In this episode, Jacob Roth and I discuss the strategies and issues that arise in evidence in chief. This includes, defining evidence in chief, how it differs from cross-examination, preparation, the Rule in Brown and Dunn, reasons why a lawyer might advise not to testify, how to obtain proper instructions, and many other crucial elements to properly prepare clients to testify.

Cases cited:

R. v. Le Goff, 2022 ONSC 609R. v. Quansah, 2015 ONCA 237R. v. J.K., 2014 ONSC 5347R. v. A.I., 2023 ONSC 1129

1. When Judges Err: The Case of Justice Goodman

We begin with the candid admission by Ontario's Justice Goodman, who realized he had read the wrong decision, resulting in Peter Khill receiving an extra two years in prison for manslaughter. We'll discuss the implications of such judicial mistakes, the ethical responsibility of admitting and correcting errors, and how this sets a precedent for transparency and integrity in the judiciary. Is this the kind of accountability we need more of in our legal system?

2. Navigating Sexual Evidence Outside Section 276: R. v. A.M., 2024 ONCA 661

I read summarize and read the recent case of R. v. A.M. that makes it clear that non-enumerated offences under section 276 are not categorically covered by it merely because it relates to sexual activity or topics, and in this case, the topic of human trafficking. An important case for the defence in vetting those cases that fall under s.276 and those that do not in light of the qualifications made in R. v. Barton.

3. Silence Speaks Volumes: Adoptive Admissions in Cudney v. R.

The Supreme Court of Canada recently dismissed the case of Cudney v. R. that explores the law on adoptive admissions. How an accused's silence can imply more than mere absence of words. In Cudney v. R., I explore when silence can be interpreted as an admission of guilt and the risks associated with police conduct that may endanger the accused. This obscure but important issue often arises in serious cases like homicide, where advanced rules of evidence come into play. Can silence truly be golden, or does it sometimes betray us?

4. The Hidden Dangers: Police Conduct and the 'Rat' Label in Custody

In this critical segment, we address the perilous consequences when police actions inadvertently—or perhaps negligently—expose an inmate as a "rat" within the prison system. Drawing from Cudney v. R., we'll discuss testimony revealing how detectives visiting an inmate's cell door can create a dangerous stigma, potentially putting the inmate's life at risk. We'll draw parallels with R v Blackman, where revealing someone's identity as a cooperating witness led to charges of intimidation. Should police be more cautious, knowing the dangers their actions may cause? Could such conduct amount to criminal negligence if harm comes to the inmate? We'll explore the legal and ethical responsibilities law enforcement has in ensuring an inmate's safety.

Finally, we tackle the tension between enforcing court orders and upholding an individual's right to a fair appeal process. In the denial of bail for Mr. Hoggard pending his application for leave to appeal to the Supreme Court of Canada, we see the courts weighing the enforceability of sentences against the potential merits of an appeal. We'll analyze how the public interest is served in such cases and what this means for defendants seeking higher judicial review after their convictions have been affirmed. Is justice better served by immediate enforcement or by allowing for exhaustive appeals? The decision on bail can be found here.

In this episode, I interview fellow criminal defence lawyer Ryan Handlarski on practicing criminal law in 2024. We discuss several topics including the ethics of bring a criminal defence lawyer, persuasion in jury trials, the idea of Law Society secret shoppers, the "myths" of sexual assault evidence, reactionary legislation form the Ghomeshi trial, and why being a defence lawyer does not necessarily align you with soft on crime policies.

GuestL Ryan Handlarki https://rhcriminaldefence.com/