Includes right to silence and right against self-incrimination (fundamental justice); violations are subject to s. 24(2) remedy and possible exclusion
S. 7 rights are engaged when statements are elicited by agents of the state (including informers motivated by state benefits [snitches], police officers, and prison officials); if an accused expresses a choice not to speak, the police cannot trick them into speaking or undermine their right to counsel
Considerations for s. 7 breach: nature of exchange (did the agent actively seek the information, was it effectively an interrogation?), nature of relation (was the accused obligated to or manipulated by the authority, were there any special characteristics of the two that made a statement easy to extract?) and the nature of the instructions given to the agent
S. 7 only operative after detention; does not protect against voluntary disclosures, observation, or against statements made after counsel is consulted
BASIC RULES
Principles of fundamental justice:
nullum crimen - conduct must be an offence at time of commission, and this must be clear enough to circumscribe conduct
Burden on a party to prove the existence/nonexistence of an issue to trier of law (subject to appellate review) (e.g. air of reality test); if this is not met, the issue will not be raised to trier of fact, and if this is a key issue the case will be dismissed
2 outcomes for satisfying CTM burden - can either permit or compel a favourable determination to the interested party
CTM burden usually on person with legal burden (Crown must present CTM in criminal trials, from its own evidence without conscripting the accused; if accused raises a defence that isn't merely denying the offence, they must provide enough evidence to satisfy CTM)
Outcomes for CTM burden assessed at end of case, and can lead to directed verdict (if CTM burden on Crown not met)
CTM burden assessed on quality of evidence, at trier of law's discretion (they determine whether an issue has been raised and the trier of fact could reasonably find that the issue had been established)
Tactical Burden
Not a formal legal concept, and not allocated in law; rather, emerges during course of trial (does evidence need to be adduced to rebut a claim? Should a defence be raised or not raised? Etc.)
Reasonable Doubt
Reasonable doubt must be defined for the jury in terms that make it clear that it is short of "moral certainty" but more substantial than balance of probabilities
Onus of proof is always on Crown; accused never has to prove their innocence, only raise a reasonable doubt
Evidence must be considered as a whole at the end of trial as it applies to Crown's case
"golden thread...the duty of the prosecution to prove the prisoner's guilt subject to...the defence of insanity and any statutory exception"
For homicide, at least, prove both voluntary act and "malice of the accused", either expressly or through implication where it is "intentional and unprovoked"
Lifchus
Proof beyond a reasonable doubt inextricable from presumption of innocence (silver and gold thread of criminal law)
Reasonable doubt must be defined for a jury, and not doing so makes the trial unfair to the point of ordering a retrial (test: substantial compliance with Lifchus principles")
It must be brought to the jury's attention that "reasonable doubt" differs from usual conceptions of doubt, reasonable or otherwise
Not an ordinary doubt, don't use standard from everyday life (even if you're sure in everyday life doesn't mean that proof beyond a reasonable doubt exists, since it's probably a lower standard); referring to "certainty" can lead jury to conclude that they are certain even though a reasonable doubt exists (I'm sure he did it)
Don't qualify doubt by other words, which can lead to vagueness
Doubts can be both reasonable and non-articulated (he seems shifty - demeanour, etc.)
"a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence"; not imaginary or frivolous, or based on sympathy or prejudice
Bring reverse onus provisions to the jury's attention
R v DW
Proper charge must recognize that the only relevant standard is whether the Crown proved its case beyond a reasonable doubt based on their evidence; doesn't matter whether you believe one party or the other more unless that's tied to the Crown's case
Instructions for evaluating credibility: if you believe evidence of accused, or if you are left in reasonable doubt by the testimony of the accused or the Crown's presentation of the evidence, then you must acquit
Any misapprehension by the jury of the relevant standard violates fundamental justice
If the instructions are prior to the final deliberations, and the judge can correct any mistakes, then errors can be accepted; if there is lingering uncertainty, or if uncertainty can be determined contextually (giving contradictory advice, perhaps), then a retrial can be appropriate
