Criminal law publications

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A complete treatment of the law of evidence as it applies to evidence given by witnesses in civil and criminal proceedings as well as before administrative tribunals, public inquiries and legislative committees. A practical reference work, providing coverage of evidentiary issues as they arise in these types of proceedings. Individual chapters examine testimonial evidence under the subject headings of competence, compellability, compelling attendance, refusal to give evidence, credibility, corroboration and privilege. ... more

The Portable Guide to Witnesses

The Portable Guide to Witnesses (3rd Edition) takes all the law concerning the treatment of witnesses, adds helpful commentary and cross references, and combines it in one convenient resource that you can use in the courtroom. The softcover format features tabbed chapters and spiral binding that provide fast access to the information you need. ... more

Published articles

We Should Probably Take a Look at That! The Procedure of Taking a View in Criminal Proceedings: (2017) 65 Criminal Law Quarterly 140

Though it is by no means a common procedure, a criminal trial court possesses the discretion to permit the trier of fact to leave the courtroom in order to view any place, thing or person, albeit under controlled conditions. The act of “taking a view” amounts to precisely what it sounds like: a visual examination of a place, thing or person, without commentary or testimony. Views of this sort are extremely rare, and in this article I will explore why this is, and recommend factors a court should consider in deciding to use this procedure.

An Unfair and Costly Burden: Assessing the Impact of Section 794(2) of the Criminal Codeon the Criminal Justice System (2017) 42(2) Queens LJ 1

Co-authored with Sarah Denholm and Brandyn Rodgerson — This article considers section 794(2) of the Criminal Code, which states that the “burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant” and places a persuasive burden of proof in summary conviction offences upon the accused. The article considers the validity of this interpretation, the desirability of such an approach, and section 794(2)’s constitutionality.

R v. Laing: Two Major Steps Backward on Corbett Applications (2017) 33 CR (7th) 63

This commentary criticizes the decision of the Ontario Court of Appeal in R. v. Laing, 2016 ONCA 184, and the judiciary’s approach to Corbett applications more broadly. The focus of the critique is with respect to the way the Court approaches Corbett applications to exclude an accused’s criminal record.

Comment on R v Ali, 2015 BCCA 333 (2015) 22 CR (7th) 218

A short annotation that explores recent comments by the British Columbia Court of Appeal on reversing the burden of proof where defences are concerned.

R. v. Nedelcu: The Role of Compulsion in Excluding Incriminating Testimony under s. 13 of the Charter (2011) 83 CR (6th) 55

This article considers how a witness’s “voluntary” testimony can be used in a subsequent criminal proceeding and some of the complexities posed by the Supreme Court of Canada’s revised approach to s. 13 of the Charter.

The Search for a Better Understanding of Discretionary Power in Evidence Law (2007) 32 Queens LJ 487

This article is about the use of discretion as a tool to decide upon the admissibility of evidence in a criminal proceeding, and assesses the success of the principled approach to admissibility which has dominated Canadian evidentiary jurisprudence for at least two decades. Download article

Corbett Revisited: A Fairer Approach to the Use of An Accused Person’s Criminal Record in Cross-Examination (2006) 51 Criminal Law Quarterly 400

Following on from the some of the author’s earlier research on the use of an accused person’s criminal record in cross-examination, this article thoroughly reviews the theoretical rationales and principled application of the discretion created by the Supreme Court of Canada’s decision in R. v. Corbett, [1988] 1 S.C.R. 670.Download article

Corbett, Crimes of Dishonesty and the Credibility Contest: Challenging the Accepted Wisdom of What Makes a Prior Conviction Probative (2006) 10 Canadian Criminal Law Review 215

In this article, the author analyzes when an accused’s prior criminal convictions should be allowed to be raised against him in cross-examination. Download article

Spousal Incompetence and the Principled Approach to Hearsay Admissibility: When Ancient and Modern Doctrines Collide (2006) 35 Criminal Reports (6th) 43

This short article looks at the spousal incompetence rule and the manner in which it uncomfortably co-exists with recent developments to the rule against hearsay.

The Evidence Bill 2005: A New Approach to Hearsay Raises New issues [2005] New Zealand Law Journal 446

Co-authored with Scott Optican — The Evidence Bill 2005 promises the most radical reform of the law of evidence in New Zealand’s history. This article critiques two aspects of this change, suggesting that further consideration of the law is necessary in order to prevent unforeseen complications from arising with witnesses who change their testimony or profess to have forgotten their earlier statement.

Gazing Into the Hearsay Crystal Ball – Will New Zealand Adopt the Canadian Approach to the Residual Exception for Hearsay? [2002] New Zealand Law Journal 250

This article examined the New Zealand approach to hearsay and the manner in which its use of the residual exception was deviating from the Canadian approach for reasons that were not entirely justifiable.

R. v. Charland – A Lost Opportunity to Clarify Corbett and the Use of an Accused’s Criminal Record (1998) 12 Criminal Reports (5th) 228

My first attempt to understand the Corbett discretion and pose questions about its erratic and imprecise nature. This article raised seven issues that were briefly discussed, but which formed the basis of my later work in this area. The article was cited approvingly in R. v. Klimek (2000) 33 C.R. (5th) 377 (Sask. Prov. Ct.).