Ineffective trial counsel may unnecessarily complicate the facts of a trial by attempting to focus on every minute detail. Effective trial counsel, instead, understand the overall case in a way that permits counsel to focus on only the most important facts. This amounts to seeing the proverbial forest, despite its number of trees. The big picture is, in fact, the overall picture. It requires the development of an overall theory of one’s case. It amounts to your client’s story. Reduced to its most basic element, trial advocacy is the ability to effectively tell your client’s story. The story should lead to the ability to say at the end of the trial, “If you accept this version of events, then you must decide in our favour.” When the story is complete, when all the evidence has been heard, the end result should be victory. Continue reading “Game Plan: The Theory of Your Case”
Presumption of Innocence
The presumption of innocence means that the accused person does not have to testify, present evidence, or, prove anything. If the prosecution fails to prove guilt beyond a reasonable doubt the accused must be found not guilty. In other words, the innocence of the accused remains unless and until the prosecutor satisfies the court beyond a reasonable doubt that the accused is guilty. The presumption of innocence has been defined as a test requiring proof much closer to absolute certainty than probability.
Criminal Trials – fiction vs reality
Television programs and movies portraying trial lawyers at work invariably focus on the most entertaining aspect of trial advocacy. They condense into one or two hours the work of the trial lawyer before a Judge or a Judge and jury confronting a witness or presenting an interesting, witty, insightful argument. They tend to focus much less attention on the tedious and demanding preparation required to conduct a skillful crossexamination or a persuasive argument. But, the foundation of every effective cross-examination or oral presentation is thorough preparation- preparation that includes thinking and re-thinking the best methods and best words to use for the specific case.
Classification of Offences
Offences are classified by statute either as indictable or summary conviction, or offences that may be prosecuted either by indictment or summary conviction at the election of the prosecutor. Our laws also include offences that are classified as strict liability offences or absolute liability offences. Most provincial offences are classified as strict or absolute liability offences.
Continue reading “Classification of Offences”
Summary of Procedural Points
If the accused, other than an organization, is charged with an indictable offence, the accused must appear personally in accordance with section 650. This section provides the court with the power to permit the accused to be absent from the proceedings during various times. Except for a specific order, however, the accused is expected to be present. Provision is also made in subsection (1.1) for appearance by counsel or via closed circuit television or similar means. An accused may appoint counsel to represent the accused for any proceedings under the Code by filing a designation with the court. Provided a designation is filed the accused may appear by the designated counsel without being present for any part of the proceedings, other than:
a. a part during which oral evidence of a witness is taken,
b. a part during which jurors are being selected, and
c. an application for a writ of habeas corpus.
Continue reading “Summary of Procedural Points”
A View from the Bench
The Court of Appeal for Ontario has held that trial judges have the power to manage a criminal trial.1 Two years later the Supreme Court of Canada wrote, “for our Justice system to operate, trial judges must have some ability to control the course of proceedings before them.”2 These comments may be part of an ever-increasing sense of frustration, if not despair, festering within the psyche of trial judges throughout this country.
Continue reading “A View from the Bench”
Jurisdiction of Judges
Our judges exercise province-wide jurisdiction. It is quite common for a Judge who normally presides in Essex County to travel to another county such as Chatham-Kent to conduct a trial there. In other words, our judges are mobile. In recent years, these county jurisdictions have been categorized by region. Several county jurisdictions make up a region. A senior administrative Judge, appointed for that purpose, in a particular region, assigns the judges in that region to hear cases within the region.
Continue reading “Jurisdiction of Judges”
The Trial Judge’s Role
Generally, in the absence of evidence raising serious concerns about the necessity or reliability of a statement or conduct, the utterances and conduct claimed to be admissible under this exception are admissible before the jury to be decided pursuant to the 3-step Carter procedure. Because the co-conspirators’ rule is a recognized, valid exception to hearsay, necessity and reliability are presumed in the absence of exceptional circumstances. The question is: what amounts to exceptional circumstances?
Continue reading “The Trial Judge’s Role”
The Agreement
Prior to the Supreme Court of Canada’s decision in J.F.1 there were two schools of thought by which a person could be found responsible as a party to the offence of conspiracy. The first school was developed by the Court of Appeal for Ontario in McNamara2 and, Vucetic3 where the court embraced a more expansive view of party liability to conspiracy under section 21 of the Code that included aiding or abetting the furtherance of the conspiracy’s unlawful object not just aiding or abetting the agreement itself.
The “In Furtherance” Requirement
One of the prerequisites to admissibility of evidence under this exception is that the acts or declarations are performed in furtherance of the conspiracy or agreement. Chang referred to the “in furtherance requirement” as imbuing “co-conspirators’ declarations with res gestae type qualities.” It referred to “in furtherance declarations” as “the very acts by which the conspiracy is formulated or implemented and are made in the course of the commission of the offence.”1 They are part of the res gestae in the execution of the plan of the agreement.