Patrick J Ducharme

Patrick Ducharme

In proceedings under specified sections of the Code (mostly “sexual offences”) if the complainant is under 18 at the time of the alleged offence, a videotape, made within a reasonable time after the alleged offence, is admissible in evidence, if the complainant or witness, while testifying, adopts the contents of the videotape.1 Section 715.2 extends this method to persons who have difficulty by reason of mental or physical disability.
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Patrick Ducharme

The court may order, where the prosecutor and the accused agree, the accused to appear by counsel or by closed circuit television or any other means that allows the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken.
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Patrick J Ducharme

Accused is to be present during the whole trial; however, section 650(2) permits the trial Judge to make an order for removal or to permit absence.

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Patrick Ducharme

The presiding Judge in a jury trial is entitled to confer with counsel for the accused and the prosecutor concerning any matter that should be explained to the jury by the trial Judge in instructing the jury.1 The accused, or if any one of several jointly charged and tried accused, may declare whether or not she intends to adduce evidence on behalf of the accused. Where the accused or all of several accused announce that they do not intend to adduce evidence, the prosecutor is required to address the jury first.2 Counsel for the accused is only able to provide an opening address to the jury if evidence is called by that counsel.

Continue reading “Pre-trials: Pre-charge Conferences”

Patrick Ducharme

Section 52(1) provides that the Constitution Act is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Thus, applications to strike down legislation are made under this section. These applications must comply with Rule 27. Applications must be served on the Constitutional Law Division of the Ministry of the Attorney General of Ontario and the Regional Office of the Attorney General of Canada at Toronto or the office of the Attorney General of Canada at Ottawa and the office of the prosecutor having carriage of the proceedings;
Continue reading “Pre-trials: Charter Remedies”

Patrick J Ducharme

Section 52(1) of the Constitution Act, 1982, provides:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
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Patrick Ducharme

On a Charter application, the applicant bears the legal burden of establishing a breach of a constitutional right on the civil standard of a balance of probabilities. On occasion the legal burden of proof will shift, for example, where the applicant alleges a breach of section 8 and it is established that the search in question was without warrant. Once established, there is a presumption of illegality and the burden shifts to the prosecution to establish the reasonableness of the search, despite the fact it was conducted without the authority of a judicial officer via the issuance of a search warrant.

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Patrick Ducharme

At the start of any proceeding, it is common practice to make a request for exclusion of witnesses. Our courts have determined that the circumstances justifying the refusal of such an order “will be very far and few between.”1
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Patrick J Ducharme

Before defence counsel may withdraw, he or she requires the permission of the court. A formal application must be brought to the court seeking leave to withdraw.
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Patrick Ducharme

Once counsel is “on the record” as the official legal representative of the accused, an order of the court must be obtained to be removed or to withdraw as counsel for the accused. Rule 25 deals with applications of this type. The accused may consent in writing to the order sought and a draft order may be prepared in advance.
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