When Conspiracy Involves Only Two Persons

The Court of Appeal for Ontario was required to consider a two-person conspiracy to traffic in cocaine in the case of Bogiatzis.1 This case highlights the unique difficulties that occur when the court is dealing with just a two-person conspiracy. The prosecution’s case was dependent upon a series of meetings between two Crown witnesses. The accused was present for two of these meetings.

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The Co-Conspirators’ Exception to the Hearsay Rule

The co-conspirators’ exception to the hearsay rule is, from a defence lawyer’s perspective, the legal version of an improvised explosive device. It is a roadside bomb: extremely diverse, difficult to defend against and intended to heap significant volumes of otherwise inadmissible evidence upon the accused awaiting his explanation. It places the accused on the defensive. Evidence is presented that is not challenged or scrutinized by cross-examination, the most effective means of testing credibility and reliability. It may be false or contrived or delivered for reasons best known to the declarant or actor, but in their absence. Nevertheless, it begs a response. And, in that response, the accused is placed in the unenviable position of answering the question, “When did you stop beating your wife?” Sometimes no answer will suffice.
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The right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence. The right of cross-examination is protected by section 7 and subsection 11(d) of the Charter and must be jealously protected and broadly construed. A question can be put to a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question. It is not uncommon for counsel to believe in a state of affairs based on information received from his client or others, without having specific proof by way of evidence. As long as counsel has a good faith basis to believe in that particular state of affairs, cross-examination based upon the belief is appropriate.
A “good faith” basis is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. The information may fall short of admissible evidence and may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of a reasonable inference, experience or intuition, and, there is no requirement of an evidentiary foundation for every factual suggestion put to a witness in cross-examination.
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The Method and Order of Presentation of Evidence

The prosecution and the defence each have a chance to present evidence. The prosecution goes first. The prosecution has to prove the charge(s). The defence is not required to prove innocence. The defence is not required to prove anything except in rare specific instances clearly spelled out in the Code. Because accused persons are not required to prove their innocence they are not obliged to testify or to present evidence. Instead, the prosecutor is required to prove each essential element of an offence beyond a reasonable doubt.
After the prosecutor delivers her opening address to the jury, the prosecutor will call witnesses. The prosecutor may also file documents or items of evidence as exhibits. Facts that are admitted pursuant to section 655 of the Criminal Code by the defence may also be considered part of the prosecutor’s case. Such an admission disposes of the necessity of proof of that which is admitted by the defence.
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Law of Evidence

The law of procedure is closely linked to the law of evidence. Subsection 723(5) of the Code, for example, provides that hearsay evidence is admissible at sentencing proceedings. In order to know the differences in the procedure from trial to sentencing, it is necessary to know the rules of evidence in order to correctly apply the rules of procedure. At trial, hearsay evidence is generally not admissible and at sentencing hearsay evidence is admissible. There are three main sources of the rules of evidence. The primary source is the common law. Judges “make” or pronounce much of the law of evidence. Statutes create some of the rules of evidence. For example, some of the rules concerning the competence of certain persons to be witnesses and the admissibility of some classes of evidence such as business records can be found in the Canada Evidence Act. Lastly, evidentiary rules are impacted by Charter decisions. The laws of evidence relate to the information a court will receive and consider in making its decisions.
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Inspecting Places and Things

It is often helpful to view the place where an offence is alleged to have occurred or to inspect items of real evidence that may be entered into evidence. In preparation for a murder trial, not too long ago, the defence lawyer had a videotape prepared from inside the house in which the killing took place. The victim had feared for her life for several months prior to her death. She had boarded up all the windows with plywood and drawn all the drapes.

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Applying for Particulars

Section 587 of the Code gives the trial Court authority to order the Crown to furnish particulars where it is satisfied that particulars are necessary for an accused to receive a fair trial. Where a particular is delivered pursuant to section 587, a copy of the particular is given without charge to the accused or her counsel and it is entered in the record and the trial proceeds in all respects as if the information or indictment has been amended to conform with the particular. While the matters described in subsection 587(1)(a) to (g) may be the subject of an order for particulars, these are not exhaustive of what might be ordered. Thus, the true function of particulars is to give further information to the accused of that which the prosecution intends to prove so that she may have a fair trial.

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