian law and practice, as well as the potential pitfalls, in order to maximize the power of graphics and presentations. Ultimately, counsel may not be able to simply import or use graphics or presentations from other jurisdictions "as is", but may be able to use such aids with appropriate revisions for the Canadian context. In this article, we address the following issues: (1) the admissibility and use of graphics and presentations as demonstrative aids, (2) presenting factual evidence using these types of demonstrative aids, (3) presenting expert evidence using these types of demonstrative aids, (4) the use of demonstrative aids in opening argument, and (5) the use of demonstrative aids in closing argument.

1. The Admissibility of Demonstrative Aids

   Demonstrative aids can be utilized in Canadian trials to present, illustrate, simplify or summarize other evidence. In order to be admissible, demonstrative aids must:

1. be relevant to the issues,

2. assist the trier of fact to better understand the evidence, and 3. have probative value that is not outweighed by the potential prejudicial effect. (5)

   Additionally, a proper evidentiary foundation must be established. There are some specific requirements for certain types of demonstrative aids (e.g. computer animated reconstructions), but generally, a demonstrative aid must be authenticated by a witness, either factual or expert, who can testify as to the method of preparation of the aid, verify that the aid in question is a fair and accurate representation of what it purports to represent, and affirm that the aid was created without any intention to mislead. (6) In some circumstances, counsel may be able to have the demonstrative aid admitted into evidence as a summary of other information or data already admitted as evidence. (7)

   There is a significant difference in practice, if not in law, in the approach to demonstrative evidence in a judge-alone trial than in a jury trial. In a jury trial, the prejudicial effect and usefulness of the demonstrative aid are the primary, competing factors to be considered in determining whether to allow its use. More extensive scrutiny of the nature and preparation of the aid are warranted, because even a simple demonstrative aid, such as a chart or a diagram, may give the evidence "an aura of cogency which on close analysis it does not deserve". (8) However, civil jury trials are uncommon in Canada, particularly in complex cases. A trial judge sitting alone has substantial discretion to determine whether to admit demonstrative aids based upon whether he or she finds it helpful and whether there are any concerns about misrepresentation of the evidence. (9) In judge-alone trials, a judge's willingness to allow the use of graphics and presentations may depend in part on the individual judge's comfort level and experience with technology. Although in our experience, most Canadian judges will permit the use of graphics and presentations that are helpful in understanding the evidence or argument.

   There is no existing rule of general application requiring pre-trial disclosure of demonstrative aids. In some cases, the court may impose a pre-trial requirement that demonstrative aids be disclosed to opposing counsel in advance. This most often occurs as part of the case management process if requested by one party or raised by the court. The practice of providing demonstrative aids to opposing counsel in advance ensures the efficient conduct of the trial and is usually in the best interests of both parties, assuming that both parties...