Category: articles

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”

Cases are decided by a Judge sitting without a jury, or, by a jury whose role it is to determine the facts of what occurred (the act(s)) aided by the legal instructions of the Judge. With the Judge’s assistance the jury will only consider evidence that the Judge determines to be admissible by law. Before the jury renders its verdict, the Judge will instruct them on the law to assist them in making their decision. Jurors may sit as a group of twelve, or, occasionally, particularly in cases that are expected to require several weeks of testimony, as a group of thirteen or fourteen persons.
Continue reading “Evidence Presented to Whom?”

Patrick Ducharme

The evidence in criminal cases is always presented by the prosecutor first. The prosecution is required to prove its case beyond a reasonable doubt, and therefore, it is the prosecutor’s obligation to present the evidence in support of guilt. This is referred to as the burden of proof. The defence need not produce any evidence if the prosecutor fails to meet this burden of proof. An accused person can never be forced to give evidence.
Continue reading “Presenting Evidence”

Patrick Ducharme

Exhibits, marked and entered into evidence at trial, often present cogent, colourful, believable and powerful evidence. Mark Twain once admonished readers to, “believe nothing you hear and only half of what you see”. His comment may be an exaggeration just as ‘a picture is worth a thousand words’. But both comments make this point: virtually any demonstrative evidence is more interesting to jurors than most oral testimony, and, is commonly considered more reliable than oral testimony.
Continue reading “Exhibits”

Patrick J Ducharme

When we speak of relevant evidence we are speaking not just about whether there is a logical connection between the evidence and the fact in issue, but also, whether on an evaluation of the evidence, it is sufficiently probative to justify its admission despite whatever prejudice might flow from its admission. Consequently, trial Judges have discretion to exclude relevant and material evidence in circumstances where its probative value is outweighed by its prejudicial effect.
Continue reading “Relevance of Evidence”

Patrick Ducharme

The law of evidence plays a fundamental role in our trials: it determines the admissibility of all evidence by identifying the information the triers of fact are allowed to consider. The Supreme Court of Canada in R. v. Jarvis1 raised the relevancy of evidence to the level of a protected Charter right by concluding that it is a fundamental principle of Justice that relevant evidence should be available to the trier of fact in the search for the truth. It is perhaps for this reason that the Supreme Court of Canada has adopted a purposive approach to the admissibility of evidence. In doing so, the court has moved away from the certainty of categories of admissible evidence to rules that permit discretion as to admissibility based upon a “principled approach” to admissibility.

Continue reading “Evidence: General Principles”

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

Continue reading “Contents of Canadian Criminal Procedure Volume 2”

Defence counsel is not the alter ego of the client. The function of defence counsel is to provide professional assistance and advice. He must, accordingly, exercise professional skill and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client.

– G. Arthur Martin

Continue reading “Preface to Canadian Criminal Procedure – Volume 2”