Watt s Criminal Law and Evidence Newsletter Issue No. 15

Transcription

1 Watt s Criminal Law and Evidence Newsletter Case Law Highlights 2012 Issue No. 15 Intervening Acts and Causation in Manslaughter In cases where D claims an intervening act of someone else interrupted the chain of legal causation, the causation test remains whether D s dangerous and unlawful acts were a significant contributing cause of V s death. R. v. Maybin, May 18, (S.C.C. #34011) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 222 Causation and Intervening Acts Threats as Non-Hearsay Evidence of threats is admissible as non-hearsay. It is the making of the threat, not the truth of its contents, that is of probative value. R. v. T. (J.A.), March 21, (Ont. C.A. #C49796) Evidence of Threats: Hearsay or Nonhearsay

2 2 Determining a Reasonable Possibility of Eventual Control of the Risk The determination of whether there is a reasonable possibility of eventual control of the risk in the community involves a prediction of future behaviour. It is the sentencing judge who must be satisfied of this possibility. Neither P nor D bears an onus of proof on this issue in the traditional sense. The sentencing judge must not equate a reasonable possibility of eventual control of the risk in the community with hope or empty conjecture, and must recognize that the mere possibility that D might benefit from treatment falls short of the standard required. R. v. Natomagan, April 20, (Sask. C.A CR) See, Tremeear s Annotated Criminal Code, Criminal Code, s General Principles Scientific Validity and the Experiential Expert Forensic gait analysis is a subject of expert opinion evidence based on specialized knowledge gained through experience and specialized training. Indicia of scientific validity, like peer review, rate of error and adherence to a scientific method, are of limited relevance in cases where the expertise of the witness is gained over time through observation and experience in the professional realm. R. v. Aitken, April 2, (B.C. C.A. CA036854) Properly-qualified Expert The Qualifications of the Expert

3 3 *The Analytical Approaches to Intervening Acts Analytical approaches, such as reasonable foreseeability and intentional, independent act may be useful in assessing legal causation depending upon the specific circumstances of the case. In the end, however, the analysis must focus on first principles and recognize that these tools do not alter the standard of legal causation: the test remains whether D s dangerous and unlawful acts are a significant contributing cause of V s death. R. v. Maybin, May 18, (S.C.C. #34011) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 222 Causation: s. 222(1) Misapprehensions of Evidence and Summary Conviction Appeals Where a summary conviction appeal court judge finds that the summary conviction court misapprehended the evidence given at trial and that misapprehension was material and essential to the decision to convict, the summary conviction appeal court judge should order a new trial. The summary conviction appeal court judge has no authority to substitute his or her view of the evidence for that of the trial judge. R. v. Prest, May 3, (N.S. C.A. CAC352263) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 822 Jurisdiction

4 4 Leading Questions of a Party s Own Witness The general rule that a party who calls a witness cannot ask the witness leading questions does permit leading questions on preliminary and non-controversial issues and allows counsel to direct his or her own witness to a particular event or subject-matter. A trial judge also has a general discretion to permit a party to ask leading questions of his or her own witness whenever it appears necessary in the interests of justice. R. v. T. (J. A.), March 21, (Ont. C.A. #C49796) Leading Questions: General Principles Leading Questions: Exceptions Forensic Gait Analysis Expert opinion evidence of forensic gait analysis may be admitted to assist in proof of D s participation in an offence. R. v. Aitken, April 2, (B.C. C.A. CA036854) The Principles Governing Admissibility

5 5 Post-Conviction Remedies for Conflicts of Interest To succeed on an appeal based on a claim of conflict of interest by counsel acting at trial, D must demonstrate not only the conflict of interest, but also that it adversely affected defence counsel s performance on D s behalf at trial. R. v. Q. (M.), April 10, (Ont. C.A. #C53717) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 650 Full Answer and Defence: Effective Assistance of Counsel s. 686 Miscarriage of Justice: Conflicts of Interest Reasonable Foreseeability and Intervening Acts In the reasonable foreseeability approach to determine whether an intervening act absolves D of legal responsibility for manslaughter, the time to assess reasonable foreseeability is at the time of the unlawful act, not at the time of the intervening act. It is the general nature of the intervening acts and the accompanying risk of harm that must be reasonably foreseeable. If the intervening acts and harm that actually occurred flowed reasonably from D s conduct, D s conduct may remain a significant contributing cause of V s death. R. v. Maybin, May 18, (S.C.C. #341011) See, Tremeear s Annotated Criminal Code, Criminal Code, s. 222 Causation: s. 222(1) Causation and Intervening Acts

6 6 Reasons and Colloquies With Counsel In determining a trial judge s reasons for a ruling, it is generally neither appropriate nor possible to draw inferences from a colloquy with counsel. R. v. Ladret, April 26, (B.C. C.A. CA039012) 6.0 Duty to Give Reasons for Evidentiary Ruling Short Form Instructions on Reasonable Doubt Short form instructions on reasonable doubt should be avoided, especially at the end of final instructions. Judges should not paraphrase the Lifchus formula in defining reasonable doubt. R. v. S. (J.), April 4, (Ont. C.A. #C52031) Jury Instructions on the Meaning of reasonable doubt Jury Instructions on the Standard of Proof Jury Instructions Equivalents of Reasonable Doubt

7 7 Induced Consent In cases involving ss (3)(c) and 237.1(2)(c), the issue is whether D incited or induced V to participate in the sexual activity by abusing a position of trust, power or authority, not whether V misapprehended the right to refuse D s advances, or feared reprisals, or did not understand that she could say no. R. v. Alsadi, May 1, (B.C. C.A. CA039304) See, Tremeear s Annotated Criminal Code, Criminal Code, s s Consent Vitiated by Exercise of Authority Preliminary Inquiry Evidence and the Use of Technology In deciding whether to admit at trial evidence given at the preliminary inquiry, the trial judge should consider the prospect of taking the evidence under s or s before invoking s. 715(1)(d) to admit the evidence given at the preliminary. R. v. Li, May 7, (Ont. C.A. #C45980; C44110) See, Tremeear s Annotated Criminal Code, Criminal Code, s s s. 715 Application of Section Relationship With Other Rules of Evidence