A statement by an accused person will be ruled inadmissible in evidence if it is the result of “fear of prejudice or hope of advantage.” In this respect the Court must find that there was a threat, promise or inducement, whether express or implied, that caused the accused to make the statement. The Court must consider the cumulative effect of what is said and done. The threat or promise or inducement can involve gain or prejudice to a third party. The focus is on the impact of the conduct on the accused.

An inducement generally will not exclude a statement unless there is a “quid pro quo” , raising the possibility that the suspect is confessing  not because of a desire to do so, but to gain the benefit offered by the interrogator. Statements resulting from spiritual exhortations or appeals to conscience and morality are generally admissible because any hoped-for advantage lies outside the control of the interrogator. Inducements are improper when, standing alone or in combination with other factors, they are strong enough to raise a reasonable doubt as to whether the will of the subject is overborne.

The Court must also consider whether the statement resulted from oppressive circumstances. These can include depriving the suspect of food, clothing, water, sleep, medical attention or access to counsel, excessively aggressive , intimidating questioning for a prolonged period of time and/or confronting the accused with fabricated evidence.

The Court must consider whether the accused had an operating mind; that is , whether he or she knew what he or she was saying and was saying it to a police officer who could use it to his or her detriment.

A further consideration is whether there was police trickery that, while not violating the right to silence or undermining voluntariness per se, is so appalling as to shock the community.

William Poulos, Barrister

Sometimes fresh evidence on an appeal from a criminal conviction can have a significant effect on the appeal outcome. However the appeal court will not accept fresh evidence routinely. Criteria must be met before the Appellate court will accept fresh evidence. The four-part test for the admission of fresh evidence on appeal is as follows:

1. The appellant must show that the evidence could not have been obtained by due diligence before the trial (though this is not always required in the criminal context);
2. The appellant must show that the evidence is relevant to a decisive or potentially decisive issue;
3. The appellant must also show that the evidence is reasonably capable of belief; and
4. The appellant must establish that the evidence, if believed, could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

William Poulos, Barrister

Perjury is a serious offence that is punishable by imprisonment up to 14 years. In Criminal proceedings the offence can result in a miscarriage of justice or the obstruction of justice. Perjury is a crime that primarily is based on an attempt to mislead through false evidence and includes a failure of memory that is dishonest and deliberately asserted to prevent the court from arriving at a decision upon credible evidence.

In a prosecution for perjury the Crown must show that (1) the evidence given by the defendant was false, (2) the defendant knew it to be so, and (3) this was done with intent to mislead the court.

William Poulos, Barrister

In an assault case, one should  consider whether the defence of self-defence applies. In some assault cases the facts will be so obvious that this defence clearly does not apply. However in other cases, an accused may wish to advance a self-defence justification. If the accused relies on this defence, the Crown must prove beyond a reasonable doubt that the defence does not apply.

The defence of self-defence has a number of elements including the following:

(a) that the accused was unlawfully assaulted;

(b) that the accused did not provoke the assault;

(c) that the accused did not intend to cause death or grievous bodily harm; and

(d) that the force that the accused used was no more than was necessary to defend him or herself.

Each case must be assessed on its own facts to determine if the defence of self-defence should be advanced on behalf of the accused. There are cases where A and B each assault each other during a fight but only A gets charged. However where A raises self-defence and this defence is persuasive on the facts before the court,the court has found the accused (A) not guilty.

William Poulos, Barrister

A failure to appear in Court charge is a true criminal offence which requires proof of mens rea or in other words, a guilty state of mind sometimes referred to as a guilty intention. The prosecution must establish a mental element, namely that the person who committed the prohibited act, did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Honest mistake or mistake of fact may negate the requisite guilty state of mind. A defendant is entitled to raise a defence of lack of guilty intention based on carelessness which falls short of wilful blindness or recklessness.

William Poulos, Barrister

The right to a fair and impartial trial is guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. Judges must base their decisions on an impartial review of the evidence and submissions of the parties. The judicial decision must be free of bias; bias is a state of mind that is in some way predisposed to a particular result or that is closed with regard to a particular issue.

Sometimes allegations of bias are made against Justices. The suggestion of Judicial Bias is extremely serious. The court reviewing an allegation of bias must consider what conclusion an informed person would draw, viewing the matter in a reasonable and practical way, and after having giving the matter sufficient thought. There must be convincing evidence to support a finding of a reasonable apprehension of bias. A suspicion is not enough.

William Poulos, Barrister

If the Police have reasonable and probable grounds to arrest a person for impaired driving or Over 80 , any breath tests with the Intoxilyzer must be taken “as soon as practicable”.

What does “as soon as practicable ” mean?  It means that the breath tests were taken within a reasonably prompt time under the circumstances. There is no requirement the tests be taken asap. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. The trial judge would look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of 2 hours from the time of the offence to the taking of the first test. The Crown is required to show in all the circumstances the breath tests with the Intoxilyzer were taken within a reasonably prompt time but the Crown is not required to provide a detailed explanation of what occurred during every minute that the accused is in custody.

Defence Counsel in these matters will analyze the chain of events and time periods to see if there is a reasonable argument to be made that the breath tests were not taken as soon as practicable.

William Poulos, Barrister

The credibility of witnesses at Criminal Trials is important. For example, a Crown’s case built on the credibility of one or two key witnesses can be destroyed if those witnesses are found not credible at trial.

The concept of credibility has two distinct facets: honesty and reliability. Honesty speaks to a witness’s sincerity, candour and truthfulness in the witness box.  Reliability involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue and the actual accuracy of the witness’s testimony. The evidence of even an honest witness may still be of dubious reliability depending on the circumstances of the case.

William Poulos, Barrister

No one is above the law. This includes the Police. In carrying out their duties in the heat of the moment, Police Officers must be very careful not to cross the line and break the law. Where this occurs and where it is the “clearest of cases” , the court has the power to stay criminal proceedings.

When can the Police cross the line? Below are a few examples of conduct that might lead to stay of criminal proceedings depending on the entire circumstances of the case. The examples below are but a few and are not exhaustive :

• Using excessive force during an arrest and unlawfully assaulting an accused person;
• Pointing a gun at an accused’s head where there was no logical basis for doing so;
• Slapping the accused’s cigarettes and lighter out of his or her hand;
• Pepper-spraying an accused when he refused to get out of his car for a breath test;
• Shoving an accused’s face against a brick wall after she complained about her handcuffs.

The Police in enforcing the law must be respectful of the law and the limits of their powers. They can not allow emotion to overrule reason, logic and can’t use excessive force against accused .Failure to stay within the bounds of the law, may give an accused a reasonable basis to argue that the criminal prosecution proceedings against him or her should be stayed because of the Police’s misconduct.

William Poulos, Barrister

The Canadian Criminal Offence of Mischief, for example Mischief under $5,000, has its unique requirements pertaining to the damage analysis. To criminalize mischief, the damage to property must be more than negligible, more than a minor inconvenience. To prove damage ,the Crown Prosecutor must show that the usefulness or value of the property in question has been impaired, at least temporarily.

Drawing the line as to whether the case falls into the Criminal realm of Mischief will not always be easy and important distinctions may have to be made. There are so many types of properties and manners/ways that damage can arise. Some cases will be more obvious than others.

William Poulos, Barrister