No One Owns a Witness

Patrick J Ducharme
Patrick J Ducharme

All witnesses for the prosecution and the defence are potential sources of information and may prove valuable to defence counsel. It has long been settled that there is no property in a witness and that a witness may be interviewed by both sides.

Of course, a lawyer wants to avoid the possibility of unwittingly becoming a witness and should therefore ideally have all witnesses interviewed by someone else, preferably an independent private investigator who may be called in the event that the witness later gives evidence inconsistent with any statement earlier provided. The importance of preserving in some independent fashion the previous oral and written statements of witnesses is highlighted by the various uses that may be made of previous statements under sections 9, 10, and 11 of the Canada Evidence Act.

Continue reading “No One Owns a Witness”

Discovering the Opponent’s Case: Be Thorough, Be Relentless

Patrick J Ducharme
Patrick J Ducharme


Uncovering all the facts requires more than meetings with your own client and the client’s witnesses. Complete disclosure is paramount, although the issue of what can or should be disclosed in any given case is by no means uncontroversial.

The right of the accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence. One important source of information, of course, is that information in the possession of the Crown. The term “in the possession of the Crown” is now understood to include all information in the possession or knowledge of the police. In 1991, Justice Sopinka, writing for a unanimous court in R v. Stinchcombe1, reviewed the general principles governing the duty of the Crown to make disclosure to the defence, especially in the context of indictable offences. He concluded that the Crown’s general obligation is to disclose all relevant information, even if the Crown does not propose to adduce it at trial. His Lordship also noted, however, that the Crown’s obligation is not absolute. It is subject to the Crown’s discretion, a discretion extending both to the withholding of information and to the timing of disclosure.

Continue reading “Discovering the Opponent’s Case: Be Thorough, Be Relentless”

On Witness Preparation

Patrick J Ducharme
Patrick J Ducharme

The importance of the preparation of witnesses cannot be overstated. Most cases, in fact, turn on the performance of the witnesses. But there is no foolproof formula or method to prepare witnesses for trial. They come to us in all types and fashions, and many are, to say the least, a challenge. Some communicate easily and well, others only grudgingly and in monosyllabic grunts. Patience and preparation are all.

Witness preparation, difficult as it may be, is the first important step to changing the level of your success at trial.

We want our witnesses to be poised and confident and to possess great nimbleness of mind. The best way to approximate this ideal state, once all the facts have been gathered, assimilated, and represented in your trial brief, is to subject all potential witnesses, including experts, to an interview process no less rigorous than that of a cross-examination by a skilful prosecutor. The exercise will pay dividends because it familiarizes the witness with an important part of the trial experience and demystifies the process of cross-examination, calming the witness’s fears.

Continue reading “On Witness Preparation”

The Crown’s Disclosure Obligations Regarding Lost or Damaged Evidence


1. The remedies available to an accused when the Crown loses or damages relevant evidence can be seen to flow from three landmark cases with which all competent criminal lawyers are already quite familiar: Stinchcombe (1991) 2 ; O’Connor (1995) 3 ; and Carosella (1997) 4 .
Each case touches upon broad themes in criminal justice: the notion of full answer and defence; the right to disclosure or to production; the duties of the Crown and the police to preserve and disseminate documentary evidence; and the sense of fair play that underlies or ought to underlie our system of Canadian justice.

Continue reading “The Crown’s Disclosure Obligations Regarding Lost or Damaged Evidence”

The Co-Conspirators’ Exception to the Hearsay Rule

You cram these words into mine ears against the stomach of my sense.
–William Shakespeare

The Rule

The co-conspirators’ exception to the hearsay rule permits the acts, declarations, statements or utterances of an accused’s alleged co-conspirators, performed or made in furtherance of a conspiracy, to be presented as evidence against the accused as proof of his or her guilt. Declarations and acts are treated equally.


The Rationale for the Rule

The Rule is based upon principles of agency. Each member of a common unlawful scheme impliedly permits every other member of the unlawful scheme the right to act or speak on her behalf in pursuit of the common unlawful plan.

Continue reading “The Co-Conspirators’ Exception to the Hearsay Rule”

After Heideman: Re-Defining “Evidence to the Contrary”

It is easier for a camel to go through the eye of the needle,
than for a rich man to enter the kingdom of God.
Matthew, 19:24


Patrick Ducharme
Patrick Ducharme

Matthew’s solemn admonition to the Christian believer about how difficult it is to achieve the heavenly kingdom may strike some as an odd passageway into a discussion of R. v. Heideman 1[1] , a relatively recent decision of the Court of Appeal for Ontario. But for me the Heideman case has such thundering implications that the scriptural analogy does not seem to be all that far-fetched. I tell you, sisters and brothers, that after Heideman it will be easier for defence counsel to go through the eye of the needle than to get an acquittal on the charge of exceeding the breathalyzer if the defence relies upon what is commonly referred to as “evidence to the contrary.”

The defence of “evidence to the contrary” invariably includes evidence about how much alcohol the accused consumed and expert opinion evidence showing that his or her blood alcohol concentration level (“BAC”) at the time of driving was less than 80 milligrams in 100 milliliters of blood. This defence, often referred to in Ontario as the Carter 2[2] defence, has abided for nearly twenty years. Some of the hallowed principles set out in Carter include: Continue reading “After Heideman: Re-Defining “Evidence to the Contrary””

Evidentiary Issues in Drug Cases

By Patrick Ducharme, prepared for the Ontario Bar Association’s 2005 Institute of Continuing Legal Education, Toronto, Ontario


My task today is to address evidentiary issues generally considered unique or at least important to drug cases. The best and most obvious place to begin is with the empowering statute, the Controlled Drugs and Substances Act (the “CDSA”) Proclaimed into force in May, 1997, the CDSA codifies all drug offences in Canada.

The Concept of Possession

Included in the CDSA are six Schedules identifying all the particular substances
and precursors declared illegal by this legislation. In section 2, the definitions section, possession is defined as meaning “possession” within the meaning of subsection 4(3) of the Criminal Code. 3 Consequently, we look to that provision for our definition:

Continue reading “Evidentiary Issues in Drug Cases”

Evidentiary Issues Relating to Hearsay Statements Previous Consistent Statements, Use of Transcripts to Impeach Witnesses, and Cross-Examining on Police Officers’ Notes

By Patrick Ducharme prepared for the L.S.U.C Continuing Legal Education program “Recent Issues and Developments In Criminal Law” September 6, 1997.


The common thread running through the topics presented here is that each in its own way deals with the problem of separating truth from falsehood or, better, the perception of truth from the perception of falsehood. And although the evidentiary issues relating to these topics are many and sometimes complicated, skillful counsel inevitably demonstrate mastery in understanding and applying them in individual circumstances.

With regard to hearsay evidence, for example, the Supreme Court of Canada has in the last few years developed a new, “principled” approach to the determination of admissibility, an approach which has tended to impose upon counsel the burden not only to recognize hearsay in the first instance, but also to call or to challenge evidence of “necessity” and “reliability” concerning out-of-court statements sought to be admitted for their truth. Given the major role that hearsay statements will continue to play in the outcomes of trials, especially in light of this newly formulated “principled” approach privileging the concepts of necessity and reliability, I prefer to begin my analysis there. Continue reading “Evidentiary Issues Relating to Hearsay Statements Previous Consistent Statements, Use of Transcripts to Impeach Witnesses, and Cross-Examining on Police Officers’ Notes”