Category: articles

Patrick Ducharme

Disclosure refers to all relevant information or evidence available to the prosecutor and subject to disclosure to the defence to permit the defence a fair opportunity to prepare for trial. The Supreme Court of Canada in a unanimous decision held that the Crown is under a duty to disclose to the defence all evidence that could possibly be relevant to the case, regardless of whether the Crown plans to call that evidence at trial, or whether it helps or hurts the Crown’s case. The Supreme Court of Canada described in the duty of disclosure as follows:
Continue reading “Prosecutor’s Obligations of Disclosure”

Patrick J Ducharme

Prosecutors have a special duty to refrain from any submissions before a jury that might be considered inflammatory. They must also refrain from any expressions of opinion concerning the guilt of the accused or the conduct of counsel for the accused. It is inappropriate for the prosecutor to make negative comments about the accused personally or his character. The prosecutor should refrain from ridicule, exaggeration, sarcasm, or ethnicity.
Continue reading “Prosecutor’s Obligations Before a Jury”

Patrick Ducharme

This duty to be fair includes:

1 making full disclosure of its case to the defence and continuing to make that disclosure in a timely way throughout the criminal trial process.
2 not misleading the court.

3 not offering personal opinions on the evidence or on the credibility of witnesses or on the guilt or innocence of the accused.
Continue reading “Prosecutor’s Duty to Be Fair”

Patrick Ducharme

Although Crown counsel is to perform her duties without regard to winning or losing a criminal case, that does not mean that she is prevented from examining, cross-examining, making legal arguments, presenting written legal arguments with vigour and thoroughness. Our Supreme Court of Canada has acknowledged that thorough, vigourous prosecutions are an important and valuable aspect of the criminal trial process.1 In doing so, however, the prosecutor must always maintain her duty to be fair and to maintain public confidence in prosecutorial fairness.

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.

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Patrick J Ducharme

The role of the prosecutor in a criminal trial in Canada is unique. The prosecutor fulfills a “quasi- judicial” function. He or she has duties that include:

a) a duty to the fair and to maintain professional distance and public confidence in prosecutorial fairness and prosecutorial independence from the case to be prosecuted.

b) a duty to maintain objectivity.

c) a duty not to use inflammatory remarks.
Continue reading “The Role of the Prosecutor”

Patrick Ducharme

Fresh evidence may be admitted on appeal only if:

a. by due diligence it could not have been adduced at trial;
b. the evidence is relevant because it bears upon a decisive or potentially decisive issue in the trial;
c. the evidence is credible because it is at least reasonably capable of belief; and
d. if the evidence was believed that it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.1
Continue reading “Fresh Evidence at Appeal”

Patrick Ducharme

The topics upon which expert opinion evidence may be given are plentiful and diverse. Not surprisingly, it is often difficult for the court to keep abreast of new scientific theories and advancements. New scientific theories or techniques generally attract much closer scrutiny by the court before permitting the trier of fact to hear an opinion that may not be legitimate.
Continue reading “New Scientific Evidence”

Patrick J Ducharme

In R v. McNeil 1the Supreme Court of Canada discussed the duty of the police to disclose to the Crown the “fruits of the investigation.” The court held that, Under our Canadian system of law enforcement, the general duty to investigate crime falls on the police, not the Crown. The fruits of the investigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, by the police. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in prosecutions: see, for example, s. 42(1)(e) of the Ontario Police Services Act. Of particular relevance here is the police’s duty to participate in the disclosure process. The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary duty of police investigators to disclose to the Crown all relevant material in their possession. The police’s obligation to disclose all material pertaining to the investigation of an accused to the prosecuting Crown was recognized long before Stinchcombe. The state of the law was well summed up by the Honourable G. Arthur Martin, Q.C., in his Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993), (“Martin Report”), at pp. 167-68:
Continue reading “Role of the Police in Disclosure”

Patrick Ducharme

Full disclosure is fundamental to the right to make full answer and defence.1 The Crown has both a legal and ethical obligation to provide disclosure. While the Crown’s obligation is to make full disclosure, the defence also has an obligation request disclosure and to act responsibly in the course of the disclosure process.2 The defence begins the process with a request for disclosure and thereafter remains diligent about attempting to pursue additional disclosure.
Continue reading “Rules of Disclosure”

Written documents may now be created in electronic form. Signatures may be signed electronically. The prosecution may provide electronic disclosure. The Ontario Court of Appeal currently requires that a copy of the prosecution and defence factums be provided to the court by disk or by e-mail. Prosecutors are able to provide disclosure to the defence by e-mail, disk or hard drive. The cost of printing disclosure sent electronically is then borne by the accused rather than the prosecution.
Continue reading “Electronic Methods of Disclosure and Filing”