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| Patrick J Ducharme |
Substantive Criminal Law
The Federal government enacts criminal law in Canada. The Code contains many of the offences in Canada, ranging from traditional crimes such as murder, assault and robbery to newer crimes such as Internet luring.
Continue reading “Substantive Criminal Law”
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| Patrick Ducharme |
When the Rules of Evidence and Procedure May Be Relaxed – In Aid of A Beleaguered Accused
The Supreme Court of Canada in Spence1 established that technical, procedural requirements would be trumped, if required, in order to ensure fairness and the appearance of fairness from the perspective of the accused, which the court determined to be the primary factor. Additionally, in Lyttle2 the Supreme Court of Canada stated that just as the right of cross-examination itself is not absolute, so too are its limitations. Trial Judges enjoy, in this as in other aspects of the conduct of the trial, a broad discretion to ensure fairness and to see that Justice is done and “seen to be done”. This discretion to relax the rules of procedure has extended to relaxing the rule of relevancy, and, relaxing in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice or where the danger against which the exclusionary rule aims to safeguard does not exist.3
Continue reading “When the Rules of Evidence and Procedure May Be Relaxed – In Aid of A Beleaguered Accused”
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| Patrick Ducharme |
The Rules of the Game
Subsection 482(1) of the Code authorizes every Superior Court to make rules consistent with a Federal statute. Subsection 482(2) provides a similar power to Provincial courts, subject to the approval of the Lt. Governor-in-Council of the Province. Sections 169 and 170 of the Courts of Justice Act create the Criminal Rules Committee and a procedure for enacting rules related to criminal proceedings. These are the rules permitted by section 482 of the Code. The Rules of the Ontario Court of Justice in Criminal Proceedings apply to all trials in the Ontario Court of Justice.
Continue reading “The Rules of the Game”
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| Patrick J Ducharme |
The Court of Appeal for Ontario has held that trial Judges have the power to manage a criminal trial.1 Two years later the Supreme Court of Canada wrote, “for our Justice system to operate, trial Judges must have some ability to control the course of proceedings before them.”2 These comments may be part of an ever-increasing sense of frustration, if not despair, festering within the psyche of trial Judges throughout this country.
Continue reading “A View from the Bench”
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| Patrick Ducharme |
The co-conspirators’ exception to the hearsay rule is, from a defence lawyer’s perspective, the legal version of an improvised explosive device. It is like a cluster of improvised explosive devices: extremely diverse, difficult to defend against and intended to inflict a great deal of pain in the form of significant volumes of otherwise inadmissible evidence heaped upon the accused and awaiting his explanation. It places the accused in a difficult position. Evidence is presented that is not challenged by cross-examination, the most effective means of testing credibility and reliability. It may be false or contrived or delivered for reasons best known to the declarant or actor, but in their absence. Nevertheless, it begs a response. And, in that response, the accused is placed in the unenviable position of answering “no win” questions premised upon the alleged statements and conduct of absentee witnesses. Sometimes no answers will suffice to remove the prejudice created by the questions.
Continue reading “Conclusion on the Co-Conspirator Exception”
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| Patrick Ducharme |
In the absence of evidence raising serious concerns about the necessity or reliability of a statement or conduct, the utterances and conduct under this exception are admissible. The jury will be instructed to consider the evidence pursuant to the three-step Carter procedure. Because the co-conspirators’ rule is a recognized, valid exception to hearsay, necessity and reliability are presumed in the absence of exceptional circumstances. The question is: what amounts to exceptional circumstances?
Continue reading “The Trial Judge’s Role”
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| Patrick J Ducharme |
Before the Supreme Court of Canada’s decision in J.F.1 there were two schools of thought on the question of how a person could be found responsible as a party to the offence of conspiracy. The first school was developed by the Court of Appeal for Ontario in McNamara2 and Vucetic.3 In both cases, the appellate court embraced a more expansive view of party liability to conspiracy under section 21 of the Criminal Code that included aiding or abetting the furtherance of the conspiracy’s unlawful object, not just aiding or abetting the agreement itself.
An alternative and less expansive theory of party liability to conspiracy was embraced by the Court of Appeal for Alberta in the case of Trieu4 and the Court of Appeal for Quebec in Bérubé.5 In Bérubé, the party liability was not based upon knowing the object of the conspiracy and intending to assist the conspirators in attaining their unlawful criminal object. Instead, it was based upon the alleged acts of assistance or encouragement being performed for the purpose of aiding or assisting the act of agreeing. This narrower approach focuses on the essence of conspiracy, the agreement. Consequently, assisting or encouraging a person to become a member of an existing conspiracy may be the basis of a conviction for conspiracy. Conspiracy is thus the act of assisting the agreement. The offence also includes aiding or abetting the formation of a new agreement because that is also the act of assisting the agreement.
Continue reading “Parties to Conspiracy: It’s All About the Agreement”
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| Patrick Ducharme |
One of the pre-requisites to admissibility of evidence under this exception is that the acts or declarations are performed in furtherance of the conspiracy or agreement. Chang referred to the “in furtherance requirement” as imbuing “co-conspirators’ declarations with res gestae type qualities.” It referred to “in furtherance declarations” as “the very acts by which the conspiracy is formulated or implemented and are made in the course of the commission of the offence.”1 They are part of the res gestae in the execution of the plan of the agreement.
Continue reading ““In Furtherance” Requirement”
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| Patrick Ducharme |
The Court of Appeal for Ontario was required to consider a two-person conspiracy to traffic in cocaine in the case of Bogiatzis.1 This case highlights the unique difficulties that may occur when the court is dealing with just a two-person conspiracy. For example, if the prosecution’s case is dependent upon a series of meetings between two Crown witnesses, and, the accused was present for two of their meetings.
Continue reading “When Conspiracy Involves Only Two Persons”
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| Patrick J Ducharme |
Sir Walter Raleigh was tried for treason in 1603. The key prosecution evidence was a sworn confession by Lord Cobham, Raleigh’s alleged co-conspirator. Raleigh testified. He called Cobham’s confession a lie and insisted that Cobham had recanted his confession. He protested the admission of this hearsay. He demanded that Cobham be brought to testify. The court refused and Raleigh was convicted and later executed.
The public outcry against this unproven evidence fuelled the introduction of the hearsay rule instituted in England somewhere between 1675 and 1690.1 Ironically, a conspiracy trial inspired the hearsay rule. I say ironically because our modern day use of the co-conspirators’ exception to the hearsay rule renders the protections afforded by the hearsay rule virtually meaningless, particularly when the case is one tried before a jury.
Continue reading “A Little History”
