Language Matters (Part Three): Avoid Dehumanizing Language

Language Matters (Part Three): Avoid Dehumanizing Language

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

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

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

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

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

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

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

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

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

For greater clarity:

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

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

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

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

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

One aspect of Defence counsel’s role is to be on guard against the use of language in the justice system that undermines an accused's constitutional rights.

Our constitutional rights provide the framework for our free and democratic society. The Canadian Charter of Rights and Freedoms ensures that law enforcement officials do not exercise unlimited authority in their efforts to investigate and prosecute alleged criminal behaviour. The constitution also provides an individual with choices when interacting with state officials in the context of a criminal investigation or responding to an allegation in court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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Police Interrogations in Canada: An Introduction to Tactics and Strategies

Police Interrogations in Canada: An Introduction to Tactics and Strategies

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

Other considerations:

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

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

 

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Police Interrogations in Canada: The State is Not Permitted to Use Violence or Threats of Violence

Police Interrogations in Canada: The State is Not Permitted to Use Violence or Threats of Violence

The history of police interrogations is not without its unsavoury chapters. Physical abuse, if not routine, was certainly not unknown. Today such practices are much less common. …

Iacobucci, J., speaking for a majority of the Supreme Court of Canada in R. v. Oickle, [2000] 2 S.C.R. 3 at para. 34

Canadian society cannot tolerate -- and the courts cannot permit -- police officers to beat suspects in order to obtain confessions. Yet, sadly, that is precisely what happened in this case. …

Blair, J.A., speaking for a unanimous Ontario Court of Appal in R. v. Singh, 2013 ONCA 750 at para. 1

In Canada, the state is not permitted to use violence or threats of violence to elicit information from a suspect.

In Oickle, supra, the Supreme Court of Canada sent a clear message that a statement that is the product of “imminent threats of torture” (para. 48) or “outright violence” (para. 53) will be inadmissible against a suspect.

The use of violence during a custodial interrogation may also lead to a judicial termination of the charges against a suspect. For example, in Singh, supra, the Ontario Court of Appeal imposed a stay of proceedings in relation to charges of robbery and unlawful confinement after the police subjected the accused to repeated acts of physical violence during the course of a custodial interrogation, including striking the suspect in the back of the head and grabbing and squeezing the suspect’s throat

An officer who uses violence against a suspect during an interrogation may face criminal charges, administrative disciplinary proceedings, and a civil lawsuit for financial compensation. Pursuant to section 269.1(1) of the Criminal Code of Canada, an investigator who uses torture to obtain a statement from a suspect is liable to imprisonment for up to fourteen years.

Other considerations:

When providing emergency legal advice at the time of arrest, counsel should not overlook a client may have previously resided in country where torture is a state-sanctioned tool of persuasion. As a standard practice counsel should assuage any client concerns that they will be hurt or threatened by the police if they choose to exercise their right to remain silent.

 

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Police Interrogations in Canada: The State is Not Permitted to Undermine the Accused's Confidence in Defence Counsel

Police Interrogations in Canada: The State is Not Permitted to Undermine the Accused's Confidence in Defence Counsel

In R. v. Burlingham, [1995] S.C.J. No. 39 the Supreme Court of Canada held that the right to counsel under s. 10(b) of the Charter places constitutional limits on police interrogations by prohibiting conduct that undermines a suspect's confidence in the solicitor-client relationship. As stated by Iacobucci, J., speaking for a majority of the Court, at para. 4:

The police … constantly denigrated the integrity of defence counsel; the interrogation record attests to repeated disparaging comments made about defence counsel's loyalty, commitment, availability, as well as the amount of his legal fees. The interrogation officers suggested they were more trustworthy than the appellant's lawyer…

At para. 14, Iacobucci, J., goes on to say:

…s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel. It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship.

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The Role of the Trial Judge in the Canadian Criminal Justice System

The Role of the Trial Judge in the Canadian Criminal Justice System

A good starting point for anyone seeking to gain an appreciation of the role of the trial judge in the Canadian criminal justice system is the following passage from the Honourable Justice Jamie W.S. Saunders of the Nova Scotia Court of Appeal in R. v. Al-Rawi, [2018] N.S.J. No. 18, beginning at para. 126:

…a judge's work is conducted in public view, as required by our open courts principle, where virtually every word is transcribed, and becomes part of the public record. As well, judges swear an oath to decide the matters that come before them independently and impartially, without fear or favour, and thereby render justice according to law.

A judge's duties always involve the resolute application of a host of fundamental principles that include the Rule of Law, the presumption of innocence, the Crown's never-shifting burden to prove all essential elements of the offence beyond a reasonable doubt, and the obligation to provide reasons to explain the verdict. It is well accepted that a judge "speaks" only through his or her decision, and is prohibited from later offering further commentary to clarify or add to those reasons.

Sitting on appeal, we require trial judges to make strong findings of fact, decide matters of credibility, apply the law to the evidence correctly, and express themselves in plain, unambiguous language. That is the law, which is there to protect the rights of any citizen whose actions form the basis of a criminal prosecution. And those are obligations that apply to every kind of case, so that when matters are appealed, the record from the court below will provide a proper basis for meaningful appeal.

If it is shown that the trial judge erred, to the extent where appellate intervention is warranted, the appeal will be allowed, the judgement set aside, and a suitable remedy granted. Those are the "checks and balances" our system of justice provides. …

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Criminal Law and Film: Pan’s Labyrinth (El Laberinto del Fauno) (2006)

Criminal Law and Film: Pan’s Labyrinth (El Laberinto del Fauno) (2006)

“And, like most of us, she left behind small traces of her time on earth. Visible only to those who know where to look…”

Narrator, Pan’s Labyrinth (El Laberinto del Fauno), Screenplay by Guillermo del Toro, at page 97

The year is 1944. Franco’s fascist regime controls Spain. Ofelia, a bright and imaginative eleven-year-old with a fondness for fairy tales, is forced to move to the countryside to live with her sadistic step-father, an army captain bent on eliminating a local band of resistance fighters hiding out in the mountains. Ofelia’s discovery of a stone labyrinth in the woods leads to an encounter with an enigmatic and vaguely menacing faun. The faun is a scout from another world that exists parallel to our own – a world in which Ofelia may play a very important role.

Guillermo Del Toro’s film is a unique blend of realism, horror, and fantasy. It is a layered narrative that weaves together two different realms, presented against a backdrop of dream-like imagery and sound that echo throughout the film.

Del Toro does not sanitize the brutal violence of his chosen environment - the tools of state terror include summary executions and torture. His depiction of life in the fascist regime is a disturbing reminder of the despair that accompanies a society where monsters are not relegated to nightmares, and authoritarian cruelty is allowed to flourish in the light of day.

The bleakness of the setting, however, also reminds us of the importance, and power, of hope. Ofelia is a candle in the night. She demonstrates that we are responsible our own choices during dark and uncertain times – and that disobedience may offer a path to redemption.

Highly recommended.

Useful resources:

The definitive release of this film is the 2016 blu-ray edition published by the Criterion Collection (spine number 838).

 

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Criminal Law and Literature: The Man in the High Castle (1962)

Criminal Law and Literature: The Man in the High Castle (1962)

Evidently we go on, as we always have. From day to day. At this moment we work against Operation Dandelion. Later on, at another moment, we work to defeat the police. But we cannot do it all at once; it is a sequence. An unfolding process. We can only control the end by making a choice at each step.

Philip K. Dick, The Man in the High Castle, Mariner Books, New York, 1962, at page 260

Fifteen years after the capitulation of the Allied forces at the end of the Second World War, a moral and ethical darkness pervades the world. The United States is occupied by Nazi Germany on the East Coast and Imperial Japan in the West. Group characteristics, rather than individual character, define your lot in life; slavery is legal and some groups remain targets for extermination.

In the middle of this grim American landscape lies a narrow buffer zone - the unoccupied Rocky Mountain states. It is here that a mysterious author, the man in the high castle, has penned a science fiction story of an alternate present where the Allies won the War. The banned book and the world it depicts have captured the imagination of the public. The novel is such a source of irritation to the Reich that, even on the eve of plotting the nuclear destruction of their former Pacific ally, plans are afoot to assassinate its enigmatic writer.

Philip K. Dick’s novel serves as a thought experiment – an extrapolation of last century’s most disturbing ideologies. It is a reminder of how bleak day-to-day life can be in a world lacking any meaningful controls on state authority.

The novel also depicts the intellectual and artistic poverty of a society where freedom of expression is curtailed. The censorship of books has been accompanied by the decimation of other forms of entertainment - one of the last surviving great comedians is forced to broadcast from Canada. Dick reminds us that an inability to laugh is a symptom of a society in serious trouble.

Dick also explores our motivations for collecting objects and examines how we imbue inanimate items with special meaning through our thoughts. Furthermore, he contemplates the characteristics that define an object as authentic or genuine and suggests that sometimes a replica may be even better than the real thing.

A worthwhile read.

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A Lawyer’s Oath or Affirmation on Admission to the Bar

A Lawyer’s Oath or Affirmation on Admission to the Bar

When individuals join the legal profession in Canada, they are required to make a solemn personal commitment to shared ideals that provide a North Star for navigating the challenges that lay ahead in the practice of law.

In Nova Scotia, a lawyer being called to the Bar must swear or affirm the following Oath or Affirmation on Admission:

I ... swear/affirm that as a lawyer, I shall, to the best of my knowledge and ability, conduct all matters and proceedings faithfully, honestly and with integrity.

I shall support the Rule of Law and uphold and seek to improve the administration of justice.

I shall abide by the ethical standards and rules governing the practice of law in Nova Scotia.

Section 3.9.5 of the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28

Other considerations:

The Oath or Affirmation on Admission must be spoken in either English or French in Nova Scotia (s. 3.9.6 of the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28).

A lawyer being called to the Bar in Nova Scotia may also swear or affirm the Canadian Oath or Affirmation of Allegiance in addition to the Oath or Affirmation on Admission:

I ... swear/affirm that as a lawyer, I shall, bear true allegiance to Her Majesty, Queen Elizabeth the Second, her heirs and successors according to law.

Section 3.9.7 of the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28

 

 

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Witness Preparation (Part One): Explaining the Rules of Evidence

Witness Preparation (Part One): Explaining the Rules of Evidence

Counsel have a duty to educate witnesses about any rules of evidence that may impact their anticipated testimony. As stated by Watt, J.A., speaking for a unanimous Ontario Court of Appeal in R. v. J.A.T., [2012] O.J. No. 1208 at para. 92:

It is elementary that a party who calls a witness should ensure, to the extent possible, that the witness gives evidence that is relevant, material and admissible in the proceedings. …

It is important to remember that most civilian witnesses lack familiarity with the law of evidence and may require direction to remain focused on pertinent issues and to refrain from recounting information that violates exclusionary rules.

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Criminal Practice Tips: Criminal Court Etiquette in Canada

Criminal Practice Tips: Criminal Court Etiquette in Canada

Mastery of courtroom etiquette is a critical component of effective advocacy.

For those of us with a healthy streak of irreverence, observing proper court etiquette is not about being obsequious or servile – nor does it exist for the pleasure of judges to chastise or embarrass counsel who violate protocol mistakenly.  Rather, proper court decorum promotes the solemnity of the proceeding and facilitates the just and orderly resolution of cases in often highly contentious and emotional matters. Courtroom etiquette reflects a joint commitment by all parties to show respect for the process.

Repeated missteps may be interpreted as a sign of disrespect and may generate ill will - it is unhelpful to alienate other counsel or the judge you are trying to persuade to make a decision on your client’s behalf.

The following tips may be helpful to junior counsel in their efforts to learn the “dos” and “don’ts” of criminal court:

1) Be on time;

2) Dress appropriately;

3) Refrain from placing your bag on counsel table;

4) Refrain from using counsel table as a chair;

5) Refrain from using the bar as a coat stand;

6) Respect the seniority of other lawyers at counsel table when seating is limited;

7) Respect the seniority of other lawyers with respect to the order in which matters on the docket are called. If you have a pressing engagement and your matter is brief, please ask more senior counsel for permission to have your matter called first;

8) Rise when the judge is entering or exiting the courtroom;

9) While the judge is sitting, bow to the judge when you cross the bar or enter or leave the courtroom;

10) Refrain from turning your back to the judge;

11) Use the proper form of address for the judge, depending on the level of court;

12) Use the proper form of address for other counsel - for example, ‘my friend’ or ‘my learned friend’ if the lawyer has a Queen’s Counsel designation;

13) Stand when addressing the judge;

14) Recognize that only one counsel is permitted to stand to address the judge at a given time. Counsel should never be talking over one another. For example, if opposing counsel stands to make an objection during your examination of a witness you must sit down; and

15) Refrain from engaging in any behaviour that may distract the judge, such as talking loudly with other counsel while waiting for your matter to be called.

Other considerations:

When in doubt as to local courtroom etiquette, it is helpful to make advance inquiries of other counsel or court staff. 

It is also critical to appreciate the role of the criminal court clerk: http://merrimenlaw.ca/blog/2017/3/26/criminal-practice-tips-appreciating-the-role-of-the-criminal-court-clerk

 

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Criminal Law and Film: Chinatown (1974)

Criminal Law and Film: Chinatown (1974)

You may think you know what you’re dealing with – but believe me, you don’t.

Noah Cross to Jake Gittes, Chinatown (1974), Screenplay by Robert Towne, at page 79

Jake Gittes is a world-weary private investigator in drought-stricken, Great Depression-era Los Angeles. A former police officer, he has done well for himself by specializing in sexual indiscretions.

Gittes is a vain and proud man. He doesn’t take kindly to being duped by a deceitful client who hires him under false pretenses to obtain compromising photographs of the city’s chief water resource engineer. When the engineer later turns up dead, Gittes’ desire to get to the bottom of the matter puts him on a collision course with a corrupt and powerful elite orchestrating the future development of the city through manipulation of the water supply. Gittes comes to realize far too late that he is in over his head and that the truth is more disturbing than he imagined. 

Chinatown has a complex narrative structure and depth of character that rewards repeated viewings.

The film is shot almost entirely from Gittes’ point of view. Played by Jack Nicholson in his charismatic prime, Gittes is a fun character for us to shadow – his witty irreverance towards all types of authority betrays a likeable moral code. 

Faye Dunaway is compelling as the faux femme fatale Evelyn Mulray, and John Huston is pitch perfect as the menacing and lecherous Noah Cross. Cross provides Gittes with an unsettling glimpse into humanity’s capacity for malevolence when he advises, “most people never have to face the fact that at the right time and the right place they are capable of anything”.

Chinatown also serves as a reminder that individuals under investigation sometimes lie or mislead the police for reasons unrelated to their culpability. An individual’s deepest secrets are not revealed easily.  

Highly recommended.

 

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Criminal Law and Literature: Nineteen Eighty-Four (1949)

Criminal Law and Literature: Nineteen Eighty-Four (1949)

To the future or to the past, to a time when thought is free, when men are different from one another and do not live alone – to a time when truth exists and what is done cannot be undone: From the age of uniformity, from the age of solitude, from the age of Big Brother, from the age of doublethink – greetings!

George Orwell, Nineteen Eighty-Four, Everyman’s Library, New York, 1992, at page 30

In the aftermath of a devastating atomic war, a ruthless totalitarian government rules over the city formerly known as London. “The Party” demands loyalty in both action and thought. There is no privacy – citizens are subject to constant surveillance by the thought police. There is no freedom of expression - citizens are compelled to express opinions consistent with the Party’s ever-changing political orthodoxy. Reality is what the Party says it is at any moment in time - the lessons of science are suppressed and the historical record is altered constantly to conform to the government’s present narrative.

Winston Smith is a troubled member of the Party. He is an individual in a society that does not tolerate eccentricity. His initial treasonous act of keeping a diary to articulate his unsettling thoughts is compounded by an unlawful romantic relationship with another Party member. As Winston seeks out other like-minded individuals, he underestimates how far the Party will go in its efforts to control the behaviour and the thoughts of its citizens.

Orwell’s harrowing novel is brimming with meditations about what it means to live in a free and democratic society. His novel also serves as a warning that the battle for our rights and freedoms never stays won.

His perceptive insights into the machinations of power in the modern age and his clear and accessible writing style ensure the novel's continued relevance.

His novel should be required reading for all criminal lawyers tasked with reinforcing the basic principles of liberal democracy every day in courthouses across the country. 

 

 

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Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Two): Exaggeration, Embellishment, and Hyperbole

Assessing Reliability and Credibility at a Criminal Trial in Canada (Part Two): Exaggeration, Embellishment, and Hyperbole

A judge will be alert to whether witnesses exaggerate or embellish their evidence when deciding whether to rely upon their testimony in a criminal proceeding.

Witnesses must be wary of overstating their evidence. Their testimony should be devoid of the dramatic embellishments that we often use when recounting events informally to our friends and family.

Witnesses who entangle otherwise truthful narratives with exaggeration and embellishment run the risk of having the judge reject their account entirely. For example, if opposing counsel can demonstrate that part of what a witness has said has been embellished, this may compromise a judge's assessment of the accuracy or reliability of the remainder of the witness’s testimony.

A judge may also have serious concerns with respect to the sincerity or truthfulness of witnesses who grossly exaggerate their accounts of past events.

Other considerations:

Judges are alert to instances where a witness may have an ulterior motive to embellish a claim (for example, a police officer exaggerating an accused’s level of aggression to justify the use of force (R. v. Young, [2014] O.J. No. 1290 (C.J.), or a police officer exaggerating legitimate safety concerns to justify an unauthorized search (R. v. Ko, [2011] B.C.J. No. 1576 (S.C.J.)). 

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