Patrick J Ducharme

The Charter of Rights and Freedoms (“the Charter”)

The Charter guarantees the rights and freedoms of Canadians, subject only to reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society. When or if The Charter imposes a “limit” or restriction on the Charter rights of any Canadian, whether by statute or regulation or common law, the limit places an evidentiary onus on the government to prove that the limit on individual rights is reasonable and demonstrably justified in this free and democratic society.
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The judicial appointment system presently operates on a five-stage system. Four of the stages are strictly political in nature. The first stage, and arguably the most meaningless stage, is the review of potential candidates by “screening committees.” The screening committees are comprised of lawyers nominated by law societies, bar associations, a federally appointed Judge, a provincial representative, and, since 2006, a police representative.
Continue reading “Political Considerations of Judicial Appointments (Part 2)”

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.
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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.

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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.
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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.
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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)”