Police Interrogations in Canada: The State is Not Permitted to Use Violence or Threats of Violence

Police Interrogations in Canada: The State is Not Permitted to Use Violence or Threats of Violence

The history of police interrogations is not without its unsavoury chapters. Physical abuse, if not routine, was certainly not unknown. Today such practices are much less common. …

Iacobucci, J., speaking for a majority of the Supreme Court of Canada in R. v. Oickle, [2000] 2 S.C.R. 3 at para. 34

Canadian society cannot tolerate -- and the courts cannot permit -- police officers to beat suspects in order to obtain confessions. Yet, sadly, that is precisely what happened in this case. …

Blair, J.A., speaking for a unanimous Ontario Court of Appal in R. v. Singh, 2013 ONCA 750 at para. 1

In Canada, the state is not permitted to use violence or threats of violence to elicit information from a suspect.

In Oickle, supra, the Supreme Court of Canada sent a clear message that a statement that is the product of “imminent threats of torture” (para. 48) or “outright violence” (para. 53) will be inadmissible against a suspect.

The use of violence during a custodial interrogation may also lead to a judicial termination of the charges against a suspect. For example, in Singh, supra, the Ontario Court of Appeal imposed a stay of proceedings in relation to charges of robbery and unlawful confinement after the police subjected the accused to repeated acts of physical violence during the course of a custodial interrogation, including striking the suspect in the back of the head and grabbing and squeezing the suspect’s throat

An officer who uses violence against a suspect during an interrogation may face criminal charges, administrative disciplinary proceedings, and a civil lawsuit for financial compensation. Pursuant to section 269.1(1) of the Criminal Code of Canada, an investigator who uses torture to obtain a statement from a suspect is liable to imprisonment for up to fourteen years.

Other considerations:

When providing emergency legal advice at the time of arrest, counsel should not overlook a client may have previously resided in country where torture is a state-sanctioned tool of persuasion. As a standard practice counsel should assuage any client concerns that they will be hurt or threatened by the police if they choose to exercise their right to remain silent.

 

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Police Interrogations in Canada: The State is Not Permitted to Undermine the Accused's Confidence in Defence Counsel

Police Interrogations in Canada: The State is Not Permitted to Undermine the Accused's Confidence in Defence Counsel

In R. v. Burlingham, [1995] S.C.J. No. 39 the Supreme Court of Canada held that the right to counsel under s. 10(b) of the Charter places constitutional limits on police interrogations by prohibiting conduct that undermines a suspect's confidence in the solicitor-client relationship. As stated by Iacobucci, J., speaking for a majority of the Court, at para. 4:

The police … constantly denigrated the integrity of defence counsel; the interrogation record attests to repeated disparaging comments made about defence counsel's loyalty, commitment, availability, as well as the amount of his legal fees. The interrogation officers suggested they were more trustworthy than the appellant's lawyer…

At para. 14, Iacobucci, J., goes on to say:

…s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel. It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship.

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The Role of the Trial Judge in the Canadian Criminal Justice System

The Role of the Trial Judge in the Canadian Criminal Justice System

A good starting point for anyone seeking to gain an appreciation of the role of the trial judge in the Canadian criminal justice system is the following passage from the Honourable Justice Jamie W.S. Saunders of the Nova Scotia Court of Appeal in R. v. Al-Rawi, [2018] N.S.J. No. 18, beginning at para. 126:

…a judge's work is conducted in public view, as required by our open courts principle, where virtually every word is transcribed, and becomes part of the public record. As well, judges swear an oath to decide the matters that come before them independently and impartially, without fear or favour, and thereby render justice according to law.

A judge's duties always involve the resolute application of a host of fundamental principles that include the Rule of Law, the presumption of innocence, the Crown's never-shifting burden to prove all essential elements of the offence beyond a reasonable doubt, and the obligation to provide reasons to explain the verdict. It is well accepted that a judge "speaks" only through his or her decision, and is prohibited from later offering further commentary to clarify or add to those reasons.

Sitting on appeal, we require trial judges to make strong findings of fact, decide matters of credibility, apply the law to the evidence correctly, and express themselves in plain, unambiguous language. That is the law, which is there to protect the rights of any citizen whose actions form the basis of a criminal prosecution. And those are obligations that apply to every kind of case, so that when matters are appealed, the record from the court below will provide a proper basis for meaningful appeal.

If it is shown that the trial judge erred, to the extent where appellate intervention is warranted, the appeal will be allowed, the judgement set aside, and a suitable remedy granted. Those are the "checks and balances" our system of justice provides. …

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Criminal Law and Film: Pan’s Labyrinth (El Laberinto del Fauno) (2006)

Criminal Law and Film: Pan’s Labyrinth (El Laberinto del Fauno) (2006)

“And, like most of us, she left behind small traces of her time on earth. Visible only to those who know where to look…”

Narrator, Pan’s Labyrinth (El Laberinto del Fauno), Screenplay by Guillermo del Toro, at page 97

The year is 1944. Franco’s fascist regime controls Spain. Ofelia, a bright and imaginative eleven-year-old with a fondness for fairy tales, is forced to move to the countryside to live with her sadistic step-father, an army captain bent on eliminating a local band of resistance fighters hiding out in the mountains. Ofelia’s discovery of a stone labyrinth in the woods leads to an encounter with an enigmatic and vaguely menacing faun. The faun is a scout from another world that exists parallel to our own – a world in which Ofelia may play a very important role.

Guillermo Del Toro’s film is a unique blend of realism, horror, and fantasy. It is a layered narrative that weaves together two different realms, presented against a backdrop of dream-like imagery and sound that echo throughout the film.

Del Toro does not sanitize the brutal violence of his chosen environment - the tools of state terror include summary executions and torture. His depiction of life in the fascist regime is a disturbing reminder of the despair that accompanies a society where monsters are not relegated to nightmares, and authoritarian cruelty is allowed to flourish in the light of day.

The bleakness of the setting, however, also reminds us of the importance, and power, of hope. Ofelia is a candle in the night. She demonstrates that we are responsible our own choices during dark and uncertain times – and that disobedience may offer a path to redemption.

Highly recommended.

Useful resources:

The definitive release of this film is the 2016 blu-ray edition published by the Criterion Collection (spine number 838).

 

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Criminal Law and Literature: The Man in the High Castle (1962)

Criminal Law and Literature: The Man in the High Castle (1962)

Evidently we go on, as we always have. From day to day. At this moment we work against Operation Dandelion. Later on, at another moment, we work to defeat the police. But we cannot do it all at once; it is a sequence. An unfolding process. We can only control the end by making a choice at each step.

Philip K. Dick, The Man in the High Castle, Mariner Books, New York, 1962, at page 260

Fifteen years after the capitulation of the Allied forces at the end of the Second World War, a moral and ethical darkness pervades the world. The United States is occupied by Nazi Germany on the East Coast and Imperial Japan in the West. Group characteristics, rather than individual character, define your lot in life; slavery is legal and some groups remain targets for extermination.

In the middle of this grim American landscape lies a narrow buffer zone - the unoccupied Rocky Mountain states. It is here that a mysterious author, the man in the high castle, has penned a science fiction story of an alternate present where the Allies won the War. The banned book and the world it depicts have captured the imagination of the public. The novel is such a source of irritation to the Reich that, even on the eve of plotting the nuclear destruction of their former Pacific ally, plans are afoot to assassinate its enigmatic writer.

Philip K. Dick’s novel serves as a thought experiment – an extrapolation of last century’s most disturbing ideologies. It is a reminder of how bleak day-to-day life can be in a world lacking any meaningful controls on state authority.

The novel also depicts the intellectual and artistic poverty of a society where freedom of expression is curtailed. The censorship of books has been accompanied by the decimation of other forms of entertainment - one of the last surviving great comedians is forced to broadcast from Canada. Dick reminds us that an inability to laugh is a symptom of a society in serious trouble.

Dick also explores our motivations for collecting objects and examines how we imbue inanimate items with special meaning through our thoughts. Furthermore, he contemplates the characteristics that define an object as authentic or genuine and suggests that sometimes a replica may be even better than the real thing.

A worthwhile read.

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A Lawyer’s Oath or Affirmation on Admission to the Bar

A Lawyer’s Oath or Affirmation on Admission to the Bar

When individuals join the legal profession in Canada, they are required to make a solemn personal commitment to shared ideals that provide a North Star for navigating the challenges that lay ahead in the practice of law.

In Nova Scotia, a lawyer being called to the Bar must swear or affirm the following Oath or Affirmation on Admission:

I ... swear/affirm that as a lawyer, I shall, to the best of my knowledge and ability, conduct all matters and proceedings faithfully, honestly and with integrity.

I shall support the Rule of Law and uphold and seek to improve the administration of justice.

I shall abide by the ethical standards and rules governing the practice of law in Nova Scotia.

Section 3.9.5 of the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28

Other considerations:

The Oath or Affirmation on Admission must be spoken in either English or French in Nova Scotia (s. 3.9.6 of the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28).

A lawyer being called to the Bar in Nova Scotia may also swear or affirm the Canadian Oath or Affirmation of Allegiance in addition to the Oath or Affirmation on Admission:

I ... swear/affirm that as a lawyer, I shall, bear true allegiance to Her Majesty, Queen Elizabeth the Second, her heirs and successors according to law.

Section 3.9.7 of the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28

 

 

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Witness Preparation (Part One): Explaining the Rules of Evidence

Witness Preparation (Part One): Explaining the Rules of Evidence

Counsel have a duty to educate witnesses about any rules of evidence that may impact their anticipated testimony. As stated by Watt, J.A., speaking for a unanimous Ontario Court of Appeal in R. v. J.A.T., [2012] O.J. No. 1208 at para. 92:

It is elementary that a party who calls a witness should ensure, to the extent possible, that the witness gives evidence that is relevant, material and admissible in the proceedings. …

It is important to remember that most civilian witnesses lack familiarity with the law of evidence and may require direction to remain focused on pertinent issues and to refrain from recounting information that violates exclusionary rules.

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Criminal Practice Tips: Criminal Court Etiquette in Canada

Criminal Practice Tips: Criminal Court Etiquette in Canada

Mastery of courtroom etiquette is a critical component of effective advocacy.

For those of us with a healthy streak of irreverence, observing proper court etiquette is not about being obsequious or servile – nor does it exist for the pleasure of judges to chastise or embarrass counsel who violate protocol mistakenly.  Rather, proper court decorum promotes the solemnity of the proceeding and facilitates the just and orderly resolution of cases in often highly contentious and emotional matters. Courtroom etiquette reflects a joint commitment by all parties to show respect for the process.

Repeated missteps may be interpreted as a sign of disrespect and may generate ill will - it is unhelpful to alienate other counsel or the judge you are trying to persuade to make a decision on your client’s behalf.

The following tips may be helpful to junior counsel in their efforts to learn the “dos” and “don’ts” of criminal court:

1) Be on time;

2) Dress appropriately;

3) Refrain from placing your bag on counsel table;

4) Refrain from using counsel table as a chair;

5) Refrain from using the bar as a coat stand;

6) Respect the seniority of other lawyers at counsel table when seating is limited;

7) Respect the seniority of other lawyers with respect to the order in which matters on the docket are called. If you have a pressing engagement and your matter is brief, please ask more senior counsel for permission to have your matter called first;

8) Rise when the judge is entering or exiting the courtroom;

9) While the judge is sitting, bow to the judge when you cross the bar or enter or leave the courtroom;

10) Refrain from turning your back to the judge;

11) Use the proper form of address for the judge, depending on the level of court;

12) Use the proper form of address for other counsel - for example, ‘my friend’ or ‘my learned friend’ if the lawyer has a Queen’s Counsel designation;

13) Stand when addressing the judge;

14) Recognize that only one counsel is permitted to stand to address the judge at a given time. Counsel should never be talking over one another. For example, if opposing counsel stands to make an objection during your examination of a witness you must sit down; and

15) Refrain from engaging in any behaviour that may distract the judge, such as talking loudly with other counsel while waiting for your matter to be called.

Other considerations:

When in doubt as to local courtroom etiquette, it is helpful to make advance inquiries of other counsel or court staff. 

It is also critical to appreciate the role of the criminal court clerk: http://merrimenlaw.ca/blog/2017/3/26/criminal-practice-tips-appreciating-the-role-of-the-criminal-court-clerk

 

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Criminal Law and Film: Chinatown (1974)

Criminal Law and Film: Chinatown (1974)

You may think you know what you’re dealing with – but believe me, you don’t.

Noah Cross to Jake Gittes, Chinatown (1974), Screenplay by Robert Towne, at page 79

Jake Gittes is a world-weary private investigator in drought-stricken, Great Depression-era Los Angeles. A former police officer, he has done well for himself by specializing in sexual indiscretions.

Gittes is a vain and proud man. He doesn’t take kindly to being duped by a deceitful client who hires him under false pretenses to obtain compromising photographs of the city’s chief water resource engineer. When the engineer later turns up dead, Gittes’ desire to get to the bottom of the matter puts him on a collision course with a corrupt and powerful elite orchestrating the future development of the city through manipulation of the water supply. Gittes comes to realize far too late that he is in over his head and that the truth is more disturbing than he imagined. 

Chinatown has a complex narrative structure and depth of character that rewards repeated viewings.

The film is shot almost entirely from Gittes’ point of view. Played by Jack Nicholson in his charismatic prime, Gittes is a fun character for us to shadow – his witty irreverance towards all types of authority betrays a likeable moral code. 

Faye Dunaway is compelling as the faux femme fatale Evelyn Mulray, and John Huston is pitch perfect as the menacing and lecherous Noah Cross. Cross provides Gittes with an unsettling glimpse into humanity’s capacity for malevolence when he advises, “most people never have to face the fact that at the right time and the right place they are capable of anything”.

Chinatown also serves as a reminder that individuals under investigation sometimes lie or mislead the police for reasons unrelated to their culpability. An individual’s deepest secrets are not revealed easily.  

Highly recommended.

 

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Criminal Law and Literature: Nineteen Eighty-Four (1949)

Criminal Law and Literature: Nineteen Eighty-Four (1949)

To the future or to the past, to a time when thought is free, when men are different from one another and do not live alone – to a time when truth exists and what is done cannot be undone: From the age of uniformity, from the age of solitude, from the age of Big Brother, from the age of doublethink – greetings!

George Orwell, Nineteen Eighty-Four, Everyman’s Library, New York, 1992, at page 30

In the aftermath of a devastating atomic war, a ruthless totalitarian government rules over the city formerly known as London. “The Party” demands loyalty in both action and thought. There is no privacy – citizens are subject to constant surveillance by the thought police. There is no freedom of expression - citizens are compelled to express opinions consistent with the Party’s ever-changing political orthodoxy. Reality is what the Party says it is at any moment in time - the lessons of science are suppressed and the historical record is altered constantly to conform to the government’s present narrative.

Winston Smith is a troubled member of the Party. He is an individual in a society that does not tolerate eccentricity. His initial treasonous act of keeping a diary to articulate his unsettling thoughts is compounded by an unlawful romantic relationship with another Party member. As Winston seeks out other like-minded individuals, he underestimates how far the Party will go in its efforts to control the behaviour and the thoughts of its citizens.

Orwell’s harrowing novel is brimming with meditations about what it means to live in a free and democratic society. His novel also serves as a warning that the battle for our rights and freedoms never stays won.

His perceptive insights into the machinations of power in the modern age and his clear and accessible writing style ensure the novel's continued relevance.

His novel should be required reading for all criminal lawyers tasked with reinforcing the basic principles of liberal democracy every day in courthouses across the country. 

 

 

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Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Two): Exaggeration, Embellishment, and Hyperbole

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Two): Exaggeration, Embellishment, and Hyperbole

A judge will be alert to whether witnesses exaggerate or embellish their evidence when deciding whether to rely upon their testimony in a criminal proceeding.

Witnesses must be wary of overstating their evidence. Their testimony should be devoid of the dramatic embellishments that we often use when recounting events informally to our friends and family.

Witnesses who entangle otherwise truthful narratives with exaggeration and embellishment run the risk of having the judge reject their account entirely. For example, if opposing counsel can demonstrate that part of what a witness has said has been embellished, this may compromise a judge's assessment of the accuracy or reliability of the remainder of the witness’s testimony.

A judge may also have serious concerns with respect to the sincerity or truthfulness of witnesses who grossly exaggerate their accounts of past events.

Other considerations:

Judges are alert to instances where a witness may have an ulterior motive to embellish a claim (for example, a police officer exaggerating an accused’s level of aggression to justify the use of force (R. v. Young, [2014] O.J. No. 1290 (C.J.), or a police officer exaggerating legitimate safety concerns to justify an unauthorized search (R. v. Ko, [2011] B.C.J. No. 1576 (S.C.J.)). 

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The Scope of An Accused’s Jeopardy at a Criminal Trial in Canada: Be Alert to Lesser Included Offences and Attempts

The Scope of An Accused’s Jeopardy at a Criminal Trial in Canada: Be Alert to Lesser Included Offences and Attempts

When reviewing a charging document, counsel must contemplate an accused’s jeopardy for any partial, or lesser included, offences. Counsel must also be alert to an accused’s potential liability for an attempt to commit the offence charged.

The analytical starting point for assessing an accused’s liability for a partial offence or for an attempt is section 662 of the Criminal Code of Canada that states:

A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

(a)  of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or

(b)  of an attempt to commit an offence so included.

By way of example, the offence of assault causing bodily harm includes the offence of assault. If the judge is not satisfied that the prosecution has proven the element of bodily harm beyond a reasonable doubt at trial, the judge could still find the accused guilty of assault.

Counsel must also take into account sections 662(2) to (6) of the Criminal Code that deem certain offences to be included offences depending upon the specific offence charged. For example, 662(6) allows for a conviction for break and enter with the intent to commit an indictable offence (s. 348(1)(a)) when the specific offence charged is that the accused broke and entered and did commit an indictable offence therein (s. 348(1)(b)).

With respect to the meaning of what constitutes an attempt to commit the offence charged, counsel must refer to section 24 of the Criminal Code – performing an action or omission that is more than “mere preparation” while having the intent to commit the offence charged.

Tactical advice at a criminal trial must take into account any viable offence within the limits of the charging document.

Other considerations:

When advising an accused whether to testify, counsel may have to weigh the benefit of trying to raise a reasonable doubt with respect to the more serious offence charged against providing the prosecution with the foundation necessary for a conviction for a lesser included offence.

 

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Jury Selection in Canada: Concerns for Defence Counsel During the Judicial Pre-Screening Process

Jury Selection in Canada: Concerns for Defence Counsel During the Judicial Pre-Screening Process

Before counsel has an opportunity to challenge prospective jurors, the trial judge performs an in-court, pre-screening process designed to address issues of competency, obvious partiality, and personal hardship (Criminal Code s. 632).

It is important for counsel to pay close attention to which prospective jurors are seeking an exemption from service and on what grounds.

One potential concern is that when seeking an exemption, a prospective juror may convey prejudicial information about the accused to the judge in the presence of the panel (for example, by conveying that the accused is a "bad guy" with a long history of similar criminal activity). The introduction of prejudicial information during the pre-screening process may call into question the impartiality of the panel.

Another potential concern is when the judge refuses prospective jurors' requests to be exempted from service. Counsel may want to consider exercising peremptory challenges should the court clerk randomly select these prospective jurors a later stage.  An accused may not want to have his fate decided by someone who has asked to be exempted from service at the beginning of the proceeding.

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Fundamentals: The Role of the Jury in Canada

Fundamentals: The Role of the Jury in Canada

Any person charged with an offence has the right ... except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment ...

Section 11(f) of the Canadian Charter of Rights and Freedoms

A jury trial brings together twelve Canadian citizens without any legal training from the local community to decide collectively whether an accused is guilty of an allegation of criminal misconduct.

The jury’s decision must be unanimous – all twelve jurors must be satisfied that the state has proven the specific allegation beyond a reasonable doubt in order to find an accused guilty.

If the jury is unable to reach a unanimous verdict, and the judge is satisfied that further deliberations would be futile, the judge may discharge the jury (Criminal Code s. 653). The matter would then proceed to trial before a new jury at a later date.

The following comments from the Supreme Court of Canada provide further insight into the role of the jury:

Our jury system is based upon trial by one's peers: twelve randomly chosen, representative jurors. The jury reflects the common sense, the values, and the conscience of the community. …

Karatkasanis, J., speaking for a unanimous Supreme Court of Canada in R. v. Davey, [2012] S.C.J. No. 75, at para. 30

 

…The jury hears all the evidence admitted at trial, receives instructions from the trial judge as to the relevant legal principles, and then retires to deliberate. It applies the law to the facts in order to arrive at a verdict. In acting as fact-finders … jurors... bring into the jury room the totality of their knowledge and personal experiences, and their deliberations benefit from the combined experiences and perspectives of all of the jurors. One juror may remember a detail of the evidence that another forgot, or may be able to answer a question that perplexes another juror. Through the group decision-making process, the evidence and its significance can be comprehensively discussed in the effort to reach a unanimous verdict.

Arbour, J., speaking for a unanimous Supreme Court of Canada in R. v. Pan; R. v. Sawyer, [2001] S.C.J. No. 44, at para. 43

 

…The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole.

L’Heureux-Dube, J., speaking for a unanimous Supreme Court of Canada in R. v. Sherratt, [1991] 1 S.C.R. 509, at para. 30

Other considerations:

The judge, not the jury, will decide upon an appropriate punishment if there is a finding of guilt.

For the most serious offences listed in section 469 of the Criminal Code, including murder, a jury trial is mandatory in the absence of consent by the Attorney General to have the matter heard by a judge of a superior court (Criminal Code s. 473).

 

 

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Jury Selection in Canada: A Checklist for Peremptory Challenges

Jury Selection in Canada: A Checklist for Peremptory Challenges

It is helpful for counsel to use a checklist during the jury selection process to keep track of the number and order of peremptory challenges, and the number of jury members sworn.

Counsel may draw upon the following template designed for use at a criminal trial involving a single accused where the defence and the state each had twelve peremptory challenges:

JURY SELECTION CHECKLIST

Peremptory challenges exercised

Defence

                        1          2          3          4          5          6

                        7         8          9          10         11         12

Crown

                        1          2          3          4          5          6

                        7         8          9          10         11         12

 

Jury members sworn            

#1)                                       #7)

#2)                                      #8)                                     

#3)                                      #9)

#4)                                     #10)

#5)                                      #11)

#6)                                      #12)

 

Panel members randomly selected

Random selection #1:           Panel member # __________                         sworn / excused

Defence position:      challenge/content

Crown position:         challenge/content

 

Random selection #2:           Panel member # __________                         sworn / excused

Crown position:         challenge/content

Defence position:      challenge/content

 

Random selection #3:           Panel member # __________                         sworn / excused

Defence position:      challenge/content

Crown position:         challenge/content

 

Random selection #4:           Panel member # __________                         sworn / excused

Crown position:         challenge/content

Defence position:      challenge/content

 

Random selection #5: etc....

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Jury Selection in Canada: The Peremptory Challenge

Jury Selection in Canada: The Peremptory Challenge

Counsel for the defence and the state play an active role during the jury selection process in Canada by exercising a limited number of peremptory challenges.

Peremptory challenges allow counsel to exclude a prospective juror without having to provide reasons to the trial judge overseeing the selection process. 

The authority for the peremptory challenge process is found in the Criminal Code of Canada. This process takes place after the judge pre-screens the group of prospective jurors for eligibility, competency, and obvious partiality.

The number of peremptory challenges available to each counsel depends upon several case-specific factors, including the maximum potential punishment for the most serious offence charged (Criminal Code s. 634). 

The order in which the judge will call upon counsel to exercise peremptory challenges is addressed in s. 635 of the Criminal Code. After the court clerk randomly selects the initial prospective juror from the judicially pre-screened panel, the judge will call upon defence counsel first to indicate whether the individual is acceptable ("content") or subject to a peremptory challenge ("challenge"). If both counsel are content, the individual will become a member of the jury. The state will be called upon first for the next randomly selected individual, and the order then alternates back and forth until twelve jurors are selected.  

Counsel in Canada have very limited information to draw upon when deciding whether to exercise a peremptory challenge - the jury panel list that counsel receives in advance of the trial date contains only the name, address, and occupation of each prospective juror. Furthermore, counsel are not permitted to ask questions of prospective jurors during the peremptory challenge process. 

The following comments from Karatkasanis, J, speaking for a unanimous Supreme Court of Canada in R. v. Davey, [2012] S.C.J. No. 75, at para. 32, provide additional insight into the peremptory challenge process:

...the Criminal Code gives the parties a limited opportunity to object to specific jurors chosen from the jury list. Peremptory challenges can be exercised on purely subjective grounds. Crown counsel, as local ministers of justice, exercise that choice on behalf of the public. The alternating order and equal number of peremptory challenges give both the Crown and the defence an equal opportunity to object to a limited number of potential jurors to address any other concerns regarding suitability or concerns that may fall short of proof of partiality. Our ... jury selection process ensures equality of influence over the composition of the jury as between the parties.

Other considerations:

In addition to the peremptory challenge process, section 638 of the Criminal Code also provides for a "challenge for cause" - for example, when case specific factors (pre-trial publicity, race-based prejudices...) raise a realistic concern as to whether the panel of prospective jury members could be predisposed to decide the case in favour of the prosecution. The challenge for cause will be examined in a subsequent post. 

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Examination-in-Chief at a Criminal Trial in Canada (Part One): No Leading – Improperly Suggesting Answers to Your Own Witness on Contentious Issues

Examination-in-Chief at a Criminal Trial in Canada (Part One): No Leading – Improperly Suggesting Answers to Your Own Witness on Contentious Issues

One fundamental rule of evidence with respect to examining your own witness is that you are not allowed to ask leading questions on contentious issues – that is, to suggest answers to the questions that you are asking on matters that are in dispute.

When articulating an objection to a Crown who is improperly leading its own witness on crucial issues, Defence counsel may want to draw upon the following comments from Charron, J.A., speaking for a unanimous Ontario Court of Appeal, in R. v. Rose, [2001] O.J. No. 1150, at para. 9:

     A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances, and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non-contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin (1956), 114 C.C.C. 1 at 22 (S.C.C.).

When the state’s examination of its own witness on contested issues starts to sound like a leading cross-examination, Defence counsel has a duty to object promptly.

The state is not permitted to prove its case by putting words in the mouth of its own witness at a criminal trial.

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Criminal Defence and Immigration Law: Collateral Consequences of Convictions for Non-Citizens

Criminal Defence and Immigration Law: Collateral Consequences of Convictions for Non-Citizens

Non-citizens who engage in criminal misconduct place both their liberty and their immigration status at risk. More specifically, a conviction for a criminal offence may render a non-citizen criminally inadmissible and subject to removal by immigration officials following the conclusion of the criminal court proceeding.

Section 36 of the Immigration and Refugee Protection Act governs criminal inadmissibility in Canada. The section imposes an ongoing obligation upon non-citizens to abstain from criminal misconduct as a condition of maintaining their immigration status.

This is a discussion of criminal convictions inside Canada, although this section also deals with convictions and acts committed outside Canada. 

'Criminality' - s. 36(2)(a)

Section 36(2)(a) pertains to foreign nationals. Foreign nationals include students, workers, visitors, temporary resident permit holders, and individuals who have no legal status in Canada.

The trigger for inadmissibility in Canada under section 36(2)(a) is 'criminality'. Criminality is defined as a conviction "for an offence under an Act of Parliament punishable by way of indictment, or two offences under any Act of Parliament not arising out of a single occurrence".

It is important to note that a hybrid offence (that may be prosecuted summarily or by way of indictment) is deemed to be an indictable offence for the purpose of this analysis, even if the Crown elects to proceed summarily (s. 36(3)(a)). For greater clarity, a foreign national who receives a criminal record of conviction for a hybrid offence under the Criminal Code will be criminally inadmissible in Canada. 

'Serious criminality' - s. 36(1)(a)

Section 36(1)(a) pertains to permanent residents as well as foreign nationals.

The trigger for inadmissibility for inadmissibility under section 36(1)(a) is 'serious criminality'. Serious criminality is defined as a conviction "for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed".

All hybrid offences offences are deemed to be indictable for the purpose of determining the maximum term of imprisonment, even if the Crown elects to proceed summarily (s. 36(3)(a)). By way of example, a permanent resident who receives a criminal record of conviction for a charge of assault causing bodily harm, assault with a weapon, or sexual assault, will be criminally inadmissible in Canada having regard to the maximum term of imprisonment by way of indictment, even if the Crown proceeds summarily.

All permanent residents, regardless of the number of years they have held that status, are subject to inadmissibility for serious criminality.

Future posts will discuss a number of practical considerations stemming from a criminal charge for a non-citizen, including what, if any, rights of appeal may be available within the immigration context in the event of a finding of criminal inadmissibility. 

Other considerations:

The Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, clarified that a conditional sentence of imprisonment (s. 742 to 742.7 of the Criminal Code)  is not a "term of imprisonment" for the purposes s. 36(1)(a) of the Immigration and Refugee Protection Act.

[This is a guest post by my colleague, and Criminal Meditations editor, Lori Hill.]

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When the Crown Seeks an Adjournment on the Trial Date Due to the Absence of Witnesses

When the Crown Seeks an Adjournment on the Trial Date Due to the Absence of Witnesses

 

The onus is on the state to prove an allegation beyond a reasonable doubt at a criminal trial in Canada.  If the necessary witnesses for the prosecution are absent on the trial date, the Crown may not be in a position to prove its case.

While a judge has a statutory discretion to adjourn a trial to another date, this authority is not exercised lightly. When considering whether to grant the Crown’s request for an adjournment, a judge will contemplate the following comments from the Supreme Court of Canada in R. v. Darville, [1956] S.C.J. No. 82 at para. 13:

There was no disagreement before us as to what conditions must ordinarily be established….in order to entitle a party to an adjournment on the ground of the absence of witnesses, these being as follows:

(a) that the absent witnesses are material witnesses in the case;

(b) that the party applying has been guilty of no latches or neglect in omitting to endeavor to procure the attendance of these witnesses; (and)

(c)  that there is a reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial.

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Fundamentals: The Principled Exception to the Rule Against Hearsay

Fundamentals: The Principled Exception to the Rule Against Hearsay

The default position for a judge at a criminal trial in Canada is that hearsay evidence is inadmissible. As a general rule, a party is not permitted to have an out-of-court statement repeated in court for the truth of its contents, having regard to opposing counsel’s difficulty in testing the evidence in the presence of the judge or jury (e.g. R. v. Khalewon, 2006 SCC 57 at para. 34).

That being said, the common law recognizes that sometimes the admission of sufficiently reliable hearsay is necessary for the proper adjudication of an allegation of criminal misconduct. As Karakatsanis, J., speaking for a majority of the Supreme Court of Canada, states in R. v. Bradshaw, [2017] S.C.J. No. 35, beginning at para. 23:

... Under the principled exception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities (Khelawon, at para. 47).

By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process (Youvarajah, at paras. 23 and 25)...

Other considerations:

  •  "...Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude this evidence if its prejudicial effect outweighs its probative value. ...." (Bradshaw, at para. 24).

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