Tricks of the Trade and Troublesome Traps…. Things Every Criminal Lawyer Ought to Know…and AVOID!

Over the course of career spent (largely) getting beaten up over at the courthouse, it stands to reason that aside from having resilience (read: thick skin) as a primary virtue, the typical criminal defence lawyer might have a few (ethically proper) tricks up his or her sleeve. With that in mind, I embark on a largely random process of culling various and assorted snippets of legal tricks of the trade, counterbalanced with a few troublesome traps. The list is by no means exhaustive, but may provide a little something in the back pocket that may or may not come in handy in a pinch.

So, in no particular order, we thus embark.

Trap: Visiting the client with the sins of the lawyer…

While the rule in Browne v Dunn is a basic tenet of criminal law practice, the nicety of the rule generally isn’t part of jailhouse folklore, and such clients, who typically (and understandably) are on the lookout for no one but themselves, often take a “let’s wait and see what they say” attitude before engaging in the precarious process of melding their trial narrative to fit the facts.
Of course nothing could make the life of the defence lawyer more difficult than the shifting sands of the client’s chameleonic testimony. How often as counsel have you stared incredulously at your client–who is testifying in chief–and thought, where in the hell did that come from??
Aside from your personal anguish, to make matters even worse, your failure to adhere to the the rule can adversely impact your client’s credibility at large and could cause you no end of grief and headache.
As is typically the case, this rule originated (or was expanded, to some extent) in a notorious case. In Marshall, the accused (a murdering drug dealer from Quebec) provided a variety of (admissible) statements to investigators that he and the deceased traveled together in his girlfriend’s Jeep from Montreal to Toronto to sell 5kg of cocaine. At trial, in stark contrast, he testified he borrowed a different car from his girlfriend, and the two drove separately to Toronto–adding that he stayed behind in Montreal to attend a birthday party. Neither Crown nor defence called any evidence from the girlfriend or anyone at the likely-bogus birthday party to corroborate (or contradict) the accused’s evidence on these points. Because the deceased’s blood was found in the Jeep, it was important for the accused to distance himself from that vehicle. The Crown called some of the accused’s criminal associates to elicit details of the drug deal. Much of the accused’s version as to “how it went down”, so to speak, was not put to these collateral witnesses.
It was determined–appropriately–that the trial Judge had three options open to him once the proverbial shit hit the fan: declare a mistrial; recall the witnesses; craft an instruction to the jury. The option of the instruction to the jury would be most beneficial to the accused, as the Judge would have to offer an instruction that the fault for failure to cross-examine rested with the accused’s lawyer, not the accused himself, as it may have been a “tactical decision”. The judge did, however, rule that it was okay for the Crown to cross-examine the accused about the questions his own lawyer did not raise when cross-examining the Crown witnesses (no place for a nervous lawyer to be, for sure, especially in front of a jury), and the Crown was presumably ecstatic to do so, and did so with great glee.
Although the Judge was careful in his charge to state that the “sins of the lawyer…should not be visited on the client”, he did state that “It is most problematic whether the failure of defence counsel to put the allegations to the Crown witnesses when they testified during the Crown’s case, should reflect adversely on the accused”, thereby seemingly opening the door to an adverse inference scenario.
On appeal, the Court was of the view that not only was the cross-examination by the Crown totally permissible, but that “the failure of counsel to cross examine Crown witnesses on central aspects of the appellant’s testimony was relevant to his credibility and it was proper for the trial judge to tell the jury that they may take this into account in assessing the weight to be given to the appellant’s uncontradicted evidence on these key issues”.
The Browne v Dunn failings in this case were so glaring it almost begs the question as whether they were deliberate. That being said, the case is not completely awful and it does have has utility for the defence and can be used to defence advantage. On the Browne v Dunn issue, the court stated:

The potential relevance to the credibility of the accused’s testimony of the failure to cross-examine the complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors. These include the nature of the matters on which the witness was not cross- examined, the overall tenor of the cross-examination, and the overall conduct of the defence. In some circumstances, the position of the defence on matters on which the complainant was not cross-examined will be clear even without cross- examination. In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case. In such situations, the failure to cross- examine will have no significance in the assessment of the accused’s credibility.

It should be noted, of course, that counsel are not obligated to waste hours of court time engaged in a futile cross-examination of an obdurate witness who shows no signs of revising or recanting his earlier testimony, see Khuc.

Make note as well that while it is popular to consider the rule as applying strictly to the defence, it does apply mutatis mutandis to the Crown. In McCarroll, a defence witness was not cross-examined as to his potential motive to lie, nor on his credibility at large. However, this formed a significant part of the Crown’s closing argument. The court ruled that the credibility of the witness was “central to the appellant’s position. Crown counsel’s treatment of his evidence was therefore highly prejudicial to the defence. The Crown’s decision not to put [the witness’] honesty in issue during the trial may well have influenced [the witness’] testimony as well as decisions the defence made to advance the case”.

While the court ruled that the trial judge’s “silence on this issue” amounted to a reversible error, it did not say what the trial judge was supposed to do.

In such circumstances, it is arguably appropriate to invite a judge to charge (or self-charge) in the same we she would on a lost evidence case, namely that the fundamental reliability of the Crown’s case was suspect, such as in Bero:

Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. These instructions may also help the jury assess the overall reliability of the investigative process which produced the evidence relied on by the Crown, and help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence.

Trick: Splitting cases and splitting headaches…

Closely allied with the Browne v Dunn scenario is the one related to reply evidence. We all know that the Crown ought to call all evidence in its case probative of guilt…so where and how and under what limited circumstances should the Crown be permitted to call reply evidence?
Regard is had to the 1977 OCA case of Campbell, a case with facts so bizarre and sad they could have only emanated from Essex County (or, alternatively, Fargo, South Dakota).
The accused was charged with the attempted murder of his wife. She and the accused lived in the United States and she testified that just prior to the trip they made to Canada the accused went on his own to get some gasoline. They then proceeded to Canada and at some point the car was stopped. The accused then insisted that she look in the trunk. As she was doing this the accused shot her. He then shot her several more times, poured gasoline on her and set her on fire. The accused testified and denied going to get gasoline and denied being near the trunk of the car earlier that night before they came to Canada. He testified that in fact when they stopped the car his wife threatened him with a gun, threw gasoline at him, blinding him, that the gasoline blew back at her and was ignited by a cigarette she was smoking, that her gun fell and he picked it up and shot blindly but not intending to kill her.
One very piece of incriminating evidence was that the accused (after purportedly washing his eyes out with snow) left his wife behind–somewhere in the vicinity of Harrow–then drove back to the US side of the Ambassador Bridge, where he informed a US Customs officer, “I just killed my wife”, although quite naturally and expectedly, the accused tempered this comment with the proviso he “didn’t mean to shoot her” (bearing allegiance to the immutable rule of criminal shootings, that all guns are pointed with the intention of scaring, not shooting, and that during those nervous moments, all gunfire is accidental).
In any event, there were two issues related to reply evidence in this case, and they adequately explain the working of the rule. First, the Crown called one witness who was purported to have seen the accused opening the car trunk, and a second witness, an expert, on the issue of the ignition of the gasoline, i.e. whether the accused’s story was scientifically feasible.

In addressing these issues, Justice Martin noted:

The general rule with respect to the order of proof is that the prosecution must introduce all the evidence in its possession upon which it relies as probative of guilt before closing its case…. The rule prevents the accused being taken by surprise and being deprived of an adequate opportunity to make a proper investigation with respect to the evidence adduced against him. The rule also provides a safeguard against the importance of a piece of evidence, by reason of its late introduction, being unduly emphasized or magnified in relation to other evidence.

Rebuttal evidence by the prosecutor is restricted to evidence to meet new facts introduced by the defence. The accused’s mere denial of the prosecution’s case in the witness box does not permit the prosecution in reply to reiterate its case or adduce additional evidence in support of it. In practice, however, it may be difficult to distinguish between evidence, properly the subject of rebuttal, and evidence of facts relevant to prove guilt which should have been proved in the first instance by full presentation of the prosecution’s case….

The court has, however, discretion to admit evidence in reply which has become relevant to the prosecution’s case as a result of defence evidence which the Crown could not reasonably be expected to anticipate.

Further, the court gave tacit approval to the following comment from Coombs:

From these authorities and others I think it is clear that the Judge in each case has a discretion with regard to the admission of evidence in rebuttal and that in exercising his discretion he should not generally allow such evidence to be given when it has before or during the presentation of the Crown’s case been both within the possession of the Crown and clearly relevant to the issue.

The court ruled that the evidence from the lay witness–since it was in the possession of the Crown–ought to have been adduced in chief (even though it was of nominal value), but that the expert evidence in reply was properly admitted:

The expert evidence however, was not primarily evidence upon which the Crown relied as probative of guilt; rather, it was adduced to refute the case advanced by the appellant in his testimony, supported by the evidence of a defence witness, a mechanic and a service station lessee, who testified that under the prevailing weather conditions, if a person with a glowing cigarette threw gasoline from a can at another person there was a “good chance” of the thrower igniting himself as a result of the back-splash of gasoline.

Although the appellant’s version of events was to some extent foreshadowed by the cross-examination of the complainant, the issue to which the rebuttal evidence of the expert witness was directed did not arise until the appellant testified.

While we are on this topic, please keep in your back pocket and in your mind the OCA decision Melnichuk, and in particular the comments of Justice Doherty:

I am aware of no authority which permits the Crown to assume that a material element of its case will go unchallenged and to call reply evidence when that assumption is not borne out by the conduct of the case for the defence. This submission ignores the burden of proof which rests on the Crown throughout the criminal trial process.

In other words, the Crown can’t run a lousy case and hope to patch it up in reply. Justice Doherty’s comment–who was in dissent at the OCA level–received the nod of approval on this point on later appeal by the majority of the SCC.

Trick: Thus spake the client…spontaneous utterances!!!

Astute readers will note there was also a sidebar issue in Campbell, which related to the admissibility of the accused’s statement to the Customs Officer, specifically as to whether the accused could testify as to his exculpatory statement to the Customs Officer.
From time immemorial, it was thought by the village elders that a statement of an accused could only be admissible at the instance of the Crown, and even then only after it was proven to be voluntary.
Although the Trial Judge in Campbell did allow the accused to testify as to what he said (and even at that he expressed some reservation about the correctness of that ruling), he did not allow the recipients of those comments to testify as to what they heard the accused say: this formed a ground of appeal.
The OCA ruled that if it was apparent the Crown was alleging recent fabrication on behalf of the accused, then the accused was entitled to state his narrative. In this case, the appeal court was not convinced that recent fabrication had been raised, so that being the case, it was not open to the accused to allege the trial judge had not gone far enough, when arguably he should not have gone there at all:

Much of the cross-examination of the appellant was conducted with a view to showing certain improbabilities in his story. If a witness cannot be cross-examined with a view to showing that his story is improbable, without bringing into play the exception arising from a suggestion of recent fabrication, he cannot be cross-examined at all without making the exception operative. Mr. Gold’s submissions really amount to this: in every case where the accused denies the truth of the Crown’s case, there is an implicit allegation that his story has been recently contrived. I do not think the exception is so broad.

Fast forward to 1996 and to yet another Windsor case, Edgar. In 2010, (yes, 14 years after the fact), the OCA revisited the rule prohibiting prior consistent statements of an accused, and reached a conclusion which is much more liberal in its scope and of definite assistance to the defence.
In this case, the appeal was based on the failure of the trial Justice to enter into evidence the entirety of Edgar’s post-offence statements to the police. There were three statements, two made shortly post-arrest, and a third made four hours after arrest. All were exculpatory.
The court recognized four exceptions to the rule prohibiting the introduction of prior consistent statements: state of mind exception; the rebutting of recent fabrication; “mixed” statements (a blend of exculpatory and inculpatory statements tendered by the Crown); and a res gestae exception.
The court concluded that all three statements were admissible, under the following proviso:
…it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination….the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.
Note that as the law now stands, the accused’s statement is not contingent on it being a statement to a police officer: it applies to statements made upon arrest or when first confronted with an accusation, see Kailayapillai. Where an accused has time to “think things out”, this will militate against admission, see Badhwar, although it is not necessarily “the number of minutes, seconds or hours between the events and the making of the statement, but the issue is the probative value of the statement. The probative value of the statement may be substantially reduced by the passage of time depending upon the intervening circumstances and depending upon the issue to which the statement relates”, see Oram.
Bear in mind it is totally appropriate to recall the recipients of your client’s statement for corroboration purposes (in other words, don’t let the Crown send the officers home), or at a minimum have the Crown stipulate the words were thus spoke: Code, s. 655.
Trick: Officer, you don’t know Zack!

Bruce Duncan is a pretty darn good Provincial Court judge in Brampton. He has a strong Windsor connection–Andrew Bradie was his best man, and was the one time “go to” guy for appeal work (at least out of Windsor’s chambers at 691 Ouellette).
I would commend Judge Duncan’s decisions on just about anything to anyone…he has written several good ones on impaired and over .80’s, including Zack, which is a handy little case on the importance of note-taking by police officers.
In Zack, the defence brought a Charter motion alleging lack of reasonable and probable grounds to effect an arrest of an impaired driver. The officer testified that the defendant was unsteady on her feet, and that she (the defendant) was confused. This did not appear in the officer’s notes. The officer explained this away by stating that these observations were “something she would remember”, so therefore no need to reduce them to note form. Stated Justice Duncan:

The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure, it cannot be an acceptable explanation for a police officer to say ‘I did not note it because I would remember it’. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations he made. In my view, the absence of the questioned observations in his notebook leads to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. I cannot accept, on the balance of probabilities, that those observations were made.

So, astute lawyers, remember to phrase your cross-examination in like circumstances with the proviso, “So, it is not in your notes because you knew you would remember it, correct?”

Trick: I know your Honour just found my client guilty, and I know he didn’t testify, but now I would like him to testify, okay?

You don’t hear counsel saying those words too often, but guess what, there is authority for the proposition you can seek leave to have your client testify after a finding of guilt. Strange but true.
In Lessard, it was held a judge is not functus officio until he has imposed a sentence or otherwise finally disposed of the case. Therefore, a judge who has made a finding of guilt, either as a result of a guilty plea or on disputed facts, is empowered to vacate the adjudication of guilt at any time before sentence is imposed. Of course, the exercise of discretion in such circumstances is the product of exceptional circumstances.

In Lessard, the defendant was allowed to re-open his case post-finding-of-guilt based on his general nervousness throughout the trial process, and his overall mental condition. Happily, the defence had psychiatric evidence to bolster its submissions on the point. Referencing British case law (who can resist any judgment of Lord Borth-y-Gest?), in S. v Recorder of Manchester, the court stated that: “The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty.”

Trick or Trap? The rule in Coke’s case…

This should be basic knowledge for all criminal law practitioners…when it comes to sentencing, you can’t be sentenced as a second time offender unless you have been sentenced as a first time offender. In other words, if you commit an offence while out on bail, you are considered a first time offender for both offences, since you had never been punished for the first offence before committing the second offence.

The leading case is Skolnick, where the chief Laskin J. opined:

The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction, as the case may be, and the second or subsequent conviction must have been made after the first or second conviction, as the case may be.

The rule has a more specialized application in impaired driving cases, where of course mandatory minimum sentences raise their oft-ugly heads.

So far so good…so this means that if you were treated as a first time offender on two prior impaireds (say, for instance, if the Crown did not rely on Notice for the second conviction), that you would be treated as a second time offender on your third impaired…right? Trap! It is not the fact of the degree of punishment which is imposed, it is the fact that there are subsequent convictions which governs: Nicholson.

Of course, the fact your client is racking up convictions doesn’t prohibit a judge from imposing whatever sentence he considers fit…it only means that the mandatory minimums are not triggered. And of course, the fact of committing further offences while on bail is a factor to be taken into account in considering the rehabilitative prospects of the client. So as is often the case in criminal law, you can win the battle but lose the war.

Trick: Shoppers, save time and money on bail reviews!

Q: What is the most expensive part of any bail review? A: the transcripts, of course!

Q: What is the most time consuming part of a bail review? A: Reading the selfsame transcripts, natch!

These days, where the typical bail hearing is as long as if not longer than the ultimate trial, it is helpful to know there is judicial authority for the prospect that you may certainly conduct a bail review without resort to transcripts: see Carrier.

Consider a circumstance where the client is released on consent, but there has been a change in circumstance. The Crown is politely but firmly rejecting your overtures to vary the bail order. I find that booking some bail review time and filing an Application tends to focus Crown energy on achieving a negotiated settlement.

A supplementary trick is that once you have the Crown consenting to your variation, bring the information forward in provincial court, effect the variation, and abandon the bail review. This makes everyone happy, maybe even you.

Trick: Tenuous at best…but admissible!

An authority no lower than the Supreme Court of Canada has ruled that the standard for admission of defence evidence is lower than that for Crown evidence…yes, stop the press…it is not a level playing field…in this instance, it is actually tilted…in our favour!

The case is Seaboyer which of course is ostensibly about the rape-shield provisions that now form s. 278 of the Criminal Code. Make note of this very nice defence-friendly passage authored by Justice McLaughlin:

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

It is a handy case to reference in the event your trial is going badly and if the only evidence you have is something that is arguably inadmissible, like some third-party hearsay or your client’s highly calculated post-offence self-serving statement. And in any event, if it goes from bad to worse to downright awful, there is nothing wrong with quoting this case as a last ditch effort, which not only will show you know the law, but it puts something on the record in the event of an appeal.

Trap: Explaining away the Crown’s case…not exactly!

I have often wondered what trials would be like if we lived in a hypothetical world where the accused was entitled to testify first, rather than last. Can you imagine the dynamics of a two witness domestic case where the accused could testify first? One wonders how many complainants would end up being convicted! The chronological way in which trials are conducted (bearing in mind you have to start somewhere) in some ways grants an imprimatur of legitimacy to the Crown’s case that it often doesn’t deserve.

That being said, bear in mind it is not the responsibility of your client to explain away the Crown’s case. In Tonbram, a murder prosecution of a storeowner, Crown witnesses stated they observed a male placing a rolled-up and bulky carpet in the trunk of a light coloured vehicle–the theory being that the male was the accused and inside the carpet was the deceased. Unfortunately, the accused did not own any vehicle that matched that description. In cross-examining the accused, the Crown suggested that the appellant had extended credit to some needy customers, and they returned the favour by lending him a light coloured car. The appellant denied this and of course there wasn’t a shred of evidence or for that matter a good-faith basis to support the contention: see Lyttle.

The court ruled that it was “wrong for the Crown to present speculative propositions, unsupported by the evidence, in an attempt to explain away gaps in the Crown case or inconsistencies in the evidence…[and] the suggestion the accused had borrowed a car on the night of the murder to dispose of the body [was] close to, if not over the line.”

Similarly, in Walker, the elderly accused was charged with the murder of a 29 year old female–the Crown’s theory was the death was caused from injuries arising during a sexual assault and that the deceased body was placed in a hockey bag while she was still alive. The medical evidence as to the cause of death was inconsistent, there was no evidence to support the “buried alive” scenario. In dissing the Crown, the appeal court ruled that “The [Crown] statements also suggest the she was alive when she was buried. None of these possibilities arising out of the positioning of the body was explored through the forensic experts. Crown counsel was not entitled to conjure up such a horror story in the absence of any evidence to support it.” Further, the Crown alleged the accused had struck the deceased over the head with a pipe. The court ruled that “The inability of the experts to exclude various possible causes of death was not evidence as to their existence”. A new trial was ordered.

For further caselaw on this point, see Nugent [not Ted Nugent, but R v Nugent (1995) 100 CCC (3d) 89 (OCA)]

Trap: The State of Alabama v Gambini & Rothestein

This is not a real case, but it stands for a real proposition. Gambini & Rothestein were the two kids in My Cousin Vinny. Recall upon arrest, Gambini told the officer, incredulously, “I killed the store clerk???!!!!!?” Later, the officer testified–sans inflection–as to the “fact” of this “admission” that the young Yankee had killed the clerk.

In Ferris the Alberta Court of Appeal ruled a trial judge was wrong in permitting a portion of a conversation to be admitted into evidence. The accused had been arrested for murder and requested to make a call to his father. The call could only be made from the homicide office within the detachment. The officer who took the accused there heard the accused say during the call “…I killed David…”:

The court held the snippet of conversation ought to be ruled inadmissible.

The facts of this case are unique in that there exists no circumstances or context from which the true meaning of the words can be inferred. It is uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It is uncontradicted that the words could have come at the beginning of a sentence, or at the end, such as ‘They think I killed David’, or ‘They think I killed David, but I didn’t’. His father could have asked him what the police think he did and he could have replied ‘I killed David’. Those utterances do not prove any fact in issue and are not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words ‘….I killed David….’ Contain therein are numerous. There is no way of determining the meaning of thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words.

The Ferris decision was affirmed by the SCC and was reconsidered by the Ontario Court of Appeal in Hunter. There, the Crown sought to call a defence lawyer (believe it or not!) who overheard the accused speaking to his lawyer in an open area at the Toronto Old City Hall Courthouse. The lawyer claimed to have heard part of conversation, namely that of the accused stating: “I had a gun, but I didn’t point it”. On a voir dire, both the accused and his counsel denied ever saying that. The appellant was convicted.

On appeal, the decision is Ferris was revisited and endorsed. Justice Goudge wrote:

Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.

The court ruled that the admission of the overheard statement resulted in a substantial wrong or a miscarriage of justice:

The Crown argued that even if the overheard utterance was admitted in error, it resulted in no substantial wrong or miscarriage of justice. I do not agree. The Crown characterized this evidence as very critical. Moreover, in the appellant’s first trial where the one significant difference appears to be that this evidence was not called by the Crown, the result was a deadlocked jury and a mistrial. I do not think it can be said that without this evidence the verdict would necessarily have been the same.

Trap: Certain curious circumspect circumstances of circumstantial evidence & circular logic…

I recall a colleague of mine once talking of a jury case involving an allegation of drug possession. The evidence was circumstantial, but nonetheless halfway through the trial, a question arose from the jury: “Where did the accused get the drugs?” Since the whole case was about whether the accused actually even had the drugs, and he hadn’t even testified, this hardworking jury went home early: a mistrial was declared.

Trite, but true, that the building blocks that lead to proof beyond a reasonable doubt have to be made of real brick and mortar. What I mean by this is that one should beware the trap of admitting something that is not known…every iota of circumstantial evidence deserves its own challenge. And the only thing worse than admitting one thing that is not know, is admitting two things that are not known.

Perhaps to better illustrate this point, regard is had to Portillo. Noe and Wilfredo Portillo were a couple of Windsor drifters who were charged with the strangulation murder of an elderly man. The case was entirely circumstantial.

Underneath the deceased’s head was a scrap of paper with a footwear impression on it, and a similar footwear impression was found outside the deceased’s apartment. Two shoes bearing similar size, shape and tread patterns were found near–but not in–Wilfredo Portillo’s apartment. Although at trial the defence argued against the admissibility of the footwear evidence on the basis of probative value vs. prejudicial effect, the evidence went in anyway. The Crown argued the finding of the shoes and the shoeprints was such an ironic coincidence and was worth a few grains of circumstantial salt.

The court held that the trial court was wrong in admitting the evidence. It was not known that the shoeprints came from the found shoes, and just because the shoes were found near where Portillo lived, did not mean they were Portillo’s shoes–let alone that he was wearing them inside the deceased’s apartment at the time of the murder:

The evidence was offered through an expert witness who gave evidence in a forthright and objective manner. The expert used a variety of demonstrative aids, including charts and photographs to explain his evidence to the jury. Both the source of the evidence, and the manner in which it was presented, may well have given it an aura of cogency which on close analysis it does not deserve. ….[in] Crown counsel’s closing argument, the jury was invited to engage in the circular reasoning I have described above. While initially attractive, that reason goes beyond inference to assumption and speculation.

A similar circumstance arose in the earlier case of Town, a baby-shaking murder case, where the Crown sought to use the accused’s prior (alleged) intentional conduct towards the child to prove the accused’s (alleged) present intentional conduct. Regard was had to Millar and a specific quote from People v. Albertson (1944), 145 P.2d 7 (Ca.SC):

Circumstantial proof of a crime charged cannot be intermingled with circumstantial proof of suspicious prior occurrences in such manner that it reacts as a psychological factor with the result that the proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must also have committed the crime charged. This is but a vicious circle. Here the evidence of suspicious prior occurrences affords no substantial proof whatsoever connecting defendant in any way with the charge on which he was tried.

As a mathematician might say, “0 + 0 = 0, not 0 + 0 = 1”.

Trap: When is an alibi not an alibi?

Remember back in the pre-Swain days, when the Crown was allowed to raise the accused’s mental state in order to “help” him? And then argue he was insane and have him remanded into custody to the pleasure of the LG ad infinitum? Those days, happily, are gone, but not the occasional soi disant helping hand extended by the office of Her Majesty.

Beware, for instance, of the trap that lurks where you are alleged to have raised an alibi defence. Consider the case of Wright.

The accused was implicated in a home invasion robbery. The evidence in chief was that a young man, Acosta, testified a female, Reid, attended at his house along with two other men, one of whom was the accused. Reid asked Acosta to take the other two men to “Randy’s” apartment to get drugs, which he did, and within where both Randy and Acosta were assaulted and robbed. Acosta–who claimed he was just “helping out”–identified Wright as an assailant. Randy, not surprisingly, had no idea who did what.

Reid (aka the “moll”) did not cooperate with the police and she did not testify at the preliminary hearing. At trial, she was the only defence witness–and only (so it is writ) met Wright’s lawyer at the courthouse in response to a Crown subpoena. (Quaere whether the Crown was more than happy to extend the largesse of the state to subpoena the young lady, with the reward of being able to cross-examine?) The defence apprized the Crown of the sum of her evidence. At trial, she testified that Wright stayed behind with her at Acosta’s apartment, that Acosta and the other individual went to Randy’s apartment, and that when Acosta returned, he was bloodied and angry.

The Crown requested an adverse inference instruction on what it characterized as untimely disclosure of the so called alibi. Apparently but sadly, the defence was okay with this. [Sidebar: for just about anything you need to know about concocted statements and adverse inferences, see Coutts & Middleton, and as to concocted alibis and adverse inference, see Levy.] On appeal, while there was no argument on the law, the issue was whether this was even an alibi to begin with.

The court held that:

The appellant’s defence, as advanced through Ms. Reid, was not based on facts extraneous to the facts as alleged by the Crown. To use the language in Cleghorne…the appellant’s defence was not “entirely divorced from the main factual issues surrounding the corpus delecti”. The defence was an admission of some involvement in the relevant events coupled with a denial of any involvement in the crimes.

The court held that “The prosecution did not need advance notice from the defence to appreciate that Ms. Reid’s version of events was relevant to its case against the appellant. Indeed, the police attempted, albeit unsuccessfully, to obtain her version of events. It cannot be said that without advance notice from the defence the prosecution had no reason or opportunity to explore Ms. Reid’s version of the relevant events. Consequently, the rationale for the adverse inference instruction does not operate in this case.”

Further, the court ruled that:

An alibi claim places an accused elsewhere and does not implicate the accused in any way in the crime which he or she is charged. Had the appellant disclosed his defence, he would have implicated himself by acknowledging his presence at the outset of the transaction with those who eventually committed the crimes. Prior disclosure of this kind of defence could well generate new theories of liability based on accessorial responsibility. To require an accused to disclose this kind of defence and thereby implicate himself in the crime, or risk an adverse inference instruction, is to impose a significant intrusion on the accused’s right to silence.

So, in other words, you don’t have to disclose your client’s alibi that he was in the men’s room when the fight in the bar started. Or that he wasn’t the driver of a car, but was a passenger instead: Loutchinski.

Epilogue: Sequel teaser…??

The author hopes that there may be a nugget or two in the aforesaid pages. A few topics have gone untouched but not unnoticed, such as “the theory of the Crown”, or adverse inferences from the failure to call witnesses, or the duty to call witnesses, and others TBD & TBA. Suggestions for other peaks and valleys worth exploring are humbly invited…and given interest, Tricks & Traps, Part II may appear at a later date.

To all of my hardworking colleagues, I hope that any of this has some utility.

All of which is respectfully submitted, this 31st day of March, 2015.


* Member of the Windsor Criminal Lawyers’ Association. The opinions set forth in this paper are those of the author. The matters discussed herein are of general application only; counsel are urged to engage in their own independent research. This paper was delivered as part of a continuing legal education program to the WCLA, April 1, 2015.

About johndliddle

John Liddle is a Windsor, Ontario criminal defence lawyer. He was called to the bar in 1990 and is a member in good standing of the governing body for Ontario lawyers, the Law Society of Upper Canada. He has been a sole practitioner concentrating on the practice of criminal law since 1992. He has experience in handling all manner of criminal cases in all levels of criminal courts in Ontario.
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