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Hearsay Evidence – Learn the facts.

What is Hearsay Evidence?

I am sure that most people have heard the term “hearsay” when it comes to evidence.  Television shows, including Suits, makes hearsay a household term, but what does it mean?

Hearsay is an out of court statement that is offered to prove the truth of its contents.  The key to this definition is that hearsay, is a statement made “outside of court”.  This includes implied statements, which can be any assertion revealed through actions instead of words.  This occurs when an action is meant to communicate a message.  An example of that may be someone making a gesture implying physical violence or threat, or someone nodding their head to signal “yes” or “no”.

Recognizing Hearsay

Hearsay is meant to be excluded as evidence due to the fundamental concern that hearsay evidence cannot be tested for the truth of its contents.  Our adversarial system rests upon calling witnesses who can give evidence under oath.  This way they can be observed to analyze their demeanour and can be subject to cross-examination.  Statements made out of court simply cannot be tested.  In R v Starr, Justice Iacobucci accepted the following explanation for hearsay evidence:

“Hearsay statements are excluded from evidence in trials because of the difficulty of testing their reliability.  If a person who actually observed a fact is not in court, but a statement he made to someone is introduced in evidence, there is no way of inquiring into a person’s perception, memory, narration or sincerity.  His statement about the fact might be false because he misperceived it or did not remember it correctly, or he may have misled the person to whom it was made because he used words not commonly used, or he may have lied about it.  These factors, which determine the reliability of his statement, can only be tested if he is in the courtroom and subject to cross examination (R v Starr).”

Consider this following example to illustrate the need for cross examination:

Say for example someone is being prosecuted for drunk driving.  Bob, a witness, states that the passenger of the car driven by the allegedly drunk driver, said that the driver was drinking and was drunk.  The problem with this statement is that Bob is giving evidence of a statement that was made out of court for the truth of its contents; therefore, resulting in a hearsay statement.

Think of the importance of cross examination: a skilled lawyer would attack the validity of this statement by asking questions such as; What did you observe the accused drinking? How did you know that it was alcohol? Over what period of time did you see the accused drinking the alcohol? Why did you conclude that the accused was drunk.  Therefore, without this witness being able to testify.

Ask the Professionals

Are you unsure about hearsay statements? Are you concerned that someone is trying to use a hearsay statement against you?  Know your rights and trust the experienced professionals at Smordin Law.  We carefully analyze and dissect every statement made against you to be sure that your rights are not violated.  If you have any questions or concerns, call Smordin Law for your free consultation.

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Confession Rule Reinstated – Get the Facts.

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Getting a Confession.

When a person is arrested, a police officer must inform the accused of their right to silence and right against self-incrimination. There is an interplay between Sections  under sections 7, 10(b) and 11(c) and 13 of the Charter of Rights and Freedoms.  The Charter does not explicitly articulate the right to silence. However, the Supreme Court has found that the right to remain silent is protected as a principle of fundamental justice.

Unlike what is normally on American television, in Canada, the arrest caution is more complex and varies from province to province.  The following is a typical example of a caution;

You are under arrest for (charges listed), do you understand?

You have the right to retain and instruct counsel without delay.

We will provide you with a toll-free telephone number lawyer referral service, if you do not have your own lawyer.

Anything you say can be used in court as evidence.

Do you understand? Would you like to speak to a lawyer?

Following an accused’s caution, police interview the accused, hoping to obtain a confession.  Police have the right to ask an accused questions, even if they request to speak with their lawyer.  The common-law has developed throughout the years to protect the rights of an accused.

Prior to 2000, the Canadian confessions rule was as follows: the Crown must prove beyond a reasonable doubt that the accused provided a statement to someone of authority voluntarily before it could be used against the accused at trial (Ibrahim v R, [1914] AC 599, (1914) 24 Cox CC 174).

It is important to note that a person of “authority” is based on the subjective belief that the accused was making a confession to a person involved in the criminal law process.

Ibrahim noted that a statement is involuntary when; (1) it was obtained by means of inducements; (2) it was not the product of the accused’s operating mind; (3) it was obtained by oppressive conduct by the police; or (4) it was obtained by a police trick that would shock the conscious of Canadians.

In R v Oickle, 2000 SCC 38, [2000] 2 SCR 3, the Supreme Court of Canada restated the confessions rule on a principled approach. The principled approach is based on the premise that evidence is both reliable and necessary to the hearing.  In this case, the accused was charged with several counts of arson and while being questioned, made two detailed statements to the police describing his involvement in the fires. The methods used by the police were not in question and the trial judge found that the statements were made voluntarily. The statements were admitted for the trial and Oickle was convicted. On appeal, the Nova Scotia Court of Appeal found that there were several factors that, when taking singly or in combination, made the statement involuntary. Pugsley J. and Cromwell J. found that these factors fell under inducement and oppression under the common law rule.

The Supreme Court of Canada allowed the Crown’s appeal and restored the conviction. The court reformulated the confessions rule by using the principled approach from the common law rules of evidence. Iacobucci J. did not reject the four parts of common law confessions rule listed above; he confirmed that a threat or promise, an atmosphere of oppression, a failure of the operating mind, or an unacceptable police trick could make a statement involuntary. Iacobucci J. states that the first three branches of the rule should not be considered in isolation of one another. By using the principled approach, a trial judge should analyze the complete context of the confession and consider all the branches of the rule. Iacobucci states:

Court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation … On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary (Oickle at para 71).

How we can help

Have you been charged with a crime and are unsure if your rights have been violated? Have you given a confession or spoken to police about the crime that you have been arrested for? If so, please contact the lawyers at Smordin Law and we can help evaluate if the police took the proper steps in advising you of your rights and review the circumstances under which you spoke to the police.

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Subpoena – Whats is it? Learn the facts.

What is a Subpoena?

A subpoena is an order made by the court compelling a person to appear at a specific time and place to give evidence.  Section 700(1) of the Criminal Code states that someone subpoenaed may be required to bring documents or other items in their possession to court.  Section 700(2) states that “a person who is served with a subpoena under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial judge”.

Who Can Serve Subpoenas?

Section 701 of the Criminal Code outlines the service of subpoenas.  Service is made by a peace officer if the witness is inside the province where the court proceedings will take place.  This section requires that service of the subpoena(s) be made personally.  If the person cannot be found, the subpoena may be left at the person’s last known address with someone who appears to be at least 16 years of age (ss. 701(1) and 509(2)).  If the person subpoenaed lives within Canada but outside of the province, a subpoena is issued under s. 699(2)(b).  This also must be served personally.

What if the Witness Refuses to Answer Questions?

As stated above, a subpoena requires that the witness attend court at a specific time and place until the person is excused by the court.  When a witness attends court but refuses to be sworn, produce evidence, or documents, the witness may be subject to penalties.  At a preliminary hearing, such a witness may be imprisoned for up to eight days, following which the witness may again be imprisoned for eight days for again failing to comply (s. 703).  At trial, if a witness fails to answer questions or produce evidence when ordered by a subpoena, they may be sanctioned under ss.9-10 of the Criminal Code for contempt of court.

Can a Subpoena be Quashed?

A motion may be brought to quash a subpoena by defence counsel, the Crown, or by the witness.  The onus is on the party that initiated the subpoena to show why the witness is likely to give relevant evidence.  The Superior Court of Justice has inherent jurisdiction to supervise the lower courts.  During a trial, the presiding judge may hear a motion to excuse a witness on the basis that the witness does not have relevant evidence to present.

Generally, a motion to quash is based on a witness not being likely to give relevant evidence, however, there are other grounds to have a witness excused.  Examples of being subpoena being quashed are if: 1) the subpoena amounts to an abuse of process; 2) the witness is not compellable; 3) the evidence is privileged; 4) the proceedings are without jurisdiction; and 5) the subpoena would give rise to a violation of the Charter of Rights and Freedoms.

Material Witness Warrants

A material witness warrant is issued when a subpoena alone is not enough to compel a witness to court.  When it is shown that a witness will not attend court through subpoena alone, police are given the power to arrest a person that has material evidence to present in court.

There are three types of material witness warrants.  First, the same court that has the authority to issue a subpoena may issue a material witness warrant.  When such a warrant is issued by a provincial judge, the warrant is effective throughout the province.  When the warrant is issued by a Superior Court judge of an Appellate Court, it is effective throughout Canada.  Second, when an accused is at the end of a preliminary inquiry and enters into a recognizance to give evidence at trial and is shown to have absconded, the court may issue a material witness warrant.  Last, when a witness that has already been subpoenaed, but fails to appear or who appears but fails to re-attend court, may be the subject of a material witness warrant.

Smordin Law Can Help

Have you been subpoenaed? Do you have questions about the criminal law process? If so, contact the expert legal team at Smordin Law.  We are here for all your needs and legal services.

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Delay – The new 11B Argument.

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Delay – The New Framework to be Tried within a Reasonable Time

R v Jordan and section 11(b) of the Charter of Rights and Freedoms

What is Section 11(b) of the Charter of Rights and Freedoms?

Section 11(b) of the Charter of Rights and Freedoms states that “any person charged with an offence has the right to be tried within a reasonable time”.  This section provides the right to what is often known as a speedy trial.

The Old Framework for a Section 11(b) Challenge

Prior to the Supreme Court of Canada’s decision in R v Jordan, 2016 SCC 27, the framework established to be tried within a reasonable time was established in R v Morin, [1992] 1 SCR 771.  The Morin framework required the courts to balance four factors to determine if a breach of section 11(b) of the Charter of Rights and Freedoms occurred: 1) the length of the delay; 2) defence waiver; 3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional deal, and other reasons for delay; and 4) prejudice against the accused’s interests in liberty, security of the person, and a fair trial.

According to the Supreme Court of Canada, in R v Jordan, the Morin framework suffers from a number of doctrinal shortcomings.  The major problem with the Morin framework is its unpredictability.  It has been interpreted to permit endless flexibility.  This makes it difficult to assess when an actual breach has occurred.  Determining whether a breach occurred led to complex applications that placed a burden on the legal system.

Another issue with the Morin framework is the determination of whether the accused suffered from prejudice.  The treatment of prejudice by the courts has become confusing, leaving courts to determine whether prejudice is actual or inferred.  According to the majority in Jordan, prejudice using the Morin test may not be easy to distinguish.

The new framework is simplified and rather establishes presumptive ceilings for unreasonable delay – to the exception of defence delays, between the time that charges are laid and trial.

The new ceilings are 18 months for charges going to trial in provincial court, and 30 months for charges going to superior court (Jordan, at para 49).  At para 105, under the heading, “Concluding Comments on the New Framework”, summarize the 11(b) framework as follows:

There is a ceiling beyond which delay becomes presumptively unreasonable.  The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.  Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.  If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted.  If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

 

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable.  To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.

The majority justifies this new framework by describing the problems with the test applied in Morin explained above.

Below, is a quick review of the new procedure used for analysing a section 11(b) issue:

(A) Is an unreasonable delay inquiry justified?

(B) What is a reasonable time for the disposition of a case like this one?

(1) Institutional delay

(2) The inherent time requirements of the case

(3) Conclusion on objectively reasonable time requirements

(C) How much of the delay that actually occurred counts against the state?

(1) Delay attributable to the accused

(2) Extraordinary and unavoidable delays that should not count against the state

(D) Was the delay that counts against the state unreasonable?

(1) Can the delay beyond what would have been reasonable be justified?

(2) The role of prejudice in the analysis

(3) Extraordinary reasons for the delay

(4) Are there especially strong societal interests in the prosecution on the merits of the case?

 

It is noteworthy to mention that delay below the presumptive ceiling may still be considered a breach of s. 11(b), however, the accused bears the onus to prove that the delay was unreasonable.  In this situation, the accused must show that; 1) meaningful steps were taken by the accused to demonstrate a sustained effort to expedite the proceedings; and 2) the case took longer that it should have in a reasonable situation.

The Supreme Court of Canada also clarified that the proper remedy for a breach of 11(b) is a stay of proceedings.  Although the court did not directly comment on a stay of proceedings as the proper remedy, the court determined in this case that it is the appropriate.

R v Jordan is an important decision for all members of the criminal justice system.  The new framework puts pressure on all actors, including, Crown counsel, defence counsel and the court system as a whole.  Although constitutional challenges will continue to surround 11(b) of the Charter, for now, delay must remain below the presumptive ceiling detailed within this new framework.

We Can Help

Having a thorough understanding of the law is critical to a successful defence.  At Smordin Law, we are experienced and know your rights.  Do not let a delay prejudice your case.  One example of how delay can impact you personally is being kept on bail for an unnecessarily long time. If you are experiencing an unnecessary wait with a legal matter, contact the experts at Smordin Law for a free consultation.

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