On the Mutability of Memory: East of Eden (1952)

On the Mutability of Memory: East of Eden (1952)

 

The following passage from John Steinbeck in East of Eden, 1952, is a salient reminder of the mutability of memory:

….No one outside the War Department knew the quality and duration of his service. His wooden leg was at once a certificate of proof of his soldiering and a guarantee that he wouldn’t ever have to do it again. Timidly he began to tell Alice about his campaigns, but as his technique grew so did his battles. At the very first he knew he was lying, but it was not long before he was equally sure that every one of his stories was true. Before he had entered the service he had not been much interested in warfare; now he bought every book about war, read every report, subscribed to the New York papers, studied maps. His knowledge of geography had been shaky and his information about the fighting nonexistent; now he became an authority. He knew not only the battles, movements, campaigns, but also the units involved, down to the regiments, their colonels, and where they originated. And from telling he came convinced that he had been there. 

                        (Steinbeck Centennial Edition, Penguin Books, New York, at page 17)

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Improper Crown Negotiation Tactics (Part One): Threatening an Accused with Additional Charges if They Exercise Their Right to a Trial

Improper Crown Negotiation Tactics (Part One): Threatening an Accused with Additional Charges if They Exercise Their Right to a Trial

…Justice is not only about results, it is about how those results are obtained.

                        Justice Abella, R. v. Babos, [2014] 1 S.C.R. 309 at para. 85

Plea bargaining veers into impropriety when a Crown Attorney attempts to bully or intimidate an accused with threats of additional charges if they exercise their right to a trial. Justice Moldaver, speaking for a majority of the Supreme Court of Canada in R.v. Babos, [2014] 1 S.C.R. 309, provides helpful guidance as to the limits of proper negotiation, beginning at para. 59:

… It is perfectly proper for the Crown to indicate that it will drop certain charges, grounded in the evidence, if the accused pleads guilty. It is also proper for a Crown to advise counsel that if evidence arises at the preliminary inquiry that would support additional charges, they may be added to the indictment under s. 574(1)(b) of the Criminal Code. Where discussions of this sort occur with counsel after substantial disclosure has been provided, the accused and his or her lawyer are able to make an informed decision as to how to proceed and nothing improper has occurred.

The Crown's conduct in this case was of a different nature. The impugned comments were made early on in the proceedings, before the appellants and their counsel had sufficient disclosure to make an informed decision as to how they wished to proceed. Moreover, in at least one instance, the comments occurred in the presence of one of the appellants, Mr. Piccirilli. And the Crown's language was nothing short of threatening. Mr. Piccirilli was told, for example, that if he did not settle, he was going to be [TRANSLATION] "hit by a train". Put simply, the Crown's threats were intended to pressure the appellants into foregoing their right to a trial.

Without question, the bullying tactic to which Ms. Tremblay resorted was reprehensible and unworthy of the dignity of her office. It should not be repeated by her or any other Crown. In her capacity as a Crown, Ms. Tremblay's role was that of a quasi-judicial officer. Her function was to be "assistant to the Court in the furtherance of justice, and not to act as counsel for any particular person or party" (Boucher v. The Queen, [1955] S.C.R. 16  at p. 25). In threatening to charge Mr. Piccirilli with more offences if he did not plead guilty, Ms. Tremblay betrayed her role as a Crown. Manifestly it is the type of conduct the court should dissociate itself from.

 

 

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Prosecutorial Discretion in Canada (Part Two): An Essential Feature of the Criminal Justice System

Prosecutorial Discretion in Canada (Part Two): An Essential Feature of the Criminal Justice System

We must reserve the blunt tool of the criminal justice system for the most serious cases. The criminal justice system can’t do everything. It is not a panacea for all of society’s ills.

Justice Michael Moldaver, speaking at the National Criminal Law Program in Ottawa on July 8, 2019

The Supreme Court of Canada has affirmed repeatedly that prosecutorial discretion is an essential attribute of the justice system. Indeed, the exercise of prosecutorial discretion is critical for curtailing the unnecessary and unproductive use of an increasingly complex and costly criminal trial process when other just solutions may be more appropriate.

The underlying importance and purpose of prosecutorial discretion is perhaps best understood by examining the following passages from the Supreme Court of Canada:

The existence of the discretion conferred by the statutory provisions does not… offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

                                                            R. v. Beare, [1988] 2 S.C.R. 387 at para. 51

…Parliament's enactment of dual procedure offences recognizes that certain crimes can be more or less serious depending on the circumstances and provides the Crown with discretion to choose the most appropriate procedure and range of potential penalties. For example, the offence of fraud under $5,000 -- one of the charges in this case -- can embrace criminal activity ranging from a young first offender switching price tickets on an item in a department store, to a repeat offender wrongfully appropriating the savings account of a vulnerable person under his or her care. The Crown prosecutor chooses the procedure that best fits the particular offence and offender. As this Court has recognized, discretion, including prosecutorial discretion, is an "essential feature of the criminal justice system" which will not be lightly interfered with…

                                                                        R. v. Dudley, [2009] S.C.J. No.58 at para. 65

…while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence…, it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth... Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country's criminal law mechanism… In this sense, within the boundaries outlined above, the Crown must be allowed to perform the function with which it has been entrusted; discretion in pursuing justice remains an important part of that function. (citations omitted)

R. v. Cook, [1997] 1 S.C.R. 1113 at para. 21

In exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General that brings the principle of independence into play. Its fundamental importance lies, not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as "ministers of justice”… Thus, the public good is clearly served by the maintenance of a sphere of unfettered discretion within which Crown attorneys can properly pursue their professional goals. (citations omitted)

                                                            Miazga v. Kvello Estate, [2009] 3 S.C.R. 339 at para. 47

 

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Prosecutorial Discretion in Canada (Part One): The Scope of Prosecutorial Discretion

Prosecutorial Discretion in Canada (Part One): The Scope of Prosecutorial Discretion

The exercise of prosecutorial discretion refers to all Crown decision-making “regarding the nature and extent of the prosecution and the Attorney General's participation in it" (Krieger v. Law Society of Alberta, 2002 SCC 65 at para. 47). 

By way of example, the Supreme Court of Canada has affirmed that the following decisions constitute exercises of prosecutorial discretion, whether to:

-      “bring the prosecution of a charge laid by police” (Krieger at para, 46); 

-      “enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code … ss. 579 and 579.1” (Krieger at para, 46);

-      “accept a guilty plea to a lesser charge” (Krieger at para, 46);

-      “withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.)” (Krieger at para, 46);

-      “take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.)” (Krieger at para, 46);

-      “repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34)” (R. v. Anderson, 2014 SCC 41 at para. 44);

-      “pursue a dangerous offender application” (Anderson at para. 44);

-      “prefer a direct indictment” (Anderson at para. 44);

-      “charge multiple offences” (Anderson at para. 44);

-      “negotiate a plea” (Anderson at para. 44);

-      “proceed summarily or by indictment” (Anderson at para. 44); and

-     “ initiate an appeal” (Anderson at para. 44).

By way of contrast, a Crown Attorney’s constitutional duties are not a matter of prosecutorial discretion. As Justice Moldaver states in Anderson at para. 45:

… the Crown possesses no discretion to breach the Charter rights of an accused. In other words, prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations such as the duty to provide proper disclosure to the defence.

Crown Attorneys also possess no discretion to breach their duties of professional conduct. As Justices Iacobuci and Major state in Krieger at para. 50:

There is a clear distinction between prosecutorial discretion and professional conduct. It is only the latter that can be regulated by the Law Society. The Law Society has the jurisdiction to investigate any alleged breach of its ethical standards, even those committed by Crown prosecutors in connection with their prosecutory discretion. This is important as the interests of the Attorney General in promoting the administration of justice may differ from those of the Law Society in regulating the legal profession and maintaining public confidence.

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Legislative Update: The Return of the Victim Fine Surcharge on July 21, 2019

Legislative Update: The Return of the Victim Fine Surcharge on July 21, 2019

On December 14, 2018, the Supreme Court of Canada nullified the victim fine surcharge provisions in section 737 of the Criminal Code (R. v. Boudreault, 2018 SCC 58). Parliament’s revised surcharge provisions came into force on July 21, 2019, pursuant to Bill C-75.

The new provisions allow a judge to waive or reduce the surcharge having regard to considerations of “undue hardship to the offender” or if the surcharge would otherwise “be disproportionate to the gravity of the offence or the degree of responsibility of the offender” (s. 737 (2.1)). This latter exemption will be of assistance to offenders facing sentencing for multiple offences. 

Section 737 (3) still allows a judge to elevate the legislated surcharge that would otherwise apply “if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount”. (Practice tip: When an offender has the ability to pay and is seeking a discharge, a submission for an elevated victim fine surcharge may be of assistance in persuading the judge that the proposed punishment is not contrary to the public interest.) 

The rule against retrospective application of punishment in s. 11(i) of the Charter will preclude the imposition of a victim fine surcharge for offences occurring prior to July 21, 2019. Section 11(i) states:

Any person charged with an offence has the right….if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The final version of Bill C-75 can be found here: https://www.parl.ca/Content/Bills/421/Government/C-75/C-75_4/C-75_4.PDF

The text of the new surcharge provisions is reproduced below for ease of reference:

Victim surcharge 

737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge for each offence, in addition to any other punishment imposed on the offender. 

Amount of surcharge 

(2) Subject to subsections (2.1) and (3), the amount of the victim surcharge in respect of an offence is 

(a) 30% of any fine that is imposed on the offender for the offence; or 

(b) if no fine is imposed on the offender for the offence, 

(i) $100 in the case of an offence punishable by summary conviction, and 

(ii) $200 in the case of an offence punishable by indictment. 

Exception 

(2.1) Despite subsection (1), the court may, on application of the offender or on its own motion, order an offender to pay no victim surcharge, or to pay a reduced amount, if it is satisfied that the victim surcharge 

(a) would cause undue hardship to the offender; or 

(b) would not cause undue hardship to the offender but would be disproportionate to the gravity of the offence or the degree of responsibility of the offender. 

Definition of undue hardship 

(2.2) For the purposes of subsection (2.1), undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants. 

For greater certainty 

(2.3) For greater certainty, for the purposes of subsection (2.2), the imprisonment of the offender alone does not constitute undue hardship. 

Reasons 

(2.4) When the court makes an order under subsection (2.1), the court shall state its reasons in the record of the proceedings. 

Increase in surcharge 

(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount. 

Time for payment 

(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition. 

Amounts applied to aid victims 

(5) A victim surcharge shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time. 

Notice 

(6) The court shall cause to be given to the offender a written notice setting out 

(a) the amount of the victim surcharge;
(b) the manner in which the victim surcharge is to be paid; 

(c) the time by which the victim surcharge must be paid; and 

 (d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accord- ance with section 734.3. 

Enforcement 

(7) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim sur- charge imposed under this section and, in particular, 

(a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and 

(b) the notice provided under subsection (6) is deemed to be an order made under section 734.1. 

Application — subsections (2.1) to (2.4) 

(8) Subsections (2.1) to (2.4) apply to any offender who is sentenced for an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act that was committed after the day on which those subsections come into force. 

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Attention to Detail (Part One): Ensuring that the Paperwork Reflects the Judge’s Decision

Attention to Detail (Part One): Ensuring that the Paperwork Reflects the Judge’s Decision

In a bustling provincial courthouse there is an ever-present risk of human error in the preparation of court orders. 

After a judge’s decision on bail or sentence, counsel should ensure that the subsequent written orders reflect the judge’s oral determination.

Errors in orders that are not corrected promptly may have significant adverse ramifications for a client’s liberty interests (for example, being arrested for a breach of a bail condition that was transcribed inaccurately) or long-term consequences with respect to record-keeping (for example, a probation order that was recorded as a suspended sentence rather than a discharge). 

Other considerations

When making submissions on bail or sentence, counsel are well advised to reduce any proposed conditions to writing to facilitate the preparation of the associated orders. 

Counsel should not rely on clients to spot errors when they are signing orders.

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Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Six): The Either/Or Error

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Six): The Either/Or Error

In the face of contradictory accounts of events, judges or juries may become distracted by thoughts of “Which version should I believe?” rather than staying focused on whether they have a reasonable doubt as to the accused’s guilt after considering all of the evidence. 

The correct approach to decision-making in a case that turns on credibility does not simply involve picking one account over another. It is a legal error for a judge or a jury to decide a criminal case by making an ‘either/or’ choice between the evidence of a complainant and the evidence of an accused.

The starting point for guidance on the proper application of proof beyond a reasonable doubt in the face of conflicting accounts, and the associated common pitfalls in reasoning, is the Supreme Court of Canada’s landmark case of R. v W.(D.), [1991] 1 S.C.R. 742, which will be examined in detail in future posts. 

Whether assessing the merits of an appeal of a judge’s decision or providing input on a pending jury instruction, criminal counsel must be well versed in this area of law to ensure that their clients receive a fair trial with a proper application of the standard of proof.

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Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Five): A Witness’s Interest in the Outcome of a Proceeding

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Five): A Witness’s Interest in the Outcome of a Proceeding

A witness’s interest in the outcome of a proceeding is a relevant consideration when assessing credibility (R. v. Laboucan, [2010] 1 S.C.R. 397 at para. 11). It is impermissible, however, to assume that a witness is going to lie under oath as a result of his or her interest. As Justice Charon states, speaking for a unanimous Supreme Court of Canada in Laboucan at para. 11:

…A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent's or a spouse's testimony solely on the basis of the witness's relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility.

Of particular concern to the fairness of a trial is the pernicious and impermissible assumption that an accused will, as a matter of course, lie to secure an acquittal. Justice Charon acknowledges in Laboucan that the “common sense proposition that a witness's interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence” (para. 12). However, she cautions that “in most cases” it is ‘simply unhelpful’ to consider an accused’s interest in the outcome of the proceeding when assessing his or her credibility as a witness (para. 14). Justice Charon states that “as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal” (para. 14).

As Justice Charon explains at para. 12:

… both innocent and guilty accused have an interest in not being convicted. …Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B. (L.) (1993), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger in considering the accused's motive arising from his or her interest in the outcome of the trial. In an often-quoted passage, she stated as follows (at pp. 798-99):

It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused's interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur. [Emphasis added.]

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The Importance of Obtaining a Certified Copy of the Charging Document

The Importance of Obtaining a Certified Copy of the Charging Document

Trial counsel in provincial court should obtain a certified copy of the charging document (information) from the court administration office for the following reasons:

- The draft charging document in the initial disclosure package may not reflect the final version that the officer swears in advance of the arraignment date;

- Trial counsel must assess any deficiencies in the charging document (for example, the information was not properly sworn);

- Trial counsel must be alert to any amendments that the Court may have made to the charging document subsequent to an accused’s arraignment; and

- The date the officer swore the charging document is important when assessing: 1) A client’s right to be tried within a reasonable time (the delay clock starts running when the information is sworn); and 2) Whether the charging document was sworn in time (Code s. 786(2) - a limitation period of six months for summary conviction matters, except with the agreement of the prosecutor and the accused).

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Third Party Records Applications in Sex Offence Trials (Part Five): The Accused Must Seek a Ruling as to Admissibility in Order to Use Private Records at Trial

Third Party Records Applications in Sex Offence Trials (Part Five): The Accused Must Seek a Ruling as to Admissibility in Order to Use Private Records at Trial

The Canadian criminal justice system recognizes that an accused’s right to make full answer and defence may require the admissibility of a complainant’s private records at a criminal trial, for example, for the purpose of cross-examination. Indeed, the admissibility of relevant information in a private record may prevent a miscarriage of justice.

At the same time, the system also recognizes the privacy and equality rights of complainants.

In the context of an allegation of sexual misconduct, the mechanism for balancing these competing rights when assessing the admissibility of a private record at trial is set out in section 278.92 of the Criminal Code which came into force on December 13, 2018.

If an accused has possession of the personal records of a complainant in a sex offence case, whether pursuant to a ruling for production subsequent to a third party records application, further to a consent release or otherwise, the accused must seek a ruling as to the admissibility of the records pursuant to section 278.92 of the Criminal Code before making any use the contents of the records at trial (R. v. Boyle, [2019] ONCJ 226).

Section 278.92(1) of the Code states:

Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused – and which the accused intends to adduce – shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a)  An offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

(b) Any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct would be an offence referred to in paragraph (a) if it occurred on or after that day.

Section 278.1 of the Code identifies a ‘record’ as follows:

For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence [emphasis in the original].

Requirements for Admissibility 

Section 278.92(2) sets out the test for admissibility of private records relating to a complainant that are in the possession or control of an accused. Section 278.92(2) states: 

The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(a)  If the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

(b)  In any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

The factors that a judge shall consider are set out in section 278.92(3), which states:

In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a)  the interests of justice, including the right of the accused to make full answer and defence;

(b)  society’s interest in encouraging the reporting of sexual assault offences;

(c)  society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;

(d)  whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(e)  the need to remove from the fact-finding process any discriminatory belief or bias;

(f)   the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(g)  the potential prejudice to the complainant’s personal dignity and right of privacy;

(h)  the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(i)   any other factor that the judge, provincial court judge or justice considers relevant.

Procedural Requirements That Must be Met by an Accused Making an Application for an Admissibility Hearing

An application for an admissibility hearing must be made to the trial judge. Section 278.93(1) states:

Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2). 

When an issue arises with respect to admissibility under section 278.92, the trial judge shall consider the application with the jury and the public excluded (s. 278.93(3)).

With respect to the form and content of the application, and the identity of parties who must be served with the application, section 278.93(2) states:

An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

With respect to the timeline for service of the application, section 278.93(4) states:

If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).

Procedural Requirements for the Admissibility Hearing

The jury and the public must be excluded from the admissibility hearing (s. 278.94(1)).

With respect to the role of the complainant at an admissibility hearing, section 278.94(2) states

The complainant is not a compellable witness at the hearing but may appear and make submissions.

There is an obligation on the trial judge to inform complainants of their right to counsel. Section 278.94(3) states:

The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

Procedural Requirements at the Conclusion of the Admissibility Hearing

There is an obligation on the trial judge to provide reasons as to what, if any, of the proffered evidence is admissible at trial. Section 278.94(4) states:

At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 276.92(2) and shall provide reasons for that determination, and

(a)  if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and

(c)  if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

The trial judge’s reasons become part of the record of the proceedings (s. 278.94(5)).

Publication Ban

The Code sets out restrictions on the publication of information in relation to an admissibility hearing. Section 278.95 (1) states:

A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a)  the contents of an application made under subsection 278.93;

(b)  any evidence taken, the information given and the representations made at any application under section 278.93 or at a hearing under section 278.94;

(c)  the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d)  the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right to privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

It is a criminal offence, punishable on summary conviction, to violate the publication prohibitions in relation to an admissibility hearing (s. 278.95(2)).

Other considerations:

  • Section 278.92 compels counsel to provide case-specific evidence demonstrating why the use of a private record at trial is necessary to make full answer and defence.

  • R. v. Brown, [2019] O.J. No. 970 (C.J.) - Justice MacLeod permitted the accused to use notes made by a social worker and a physician for purpose of cross-examination at trial.

 

 

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Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Four): The Absence of an Apparent Reason to Lie Is a Neutral Factor When Assessing the Credibility of a Complainant

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Four): The Absence of an Apparent Reason to Lie Is a Neutral Factor When Assessing the Credibility of a Complainant

             …absence of evidence is not evidence of absence.

Carl Sagan, The Demon-Haunted World, First Edition, Random House, New York, 1995, at p. 213

The absence of an apparent motive to fabricate an allegation against an accused is a neutral factor when assessing the credibility of a complainant. As Trotter, J. states, speaking for a unanimous Court of Appeal R. v. Bartholomew, [2019] O.J. No. 2371, beginning at para 22:

…it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known…

… there is a "significant difference" between absence of proved motive and proved absence of motive… (citations omitted)

As Trotter, J. confirms at para. 25:

 …an absence of evidence of a proved motive…..was not capable of enhancing the complainant's credibility, as the trial judge did. At best, it was a neutral factor.

Other considerations:

There is no onus on the defence to establish a motive for the complainant to fabricate an allegation, but where such evidence exists, it may detract from the complainant’s credibility. As Trotter, J., states in Bartholomew, supra, at para. 21:

An ulterior motive, or a motive to fabricate, on the part of a complainant may be … important. From the defence perspective, proof of such a motive provides a compelling alternative to the truth of the allegations. 

 

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Draw Inspiration From the Work But Don’t Idolize the Individual

Draw Inspiration From the Work But Don’t Idolize the Individual

There is a natural tendency to want to connect with someone whose work we admire when the opportunity arises.

In some cases, the personal interaction may be a positive and rewarding experience. Other times, the exchange may be more challenging as we struggle to reconcile the public persona with the person behind the curtain. 

Draw inspiration from the work but don’t idolize the individual. 

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Storytelling Techniques for Advocates (Part One): Distinguishing Traits

Storytelling Techniques for Advocates (Part One): Distinguishing Traits

…When you have a lot of characters wondering around, you need to help your reader. …One of the ways I have always liked to do that is (through a technique) I call ‘funny hats’. …You give your character something that makes that character different from every other character in the book. …

Neil Gaiman Teaches the Art of Storytelling, Masterclass.com, 2019, Lecture 9, Dialogue and Character

When an alleged incident involves multiple parties, the judge or the jury has to keep track of the role of each individual. It is important to remember that the judge or the jury is hearing the account for the first time and does not know the case as well as counsel. Confusion results if it is not clear who a witness is talking about.

As the narrative unfolds, counsel may want to highlight a particular identifying trait that serves to make each party memorable during witness examinations. Just as authors use techniques to help readers remember different characters in a work of fiction, counsel may want to emphasize unique verbal or physical quirks to ensure that the actions of another party are not misattributed to their client.

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Advocacy (Part Ten): Always a Student

Advocacy (Part Ten): Always a Student

You are always a student, never a master. You have to keep moving forward. 

                                                                               Conrad L. Hall, Cinematographer, American Beauty

An advocate is always a student of the law. The law changes and evolves over time. We must be sensitive to what the law has been in the past, what the law is now and what the law should be in a fair and just society.

Our lifelong study, however, is not limited to a review of case law and legislation. Many of us leave law school naïve to the complexities of human behaviour. We discover in the early years of practice that we must also be students of the human condition and resist the appeal of simplistic narratives when dealing with complicated issues.

We are also continuing students of what it means to be a professional. The practice of law, like baseball, is replete with both written and unwritten rules that govern our conduct. We rely upon the feedback of mentors, friends and adversaries to recognize our blind spots. 

It is important to allow for reflection and self-assessment in our practices. Each time we revisit a particular issue we do so with greater understanding and sophistication. We modify and fine-tune our approaches over the years.

An advocate is an eternal student.

 (An earlier version of this post was originally published on August 15, 2016, under the heading ‘Criminal Practice Skills’.)

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Advocacy (Part Nine): Taking Ownership

Advocacy (Part Nine): Taking Ownership

When advocates make a mistake, they do not blame someone else. They accept responsibility for their actions and develop procedures to ensure that the error does not happen again.

Advocates strive to overcome their shortcomings rather than make excuses. They recognize that sanding their rough edges is a lifelong venture that rests squarely on their shoulders. 

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Advocacy (Part Eight): Showing Up

Advocacy (Part Eight): Showing Up

Advocates show up every day, whether they feel like it or not. 

Advocates recognize that some days will be better than others. They develop systems to offset the whims of motivation. They wrestle with their own mind on a daily basis – pushing through self-sabotaging thoughts that jeopardize their best efforts.

Regardless of what life throws at them, they stick to the schedule and consistently do the work.

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Advocacy (Part Seven): Preparation

Advocacy (Part Seven): Preparation

Advocacy demands diligent preparation, the extent of which may only be appreciated by practitioners and their families. 

 Every hour of trial time involves countless hours of pre-trial preparation, including:

·     Reviewing the disclosure materials;

·     Interviewing the accused;

·     Conducting any necessary defence investigation, including interviewing potential witnesses and visiting the scene;

·     Performing necessary legal research; 

·     Preparing trial binders;

·     Annotating transcripts for ease of reference during cross-examination; 

·     Memorizing all pre-trial statements to allow counsel to recognize when a witness is providing a different account on the stand relative to what was said before trial;

·     Drafting witness examinations and experimenting with sequencing of different topics;

·     Preparing the accused and other witnesses to testify; 

·     Preparing exhibits; and 

·     Drafting submissions. 

What may appear effortless to the casual observer belies the hard work that goes on behind the scenes. 

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Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Three): Repetition Does Not Enhance Honesty or Accuracy

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Three): Repetition Does Not Enhance Honesty or Accuracy

When assessing the testimony of a witness, the mere fact that the witness has said the same thing before trial does not indicate that it is an honest or accurate account - consistency, without more, is a neutral factor. As stated by a unanimous Court of Appeal R. v. Nault, [2019] A.J. No. 112, beginning at para 19:

Prior consistent statements are viewed with caution because there is a danger in associating repetition with reliability. The fact that a witness has said something more than once does not make it more likely to be honest or accurate… Therefore, as explained by David M. Paciocco, …the common law has developed:

... two important rules that apply even where prior consistent statements are admissible pursuant to exceptions. The first is the "prohibited inference." Even where a prior consistent statement is admitted, "it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth." The second is the "rule against corroboration." Even where a prior consistent statement is admitted, it is an error to treat the prior consistent statement as corroborating the in-court testimony. [citations omitted]

These rules and their rationales are sound and should continue to be respected. Any witness can lie twice or be mistaken twice. The mere repetition of a statement by the same witness does nothing to enhance its reliability. Even where an out-of-court statement is in evidence for the truth of contents, the trier of fact may not engage in either form of prohibited reasoning. He may not reason, without more, that because the witness has made the statement on a previous occasion, she is more likely to be telling the truth. He may not reason, without more, that a witness' out-of-court statement corroborates her own testimony. (emphasis added)

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On Interruptions

On Interruptions

My friend Bushnell Keeler…said an artist needs at least four hours of…uninterrupted time, to get one good hour of painting done. …Every interruption is like a knife stab in the middle of thought and getting into it. You have to start again. …It’s horrible. These days there are interruptions around every corner. Almost every second. 

David Lynch, David Lynch Teaches Creativity and Film, Masterclass.com, 2019, Lecture 4, Creativity and the Writing Process

Interruptions are the plague of modern professional life.

You do not have to be subject to the unrelenting intrusion of electronic devices – doomed to spend your waking hours being buzzed and prodded at the whim of others. 

If you want to produce anything of substance, you have to focus. This means creating a protective environment that insulates you from distractions – a space that allows you to collect your thoughts and to come up with creative solutions for difficult problems.

Close your door. Put away your cell phone. Turn off your e-mail.

Inform your office and your clients when you do not want to be disturbed.

                                                                     

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Advocacy (Part Six): Organization

Advocacy (Part Six): Organization

In the fray of trial, disorganization yields anxiety and frustration. Disorganization also fuels negative perceptions with respect to your competency. 

Every exhibit should be properly accounted for on a running exhibit log.

Every document has a proper place in a trial binder. Counsel should be able to locate effortlessly any necessary material.

Checklists are also useful for ensuring that counsel do not overlook important questions or arguments.

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