Disclosure (part 1)

A person charged with an offence has a constitutional right to disclosure. Our courts see it as a part of the accused’s right to make full answer and defence and this right is now enshrined in the overall principles contained in section 7 of the Charter.
The prosecutor’s obligation to disclose is triggered by defence counsel’s timely request in writing for disclosure. As a practical matter where the original defence request is broadly worded, the defence would be wise to make a detailed demand before bringing an application for relief, especially in complex cases. Applications for relief should be brought to the trial Judge. The defence is not obliged to pay for the cost of providing disclosure. The requirement of the prosecution to provide disclosure is unconditional.

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Effective Legal Representation

Part of the right to make full answer and defence includes the right to have competent counsel assisting. When the accused has retained counsel he or she is entitled to the effective assistance of counsel. The right of effective assistance of counsel is a constitutionally protected right and an aspect of the right to make full answer and defence. In some instances an accused may be determined to represent himself at trial. The accused is, of course, entitled to represent himself. Depending on the circumstances, the court may intervene, even to the point of ordering funded counsel for the accused.
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The Test of Relevancy

The Crown must prove the three elements of every crime, the identity of the actor, the act, and the actor’s intent to commit the crime. Each of these elements is important for another reason. Any evidence presented by either side must be relevant. The easiest way to determine what is relevant in a criminal trial is to ask this question: is the evidence that I would like to present to the court relevant to at least one of these three elements of a crime? If so, the evidence that a lawyer wishes to present to the court is admissible as relevant.

Relevant, admissible evidence relates to proving or disproving the act(s) alleged, the identity of the perpetrator and the intent of the person who committed the act.

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Presumption of Innocence

The presumption of innocence means that the accused does not have to testify, present evidence, or, prove anything. If the prosecution fails to prove guilt beyond a reasonable doubt the accused must be found not guilty. The innocence of the accused remains unless and until the prosecutor satisfies the court beyond a reasonable doubt that the accused is guilty.

The presumption of innocence has been defined as a test requiring proof much closer to absolute certainty than probability. The presumption of innocence lies at the very heart of our criminal law and is protected expressly by section 11 (d) of the Charter, and, at least inferentially, by section 7 that protects the right to life liberty and the security of the person.

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Proof Beyond a Reasonable Doubt

The legal requirement of proof beyond a reasonable doubt is an important part of the criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or lack of evidence. The prosecution is not required to prove anything with absolute certainty.

If, at the end of the case, the trial Judge or the jury, based on all the evidence, are sure that the accused committed the offence they should find him guilty since they would then be satisfied of his guilt beyond a reasonable doubt.

The concept of proof beyond a reasonable doubt and the presumption of innocence are inextricably connected. Most Judges will instruct the jury that the term, “beyond a reasonable doubt” means that even if they believe the accused is “probably guilty” or “likely guilty” that is not sufficient. In those circumstances they would give the accused the benefit of the doubt and find him not guilty because the prosecution has failed to satisfy them that the accused is guilty beyond a reasonable doubt.

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When Credibility of the Accused is the Issue

The accused is not required by law to testify at his own trial. He cannot be forced to testify. When he does so, however, special rules apply, particularly in assessing his credibility. When the credibility of the accused is considered, the trial Judge or jury is required to apply the test of reasonable doubt to this issue. It should be considered in the following manner:

1. If they (the Judge or jury) believe the evidence of the accused, they must acquit.
2. If they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit.
3. Even if they are not left in reasonable doubt by the evidence of the accused, they still must ask whether they are convinced beyond a reasonable doubt of the guilt of the accused based on the balance of the evidence that is accepted.

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