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.

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Building trust between client and attorney

Patrick J Ducharme
Patrick J Ducharme

How does one build the trust that is required between client and attorney?

Surprisingly, most individuals, unique as they are, have very similar needs, especially when they come to lawyers for help. They need to feel, for example, that their lawyer is eager to take their case. They need to believe that their lawyer is prepared to defend the case fearlessly. You will satisfy this need not only by knowing the client but by “seeing” the case, at least initially, from the client’s perspective, not yours.

Knowing the client, building the trust, involves small steps, none costly. Treat the client like a treasured member of your family. Greet him personally when he arrives at the office rather than dispatching a staff member to fetch him from the waiting room. If someone told you that your mother or father had just arrived in your waiting room, would you send a staff member to get them and bring them to you? Once in your office, remember that the desk itself is a barrier. Remove all barriers metaphorically, if not literally. Ask the question, and mean it: How can I help you?

In this way, the first meeting is always friendly, non-threatening. Some lawyers, not wanting to waste time (“Time is money”), use the first meeting to immediately challenge the client’s story, looking for weaknesses in it, trying to determine what the defence strategy might ultimately be. Patience, I say. There will be plenty of time for critical inquisition later. The first meeting requires more understanding, more listening, more learning.

I am not suggesting here that there can be no discussion whatsoever of fees during the first meeting. But if they are discussed at all, the discussion should occur at or near the end of the meeting. And it should be premised on the client’s need to know the business arrangements, because obviously a major concern of every client is the cost of the service provided. The client wants, needs and deserves to have this information. And that should be the spirit in which it is given. Never, ever, should the premise be that the lawyer does not trust the client and therefore needs certain commitments from the client “up front” or the lawyer will show him the door.

This is an excerpt from Patrick Ducharme’s book.

Book: 2018 Criminal Practice and Procedure

Patrick Ducharme's book: 2018 Criminal Practice & Procedure
2018 Criminal Practice & Procedure, by Patrick Ducharme

 

 

 

 

 

 

 

 

 

 

NOTE THAT PRINTING IS DELAYED to include extensive content on Canada’s new legalized  marihuana laws. New ammendments are anticipated to the Criminal Code of Canada and the Controlled Drugs and Substances Act. The author will discuss the impact of these provisions on persons that are convicted of marijuana related offences on international travel and investments.

Patrick J Ducharme
Patrick J Ducharme

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. 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.

 

Overview of Canadian Criminal Procedure

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

1 R. v. Clarkson, [1986] 1 SCR 383 (SCC).

This is a short excerpt from Patrick Ducharme’s book 2018 Criminal Practice and Procedure.

Personal Privacy Obliterated By Canada

Federal Government Is Continuing To Destroy Any Rights of Privacy

(from Patrick Ducharme’s blog at www.pjducharme.com)

Patrick Ducharme at a celebrity roast for charity
Patrick Ducharme

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.

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Co-Operation as Mitigating Factor on Sentence

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.
Thomas Brooks

Introduction

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”