Presentation Matters (Part Four): Mastery of Language

Presentation Matters (Part Four): Mastery of Language

Mastery of language affords remarkable power.

Frantz Fanon, psychiatrist.

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

George Orwell, novelist

Mastery of language is a fundamental skill for an advocate.

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

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

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

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

Other considerations:

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

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

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Conditional Discharges for Unlawful Parental Discipline

Conditional Discharges for Unlawful Parental Discipline

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

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

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

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

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

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

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

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

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

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

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

 

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Presentation Matters (Part Three): Undivided Attention

Presentation Matters (Part Three): Undivided Attention

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

Nhat Hanh, Buddhist monk and peace activist

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

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

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

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

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

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

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

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Presentation Matters (Part Two): Attire

Presentation Matters (Part Two): Attire

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

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

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

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

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

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Maximum punishments

Maximum punishments

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

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

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

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

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

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

Other considerations:

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

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

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

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

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

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

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

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

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

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

 Justice Beveridge continues at para. 30:

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

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Criminal Practice Tips: Properly Navigating the Courtroom

Criminal Practice Tips: Properly Navigating the Courtroom

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

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

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

 Other considerations: 

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

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

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Criminal Trial Exhibits (Part Two): Introducing an Exhibit

Criminal Trial Exhibits (Part Two): Introducing an Exhibit

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

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

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

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

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

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

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

Other considerations:

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

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

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

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Criminal Trial Exhibits (Part One): Strategic Considerations

Criminal Trial Exhibits (Part One): Strategic Considerations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other considerations:

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

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Presentation Matters (Part One): Disorganization Undermines Confidence

Presentation Matters (Part One): Disorganization Undermines Confidence

A client’s confidence in their solicitor may be undermined by counsel’s disorganization. Counsel must always be aware of the image that they project to clients.

One facet of that image is the appearance of counsel’s office. A cluttered environment or a state of disarray does not inspire confidence in prospective clients seeking assurances that their matters will be handled efficiently and effectively.

Another aspect of counsel’s image is their organization of documents at trial. When an accused’s liberty is at stake in a proceeding, counsel does not want to be observed fumbling around for a document as the client looks on anxiously.

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Leave No Stone Unturned – How to Obtain Peace of Mind as Defence Counsel

Leave No Stone Unturned – How to Obtain Peace of Mind as Defence Counsel

Upon conclusion of a case, defence counsel’s peace of mind rests upon having left no stone unturned in the role of advocate.

More specifically, counsel can sleep well knowing that they have:

-      Advised the client of his or her rights and obligations, and provided practical advice with respect to the choices that were available;

-      Considered all defence investigation tools, including third-party record applications, interviews of potential witnesses, and an examination of the scene;

-      Contemplated any applications to challenge the admissibility of the Crown’s evidence;

-      Examined all viable pathways to an acquittal;

-      Reviewed all options for resolution outside of the traditional court process;

-      Assessed all sentencing options, including constitutional challenges to Parliament’s existing sentencing regime; and

-      Provided collateral referrals for issues beyond the scope of your expertise.

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Language Matters (Part Four): Hope Springs Eternal and the Problem with Labels

Language Matters (Part Four): Hope Springs Eternal and the Problem with Labels

A sentencing hearing may be a crossroads for a first-time offender.

The language that is used by all parties may weigh heavily on an offender’s mind after the hearing is complete. Counsel must be cautious to avoid ‘off the cuff’ labels and to stay away from stigmatizing language. 

By way of example, the description of a young person as “not an academic” may confirm the offender’s insecurities regarding his intellectual capacity. However, a poor academic performance may be due to a lack of support and opportunities rather than a reflection of his abilities.

All parties play an important role in communicating to first-time offenders that they have the potential to do better. While the specific misconduct must be denounced, hope should spring eternal in the language that is used to characterize the accused.

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Criminal Law and Literature: The Remains of the Day (United Kingdom, 1988)

Criminal Law and Literature: The Remains of the Day (United Kingdom, 1988)

…the Miss Kenton I saw before me looked surprisingly similar to the person who had inhabited my memory over these years. That is to say, it was, on the whole, extremely pleasing to see her again.

            Kazuo Ishiguro, The Remains of the Day, page 281, Vintage Canada Edition, 2014

The year is 1956. After over thirty-five years of service, Mr. Stevens’s tenure as head butler of the once great Darlington Hall is reaching an endpoint. An unexpected letter from Miss Kenton, former head housekeeper over twenty years earlier, compels Stevens to take advantage of his new American employer’s offer to borrow the Ford and take a few days off to tour the countryside. As Stevens drives across England to reunite with Miss Kenton, he takes measure of the choices he has made in his life and comes to appreciate the impact of his all-consuming professional commitment to his disgraced former employer.

Kazuo Ishiguro’s novel, written as a first-person narrative, provides deep psychological insight as Stevens's mind is laid bare for the reader. Stevens’s self-deceptions and rationalizations serve as a reminder to the criminal practitioner that we are often oblivious to our own motivations and desires. He also demonstrates our tendency to weave false narratives to justify our actions – narratives that are often transparent to others.

At its core, it is a story about vulnerability – Stevens is a case study in emotional repression and the psychological armour that individuals adopt when interacting with the world. Ishiguro subtly conveys that we all have a bit of Stevens in us - that we are all hiding or closing off parts of ourselves – and that our lives are poorer for it. A life dominated by the fear of putting yourself out there is destined to be a tragedy when the bill comes due.

Other themes include confronting the inevitable physical and cognitive decline of professionals who can no longer fulfill their roles, and our tendency to “conveniently forget the true climate” of the past when we judge the conduct of historical figures by today’s standards (p. 167). 

The novel also examines the ease with which families pass along their dysfunction, and how these maladaptive patterns of behaviour risk inhibiting the growth of future generations. 

The Remains of the Day receives my highest recommendation. I will revisit it regularly in the years ahead and share it widely with others.

Other considerations:

-      The Remains of the Day was awarded the Man Booker Prize for Fiction in 1989.

-      “So many areas of our life, if it’s not moving forward, I think we have to confess to ourselves, that it’s because at some level we’re hiding.” — Seth Godin, American author

-      “In the end, we are our choices. Build yourself a great story.” – Jeff Bezos, CEO of Amazon

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Criminal Practice Debriefing: What is Right (and Wrong) With How We Do Things Today?

Criminal Practice Debriefing: What is Right (and Wrong) With How We Do Things Today?

Yesterday's dangerous idea is today's orthodoxy and tomorrow's cliche.

Richard Dawkins, Afterword What is Your Dangerous Idea?, edited by John Brockman, (2007), First Harper Perennial Edition, 2007, page 296

It is critical to set aside time to step back from the immersion of practice in order to gain perspective. Regular debriefing of the practice of criminal law as a whole is just as important as debriefing an individual case prior to closing a file.

As a new group of students begin their studies at law schools across the country in the days ahead, counsel may want to ponder the following issues:

What is right, and wrong, with how we do things today? 

What are the current challenges, and opportunities, for criminal practitioners?

What approaches or conceptual frameworks need to be revisited?

What novel ideas may become standard practices in the years ahead?

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Criminal Law and Film: The Breaking Point (USA, 1950)

Criminal Law and Film: The Breaking Point (USA, 1950)

You know how it is, early in the morning on the water? Everything is quiet, except for the seagulls, a long way off. 

And you feel great.

And then you come ashore and it starts.

And in no time at all you’re up to your ears in trouble.

And you don’t know where it began.

                        Harry Morgan, The Breaking Point (1950)

Captain Harry Morgan is a loyal family man under pressure. His dream of operating a fleet of charter boats following his retirement from a decorated career in the navy has not panned out – his business is failing and the wolves are at the door. After being stiffed by a client who hired his vessel for a vacation to Mexico, he and his first mate find themselves stranded in a foreign port without sufficient funds to make their way back home. Preying upon Harry’s desperation, a predatory lawyer makes a lucrative proposal involving the illegal transport of human cargo. As Harry turns the offer over in his mind, he stands at the entrance of a pathway leading into the abyss. 

Michel Curtiz, best known for directing Casablanca, crafts a terse noir film about an honourable man’s existential crisis when he can’t make ends meet to support his family. He is besieged by an array of shady characters who take delight in their efforts to compromise his integrity.

The film serves as a reminder that otherwise law-abiding citizens can find themselves on the wrong side of the law when the security of their family is threatened.

The film also examines our inherent capacity for violence and the psychological consequences that ensue when it is unleashed. Harry is underestimated by his newfound nefarious associates - he doesn’t like violence, but he has been hardened during the brutal Pacific War. When his life is threatened, the lion within him emerges, and he struggles both physically and psychologically in the aftermath.

Other considerations:

·     The Breaking Point is an adaptation of Ernest Hemingway’s To Have and Have Not. As stated by Julie Garfield, relaying Hemmingway’s comments to Patricia Neal, “Hemmingway felt that it was the only good film ever made of anything he ever wrote in his life.”…( Julie Garfield on John Garfield” (2017), Criterion Collection).

·     The definitive consumer release of this film in North America is the 2017 Blu-ray edition released by the Criterion Collection (spine #889).

 

 

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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 (USA, 2013)

Criminal Law and Literature: The Ocean at the End of the Lane (USA, 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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