Patrick Ducharme’s 2018 Criminal Practice and Procedure is the definitive guide to understanding procedural, evidentiary and substantive criminal law principles. It refers to new appellate decisions impacting these areas of law up to and including its date of publication in March 31, 2018. Although prepared for third year law students, it also serves as an excellent, up-to-date, authoritative consideration of Canadian criminal law, a beneficial tool to all criminal law practitioners, regardless of their level of experience.
It is written by an experienced practitioner whose writing style is sharp and to the point, without legalese. It follows Lord Balfour’s admonition: talk English, not law. Ducharme clarifies complex legal principles using concise language. Even difficult concepts, such as the co-actor’s exception to the hearsay rule, are explained precisely, understandably, using the language of a seasoned trial lawyer like flashing lights on a dark night.
In the criminal justice system, jurisdiction is the legal power by which a court is authorized to preside over the hearing of a particular offence and accused. A Superior Court of a Province or Territory has original and plenary jurisdiction in all criminal matters unless its jurisdiction is expressly prohibited by statute. Additionally, a Superior Court has an inherent supervisory role to remedy procedural unfairness. All appellate courts, by their very nature, have jurisdiction only to hear appeals where that jurisdiction is expressly conferred upon the appellate court by statute.
Even the consent of an accused cannot confer jurisdiction upon a court where such jurisdiction does not exist by statute or common-law. An accused person is permitted to waive compliance with common-law requirements on procedural or evidentiary matters, as long as that waiver is express and informed. Our courts have consistently found a true waiver requires a demonstration that the accused is aware of the consequences of the waiver.1
Are you worried about your privacy? You should be. The Canadian government intentionally exposes every Canadian to breaches of their privacy. Privacy breaches by the government and others are legislatively encouraged and protected. Access to private information is granted upon request, without a warrant or court order. Information that Canadians believe is entitled to a reasonable expectation of privacy is intentionally exposed.
There is really only one area where the Canadian government does, in fact, protect privacy. The prerequisite for privacy in this country will not surprise you. It occurs only if the information to be protected concerns the operation of the government. The more important the information is to protecting the Government’s image, the more ferociously they protect it from disclosure. Conversely, private information about you is routinely breached. Your telephone calls, emails, banking records, and personal interactions are not protected. The federal government has insidiously wiped out any hope of personal privacy.
By Patrick J. Ducharme. Prepared for The Law Society of Upper Canada, 5 th Annual Six-Minute Criminal Defence Lawyer Series, June 4, 2005, Toronto, Ontario.
He that hath deserved hanging may be glad to escape with a whipping.
In Canada, co-operation by the accused with police and prosecutors has long been considered a mitigating factor in sentencing. 2 However, failure to co-operate with the authorities should not serve as an aggravating factor. 3 Co-operation is usually defined as the willingness of the accused to assist the authorities in the investigation or prosecution of others. The co-operation may take an infinite variety of forms, including, for example, participating in a “sting” operation or a controlled delivery of drugs or testifying for the
prosecution in court, or providing information anonymously to the police concerning the criminal activity of others. Continue reading “Co-Operation as Mitigating Factor on Sentence”