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Trials Archives

Un conjoint peut-il témoigner contre moi dans un procès?

Le privilège relatif aux conjoints, la doctrine juridique qui interdit à un conjoint de témoigner contre son partenaire, remonte au 19e siècle. Ce «privilège» existait en common law et a été codifié et reconnu sous la règle de l'inhabilité à témoigner. Les conjoints ne pouvaient pas témoigner contre leur partenaire, même s'ils le voulaient.

S.11(b) during a judge's deliberation period

In 2016, the Supreme Court of Canada in R. v. Jordan completely changed the landscape of s.11(b) of the Charter of Rights and Freedoms which holds that any person who is charged with an offence has the right to be tried within a reasonable time. The SCC set out a new framework to overcome what the Court felt was a culture of complacency that had grown in the criminal justice system, causing excessive delays. The Court established ceilings for matters proceeding in the Ontario Court of Justice (18 months) and the Superior Court of Justice (30 months), after which a matter is presumptively unreasonable.

Beyond a Reasonable Doubt

As most people - within the criminal justice system or not - are aware, one of the cornerstones of our system is that an individual is presumed innocent unless their guilt has been established beyond a reasonable doubt. But what may be less clear for most people is, what does "beyond a reasonable doubt" mean? It's not a term that you can just simply look up in the dictionary. And while people may think they know what it means, it is a legal term that has significant consequence for accused persons.

R v Chouhan - How Do We Get an Appropriate Jury

On September 19, 2019, the Criminal Code was amended by Bill C-75 which made several changes, including changes to how juries should be constituted. The changes to jury selection were that peremptory challenges no longer exist; and that the decision on challenges for cause are now decided by the trial judge, as opposed to jury members. These issues were challenged in the Courts shortly after the law changed, and on January 23rd, 2020, the Court of Appeal for Ontario released their decision in R v Chouhan, which addressed these two issues.

Genetic Genealogy and Police Investigations

Genetic genealogy is a tool that has people uploading their DNA to databases so that they can find long lost relatives and make new connections. What has been making the news more recently is the fact that some public databases cooperate with law enforcement agencies to give those agencies a new investigative technique that has led to dozens of arrests, and which brings a host of new legal issues.

Choosing a Trial

After you have been arrested you will receive a date to appear in court.  The first thing that will happen is that you will receive a copy of the "disclosure".  This is all of the evidence that the police have gathered against you.  Once you have reviewed all of the disclosure with your lawyer you will then need to decide whether to plead guilty or set a trial date.  In most cases, the trial will take place in provincial court and will be set anywhere from about 8 to 18 months into the future depending on the length of the trial and the complexity of the issues.  However, in some more serious cases, such as a sexual assault, you will be able to choose the court where the trial will take place.  You can choose to have the trial in provincial court, superior court to be tried by judge alone or superior court to be tried by judge and jury.  If the trial in the superior court you will also having the option of a preliminary inquiry which is held in provincial court.  At a preliminary inquiry your lawyer will have the ability to cross-examine some or all of the witnesses to test their evidence in preparation for trial.  Which venue is best in a particular case is dependent on a number of factors and is a topic which should be explored in detail with your lawyer.

The Right to a Trial in the Official Language of You Choice

If you have been charged with a criminal offence, the Criminal Code of Canada allows you to proceed to trial in the official language of your choice (s. 530(1)). This right guarantees an accused person the right to have a trial in the French language or the English language and the proceedings would include a prosecutor and a judge (and jury if applicable) who can speak the official language of choice. The Criminal Code also allows for bilingual trials. For example, it is possible to have some witnesses testify in English while others testify in French.

Expert Evidence

Last week, the Ontario of Appeal heard the appeal of the Christy Natsis case. You may recall the Natsis trial a few years ago: a Pembroke dentist who was charged with impaired driving and driving with over 80 milligrams of alcohol in her system. Ultimately, after 55 days of trial, the trial judge excluded the breath readings because of violations of Ms. Natsis's rights, but convicted her of impaired driving causing death, largely on the expert testimony of the Ontario Provincial Police reconstructionists. The main issue on appeal is whether the trial judge properly allowed the police officers to testify as an expert and provide opinion evidence on the nature of the accident.

Be Careful what you post on social media

The use of social media is essentially ubiquitous with living in the today's society - everyone does it in one form or another. Whether it be Facebook, Twitter, Snapchat, Instagram, LinkedIn, or any of the multitude of texting apps, it is like you use some form of social media on a daily basis. This widespread use of social media can often prove quite valuable in a court of law. Since so much of what we do each day is recorded in some way, it provides ample information for the prosecution to use to try and seek a conviction.

Disclosure: What does that even mean?

You are charged with a criminal offence, such as a domestic assault. You are released from the police station, given a date to appear in court and told that if you fail to appear in court, you could be subject to a bench warrant. But really what you are not told is about the next steps in the process and what to expect from this whole process. One of the most important steps after you have been released from custody is to receive the disclosure in your matter. Your disclosure is essentially the evidence gathered by the police to support the laying of the charges against you. It may involve written witness statements, police notes, photographs, video statements, video surveillance, or anything else that the police gathered during the course of their investigation.

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