 |
| Patrick Ducharme |
The right of an accused to retain counsel of choice has long been recognized as a fundamental right. It is now included in the Charter. It is not, however, an absolute right and is subject to reasonable limitations in determining the individual’s right to select counsel of choice. The court must balance that right with public policy and public interest in the administration of justice and basic principles of fairness.
 |
| Patrick J Ducharme |
Rule 2 (Relationship to Clients) of the LSUC’s Rules of Professional Conduct provides that the lawyer must not advise or represent both sides of the dispute, and, save after adequate disclosure to and with the consent of the client or prospective client concerned, should not act or continue to act in a matter when there is or is likely to be a conflicting interest.
 |
| Patrick Ducharme |
On three days notice by either party, the court may order the release of any exhibit for the purpose of a scientific or other testing, subject to such terms as appear to be necessary to safeguard the exhibit.
Continue reading “Pre-trials: Release of the Exhibits for Testing”
| |
| Patrick Ducharme |
Where the court is satisfied that particulars are necessary for a fair trial, the prosecutor will be ordered to furnish particulars. In determining whether a particular is required the court may consider any evidence that has been taken.
Continue reading “Pre-trials: Particulars”
| |
| Patrick J Ducharme |
These applications have two separate and distinct possibilities. One may apply to sever the counts or one may apply to sever the accused. Severance will be allowed where the court is satisfied that it is in the interests of justice.
Continue reading “Pre-trials: Severance”
| |
| Patrick Ducharme |
Section 709 provides for making application to take commission evidence of a witness not likely to be able to attend at the time of trial because of either physical disability arising out of illness, or some other good or sufficient cause. An order may also be made when the proposed witness is out of Canada.
Continue reading “Pre-trials: Commission Evidence”
| |
| Patrick Ducharme |
Generally, all pre-trial applications are brought to the trial Judge to:
Prevent fragmentation
Provide factual foundation
Permit the trial Judge to reserve judgment on the application if not enough evidence at the present time.
Continue reading “Special Status of Trial Judge for Pre-Trial Applications”
| |
| Patrick J Ducharme |
Generally all proceedings are in public. Members of the public may be excluded if it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude. If there is exclusion, reasons must be provided. Maintaining the proper administration of justice includes protection of child witnesses. Further, the trial Judge may make an order directing that the identity of a complainant not be disclosed or published. These powers are contained in section 486:
486(1): Any proceedings against an accused shall be held in open court, but the presiding Judge or Justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the Judge or Justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
Continue reading “Pre-trials: Support Persons Screens and Other Protections”
| |
| Patrick Ducharme |
In proceedings under specified sections of the Code (mostly “sexual offences”) if the complainant is under 18 at the time of the alleged offence, a videotape, made within a reasonable time after the alleged offence, is admissible in evidence, if the complainant or witness, while testifying, adopts the contents of the videotape.1 Section 715.2 extends this method to persons who have difficulty by reason of mental or physical disability.
Continue reading “Pre-trials: Complainants Under Eighteen Years of Age”
| |
| Patrick Ducharme |
The court may order, where the prosecutor and the accused agree, the accused to appear by counsel or by closed circuit television or any other means that allows the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken.
Continue reading “Pre-trials: Video Links”
