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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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.

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Meeting the Client’s Witnesses: Be Patient, Be Supportive

Patrick J Ducharme
Patrick J Ducharme

So far as practicable, you should try to provide the same sort of empathy and support to the witnesses who may be called in support of your client. They too feel vulnerable when they deal with lawyers. Who doesn’t? But witnesses feel more than usually threatened. Except for the fear of punishment that the accused alone may face, witnesses consider that they are very nearly in the same position as the accused. They are unfamiliar with and usually frightened of the trial process, so they are reluctant to be involved. They need to be made to feel that the lawyer has taken into account their interest as well as those of the accused. They must come to see that the lawyer representing the accused is competent to handle the trial and to present them before the court without causing them humiliation or terror.

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Former coach denies wrongdoing

Windsor Star.

In video of police interview, accused says his intent with victim was not sexual

 

 

Former gymnastics coach Dave Brubaker, right, leaves the courthouse with his lawyer Patrick Ducharme in Sarnia following the first day of testimony in Brubaker’s sexual assault trial.
GEOFF ROBINS/THE CANADIAN PRESS Former gymnastics coach Dave Brubaker, right, leaves the courthouse with his lawyer Patrick Ducharme in Sarnia following the first day of testimony in Brubaker’s sexual assault trial.

 

Arrested and charged, former national gymnastics coach David Brubaker sat across from a Sarnia police officer in a sterile interview room trying to come to terms with his disgraced future. But, even after more than an hour of questioning from an officer who had his own conflicts in the case, Brubaker never wavered from one crucial fact.

I will die knowing that my intentions were never sexual or that my intentions were never to make her feel uncomfortable,” the 55-yearold former executive director of Bluewater Gymnastics told the officer in a videotaped interview about the gymnast complainant in the historical sexual assault case. On the second day of the trial of the high-profile Sarnian, it became more apparent the case is complicated. Continue reading “Former coach denies wrongdoing”

Judge finds driver not guilty in death of skateboarder

Windsor Star.

Brandin Crosier was not guilty of criminal negligence and dangerous driving when he struck skateboarder Adam Pouget on a foggy road in Amherstburg in November 2016, a judge ruled Monday.

There was stunned silence after Ontario Court Justice Sharman Bondy gave her decision. Then the sobs of Pouget’s family and friends filled the Windsor courtroom.

The prosecution failed to prove Crosier’s attempt to pass a vehicle on County Road 18 in the fog on the morning of Nov. 17, 2016, made him guilty of either criminal charge, Bondy said. When Crosier moved over to pass, his 2011 Ford Focus struck Pouget, who was skateboarding in the opposite direction.

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Driver Found Not Guilty In Crash That Claimed Amherstburg Man Skateboarding To Work

AM800 News.

An Amherstburg man has been found not guilty in a crash that claimed the life of a father of four children who was skateboarding to work.

Brandin Crosier, 24, had been charged with criminal negligence causing death after he struck Adam Pouget on a foggy morning in November 2016.

He was also found not guilty of the lesser offence of dangerous driving causing death. Continue reading “Driver Found Not Guilty In Crash That Claimed Amherstburg Man Skateboarding To Work”

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.

Meeting the Client: Be Interested, Stay Interested

A common complaint against criminal trial lawyers is that, at bottom, they tend to show little empathy for their clients. We are said to show more concern for ourselves, and our fee, than for the person who, after all, stands accused of a crime and faces the daunting power and authority of the police and prosecution. It may be true: the longer the lawyer toils away at this business, the greater the possibility that the lawyer will be insensitive to the particular plight of the individual charged.

The reason is that while clients come and go the lawyer’s daily experience remains relatively the same. And the more experience the lawyer acquires the less intimidating, the more routine, is the entire trial process. It is not arrogance or indifference which sets in, but the appearance of them. Hence, my first suggestion: be interested, stay interested. No matter how familiar the accused or the offences charged, try to know the client. Really. Know who that person is.

Someone once said that every human being has a thousand faces. Every human being is special and unique. What’s special about your client? Only when you know this should you concern yourself in detail with the manner and timing of the payment of fees. Build trust with the client. When you do, how and when you will be paid will be a natural part of the relationship.

This was an except from my latest book.

* In the next excerpt, I will answer the question “How does one build the trust”?

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.

 

Minimum Age for Criminal Conviction in Canada

Criminal Law Specialist Patrick Ducharme
Criminal Law Specialist Patrick Ducharme

In Canada, the minimum age for a criminal conviction is twelve.

Section 13 of the Criminal Code of Canada (“the Code”) provides that no person shall be convicted of an offence while that person was under the age of 12. Age is measured by chronological age and not according to intellectual capacity.1 Although the Code exempts a child from criminal liability, an adult may still be found to be a party to an offence committed by someone less than 12 years of age.2

References:

1 R. v. Sawchuk, (1991), 66 CCC (3d) 255 [1991] 5 WWR 381 (MBCA)

2 R. v. D. (R.C.), 1991 Carswell Ont 2215

This is a short excerpt from Patrick Ducharme’s book, 2018 Criminal Practice and Procedure, which is scheduled to be printed by April 30, 2018.