Practice exercises

Offenders serving weekend sentences will be put to work on local improvement projects under a new program designed to improve community safety and rehabilitate offenders. By helping to rehabilitate offenders through supervised, community-based work programs, we are working to make our communities safer.

At present, offenders serving intermittent sentences remain free in the community Monday to Friday and spend weekends in jail. A typical day in jail is currently spent watching television, reading, playing cards or talking on the phone.

Under the program, offenders who meet certain strict criteria can now perform not-for-profit community work, as an alternative to spending weekends in jail. Work projects will focus on environmental cleanup, the maintenance and repair of not-for-profit community facilities and projects that assist seniors and persons with disabilities.

The Province has signed an agreement with Operation Catalyst to develop and supervise local community work projects for selected offenders who are serving their sentences on weekends. This agency is nationally recognized and has experience delivering programs for offenders in numerous jurisdictions.

Paul Hamilton president of the provincial Association of Chiefs of Police said the program is good for public safety. "The courts have deemed it appropriate that these offenders should remain in their communities during the week and repay their debt to society on weekends. Allowing them to take responsibility for their own actions in their own community may help offenders to rebuild ties to their community," he said

Action Against Impaired Driving are all in favour of this program because it promises to provide opportunities for offenders who are substance abusers, to get the treatment they need and thus reduce the likelihood that they will re-offend. This is one sure way to help keep our streets and communities safe.

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rehabilitate offenders

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at present

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offenders serving intermittent sentences remain free in the community

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a typical day in jail

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can now perform not-for-profit community work

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the maintenance and repair

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has signed an agreement

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to develop and supervise local community work projects for selected offenders

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jurisdictions

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Paul Hamilton

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have deemed it appropriate

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Action Against Impaired Driving

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who are substance abusers to get the treatment they need

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will re-offend

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one sure way

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A Windsor, Ont., man who pleaded guilty to 15 counts of aggravated sexual assault last month for engaging in unprotected sex without informing his partners of his HIV status was taken into custody on Friday.

James Murphy, 31, had been free on bail for six months, but the Crown asked that his bail be revoked, describing him as a flight risk and a continued danger to the community.

In his latest court appearance, the businessman was jailed and ordered to undergo a 60-day psychiatric assessment to determine whether he should be declared a dangerous offender.

Murphy was given a few minutes to say goodbye to members of his family. He hugged them, one by one, while some of them cried. He was then handcuffed and escorted out of the courtroom.

He will return to court next month when a date for sentencing is expected to be set. Aggravated sexual assault charges carry with them the possibility of a life sentence.

Murphy was initially placed under house arrest so he could get his financial affairs in order and keep medical appointments.

Defence lawyer, Andrew Belmont, said he expected his client would be taken into custody. He said he didn't think Murphy would have an easy time in jail. "It doesn't help if you're in custody on sexual offences, and you're not a criminal and you're small," Bell said. "It can't be a very pleasant situation."

Detective Bill Simpson, one of the officers who worked on the case, told TBC News he's glad Murphy is in custody.

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Kevin Major was first convicted of sexually assaulting boys in the Kitchener area when he was 22 years of age and after numerous further sexual assaults was sentenced to eight years in a federal penitentiary. He was released after serving his entire sentence.

Major was subsequently placed on a Section 810 recognizance order, which he breached, and was incarcerated in a local provincial institution. The conditions that he breached were in relation to non-association with young boys.

Major, who is also known as 'Johnny', is to be released next month after serving his latest sentence.

Major is described as a white male, 42 years of age, 5'8" tall and weighing approximately 190 lbs, with short dark brown hair and hazel eyes.

Mr. Major is described as a homosexual pedophile and has a history of grooming young males by giving them gifts. He has been known to resort to violence in some instances and has also, at times, befriended single mothers in order to gain access to their children.

Major is on probation for three years with a number of conditions, such as reporting to his probation supervisor in person once a week, non-association with persons under the age of 14 years, and being in areas where persons under 14 years would reasonably be expected to be found, such as parks, playgrounds, swimming areas, schools, daycare centers and community centres.

There is a further condition of obtaining permission from his probation officer before any change of address; however, this is no guarantee that he may not decide to commute to a different community, and resume his nefarious activities there.

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Kathy Mendelson outfitted her apartment with multiple surveillance cameras in order to watch the doors and the windows and the stairwells of her apartment. Shortly after they were installed, Mr. Calden got on the telephone to her and mentioned that he had seen an individual leaving her house and demanded to know who the man was.

It's very clear to the officer that Mr. Calden is obsessed with Kathy. So, this is what happened. Calden was able to climb over a 6 foot fence and then jump up onto the suspended balcony, climb over the railing and open the screen door.

The Crown is seeking detention. Mr. Calden's sister was already given the option of supervising her brother whilst he was free on bail with conditions before and that failed miserably on many, many occasions. One of the problems is that he works alone and has access to a cell phone. They can't watch him on a 24-hour basis.

On the other hand, Defence Counsel told the Court that there were four sureties available. What defence is proposing, is a 24 hour house arrest. He is not to leave the house, period; except in the presence of a surety. That's what's being proposed. He is not going to be working and he will relinquish his cell phone.

His mother is at home 24 hours a day. His sister resides there as well. He's got his other sister and his future brother-in-law who are all prepared to sign. They will be there on a daily basis to ensure that he is at home. The man has no prior criminal record.

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stairwells

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got on the telephone to her

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demanded to know who the man was

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Mr. Calden

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jump up onto the suspended balcony

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is seeking detention

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on bail with conditions

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on many, many occasions

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he works alone

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24 hours a day

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he is not to leave the house, period

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except in the presence of a surety

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he will relinquish his cell phone

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his sister resides there as well

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Victim impact statement

I am a friend of Kevin Miller, and have been for the last fifteen years. We were altar boys together and when Kevin's son Danny was born, I was asked to be his godfather. Danny had just turned five when he died, along with his mother, at the hands of a psychopath.

Everyone asks me why Kevin has not been in court for the trial of his wife and son's killer. The answer is this: the defence lawyer subpoenaed Kevin as a witness and witnesses are not allowed in court before they testify. So, Kevin waits at home for me to arrive with the daily news, before he reads the paper and before the CBC news at 6 p.m.

In my friendship with Kevin, his face had always shown a hint of mischief and bright eyes that were always full of life. That face and those eyes have changed. His eyes are hollow and empty and sometimes tears flow freely, uncontrollably. The man I knew no longer exists.

I arrive at his home after each day in court and to the best of my ability I tell him of the day's events, the brutal details of the crime. I tell him the truth, the hardest being the brutality of the wound to his son's throat and the many wounds of Helen, his wife of ten years. Then we watch the news and the following day he reads the newspaper when I go to court. I have no words to describe the tragedy Kevin Miller has suffered.

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Victim impact statement

My husband, Peter Thomas, was killed by a young man driving a stolen car. He had phoned me at noon to tell me he was going to the bank during his lunch hour and five minutes later he was crossing the street when he was struck down. He was killed instantly. I was devastated when I heard the news.

We had been married only four years and had known each other since grade school. We had just bought our first home but we really had no other savings and Peter didn't have life insurance. I know that somehow I will be able to get along financially, but I don't know how I'm going to cope without Peter.

My brothers Bill and Dan Miller, together with my sister have been helping me with my son while I look for a job, not an easy thing to do with the current situation. But despite all their help and support, I have not been able to control my emotions, which range from anger, to rage, to helplessness, loss and mostly pain. A deep depression has taken over me. I don't know what is going to become of me.

I am afraid that the killer will never be brought to justice. Although there were three men running away from the car, not one of them has admitted being the driver. Their fingerprints are inside the car, including the steering wheel. I am sure a good defence lawyer will get them off with possession of stolen property and a suspended sentence since they have no criminal record.

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Q. And tell us generally what you've done since February of 1993, what your duties consist of.

A. Basically my duties are the examination and comparison of firearms or cartridge case components back to an individual firearm. That comprises probably 80 per cent of our work. I also do tool mark identification, which is the identification of a particular tool to a mark made on a soft surface, such as, a window frame or a safe or what have you.

Q. Can you estimate the number of actual cases you've been involved in since you started working in this field in February of 1993?

A. I do approximately 140 cases a year. So I would guess, over a thousand.

Q. All right. Have you previously testified as an expert in the fields of firearms, ammunition and tool mark identification in courts?

A. Yes, I have.

Q. And what courts and how many times have you testified as an expert in the field?

A. Approximately 200 times. I don't know the number offhand.

Q. Those are my questions with respect to Mr. Brown's expertise.

The Court: Mr. Darrow, any cross-examination on the qualifications?

Mr. Darrow: Just a few questions.

Q. As I understand what you've now said is that you also have studied wound identification?

A. Yes.

Q. And trajectory and rifle range type of studies that are associated with weaponry?

A. Yes.

Q. Thank you, those are my questions.

The Court: The Crown seeks to tender Mr. Brown as an expert in the area of firearms and tool mark examination. I find that he is such, and as an expert, he can express expert evidence in that areA.

Q. Mr. Brown, in this particular case, you had occasion to examine certain pieces of ammunition that were sent to you by Constable Sanders of the Prince William R.C.M.P. detachment?

A. Yes, I did.

Q. All right. Would you take Exhibit 7 first, Mr. Brown?

A. Yes.

Q. Would you examine that item? Did you receive it from Constable Sanders?

A. Yes. It bears my case number, date of receipt, which was October 20 and initials.

Q. All right. Exhibit 8, can you tell us if you also received that on the 20th of October?

A. Yes, I did.

Q. And what about Exhibit 9?

A. Exhibit 9 also bears my case number, date of receipt and initials.

Q. All right. And I understand you received those items personally from Constable Sanders the 20th of October?

A. Yes, I did.

Q. All right. And you examined those items. Can you tell us what were the results of the examination?

A. Your Honour, may I look at my work notes?

The Court: Mr. Darrow, any problem?

Mr. Darrow: I have no problem.

The Court: Thank you.

A. Court Exhibit 7 was one lead fragment. Exhibit 8 was one portion of copper bullet jacket, and Exhibit 9 was one copper fragment.

Q. Dealing individually with Exhibit 7, which you've identified as a lead fragment, what can you tell us about that particular fragment?

A. It was the lead core. It appears to be the lead core of a bullet weighing 86.3 grains. There were no identification markings on the fragment. It's just a lead fragment.

Q. All right. Tell me what your examination of Exhibit 9, which you've identified as a copper fragment, revealed.

A. It's one copper fragment, consistent with a copper bullet jacket, and the total weight of 2.49 grains, relatively small, no identifiable marks on it either.

Q. All right. Let's turn then to your examination of Exhibit 8, the copper jacket. Can you tell us how did you examine the copper jacket? What did you do to examine that item?

A. I examined it microscopically and made several measurements of it.

Q. All right, And exhibit 7 and 9, you also examined them microscopically?

A. That is correct

Q. All right. With respect to Exhibit 8, the copper jacket, what, if anything did your microscopic examination of the copper jacket reveal?

A. I determined it was a 38 calibre bullet or portion of a copper bullet or a bullet jacket. It bears rifling characteristics of six lands and grooves with a right hand twist.

I then measured the lands and groove impressions on the bullet and basically fed the data into our database of rifling characteristics and I produced a list of probable types and makes of firearms that could have fired that bullet.

Q. I should have asked you, because you're using terms that I'm not familiar with and members of the jury may not be familiar with, you indicated the characteristics you noted on the copper jacket. Would you explain what each of those characteristics mean?

A. When a rifle is produced, there's a series of groove cuts in the barrel. They spiral down the barrel, and between these grooves is a raised portion and that's known as the land.

Basically when a bullet is fired through the barrel, the bullet is embedded in the land and this causes the bullet to spin and it's forced down the barrel and aids in its flight when the bullet leaves the barrel.

It's designed to spin the bullet to stabilize it in flight, and from these lands and grooves measurements and the calibre, we have a database of approximately 17,000 different firearms.

The database characterises firearms by calibre, lands and grooves, numbers and width of the lands and grooves, direction of twist, and from that, I produced a list of probable types of firearms.

Q. All right. When you say, "calibre", what does that mean?

A. The diameter of the bore of the firearm.

Q. Can you tell us in your opinion that the firearm that fired the copper jacket was a .30 calibre weapon?

A. It is a .30 calibre weapon or firearm.

Q. And were you able to match the copper jacket to a firearm?

A. No. I could not.

Q. That simply means that you were not given a firearm by the R.C.M.P. as a result of testing which you conclude was likely the probable source of that copper jacket.

A. No, I was not.

Q. All right. Now, I understand that you also examined various items of clothing.

A. That's correct.

Q. To try to determine, a possible range from which a firearm was fired?

A. That's correct.

Q. Which may have left particles or residue on the clothing, is that correct?

A. Yes.

Q. All right. Just before you view the clothing, would you tell us what tests were done to try to make this range determination and how you go about doing that test?

A. When a firearm is discharged at a target at a close range, not only the bullet strikes the target. There is partially burnt propellant that is also ejected from the muzzle, and at close range, this is deposited on the target in a pattern. The pattern varies with the distance. At very close range, it's a very dense pattern. It's very concentrated. The further you get away from the object, the propellant or partially burned propellant disperses so you get a larger pattern but it's less dense.

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which is the identification of a particular tool to a mark made on a soft surface

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can you estimate the number of actual cases

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you've been involved in

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tool mark identification

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I don't know the number offhand

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you had occasion to examine

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certain pieces of ammunition

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ammunition

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it bears my case number

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Constable Sanders

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which you've identified as a lead fragment

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can you tell us about that particular fragment

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the total weight of 2.49 grains

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let's turn then to your examination

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could have fired that bullet

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this causes the bullet to spin as it's forced down the barrel

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lands and grooves measurements

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which you conclude was likely the probable source of that copper jacket.

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Q. Corporal Baker, I want to take you back to the 19th day of March. I understand that on that date, you had dealings with a certain person who became known to you as Mario Montes; is that correct?

A. That's correct, Your Honour.

Q. Do you see that person present in court today?

A. Yes, Your Honour, he's seated with the black jacket with the number 80 on the left sleeve.

Q. Indicating the accused.

The Court: All right - noting the identification.

Q. Corporal Baker, can you please tell the court the circumstances of how you came to have contact with Mr. Montes?

A: Yes, Your Honour, on the 19th of March, at approximately 2115 hours, 9:15 p.m., I was part of a -- a street crew drug squad undercover operation where Constable Birk was going to be acting in an undercover capacity to attempt to purchase narcotics from persons in the downtown.

While I was waiting across the street on Hastings in what's referred to as the unit block, the address between zero and 99 of East Hastings, I observed Mr. Montes and another older Hispanic male standing together.

I then observed Constable Birk approach these males. She appeared to have some conversation with them and a couple of minutes later, Constable Birk moved away from these two males and Constable Birk then gave a pre-arranged signal that she had purchased narcotics.

At that time, I ran across the street. I had been on the south side of Hastings Street, and I arrested Mr. Montes for trafficking in a narcotic.

Q. Was there another officer involved in the arrest of Mr. Montes?

A. Constable McCall was also with me.

Q. Now, do you recall -- you say there was another gentleman, older Hispanic male with Mr. Montes. Can you tell the court approximately how old that person appeared to be?

A. In my opinion, that other Hispanic male was probably in his mid fifties.

Q. Now, did you make a note of the description of Mr. Montes at the time?

A. Yes, I did.

Q. Did you make a note of the description of Mr. Montes at the time?

A. Yes, I did.

Q. And did you record that in your notes?

A. Yes, I did.

Q. Are you able to tell the court what the description is that you did record?

A. To the best of my recollection, Mr. Montes was wearing a baseball cap. He had a -- what I would refer to a grey kangaroo type jacket, that being a sweatshirt with a hood and a normally a -- a pouch in the front, and white runners.

Q. And what about the height and weight, did you make a notation of that?

A. I made a notation of it, Your Honour. My description was approximately five foot, nine inches, 160 pounds and probably in the early to mid-thirties.

Q. All right. Now, Constable Baker, did you conduct any search of Mr. Montes once you arrested him?

A. Yes, I did, Your Honour. From his right front jacket pocket, I obtained a quantity of money. Before Constable Birk had gone out she… one of the other members of the team had photocopied the money that Constable Birk was going use to attempt to purchase narcotics.

Constable MacDougall had a photocopy of those bills, which included the serial number. I compared the serial numbers of the bills that I had taken from Mr. Montes pocket. One of the twenty-dollar bills that I seized from the right pocket of Mr. Montes, matched the serial number to one of the serial numbers of the bills that had been pre-recorded and photocopied.

Q. Did you make a notation of that serial number at the time?

A. Yes, I did.

Q. And you have that with you today?

A. I have it with me, although I can't remember the serial number.

Q. All right. Was the notation made at the time or shortly after you seized and compared this money to the photocopy?

A. Very shortly after.

Q. And had there been any alterations to your notes since the time of making?

A. No.

Mr. Morris: I ask Your Honour for leave for the officer to refer to his notes.

The Court: Any objection, Ms. Reid?

Ms. Reid: No objection.

The Court: All right. Go ahead, please.

A. Your Honour, the twenty dollar bill that matched the photocopy was serial number E for echo SC 509 4275

Mr. Morris: And do you recall how much money did you seize from the accused?

A. I don't know the exact -- it was approximately six or seven bills.

Q. And it was just the one bill, the serial number that you've given, that matched the buy money that had been given to Constable Birk prior to launching an operation; is that correct?

A. That is correct.

Q. Now, do you recall at the time you arrested the accused, you and Constable McDougall arrested the accused, do you recall what happened with the other person that was present, the older Hispanic male?

A. He had been initially arrested by Sergeant Williams and approximately one or two minutes later, he was released.

Q. And what caused the release of this other person?

A. It was my recollection, Your Honour, that Constable Birk had driven by both Mr. Montes and the older Hispanic male and that Constable Birk indicated that the elderly Hispanic male was not involved.

Q. Now, to the best of your recollection, what happened after the older male was released?

A. I don't know where he went, but Mr. Montes was -- was chartered -- given his Charter rights by Constable McDougall and he was placed into a Vancouver City Police escort wagon and -- and to the best of my knowledge, taken to the Vancouver City Police jail.

Q. Where in the unit block of West Hastings did this occur?

A. Number 27, which is under the old Army & Navy building.

Q. And that's on the north side of the street; is that correct?

A. That is correct, it's on the north side of the street.

Q. And you were on the south side initially?

A. I was just observing what was going on from the south side of the street.

Q. Now, did you note any transaction of any kind between Constable Birk and Mr. Montes prior to getting the signal that a buy had taken place?

A. I can only say that they appeared to be talking to each other. That's all I can say.

Q. Okay. And do you recall approximately the time that this transaction occurred, or that the buy signal was given by Constable Birk?

A. Approximately 2119, or 9:19 p.m.

Q. And how did you… how were you able to identify the accused as Montes?

A. The accused, Your Honour, had an immigration document on his person with his name and birth date on it.

Q. What were the lighting conditions like in front of the Army and Navy store that night

A. There was… there was some artificial light but it was it was evening… it was evening and the lighting conditions were not good.

Q. Thank you Officer. Ms Reid may have some questions of you.

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Q. Thank you. Now, with respect to the matter before the Court, Dr. Robinson, I understand that on October the 19th, you performed an autopsy on the body of an individual identified as Robert Taylor?

A. That's correct.

Q. Can you tell us what observations you made during the autopsy on Mr. Taylor's body?

A. Mr. Taylor had sustained a number of gunshot wounds. He had sustained one wound which passed through his left hand, entering the back of the left hand, exiting the palmar surface of the left hand, and then entering the left side of his chest, passing across towards the right side.

Q. Could you perhaps get up and demonstrate the -- the areas of the left hand and of the chest where you noticed the injuries which caused you to give the evidence you did… concerning this particular gunshot wound?

A. I would like to refer to my notes. I have pencil sketches made at the time of the examination, and a typed report dictated during the course of the examination.

The Court: Yes. You may refer to them, Doctor.

A. The gunshot wound that I've referred to entered the back of the hand, exited here on the palmar surface of the hand, entered the chest on the left side up at the top.

Q. All right.

A. The bullet then passed in a left to right direction and towards the back and came to rest in the back of the body underneath the shoulder blade.

Q. All right. So you would have observed four injuries: one to the back of the hand, one to the palm of the hand, one to the upper chest and one behind the back under the right arm?

A. There was no exit from this wound and the bullet was recovered.

Q. All right. And what exactly did you actually recover?

A. I recovered a deformed white metal projectile from behind the right shoulder-blade. I also recovered a separate copper jacket that I found inside the right chest.

Q. It's my understanding you turned over anything that you discovered, particularly foreign material in Mr. Taylor's body, to Constable Sanders of the R.C.M.P.

A. That's correct.

Q. All right.

A. The second gunshot wound was a wound which passed through the left forearm, entering this portion of the left forearm, exiting the left forearm, entering this side of the chest, passing across the chest, again left of the body to the right.

This one exited the right side of the chest towards the back, so there was no projectile recovered from this wound.

Q. Can you tell us about the two gunshots you've described so far, as they pass through the torso, not the various parts of the hand, you've indicated passed through the body from left to right.

Can you tell us the level of the trajectory in terms of whether it was level, whether it was downward, upward or what can you tell us in that respect?

A. The level of the wound I've just described, that's the one that exits through the torso, is essentially left to right on the horizontal, and the one that I described before that, the portion that goes through the torso, again left to right essentially on the horizontal. It's not going up or down in any measurable way.

Q. All right. And can you tell us any other finding that you made?

A. There was a third gunshot wound that passed through the chest. The entrance was in the back of the chest wall. The exit wound was in the front, and the bullet had passed straight through, back to front, a little bit downwards, not enough to measure, and a little bit towards the left.

Q. All right. As a result of your observations and things you've told us about, were you able in this case to determine a cause of death?

A. The cause of death was multiple gunshot wounds.

Q. What can you tell us, based on the various wounds and the trajectory of the body? Would you tell us in your opinion, the mechanism by which Mr. Taylor died, in the sense of what internal injuries he suffered and how the various shots you described caused his death?

A. The wounds that passed through the chest broke ribs, damaged lungs, and more importantly, shredded a two inch portion of the aortA. The aorta is the main artery in the body. It runs from the heart and delivers blood to the rest of the body.

Either of those two wounds in their own right, and certainly both together, would have produced very rapid death. The third gunshot wound, the one that passed through the chest, actually passed through and disrupted the heart, so that wound in itself had the potential of causing fairly immediate death.

However, the characteristics of that wound on appearance were somewhat different from the other two. The typical changes, the vital reaction that we see in the skin, particularly surrounding an entrance wound when a person is alive and with an intact circulation, were not present with this wound, so this wound had the characteristics of having been sustained either around the time of death, that is during the dying process, or after death.

Q. All right. I take it from your evidence is that whatever the order of the first two shots you describe, the ones that pass through the torso, in your opinion, the shot that went through the back and through the heart was third in order in time.

A. Correct. That is my opinion.

Q. All right. Now, in terms of sequencing, you've told us why you thought the shot to the back was third in order of time. Was it possible, from examining Mr. Taylor's body, to determine the order of the first two shots?

A. No. Either of the first two shots could have come first. The only thing that I can say about the first two shots, because they both shredded this large artery, the aorta, they had to have been sustained fairly quickly in terms of their time relationship to each other.

The minute that aorta was shredded by the first shot, Mr. Taylor was dying. He had effectively around nine to eleven seconds in which he could have still functioned or stayed upright.

That's the time it takes to utilise the oxygen that's already in the brain. Because the aorta is shredded, no circulation is now going to reach his brain, so no additional oxygen is going to be supplied to the brain to function. Given the fact that the trajectories are so close to each other, almost parallel as they go through the body, the shots had to be sustained in very rapid succession.

The evidence suggests that with the passing through the same organs and shredding the same portion of the aorta, Mr. Taylor was still in the same position when he sustained the second shot as he was when he sustained the first shot.

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The good news is: I'm the last lawyer you're going to hear from. The bad news is that I will be fairly long. I will be perhaps as long as the other three lawyers put together. There's a reason for that.

As you heard, it's the responsibility of the Crown to prove all elements of the case beyond a reasonable doubt. It's not a situation, as it is for counsel, simply to poke holes in the Crown's case. They can pick their spots, go there, and be brief.

And there's an advantage to being brief. I don't have that advantage. I want to cover the whole case, and I want to do it thoroughly. So it'll take a fair amount of time, longer than the three of them combined, I expect. But we will get through it. And what I propose to do is, you know, at a break in my submissions I will ask to take just a brief break, and we'll take it from there. I don't expect to be talking in any one stretch for more than an hour.

Let me start by saying this. You will note that I have a stack of notes here, and I will try as much as possible not to relate to those. But there's a lot that I need to say, that I want to say, and if I try to wing it, I'm just gonna get all muddled up. So I have these notes here as a sort of a safety net. I know where I'm going, and if I get lost I can always refer back to it.

Let me at this stage - you've heard it from the other counsel - all of them thanking you for the service you have provided. And make no mistake, you really have provided a great service on behalf of the administration of justice in this city. Being members of a jury certainly has taken you outside of the daily routine of your lives. It certainly has been, I'm sure, an inconvenience. I hope, as well that it has had a number of positive aspects for you.

That being said, I really can't emphasize enough how important is the task you have undertaken. Often, you go to a party or whatever, and people are often fascinated by the work that I do, sort of getting involved in the criminal justice system. But you always get the sense that when they ask you about it, they're asking you about some alien land that they really don't know anything about.

That's why the jury trials are so important. It's twelve members of the community, chosen to some large degree at random, who come together, and are asked to decide the guilt or innocence of another member of the community charged with criminal misconduct.

And that really is something unique. It's unique to our system of justice. And it is, it's been around -- the jury system has been around for a long time. And that's no mistake. The reason it's been around for such a long time is because what the jury system manages to do is to tap into a vast reservoir of common sense that exists in the community.

You all come from diverse backgrounds. Between you, you have upwards of four to five hundred years of life experience. The beauty of the jury system is that it makes use of that vast experience that varied experience.

So when the time comes to deliberate, I would urge you to have a fair and open exchange of ideas. That exchange of ideas is really the genius of the jury system. And to not go that route, to not hear each other out, to not share opinions would really be a shame.

Now, before dealing with the case for the Crown, I would like to briefly deal with some general legal principles only because I think, in order to understand some of the Crown's submission; it is helpful to have some general principles at the front end.

You have heard the indictment read out. You've heard the three accused arraigned. The first principle I want to deal with is one that counsel have already touched on - the presumption of innocence.

You've heard already from defence counsel. Those three men over there, Mr. Smith, Mr. Sutherland, and Mr. Unger on the end - they come to court cloaked in the presumption of innocence.

You will hear a great deal more about the presumption of innocence, I expect. And you will hear so much about it because it is one of the essential underpinnings of our criminal justice system.

A related principle is the burden of proof. A person is presumed innocent until such time as the Crown, which bears the burden of proof, discharges that burden, and satisfies you of guilt beyond a reasonable doubt.

The burden of proof is an important underpinning of our criminal justice system. It is also a burden that the prosecution in this case accepts willingly and without any sort of reservation.

Along with those two principles - presumption of innocence and burden of proof - there is a concept of reasonable doubt.

Again, you're going to hear a lot about reasonable doubt. The accused person is not to be convicted until you are satisfied of his guilt beyond a reasonable doubt. And that's a high standard - I won't pretend anything otherwise. And that's exactly as it should be.

That being said, any doubt - it must be a real doubt; it can't be an imaginary doubt or a frivolous doubt, not a doubt based on sympathy or prejudice, or a doubt conjured up to avoid passing judgment on another member of the community. You have all taken an oath to render judgment based on the evidence, without prejudice or favour.

Now, let me just say this, that the law requires - it's important to keep in mind -- what the law does not require, that the Crown need not prove each and every fact beyond a reasonable doubt. The Crown is never obliged to prove each and every fact in the body of evidence supporting your final conclusion. Reasonable doubt applies only to the ultimate question of guilt.

As well, you have heard the word "reasonable." I should point out, the Crown has to prove guilt beyond a reasonable doubt. The law does not require the Crown to prove guilt beyond any doubt. That's unrealistic. That would be an unreasonable burden. The Crown has only to prove guilt beyond a reasonable doubt.

At the end of your deliberations, if you are left with a reasonable doubt as to the guilt or innocence of those three gentlemen over there, by all means find them not guilty. However, at the end of your deliberations, if you have no doubt, you are sure of their guilt, then you are duty-bound to return a verdict of guilty. The oath you've all sworn as jurors demands no less of you.

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simply to poke holes in the Crown's case

Idiomatic language

go there, and be brief

General vocabulary

at a break in my submissions

Specialized terminology/phraseology

talking in any one stretch

Phrases or clauses that may be structurally complex

You will note that

Grammar (verb form)

just gonna get all muddled up

Register (formal, neutral or informal language)

you've heard it from the other counsel

Specialized terminology/phraseology

make no mistake

Register (formal or informal language)

has taken

Grammar (verb form)

twelve

Numbers and names

chosen at random

General vocabulary

to do is tap into a vast reservoir of common sense

Idiomatic language

a fair and open exchange of ideas

Words or phrases likely to be omitted due to their position

briefly

Words or phrases adding precision or emphasis

you are to disregard what I'm telling you

Words or phrases likely to be omitted due to their position

Mr. Unger

Names and numbers

is an important underpinning

Words or phrases adding precision or emphasis

that the prosecution in this case

Phrases or clauses that may be structurally complex

Members of the jury, before you hear the evidence in this case, I'm going to spend a few minutes explaining some basic principles that will be important for you in deciding this case. I also wish to explain a little further what I expect will happen during the course of this trial.

I shall begin with some general comments on the judge and jury system. This system is one of the oldest and most important of our legal traditions. It is a team system where you are the judges of the facts and I am the judge of the law. Each of you has been selected for this trial as a judge of this court with responsibility over the facts of this case. Just as when I was appointed to and undertook my duties I was sworn into office, you have taken an oath before you embarked on your task as a juror in this case. You are for this trial judges of this court with the exclusive responsibility for assessing and reaching conclusions concerning the evidence. By the same token, when I tell you what the law is, my view of the law must prevail. I am the exclusive judge of the law with exclusive responsibility for that for this trial. It would be wrong for you to decide this case on the basis of what you think the law is or what you think it should be.

There are two other basic principles which are fundamental to your role as jurors. They are the requirement for proof beyond a reasonable doubt and the presumption of innocence. The requirement for proof beyond a reasonable doubt means just what it says. No person accused of a criminal offence in Canada can be found guilty unless the Crown proves each and every part or element of that offence beyond a reasonable doubt. Similarly, our system of law requires that an accused person be presumed or considered to be innocent. Bryan David Paterson has no obligation to prove that he is not guilty or to explain the evidence offered by the Crown. The law presumes him to be innocent until you, as the triers of fact, decide otherwise. What does this mean to you as jurors? First, it means that the law requires you to decide whether the accused is guilty or not guilty based on a careful consideration of all of the evidence you will hear in this courtroom.

Second, the requirement for proof beyond a reasonable doubt and the presumption of innocence mean that you must pay close attention to the evidence because you can only return a verdict of guilty if you are satisfied that each element of the offence charged is proved beyond a reasonable doubt. If you are left with a reasonable doubt after you consider all of the evidence you must give the benefit of that doubt to Bryan David Paterson and return a verdict of not guilty.

When I finish these remarks I will call upon Mr. Burger, the lawyer representing the Crown, to make his opening statement to you. Mr. Burger will tell you what he expects the evidence will be and what he expects the various Crown witnesses will say. The purpose of this opening statement is to make it easier for you to follow the evidence as the witnesses testify. It is important, indeed critical, that you understand that the opening statement of Crown counsel is not evidence because it is not given under oath by a witness from the witness box. Opening statements are given for a very specific reason. The evidence in a trial such as this is not a narrative that unfolds chronologically and sequentially like a book or a TV play or a movie. Witnesses are called who testify as to what they know about a particular series of events. In many respects, it is like a jigsaw puzzle with witnesses testifying as to particular areas that they know about so that you can understand the whole picture. The opening given to you is so you can have an overview of that evidence so that when each piece comes forward you can fit it into the overall picture more easily. It is very important that you understand that what is said to you by counsel in opening statements is not evidence. The evidence will come primarily from witnesses who testify from the witness box and also from documents or exhibits placed before you.

Once Mr. Burger finishes his opening statement he will call the first Crown witness and will begin direct examination of that witness. Direct examination is a series of questions that give the witness an opportunity to tell you what he or she knows about the case. On direct examination counsel is not supposed to ask a question that suggests the answer which is known as leading questions. It is considered objectionable because it amounts to counsel giving the evidence while the witness merely agrees or disagrees.

After Mr. Burger asks all of his questions of a witness Mr. Darrow will have the opportunity to conduct cross-examination of the witness.

Like direct examination cross-examination is a series of questions. The purpose of cross-examination is to test the evidence given by the witness and to bring out facts that may assist the accused. Counsel may ask questions to test the truthfulness or ability of the witness to see things or to remember them or he may choose to ask no questions. Leading questions are allowed on cross-examination.

After the completion of any cross-examination by Mr. Darrow the witness may be re-examined by Mr. Burger on any new matters brought up during cross-examination that may require further explanation. This procedure will continue for each witness until you've heard all of the Crown witnesses.

Once the Crown finishes presenting its evidence, Mr. Darrow may present evidence on behalf of his client. If defence chooses to present witnesses, we will follow the same procedure as we did for Crown witnesses only this time Mr. Darrow would conduct direct examination and Mr. Burger will conduct cross-examination. Where an accused person decides to present evidence, the Crown may have the right to call evidence in reply. If that happens it will be similar to the first part of the Crown case.

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The accused, a native of Vietnam, was charged with sexual aassault. In her statement to the police a few hours after the aassault was alleged to have occurred, the complainant described hear two assailants as "Asian", one being "fat" and "clean-shaven." Thea complainant later picked the accused's photo from a photo line-uap. At trial, the accused appeared as slender with a moustaache. The complainant identified him in court as the man she had apreviously described as clean-shaven and fat, but concededa on cross-examination that as he appeared in court he was not fatA.

The defencea called the accused's court-appointed interpreter to testify about tahe accused's weight at the time the attack was alleged to havea taken place. Instead of translating his testimony in full as he gave ita, as instructed by the trial judge and by defence counsel, the interapreter answered in English and only summarized his evidence in Vieatnamese at the end of his direct examination and again after his caross-examination.

An exchange betweean the trial judge and the interpreter which followed his cross-examination appears not to have been interpreted at all. The accused was convicted. He appealed his conviction on the grounds that the identification evidence was flawed and that deficiencies in the translation of the evidence deprived him of the right to be actually present at his trial, contrary to s. 650 of the Criminal Code. The Court of Appeal upheld the conviction.

The main issue in this appeal is whether the failure to provide the accused with full and contemporaneous translation of all the evidence at trial constituted a breach of his right to an interpreter, as guaranteed by Section 14 of the Canadian Charter of Rights and Freedoms.

The right of an accused who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. This right is also intimately related to our basic notions of justice, including the appearance of fairness, and to our society's claim to be multicultural, expressed in part through Section 27 of the Charter. The magnitude of these interests favours a liberal interpretation and a principled application of the right to interpreter assistance under Section 14 of the Charter. The principle underlying all of the interests protected by the right to interpreter assistance under Section 14 is that of linguistic understanding.

In determining whether there has in fact been a breach of the Charter, it must be clear that the accused did not understand or speak the language being used in court and was thus actually in need of interpreter assistance. Where an interpreter was appointed and it is the quality of the interpretation provided that is being challenged, it is necessary to determine whether there has been a departure or deviation from what is considered adequate interpretation.

While the interpretation provided need not be perfect, it must be continuous, precise, impartial, competent and contemporaneous. The question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court. Not every deviation from the protected standard of interpretation will constitute a violation of the Charter: The claimant must establish that the lapse in interpretation was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter.

In determining whether the alleged deviation in interpretation was part of an occurrence which actually served in some way to "advance the case", one must consider whether there was an unfolding or development in the proceeding with respect to a point of procedure, evidence and/or law. Since Section 14 guarantees the right to interpreter assistance without qualification, it would be wrong to introduce into the assessment of whether the right had been breached any consideration of whether or not the accused actually suffered prejudice when being denied his or her Section 14 rights. The Charter in effect proclaims that being denied proper interpretation while the case is being advanced is in itself prejudicial and is a violation of Section 14.

There will be situations where the right to interpreter assistance cannot be waived for reasons of public policy. Where waiver is possible, the Crown must not only show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, but also that it was made personally by the accused or with defence counsel's assurance that the right and the effect on that right of waiving it were explained to the accused in language in which the accused is fully conversant.

Here the accused was in need of interpreter assistance throughout his trial, since he did not understand or speak English, and there is no doubt that the interpretation of the proceedings in which the interpreter was involved as a witness fell well below the guaranteed standard.

First, the accused did not receive continuous interpretation of all the evidence at his trial, since the questions posed to and answers given by the interpreter were condensed into two one-sentence summaries and the interpreter's exchange with the judge was not translated at all.

Second, the interpretation was not precise, as the summaries failed to convey everything that had been said and the first summary was incorrect in that it referred to something which had not in fact been said.

Third, while there is no reason to doubt the actual impartiality or objectivity of the interpretation provided in this case, the practice of having an interpreter act as both a witness and an interpreter is one which should be avoided in all but exceptional circumstances.

Finally, the timing of the interpretation was unsatisfactory, in that it should have occurred contemporaneously with the asking of questions and the giving of answers.

These lapses were not trivial in nature, but rather occurred at a point when the accused's vital interests were clearly involved and the case was thus being advanced. The problems with the interpretation arose during the testimony of a witness, and the evidence given by that witness covered a topic of considerable importance to the accused, namely, the issue of identification upon which his entire defence was built. There was no clear or unequivocal waiver by the accused of his right to interpretation.

There is also no indication that the accused personally understood the scope of his right to interpreter assistance and what he was giving up, and that the waiver was made by him personally. The curative provisos of the Criminal Code are not applicable when an infringement of the right to interpreter assistance is in issue. While denial of a Charter right constitutes an error of law, it is by its very constitutional nature a serious error of law, and certainly not one which, for Criminal Code purposes, can be characterized as minor or harmless, or as a "procedural irregularity."

Recourse should be had to Section 24(1) of the Charter, which allows a court to tailor the remedy to the particular circumstances of the violation. Since the violation of Section 14 of the Charter in this case occurred in the trial proper, the appropriate and just remedy under Section 24(1) is to quash the accused's conviction and order a new trial.

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