Advocacy 101
Your ____________ is the adaptation of your story to the legal issues in the case. It should be expressed in a single paragraph that combines an account to the facts and law in such a way as to lead the trier of fact to conclude that your client must win.
Theory of the Case
"If you must break the law, do it to seize power: in all other cases observe it."
Julius Caesar
Jan 10, 49 BC after he broke a Roman law by crossing the Rubicon River.
Information To Obtain a Search Warrant
Form 1
(Sections 320.29, 462.32, 462.321 and 487) Criminal Code, R.S.C., 1985, c. C-46
Section 11(d) of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
Presumption of Innocence
If a justice is available within a period of ____________ after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; s. 503(1)(a) Criminal Code, R.S.C., 1985, c. C-46
24 hours
In loco parentis
In the place of a parent
Supreme Court of Canada handed down a unanimous guideline judgement on the use of the conditional sentence under section 742.1 Criminal Code, R.S.C., 1985, c. C-46
R. v. Proulx, [2000] 1 S.C.R. 61 per Lamer C.J.
The term ____________, refers to the arrangement of discrete items of information within a particular argument of examination. Since trial presentations are necessarily linear, it seems obvious that they wil be ____________. This truism may be used to best effect, however, only if you bear in mind the various advantages that can be achieved by purposefully ordering information.
Sequencing
"Punishment is justice for the unjust."
Saint Augustine
On Free Choice of the Will [De libero arbitrio libri III]. Translated by Anna S. Benjamin and L. H. Hackstaff. New York: Macmillan Publishing Company, 1964.
Summons to a Person Charged with an Offence
Form 6
(Section 2) Criminal Code, R.S.C., 1985, c. C-46
Every person is ____________ so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. s. 16(2) Criminal Code, R.S.C., 1985, c. C-46
Presumed not to suffer from a mental disorder
A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than ____________ except with the consent of the accused. s. 516(1) Criminal Code, R.S.C., 1985, c. C-46
Three clear days
Audi alteram partem
Let the other side be heard as well
Important decision with respect to the standard of review of trial level sentencing decisions. The court modifies the classic test that an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention. The modification is that such errors will only justify intervention where it appears from the trial judge's decision that such an error had an impact on the sentence.
R. v. Lacasse, [2015] 3 S.C.R. 1089 per Wagner J.
____________ are used to emphasize the significance of certain information. Stated simply, the more time you spend on a topic, the more important it will seem. Likewise, the more times you say it, the more likely it is to be believed, remembered, and understood. The lesson follows inescapably in every phase of the trial: dwell on important matters; minimize unnecessary details.
Repeating and Duration
"It is legal because I wish it."
Louis XIV
Address before the Parliament in Paris in 1655 to assert his absolute rule over the French land and its subjects.
Warrant for Arrest
Form 7
(Sections 475, 493, 597, 800 and 803) Criminal Code, R.S.C., 1985, c. C-46
Evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, is proof that ____________; s. 215(4)(b) Criminal Code, R.S.C., 1985, c. C-46
The child is his child
The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than ____________. s. 28(2) Canada Evidence Act, R.S.C., 1985, c. C-5
Seven days
Per incuriam
Through lack of care
The landmark Supreme Court of Canada case concerning the issue of child support and the entitlement of recipient spouses, predominantly mothers, to increased child support following an increase in the income of payer spouses, who are predominantly fathers.
D.B.S. v. S.R.G., [2006] 2 S.C.R. 231 per Bastarache J.
The doctine of ____________ tells us that the trier of fact will pay maximum attention to the witness at the very beginning of the testimony. You can make further use of this principle by continuously "re-beginning" the examination. That is, every time you seem to start anew, you will refocus the attention of the judge or jurors.
Primacy
"Make crime pay. Become a lawyer."
Will Rogers
They’ve Got a New Dictionary at Ellis Island, 28 Feb. 1926, in Will Rogers’ Weekly Articles 2:157, 158 (James M. Smallwood ed. 1980)
Subpoena to a Witness
Form 16
(Section 699) Criminal Code, R.S.C., 1985, c. C-46
Upon proof of the unexplained possession of recently stolen property, the trier of fact may‑‑but not must‑‑draw an inference of guilt of theft or of offences incidental thereto. R. v. Kowlyk, [1988] 2 S.C.R. 59 per McIntyre J. at par 12.
Doctrine of recent possession
A party who intends to call a person as an expert witness shall, ____________ before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by; s. 657.3(3)(a) Criminal Code, R.S.C., 1985, c. C-46
At least thirty days
Volenti non fit injuria
No injury can be done to a willing person
Supreme Court ruled that there is also a non-compensatory basis for spousal support under the Divorce Act based on "need alone." Thus a former spouse has an obligation to pay spousal support if the other spouse is experiencing economic need at the point of marriage breakdown, even when that need does not arise from the roles adopted during the marriage.
Bracklow v. Bracklow, [1999] 1 S.C.R. 420 per McLachlin J.
The purpose of ____________ through the use of a prior inconsistency is to show that the witness has made contadiccery statement. The technique works only when the two statements cannot both be true. If the two statements can be harmonized, explained, or rationalized, the ____________ will fail.
Impeachment
"In law, nothing is certain but the expense."
Samuel Butler
Samuel Butler (1950). The Essential Samuel Butler, London : J. Cape
Warrant Remanding a Prisoner
Form 19
(Sections 516 and 537) Criminal Code, R.S.C., 1985, c. C-46
Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has ____________ and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance. s. 320.16(1) Criminal Code, R.S.C., 1985, c. C-46
Been involved in an accident with a person or another conveyance
An accused who elects to be tried by a provincial court judge may, ____________ before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor. s. 561(2) Criminal Code, R.S.C., 1985, c. C-46
Not later than 60 days
Rex non potest peccare
The King can do no wrong
In a unanimous judgment, the Court ruled that a sentencing judge may consider a Charter breach in reducing a sentence. However, the sentencing judge cannot normally reduce the sentence below a statutory minimum. The Court left open the possibility of reducing a sentence below a mandatory minimum only in exceptional cases where there has been “egregious” misconduct by police.
R. v. Nasogaluak, [2010] 1 S.C.R. 206 per LeBel J.
The common law rule that copies or secondary evidence of writings could not be admitted into evidence unless the absence of the original could be explained. Under modern practice, most jurisdictions have significantly expanded on the circumstances in which duplicates and other secondary evidence may be admitted.
Best Evidence Rule
"The trouble with law is lawyers."
Clarence Darrow
The Story of My Life. Book by Clarence Darrow, 1932.
Recognizance
Form 32
(Sections 2, 462.34, 490.9, 550, 683, 706, 707, 779, 810, 810.01, 810.1, 810.2, 817 and 832) Criminal Code, R.S.C., 1985, c. C-46
In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is ____________ the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion. s. 320.35 Criminal Code, R.S.C., 1985, c. C-46
Presumed to have been operating
Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person ____________ an offence under one of the following sections: s. 231(5) Criminal Code, R.S.C., 1985, c. C-46
While committing or attempting to commit
Jus ad rem
Right to the point
This case ruled that investigative detention is, by definition, narrow in purpose, and cannot be used to justify the collection of unrelated evidence to which the police would not normally be entitled.
R. v. Mann, [2004] 3 S.C.R. 59 Iacobucci J.
This technique involves asking broad open-ended questions before gradually introducing more narrowly-scoped open-ended questions, as well as closed questions.
Funnelling
"It is the merit of the common law that it decides the case first and determines the principle afterwards."
Oliver Wendell Holmes Jr.
Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1, 1 (1870).
Probation Order
Form 46
(Section 732.1) Criminal Code, R.S.C., 1985, c. C-46
For the purposes of proceedings under this section, evidence that an accused who broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he ____________ therein; s. 348(2)(a) Criminal Code, R.S.C., 1985, c. C-46
Broke and entered the place with intent to commit an indictable offence
In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that ____________, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence; s. 276(2) Criminal Code, R.S.C., 1985, c. C-46
Forms the subject-matter of the charge
Delegatus non potus delegare
A delegate or deputy cannot appoint another
In this decision, SCC confirmed that there is an implied undertaking by parties in a civil litigation to keep information obtained in pre-trial discoveries confidential. A party to the proceeding may not use this evidence for any other purpose than that required for the conduct of the litigation and may not share it with others outside of this purpose without a court order. This is so even when a party believes the discovery evidence reveals criminal misconduct on the part of the other party.
Juman v. Doucette, [2008] 1 S.C.R. 177 Binnie J.