Evidence

An Unfair and Costly Burden: Assessing the Impact of Section 794(2) of the Criminal Code on the Criminal Justice System [co-authored with Sarah Denholm and Brandyn Rodgerson] (2017) 42(2) Queens LJ 1: This article considers the unusual operation of 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”. Recent jurisprudence suggests that this provision 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.  The annotation criticizes certain wording used by the Court, and suggests a new method for approaching situations in which a defence requires evidence from the accused that does not reverse the burden of proof.

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. This paper can be downloaded from the Social Science Research Network.

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. This paper can be downloaded from the Social Science Research Network.

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: The question of whether an accused’s prior criminal convictions can be raised against him in cross-examination depends heavily upon whether those convictions constitute crimes of dishonesty, and whether defence counsel has attacked the credibility of a Crown witness. In this article, the author challenges this position, suggesting that a second look at both conclusions is warranted. This paper can be downloaded from the Social Science Research Network.

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.  The article suggested that New Zealand courts were unnecessarily restricting useful evidence from being admitted and wrongly interpreting the Canadian jurisprudence.

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.).