Thursday, January 29, 2015

In Nunavut civil matters cross examination may occur before affidavits served

 Marion v KIA 2015 NUCJ 6:

  1. The plaintiff urges the Court to impose a general rule that all affidavits must be filed prior to cross-examinations and seeks to place the onus on the party seeking to vary from this process to make a case pursuant to Rule 381(6). In my view this is not the correct approach. In my view the correct approach is to maintain the general right to cross-examine and to impose terms or conditions only if necessary. 


Although it is a search which is not lawfully authorized that constitutes an unreasonable search that violates your privacy interests, the information obtained as a result of the search will not be excluded in a trial as its admission will not bring the administration of justice into disrepute.

Thanks to Cheryl Sereny for this!

Mask from Cape Dorset

Wednesday, January 28, 2015

Use of rejected alibi to show guilt

R v Avalak, 2015 NUCJ 04:
  1. [33]  The Crown asks that I go further and find that the accused fabricated an alibi and that such a fabrication should be taken as consciousness of guilt. In my view, the law does not allow me to do so in this case. The law on alibi evidence is set out concisely in the following quotation from the Supreme Court of Canada in R v Hibbert, [2002] 2 SCR 445, 163 CCC (3rd) 129, at para 67 of the CanLII reported decision:

    Before turning to the application of the proviso in light of the above, it may be useful to summarize briefly the state of the law with respect to the rejection of a defence of alibi.

-- --


In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value.

A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury. It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt.

In appropriate cases, for instance if there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but may fall short of directly implicating him in its commission.

-- When there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt.

-- In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn.

-- A fabricated alibi is not conclusive evidence of guilt.
(R v Hibbert, [2002] 2 SCR 445, 2002 SCC 39 (CanLII), online: < >)

[See also: R v Maracle, [2006] OJ No 568, 206 CCC (3) 36; R v Carey, [1996] QJ No 3898 (QL), 113 CCC (3d) 74; R v Tessier, [1997] BCJ No 515, 113 CCC (3) 538 (BCCA)] 

Tuesday, January 27, 2015

Failure to consider immigration consequences of sentence an error in principle

R. v. N. F., 2015 ONCA 51:

[11]       The failure to consider the specific immigration consequences of a carceral sentence of six months or more was an error in principle disentitling the sentencing judge's decision to the deference usually accorded to such decisions in this court. Left to consider the fitness of the sentence, as is our mandate under s. 687 of the Criminal Code, we are satisfied, however, that in this case and despite those consequences, the sentence imposed reflects no error.

Monday, January 26, 2015