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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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 (USA, 1966)

Criminal Law and Film: Seconds (USA, 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 (Italy, 1948)

Criminal Law and Film: Bicycle Thieves (Italy, 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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