The Principled Exception to the Rule Against Hearsay: Threshold Reliability

The Principled Exception to the Rule Against Hearsay: Threshold Reliability

A party in a criminal proceeding may seek to rely upon an out of court statement for the truth of its contents (also called hearsay) by demonstrating, on a balance of probabilities, that the admission of the statement is both necessary and sufficiently reliable (R. v. Khelawon, 2006 SCC 57 at para. 47). 

The Supreme Court of Canada in R. v. Bradshaw, [2017] 1 S.C.R. 865 provides guidance with respect to assessing whether an out of court statement is sufficiently reliable to be admitted at trial. Karakatsanis, J., speaking for a majority of the Court, states at para. 26:

To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). …The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

At para. 27 Karakatsanis, J. outlines two pathways for establishing threshold reliability:

The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).

With respect to procedural reliability, Karakatsanis, J. states at para. 28:

Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36). Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying (B. (K.G.), at pp. 795-96). However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of a recanting witness at trial (B. (K.G.)R. v. U. (F.J.)[1995] 3 S.C.R. 764), is usually required (R. v. Couture2007 SCC 28[2007] 2 S.C.R. 517, at paras. 92 and 95). …

With respect to substantive reliability, Karakatsanis, J. states at para. 30 that:

A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith[1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman2008 SCC 37[2008] 2 S.C.R. 298, at para. 55).

 Karakatsanis, J. continues at para. 31:

While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty" (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process"(Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court's jurisprudence. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken" (Smith, at p. 933); "under such circumstances that even a sceptical caution would look upon it as trustworthy" (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is "unlikely to change under cross-examination" (Khelawon, at para. 107; Smith, at p. 937); when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about" (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

Other considerations:

·      The Court in Bradshaw sets out a restrictive approach as to when a trial judge can rely upon corroborative evidence in the assessment of substantive reliability. At para. 57 Karakatsanis, J. states:

…to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should

1. Identify the material aspects of the hearsay statement that are tendered for their truth;

2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

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An Informed Guilty Plea Includes Knowledge of Immigration Consequences

An Informed Guilty Plea Includes Knowledge of Immigration Consequences

An accused’s guilty plea in Canada must be voluntary, unequivocal, and informed. 

The Supreme Court of Canada recently affirmed in R. v. Wong, 2018 SCC 25 that an informed guilty plea includes knowledge of immigration consequences (para. 4).

A majority of the Court held that an uninformed guilty plea with respect to a legally relevant consequence may result in a miscarriage of justice and allow for the withdrawal of the guilty plea if an accused establishes subjective prejudice. More specifically, accused persons must demonstrate how they would have handled the plea process differently if they had been aware of the collateral consequence. As Justices Moldaver, Gascon and Brown, speaking for a majority of the Supreme Court of Canada, state at para. 6 in Wong:

…accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.

The bottom line is that criminal practitioners must determine their clients’ immigration status at the outset of the solicitor-client relationship. Counsel’s advice with respect to choice of plea for non-citizen accused persons must take into account collateral immigration consequences. 

Other considerations:

·     Clients have a positive obligation to notify immigration authorities that they have been arrested and charged if they have an ongoing application with Immigration, Refugees, and Citizenship Canada. 

·      R. v. Pham, 2013 SCC 15 at para. 14: “…a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.”

 

 

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An Accused Has Final Decision-Making Authority Regarding Choice of Plea

An Accused Has Final Decision-Making Authority Regarding Choice of Plea

In criminal defence practice, the final decision-making authority for choice of plea rests with the accused. While counsel plays an important role in ensuring that pleas are voluntary, informed, and unequivocal, “the ultimate choice is that of the accused” and counsel “are ethically required to seek their client’s direct instruction” (R. v. Wong, 2018 SCC 25 at paragraphs 3 and 11).

An accused’s choice of plea is a uniquely personal decision. As stated by Justices Moldaver, Gascon and Brown, speaking for a majority of the Supreme Court of Canada in Wong, at para. 11: 

...The decision to plead guilty reflects deeply personal considerations, including subjective levels of tolerance, priorities, family and employment circumstances, and individual idiosyncrasies. …

While an accused’s choice of plea may appear unwise or irrational, the majority of the Court in Wong states clearly that it “…is the decision of the accused, not a reasonable accused, or someone like the accused” (para. 12) (emphasis in the original). 

A client’s motivations with respect to choice of plea may not always be transparent to counsel, and a client may not want to articulate the reasons behind his or her decision. In some cases, an accused may want to avoid the embarrassment of a public trial, whereas in other cases, a public admission of the alleged wrongdoing may simply be more than the client can bear. Ultimately it is the accused persons who must live with themselves and their decisions.

The bottom line is that counsel ensures their clients’ choices are informed, voluntary, and unequivocal, while the clients must personally weigh all of the factors bearing upon their decision. 

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The Admissibility of a Statement by a Youth to a Person in Authority in Canada

The Admissibility of a Statement by a Youth to a Person in Authority in Canada

Youths benefit from enhanced procedural protections during police interrogations due to their heightened vulnerability relative to adults. Justice Fish, speaking for a majority of the Supreme Court of Canada in R. v. L.T.H., [2008] 2 S.C.R. 739, at para. 24, states as follows:

This Court has consistently held that the rationale for (enhanced statutory protections for youths during police questioning) lies in Parliament’s recognition that young persons generally do not understand their legal rights as well as adults, are less likely to assert those rights in the face of a confrontation with a person in authority and are more susceptible to the pressures of interrogation (R. v. I. (L.R.) and T. (E.)[1993] 4 S.C.R. 504, at p. 522; and R. v. J. (J.T.)[1990] 2 S.C.R. 755)…

If the state wants to use a youth's statement to a person in authority at trial, the prosecution must first satisfy the trial judge in a separate hearing (a voir dire - a trial within a trial) that the police complied with the onerous requirements of section 146 of the Youth Criminal Justice Act. As Justice Fish summarizes neatly at para. 18 in L.T.H.:

…The relevant parts of s. 146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (1) the statement was voluntary (s. 146(2)(a)); (2) the person who took it "clearly explained to the young person, in language … appropriate to his or her age and understanding" the young person's right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview) (s. 146(2)(b)); and (3) the young person was given a reasonable opportunity to exercise those rights (s. 146(2)(c)). Finally, s. 146(4) provides that young persons, subject to certain conditions, can waive their right to consult counsel and an adult before making the statement and can also waive the right to have counsel and the adult present when the statement is made. 

The Prosecution’s Standard of Proof

The Court in L.T.H. affirmed that the prosecution must prove beyond a reasonable doubt that the state complied with each of the requirements of section 146(2) (para. 32). 

The Court also affirmed that the prosecution must prove the validity of any waiver of these rights beyond a reasonable doubt (para. 39). As Justice Fish states at para. 40:

Like adults, young people can waive their right to counsel. They may also waive their unique right to have counsel and an adult present during the making of a statement. However, as in the adult context, a waiver will be valid only if the judge is satisfied that it is premised on a true understanding of the rights involved and the consequences of giving them up. [Emphasis added]

For greater clarity, Justice Fish states at para. 48:

… If the trial judge is satisfied, beyond a reasonable doubt, that the rights and options of the young person were in fact explained in the manner required by s. 146, a presumption will arise that the young person in fact understood those rights … and the effect of waiving them. Trial judges will therefore be expected to draw that inference in the absence of evidence to the contrary. [Emphasis in original]

Pursuant to s. 146(4), any valid waiver by young persons of their rights under s. 146(2)(c) or (d) must also be: (a) recorded on video tape or audio tape; or (b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

The Test for Compliance with the Informational Component in s. 146(2)(b) 

The Supreme Court affirms in L.T.H. that the prosecution needs to prove that the police clearly explained the young person’s rights in language that was appropriate for that particular youth. As Justice Fish states at para. 21:

…the test for compliance with the informational component is objective. It does not require the Crown to prove that a young person in fact understood the rights and options explained to that young person pursuant to s. 146(2)(b). That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular youth being questioned (N. Bala, Youth Criminal Justice Law (2003), at p. 220).

Justice Fish goes on to clarify at para. 30 that:

…An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person's understanding. Police officers, in determining the appropriate language to use in explaining a young person's rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

With respect to a state official’s reasonable efforts to tailor their language to the individual youth, Justice Fish adopts the following language at para. 23:

... persons in authority taking statements must learn something about the educational level of the child, the language and vocabulary skills of the child, his faculties of understanding, his emotional state at the time. These inquiries do not call for the intervention of a psychologist, or a telephone call to the school teacher, or even to a parent. But they do require enough conversation with the young person, to permit the officer to determine how many phrases must be explained and to what extent he must use ordinary or street language or even slang to be sure the child understands what is being said.

Section 56 [of the Young Offenders Act, the predecessor to s. 146 YCJA] will require evidence on a voir dire from the person(s) in authority that he had a reasonable basis for forming an opinion as to the "age and understanding" of a young person. [Emphasis in original; paras. 29 and 34.]

With respect to the use of standardized forms to assist an officer in explaining a young person’s rights, Justice Fish states at para. 28:

… adherence to standardized forms can facilitate, but will not always constitute, compliance with s. 146(2)(b). Compliance is a matter of substance, not form. The trial court must be satisfied, upon considering all of the evidence, that the young person's rights were in fact explained clearly and comprehensibly by the person in authority. [Emphasis in original]

The court also clarified that there is no legal requirement under s. 146 to have an officer ask young persons to “recite back” or “explain back” their rights (para. 26). That said, the Court notes that there is utility in this approach as “this may well demonstrate that the explanation was both appropriate and sufficient” (para. 26).

Other considerations:

  • Section 146 (3) provides for an exemption from the requirements set out in paragraphs (2)(b) to (d) "in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements". 
  • Section 146 (6) is a saving provision that allows a judge to forgive errors in compliance with the requirements of s. 146(2) if the errors constitute mere technical irregularities.
  • The full text of section 146(2) of the Youth Criminal Justice Act states:

No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

(a) the statement was voluntary;

(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that

(i) the young person is under no obligation to make a statement,

(ii) any statement made by the young person may be used as evidence in proceedings against him or her,

(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

(c) the young person has, before the statement was made, been given a reasonable opportunity to consult

(i) with counsel, and

(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and

(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

 

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Common Misconceptions About Criminal Law in Canada (Part Seven): My Youth Record Will Disappear When I Turn Eighteen

Common Misconceptions About Criminal Law in Canada (Part Seven): My Youth Record Will Disappear When I Turn Eighteen

There is a common misconception that the criminal records of young persons are sealed or destroyed when they turn eighteen. Many youths and their families are surprised to learn that turning eighteen has no effect on the accessibility of youth records.

Generally, the access period of a youth record - the time period when a record remains open - depends upon the classification of the offence and the punishment imposed by the youth court judge. These time periods are set out in section 119(2) of the Youth Criminal Justice Act. 

Young persons who re-offend may also extend the time in which their records are accessible. For example, a subsequent conviction as an adult while certain types of youth records are still open will cause those youth records to become adult records for the purposes of access (Youth Criminal Justice Act s. 119(9)). 

At the conclusion of a criminal proceeding, young persons should have a clear understanding of how long their records will be open. A record may have a negative impact upon their prospects for education, employment, volunteer positions, and their ability to travel outside of Canada.

Other considerations:

·     For more serious crimes, the prosecution may seek to have a young person sentenced as an adult. For a young person sentenced as an adult, the record is treated as an adult record (Youth Criminal Justice Acts. 117).

·     The relevant statutory provisions governing youth records are found in sections 117 to 129 of the Youth Criminal Justice Act.

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The Proper Presentation and Treatment of An Accused in a Criminal Court in Canada

The Proper Presentation and Treatment of An Accused in a Criminal Court in Canada

An accused’s physical appearance and location in a criminal courtroom should affirm, not detract from, the presumption of innocence and the accused's inherent dignity. The design of a courtroom and the selection of any security measures must take into account these fundamental principles. The liberty of an accused should only be restricted to the extent necessary to preserve the security of the courtroom.

A trial judge must also ensure that the accused can participate meaningfully in the proceeding in order preserve the right to make full answer and defence. In addition to being able to observe and hear the witnesses, an accused must be able to communicate with counsel and should be provided with a pen and paper to take notes, if desired.

The accused’s presentation and treatment in court should send a message to the public that this is someone just like them – a fellow human being - who deserves a fair hearing without bias or prejudice. 

Useful references:

- "The location of a defendant in a courtroom is within the discretion of the trial judge. See R. v.  Levogiannis (1993), 85 C.C.C. (3d) 327 (S.C.C.). This discretion is to be exercised in a way that preserves the fairness of the trial and the security of the courtroom. ..." (R. v. Smith, [2007] O.J. No. 2579 (S.C.J.) at paragraph 19).

- "Absent the existence of a proven security risk, persons charged with a criminal offence should be entitled, at their option, to be seated with their counsel, rather than in the prisoner's dock. ..." (A recommendation from the The Kaufman Report on the wrongful conviction of Guy Paul Morin.)

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Witness Preparation (Part Three): Preventing Communication Failures

Witness Preparation (Part Three): Preventing Communication Failures

A witness in a criminal proceeding only has one opportunity to articulate their position clearly and plainly - there are no do-overs. During preparation, counsel must be alert to the use of ambiguous or imprecise language that does not accurately convey what the witness intends to say. 

For example, there is a significant difference between saying “I don’t recall” and “that didn’t happen” in response to a suggestion made by opposing counsel during cross-examination. “I don’t recall” leaves open the possibility that the suggestion may be true, whereas “that didn’t happen” is a clear denial of it. 

A judge or jury will scrutinize the exact words that a witness uses in assessing whether the prosecution has proven an allegation beyond a reasonable doubt. It would be unfortunate to have the credibility and/or reliability of a witness undermined due to a misuse of language.

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Improper Crown Sentencing Submissions: Maintaining Innocence is Not an Aggravating Factor

Improper Crown Sentencing Submissions: Maintaining Innocence is Not an Aggravating Factor

Defence counsel must be alert to improper Crown submissions at a sentencing hearing. 

One area of concern is when the prosecution suggests that it is aggravating for individuals to maintain their innocence and to fail to demonstrate remorse following a finding of guilt at trial. As a general rule, an offender’s lack of remorse is a neutral factor that carries no weight in a judge’s decision-making process. As discussed by Justice Melvyn Green in R. v. Al-Saedi, 2017 ONCJ 2014 at para. 23:

It must also be borne in mind that there are at least three scenarios where the absence of remorse ought not, under any circumstances, to have any weight on sentencing. First, where the offender maintains his innocence despite an adverse finding at trial; mistaken convictions are hardly unknown to Canadian law. Second, where the offender acts in principled disobedience of the law; for example, a dairy farmer sincerely convinced that pasteurizing his milk jeopardizes his consumers' health: see, for example, R. v. Schmidt, 2014 ONCA 188. And third, where the offence itself channels the imposition of majoritarian morality untethered to an empirical risk of harm; by way of historical illustration, those sentenced for having same-sex relations with other consenting adults, or, of more current vintage, persons found guilty of simple possession of marihuana.

Justice Melvyn reminds us that there is often no foolproof way to determine what happened in the past, nor does the criminal justice system require that the prosecution prove an accused’s guilt to an absolute certainty. The standard of proof beyond a reasonable doubt, while demanding, still allows room for error. For example, in a case that hinges upon an assessment of credibility, it is possible that a judge or a jury may erroneously reject an accused’s claim of innocence.

The bottom line is that individuals are permitted to maintain their innocence and may express an intention to appeal their conviction without fear that the prosecution will use this as an aggravating factor at sentencing.

Other considerations

·    A judge will give an individual credit for a genuine expression of remorse at a sentencing hearing.

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Language Matters (Part Three): Avoid Dehumanizing Language

Language Matters (Part Three): Avoid Dehumanizing Language

The Canadian criminal justice system recognizes the inherent value and worth of the individual. Every individual must be treated humanely at each stage of the process.

Defence counsel must be on guard against language that undermines a client's dignity.

At trial, counsel must object immediately when a Crown Attorney crosses the line from zealous advocacy to improper denigration of an accused during cross-examination. Cross-examination is not a license to treat an accused like a piece of trash. By way of example, Rosenberg, J.A., speaking for a unanimous Court of Appeal in R. v. Robinson, [2001] O.J. No. 1072 at para. 35, stated:

…Crown counsel’s cross-examination of the appellant was highly improper. From start to finish, it was designed to demean and denigrate the appellant. …Many of the questions posed were laced with sarcasm and framed in a manner that made it apparent that Crown counsel personally held the appellant in utter contempt…

Defence counsel also plays a role in ensuring that a sentencing hearing does not degenerate into an exercise in dehumanizing an offender. While there is a need to publicly denounce an offender’s criminal misconduct, there is no place for inflammatory language that casts an offender as subhuman or beyond redemption.

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Common Misconceptions About Criminal Law in Canada (Part Six): Only Signed or Recorded Statements Can be Used Against Me

Common Misconceptions About Criminal Law in Canada (Part Six): Only Signed or Recorded Statements Can be Used Against Me

Any information or commentary that you provide to the police about a matter under investigation is a statement.

A statement includes any oral remarks or utterances. The prosecution may seek to use anything that you say or blurt out when interacting with a state official against you at any stage of the criminal justice process, including at your bail hearing and at your trial. 

For greater clarity:

·     A statement does not have to be in writing or signed by you;

·     A statement does not have to be audio or video recorded; and

·     A statement does not have to be made under a solemn oath or affirmation.

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Language Matters (Part Two): The Exercise of Constitutional Rights Should Not Be Described in Pejorative Terms

Language Matters (Part Two): The Exercise of Constitutional Rights Should Not Be Described in Pejorative Terms

A fundamental principle in Canadian criminal law is that accused persons cannot be penalized for invoking a constitutional right.

Nor should the invocation of a constitutional right be characterized in a negative way in a criminal proceeding.

By way of example, an accused has a constitutional right to silence. Choosing to exercise that right during interactions with the police should not be characterized as ‘failing to cooperate’, nor should accused persons who choose not to testify at their trial be referred to as having ‘failed’ to testify. The use of such language suggests that there is a positive obligation on accused persons to assist the state in proving the allegation against them and serves to undermine both the right to silence and the presumption of innocence.

Describing the exercise of a constitutional right as a 'failure' conveys a message to the general public that the choice to exercise a constitutional right is improper – a misconception that is useful for state officials to draw upon in their efforts to persuade individuals to give up their rights at the time of arrest or detention.

Defence counsel must be on guard against the use of language in the justice system that undermines an accused's constitutional rights.

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Witness Preparation (Part Two): Don't Argue the Theory of the Case

Witness Preparation (Part Two): Don't Argue the Theory of the Case

The role of a witness in a criminal trial does not include making legal arguments.

A witness has a duty to honestly answer any questions posed by counsel for the prosecution and for the defence, not to act as an advocate for a particular position by drawing legal conclusions. Witnesses must refrain from making legal submissions or comments about any theories of the case in their testimony.

Civilian witnesses who tend to pontificate about the legal elements of the alleged offence or to argue the case during preparation for trial will need clear direction from counsel as to the proper scope of their evidence before testifying in court.

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Common Misconceptions About Criminal Law in Canada (Part Five): Defence Counsel Condone or Approve of Criminal Misconduct

Common Misconceptions About Criminal Law in Canada (Part Five): Defence Counsel Condone or Approve of Criminal Misconduct

In a free and democratic society governed by the rule of law, it is imperative to separate criminal defence counsel from the alleged misdeeds of their clients.

Criminal defence counsel do not advocate or approve of criminal misconduct. Counsel defend due process, not criminal behavior - they protect the constitutional rights of accused persons enshrined in the Canadian Charter of Rights and Freedoms through vigorous advocacy on behalf of their clients. Regardless of the nature of the allegations, counsel ensure that accused persons are treated fairly and have a clear understanding of their rights and obligations at each stage of the process.

The role of defence counsel does not include facilitating or encouraging illegal activity. Clients who insist upon pursuing an unethical or illegal course of action in a criminal proceeding will soon find themselves without further assistance from counsel.

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The Meaning of a ‘Not Guilty’ Plea in a Criminal Proceeding in Canada

The Meaning of a ‘Not Guilty’ Plea in a Criminal Proceeding in Canada

A plea of ‘not guilty’ in a criminal proceeding is a public declaration that you do not admit the essential elements of the allegation made against you.

The plea invokes your constitutional right to a trial where you are presumed innocent and where the burden is on the state to prove the specific allegation beyond a reasonable doubt. 

Every accused has a right to a trial. Even if you have committed the alleged act with the requisite intent, it is not lying or committing perjury if you choose to enter a plea of ‘not guilty’. A plea of 'not guilty' is not a declaration of what you did or didn’t do – rather, it is a request to have a trial to compel the state to prove the specific allegation against you by way of admissible evidence before the matter proceeds any further.

A plea of ‘not guilty’ does not compel you to testify at your trial or to produce any other evidence in your defence – the burden of proof always rests with the state to establish your guilt without relying upon you as a witness for the prosecution. Accused persons are never forced to tell their side of the story or to explain their actions at a criminal trial. Furthermore, your silence cannot be used against you as a basis for a finding of guilt.

While you may choose to testify or present evidence in your defence following the conclusion of the case for the prosecution, the invocation of your right to a trial does not give you a license to testify falsely under oath or to tender evidence that you know is false in an effort to secure an acquittal. There is a difference between choosing to remain silent at trial (a constitutional right) and providing false information under oath with an intention to mislead the court (the criminal offence of perjury).

If the state does not tender sufficient evidence to discharge its burden of proof beyond a reasonable doubt at trial, the judge will dismiss the allegation.

If you are found guilty after a trial and the matter proceeds to a sentencing hearing, the judge will not punish you for entering a plea of ‘not guilty’ and choosing to exercise your right to a trial - an accused cannot be penalized for invoking a constitutional right.

That being said, a plea of ‘not guilty’ is a choice not to take advantage of the potential benefits that may accrue from a timely plea of guilty. There is a financial and an emotional cost to setting a matter down for trial. A negotiated resolution with the prosecution may also result in a more lenient state recommendation on punishment and greater confidence with respect to the ultimate outcome. Furthermore, a judge will give an offender credit for a guilty plea at a sentencing hearing when making the final decision with respect to the appropriate penalty – credit that does not exist when there has been a finding of guilt after a trial.

If you choose to enter a plea of ‘not guilty’, you can change your plea to guilty at any time before the judge or jury renders a verdict. As a general rule, however, a judge will assign an offender greater credit for a guilty plea that is made at an earlier stage of a criminal proceeding. 

 

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Fundamentals: Developing a Working Knowledge of the State’s Investigative Tools

Fundamentals: Developing a Working Knowledge of the State’s Investigative Tools

Criminal practitioners must develop a working knowledge of the state's investigative tools in order to provide emergency legal advice to a detainee. Such knowledge is also critical for providing an opinion of the legality of a state official's conduct after an investigation is complete.

As a starting point, counsel must become familiar with the specific legal authority for each investigative technique, including knowledge of the necessary preconditions for use and the terms of execution.

Counsel’s advice must also be informed by day-to-day police practice, including the study of tactical strategies that have evolved within the limits of the law.

Counsel should also appreciate the interaction between different methods of investigation. For example, the information obtained from one method may provide the foundation needed for the use of another technique, such as a successful interrogation leading to a warrant to search. In addition, there may be more than one viable pathway for a state official seeking to obtain evidence, such as a search based upon an informed consent in lieu of a search pursuant to a warrant. 

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Police Interrogations in Canada: An Introduction to Tactics and Strategies

Police Interrogations in Canada: An Introduction to Tactics and Strategies

Emergency legal advice for detainees who want to exercise their right to silence must take into account interrogation tactics and strategies. As stated by Moldaver, J.A., since appointed to the Supreme Court of Canada, and then speaking for a unanimous Ontario Court of Appeal in R. v. McKenzie, (2002) O.J. No. 3029, at para. 37:

The appellant in the instant case did not receive the benefit of legal advice - advice which would have alerted him not only to his rights but also to various types of police conduct of which he should be wary. Absent such advice, the appellant was particularly vulnerable and susceptible to being manipulated into a mental state in which he was more likely to talk…. [emphasis added]

Police interrogation strategies constitute a calculated psychological exercise in trying to obtain information from a detainee. Verbal persuasion and manipulation, rather than physical violence and oppression, are the order of the day in Canada.

Every interrogation is different. The interrogator's selection of techniques will depend upon the unique characteristics of the suspect and the offence. The progress of an interrogation is also improvisational in nature as it depends upon the responses of the detainee. Furthermore, some strategies involve more than one interrogator, while others are tailored to circumstances where multiple detainees are under investigation. Finally, the amount of time and resources that the state will invest in trying to obtain information from a detainee will correlate with the seriousness of the matter under investigation.

Future posts in this series will draw from reported cases to examine common interrogation strategies in Canada.

 

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The Right to Counsel in Canada: The State Must Allow A Detainee a Reasonable Opportunity to Speak with a Lawyer Prior to Eliciting Evidence

The Right to Counsel in Canada: The State Must Allow A Detainee a Reasonable Opportunity to Speak with a Lawyer Prior to Eliciting Evidence

Everyone has the right on arrest or detention…..to retain and instruct counsel without delay and to be informed of that right.

Section 10(b) of the Canadian Charter of Rights and Freedoms

When detainees ask to speak with a lawyer at the time of arrest or detention, the general rule is that the police are prohibited from making any investigative demands or requests until the detainees have been provided with a reasonable opportunity to exercise their right to counsel [e.g. R. v. Prosper, [1994] 3 S.C.R. at para. 34]. 

The obligation of the police to “hold off” on questioning or making other investigative demands was recently revisited by the Supreme Court of Canada in R. v. G.T.D., [2018] S.C.J. No. 7. In G.T.D., supra, the police properly advised the accused of the reasons for his arrest and provided him with the necessary information about his right to consult with a lawyer. The accused then expressed a desire to speak with counsel. Before allowing the accused an opportunity to speak with a lawyer, however, the officer went on to say:

You may be charged with sexual assault and breach. You are not obligated to say anything unless you wish to so do, but whatever you do say may be given in evidence. Do you wish to say anything?

In response to the officer’s question, the accused made a comment that was ultimately used against him at his trial.

A unanimous Supreme Court of Canada held at para. 2 that:

The first issue in this appeal is whether the question “Do you wish to say anything?”, asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to “hold off”. We are all of the view that it did, because it elicited a statement from G.T.D.

A majority of the Court in G.T.D., surpa, was also of the view that the violation of the accused’s right to counsel warranted the exclusion of the accused’s statement at his trial (para. 3).

Other considerations:

·      Police services across Canada must ensure that the printed materials provided to front-line officers for use at the time of arrest or detention do not trigger violations of a detainee’s constitutional right to counsel.

·      The obligation of the police to “hold off” on eliciting evidence from a detainee who wants to speak with a lawyer is one of the “implementational duties” that the constitutional right to counsel imposes upon state officials at the time of arrest or detention (Prosper, supra, at para 34).

 

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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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