Patrick J Ducharme

It is fully expected in Canada that the reigning political party in control of the federal government, with its ability to appoint federal Judges, will appoint Judges that the government believes will likely accept the philosophy of the federal government on issues that will come before the courts. Every federal government in power since the country’s inception has appointed Judges that it believed respected and endorsed the government’s policies on social issues.
Continue reading “Political Considerations of Judicial Appointments”

We have discovered the hard way that confidence and accuracy are very different things in a criminal court. The most confident witness may be honestly mistaken or inaccurate or entirely wrong about his or her identification. Yet, we have learned, that same witness may stubbornly cling to their belief in the accuracy of their identification, despite its inaccuracies.

Continue reading “Innocence Canada (Part 2)”

Innocence Canada, formerly known as the Association in Defence of the Wrongly Convicted is a full-time, non-profit organization in Canada investigating cases of potential wrongful convictions. It is independent of government or universities. This organization plays an important role in our justice system. It advocates for people who may have been wrongfully convicted, yet, cannot afford a lawyer to challenge the process that caused him or her to be wrongfully convicted.
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In Canadian law eyewitness identification is treated as intrinsically unreliable. Judges are required now to instruct themselves or instruct juries that they must be very cautious about relying on eyewitness testimony alone to find anyone guilty of any criminal offence. Canadian legal history has demonstrated many miscarriages of Justice whereby innocent persons have been wrongly convicted based on eyewitness testimony. It is generally accepted that the false identifications have often emanated from witnesses who made innocent mistakes in identifying the person they believed committed a crime. There have been so many proven cases of false identification in criminal trials such that our courts have now become very wary of eyewitness identification evidence.

Continue reading “Eyewitness Identification Evidence: Often Weak and Sometimes Dangerous”

An alibi defence is a claim by the accused that she could not have committed the crime alleged because she was somewhere else when the crime took place. If, for example, the accused is charged with robbing a bank, but is able to prove that she was in a different city at the time that the bank was robbed she is entitled to be acquitted if that alibi evidence is accepted by the trier of fact as accurate and truthful.
Continue reading “Alibi Defence and Timely Disclosure”

Evidence about what a person said or did after an offence has been committed may help a Judge or jury decide whether it was “that person” who committed the offence. It is evidence that may be used by a Judge or jury, along with other evidence, in deciding whether the Crown has proven guilt beyond a reasonable doubt.
Continue reading “Post-Offence Conduct”

Motive is a reason for someone to do something, or, not to have done something. The Crown is not required to prove motive. Motive is not an essential element of any offence. Motive, however, may, and often is, a relevant consideration in determining guilt or innocence. Motive evidence is a form of circumstantial evidence frequently offered and admitted in criminal cases. Circumstantial evidence is evidence providing only a basis for an inference about a fact in dispute.
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The leading case to be considered is R. v. Oickle1, a decision of the Supreme Court of Canada. The court considered the application of the confessions rule as necessarily contextual in the sense that hard and fast rules will never be able to account for the variety of circumstances that could vitiate the voluntariness of a confession. The court considered the relevant factors to be included in the consideration are:
threats or promises by the police, including veiled threats or offers of inducement to the suspect
oppression
the requirement that the accused have an operating mind; and
police trickery.
Continue reading “The Confessions Rule (part 2)”

The criminal justice system is designed to prevent convictions of the innocent, and, prides itself on fairness, particularly with vulnerable detainees:
Diminished mental capacity
Young age
Under the influence of a substance

The confessions rule is an important part of preserving the integrity of the criminal justice system.
Our courts claim that they are aware of, and keen to prevent, false, unreliable, or coerced confessions.
Many times, in our legal history our courts have learned that an earlier confession was later revealed to be the result of abuse by persons in authority to persons detained.

These concerns for fairness and reliability have resulted in “the confessions rule.” The rule seeks to ensure only voluntary, truthful statements from persons questioned by the police or in the custody of the police and facing criminal charges are admitted into evidence. The confessions rule seeks to eliminate admissions or confessions that are the result of abusive coercion by persons in authority.

The “confessions rule” focuses not just on reliability but also on voluntariness. The rule offers protections beyond those guaranteed by the Charter. The application of the confessions rule is contextual. Each hearing (voir dire) to determine the voluntariness of a statement provided by an accused to a person in authority permits the court to understand the circumstances surrounding the confession and to determine if those circumstances give rise to a reasonable doubt as to the voluntariness of the statement, considering all aspects of the rule.

See Part 2 of the Confessions Rule.

Continue reading “The Confessions Rule”