 |
| Patrick Ducharme |
The charging document used in the Superior Courts of Canada is an “indictment”. The charging document used in the Provincial Courts of Canada is an “information.” Both refer to the official document upon which the charge or charges are written.
Continue reading “Charging Documents”
 |
| Patrick Ducharme |
Types of Offences
Types of Proceedings
There are three types of offences: summary conviction, indictable, and dual or hybrid offences.
Indictable Offences
Indictable offences are more serious. They permit the imposition of greater sentences. Section 743 of the Code provides a maximum of five years imprisonment if the penalty for an indictable offence is not otherwise specified. Any sentence of two years or more will be served in a Federal penitentiary.1 Sentences of one day less than two years and lower are served in Provincial prisons. There is seldom a statutory limitation period for indictable offences. Indictable offences are divided into three categories:
Continue reading “Types of Offences – Types of Proceedings”
 |
| Patrick J Ducharme |
As can be seen from these onerous responsibilities, the trial lawyer has a much bigger responsibility than simply representing a client against charges brought by the government in the criminal law setting. These responsibilities are as onerous as those required of the prosecutor. They flow from the fact that every criminal defence counsel has a duty to both the client and the court.
Continue reading “Onerous responsibilities for the trial lawyer”
| |
| Patrick Ducharme |
While the standard of a lawyer’s assistance of any client can never be expected to provide a standard of perfection, the lawyer still must be both candid and honest in every aspect of advising the client. In addition, the lawyer has special duties owed to the client because of the nature of trial work. These duties include:
Continue reading “Special duties owed to the client”
| |
| Patrick Ducharme |
Here are some of the specific rules that defence lawyers working in criminal law and conducting criminal trials are obligated to know and follow. Each lawyer should be aware of these duties that he has to the client, and, to the court, and, to the legal system at large:
A duty to his client to be competent, and, to perform the legal services for which he/she was hired–conscientiously, diligently, and, in an efficient manner, so as to provide quality of service equal to that level that generally would be expected of a competent lawyer in a similar situation;
Continue reading “Specific Rules for Defence Lawyers”
| |
| Patrick J Ducharme |
Groia v. Law Society of Ontario:
After the trial the Law Society of Upper Canada (now the Law Society of Ontario) launched disciplinary proceedings against Groia, on its own motion, alleging that he was guilty of professional misconduct based on his uncivil behaviour during the trial. A three-member panel of the Law Society found Groia guilty of professional misconduct. They ordered that his license to practice law be suspended for two months and ordered him to pay nearly $250,000 in costs.
Continue reading “Groia v. Law Society of Ontario”
| |
| Patrick Ducharme |
The Role of Defence Counsel
The Lawyer as Advocate
In Canada, Provincial legislatures have given Provincial law societies the power to govern the lawyers in their jurisdiction, including the responsibility of maintaining standards of professional conduct, and, of disciplining lawyers who fail to meet those standards. In general terms every lawyer must discharge his or her duties to a client, the court, members of the public, and fellow members of the profession with integrity. Each law society in Canada embraces the proposition that integrity is the fundamental quality of any person who seeks to practice as a member of the legal profession. Continue reading “The Role of Defence Counsel: The Lawyer as Advocate”
| |
| 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”
