Wednesday, July 23, 2014

What is reasonable doubt?

A reasonable doubt is not a doubt based on sympathy or prejudice; it is based on reason and common sense. It is logically connected to the evidence or absence of evidence. It does not require proof to an absolute certainty nor is it proof beyond any doubt. It is not proof beyond an imaginary or frivolous doubt. A determination that an accused "probably" had the requisite intent falls far short of proof beyond a reasonable doubt. (R. v. Lifchus, [1997] S.C.J. No. 77, paragraph 36)The reasonable doubt standard "falls much closer to absolute certainty than to proof on a balance of probabilities." (R. v. Starr, [2000] S.C.J. No. 40, paragraph 242)

Informer Privilege

R. v. Lucas, 2014 ONCA 561:

[53]    Informer privilege protects from revelation in court or in public any information that might tend to identify one who gives information related to criminal matters to the police in confidence. Its twin objectives are to protect the informer from possible retribution, and to encourage other potential informers to come forward. The Supreme Court has emphasized that the rationale for the informer privilege rule “requires a privilege which is extremely broad and powerful”:  Named Person, at paras. 16-18, 30.

[54]    There is a presumption that any proceeding that might reveal the identity of an informer will be held in camera. As the Supreme Court noted in R. v. Basi, at para. 44: “[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply” and “[n]o one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies”: R. v. Basi, at para. 44

Tuesday, July 22, 2014

Demeanour Evidence

R. v. Hubrich, 2004 CanLII 11370:

[22]        The appellant argued that the admission of post-arrestdemeanour evidence is per seimproper.  Mr. Coughlan relied in particular upon R. v. Sodhi (2003), 66 O.R. (3d) 640 (C.A.) at 662-4; R. v. Levert 2001 CanLII 8606 (ON CA), (2001), 159 C.C.C. (3d) 71 (Ont. C.A.) at 80-2; R. v. Baltrusaitis 2002 CanLII 36440 (ON CA), (2002), 162 C.C.C. (3d) 539 (Ont. C.A.) at 560-2;R. v. Bennett[2003] O.J. No. 3810 (C.A.) at para. 120-123, 143-5, 147;The Report of The Commission on Proceedings Involving Guy Paul Morin (1998), vol. 2, pages 1142-50.

[23]        In R. v. Levert, supra, a prosecution witness who was permitted at trial to express an opinion as to the accused's reaction when confronted with the complainant's allegations of sexual misconduct testified that he appeared "very, very calm" and "not on the defensive at all".  At page 81, on the subject of demeanourevidence, Rosenberg J.A. observed:

                        The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accused'sdemeanour was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanourevidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based ondemeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.

 

 

[24]        Other authorities too express the need for caution in reliance ondemeanour evidence:  R. v. Valentini et al. 1999 CanLII 1885 (ON CA), (1999), 132 C.C.C. (3d) 262 (Ont. C.A.) at 283-5; R. v. Clark[2004] O.J. No. 195 (C.A.) at para. 58-71.

[25]        The authorities, for the most part, view with suspicion "perceptions of guilt based ondemeanour" – a subjective interpretive process which can easily misassign meaning, often guilty responsibility, to equivocal conduct.  This is the classic overreach of much after-the-fact conduct proffered in criminal trials.


Witness Box in Iqaluit, Nunavut

Monday, July 21, 2014

Crown Prosecutor's Duty

R. v. Hurd, 2014 ONCA 554:

[32]       Crown prosecutors are advocates who are expected to act rigorously but fairly, persuasively but responsibly.  A criminal prosecution takes place within the parameters of an adversarial system.  As Moldaver J.A. emphasized in Clark, at para. 126, a murder prosecution is not a tea party: "both sides [are] entitled to press their case and put their best foot forward."
[33]       On the other hand, as noted by this court in R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at p. 638, Crown counsels' role is unique given their role as "ministers of justice".  Rand J. described the role, as far back as 1954, in R. v. Boucher, [1955] S.C.R. 16, at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[34]       While these principles are easy to state, Crown counsel's dual role presents a certain tension and the application of the principles sometimes proves challenging.  Nonetheless, Crown counsel must never part company with fairness and integrity.  The fundamental question to be answered in each case is: has the accused been deprived of a fair trial?

Saturday, July 19, 2014

Police must facilitate access to counsel promptly on detention

R. v. Taylor, 2014 SCC 50:

[24]                          The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel.  The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity.  The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)).  Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[25]                          This means that to give effect to the right to counsel, the police must inform detainees of their s. 10 (b) rights andfacilitate access to those rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).

[26]                          Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269). 

[27]                          The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have provided his own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10 (b).  The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

[28]                          But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated.  While s. 10 (b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the firstreasonable opportunity.