YOU CAN'T ALWAYSc JUST LAY IN THE WEEDS OR THE OBLIGATION ON DEFENCE TO GIVE NOTICE

Transcription

1 YOU CAN'T ALWAYSc JUST LAY IN THE WEEDS OR THE OBLIGATION ON DEFENCE TO GIVE NOTICE ) These materials were prepared by Barry Singer, QC, of Hnatyshyn Gough law firm Saskatoon, Saskatchewan forthe Saskatchewan Legal Education Society Inc. seminar, Criminal Law Essentials; May

2 ) ).

3 You Can't Always Just Lay in the Weeds or The Obligation on Defence to Give Notice. In R. v. Pelletier}, Mr. Justice Tallis quotes with approval the Ontario decision ofr. v. Kutynec 2 as follows: Prior to the proclamation ofthe Charter, no one conversant with the rules controlling the conduct ofcriminal trials would have suggested that an objection to the admissibility of evidence tendered by the Crown could routinely be initiated after the case for the Crown was closed. It is self-evident that objections to admissibility ofevidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence:... [citations omitted] Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception ofthat evidence. The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt ofan accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. Injury trials it could render the process inoperative. Manifestly, the Charter application by the accused must precede the admission of the evidence. To have it admitted before a jury subject to after exclusion following a successful Charter application, would invite a mistrial. The procedure to be followed is no different when a judge is the trier offact. If these two processes relating to the reception of evidence by the court are not kept conceptually separate, the trial process becomes confused and repetitive. In the interests of conducting an orderly trial, the trial judge is entitled to insist, and should insist, that defence counsel state his or her position on possible Charter issues either before or at the outset of the trial. Therefore in Saskatchewan there has grown up a practice of giving notice of an application to exclude evidence, under a section 24(2) application or otherwise, either prior to trial or prior to the inclusion ofthe evidence at trial. In R. v. Anaquod 3, MacLoed J said The defence cannot proceed as it did in this case. The defence must give notice ifit wishes to assert a Charter violation and invite a Charter remedy. This notice normally may be given at a pre-trial conference under Code ss (1). That is the practice in this jurisdiction. If SJ. # 115, Court ofappeal 2(1992), 12 c.r. (4 th ) 152, (Ont. c.a.) ) 3[1990] S.J. 630

4 2 there is no prehearing conference, notice would be expected to be given to the Crown in sufficient time to permit the Crown to respond to the Charter application. In Provincial Court this is sometimes difficult. This difficulty was dealt with by Wedge, J. in R. v. Medernach 4 where she said: In this Provincial Court trial no pre-trial was held. The issue only arose during the trial and defence counsel could not anticipate that the Crown would neglect to elicit certain information in examination-in-chief. I do not think there was any duty upon defence counsel, on cross-examination, to assist the Crown by extracting evidence from a Crown witness which could lead to his client's conviction. Thus there was at that timeprimafacie evidence ofa Charter violation. The application under s. 24(1) was made, shifting the burden upon the accused to satisfy the trial judge that a breach had occurred. Some applications require notice because of Statute, and some because of common law. The general trend is to require notice ofany application that maydecide the case. Even ifit is not related to exclusion ofevidence under section 24(2) ofthe Charter. It should be timely and it should be fairly explicit. Ifno notice is given, the remedy may be a Crown adjournment or in some extreme cases the judgewill refuse to hear the application. Ofcourse ifthe matter comesup for the first time during the calling ofevidence, then once the application is made, the Crown would be entitled to an adjournment to call further evidence or rebuttal evidence ifit is required. Because you have a script (the transcript ofthe Preliminary Hearing) and because you have to think ofthe convenience ofthe Jury and because you have a pretrial, most application in a Jury trial are conducted before the calling ofevidence in front ofthe jury. This is so especially ifa voir dire is required. This convenience often applies to Crown motions as well as Defence motions. 4[ 1991] S.J. 131

5 3 The more difficult cases are when you are in Provincial Court, as motions require evidence. Where notice is given, then there has to be an evidentiary base so the court does not deal with the issue in a vacuum. Often the way this is dealt with in front of a judge is the same way that it is dealt with in front ofa jury. A voir dire can be held and evidence called to support or refute the application, affidavits may be agreed upon, or an agreed statement of facts is presented to the trial judge. Therefore the factual underpinnings are present, the argument made and the application dealt with before calling evidence on the trial proper. Cases where you require Notice Before Trial [ an incomplete list]. Where required by Statute 1. Section 276 Criminal Code: (Application to cross examine on Previous sexual conduct) This is a two step proceeding, An application is made by the accused to the Judge pursuant to section for a hearing to determine if evidence is admissible under 276(2). This application has to be in writing, setting out particulars ofwhat evidence the accused wishes to adduce and the relevance ofthat evidence. 5 The application is given to the Crown and the Court with at least 7 days notice (unless allowed by the judge where the interests ofjustice require). Ifthe judge grants the applications then a hearing.takes place under Application for Production ofa written record as defined by section ofthe Criminal Code This usually means a medical, psychological or case record produced during the life of a 5An example ofnotice is found in R. v. Bignell [1999] S,J. # 94

6 4 complainant or witness in circumstances where there is "a reasonable expectation of privacy". 6 The right to disclosure is restricted in all sexual cases. These records are only made available ifthere has been a prior application to the trial judge. The procedure is set out in sections and The notice requirements mean that the third party who is in possessionofthe records must be served and the application must set out the reasons the material is required. The case ofmills 7 also requires an evidentiary base to be produced before the order can be considered. 3. Constitutional Questions Section 8 of the Constitutional Questions Act, requires appropriate notice when the constitutionality ofany act is called in question, or when any remedy, except the exclusion ofevidence, is saught pursuant to section 24 ofthe Charter. Notice to both the Attorney General ofcanada and the Attorney General ofsaskatchewan is required at least 14 days prior to the time when the matter is argued. You should therefore give notice to both Crowns ifyou are to argue Delayl, Entrapment 9, the unconstitionality ofa law under which a person is charged lo, and any other Charter matter not involving exclusion ofevidence. Ifyou fail 6Where there is a legally recognized right to privacy. R. v. Mills, [1999] 3 S.C.R For example, R. v. Pooyak [1997] S.J. 461, No particular procedure is required. Agreed statement offacts or affidavit. See R. v. L. (WK.),[1991] 1 S.C.R May require a transcript ofall appearances in court to confirm what happened before. R. v. Franklin, (1991),66 C.c.c. (3d) 114 S.C.C. 9For exampler. v. Norberg, [1997] SJ. 786 IOThe supreme court has recommended that there are good policy reasons to dispose of this at the end ofthe case; a) criminal proceedings should not be fragmented ifpossible, and b)

7 ) 5 to give notice, the remedy should be an adjournment of the matter ofargument until notice is givenii, however in some cases the Judge will simply not let you argue the matter at all. 12 Section 8 ofthe Constitutional Questions Act is attached to this paper. As you can see the Notice required is headed in the SOtyle ofcause ofthe action. You must state the law that is under question or the right or freedom alleged to be infringed or denied. You must state the day and place for the argument of the question. You must give particulars that are necessary to show the point argued. As you can see a Q.B. Notice ofmotion adequately covers the actual form ofthe notice and that is what we use as the model. 4. Other applications underthe code, including autrefois acquit orautrefois convict orpardon13 are to be dealt with prior to plea, and therefore, at time of arraignment in Queen's Bench, again Notice and factual underpinnings supplied to the court and the Crown before the application would be essential, unless you want to delay the whole matters by crown adjournments. Similarly ifthe claim is the matter is Res Judicata, then Notice should be required. The point is that Notice of any application that may determine the case or issue alerts the court, provides the Crown with no opportunity to ask for an adjournment and may result in co-operation ofthe Crown in presenting the factual underpinnings required for the an adjudication ofconstitutional issues should be discouraged without a factual underpinning. See R. v. DeSousa, [1992]2 S.C.R. 944 lias inr. v. Gordon Redimix, [1988] SJ R. v. Catarat, [1998] S.J See section 607 ofthe Criminal Code as to timing ofthese special pleas.

8 6 motion. Where required at Common Law [incomplete list] 1. Alibi In R. v. Cleghorn l4 : The court said At issue in this appeal is whether the alibi defence raised by the accused at trial was properly disclosed to the Crown. As outlined by my colleague, proper disclosure ofan alibi has two components: adequacy and timeliness. This principle was recently reiterated in R. v. Letourneau (1994), 87 C.C.c. (3d) 481, 87 W.A.C. 81, 22 W.C.B. (2d) 451 (B.C.C.A.), where Cumming la. wrote for a unanimous court at p. 532: It is settled law that disclosure ofa defence of alibi should meet two requirements: (a) it should be given in sufficient time to permit the authorities to investigate: see R. v. Mahoney, supra, atp. 387, andr. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 atpp (Ont. C.A.); (b) it should be given with sufficient particularity to enable the authorities to meaningfully investigate: see R. v. Ford (1993), 78 C.C.C. (3d) 481 at pp (B.C.C.A.). Failure to give notice ofalibi does vitiate the defence, however, the trier offact may draw an adverse inference and would almost certainly grant an adjournment to the Crown. 2. The accused record, where he or she testifies at a Jury Trial: Application to exclude all or a portion ofthe accused record ifhe is to testify. This is a Corbett/ 5 application. When the accused will testify in front ofajuryand you wish to restrict the right ofthe Crown to cross examine your client about his record, you can give Notice and apply. This notice does not have to be in writing, in practice, it is usually suggested at the Pre-Trial, that such a motion will be made ifthe decision is made to have 14 [1995] 100 C.C.C. 3d 393 S.C.C. 15[1988] 1 S.C.R. 670

9 7 the accused testify. The court should know ahead oftime its coming (for scheduling ofthe jury) but it should actually be made after the Crown's case is in, as one ofthe factors the court has to look at is whether this was an issue with Crown witnesses. Usually the Crown consents. 3. The remedy ofexclusion ofevidence under section 24(2) ofthe Charter. The purpose of this subsection is the exclusion of evidence that was collected during or because ofa Breach ofthe accused charter rights. The idea being that the court should not allow the evidence in, if to do so would bring the administration ofjustice into further disrepute. In those cases where you know this type of evidence is coming [bad search warrant, for example], notice is required, to avoid the Crown seeking an adjournment, and as well to seek their co-operation. This may be required as the decisiop to exclude evidence can only be made where there is an evidentiary base to determine ifthere has been a breach. The evidence will only be excluded ifthere has been a breach as established on the balance of probabilities by the defence, and if it is in the public interest as determined by an application ofthe principles in Collins.16 I fthe matter arises during a trial, then, ifpossible the objection should be made before or when the evidence is proffered and not at the end ofthe Crown's case. In Ontario a trial judge is entitled to refuse to allow defence to challenge evidence already received and will permit it only ifyou can demonstrate it is in the interests ofjustice. 17 To be on the safe side 16R. v. Collins, [1987] 1 S.C.R R. v. Kutynec, (1992), 70 C.C.C. (3d) 289 Ont. C.A., note this case has been given approval by three judges ofour Court ofappeal in Pelletier, supra.

10 notice to the Crown and the court at the earliest time possible is recommended. 8 Ifthere is a transcript or ifthere is a voir dire, then the matter can be argued ahead oftime, ifnot, then insomecases the Crownwill consentto an agreed statementoffacts. Ofcourse, evidence ofcharter violation can also arise during a trial. The best advice is to object to the evidence going in and doing so as soon as you are able. 4. Whenyou areplanningon callingan expert itis appropriateto givethe samekind ofnotice that is required in civil matters. This would be a in the criminal context, a letter outlining the area in which opinion evidence is to be given, the curriculum vitae ofthe expert and a summary ofthe evidence expected. If this is timely notice then the Crown would not be entitled to an adjournment. If it is not, it allows the Crown the opportunity to get an adjournment and prepare their expert after hearing yours testify.

11 4 c. C-29 CONSTITUTIONAL QUESTIONS Appeal 7 The opinion ofthe court shall be deemed a judgment ofthe court and an appeal shall lie therefrom as in the case ofa judgment in an action. R.S.S. 1978, c.c 29, s.7. Notice to Attorneys General required 8(1) In this section: (a) "law" includes: (i) all or any portion ofan Act or a regulation, order,' rule, rule ofcourt, form, tariff of costs or fees, proclamation, letter patent, bylaw or resolution enacted in the execution of a power conferred by or pursuant to the authority ofan Act; (ii) all or any portion ofan Act ofthe Parliament of Canada or an order, regulation, rule, rule of court, form, tariff ofcosts or fees, letter patent, commission, warrant, bylaw, resolution or other instrument issued, made or established: (A) in the execution of a power conferred by or pursuant to the authority ofan Act ofthe Parliament of Canada; or (B) by or under the authority ofthe Governor in Council; (b) "remedy" means a remedy provided pursuant to section 24 of the Canadian Charter ofrights and Freedoms but does not include a remedy of exclusion ofevidence or a remedy consequential on exclusion of evidence. (2) When, in a COUl t ofsaskatchewan: (a) the constitutional validity or constitutional applicability of any law is brought into question; or (b) an application is made to obtain a remedy; the court shall not adjudge the law to be invalid or inapplicable nor shall it grant the remedy until after notice is served on the Attorney General of Canada and on the Attorney General for Saskatchewan in accordance with this section. (3) When, in a court ofsaskatchewan, the validity or applicability ofa proclamation, regulation or Order in Council made or purportedly made in the execution of a power given by an Act ofthe Legislature is brought into question on grounds other than those mentioned in subsection (2), the court shall not adjudge the proclamation, regulation or Order in Council to be invalid until after notice is served on the Attorney General for Saskatchewan in accordance with this section. (4) Subject to subsection (5), a notice mentioned in subsection (2) or (3) is required to be served at least 14 days before the day ofargument. (5) The court may, on an ex parte application made for the purpose, order an abridgement ofthe time for service of a notice mentioned in subsection (2) or (3)

12 5 CONSTITUTIONAL QUESTIONS c. C-29 (6) A notice mentioned in subsection (2) or (3) is required: (a) to be headed in the action, cause, matter or proceeding in which the question arises or application is made; (b) (c) (d) to state: (i) (ii) the law or provision thereof in question; or the right or freedom alleged to be infringed or denied; to state the day and place for the argument of the question; and to give the particulars that are necessary to show the point to be argued. (7) TheAttorney General for Saskatchewan is entitled as ofright to appear and be heard either in person or through counsel in any action, cause, matter or proceeding to which subsection (2) or (3) applies. (8) The Attorney General ofcanada is entitled as ofright to appear and be heard either in person or through counsel in any action, cause, matter or proceeding to which subsection (2) applies. (9) Where the Attorney General of Canada or the Attorney General for Saskatchewan appears in an action, cause, matter or proceeding to which subsection (2) or (3) applies, he is a party for the purposes of appeal from an adjudication therein respecting the validity or applicability of a law or respecting entitlement to a remedy. 1!)83-84, c.31, s.2; 1!)8!)!)0. c.m. sa; ca. s.2. Reference pursuant to taxation agreement 9(1) Where pursuant to an agreement with the Government of Canada entered into under The Taxation Agreement Act, 1952, The Taxation Agreement Act, chapter 58 of The Revised Statutes of Saskatchewan, 1953, The Tax Rental Agreement Act, 1957, The Income Tax Act, chapter 62 of The Revised Statutes of Saskatchewan, 1965, The Income Tax Act, chapter 1-2 ofthese Revised Statutes or The Income Tax Act, 2000, or an agreement of a like nature and having like purposes, a matter is to be referred to the Court ofappeal, it shall be referred to the court and the form and terms ofthe reference shall be such as may be agreed upon by the parties to the agreement or ifthey cannot agree the form and terms shall be determined by the Chief Justice of Saskatchewan upon the application of either party. (2) The Attorney General of Canada and the Attorney General of any other province that after the first day ofjanuary, 1952, entered or hereafter enters into an agreement with the Government of Canada of a like nature and having like purposes to an agreement mentioned in subsection (1) may appear before the court and be heard as a party in respectofany matter referred under this Act pursuant to that agreement. R.S.S. 1978, c.c-29, s.9; 2000, c.i-2.0i, s