The Robichaud Report

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.

Case commentary and full decision reading of the Ontario Court of Appeals decisions in R. v. Zhou, 2024 ONCA 658 and R. v. Vassel, 2024 ONCA 666 released on September 6, 2024.

In R. v. Zhou, 2024 ONCA 658, Biao Zhou, who represented himself at trial, was convicted of sexual assault and forcible confinement in connection with an incident in January 2016 involving a university student who had rented a room from him. Zhou maintained that the sexual contact was consensual, while the complainant alleged that he assaulted her. The complainant's account included an unwanted sexual act that resulted in her purchasing a Plan B pill afterward. Zhou's defense centered on the claim that the interaction was consensual and that the complainant had misinterpreted his offer to give her an iPad as compensation for the assault. The jury ultimately found Zhou guilty.

On appeal, Zhou and his amicus curiae raised multiple grounds, including challenges to jury selection, claims of errors in the trial judge's instructions, and issues with the Crown's closing submissions. The Ontario Court of Appeal rejected these arguments, finding that any procedural errors, such as those related to peremptory challenges during jury selection, did not result in prejudice or compromise the fairness of the trial. The court upheld the conviction, ruling that the appellant had a fair trial before an independent and impartial jury, and that there were no reversible errors in the conduct of the trial.

In R. v. Vassel, 2024 ONCA 665, the Ontario Court of Appeal dismissed an appeal regarding convictions for first-degree murder and conspiracy to commit murder. The appellant argued that the trial judge made errors in jury instructions and failed to ensure a fair trial. The Court of Appeal found no reversible errors, ruling that the jury had been properly instructed and the appellant's rights were upheld throughout the trial. The appeal was dismissed, and the original convictions were upheld.

This episode examines the recent decision in R. v. Reimer, 2024 ONCA 641, from the Ontario Court of Appeal, which addresses the contentious issue of admitting prior sexual activity as evidence under section 276 of the Criminal Code. We explore the court's reasoning on the relevance of sexualized text messages in assessing consent, the distinction between the law of consent and evidence, and the legal parameters of the "narrative exception." Additionally, the discussion covers the implications of using demeanour evidence in sexual assault trials.

"A number of the sexualized texts have obvious relevance on the issue of consent. As indicated, after the meeting was scheduled, the parties exchanged sexualized text messages describing what they intended to do when they met...Even though individuals can say things that they do not really mean or change their minds, it is an incontrovertible proposition of logic and human experience that a statement of present intention to do an act at a future time increases the likelihood that the speaker will engage in that act on that future occasion. Because of the sound logical foundation for this kind of reasoning, the law of evidence has recognized a hearsay exception that admits statements of present intention as evidence that the speaker later carried out that intention.""I am also persuaded that the trial judge erred by accepting the submissions of the Crown and complainant’s counsel that the earlier expressions of consent were not relevant as a matter of law because consent must be given at the time of the sexual touching (the “contemporaneity rule”). This rule has no application to the lines of reasoning I have described. Neither of those lines of reasoning depend upon the theory that the consent the complainant expressed earlier was the consent provided in the motel. They depend, instead, on the theory that her earlier statements of intention to consent are relevant to the question of whether she did, in fact, consent during the meeting in the motel room. The Alberta Court of Appeal rejected a similar overextension of the contemporaneity rule in McKnight. The Alberta Court of Appeal commented, at para. 261, that this kind of error “conflates the law of consent with the law of evidence.” The Court in McKnight, at para. 261, cited Professor Lisa Dufraimont’s observation made in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at p. 328, that “the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.” R. v. Ewanchuk is one of the leading authorities insisting that consent must relate to the complainant’s subjective state of mind at the time of the sexual activity: [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481, at para. 26. Yet in that decision Major J. recognised, at para. 29, that, “the complainant’s words and actions, before and during the incident” can be considered in determining whether a complainant has consented at the time of the sexual activity. So long as the earlier words or action are relied upon because they have a tendency in logic and human experience to support the likelihood that the complainant consented at the time of the sexual activity, they are not rendered legally irrelevant by the contemporaneity rule. In my view, the trial judge misapprehended the contemporaneity rule, erring in law."

In this episode, I take an in-depth look at the challenges faced by self-represented litigants (SRLs) in Ontario's court system. With rising legal costs and limited access to legal aid, more individuals are choosing to represent themselves, often without fully understanding the complexities and risks involved. I explore how this trend impacts not only the individuals but also the efficiency and fairness of the judicial process.

Through real-life cases like Ilaslan v. Poirier, expert insights from Dr. Julie Macfarlane, and a discussion of key legal principles, I uncover the harsh realities of self-representation. From the illusion of control to the critical importance of understanding procedural rules, this episode offers practical advice and sobering reflections for anyone considering this path. I also examine the role of judges in guiding SRLs and the potential consequences of missteps in the courtroom, highlighting the need for greater support and resources.

 I am making these preliminary comments to reiterate what has been stated over and again by countless legal professionals, scholars, and judges from all levels of court over the course of too many years.[1]  Our adversarial system, no matter how much effort we devote to making it user-friendly, is not suited for self-represented litigants. -  Ilaslan v. Poirier

Whether you are a legal professional, an SRL, or simply interested in the legal system, this episode provides a thorough exploration of what it means to face the courts alone and the broader implications for access to justice in Ontario.

Guides for self-represented litigants via the Canadian Judicial Council:

The duty of the Court to assist via R. v. Forrester, 2019 ONCA 255 (CanLII), <https://canlii.ca/t/hzhx3

In this episode I read and comment on three recent decisions of interest. 1) R. v. Gauthier, 2024 ONCA 621: the Ontario Court of Appeal examined the circumstances of the voluntariness of two spontaneous statements and whether the accused had a "reasonable expectation of privacy" in voicemails left to a doctors office that were threatening and harassing in nature. I offer critique on the judgment and disagreement with the Court's conclusions at (00:36:00) 2) R. v. Gomez, 2024 ONSC 4439: the Court considers the difficulty and inconclusiveness of BAC readings to a drivers impaired state. 3) R. v. Khandakar, 2024 ONCA 620: the Ontario Court of Appeal discusses "refusal" charges in the context of ASD demands and how Donik applies.

In this episode, I read and then examine the high-profile appeal of Jacob Hoggard, the former lead singer of Hedley, who was convicted of sexual assault causing bodily harm. The Ontario Court of Appeal was tasked with deciding whether the trial judge erred by allowing expert testimony on trauma's impact on memory and behavior. The court considered whether this evidence was necessary to dispel myths about victim behavior or if it improperly influenced the jury. Ultimately, the Court of Appeal determined that expert evidence on the neurobiology of trauma was unnecessary and should have been addressed with a jury caution instead. However, Hoggard's appeal was dismissed, as the trial judge had corrected any potential jury confusion with a clear, corrective instruction in response to their questions.

In this episode, we delve into the ongoing controversy surrounding Canada's bail system, often criticized as a "catch and release" approach. We explore the growing public outcry for reform, fueled by high-profile cases involving repeat offenders who were released on bail only to commit further crimes. Amidst these tensions, we discuss the proposed changes to the Criminal Code and the push from provincial premiers to make bail conditions stricter for violent offenders. We also discuss the balancing that must account for the presumption of innocence.

In this episode, we explore the recent Ontario Court of Appeal decision in R. v. Nnane, 2024 ONCA 609. Nnane appealed these convictions on the grounds that his trial was unfair due to ineffective assistance from his trial counsel. The Court of Appeal, led by Justice David M. Paciocco, critically examined the performance of Nnane's trial counsel, highlighting key failures that undermined the fairness of the trial. As a result, the court allowed Nnane's appeal, set aside his convictions, and ordered a new trial. Join us as we dissect this significant ruling, discuss the standards for effective legal representation, and the implications this case holds for the criminal justice system.