Category: articles

Patrick J Ducharme

Knowledge of an expert in a technical field may help a trier of fact decide a case. Persons who are qualified by education, training or experience in relation to a particular subject, may be permitted by the court to state their opinions about matters in their particular area of expertise, if the court concludes:

1. The intended evidence is relevant;
2. It is necessary to assist the trier of fact;
3. There is no legal basis to exclude the evidence; and,
4. The witness is a properly qualified expert.1
Continue reading “Opinion Evidence”

Patrick Ducharme

Continued from Part 1.

With regard to the doctrine of willful blindness, the court found that it should be considered distinct from recklessness. The doctrine requires that the court delve into the accused’s state of mind in an effort to establish knowledge. Willful blindness, the court said, could substitute for actual knowledge whenever knowledge is a component required to prove the crime.
Continue reading “Law of Evidence (part 2) – Willful Blindness”

Patrick Ducharme

The law of procedure is closely linked to the law of evidence. Subsection 723(5) of the Code, for example, provides that hearsay evidence is admissible at sentencing proceedings. In order to know the differences in the procedure from trial to sentencing, it is necessary to know the rules of evidence in order to correctly apply the rules of procedure. At trial, hearsay evidence is generally not admissible and at sentencing hearsay evidence is admissible.
Continue reading “Law of Evidence”

Patrick J Ducharme

Substantive Criminal Law

The Federal government enacts criminal law in Canada. The Code contains many of the offences in Canada, ranging from traditional crimes such as murder, assault and robbery to newer crimes such as Internet luring.
Continue reading “Substantive Criminal Law”

Patrick Ducharme

When the Rules of Evidence and Procedure May Be Relaxed – In Aid of A Beleaguered Accused

The Supreme Court of Canada in Spence1 established that technical, procedural requirements would be trumped, if required, in order to ensure fairness and the appearance of fairness from the perspective of the accused, which the court determined to be the primary factor. Additionally, in Lyttle2 the Supreme Court of Canada stated that just as the right of cross-examination itself is not absolute, so too are its limitations. Trial Judges enjoy, in this as in other aspects of the conduct of the trial, a broad discretion to ensure fairness and to see that Justice is done and “seen to be done”. This discretion to relax the rules of procedure has extended to relaxing the rule of relevancy, and, relaxing in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice or where the danger against which the exclusionary rule aims to safeguard does not exist.3
Continue reading “When the Rules of Evidence and Procedure May Be Relaxed – In Aid of A Beleaguered Accused”

Patrick Ducharme

The Rules of the Game

Subsection 482(1) of the Code authorizes every Superior Court to make rules consistent with a Federal statute. Subsection 482(2) provides a similar power to Provincial courts, subject to the approval of the Lt. Governor-in-Council of the Province. Sections 169 and 170 of the Courts of Justice Act create the Criminal Rules Committee and a procedure for enacting rules related to criminal proceedings. These are the rules permitted by section 482 of the Code. The Rules of the Ontario Court of Justice in Criminal Proceedings apply to all trials in the Ontario Court of Justice.
Continue reading “The Rules of the Game”

Patrick J Ducharme

A View from the Bench

The Court of Appeal for Ontario has held that trial Judges have the power to manage a criminal trial.1 Two years later the Supreme Court of Canada wrote, “for our Justice system to operate, trial Judges must have some ability to control the course of proceedings before them.”2 These comments may be part of an ever-increasing sense of frustration, if not despair, festering within the psyche of trial Judges throughout this country.
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Patrick Ducharme

The co-conspirators’ exception to the hearsay rule is, from a defence lawyer’s perspective, the legal version of an improvised explosive device. It is like a cluster of improvised explosive devices: extremely diverse, difficult to defend against and intended to inflict a great deal of pain in the form of significant volumes of otherwise inadmissible evidence heaped upon the accused and awaiting his explanation. It places the accused in a difficult position. Evidence is presented that is not challenged by cross-examination, the most effective means of testing credibility and reliability. It may be false or contrived or delivered for reasons best known to the declarant or actor, but in their absence. Nevertheless, it begs a response. And, in that response, the accused is placed in the unenviable position of answering “no win” questions premised upon the alleged statements and conduct of absentee witnesses. Sometimes no answers will suffice to remove the prejudice created by the questions.
Continue reading “Conclusion on the Co-Conspirator Exception”

Patrick Ducharme

In the absence of evidence raising serious concerns about the necessity or reliability of a statement or conduct, the utterances and conduct under this exception are admissible. The jury will be instructed to consider the evidence pursuant to the three-step Carter procedure. Because the co-conspirators’ rule is a recognized, valid exception to hearsay, necessity and reliability are presumed in the absence of exceptional circumstances. The question is: what amounts to exceptional circumstances?
Continue reading “The Trial Judge’s Role”

Patrick J Ducharme

Before the Supreme Court of Canada’s decision in J.F.1 there were two schools of thought on the question of how a person could be found responsible as a party to the offence of conspiracy. The first school was developed by the Court of Appeal for Ontario in McNamara2 and Vucetic.3 In both cases, the appellate court embraced a more expansive view of party liability to conspiracy under section 21 of the Criminal Code that included aiding or abetting the furtherance of the conspiracy’s unlawful object, not just aiding or abetting the agreement itself.
An alternative and less expansive theory of party liability to conspiracy was embraced by the Court of Appeal for Alberta in the case of Trieu4 and the Court of Appeal for Quebec in Bérubé.5 In Bérubé, the party liability was not based upon knowing the object of the conspiracy and intending to assist the conspirators in attaining their unlawful criminal object. Instead, it was based upon the alleged acts of assistance or encouragement being performed for the purpose of aiding or assisting the act of agreeing. This narrower approach focuses on the essence of conspiracy, the agreement. Consequently, assisting or encouraging a person to become a member of an existing conspiracy may be the basis of a conviction for conspiracy. Conspiracy is thus the act of assisting the agreement. The offence also includes aiding or abetting the formation of a new agreement because that is also the act of assisting the agreement.
Continue reading “Parties to Conspiracy: It’s All About the Agreement”