Table of Contents. Table of Cases... TC-1 Introduction...INT-1 CHAPTER 1

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1 Table of Contents Table of Cases... TC-1 Introduction...INT-1 CHAPTER 1 Commission of the Alleged Offence Contents i 1.1 Overview Statutory Interpretation Overview How to: An Approach to Statutory Interpretation Definition Sections General Rules of Statutory Interpretation in Criminal Matters (A) Principle of Legality (B) Strict Construction Sections 8 and 9 of the Criminal Code (A) No Common Law or Non-Canadian Offences (B) Common Law Justifications, Excuses or Defences s. 8(3) Constitutional Compliance Does the Section Comply? What are the Applicable Rules of Evidence and Procedure? Looking Forward and Looking Back Transitional Rules (A) Changing the Rules (B) Interpretive Presumptions (C) Applying the Interpretive Presumptions Elements of the Offence: The Act and Fault Requirements Overview What Must be Proven? (A) Overview (B) Basic Principles of Criminal Liability (C) Why Require an Act? (D) Why Require Fault? The Act (A) An Act (a) Possession (b) Consent (B) Omissions CONTS-1 (Criminal Practice) (2015 Rel. 5)

2 (a) Overview (b) Where is the Duty? (c) Canadian Examples (d) Nature of the Duty under ss. 216 and (e) Reciprocal Duty (f) Necessaries of Life s (C) By a Person of Capacity (D) Voluntary (E) Causation (a) How to: Approach a Causation Issue (b) General Principles (c) Murder: A Different Test? (d) Constitutional Considerations The Fault Element (A) Overview (B) Summarizing the Fault Requirement (C) How to: Identify the Fault Element: For Regulatory (Not Code or CDSA) Offences (D) How to: Identify the Fault Element for Criminal and CDSA Offences (E) Outline of the Degrees of Fault (a) Overview (b) Intention (c) Knowledge (d) Wilful Blindness (e) Recklessness (f) Criminal Negligence (g) Predicate Offences Mistakes of Fact and Law (A) Overview (B) Mistake of Fact or Mistake of Law? (C) Mistake of Fact (a) Ignorance vs. Mistake (b) How do They Operate? (c) Are They Relevant? (d) Subjective vs. Objective (e) Who Proves the Mistaken Belief? (f) How Mistaken Must the Belief Be? (D) Problem Area: Assault/Sexual Assault (a) Overview (b) How to: Code s. 265(4) Mistaken Belief in Consent (c) Restriction on Mistaken Belief Defence: Sexual Assault Cases CONTS-2

3 (d) Fraud Vitiating Consent to Sexual Activity ss. 265(3)(c) and 273(1) (e) Defence of Consent in Cases of Assault Causing Bodily Harm (E) Mistake of Law (a) General Rule: Section (b) Statutory Exceptions (c) Officially Induced Error The Scope of Criminal Liability How can a Person be Criminally Responsible? (A) Overview (B) Principal or Party (a) Overview (b) Liability as a Party: Is Being There Enough? (c) The Innocent Agent: It s Not My Dog! (d) Does the Accused Need to Know What Offence the Principal is Committing? (e) Voluntary Intoxication: Does It Have an Expanded (f) Application Under s. 21(1)? Can the Party be Convicted of a More Serious Offence Than the Principal? (g) Corporate Party Liability (h) Can a Person Be a Party to a Conspiracy? (i) Co-Principals (j) Separate Charges: Principal or Party (k) The Defence of Duress for Parties to Murder (C) Section 21(1)(b) Aiding: Highlights (D) Section 21(1)(c) Abetting: Highlights (E) Section 21(2) Intention in Common (a) Approach to Applying s. 21(2) (b) Charter Concerns (F) Counselling Section (G) Accessory After the Fact Section (H) Section 23.1 Liability Where One Party Cannot be Convicted (I) Conspiracy (a) Overview (b) Elements of the Offence (c) Proving the Conspiracy (J) Criminal Organization s What Can an Accused be Convicted Of? (A) Overview (B) Included Offences CONTS-3 (Criminal Practice) (2015 Rel. 9)

4 (a) Overview (b) Principles (C) Attempts (a) Overview (b) Attempt vs. Mere Preparation (c) Attempting the Impossible (d) Specific Intent Offence (D) Section 606(4) Offence Arising Out of the Same Transaction (E) Rule Against Inconsistent Verdicts (F) Rule Against Multiple Convictions Justifications, Excuses and Defences: An Overview Overview Section 8(3) How to: Raise a Justification, Excuse or Defence Air of Reality Selected Justifications, Excuses and Defences Overview Abuse of Process (A) Overview (B) How to: Raise Abuse of Process Alibi (A) Overview (B) The Principles (C) How to: Raise an Alibi Colour of Right Consent/Mistaken Belief in Consent Duress (A) Overview (B) The Principles (from the Key Cases) (a) Common Law (b) Code ss. 17 and (C) How to: Raising Duress Entrapment (A) Overview (B) Summary of the Principles (C) Distinction between Investigation and Opportunity (D) Random Virtue Testing (E) Mr. Big Operations and the Threat of Entrapment (F) How to: Raise Entrapment Judicial Stays Necessity CONTS-4

5 (A) Overview (B) The Principles (C) The Requirements (D) How to: Advancing Necessity Provocation (A) Overview (B) The Principles (a) Overview (b) Requirements (c) (d) Objective and Subjective Elements The Objective Element: How Ordinary is the Ordinary Person? (e) Subjective Element (C) How to: Raising Provocation Self Defence (A) Overview (B) How to: Approach the Various Provisions (C) How to: Raise the Defence of Self-Defence and Defence of Property (D) Selected Provisions (a) Section 34(1) (b) Section 34(2) (c) Section (d) Section (e) Section 39(1) (f) Section (g) Section Private Use Exception Questions of Capacity Age, Automatism, Mental Disorder, Intoxication Overview Age (A) Overview (B) What is the Age of Criminal Responsibility? (C) Practice Issues Distinguishing Automatism and Mental Disorder (A) Overview (B) How Do They Operate? (C) Procedural Differences: Are There Any? (D) Legal Effect Automatism (A) Overview (B) Principles CONTS-5 (Criminal Practice) (2015 Rel. 8)

6 (a) Definition (b) Test (c) What About Intoxication? (d) What about sleepwalking (C) Legal Effect (D) How to: Raise the Automatism Issue Mental Disorder (A) Overview (B) Assessment Orders (a) Overview (b) Practice Points (C) Fitness to Stand Trial (a) Overview (b) Principles (c) How to: Determine Fitness (d) Summary of the Procedure at a Court or Review Board Disposition Hearing: s (D) Not Criminally Responsible (a) Overview (b) Principles: Advancing a s. 16 Defence (c) How to: Advance a s. 16 Defence (d) Practice Points (e) Summary of the Procedure at a Court or Review Board Disposition Hearing: s (f) Disposition Hearings Intoxication (A) Overview (B) Involuntary Intoxication (C) Voluntary Intoxication (D) Distinguishing Offences of General and Specific Intent (E) Voluntary Intoxication and Offences of General Intent (a) (b) Overview Section 33.1: The Legislative Response to R. v. Daviault (c) Summary (F) Voluntary Intoxication and Offences of Specific Intent (G) Practice Issues (H) How to: Advance the Intoxication Defence CONTS-6

7 CHAPTER 2 Investigation: Rights and Powers Contents... 2-i 2.1 Overview Rights of the Subject Overview Waiver, Consent and Cooperation (A) Overview (B) Cooperation (a) Cooperation Allowed, and Encouraged (b) Cooperation vs. Acquiescence or Compliance (c) Effect of Request by Authority Figure (C) Waiver and Consent (a) Overview (b) What is Required for an Effective Waiver of a Right? (c) Knowledge of the Consequences (d) Why Have a Stringent Waiver Test? (e) Degree of Awareness Required (f) Requirement of an Operating Mind (g) Consent Must be Related to the Purpose (h) Situations (i) Onus on the Crown (j) Consequences of an Ineffective Consent or Waiver (k) How to: Raise an Ineffective Waiver or Consent Right to be Informed Charter s. 10(a) (A) Overview (B) Principles (a) What is the Rationale for s. 10(a) of the Charter? (b) What Does the Section Require? (c) What Does the Word promptly Mean? (d) If the Reason for Arrest or Detention Changes, Do the Police Need to Provide Further Information Pursuant to s. 10(a) of the Charter? (e) What Approach Should be Taken to the Interpretation of s. 10(a) of the Charter? (f) What is the Relationship Between ss. 10(a) and (b) of the Charter? (g) If the s. 10(a) Right was Breached, Does It Matter That the Accused Waived or Exercised the s. 10(b) Right? (h) How to: Raise the s. 10(a) Charter Breach CONTS-7 (Criminal Practice) (2015 Rel. 9)

8 2.2.4 Right to Counsel Charter s. 10(b) (A) Overview (B) General Principles (C) Nature of the Duties under s. 10(b) (D) The Informational Duty (a) Generally (b) What Must be Provided? (c) Proving the Existence of Duty Counsel Services (d) (e) Waivers What if the Person Detained Indicates They Do Not Want to Hear About Their Rights, or Already Knows Their Rights? (f) What if the Person Detained Says, Not Right Now (g) Accused s Understanding (h) Substance over Form (i) Consequences of Informational Component Breach (E) The Implementational Duties (a) Generally (b) Duty to Hold Off (c) Reasonable Opportunity What Does It Mean? (d) Does Reasonable Opportunity Mean One Phone Call? (e) Is a Private Call Required? (f) (g) What are Compelling and Urgent Circumstances Which Would Relieve the Police of the Obligation to Hold Off? Accused Says He Does Not Want to Speak to the Police, or Was Told by His Lawyer Not to Say Anything (h) Onus of Proof (F) Practice Notes (G) What is the Procedure if the Detainee Cannot Afford a Lawyer, and Legal Aid is Unavailable? (H) Constitutional Right to Counsel: Is There One? (I) Situations (J) How to: Raise a s. 10(b) Charter Violation (K) Rowbotham Application (L) Fisher Applications and Counsel of Choice (M) Ineffective Representation (N) Withdrawal of Counsel Disclosure (A) Overview CONTS-8

9 (B) The Right to Disclosure (a) Generally (b) Duty on the Defence (c) Exceptions to Disclosure (d) How Does the Crown Exercise Its Discretion Not to Disclose? (C) How to: Obtain Disclosure (D) How to: Force Disclosure (Not O Connor or s ) (a) General Procedure (b) Two Possible Situations (c) What Material Can be Obtained? (d) What Material Cannot be Obtained? (e) Lost Evidence: Can There be a Breach of Charter s. 7? (E) Relevant Information in the Possession of a Third Party (a) Generally (b) How to: Bring an O Connor Application The Steps (c) The Test (F) Section (a) Overview (b) How to: Bring the Application (G) The Remedy (a) General Rule (b) What Type of Remedy is Available? (c) The Approach (d) Does the Conduct of Defence Counsel Affect the Remedy? Powers of the State Agent of the State/Reach of the Charter (A) Application of the Charter (B) Government Defined (C) Agent of the State (D) Extra Territorial Application of the Charter (E) Good Faith Right/Power to Detain (A) Overview (B) Approach (C) Detention When Has a Detention Occurred? (a) Meaning of Detention (b) Factors to Consider (c) Situations CONTS-9 (Criminal Practice) (2015 Rel. 9)

10 (D) Arbitrary Detention Charter s (a) Overview (b) Legal Authority to Detain (c) Statutory Authority to Detain (d) The Common Law Power to Detain (E) How to: Raise a Detention or Arbitrary Detention Issue Right/Power to Arrest Right/Power to Question (A) Overview (B) General Principle Power of Search or Seizure (A) Overview (B) The Section 8 Protection (a) The Scope (b) What is a Search or Seizure? (c) The Privacy Interest (C) The Section 8 Challenge An Approach (D) Preparing for the Section 8 Challenge (a) An Approach (b) Disclosure Issues (E) Prior Judicial Authorization (a) The Requirement (b) What Constitutes Reasonable and Probable Grounds to Believe (or Reasonable Grounds to Believe)? (F) Challenging the Prior Judicial Authorization/Warrant for the Search (a) The Grounds (b) What Does the Court Look for? (G) Challenging the Warrantless Search or Seizure (a) The Grounds (H) The Section 8 Challenge: Attacking a Search or Seizure on the Basis of its Execution (I) How to: Bringing the Section 8 Challenge (J) Other Challenges to Searches (K) Warrants: Searches with Prior Judicial Authorization (a) Overview (b) The Standard Warrant Code Section (c) The General Warrant Section (d) Forensic DNA Section (e) Bodily Impression Section (f) Tracking Warrant Section CONTS-10

11 (g) Dial Number Recorder Section (h) Proceeds of Crime Seize and Freeze in Part II.2 Sections and (i) Drugs CDSA (j) Firearms (k) Telewarrants Section (l) Section 256 Warrants (m) Law Offices (n) Feeney Warrants (L) Search Without Warrant (No Prior Judicial Authorization) (a) Consent (b) Search on Lawful Arrest (or Detention, such as Stop and Frisk) (c) Exigent Circumstances S or Common Law (d) Roadside Breath Tests (e) Plain View (M) Return of Seized Goods (N) Wiretaps/Invasion of Privacy (a) Overview (b) The Statutory Scheme (c) How to: Obtaining a Judicial Authorization to Intercept (d) How to: Challenging the Admissibility of Intercepted Communications (e) How to: Access the Sealed Packet Section CHAPTER 3 The Trial Process From Investigation to Trial Contents... 3-i 3.1 Overview When, Where and How? Overview Locating the Offence When Overview When Limitation Periods When The Charter (A) Overview (B) Section 11(b) (a) The Principles (b) Prerequisites CONTS-11 (Criminal Practice) (2015 Rel. 9)

12 (c) The Purpose of S. 11(b) (from R. v. Morin) (d) The Test (e) The Factors Considered (C) How to: Bring an Application to Stay Proceedings for Unreasonable Delay (a) Timing (b) Burden of Proof (c) Procedure Where Will It Be Tried? Territorial Jurisdiction (A) Overview (B) Change of Venue In Which Court Will It Be Tried? (A) Overview (B) Age Determination (C) The Offences Their Classification (D) Rights of Election (a) Crown Election (b) Election by the Accused (c) Re-elections (E) Language of Accused Bail and Bail Review Overview Bail Applications (A) Overview (B) The Procedure A Summary (C) Bail for Offences Under s The Bail Review Application (A) Overview (B) The Principles (C) How to: The Bail Review Application Young Offenders (D) How to: The Bail Review Application Adults (E) How to: The Bail Review Application S. 469 Offences (F) How to: Review Applications Under S (G) How to: Automatic Reviews Under S Informations and Indictments Overview Form and Substance Requirements Challenging Informations or Indictments Particulars (A) Principles (B) Procedure Motion to Dismiss CONTS-12

13 3.4.6 Motion to Quash (A) Overview (B) The Golden Rule (R. v. Coˆte ) How to: Motion to Quash the Information or Indictment (A) When? (B) Procedure Amending Matters of Form and Substance (A) Overview (B) Approach to Amendment Issues (C) Test (D) How to Tell if the Accused is Prejudiced (E) The Crown Application to Amend in Conformity with the Evidence Pre-Trial Hearing Overview When the Pre-Trial is Held Preparing for the Pre-Trial Joinder and Severance: Counts and Accused Principles Interests of Justice (A) Overview (B) Multiple Counts (C) Multiple Accused How to: Apply for Severance (A) Practical Steps (B) The Rules How to: Try Matters Together Stays and Withdrawals Overview Withdrawal of Charges (A) Principles (B) Review of Crown Discretion to Withdraw (C) How to: Withdraw the Charge Stay of Proceedings by the Crown (A) Principles (B) Review of Crown Decision (C) Stay and Abuse of Process How to: Enter a Stay Preliminary Inquiry Overview Purposes Powers of the Presiding Justice CONTS-13 (Criminal Practice) (2015 Rel. 9)

14 3.8.4 Test for Committal Challenging the Committal Tactics Conduct of the Proceedings Failure to Attend Adjournments (A) Overview (B) Principles (C) Adjournments for Unrepresented Accused (D) How to: Obtain an Adjournment (a) Practical Approach (b) Procedure Security Arrangements/Seating Arrangements/Presence Requirements Representation at Trial Unrepresented Accused The Trial Directed Verdict (or) No Evidence Motion Summary Conviction Proceedings (A) Overview (B) Provisions The Plea (A) Guilty Plea (B) Repudiation of Plea Agreement and the Charter Crown Reply Evidence Crown s Closing Address Reasons for Decision The Verdict Pretrial Motions Judicial Conduct Joint Accused: Issues Arising Overview Situations Jury Trials Jury Selection (A) Overview (B) The Challenge for Cause (a) Overview (b) The Nature and Scope of the Challenge for Cause (c) How to: Bringing the Challenge for Cause (C) Other Issues CONTS-14

15 (a) Peremptory Challenges (b) Crown Investigation into Potential Jurors (c) Jury Roll Jury Instruction What to Look For? Jury Trials Miscellaneous Issues (A) Jury Deliberations and Secrecy (B) Jury Questions (C) Judicial Inquiry in Jury Verdict (D) Order for Protection of Juror Identity (E) Judicial Opinion of Evidence Expressed to Jury and s. 11(f) of the Charter (F) Judicial Discharge of Jurors Miscellaneous Issues Defence Counsel s Removal From the Record Application to Take Evidence on Commission Release of Exhibits for Scientific Testing Conflict of Interest Sentencing CHAPTER 4 Evidence Contents... 4-i 4.1 The Framework Introducing Evidence: The Approach (A) Overview (B) The Approach Relevance, Materiality and Admissibility (A) Relevance (B) Materiality (C) Admissible: The Exclusionary Rules Overriding Judicial Discretion to Exclude (A) Overview (B) The Old Rule: R. v. Wray (C) The Evolution of the Judicial Discretion to Exclude under the Charter (D) Fair Trial Guarantee Procedure for Introducing Evidence Evidence: What is It? Proving the Case Overview CONTS-15 (Criminal Practice) (2015 Rel. 9)

16 4.2.2 Presumption of Innocence (A) Overview (B) Principles The Burden of Proof (A) Overview (B) Burden of Proof (C) Measuring the Legal Burden: The Standard of Proof (a) Overview (b) Reasonable Doubt (c) Balance of Probabilities (d) What is the Balance of Probabilities? (D) Satisfying the Legal Burden (E) Satisfying The Evidentiary Burden (F) Examples Presumptions (A) Overview (B) Presumptions Without Basic Facts (C) Presumptions With Basic Facts (a) Presumptions of Fact (b) Conclusive Presumptions of Law (c) Rebuttable Presumptions of Law Calling the Case Preliminary Matters (A) Excluding Witnesses (a) Overview (b) Where is the Power to Exclude? (B) Prohibiting Publication/Excluding the Public (a) Overview (b) Freedom of Expression and Publication Bans Order of the Proceedings (A) The Crown Case (a) Overview (b) Order of Witnesses (c) Duty to Call Evidence (d) Adverse Inference from Failure to Call Witnesses (e) General Duty and Conduct of Crown (B) The Defence Case (C) Reopening the Case (a) Overview (b) The Principles (D) Reply (a) Overview (b) The Principles CONTS-16

17 (E) Surrebuttal Witnesses Preliminary Matters Overview Competence and Compellability (A) Presumed Not Competent s. 4 CEA (a) The Accused s. 4(1) CEA (b) Husband or Wife of the Accused s. 4(1) CEA (B) Proved Not Competent s. 16 CEA (a) Overview (b) Procedure on the Inquiry (c) Test on the Inquiry (d) What Effect Does a Witness Mental Disorder Have? Privilege (A) Overview (B) Case by Case Privilege (a) Identifying the Privilege (b) Asserting the Privilege (C) Class Privileges: Solicitor - Client (a) Identifying the Privilege (b) Extensions of the Privilege (c) Limitations on the Privilege (d) What does innocence at stake mean? (e) Innocence at stake exception (f) Asserting the Privilege (D) Class Privilege: Marital Communications (a) Identifying the Privilege (b) Asserting the Privilege (E) Class Privilege: Police Informer Privilege (a) Identifying the Privilege (b) Asserting the Privilege (F) Class Privilege: Investigation Privilege (G) Class Privilege: Crown Privilege Public Interest Immunity (a) Overview (b) Identifying the Nature of the Immunity Compelling the Attendance of Witnesses (A) Overview (B) How to: Compel a Witness Attendance (C) How to: Issuing the Subpoena (D) How to: Serving the Subpoena (E) How to: Compelling the Prisoner/Witness to Attend (F) How to: Enforce the Subpoena CONTS-17 (Criminal Practice) (2015 Rel. 7)

18 (G) How to: Object to the Subpoena (a) What are the Grounds for Objection? (b) Where Should the Objection be Launched? (c) How Is an Objection Launched? Assisting the Witness Memory (A) Overview (B) Assisting Memory (C) Past Recollection Recorded (PRR) (D) Prior Transcripts (E) How to: Approach a Memory Assistance Situation (F) Special Situations: Videotape (a) Overview (b) Requirements (c) Summary of the Principles (d) The Meaning of Adopts (e) Meaning of Acts Complained Of (f) As a Matter of Law, Can Videotape Corroborate a Victim s Evidence at Trial? (g) Prior Acquaintance/Better Position Test (G) Post-hypnosis Testimony Alterations to the Right to Confront the Accuser (A) Overview (B) Requirements for 486(2.1) (C) Procedure Questioning Witnesses (A) Overview (B) Examination in Chief (a) Purpose (b) Can You Speak to the Witness After They Have Started Their EIC? (c) Rule Against Leading Questions (d) Exceptions to the Rule (e) Rule Against Impeaching Your Own Witness (f) Rule Against Oath Helping (C) Cross-examination (a) Purpose (b) Limitations (c) Situations: Unacceptable Inquiries (D) Re-examination (E) Judicial Power to Ask Questions (F) Collateral Facts: The Rule Impeaching the Witness Overview CONTS-18

19 4.5.2 Nature of Impeachment (A) Overview (B) Assessing Credibility Impeaching Their Witness (A) Overview (B) Rationality of the Evidence Itself (a) Consistency (b) Reasonableness (C) Proof by Other Witnesses (D) Prior (Inconsistent) Statements (a) Overview (b) Use of the Prior Inconsistent Statement (c) How to: Cross-examination on a Prior Inconsistent Statement (Generally) (d) Section 10 CEA (e) Section 11 CEA (f) How to: Cross-Examine on an Oral Statement (g) Transcripts (h) Bias, Interest or Corruption (E) Defects of Testimonial Capacity (F) Prior Criminal Record (G) Character Impeaching Your Own Witness Overview How to: Cross-examine Your Own Witness An Approach How to: Section 9(2) CEA Application (A) Prerequisites to Use (B) Leave Required Procedure Under 9(2) CEA How to: Section 9(1) CEA Procedure Under s. 9(1) CEA Common Law Right How to: The R. v. B. (K. G.) Application (A) Overview (B) Legal Requirements (a) Necessity (b) Reliability (c) Striking Similarity (C) Procedure Supporting the Credibility of Your Witness Overview (A) General Rule (B) Reason for the General Rule CONTS-19 (Criminal Practice) (2015 Rel. 9)

20 4.7.2 Exceptions to the General Rule (A) Character of the Accused (B) Character of the Non-Accused/Witness (C) Expert Evidence (D) (Some) Prior Consistent Statements (a) Use of Out of Court Statements of Prior Identification (b) Exception to the Rule Against Hearsay (c) Exculpatory Statements on Arrest (d) Statements Made by the Accused on the Recovery of Incriminating Articles (e) Rebut the Allegation of Recent Fabrication (f) Narrative (g) Complaint (h) Situations Documents Overview How to: Introduce a Document as Evidence Basis for Receiving Documents (A) Overview (B) Public Documents (a) Overview (b) Common Law Exception (c) CEA Provisions (C) Judicial Proceedings and Documents (a) Overview (b) Common Law Exception (c) Canada Evidence Act (D) Other Statutory Provisions (E) Course of Duty (a) Overview (b) What is the Exception? (c) Practice (F) Business Records (a) Overview (G) Banking Records (H) Other Documents How to: Prove the Document Hearsay The Rule Against Hearsay (A) Overview (B) The Rule (a) Overview CONTS-20

21 (b) How to: Approach a Potential Hearsay Problem (c) How to: Make the Hearsay Objection (d) Examples (e) The Double Relevance Problem (f) (g) Can Assertive Conduct Amount to Hearsay? What of Statements or Conduct Tendered for their Implied Assertions? Exceptions to the Hearsay Rule (A) Overview: Two Approaches (B) Principled Approach (a) Necessity (b) Reliability Exceptions the Traditional Approach (A) Overview (B) Admissions (C) Statements Adopted by a Party s Conduct (D) Statements Authorized by a Party (E) Statements of Persons with a Common Purpose/ Conspiracy (F) Exceptions where the Declarant or the Testimony is Unavailable (a) Declarations against Interest (b) Dying Declarations (c) Course of Duty (d) Former Testimony Section (G) Declarations as to Physical Sensation, Mental or Emotional State, or State of Mind (H) Res Gestae: Spontaneous Exclamations: Excited Utterances (I) Evidence on a Breach of a Conditional Sentence (J) Documents in Possession Rule Character Evidence Overview (A) What is Character Evidence? (B) The Potential Use of Character Evidence (C) General Propositions Governing Character Evidence of Accused (D) Assumptions About Character Evidence (E) Overview: Potential Permissible Situations (F) Good Character of Accused (a) Specific Acts and General Reputation CONTS-21 (Criminal Practice) (2015 Rel. 8)

22 (b) Expert Evidence of Accused s Disposition or Tendencies (G) Character Evidence of Co-Accused (H) Character of Non-Accused Witnesses, Complainants, and Persons Not Directly Party to the Proceedings (a) Good Character (b) Bad Character (c) Sexual Assault Complainant (I) Responding to Bad Character Evidence of Accused (J) Responding to Good Character Evidence of Accused (K) Responding to Bad Character Evidence of Non-Accused Witnesses (L) When Does Accused Put His Character in Issue? (M) The Prior Criminal Record Use and Restrictions Similar Fact Evidence (A) General Principles (B) The Handy Test (C) The Approach When Identity is in Issue (D) Charge to the Jury Opinion Evidence/Expert Evidence Overview Fact and Opinion Can Any Witness Venture Their Opinion? (A) General Rule (B) Difference Between Fact and Opinion The Criteria Governing Admissibility of Expert Evidence (A) Properly Qualified Expert/Recognized Expertise (B) Relevance (C) Necessity (D) The Absence of an Exclusionary Rule Establishing the Foundation How to: Qualifying the Expert Practice Points Privilege/Principle Against Self-Incrimination Overview Pre-Trial: The Right to Silence (A) Overview (B) Developing the Right to Silence The Right to Choose (C) When is the Right to Silence Engaged? (D) Remedy Testimonial Protections CONTS-22

23 (A) Overview (B) Section 5 CEA (C) Section 13 of the Charter (D) How to: Keep the Derivative Evidence Out/Keep the Witness Off the Stand (a) Overview (b) Principles (c) Procedure (E) How to: Prevent the Adverse Inference Being Drawn from Accused s Failure to Testify (a) Overview (b) Principles (c) Problem: What Happens Where Rights Clash? Confessions (A) Overview (B) Statement of the Rule (a) Threats or Promises (b) Product of an Operating Mind (c) Absence of Oppression (d) Other Police Trickery (e) Mr. Big Investigations and the Two Prong Test (C) Scope of the Rule (D) Person in Authority (E) Young Offenders (F) How to: Proving the Voluntariness of the Statement (a) The Principles (b) The Procedure (c) Situations Miscellaneous Issues Prior Criminal Record (A) Overview (B) Relevant to Credibility (a) Overview (b) How to: Obtain Information About a Record (c) How to: Question on the Record s. 12 CEA (d) How to: Avoid or Prevent Questioning on the Record (e) How to: Bring the Corbett Application (C) Relevant to a Substantive Issue (D) How to: Prove a Prior Criminal Record Eyewitness Identification Evidence (A) Overview (B) Principles CONTS-23 (Criminal Practice) (2015 Rel. 9)

24 (C) Voice Identification Evidence (D) Preparing to Challenge the Eyewitness Identification (E) Evidentiary Notes (a) Use of Out of Court Statements of Prior Identification (b) What About Expert Evidence? Judicial Notice (A) What is It? (B) Judicial Notice of Adjudicative Facts (C) Judicial Notice of Legislative Facts (D) Judicial Notice of Social Framework Facts (E) Mental Capacity and State of Mind Post-Offence Conduct (Consciousness of Guilt) (A) Overview (B) The Principles (C) Probative Value of Post-Offence Conduct (D) The Standard of Proof for Evidence of Post-Offence Conduct (E) The Rejected Statements of an Accused Issue Estoppel The Complainant s Prior Sexual History: Section (A) Overview (B) Summary of the Legal Principles (C) How to: Introduce Evidence of Prior Sexual History (D) Contents of the Affidavit (E) The Voir Dire Unsavoury Witnesses and Jailhouse Informants (A) Principles Police Discretion to Collect Evidence CHAPTER 5 Remedies Contents... 5-i 5.1 Overview The Route to Relief: To Appeal or Not Introduction Final Order or Decision Interlocutory Orders or Decisions Challenges by the Crown or Defence Interlocutory Orders or Decisions Third Party Challenges (A) Overview CONTS-24

25 (B) Why and When Would a Third Party Wish to Challenge? (C) Procedure on Third Party Challenges Moot Appeals New Trial vs. Acquittal Legislative Compliance With the Constitution Overview The Constitution Act The Division of Powers (A) Overview (B) Key Provisions (C) How to: Challenge a Law s Constitutionality (D) Remedies (a) Strike All or Part of the Law Down (b) Read Down (c) Read In (d) Constitutionality Exemption (e) Temporary Suspension of Invalidity The Charter (A) Overview (B) Possible Problem Areas (C) Section 1 Analysis (D) How to: Challenge the Law s Consitiutionality Under the Charter (E) Remedies Charter Remedies: Sections 24(1) and 24(2) Overview Section 24(1) (A) Overview (B) Anyone Who Has Standing? (a) What the Applicant Must Establish (b) The Co-accused (C) The Fair Trial Remedy (D) Whose Charter Rights or Freedoms Have Been Infringed or Denied (E) May Apply to a Court of Competent Jurisdiction (F) For a Remedy That is Appropriate and Just in the Circumstances (G) How to: Apply for a Remedy under 24(1) of the Charter Section 24(2) Excluding Evidence (A) Overview (B) The Requirements (a) Standing CONTS-25 (Criminal Practice) (2015 Rel. 5)

26 (b) Burden of Proof (c) The Causal Connection Between the Evidence Obtained and the Infringement or Denial (d) Discretion or Duty Shall be Excluded (e) Disrepute The Test (C) The Test for Exclusion (a) Overview (b) Fairness of the Trial (c) Seriousness of the Breach (d) Effect of Exclusion on the Administration of Justice (D) How to: Excluding Evidence under the Charter (a) Overview (b) Ontario Court of Justice (c) Superior Court of Justice Excluding Evidence An Approach Overview The Approach Relevance, Materiality and Admissibility (A) Relevance (B) Materiality (C) Admissible: The Exclusionary Rules Overriding Judicial Discretion to Exclude (A) Overview (B) The Old Rule: R. v. Wray (C) The Evolution of the Judicial Discretion to Exclude under the Charter (D) Where Are We Now? Fair Trial Guarantee How to: Exclude Evidence (Generally) (A) Overview (a) Substantive Basis for the Objection (b) Timing (c) Procedure Voir Dire (A) Overview (B) Procedure (C) Principles that Apply on the Voir Dire (D) Timinig of the Evidentiary Objection A Quick Reference Guide on When and How to Bring Applications and Motions Overview Strategy and Tactics Correcting Errors CONTS-26

27 5.6.4 The Application Process: Charts (A) Overview (B) Applications, Generally Table of Tasks Summarizing Procedure Precedents Extraordinary Remedies Overview The Remedies (A) Certiorari (a) What is It? (b) Why Would Certiorari be Used? (c) Quash the Committall for Trial (d) Quashing a Search Warrant (e) Quashing a Subpoena (f) Quashing a Publication Ban (B) Mandamus (a) What is It? (b) Why would Mandamus be Used? (C) Prohibition (a) What is It? (b) Why Would It be Used? (D) Procedendo (a) What is It? (b) Does Anyone Use It? (E) Habeas Corpus ad Sujiciendum Limitations on Their Use How to: The Procedure, Generally CHAPTER 6 Remedies After Trial Appeals Contents... 6-i Overview Taking the Call Overview Checklist: What Must be Decided (A) Preserving the Right to Appeal (B) Merits (C) Client Expectations (D) The Retainer (E) Appellate Tactics Checklist: What You Need/Want to Know CONTS-27 (Criminal Practice) (2015 Rel. 7)

28 6.1.4 Checklist: Sources of Information Indictable Appeals Overview How to: Achieving Perfection Step by Step (A) Overview How to: Obtain Bail Pending Appeal (A) Overview (B) Principles (a) Conviction Appeals s. 679(3) (b) Sentence Appeals s. 679(4) (C) Procedure (D) Extensions or Variations (Rule 34) (a) Principles (b) How to Obtain an Extension or Variation Powers of the Court of Appeal (A) How to: Bring Applications Generally (Apart from Bail) (a) When? (b) Procedure (B) How to: Obtain a Stay of a Driving Prohibition (a) Principles (b) Procedure (c) Tactical Considerations (C) How to: Obtain Stays, Generally (a) Principles (b) Procedure (c) Tactical Considerations (D) How to: Introduce Fresh Evidence (a) Principles (b) Procedure (E) How to: Obtain Your Order Without Being There (a) Principles (b) Procedure (c) Tactical Considerations Summary Conviction Appeals Overview How to: Achieving Perfection Step by Step How to: Obtain Bail Pending Appeal (A) Overview (B) Principles (C) Procedure: Rule (D) Tactical Considerations Powers of the Summary Conviction Appeal Court CONTS-28

29 (A) How to: Bring Applications, Generally (Apart from Bail) (B) How to: Obtain a Stay Pending Appeal (a) Principles (b) Procedure (C) How to: Obtain a Stay of a Driving Prohibition (a) Principles (b) Procedure (c) Tactical Considerations (D) How to: Introduce Fresh Evidence (a) Principles (b) Procedure Precedents Indictable Appeals Summary Conviction Appeals Issues in Focus IF-1.0 Commission Evidence...IF 1-1 IF-2.0 As soon as practicable...if 2-1 IF-3.0 Reasonable grounds to suspect...if 3-1 IF-4.0 Extended detention following breath tests...if 4-1 IF-5.0 Release of Exhibits for Scientific Testing...IF 5-1 IF-6.0 Business Record Admissibility...IF 6-1 IF-7.0 Consent Search...IF 7-1 IF-8.0 Solictor-Client Privilege...IF 8-1 IF-9.0 Exigent Circumstances Search...IF 9-1 IF-10.0 Lineup Evidence...IF 10-1 IF-11.0 Polygraph...IF 11-1 IF-12.0 Public Interest Immunity...IF 12-1 IF-13.0 Recorded Statement Admissibility...IF 13-1 IF-14.0 Regulatory Information Demands and Inspections Admissibility...IF 14-1 IF-15.0 Subsection 24(2) Exclusion...IF 15-1 IF-16.0 Sentences for Offence of Child Luring...IF 16-1 IF-17.0 Defence of Property...IF 17-1 IF-18.0 Misconduct of a State Agent amounting to an Abuse of Process...IF 18-1 IF-19.0 Non-disclosure of HIV-positive Status amounting to Fraud Vitiating Consent...IF 19-1 IF-20.0 Self-defence under Criminal Code Section 34...IF 20-1 CONTS-29 (Criminal Practice) (2015 Rel. 5)

30 Topical Index...I-1 CONTS-30