Advocacy (Part One): Developing Your Own Style

Advocacy (Part One): Developing Your Own Style

As with creative writing or playing an instrument, in legal advocacy you have to find your own voice.

Learn by observing others, but also recognize that imitation will only take you so far. You dilute what you have to offer by pretending to be someone else.

Develop an advocacy style that is consistent with your personality and your values.

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Legal Writing (Part One): Pay by the Word

Legal Writing (Part One): Pay by the Word

The first place that I start is just with the idea that instead of being paid by the word, I am paying by the word, that the fewer words I can use to tell my story the better, that compression, that economy, all of these things are good.

Neil Gaiman, Neil Gaiman Teaches the Art of Storytelling, Masterclass.com, 2019, Lecture 7, Short Fiction

Neil Gaiman’s advice is also applicable to legal writing. Words are a precious commodity, a valuable resource to be used only when necessary.

A written submission should be a succinct and precise analysis of the issues, not a meandering display of excess verbiage. 

Pay by the word – keep it lean.

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Improper Crown Opening Addresses

Improper Crown Opening Addresses

Defence counsel must be vigilant to guard against improper Crown opening addresses. At a minimum, an improper Crown opening will warrant a corrective instruction from the judge. In more egregious cases, a Defence application for a mistrial may be appropriate. 

When listening to the Crown’s opening address, Defence counsel may want to keep in mind the following comments from a unanimous Court of Appeal in R. v. Mallory, [2007] O.J. No. 236 at para. 338:

It is well established that the opening address is not the appropriate forum for argument, invective, or opinion. The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case… Simply put, "the Crown's opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call": R. v. Griffin at para. 31. At the opening of the trial the rules constraining the Crown "should apply with even more vigour" than at the closing when by then the jurors have heard and seen all about the case: R. v. Griffin at para. 23. (citations omitted) 

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Final Submissions (Part Six): It's All About Reasonable Doubt

Final Submissions (Part Six): It's All About Reasonable Doubt

The crux of final submissions in a criminal trial is whether there is a reasonable doubt as to the accused’s guilt based on the evidentiary record.

It is useful for defence counsel to reiterate that the onus is on the prosecution to prove an allegation beyond a reasonable doubt. The starting point in the analysis is that the accused is presumed to be innocent. There is no burden on the defence – the accused is not required to testify nor to produce any evidence in response to an allegation.

The Crown must address any weaknesses in its case, and explain how the evidence is sufficient to quell any reasonable doubts. 

The Defence must articulate how the prosecution has failed to eliminate all reasonable doubts. In lengthy trials, it is helpful for defence counsel to keep a running list of specific points that raise reasonable doubts about the accused’s culpability. 

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Final Submissions (Part Five): Improper Use of a Constitutional Right Against an Accused

Final Submissions (Part Five): Improper Use of a Constitutional Right Against an Accused

It is improper for a Crown Attorney to use a constitutional right against an accused at a criminal trial. Defence counsel must be vigilant to guard against Crown submissions that insinuate that an accused has done something wrong, or is less worthy of credit, for exercising a constitutional right.

For example, generally the Crown is prohibited from referring to the fact that an accused has access to the police investigative file prior to testifying. As a unanimous Court of Appeal stated in R. v. Gordon, [2012] O.J. No. 4059 at para. 6:

            Crown counsel…seemed to invite the jury at one point in his closing to draw an inference against the appellant's credibility because the appellant had the benefit of full disclosure and hearing the Crown's case before testifying. At the outset of his charge to the jury, the trial judge emphatically advised the jury that no such inference could be drawn. The trial judge made it crystal clear to the jury that they should disregard that submission and that the appellant, like all accused, was constitutionally entitled to disclosure and to know the case for the Crown before testifying. …

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Final Submissions (Part Four): Improper Inflammatory Remarks

Final Submissions (Part Four): Improper Inflammatory Remarks

Inflammatory: Tending to arouse anger, hostility, passion…

Dictionary.com

Defence counsel must be on guard against inflammatory remarks during the Crown’s closing submissions.

Tapping into the well of negative emotions surrounding an allegation of criminal misconduct is akin to the Crown putting its thumb on the scale when trying to prove its case. The gaps in the prosecution’s case must not be bridged by anger - speculation fueled by hostility has no place in a criminal trial.

Inferences consistent with innocence may be overlooked when improper closing remarks stir up a cloudy haze of antagonistic feelings against the accused.

Useful references:

-      R. v. Vallieres,[1970] 4 C.C.C. 69 (Que. C.A.), at p. 82:

[I]n a trial before a jury, no evidence can be presented, and no statement may be made by counsel for the Crown, which might induce a jury to base a conviction upon psychological or passionate grounds which might affect the most objective and just treatment of the accused, in accordance with cold reason …               

-      R. v. Roberts (1973), 14 C.C.C. (2d) 368 (Ont. C.A.), at p. 370:

It has been said on many occasions that the paramount duty of the Crown prosecutor is to see that justice is done, not to strive for a conviction. Certainly, he ought to refrain from language which is likely to inflame the jury and to divert the jury's attention from the real issue that they have to decide.

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Crown Election (Part One): Hybrid Offences Are Deemed Indictable Unless and Until the Crown Elects to Proceed Summarily

Crown Election (Part One): Hybrid Offences Are Deemed Indictable Unless and Until the Crown Elects to Proceed Summarily

The prosecution must choose whether to proceed summarily or by way of indictment when an accused is charged with a hybrid criminal offence.

Prior to the Crown’s election at the accused’s first court appearance, a hybrid offence is deemed to be indictable. As Justice Fish stated, speaking for the majority of the Supreme Court of Canada, in R. v. Dudley, 2009 SCC 58 at para. 21:

…hybrid offences are deemed to be indictable unless and until the Crown elects to proceed summarily. Thus, speaking for the Nova Scotia Court of Appeal in R. v. Paul-Marr, 2005 NSCA 73, 199 C.C.C. (3d) 424, at para. 20, Cromwell J.A. (as he then was) explained that "where an offence may be prosecuted by either indictment or on summary conviction at the election of the Crown, the offence is deemed to be indictable until the Crown elects to proceed by way of summary conviction...". Likewise, in R. v. C. (D.J.) (1985), 21 C.C.C. (3d) 246, at p. 252, MacDonald J., speaking for the Prince Edward Island Supreme Court, Appeal Division, stated that "in the case of a hybrid offence once the Crown elects to proceed by way of summary conviction the offence is no longer deemed to be an indictable offence". And in Canada (Attorney General) v. Trueman, P.C.J. (1996), 83 B.C.A.C. 227, at para. 13, once more for a unanimous court, McEachern C.J.B.C. held that hybrid offences "are deemed by s. 34 of the Interpretation Act ... to be indictable [and] remain indictable unless the Crown elects to proceed by [page581] summary conviction". (Emphasis added throughout.)

Useful references:

·     Interpretation Act

s. 34(1) Where an enactment creates an offence,

(a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment…

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Final Submissions (Part Three): Don’t Refer to Case Law When Closing Before a Jury

Final Submissions (Part Three): Don’t Refer to Case Law When Closing Before a Jury

Counsel should refrain from referring to case law in their final submissions before a jury.

It is the role of the trial judge, not counsel, to distill the necessary legal principles from the jurisprudence for the jury.

The jury must remain focused on the evidentiary record and not be distracted by the factual circumstances in unrelated cases. The details of other cases may have the potential to inflame and prejudice the jury against the accused.

In R. v. Drover, [2000] N.J. No. 36, the Court of Appeal overturned the appellant’s conviction for sexual assault due to the Crown’s improper closing remarks to the jury. The Crown’s final submissions included extensive references to the factual circumstances and verdicts in the high-profile prosecution of another individual convicted of similar offences. Roberts, J.A., speaking for a unanimous Court at para. 16, affirmed the following comments of Townsend C.J.N.S. in R. v. Cook (1914), 23 C.C.C. 50 (NSCA), concerning the use of previous cases:

 ... It would be highly inconvenient and calculated to mislead the jury if counsel on each side had the right to read from books the law as laid down in other cases, where the facts and issues were not the same. It would not be possible for untrained laymen to understand all those nice distinctions which are present in most cases. On the Judge, and on him alone, lies the responsibility for directing the jury in point of law, and, if he goes wrong, he can always be corrected. If the jury must take the law from him, what good can come from counsel reading and interpreting the law in any other way? It can have but one result, if it is of any weight - that would be to confuse the minds of the jury, and, therefore, should not be permitted.

Useful references:

R. v. Charest, (1990) 57 C.C.C. (3d) 312 (Que. C.A.) at p. 330:

…Applicable principles of law should be left for the judge to explain; when reference to the law is necessary for the purpose of making an argument, the law should be accurately stated.

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Final Submissions (Part Two): It’s Not About Politics

Final Submissions (Part Two): It’s Not About Politics

Crown counsel must not inject political commentary into their final arguments at a criminal trial. It is improper for the prosecution to refer to government policies, social movements, or the perceived prevalence of certain crimes in the community during closing submissions. 

The sole focus of a criminal trial is whether the prosecution has tendered sufficient admissible evidence to prove the specific allegation against the accused beyond a reasonable doubt. The decision-making process must remain focused on the admissible evidence and the governing law.

If Crown counsel makes reference to current political trends in the justice system to add force to their closing submissions they may compromise the fairness of the trial and a mistrial may follow.

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Final Submissions (Part One): It's Not About You

Final Submissions (Part One): It's Not About You

Counsel are not permitted to personalize their final arguments by providing opinion evidence or by drawing upon information that is not part of the admissible record. When counsel start injecting their personal knowledge or judgments into their submissions, they are acting as a witness rather than an advocate.

When drafting your final submissions it may be helpful to remember that:

Your personal views about the evidence are not relevant. Instead of saying: “I believe” or “I think”, say “The Defence submits that…”;

Your factual submissions must be grounded in the evidentiary record, not your personal knowledge; and

The spotlight is on the governing law and the evidentiary record, not on you.

Useful references:

  • R. v. Tomlinson, 2014 ONCA 158 at para. 96:

…counsel, whether prosecuting or defending, are not permitted to give evidence in their closing submissions: R. v. Smith (1997), 120 C.C.C. (3d) 500 (Ont. C.A.), at para. 26. This prohibition includes providing an explanation, not otherwise in evidence, for the failure of an accused to testify. (emphasis in original)

  • R. v. Boudreau, 2012 ONCA 830 at para. 16:

…The Crown must not … express personal opinions about either the evidence or the veracity of a witness…

  • R. v. Browne, 2017 ONSC 5796 at para. 58:

…If…counsel has given evidence, a trial judge has a duty to correct the…transgression.

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Presentation Matters (Part Four): Mastery of Language

Presentation Matters (Part Four): Mastery of Language

Mastery of language affords remarkable power.

Frantz Fanon, psychiatrist.

…Whoever writes English is involved in a struggle that never lets up even for a sentence. He is struggling against vagueness, against obscurity, against the lure of the decorative adjective, against the encroachment of Latin and Greek, and, above all, against the worn-out phrases and dead metaphors with which the language is cluttered up.

George Orwell, novelist.

Mastery of language is a fundamental skill for an advocate.

Counsel’s command of language is critical for instilling confidence in clients. Insufficient attention to formality may undermine a client’s assessment of your capabilities.

Poor choice of language may also serve as a barrier to meaningful communication. Empathetic communication requires the selection of words that convey respect and understanding, rather than judgment. Furthermore, counsel must be wary of technical jargon that may confuse and alienate our clients.

Judges also have high expectations with respect to the formality and precision of counsel’s language. A judge should be focused on counsel’s arguments, not distracted by counsel’s sloppy language or inappropriate use of slang. 

When playing the role of advocate, counsel must strive to communicate clearly and effectively.  A powerful expression of an idea or a concept that resonates with a judge or a jury may turn a case in your client’s favour.

Other considerations:

-       Read broadly to expand your vocabulary and to enhance your ability to express your ideas. 

-       Debrief your verbal and written interactions with others and refine your approaches. If you put your foot in your mouth, use it as a learning experience and remember that you are the only one who is keeping a running tally of your greatest verbal blunders.   

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Conditional Discharges for Unlawful Parental Discipline

Conditional Discharges for Unlawful Parental Discipline

The following cases may be of assistance to counsel when advocating for a conditional discharge for a parent facing a sentencing hearing for the use of unlawful discipline:

R. v. F.J.H., [2017] B.C.J. No. 197 (S.C.) – The offender entered a guilty plea for a charge of assault with a weapon for striking his 13-year-old daughter once in the leg with a belt. On appeal, Meiklem, J. granted the offender a conditional discharge with probation for six months.

R. v. T.F., [2016] B.C.J. No. 129 (P.C.) [trial decision only - sentencing decision reported in associated media coverage] – A father and mother were convicted for assault with a weapon for striking their 14-year-old daughter on the buttocks with a plastic mini-hockey stick and a skipping rope after the daughter sent nude pictures of herself to her boyfriend. The judge granted the offenders a conditional discharge with probation for twelve months. 

R. v. J.B., [2015] N.J. No. 312 (P.C.) – The 32-year-old offender assaulted his six-year-old stepdaughter by grabbing her by her upper arms, lifting her off the floor, and slamming her against a wall. The offender plead guilty and sought counseling. The judge granted the offender a conditional discharge with probation for twelve months. 

R. v. V.P. , [2014] O.J. No. 4152 (C.J.) – The offender assaulted her 10-year-old son by striking him in the nose. She had a prior finding of guilt for assaulting another family member. The judge granted the offender a conditional discharge with probation for two years. 

R. v. D.W., [2014] B.C.J. No. 822 (P.C.) – The offender assaulted his 11-year-old daughter on two occasions out of a “misguided attempt…to administer discipline…” (para. 6). On the first occasion, he slapped her face twice with an open hand and then struck her with a belt once on clothed buttocks. On the second occasion he struck her two times with a belt on her clothed buttocks. The judge granted the offender a conditional discharge with probation for fourteen months.  

R. v. C.J.D., [2012] Y.J. No. 21 (T.C.) – The 26-year-old offender assaulted his 30-month-old stepson. Frustrated with the young child’s crying, the offender spanked the victim, lifted him up and dropped him on the bed, and covered his mouth. He entered a guilty plea and sought counseling subsequent to the incident. The judge granted the offender a condition discharge with probation for twelve months. 

R. v. Prosper, [2012] N.J. No. 321 (P.C.) – The 30-year-old offender struck her 4-year-old daughter out of frustration. The judge granted the offender a conditional discharge with probation for twelve months. 

R. v. J.F.C., [2006] N.S.J. No. 37 (S.C.) – Crown appeal against sentence for a charge of assault with a weapon dismissed. The offender struck his 8-year-old son repeatedly (“ten to twelve times”) with “what was probably a broom handle” (para. 4). The judge granted the offender a conditional discharge.

R. v. Brown, [2005] Nu. J. No. 13 (C.J.) – The offender hit her pre-teen foster child on more than one occasion out of frustration with the child’s lying. The victim’s glasses were broken and the offender was not forthcoming with respect to the number of assaults. The judge granted the offender a conditional discharge and placed her on probation for six months. 

R. v. Bielenik, [1999] O.J. No. 4104 (C.J.) – The 34-year-old offender, upset with his 12-year-old daughter’s repeated lying, strapped her with a belt three times on her thighs and forearm “more out of anger and frustration than out of a considered controlled form of discipline” (para. 65). The family had engaged in counseling subsequent to the incident. The judge granted the offender an absolute discharge.

 

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Presentation Matters (Part Three): Undivided Attention

Presentation Matters (Part Three): Undivided Attention

Nothing is more precious than being in the present moment. Fully alive, fully aware.

Nhat Hanh, Buddhist monk and peace activist

When meeting with a client at the office, counsel should create an environment that is free from distractions. Clients deserve your undivided attention.

Being in the present moment is necessary for empathetic communication. It is also a matter of respect.

The following tips may be useful in the prevention of intrusive interruptions:

-      Cell phones should be turned off and tucked away in a desk drawer;

-      The landline telephone should be set to ‘do not disturb’;

-      All browser windows on your computer, including e-mail, should be closed; and

-      Your assistant should be instructed not to interrupt you unless it is an emergency.

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Presentation Matters (Part Two): Attire

Presentation Matters (Part Two): Attire

First impressions are critical when you are acting in a professional capacity. You must adopt the necessary formalities when you assume the role of advocate, including dressing in a professional manner.

Prospective clients are searching for someone to advocate on their behalf in matters that may have life-altering consequences. Your appearance is part of a client’s assessment of your competence - clients expect their counsel to dress appropriately for their role. A mismatch between client expectations and your presentation may undermine a client’s confidence.

Proper attire is also an element of effective advocacy in court. Your appearance should convey the message that you understand your role as a professional and that you respect the process. The judge should be focused on your arguments, not distracted by your clothing.

Suiting up also has psychological benefits for counsel. We play many different roles in our lives and the uniform that we choose for each is useful for putting us in the right frame of mind for confronting the task at hand.

Just as Bono adopts the persona of characters such as “The Fly” or “Macphisto” through a change of wardrobe during a live performance, so must counsel adopt the appropriate costume for their role as advocate.

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Maximum punishments

Maximum punishments

Every offence in the Criminal Code of Canada has a maximum punishment. 

The maximum punishment represents the upper limit for a judge contemplating a fair and just sentence.

It is rare for an offender to receive the maximum penalty. Maximum punishments are generally reserved for offenders with a significant related record or where the circumstances of the criminal misconduct are particularly egregious.

The maximum punishment conveys the relative gravity of an offence. The highest maximum sentence for an offence in Canada is life imprisonment - Parliament removed the death penalty as a sentencing option from the Criminal Code in 1976. 

The maximum punishment for an offence may limit the range of available sentencing options. For example, a maximum sentence of imprisonment for fourteen years or for life will preclude a judge from granting an offender a discharge to avoid a criminal record of conviction, or from imposing a conditional sentence of imprisonment to allow the offender to serve the sentence in the community.

The maximum punishment for an offence is also critical for assessing the collateral immigration consequences of criminal misconduct for a non-citizen. When Parliament raises the maximum penalty for a criminal offence, the consequences for non-citizens may be severe following the conclusion of the criminal proceeding.

Other considerations:

On December 18, 2018, Canada will raise the maximum penalty for a first-time impaired driving offence to ten years when the Crown proceeds by way of indictment. Under the Immigration and Refugee Protection Act, the increased maximum penalty will render permanent residents criminally inadmissible to Canada in the event of a conviction, regardless of whether the Crown proceeds summarily or by way of indictment (IRPA sections 36(1)(a) and (3)(a)). 

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Fundamentals of Cross-Examination: The Requirement to Establish a Prior Inconsistent Statement

Fundamentals of Cross-Examination: The Requirement to Establish a Prior Inconsistent Statement

A judge or jury may choose not to rely upon a witness’s testimony when counsel demonstrates that the witness has made a contradictory statement before trial; however, counsel must ensure that the record includes proof of the inconsistency.

Proof may be the witness’s acknowledgement that they made a different statement on a prior occasion. However, if a witness denies making the prior statement, counsel must take proper steps to prove what was said before trial (see sections 10 and 11 of the Canada Evidence Act).

By way of example, if there is a recorded statement to the police, counsel will obtain a transcript and confront the witness with the relevant portion of their statement at trial. If the witness acknowledges that the transcript accurately reflects what they said at the time, counsel may draw upon the inconsistency during final submissions.

If the witness denies having uttered the statement in the transcript, counsel must play the recorded statement to prove the inconsistency. Otherwise, it cannot be used to undermine the testimony of the witness.

As stated by Justice Beveridge, speaking for a unanimous Court of Appeal in R. v. Mauger, [2018] N.S.J. No. 193, beginning at para. 25:

While one might rightly be suspicious that the transcript was indeed an accurate reflection of what Mr. Morrison told the police, Morrison plainly denied that he had said those words and challenged defence counsel to play the recording. Unfortunately, counsel did not.

If he had, it would have been plain that either Mr. Morrison had, in fact, related different details to the police or the transcript was not accurate. Like the trial judge, we simply do not know.

 Justice Beveridge continues at para. 30:

…the record plainly demonstrates that no prior inconsistent statement was established before the trial judge.

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Criminal Practice Tips: Properly Navigating the Courtroom

Criminal Practice Tips: Properly Navigating the Courtroom

When a court is in session, every party has an assigned location. For lawyers, counsel table serves as a geographical anchor while the case is being heard.

Counsel must seek the permission of the judge to approach anyone in the courtroom during a hearing. This includes a witness, the court clerk, or even a client in the prisoner’s dock.

When counsel leaves their assigned location, counsel should be cognizant of the fact that their comments may not be recorded if they are too far away from a microphone. 

 Other considerations: 

  • All items intended for the judge should be given to the court clerk or the sheriff.

  • In Canada, there are no sidebars - counsel do not approach the bench while the court is in session to have an off the record conversation with the judge.

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Criminal Trial Exhibits (Part Two): Introducing an Exhibit

Criminal Trial Exhibits (Part Two): Introducing an Exhibit

The proper introduction of an exhibit into evidence is a fundamental aspect of criminal trial practice.

Counsel first asks the court to mark the item for the purpose of identification. It is important to note that marking an item for identification does not make it part of the admissible record, only part of the broader record of the proceeding.

Counsel then shows the item to the opposing party and the trial judge. For documents or photographs, a reference copy should be provided to both.

Counsel then places the item before the witness. After counsel elicits the testimony needed to lay a proper evidentiary foundation, counsel will request that the item be entered into evidence.

After considering any objections from opposing counsel, the trial judge rules on the admissibility of the item.

If the judge determines that the item is admissible, it becomes a numbered exhibit and will be considered during the decision-making process. Counsel should then highlight the exhibit’s significance through subsequent witness testimony.

If the judge refuses to admit an item that the court previously marked for identification, the item is retained by the clerk and remains part of the record for review in the event of an appeal.

Other considerations:

·     Counsel should keep a running log of the exhibits tendered for ease of reference during witness examination.

·     Where a party has a significant number of exhibits, counsel may ask the judge at a pre-trial conference for permission to have the items pre-marked for identification in advance of the trial.

·     The court maintains custody over the exhibits. Counsel must ensure that the exhibit is returned to the court clerk at the conclusion of a witness examination.

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Criminal Trial Exhibits (Part One): Strategic Considerations

Criminal Trial Exhibits (Part One): Strategic Considerations

During trial preparation, counsel must consider whether to present any exhibits as part of their case.

Exhibits are any physical items that supplement testimony. Common exhibits include documents, recordings, photographs, and objects associated with the commission of an alleged offence (for example, a weapon). 

As a starting point, counsel should consider whether the potential exhibit is both necessary and helpful. Counsel should not overwhelm or distract the judge or jury with exhibits of marginal relevance that add little value to the testimony of the witnesses. Counsel should also weigh the tactical benefits and disadvantages of having the exhibit form part of the evidentiary record. 

If a potential exhibit may be useful, counsel must then consider its admissibility, taking into account all of the information within an exhibit. For example, an accused’s Charter-compliant and voluntary statement to the police may still contain inadmissible content (e.g. bad character evidence or improper police questions) that needs to be edited. 

Counsel must identify the appropriate witness to lay the evidentiary foundation required for admission, and in appropriate cases, should canvass whether the opposing party will concede admission to streamline the trial process.

Counsel should anticipate any objections to admission, and where it is reasonably foreseeable that admission will be contentious, address the issue with the judge at a pre-trial conference.

It is helpful to remember that the trial judge is the evidentiary gatekeeper - no exhibit will be considered unless the judge allows it to be admitted into evidence after counsel establishes its evidentiary foundation and overcomes any objections by the opposing party.

Future posts in this series will examine the procedure for entering an exhibit at a criminal trial and review specific admissibility considerations for common types of exhibits.

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Criminal Law and Film: Breaker Morant (Australia, 1980)

Criminal Law and Film: Breaker Morant (Australia, 1980)

It’s no bloody secret our graves were dug the day they arrested us at Fort Edward! 

Lieutenant Peter Handcock, played by Bryan Brown, Breaker Morant (1980)     

The Boer War, a conflict pitting the British Empire against the mostly Dutch population of South Africa, is nearing an end. Three Australian officers serving in the British army, including the notorious Harry ‘Breaker’ Morant, face a politically-driven court martial in relation to the murder of Boer prisoners and a civilian sympathetic to the Boer cause. Were the men simply following orders from a superior during a brutal guerrilla war? As their lives hang in the balance, the military assigns them a single lawyer on the eve of their hearing. The panel of judges soon discover, however, that Defence counsel exhibits a zealous and fearless advocacy that they did not anticipate.                                                  

Bruce Beresford’s Breaker Morant is a compelling courtroom drama that unfolds primarily through flashbacks.

The film dramatizes the importance of due process and the critical role of counsel for the Defence. In the absence of disclosure and reasonable time for preparation and investigation by their counsel, the accused persons sense that the hearing is merely a political show-trial where the outcome is a foregone conclusion. 

Beresford makes interesting choices in visual style that draw out the pressures on each participant during the hearing. For example, at one point there is a close-up on the face of an anxious witness whose eyes dart around the room nervously as counsel argue in the background. At another point, the accused persons look at each other in exasperation as their counsel fumbles through a messy pile of documents. 

The film also reminds us of the power of extreme environments to elicit disturbing behavior in ordinary individuals. Most of us are lucky never to be placed under such pressure or confronted with how we may act in those circumstances. 

Other considerations:

·      The definitive consumer release of this film in North America is the 2015 Blu-ray edition released by the Criterion Collection (spine #773)

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