 |
| Patrick J Ducharme |
Preface 2
CHAPTER ONE 12
The Rules of Evidence 12
Evidence: General Principles 12
Relevance of Evidence 13
Exhibits 16
Presenting Evidence 17
Evidence Presented to Whom? 17
The Method and Order of Presentation of Evidence 18
Note-Taking by Jurors 22
The Co-Conspirators’ Exception to the Hearsay Rule 23
The Rule 23
Rationale for the Rule 23
Application of the Rule 24
Hearsay and the Co-Conspirators’ Exception to Hearsay 26
A Little History 31
When Conspiracy Involves Only Two Persons 34
“In Furtherance” Requirement 36
Parties to Conspiracy: It’s All About the Agreement 36
The Trial Judge’s Role 38
Conclusion 40
A View from the Bench 42
The Rules of the Game 47
When the Rules of Evidence and Procedure May Be Relaxed – In Aid of A Beleaguered Accused 50
Substantive Criminal Law 55
Law of Evidence 56
Opinion Evidence 61
Electronic Methods of Disclosure and Filing 62
Rules of Disclosure 63
Role of the Police in Disclosure 65
New Scientific Evidence 66
Fresh Evidence 67
CHAPTER TWO 70
The Role of the Prosecutor 70
Not About Winning or Losing 72
This duty to be fair includes: 72
Prosecutor’s Obligations Before a Jury 74
Prosecutor’s Obligations of Disclosure 76
CHAPTER THREE
The Role of Defence Counsel
The Lawyer as Advocate 80
Groia v. Law Society of Ontario: 82
CHAPTER FOUR
Types of Offences 90
Types of Proceedings 90
Indictable Offences 90
Summary Conviction Offences 91
Crown Option Offences (Hybrid Offences) 92
Charging Documents 93
Information 93
Preferred Indictments 94
Direct Indictments 96
When the Indictment is Preferred 97
Offences against Persons 99
Terrorism 99
The Anti-Terrorism Act, 2015 99
Murder 102
Intervening Events 103
Jury Required to Make Specific Findings 104
The Meaning of “Planned” and “Deliberate” 104
Manslaughter 105
Assisted Suicide 105
Assault 108
Sexual Assault 110
Sexual Interference 111
Criminal Harassment 112
Offences against Property 113
Theft 113
The Meaning of “With Colour of Right” 114
Offences Against the Administration of Justice 115
Obstructing Justice 115
Perjury 116
Breach of Trust 117
Fraud and Breach of Trust 118
Offences Involving Drugs 118
Importing Drugs into or Exporting drugs out of Canada 119
Import / Export while Abusing Trust or Authority: 120
Production 120
Trafficking in Controlled Substances 121
Penalties for Trafficking 121
Possession of Controlled Substances 121
Knowledge 123
Control 125
Joint or Constructive Possession 125
Failure of the Accused to Testify 127
Medical Marijuana 129
Sentencing in Drug Cases 130
Reasons Required 132
Drug Treatment Court Programs 132
Minimum Punishment 132
Schedule 1 133
Schedule 2 133
Schedule 3 134
Schedule 4 134
Penalties 134
Meaning of “Substance” 134
Conclusion 135
Driving Offences 135
Dangerous Operation of a Motor Vehicle 135
Impaired Driving 139
Onus of Proof of Innocence Substantial (and perhaps unconstitutional) 141
The Defence of No Reasonable Expectation of Driving 147
Probable Charter of Rights Challenge 147
Drug Recognition Experts: ‘Automatically’ Considered Experts 151
The Bolus Drinking Defence
– Eliminated by Recent Amendments 154
New Provisions Related to Drinking and Driving 155
Impaired Driving 156
Minimum Mandatory Sentences 158
CHAPTER FIVE
The Trial 164
Game Plan: The Theory of Your Case 167
Criminal Procedure: The Rules of the Game 169
Relaxation of Rules 171
Criminal Law is Federal 171
Three Types of Trials 172
Appearances in Court 173
Designations of Counsel 175
Arraignments and Appearances 175
Failure to Appear 177
Organizations: (Companies/Corporations) Failure to Appear or Attend 177
Amendments 177
Particulars 180
Joinder and Severance 181
Change of Venue 182
Law of Evidence 183
The Concept of Negligence in Criminal Law 186
Method and Order of Presentation of Evidence 188
Cross-Examination 192
Hearsay Evidence 196
Co-Conspirators’ Exception to the Hearsay Rule 198
Rationale & Process 199
Jurisdiction of Judges 203
Summary of Procedural Points 205
Internet Companies May experience Criminal Convictions for their Content 208
Rules of Evidence Relaxed 209
Disputed Facts Considered Aggravating 209
Procedure for Transferring Charges within a Province 210
Offences Committed Outside of Canada 210
CHAPTER SIX
Jury Trials 212
Reduction of Number of Jurors to Twelve 212
When Is a Jury Case Available and How Will the Jury Be Selected? 213
Jury Selection 220
Canadian Juries Post 2019 Amendments 222
Jury Selection: Elimination of Peremptory Challenges, Now Process Controlled by Trial Judge 223
Challenges for Cause 229
The Challenge for Cause Hearing 232
History Leading to Amendments in Jury Selection 234
Absolute Jurisdiction Offences: Section 553 237
Superior Court of Criminal Jurisdiction: Section 469 238
The Impact of the 2019 Amendments 239
Jury Selection 240
Alternate vs Additional Jurors 241
Challenging the Jury Panel 242
Excusing Jurors 243
Stand Bys 243
Challenges for Cause 244
Discharge of Juror 246
Separation versus Sequestration 247
Restriction on the Publication of Proceedings in the Absence of Jury 248
Social Media and Interference in Trials 249
Section 650 and Meetings between Judge and Counsel in the Absence of the Accused 255
Opening Addresses 257
Testimony of an Accused 258
Evidence Favouring a Defendant 259
Agreed Statements of Fact and Admissions 259
Direct and Circumstantial Evidence 260
Opinion Evidence 261
Admissibility of Expert Evidence 263
Previous Convictions of a Non-Accused Witness 264
Prior Inconsistent Statements 265
Prior Inconsistent Statements of an Accused 265
Out-of-court Utterances and Statements of the Accused 266
Evidence of Good Character 266
Evidence of Motive 269
Witnesses of Unsavoury Character – Vetrovec Warnings 269
Reply Evidence 274
Colour of Right 275
Closing Addresses 276
Use of Verdict Sheet 281
Use of Decision Tree 281
Return of Verdict 282
Juror Conduct during Deliberations 282
Requirements for Verdict 283
Directed Verdicts 283
Mistrials 284
Delay Section 11 (b) Charter 285
Closing Notes 287
CHAPTER SEVEN
Mental Disorder 290
Defence of Mental Disorder 290
“Appreciating” and “Knowing” 291
Meaning of “Wrong” 292
Time Is Relevant to Psychiatric Assessment 298
Requiring an Assessment 299
Possible Inquiries 301
Automatism 301
Grounds for Assessment Order 302
When is Assessment Order Made? 303
Applications Made By Interested Participants: 304
The Limitations on the Prosecutor 304
Mandatory Requirements 304
Time Periods – s. 672.14 305
Presumption against Custody – s. 672.16 306
Mental State vs Bail Hearings – s. 672.17 306
Application to Vary an Assessment Order – s. 672.18 307
No Treatment – s. 672.19 307
Section 672.121 307
Return of Assessment – s. 672.2 308
Protected Statements – s. 672.21 309
Presumption of Fitness – s. 672.22 310
Court may Direct Issue- s. 672.23 311
Appointing Counsel – s. 672.24 311
Postponing Trial of Issue – s. 672.25 312
Where Jury Empanelled – s. 672.26 312
Trial of Issue by Court without Jury – s. 672.27 313
Accused to Remain in Hospital – s. 672.29 313
Acquittal Ends Fitness Issue – s. 672.3 314
Subsequent Proceedings – s. 672.32 314
Two-Year Review – s. 672.33 314
Verdict of Not Criminally Responsible (“NCR” verdict) – s. 672.34 314
Requirements for Verdict – s. 16 315
NCR Verdict Not Previous Conviction – s. 672.36 316
Review Board to Make Disposition when Court Does Not – s. 672.47 316
Procedure at Disposition Hearings – s. 672.5 316
Permissable Dispositions – s. 672.54 318
Treatment Orders under the Criminal Code 319
CHAPTER EIGHT
Sentencing 322
Sentencing 322
The Fundamental Principle of Sentencing 326
Procedure & Rules of Evidence on Sentencing Hearings 327
Submissions by Counsel on Sentencing 330
Overview 330
Fundamental Purpose of Sentencing: s. 718 332
Fundamental Principle 332
Other Sentencing Principles – s. 718.2 332
Bias Prejudice or Hate 333
Abuse of a Spouse or Child 334
Position of Trust 334
Disparity of Sentence 335
Appelate Review of Sentence –Section 687 (1) 336
Other Sentencing Principles from Common Law 337
Time Spent In Custody – ss.719(3) 339
Credit for Pre-Sentence Detention 340
Various Statutory Sentencing Powers 341
Discharges – s. 730 341
Suspended Sentences – s. 731 342
Retrospective Punishment 344
Gladue Sentencings 346
Fines and Forfeiture 347
Victim Surcharges 349
Forfeiture of Proceeds of Crime – s. 462.37 356
Restitution – s. 738 357
Constitutionality of Administrative Penalties 358
Prohibition Orders – s. 109 and s. 110 359
Conditional Sentences 360
Mandatory and Optional Conditions 364
Breaches of Conditional Sentences 365
Intermittent Sentences 366
Minimum Mandatory Sentences 367
Parole 369
Victim Impact Statements 373
Co-Operation as a Mitigating Factor on Sentence 374
Overview 374
The American Approach 375
The Canadian Approach 376
The Value to the Offender of Co-operation 378
Reward of the Offender 378
Drug Importation Cases 384
The Presentation of Evidence of Co-operation 391
A Cautionary Note: Beware the Problems Created by the Prosecution’s Insistence on Timely Disclosure 392
Possible Problems for Defence Counsel 397
Conclusion 399
Criminal Record Suspensions 401
Minimum Mandatory Jail Sentences 403
Failing to Recognize the Consequences 404
Pardons 406
Aboriginal Offenders 407
The Fundamental Purposes of Sentencing 408
Other Sentencing Principles 408
Principles of Common Law 409
Time Spent in Custody Prior to Sentencing 412
Discharges: s. 730 414
Suspended Sentences 414
Fines and Forfeiture 415
Victim Fine Surcharges 416
Forfeiture of Proceeds of Crime 419
Restitution 421
Prohibition Orders 422
Conditional Sentences: Served at Home Not Jail 423
Compulsory Conditions of a Conditional Sentence 426
Breaches of Conditional Sentences 427
Intermittent Sentences 429
Protecting Result(s) on Appeal 431
Appellate Deference to Trial Judge’s Sentence 434
Trial Fairness 435
CHAPTER NINE
Appeals 440
Indictable Appeals – Right of Appeal of Person Convicted- Questions of Mixed Fact and Law – s. 675 441
Right of Attorney General to Appeal – All Questions of Law – s. 676 444
Grounds of Appeal 445
Questions of Law- 445
Findings of Fact 445
Unreasonable Verdict–Question of Law – s. 686 447
Adequacy of Reasons 448
Case-law on Adequacy of Reasons for Judgment 450
Miscarriage of Justice 453
New Arguments on the Appeal 453
Claims of Ineffective Assistance of Counsel 454
Procedural Protocol Re Allegations of Incompetence of Trial Counsel in Criminal Cases 456
Failure to Object at Trial 465
Residual Discretion to Stay Proceedings 466
Seeking Leave to Appeal 466
Legal Help 467
Extension of Time 467
Report of Trial Judge 467
Powers of the Court: Including Fresh Evidence 467
Continuation of Trial vs. New Trial 470
Application of Rule Precluding Multiple Convictions 471
Federal Minister of Justice 471
Summary Conviction Appeals 472
Appeal of Sentence 476
Leave to Appeal 478
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure Volume 2, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel