Month: July 2024

Before the commencement of a trial the accused and his lawyer have a legal right to know all the evidence that the prosecutor has against him. The prosecution is obligated to provide all relevant information including evidence in their possession because of the investigation that is helpful to the accused in his defence. This information is disclosed to counsel for the accused. Crown disclosure will include the names of all witnesses that will testify or could testify. Crown disclosure will contain the statements of all witnesses interviewed by the police, the Crown, or both.
Continue reading “The Crown’s Responsibility to Provide Disclosure”

The accused can never be forced to testify at his trial. Because a person in Canada accused of a crime is presumed innocent until a Judge or jury finds him guilty, the presumption of innocence prevents anyone from forcing the accused to formally answer the charge(s). The accused does not have to prove his innocence. The Crown must prove the accused is guilty beyond a reasonable doubt.
Continue reading “The Accused as Witness”

Some witnesses may testify about matters that they did not personally see or hear. Yet, certain inferences may be drawn from their testimony. This is referred to as circumstantial evidence.

Circumstantial evidence can sometimes be as compelling as direct evidence. Every Judge in Canada seems to use the same example of circumstantial evidence when explaining it to a jury. Perhaps it has been used so often because Judges feel that it is practical and works when explaining the difference between direct and circumstantial evidence. Here is how most Judges explain circumstantial evidence to jurors:
A witness might say that he or she observed a woman enter the courthouse lobby today wearing a raincoat and carrying an umbrella; both dripping wet. If you believe that witness, you might conclude that it was raining outside at the time the woman entered the courthouse, even though the evidence suggesting that it was raining at the time was indirect. The witness was not outside and did not personally observe it raining. But the witness did see the raincoat of the woman who entered the courthouse at that time, and, her umbrella dripping water, and, from those observations, the witness might infer that it was likely raining at the time that woman entered the courthouse. Indirect evidence is circumstantial evidence. Sometimes circumstantial evidence can be just as compelling as direct evidence.
Continue reading “Circumstantial Evidence”

Direct evidence is evidence presented by a witness that, if believed, establishes a fact in issue. With direct evidence the only decision involved is to determine if the witness is telling the truth and describing the event that she witnessed accurately. Direct evidence has an advantage over circumstantial evidence. If the Crown’s case is entirely or substantially based on circumstantial evidence, the Judge or jury must be satisfied beyond a reasonable doubt that the guilt of the accused is the only rational conclusion or inference that can be drawn from circumstantial evidence.

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In a criminal trial both types of evidence, direct or circumstantial, are admissible. In fact, our Judges instruct juries that one type of evidence is not to be considered “better” than another. The law treats both equally. The difference is that circumstantial evidence requires the trier of fact to conclude that the inference(s) they are urged to find on the evidence is/are the only rational inferences based upon what the witness observed, and, to also conclude that what the witness claims to have observed is accepted as accurate and truthful.
Continue reading “Direct versus Circumstantial Evidence”

There are other factors that the Judge or jury may be asked to consider in determining intention. They may also be asked to consider possible motives for a person’s actions. Motive is distinguishable from intent. Intent refers to the necessary mental element of guilt. A crime requires criminal intention to be proved. It is the mens rea, or the criminal intent, that the Crown must prove to establish guilt. Motive relates to a possible reason for a person’s actions.
Continue reading “Intention versus Motive”

Judges instruct jurors that a man is presumed to have intended the natural consequences of his acts. If, for example, he shoots his gun at another man, jurors may be able to infer that he did so intending to kill the other man. This presumption is not a presumption of law. It’s a presumption of common sense. Common sense says one is usually able to foresee the natural consequences of his acts. The acts are “his” not someone else’s. It is a presumption that may be drawn, but it is not a presumption that must be drawn. Jurors will be told by the Judge that if, on all the facts, they believe it is not the correct inference, then it should not be drawn.
Continue reading “Presumptions”

The Crown must prove that the accused intended to commit the crime alleged. It may be difficult to determine with certainty what a person is thinking at the time a crime is alleged to have occurred. Yet, the law insists that we determine the mens rea, or state of mind of the accused, at the time he is alleged to have committed a criminal act. Determining mens rea requires a determination of an offender’s state of mind at the time he commits the offence.
Continue reading “The Mental Element of Crime – Intent”

Canada’s legal history is replete with many examples of wrongful convictions. Some wrongful convictions have been overturned or otherwise rectified later by appeals or by commissions struck by the government to examine the circumstances of possible wrongful convictions. Sadly, wrongful convictions have happened far more than anyone in the legal system likes to admit. Some of these cases will be referred to in the Chapters ahead. Continue reading “Wrongful Convictions”

Police officers who arrest a person on a criminal charge often decide what criminal charge(s) the accused will face. For very serious charges, such as murder or manslaughter, investigating officers will occasionally seek the advice of a prosecutor when deciding what criminal charge or charges should be laid.

Continue reading “The Onerous Duty (Part 2)”