Category: articles

Patrick Ducharme

The Supreme Court of Canada in Carter1 provided the method by which evidence would be admissible under the co-conspirators’ exception and McIntyre J. five years later succinctly summarized the procedure under Carter as a three-step process:

i. The trier of fact must first be satisfied, beyond a reasonable doubt, that the alleged conspiracy in fact existed;

ii. If the alleged conspiracy is found to exist, then the trier of fact must review all the evidence that is directly admissible against the accused and decide, on a balance of probabilities, whether or not he is a member of the conspiracy;

iii. If the trier of fact concludes, on a balance of probabilities, that the accused is a member of the conspiracy, then the trier of fact must go on and decide whether the Crown has established such membership beyond a reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators, done in furtherance of the object of the conspiracy, as evidence against the accused on the issue of his guilt.
Continue reading “The Supreme Court of Canada on the Co-Conspirator Exception to the Hearsay Rule”

Patrick Ducharme

The hearsay rule has a necessary and essential purpose. It requires witnesses to testify in court if their words are to be considered for their truth. Hearsay evidence is presumptively inadmissible. The rule against hearsay evidence values cross-examination of witnesses to test or challenge their credibility and reliability. Admissible hearsay is thus the exception.
Continue reading “Hearsay and the Co-Conspirators’ Exception to Hearsay”

Patrick J Ducharme

It is not the rule that offends one’s senses; it is the application of the rule. Judges routinely claim to be able to hear prejudicial evidence in the course of making a legal ruling on evidence, then banish from their minds the prejudicial aspects of that evidence if a ruling is made in favour of the accused thus excluding the evidence. Of this claim I am depressingly suspicious. My suspicion soars, however, at the thought of jurors attempting to accomplish this same segregation of thought.
Continue reading “Application of the Rule”

Patrick Ducharme

Rationale for the Rule

The Rule is based upon principles of agency. Each member of a common unlawful scheme impliedly permits every other member of the unlawful scheme the right to act or speak on her behalf in pursuit of the common unlawful plan.

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 Ducharme

The Co-Conspirators’ Exception to the Hearsay Rule

The Rule

The co-conspirators’ exception to the hearsay rule permits the acts, declarations, statements or utterances of an accused’s alleged co-conspirators, performed or made in furtherance of a conspiracy, to be presented as evidence against the accused as proof of his or her guilt. Declarations and acts are treated equally.

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

Patrick J Ducharme

In some cases a trial Judge will allow jurors to take notes during the testimony. The trial Judge will usually allow jurors to take notes provided the trial Judge is convinced that note taking will not interfere with juror’s ability to listen to and consider all of the evidence. Some trial Judges will also allow, in limited circumstances, jurors to ask questions during the course of the trial. This is, however, an exception to the general rule. Generally, jurors sit and listen quietly and patiently until all the evidence has been heard, closing submissions have been made and they have been instructed by the trial Judge’s “charge” to them as to the law and evidence.
Continue reading “Note-Taking by Jurors”

Patrick Ducharme

There are now two parts to the issue of reliabilty; threshold reliability and ultimate reliability. In determining the question of threshold reliability, the trial Judge acts as a gatekeeper, mindful that hearsay evidence is presumptively inadmissible. The ultimate reliability is left to the trier of fact. To determine threshold reliability all relevant factors need to be considered, including, for example, the presence of supporting or contradictory evidence. Here, the court expressly overruled its earlier decision in Starr.1
Continue reading “There Two Parts to the Issue of Reliabilty”

Patrick Ducharme

One of the trickiest areas of our evidentiary rules relates to the recognition of and treatment of hearsay evidence. Hearsay evidence is presumptively inadmissible unless an exception to the hearsay rule applies. Inadmissibility is generally determined in circumstances where the evidence is thought to be unreliable. In fact, the whole basis of the rule against hearsay evidence is that it is essentially unreliable.
The essential defining features of hearsay are:
Continue reading “Recognition of and Treatment of Hearsay Evidence”

During questioning of witnesses lawyers are required to follow certain procedural rules. The rules change depending upon whether or not the witness has been called by the lawyer asking the questions. The lawyer who calls the witness to the witness stand asks questions in “examination in chief.” Except in introductory matters or non-contentious matters the questions are not allowed to be leading, that is, they cannot by their nature suggest the answer to the witness.
Continue reading “Procedural Rules for Questioning of Witnesses”

The prosecution and the defence each have an opportunity to present evidence. The prosecution goes first. The prosecution has to prove the charge(s). The defence is not required to prove innocence. The defence is not required to prove anything except in rare specific instances clearly spelled out in the Code. Because accused persons are not required to prove their innocence they are not obliged to testify or to present evidence. Instead, the prosecutor is required to prove each essential element of an offence beyond a reasonable doubt.
Continue reading “The Method and Order of Presentation of Evidence”