Recognizing the Dangers of Your Expertise

Recognizing the Dangers of Your Expertise

Adults follow paths. Children explore. Adults are content to walk the same way, hundreds of times, or thousands; perhaps it never occurs to adults to step off the paths, to creep beneath rhododendrons, to find the spaces between fences.

Neil Gaiman, The Ocean at the End of the Lane, 2013, page 36, First William Morrow Paperback Edition

It is important to resist the dampening of our imagination and the narrowing of our minds as we advance in our careers.

With expertise comes the danger of developing a closed mind and an aversion to risk. An expert may be inclined to think in terms of limitations – of being ready to justify why something won’t work – as opposed to seeing the possibilities of why something might work. 

The confidence of the expert may serve to impose an invisible cage on the beginner's mind. The well-worn path, how we have always done it, may overlook a better, novel route. 

Look for the space between the fences when confronting a difficult issue.

Tune out the defeatist chatter of the naysayers.

Challenge your desire to project the illusion that you know what you are doing all the time.

Embrace the uncertainty.

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Criminal Law and Literature: The Ocean at the End of the Lane (2013)

Criminal Law and Literature: The Ocean at the End of the Lane (2013)

…it was all coming back to me. Memories were waiting at the edges of things, beckoning to me. Had you told me that I was seven again, I might have half-believed you, for a moment.

                                                Neil Gaiman, page 7, First William Morrow Paperback Edition

An introverted, bookish man returns to his hometown after a death in the family. Needing some time away from the demands of the funeral services, he drives to the farmhouse of a childhood friend. He is overwhelmed by a series of strange and troubling memories as he sits by a familiar pond at the back of the farm. Revisiting the past through the dual lens of innocence and experience, he takes measure of his life in light of a forgotten sacrifice that a young girl made on his behalf many years before.

Gaiman’s novel is remarkable for the strong emotions that it generates within the reader. Drawing upon an imaginative canvas, he conjures up vividly the feelings of vulnerability and powerlessness experienced by children thrown into circumstances beyond their control. By reminding us of what it is like to be seven years old, he gives us insight into our past and a greater understanding of the experiences of our children. 

The criminal practitioner will recognize the malevolence of the persuasive liar (“…I think they’ll believe me. I’ll be very convincing”, states the devious Ursula Monkton at p. 65), the fallibility of memory through the passage of time (“…the memories fade and blend and smudge together…”p. 45), and the chaos that ensues when individuals indulge recklessly their every desire. 

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Editing an Accused’s Voluntary Statement to the Police

Editing an Accused’s Voluntary Statement to the Police

Even if a trial judge determines that an accused’s statement to the police was voluntarily made, there may still be portions of the statement that are inadmissible and properly subject to editing. The prosecution cannot use a voluntary statement made by the accused to inject inadmissible content into a criminal trial.

One area of concern is when the police ask questions of an accused during an interrogation that would be improper for a Crown to ask during the cross-examination of the accused at trial. 

For example, in R. v. L.(L.), 2009 ONCA 413, a unanimous Court of Appeal held that the trial judge should have ordered the excision of the questions and answers during the interrogation that called upon the accused to explain why the complainant would fabricate the allegation. As Justice Simmons elaborates, beginning at para. 14:

Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper for two reasons.

First, as a general matter, it is improper to invite one witness to comment on the veracity of another…

Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focusing on whether the accused can provide an explanation for the complainant's allegations instead of focusing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true….

Contrary to the submissions of the trial Crown, the fact that it may be appropriate for the police to ask such questions as part of an investigation does not mean that portions of an accused's statement in which such questions are asked are properly admissible. This court made that clear in F. (C.). (citations omitted, emphasis added)

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The Crown Sheet

The Crown Sheet

The Crown sheet (or Crown brief/synopsis) is a shorthand reference tool that the police prepare for the prosecution that summarizes the anticipated evidence against an accused should the matter proceed to trial.

The Crown sheet narrative represents the prosecution’s case taken at its highest. The credibility of the witnesses and the reliability of their anticipated evidence has yet to be tested by cross-examination under oath. Furthermore, some of the information alluded to in the Crown sheet may not be admissible at trial.  Finally, independent investigation by the Defence may yield additional information unknown to the police that supports a compelling alternative account.

Defence counsel are also aware that the Crown sheet sometimes paints an incomplete picture of a police investigation or the contents of a witness statement. For example, in one case, the Crown sheet indicated that a complainant had selected the accused as the perpetrator with 100% certainty from a photo lineup. The Crown sheet neglected to mention, however, that the same complainant had also selected four other people from the same photo lineup as the perpetrator, each with 100% confidence.

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The Benefits of Music in Trial Preparation

The Benefits of Music in Trial Preparation

The last stage of trial preparation begins at daybreak on the first day of trial. 

Regardless of how you feel that morning, or whatever else is going on in your life, you must suit up and adopt the necessary mindset to argue your client’s case effectively. 

Pre-trial rituals may be of assistance in calming your nerves and focusing your thoughts. 

Listening to music is one way to prime your mind for navigating the uncertainties that lay ahead. A pre-trial playlist may go a long way towards putting you in the right frame of mind. 

Other considerations:

·     No matter how many years you practice or how thoroughly you have prepared, your nerves will never go away if you care about your client’s predicament.

·     Metallica is effective if you are feeling lethargic and require a shot of adrenaline.

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Fundamentals of Cross-examination: Impeaching a Witness at a Retrial With Testimony from the First Trial

Fundamentals of Cross-examination: Impeaching a Witness at a Retrial With Testimony from the First Trial

One fundamental way of testing the credibility and reliability of a witness in a trial is by demonstrating that the witness has said something different on a previous occasion. 

In the event of a retrial, the testimony of a witness at the first trial becomes a valuable potential source of material for the purpose of impeachment. This point was recently reiterated by Paciocco, J., speaking for a unanimous Court of Appeal in R. v. Morillo, [2018] O.J. No. 3405, at para. 20:

When Mr. Morillo sought to confront the officer with inconsistencies between his testimony at the retrial and his testimony at the first trial, the Justice of the Peace refused to allow it. She apparently laboured under the misconception that since retrials are to be determined on their own evidence, no use should be made of testimony taken at the prior trial, even to demonstrate inconsistency. If this is so, she erred in law. It is trite law that prior inconsistent testimony from a first trial can be used to impeach a witness at a retrial.

Other considerations:

Paciocco, J. in Morillo, at para. 26, also discusses the implications for cross-examination if a party does not have a transcript of the testimony of a witness from the first trial:

...A party need not have a transcript to cross-examine a witness about their prior inconsistent testimony. …If the witness agrees they made the prior inconsistent statement, the contradiction is established. The risk in not having a transcript is that if the witness denies making a prior inconsistent statement when asked, that denial cannot be contradicted and hence the contradiction cannot be proved. Put otherwise, Mr. Morillo would have been well advised to have had the transcript of the first trial with him for use in cross-examination, but the absence of a transcript does not prevent him from cross-examining the officer about the contradictions he believes to exist.

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Criminal Law and Film: Seconds (1966)

Criminal Law and Film: Seconds (1966)

Rebirth. Life again.

Begin again all new...all different. The way you always wanted it.

You’ve got another chance. Heck, nobody’s going to miss you, are they?

Old Man to Arthur Hamilton, Seconds (1966)

Arthur Hamilton (John Randolph), a straight-laced, middle-aged banker, takes stock of his life and finds that he is staring into the abyss. Despite outward appearances of success, both his marriage and his relationship with his adult daughter have run cold. His pending promotion as president of a prestigious Manhattan bank provides little solace from his late-night meditations on the empty nature of his existence. A telephone call from an old college friend, long thought to be deceased, offers the allure of an easy escape and a second chance with a youthful and striking physical appearance (exit John Randolph, enter Rock Hudson). Hamilton realizes too late, however, that the Faustian agreement to abandon his old life and adopt a novel persona has hidden, and horrific, consequences. 

John Frankenheimer's Seconds is a cautionary science-fiction tale and a stark reminder that “wherever you go, there you are”. The siren’s song of an alternate, perfect life, effected simply by starting over in a new place/relationship/career, retains its hold on the popular imagination. The film also serves as a commentary on society's infatuation with youth and physical beauty. 

For the criminal practitioner, the film is a reminder that rehabilitation requires more than simply distancing yourself from your prior actions with a change of name or address. You can’t escape yourself or your past – there are no quick fixes - you can only accept responsibility for your past choices and begin the hard work of choosing to act differently in the future.

Other considerations:

·      The definitive consumer release of this film in North America is the 2013 Blu-ray edition released by the Criterion Collection (spine number 667).

 

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Recurring Dreams of Criminal Counsel

Recurring Dreams of Criminal Counsel

The mental demands of advocacy are not limited to the waking hours – the weight of practitioners’ responsibilities and experiences also find expression in the landscape of their dreams, including:

·     The “forget your robes” dream (and its other popular variations, the “forget your trial binder/which case you are about to argue” dreams);

·     The “you’re not prepared and everyone is waiting for you” dream; and

·     The “you’re too late, you missed the trial” dream.

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Criminal Law and Film: Bicycle Thieves (1948)

Criminal Law and Film: Bicycle Thieves (1948)

See now why we have to find it? Otherwise we don’t eat. What can we do?

                                    Antonio Ricci to his young son, Bruno Ricci, Bicycle Thieves (1948)

Antonio Ricci is a decent, working class man trying to provide for his family in post-World War Two Rome, a city plagued by unemployment and poverty. Desperation turns to hope when he is offered employment but the job requires a bicycle – a bicycle that Ricci has recently pawned. After his wife sells the sheets off their beds to raise money to retrieve the bicycle, Ricci proudly heads off to work as his young boy, Bruno, beams with admiration. When a thief steals Ricci’s bicycle, however, he and Bruno must search the city for the stolen property in a frantic effort to save Ricci’s job. As his son looks on, the father's resilience and integrity reach a breaking point.

Bicycle Thieves was filmed on location in the streets of post-war Rome, taking full advantage of the stark setting to accentuate the main character’s feelings of despair.

The film reminds us that our circumstances often play a significant role in our choices, and that good people under pressure can sometimes lose their way. The line separating the law-abiding citizen from criminal behaviour during times of extreme stress is much thinner than most of us believe.

It is also a story about offenders and their families, and the disillusionment of children when their parents betray the virtues they espouse.

Its universal themes, and the heartfelt interplay between Ricci and his son, ensure the film’s timeless resonance.

Useful resources:

·     The definitive consumer release of Bicycle Thieves in North America is the 2016 Blu-ray edition published by the Criterion Collection (spine number 374).

·     In 2005 the British Film Institute designated Bicycle Thieves as one of fifty films that children should see by the age of fourteen.

 

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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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