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Most statements made by an accused subsequent to his arrest are statements made to the investigating police officers or others involved in the investigation and prosecution of crime. Prosecutors rely upon admissions or confessions by the accused subsequent to arrest to assist them in convicting the accused of whatever crimes are alleged. Police officers and Crown attorneys are considered to be “in authority” over the accused and therefore our courts treat any admissions or confessions as inadmissible unless or until they are demonstrated by the prosecution to be voluntary.
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Occasionally, the court is confronted with evidence of statements by an accused that contain both inculpatory and exculpatory parts. Case law directs trial Judges to consider it dangerous to instruct the jury in a way that suggests that inculpatory statements should be given more weight than exculpatory statements.1 Prior to the Supreme Court of Canada establishing this rule of evidence, many trial Judges expressed the opinion, written or delivered orally to juries, that if the accused said something detrimental to his own case, he would not have done so unless his inculpatory comments were true. Their theory, apparently, was that a person was unlikely to say something disapproving, harmful or adverse to himself that is false.
Continue reading “Mixed Statements: Inculpatory and Exculpatory”

Section 666 of the Criminal Code provides as follows:

Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of a previous conviction(s) of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed.
Continue reading “Character Evidence (part 4)”

Character evidence for the accused can be challenged by the prosecution. Once placed in issue at trial it opens the door for the prosecution to respond with evidence of bad character. If the Crown responds with evidence of bad character, it is admissible solely to rebut the evidence of good character and is only admissible if the accused first puts his character in issue.
Continue reading “Character Evidence (part 3)”

Good character evidence must be “general” in nature. It should also relate to a specific aspect of the case.
For example, where the accused is charged with a violent crime, his general reputation in the community as a non-violent individual is particularly relevant.

Continue reading “Character Evidence (part 2)”

The accused is entitled to produce evidence of his good character. If the Judge or jury determines that the accused is of good character, it may influence their decision in concluding that the accused is not guilty of the crime. Character evidence, however, is not, standing alone, a defence to any criminal charge. It has other value. The good character of an accused may strengthen the credibility of the accused. Good character may support the unlikeliness that the accused would commit the offence charged. In a jury trial the Judge is obligated to instruct the jury that evidence of good character may be used to show that the accused is not the type of person likely to have committed the offence alleged.
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The accused has a right to understand the evidence provided at trial. In Canada criminal trials take place in English, French, or sometimes in both languages. An accused is entitled to ask for a trial in either of our country’s official languages. It is the choice of the accused. In fact, the court is obligated to inform the accused of his right to choose the language of his trial. The Judge presiding over an accused’s trial cannot force a witness to speak in the language chosen by the accused. Although it does not happen often, if the accused refuses to indicate his choice of language, the Judge will order the trial to take place in the language that the accused seems to understand the best.
The presiding Judge makes this decision based on the principle that an accused is entitled to a fair trial. Any witness called at the trial by either the prosecution or the defence is entitled to testify in a language that is not the language of the accused. If this occurs the accused is entitled to have the assistance of an interpreter to permit the accused to understand the testimony provided in a foreign language. If an interpreter is required to assist the accused in understanding the evidence, the interpreter will be provided at the government’s expense.

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Before the commencement of a trial the accused and his lawyer have a legal right to know all the evidence that the prosecutor has against him. The prosecution is obligated to provide all relevant information including evidence in their possession because of the investigation that is helpful to the accused in his defence. This information is disclosed to counsel for the accused. Crown disclosure will include the names of all witnesses that will testify or could testify. Crown disclosure will contain the statements of all witnesses interviewed by the police, the Crown, or both.
Continue reading “The Crown’s Responsibility to Provide Disclosure”

The accused can never be forced to testify at his trial. Because a person in Canada accused of a crime is presumed innocent until a Judge or jury finds him guilty, the presumption of innocence prevents anyone from forcing the accused to formally answer the charge(s). The accused does not have to prove his innocence. The Crown must prove the accused is guilty beyond a reasonable doubt.
Continue reading “The Accused as Witness”

Some witnesses may testify about matters that they did not personally see or hear. Yet, certain inferences may be drawn from their testimony. This is referred to as circumstantial evidence.

Circumstantial evidence can sometimes be as compelling as direct evidence. Every Judge in Canada seems to use the same example of circumstantial evidence when explaining it to a jury. Perhaps it has been used so often because Judges feel that it is practical and works when explaining the difference between direct and circumstantial evidence. Here is how most Judges explain circumstantial evidence to jurors:
A witness might say that he or she observed a woman enter the courthouse lobby today wearing a raincoat and carrying an umbrella; both dripping wet. If you believe that witness, you might conclude that it was raining outside at the time the woman entered the courthouse, even though the evidence suggesting that it was raining at the time was indirect. The witness was not outside and did not personally observe it raining. But the witness did see the raincoat of the woman who entered the courthouse at that time, and, her umbrella dripping water, and, from those observations, the witness might infer that it was likely raining at the time that woman entered the courthouse. Indirect evidence is circumstantial evidence. Sometimes circumstantial evidence can be just as compelling as direct evidence.
Continue reading “Circumstantial Evidence”