Offences are classified by statute either as indictable or summary conviction, or offences that may be prosecuted either by indictment or summary conviction at the election of the prosecutor. Our laws also include offences that are classified as strict liability offences or absolute liability offences. Most provincial offences are classified as strict or absolute liability offences.
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Summary of Procedural Points
If the accused, other than an organization, is charged with an indictable offence, the accused must appear personally in accordance with section 650. This section provides the court with the power to permit the accused to be absent from the proceedings during various times. Except for a specific order, however, the accused is expected to be present. Provision is also made in subsection (1.1) for appearance by counsel or via closed circuit television or similar means. An accused may appoint counsel to represent the accused for any proceedings under the Code by filing a designation with the court. Provided a designation is filed the accused may appear by the designated counsel without being present for any part of the proceedings, other than:
a. a part during which oral evidence of a witness is taken,
b. a part during which jurors are being selected, and
c. an application for a writ of habeas corpus.
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A View from the Bench
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.
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Jurisdiction of Judges
Our judges exercise province-wide jurisdiction. It is quite common for a Judge who normally presides in Essex County to travel to another county such as Chatham-Kent to conduct a trial there. In other words, our judges are mobile. In recent years, these county jurisdictions have been categorized by region. Several county jurisdictions make up a region. A senior administrative Judge, appointed for that purpose, in a particular region, assigns the judges in that region to hear cases within the region.
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The Trial Judge’s Role
Generally, in the absence of evidence raising serious concerns about the necessity or reliability of a statement or conduct, the utterances and conduct claimed to be admissible under this exception are admissible before the jury to be decided pursuant to the 3-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?
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The Agreement
Prior to the Supreme Court of Canada’s decision in J.F.1 there were two schools of thought by which 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, Vucetic3 where the court embraced a more expansive view of party liability to conspiracy under section 21 of the Code that included aiding or abetting the furtherance of the conspiracy’s unlawful object not just aiding or abetting the agreement itself.
The “In Furtherance” Requirement
One of the prerequisites 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.
When Conspiracy Involves Only Two Persons
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 occur when the court is dealing with just a two-person conspiracy. The prosecution’s case was dependent upon a series of meetings between two Crown witnesses. The accused was present for two of these meetings.
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The Co-Conspirators’ Exception to the Hearsay Rule
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 a roadside bomb: extremely diverse, difficult to defend against and intended to heap significant volumes of otherwise inadmissible evidence upon the accused awaiting his explanation. It places the accused on the defensive. Evidence is presented that is not challenged or scrutinized 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 the question, “When did you stop beating your wife?” Sometimes no answer will suffice.
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Hearsay Evidence
The essential defining features of hearsay are:
1. An out-of-court statement adduced in court to prove the truth of the contents of that statement, and
2. The absence of a contemporaneous opportunity to cross-examine the maker of that statement.
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