Direct evidence is evidence presented by a witness that, if believed, establishes a fact in issue. With direct evidence the only decision involved is to determine if the witness is telling the truth and describing the event that she witnessed accurately. Direct evidence has an advantage over circumstantial evidence. If the Crown’s case is entirely or substantially based on circumstantial evidence, the Judge or jury must be satisfied beyond a reasonable doubt that the guilt of the accused is the only rational conclusion or inference that can be drawn from circumstantial evidence.
Direct versus Circumstantial Evidence
In a criminal trial both types of evidence, direct or circumstantial, are admissible. In fact, our Judges instruct juries that one type of evidence is not to be considered “better” than another. The law treats both equally. The difference is that circumstantial evidence requires the trier of fact to conclude that the inference(s) they are urged to find on the evidence is/are the only rational inferences based upon what the witness observed, and, to also conclude that what the witness claims to have observed is accepted as accurate and truthful.
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Intention versus Motive
There are other factors that the Judge or jury may be asked to consider in determining intention. They may also be asked to consider possible motives for a person’s actions. Motive is distinguishable from intent. Intent refers to the necessary mental element of guilt. A crime requires criminal intention to be proved. It is the mens rea, or the criminal intent, that the Crown must prove to establish guilt. Motive relates to a possible reason for a person’s actions.
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Presumptions
Judges instruct jurors that a man is presumed to have intended the natural consequences of his acts. If, for example, he shoots his gun at another man, jurors may be able to infer that he did so intending to kill the other man. This presumption is not a presumption of law. It’s a presumption of common sense. Common sense says one is usually able to foresee the natural consequences of his acts. The acts are “his” not someone else’s. It is a presumption that may be drawn, but it is not a presumption that must be drawn. Jurors will be told by the Judge that if, on all the facts, they believe it is not the correct inference, then it should not be drawn.
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The Mental Element of Crime – Intent
The Crown must prove that the accused intended to commit the crime alleged. It may be difficult to determine with certainty what a person is thinking at the time a crime is alleged to have occurred. Yet, the law insists that we determine the mens rea, or state of mind of the accused, at the time he is alleged to have committed a criminal act. Determining mens rea requires a determination of an offender’s state of mind at the time he commits the offence.
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Wrongful Convictions
Canada’s legal history is replete with many examples of wrongful convictions. Some wrongful convictions have been overturned or otherwise rectified later by appeals or by commissions struck by the government to examine the circumstances of possible wrongful convictions. Sadly, wrongful convictions have happened far more than anyone in the legal system likes to admit. Some of these cases will be referred to in the Chapters ahead. Continue reading “Wrongful Convictions”
The Onerous Duty (Part 2)
Police officers who arrest a person on a criminal charge often decide what criminal charge(s) the accused will face. For very serious charges, such as murder or manslaughter, investigating officers will occasionally seek the advice of a prosecutor when deciding what criminal charge or charges should be laid.
The Onerous Duty (Part 1)
It should first be noted that section 215 reverses the onus of proof from the prosecution to the accused. The section provides specifically, “fails without lawful excuse, the proof of which lies on him.” In specific terms the section requires the accused person to prove that at the material time he had a lawful excuse not to perform a duty imposed upon him by law. Stephen Jurkus fortunately was able to do so at least to the satisfaction of the jury who decided his fate.
Stephen Jurkus met his onus of proof by demonstrating with evidence that despite overseeing the EMDC at the time of the murder, that a whole series of incidents witnessed by other prison guards under his authority were not shared with him.
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The Tale of Stephen Jurkus: Senior Official in Charge of the EMDC
An inmate was murdered by another inmate in their shared jail cell late at night while the accused, Stephen Jurkus, was the senior officer in charge of the prison at the time of the murder. Stephen Jurkus was charged with failing to provide necessaries of life for the inmate who was murdered. Stephen Jurkus was acquitted by a jury in London Ontario. His case describes how treacherous it may be when our law provides for crime upon an allegation that a person has failed to perform a duty, and in doing so, endangers the life of a person to whom that duty is owed.
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Duty to Act (Part 2)
While it is not generally the function of the criminal law to impose positive duties upon people, in some, albeit relatively rare circumstances, our law punishes those who fail to act and in failing to act their failure may be enough to warrant punishment for that failure to meet a lawful requirement.
Example of a Crime Based Upon a Failure to Act
The warden of a large federal prison in London Ontario, the Elgin Middlesex Detention Centre (the “EMDC)”, was charged with failing to provide the ‘necessaries of life’ to an inmate contrary to section 215 of the Code. Section 215 of the Criminal Code creates an explicit duty on the part of persons in authority, such as a parent or guardian or jailer, to provide the necessaries of life to those that they are under a legal duty to protect. The offence is committed when a person under a legal duty to protect another person, and, while under that duty to protect another, fails without lawful excuse, the proof of which lies upon the person with the duty and only if the person with the duty fails to perform that duty thereby endangering the life of the person to whom the duty is owed.