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0:00
Catherine Valestuk: Awesome well listen it's 5:02 and I know they'll probably be some more people who will join us as we go, but I think it's a good idea to get started so thanks everybody who's here today. Catherine Valestuk: Welcome to the University of Calgary Faculty of Law online presentation on current topics and criminal law and an introduction to the criminal justice clinic. Catherine Valestuk: With Professor Lisa Silver and lawyer and sessional instructor Markham
0:25
Silver, QC. My name is Catherine Valestuk and I'm the assistant dean of recruitment and admissions here at UCalgary law. Catherine Valestuk: Prior to introducing our presenters, I would like to take this opportunity to acknowledge the traditional territories of the people of the Treaty Seven Region in southern Alberta. Catherine Valestuk: which includes the Blackfoot confederacy, the Tsuut’ina Nation and the Stoney Nakota. The City of Calgary is also home to Metis Nation of Alberta Region Three.
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Catherine Valestuk: I would also like to acknowledge that the university situated on land adjacent to where the Bow River meets the Elbow River and that the traditional Blackfoot name of this place is “Moh’kins’tsis”. Catherine Valestuk: So with that welcome, we are so fortunate to have the professor's Silver with us today and to benefit your round from their collective breadth of expertise within the realm of criminal law.
1:20
Catherine Valestuk: Mark themselves has been essential instructor at UCalgary Law for the past three years, I think, mark and this. Catherine Valestuk: least at least Cecil underrate this past year was the winner of the inaugural Sessional Teaching Award. Catherine Valestuk: He is a member of the Law Society of Alberta and of the Law Society of Ontario and among other areas Markham his practice extensively in the areas of criminal litigation.
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Catherine Valestuk: At both the trial and appellate level and before all levels of the Court and Ontario and Alberta, including the Supreme Court of Canada. He teaches what evidence and our criminal justice clinic and I think he might even be working with you Lisa on the advocacy block course this. Lisa Ann Silver: yep absolutely. Catherine Valestuk: yeah awesome. Catherine Valestuk: Professor Lisa Silver is a former practicing criminal lawyer and
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she is well known for their criminal law scholarship which covers all areas of the criminal justice system. Catherine Valestuk: Including substantive criminal law issues and criminal law reform she publishes her very own legal commentary website idea blog which I highly recommend all of you it's fascinating. Catherine Valestuk: Which won a coveted Clawbie award, which is the Canadian law blog blog awards, and she produces the podcast on the criminal code.
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Catherine Valestuk: Presently she's working on the role and presidential value of appellate guidelines and starting points and creating adjust and appropriate criminal sanction as envisioned in fundamental sentencing principles and objectives. Catherine Valestuk: And she's working with Professor Nikolaou and they have a grant to investigate the impact of experiential learning in creating the whole advocate in the capstone advocacy program offered to eat Calgary law in your third year.
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Catherine Valestuk: Lisa served for six years on the Calgary Police Commission, five of which she was the vice chair and she is currently a board member at Calgary Legal Guidance and not to be one up by her husband Lisa won the Howard Tidswell memorial Award for Catherine Valestuk: Excellence in 2016-2017. Lisa teaches crime evidence and, as mentioned our capstone advocacy course in 3L. So please welcome Lisa and Markham and I will let you
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take it away, and then we can help you with questions down the road once you're finished with your presentation. Markham Silver: Or at least. Lisa Ann Silver: Oh need first no. Lisa Ann Silver: No, no. Markham Silver: No, yes, yes, yes, yes, they got. Markham Silver: A law before they get to go I'm good to go. Lisa Ann Silver: So, Catherine had styled my presentation as top current topics and criminal law but we're going to do a little bit a little bit something different, that
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I hope you will enjoy at least I had fun creating this program for you this afternoon, so let me just share screen here and. Lisa Ann Silver: get going. Lisa Ann Silver: And as as his usual, by the way, is my PowerPoints tend to be a full of fun and a little bit of music as well, and a little bit of videos so. Lisa Ann Silver: Hopefully you will enjoy this I will, I will be asking you to participate in this presentation as well, and what I suggest, which is what Catherine has already suggested
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is that we use that chat box. Lisa Ann Silver: So, welcome to the wild and wonderful world of criminal law as you've already heard my name is Lisa Silver and together we will take a short but fascinating tour of the criminal law universe. Lisa Ann Silver: Before we get started, I want you all to take a moment just think what do you know about criminal law and how do you know it, what images come to mind. Lisa Ann Silver: Maybe your image comes from a TV show in which crime is solved by a drop
5:32
of blood. Lisa Ann Silver: Or maybe the images from superheroes fighting crime. Lisa Ann Silver: or solving it. Lisa Ann Silver: Or maybe the image is closer to home, as you think of real life situations. Lisa Ann Silver: And the real people criminal law touches. Lisa Ann Silver: Whatever the images media certainly shapes our understanding of criminal law, yet the reality is much, much different or is it. Lisa Ann Silver: that's what we're going to explore together for the next 30 minutes or
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so, in my episode of criminal law myth busters and for every episode, I have to have some music concert here is. Lisa Ann Silver: Oh, I hope you can hear it. Markham Silver: You actually have to set that up in your share screen. Markham Silver: Yes. Lisa Ann Silver: You are right about that. Lisa Ann Silver: Yes, thank you see, this is why I have Markham with me to give me technical advice, and so let me just go back and that was so exciting and yet so what I had to do
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because you have to hear the news. Markham Silver: Sure sounds. Lisa Ann Silver: Great. Lisa Ann Silver: there's my baby. Lisa Ann Silver: and Lisa Ann Silver: Okay. Lisa Ann Silver: that's enough. Lisa Ann Silver: And if anyone in the chat box wants to say which song that is then go ahead. Lisa Ann Silver: Now what we're going. Lisa Ann Silver: What we're going to do is we're going to look at five minutes of criminal
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law and we're either going to confirm bust are saying, well, maybe, maybe they're plausible. Markham Silver: got it yeah Lisa you're showing the whole thing, as opposed to just the slides. Lisa Ann Silver: Oh thanks. Lisa Ann Silver: I got too excited there Okay, and so before we do that before we get to these five minutes of criminal law. Lisa Ann Silver: I want us to understand that criminal law is unique it's not just a body of rules and principles, but an entire justice system.
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Lisa Ann Silver: So there's no mother area of law like it in that respect So what does that mean well, that means many different legal principles are going to come together when we talk about criminal law. Lisa Ann Silver: And yes, jonah jonah wins the prize I don't know what kind of prize it's going to be, but yes, that is abracadabra by the speed Miliband. Lisa Ann Silver: So we've got all these laws that are going to come together in this criminal justice system.
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Lisa Ann Silver: And you may have heard Catherine Catherine already mentioned substantial criminal law well generally, there are three areas of law which all come together in a criminal case that's substantial. Lisa Ann Silver: procedure and evidence so substantial criminal laws concerned with the essential elements of a crime, in other words, what is a crime. Lisa Ann Silver: And why are some actions considered criminal, while others are not.
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Lisa Ann Silver: And to answer this we look at statute which are just written laws, and we also look at judge made laws, but we also look at public policy and that's what we will focus on. Lisa Ann Silver: In the fall and in the winter, when you take the one l criminal law class now criminal procedure is concerned with the how. Lisa Ann Silver: How does that substantial fence get to court and when it does, what
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are the processes in place, so this area of law will cover investigation manner prosecution and administration of justice issues, although procedural often the Charter is front and Center. Lisa Ann Silver: For all fairness and justice are a continual low concern in criminal procedure now there is a criminal procedure course, it is an optional course that you can take as a two hours or three hours. Lisa Ann Silver: The last area that impacts, criminal law is evidence, the law of evidence,
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which involves methods of proof at trial. Lisa Ann Silver: Now, most of the rules of evidence, are concerned with admissibility of that evidence is the judge going to allow that evidence to be introduced during the course of the trial. Lisa Ann Silver: And a lot of the rules are not just about admissibility, but also about exclusion when are we going to say yes, the evidence may be admissible, but it ought not to be admitted, because of an exclusionary rule.
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Lisa Ann Silver: evidence is also concerned with the weight that's going to be attached to that item of evidence, when admitted. Lisa Ann Silver: Now this is an amazing course you heard that both mark and I teach this a lot of my writing and my research is involved in evidence. Lisa Ann Silver: And by the way, evidence is criminal and civil of course there's going to be some very specific issues that will be criminal law only but generally evidences
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evidence now evidence is a required course into. Lisa Ann Silver: And then, all of these areas, all of these basics, the criminal laws of standard procedure evidence, they all come together at trial and that's why the three l advocacy course if you choose to do the criminal trial you'll see all of these areas coming together firsthand. Lisa Ann Silver: Finally, on the basics before we get to some this let's ask ourselves where
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these principles and rules come from? well First, we have the Criminal Code here I got my handy dandy criminal code, this is my pocket criminal code. Markham Silver: This one's better this one. Lisa Ann Silver: Well Okay, we won't argue in front of everyone Markham take it out we'll take it out of the zoom room afterwards. Lisa Ann Silver: So pocket criminal code is what you're going to be working live in the fall it's going to be your BFF, it is my def oh sorry Markham it's my BF.
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Lisa Ann Silver: You know you're my best friend, this is my best friend forever and the Criminal Code is a code invocation of most, but not all, but most of the. Lisa Ann Silver: written rules and laws that pertain to criminal law in the code you're going to find. Lisa Ann Silver: Stand up you're going to find crimes you're going to find procedure and unifying some evidence sections as well. Lisa Ann Silver: But they don't stand alone another source is judge made law that's going
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to interpret that criminal code. Lisa Ann Silver: And going to apply common law concepts and you'll learn in the fall what common law concepts are what common law means which is really just unwritten laws. Lisa Ann Silver: And those common law concepts are going to and you're going to see this case in the fall is going to illuminate the code and implications for China in joburg on. Lisa Ann Silver: So, now that we've got the basics, now that we know sort of what the
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moving parts are of criminal law let's take a look at some myths and legends that you may have know you may not have all of these, but they are out there they're out there in the media. Lisa Ann Silver: So first let's look at the courts myth vs reality and here's the first one, hopefully, this is an easy one myth or reality. Lisa Ann Silver: goggles are used in Canadian courts tell me in the chat what you think
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gamble's are used in Canadian courts myth or reality Trevor says Smith Jones says MIT. Markham Silver: jonah says it with a question mark so he's not. Lisa Ann Silver: yeah but you know he's got it, I mean I'm not gonna say he's got up at the question mark that is law right law is a question one. Lisa Ann Silver: So, David says gotta be true TV doesn't lie. Markham Silver: Oh he's American American. Lisa Ann Silver: David you know what.
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Lisa Ann Silver: that's that's true TV doesn't lie we're going to get to some of that, so this is indeed myth. Lisa Ann Silver: And we busted this myth in Canada, we do not use gavels, this is a misconception as David said from media, it also comes from clip art, as you saw in my previous slide. Lisa Ann Silver: You know, as soon as you, you ask your PowerPoint to come up with some icon say for law they give you the gavel.
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Lisa Ann Silver: So in fact in Canada, we don't use gavel In fact we don't have sidebars there's no approaching the bench in our system of justice, virtually all matters are done in open court on the record before the accused. Lisa Ann Silver: Our system views the Court as a public forum where anyone can attend this doesn't mean we invite TV cameras into the Court, although a judge has the discretion to do so.
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Lisa Ann Silver: But journalists often can tweet the content of the judges final reasons. Lisa Ann Silver: Also, as you will learn this fall for every general rule there's the question mark and criminal law, there are exceptions. Lisa Ann Silver: And so, a judge may, in certain circumstances it's glued witnesses from a trial, so they can't hear each other's evidence. Lisa Ann Silver: or a judge has a discretion in certain circumstances, to place a ban on
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publication of the evidence which means someone can attend them watch the evidence in court, but they can't disseminate that information. Lisa Ann Silver: There are other exceptions, but it's important to understand the Court is not a private matter, criminal law engages the public interest, and therefore it engages the integrity of the justice system, which must be protected. Lisa Ann Silver: Here it's our second myth myth or reality Canadian lawyers wear gowns and wins.
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Lisa Ann Silver: Any thoughts. Lisa Ann Silver: Are we going to confirm buster plausible this one Canadian lawyers wear gowns and wigs john it says reality David says half truth, I like that I like a half truth. Lisa Ann Silver: crevice has it's plausible and here Bridget I think Bridget Scott it right Bridget Scott, the answer right here, it is plausible. Lisa Ann Silver: Yes, we wear gowns but no wigs and there you've got a lovely idea of
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what the gown looks like, although that is the barristers gown that I have but Markham who happens to be a queen's counsel, he has a slightly different one. Lisa Ann Silver: However. Lisa Ann Silver: We only where the gowns in Superior Court and Superior Court in Alberta is known as the Alberta Queen's Bench and the first the first. Lisa Ann Silver: image that you have there is Madame Justice Bernadette Ho she saw an awesome QB judge who often comes to the school to participate in events.
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Lisa Ann Silver: We also were our gowns and there's a second picture there on the slide when we appear before the Alberta Court of Appeal. Lisa Ann Silver: And finally, of course, you wear your gown in the Supreme Court of Canada. Lisa Ann Silver: So only in superior court, not in provincial court and provincial court is where will most criminal law matters are heard. Lisa Ann Silver: And just an fyi if you're wondering well, what does superior mean versus
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provincial every province structures their courts differently. Lisa Ann Silver: But they all have two levels of trial courts and provincial court is purely statutory meaning, it is created by a written law a statute. Lisa Ann Silver: While superior court, the Alberta Court of Appeal a Queen's Bench as one of them has inherent jurisdiction, there is no written law that creates superior court. Lisa Ann Silver: Pure as the name suggests, that's above the provincial court meaning
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their decisions are authoritative over the provincial court. Lisa Ann Silver: There are many other differences but in terms of of where, in terms of what we were as lawyers think business wear suits and provincial court and formal wear gowns in superior. Lisa Ann Silver: Now I didn't I didn't style this as a separate myth or reality, but while we're in court let's banish that media image of what a quarterly looks like.
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Lisa Ann Silver: So here is a courtroom at the Calgary Court Center see it's very simple there's no flags no flag waving in our in our Canadian courts. Lisa Ann Silver: There are video monitors we even have a photocopier and the judges, you can see, will sit on a diocese but not to the lofty heights he may see in the movies and TV. Lisa Ann Silver: Now, this is a bit of a different courtroom this would be for a queen's bench.
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Lisa Ann Silver: Because it has a jury box and you can see that, on the Left jury trials are only done in superior court. Markham Silver: And it looks like a courtroom in Edmonton actually. Lisa Ann Silver: It is good for you Markham you get a prize to I'm giving out prizes today. Markham Silver: yeah only because I've appeared in it. Markham Silver: yeah. Lisa Ann Silver: yeah it's a little fancier than the ones that we have in Calgary right.
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Markham Silver: But it doesn't have as good setups for computers there. Lisa Ann Silver: And of course I want you to appreciate the courts do not and should not look, all the same justice as one judge put it it's not a place, but a service. Lisa Ann Silver: So here you've got the picture of the Calgary Indigenous courtroom, and this was established in 2019 it's at the Calgary Court Center it's On the 18th floor.
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Lisa Ann Silver: And you can see the way that it's set up not only is it circular so that the judges and sitting on a diet everybody is sitting together but there's also space in the middle of this Court room for a smudging ceremony. Lisa Ann Silver: The Calgary Indigenous court focuses on restorative justice in the context of indigenous values and practices through peacemaking. Lisa Ann Silver: and connecting the accused their cultures and communities, now it deals
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primarily with bail hearings which is judicial interim released. Lisa Ann Silver: from custody and sentencing hearings and it's open to any offender who is Indigenous and chooses to have their matter addressed in this court now there's going to be more about Indigenous justice in the one l criminal law class and also, I know in Markham's criminal justice seminar. Lisa Ann Silver: And there's Judge Crowshoe I just had to show Judge Crowshoe's awesome
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she's actually going to be our advocacy chair this January which I'm really excited about and she has been very involved as provincial court judge in creating that court and and also advancing indigenous justice. Lisa Ann Silver: nope versus reality here we go. Lisa Ann Silver: Here is the situation of forensic science and I just want you to consider this first. You know that thing that was almost solved by a flasher dog in the 1980s, specifically
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this story is about how we increasingly solve crimes using forensic evidence it's that thing that is just a staple of TV crime chokes. torso on the left. On the right. To hearts, be this one. that's a match, we got to manage and they just found some match match match match were you able to determine which monkey bit in the bite marks match those are the monkey found at the same. Lisa Ann Silver: Okay, I hope, you're laughing because, as you can see, when you look at
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forensic science and forensic evidence on TV shows CSI, whatever it is, you get the sense that it's it's always going to be a match, and you also start wondering. Lisa Ann Silver: This DNA or fingerprint evidence alone is enough to convict somebody of a crime. Lisa Ann Silver: What do you think DNA or fingerprint evidence alone is enough to convict someone of a crime is that a myth. Lisa Ann Silver: Or is that we. Lisa Ann Silver: Like to weigh in on. Lisa Ann Silver: Like a lot of miss there.
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Lisa Ann Silver: Okay well. Lisa Ann Silver: This one this one I'm going to say it's a bit of a busted and a bit of a plausible and I'll tell you why it depends. Lisa Ann Silver: It depends on the charge it depends, where the evidence was found it's depends on how that evidence is introduced into Court and the inferences reasonably available from that piece of evidence. Lisa Ann Silver: So what do I mean by him, for instance, well first this kind of evidence
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is called circumstantial evidence, meaning that, unlike direct evidence which is, I saw jade hit Perry. Lisa Ann Silver: This kind of evidence depends on the Trier of fact be at a judge or a jury drawing an inference from that piece of evidence, for instance, because there is a DNA match I can draw an inference jade committed the assault. Lisa Ann Silver: But circumstantial evidence has to be treated very carefully to ensure that our decision makers don't take a leap in logic.
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Lisa Ann Silver: So, essentially, if there are reasonable alternatives, other than guilt, then the inference should not be made. Lisa Ann Silver: And so there other problems with forensic evidence, it really can't stand alone, and it is subject to interpretation, you need expert evidence and our. Lisa Ann Silver: Our Supreme Court of Canada has advised us or not just advised us told us that we have to be wary of expert evidence and indeed that's one area of my research
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is on expert evidence and laws surrounding it's admissibility. Lisa Ann Silver: And now I'm going to give you a tale of two cases when it comes to be in a or fingerprint evidence. Lisa Ann Silver: Who cases first example vagina and live page, this is a 1995 Supreme Court of Canada decisions. Lisa Ann Silver: In that case, the police had found under a SOFA in the living room where the accused and his girlfriend had been sitting a clear plastic ziploc bag Canadian
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containing blotting paper that was saturated with 682 hits of LSD. Lisa Ann Silver: The only identifiable fingerprints on the bag where those of the accused, so he was charged with possession of LSD for the purpose of trafficking, and he was ultimately convicted at trial. Lisa Ann Silver: The question before the Court and the pages can possession, which is part of the charge that the accused with facing him possession of those drugs be inferred by fingerprints alone.
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Lisa Ann Silver: Now possession is defined under the criminal code under section for some section three. Lisa Ann Silver: And it includes not just personal possession and personal possession, with the when your hope you have something on your person or or any or so called possession. Lisa Ann Silver: But it also covers what we call constructive possession and that's where the person isn't holding it on their person, but it's being held elsewhere for their benefit and use.
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Lisa Ann Silver: Now, the majority in the page said well the judge wasn't wrong and drawing the inference because the choose did not testify. Lisa Ann Silver: And you might be thinking wait a minute wait a minute here well the accused isn't required to testify it's true and accused isn't required to testify and, by the way the Crown has to prove a criminal case beyond a reasonable doubt there's no burden on the accused to prove their innocence.
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Lisa Ann Silver: And I'll go this is so, the courts REP referenced another case one of their own decisions. Lisa Ann Silver: Where the Court said that once the Crown has established the elements of the offense in their case and remember at a trial, the Crown is going to call their evidence first. Lisa Ann Silver: So, at the close of the crown's case if the Crown has established the elements of the offense what we can call a primer facie case.
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Lisa Ann Silver: The accused will run the risk that the charge can then be proven beyond a reasonable doubt. Lisa Ann Silver: If they don't call any evidence, and that includes their evidence so tactically the accused should testify. Lisa Ann Silver: And so the courts have said in those circumstances, the judge can draw this adverse inference by the accused not testifying and they said judge was right to convict on that fingerprint evidence alone that's one case let's look at another one
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this other cases Regina and again it's a. Lisa Ann Silver: Alberta queen's bench decision so it's a superior court trial decision. Lisa Ann Silver: In that case, the accused did not testify. Lisa Ann Silver: But he was charged with armed robbery, have a liquor and gas bar and, as I said, he didn't testify, but over the course of three days, the Court heard from 16 witnesses called by the Crown. Lisa Ann Silver: There was video surveillance at those two locations, the lecture and gas
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bar and the video surveillance showed that, as the person, whoever the person was who committed that these these robberies were wearing. Lisa Ann Silver: Several items of clothing, including a neck warm now the police ultimately found these items in a truck and they tested them. Lisa Ann Silver: The DNA tests revealed a match between the DNA on the neck warmer and the accused now the judge in his reasons. Lisa Ann Silver: agreed that it was the only evidence implicating Mr McMahon was that DNA
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match, and although Mr mcginn generally fit the description of the suspect, which you know you can imagine, was was very general in terms of height. Lisa Ann Silver: and weight and very general, none of the witnesses, none of those 16 witnesses called by the Crown could identify the accused as the perpetrator. Lisa Ann Silver: So the judge said, look at the Crown has failed to prove their case beyond a reasonable doubt on acquitting the accused, because all that the DNA can tell us is that
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at some point in time, the accused DNA came into contact with business warmer it can tell us when. Lisa Ann Silver: And in cross examination of the DNA expert that expert said that someone could wear that item could were getting warmer and not shed any DNA onto it. Lisa Ann Silver: So their tale of two cities one fingerprint evidence was enough, the other DNA evidence is not enough. Lisa Ann Silver: And that my friends, is why I love criminal law because you're always
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going to have something to talk about, and if we had more time I would look at you and say what's the difference between these two cases. Lisa Ann Silver: Are are those differences enough what is missing, what concerns you about these two decisions. Lisa Ann Silver: And so that's why I say you know, maybe we busted it because date, you know forensic evidence isn't like those crime dramas where it's a match, and everyone.
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Lisa Ann Silver: goes home, you know saying yep we were done here so it's not like the crime dramas but it's equally dramatic I would suggest, when we look at those two cases so it's plausible. Lisa Ann Silver: Now I've got two more, and I know that we're eating into Markham's precious time but I just want to do these two two more minutes versus reality, and these are missed some vs reality on criminal charges, and so I love this one what's wrong with this headline.
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Lisa Ann Silver: Are your vacation pictures putting your home at risk of robbery, and this is, this is an actual headline from a global news article. Lisa Ann Silver: wallet that's headed and it truly is one of those miss be I gave it away miss that keep coming and coming coming up, but what's what's the meant there. Lisa Ann Silver: Ah Emily. Lisa Ann Silver: Emily are you making made me made me smile Emily says robbery is not theft of a home that's right robbery, is not a break enter.
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Lisa Ann Silver: With intend to commit an indictable offense, which is what our charges in our criminal code, what is robbery Emily I you need you don't you don't have to respond, but but. Lisa Ann Silver: Why is it not robbery breaking and entering into a home is not robbery what is robbery. Lisa Ann Silver: Anyone want to try, that in the chat box. Lisa Ann Silver: Well, robbery, is a theft, with violence right it's the fifth with violence, so.
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Lisa Ann Silver: It requires a person, in other words, it is a no offense against the person robbery under Section 343 while breaking and entering a dwelling house with intent. Lisa Ann Silver: to commit an indictable offense or while committing an intelligible offense is under Section 348 of the criminal code and that's what would fit if someone broke into your home, while you were on vacation now notice it's not just breaking and entering it's not.
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Lisa Ann Silver: it's breaking and entering with an intent to do something, contrary to the Criminal Code so break enter and theft. Lisa Ann Silver: break enter and mischief Those are two different ways that you can commit breaking and entering and also, I just wanted to highlight here. Lisa Ann Silver: That in the article as well, they said, but have you ever stopped and wondered if this puts your home at risk of burglary we don't have the offensive burglary in our
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criminal code or in our Canadian law, so I would say that we busted another myth. Lisa Ann Silver: I'm going to do another one very quickly and then we'll turn to Markham. Lisa Ann Silver: I hear this constantly you know people talking about. Lisa Ann Silver: You know people who who drink and drive and that they're charged with D, you are driving while under the influence that the charge in Canada that myth or reality to driving while under the influence. Lisa Ann Silver: You I.
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Lisa Ann Silver: Well, that is not what someone would be charged with in Canada. Lisa Ann Silver: What we have in Canada is something a little bit more complex, what we have is the charge of operating a conveyance while the person's ability to operate that conveyance is impairment. Lisa Ann Silver: So I want you to notice it's not just driving it includes operation and there is a definition in the criminal code.
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Lisa Ann Silver: Because operation it's not just driving it includes being in care and control, and so, even if you're sitting in the driver's seat let's say have a car that is not on. Lisa Ann Silver: But you have the keys in the ignition or you've got the keys in your hand you could still be considered operating that conveyance, by the way, conveyance is also brought its motor vehicle it's vessel it's aircraft it's railway equipment.
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Lisa Ann Silver: And then that word impaired the actual section says impaired to any degree by alcohol or drug or a combination of both to any degree. Lisa Ann Silver: So you can be charged and convicted of an impaired by having very little of those intoxicants so, the reality is to think twice before having that one little marijuana infused gummy bear before you operate a motor vehicle. Lisa Ann Silver: Okay, so I think I'd ran out of time here, and if you're interested
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in more information about, for instance impaired driving, particularly the new laws around drugs, I did do a Saturday Morning at the Law School we. Lisa Ann Silver: presentation that is posted on their website and I'm going to turn it over to Markham and if there's any time. Lisa Ann Silver: At the end of this I'm certainly happy as well and I'm sure Markham would be to to answer your mess, if you have any questions that you want us to bus so that's it for me
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I'm gonna stop my sharing and I'm gonna let Markham go. Markham Silver: Okay. Markham Silver: So one of the options that you will have in both second and third year I've actually opened it up the second year students as well, so once you've graduated from being a 0L which will start in September and you officially become 1Ls. Markham Silver: Then you become a 2L you'll have to take some other courses, then, but you can take this criminal justice clinical course.
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Markham Silver: And the way that we've defined criminal justice clinical is basically to take criminal justice, which is what happens after a complicated series of events has gone bad usually a trial. Markham Silver: it's The end result of failure, the failure of a group of people that sometimes includes but it's never limited to the accused person themselves. Markham Silver: And usually we're an accused person testifies if they're convicted, they
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have only themselves to blame, whereas if they choose not to testify, and they get convicted, they can blame their lawyer for the rest of their lives. Markham Silver: So, in order to take this course there really aren't any prerequisites other than having passed Lisa's course. Markham Silver: For clarity the course that I teach is not taught by Professor Lisa silver that's a confusing thing because they'll see Professor Silver and they automatically assume that it's Professor Lisa Silver.
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Markham Silver: And if you thought you were getting her for the course you were mistaken and you probably didn't read the course description or the outline, which is something that we always post with respect to to the classes. Markham Silver: The course materials that you would use in this type of course primarily are. Markham Silver: The criminal code, the youth criminal justice act as well as evidentiary
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statutes, so the candidate evidence act primarily sometimes there's reference to the elbert evidence act. Markham Silver: And certainly other books and texts on evidence law of evidence in Canada, because really what's a trial trials, the application of certain rules of evidence which. Markham Silver: In the final analysis, will result in the information that gets placed before the Trier of fact and as Lisa's already pointed out.
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Markham Silver: You may want to get something in you take the evidence course to figure out how it goes in so a classic example of course is if. Markham Silver: Mary Wilkinson was standing in the hallway of the school and she heard say Shell running down the hall screaming I'm an omelette I'm an omelet and then Mary gets called to testify in a trial, and she stands up to say I heard. Markham Silver: Say Shell, say, and all of a sudden, the lawyer, on the other side jumps
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up and says objection that's hearsay. Markham Silver: Well, yes it is hearsay if it's being reduced for the truth of its contents, but it's not hearsay if it's being reduced, for the fact that say Shell set. Markham Silver: In other words, if Mary gets in the stand and she says in evidence I heard say Shell say she was an online to prove that say Shell was in actual fact, an online. Markham Silver: that's not admissible, but if she's being called as a witness to say ah, I heard say Shell set.
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Markham Silver: And you're only introducing that information to show that say Shell said something, ie I'm an omelet then it's admissible, so you got to take these courses to understand how you can introduce evidence which may on its face appear not to be admissible. Markham Silver: Okay, we always say check your D to our website frequently this is for every course not just mine. Markham Silver: Because D to l will post announcements with upcoming lecture readings specified in
42:56
syllabus or other information or changes to information so kind of like detail becomes your course Bible, where you can find out further information, and I use it to a lot. Markham Silver: The course overview that I use basically includes the youth criminal justice act so we're going to have a class. Markham Silver: With usually it's judge Steve lipton of the provincial court of Alberta family and youth division.
43:23
Markham Silver: And he'll come in to talk about the youth criminal justice act and prosecutions under the youth criminal justice act Then again, all of this is dependent on who I can corral to come and talk to you. Markham Silver: we've got one on municipal prosecutions spelled wrong, of course, just because I wanted to see if everybody was awake to say Oh, he can't spell. Markham Silver: yeah I can I noticed that it is missing the I before the oh after the
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tea, but don't worry about that it will be corrected in due course so municipal prosecutions talks about the fact that. Markham Silver: we're not only talking about criminal code offenses and which are the the quote unquote true crime. Markham Silver: we're also talking about provincial offenses which are strict liability or absolute liability you don't have to intend to commit the offense. Markham Silver: Strict light now some provincial offenses do have an end an element or component
44:18
of intention and Lisa will get to that of course in your one l class, but for our purposes you've got Criminal Code, which is federal legislation. Markham Silver: you've got prosecuted by the province you've gotten arcata control act which is better legislation prosecuted by the Federal. Markham Silver: Public Prosecution Service you've also got provincial legislation and you've got municipal legislation, otherwise known as bylaws okay so municipal prosecutions
44:47
are category to themselves and their prosecuted by the city solicitor's office. Markham Silver: I want to go home take a Okay, so if you're listening to Pink Floyd. Markham Silver: The wall and you want to go home bail and how to get it because I want to go home so we'll talk a little bit about how you get bail. Markham Silver: And in what circumstances and what the test is because, for everything there is you think you have to write tests in law school.
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Markham Silver: Being a lawyer means you are writing a test every single day, that you are appearing in court, including when you're doing a bail here. Markham Silver: Or if you lose the bail hearing when you're doing a bail review and most people don't realize this, but if you do a bail hearing in Alberta in front of the justice of the peace two o'clock in the morning. Markham Silver: And just to the pieces at note detention order your client stays in
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custody, you can apply and provincial court to reopen bail, with the consent of the Crown. Markham Silver: Or you can bring a bell review in court of queen's bench all right, other things that we talked about sentencing and how to do it right, this is something that most people forget about but, at the end of the day when your client is convicted notwithstanding your best efforts to the contrary. Markham Silver: You have to deal with the issue of sentencing and that's figuring out
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what type of sentence or disposition. Markham Silver: satisfies the requirements of Section 718 etc of the code gave a fit sentence, taking into account circumstances the offense circumstances of the offender. Markham Silver: As well as looking at any other sentence, other than jail, particularly for aboriginal slash indigenous offenders in Canada. Markham Silver: Any other sentence, other than jail, has to be considered and there's
46:35
other things that come into play when you're dealing with aboriginal offenders and when I talk about that I include initially Metis and First Nations. Markham Silver: So there is something about our First Nations people Metis people and in a way that we have to take into account, and that is mandated under the terms of the criminal code, as well as cases such as Regina and Italy, as well as rejoining good you.
47:04
Markham Silver: One thing that I really like doing, of course, is Mr big and I've often wondered about this and actually we just had this conversation, the other day, with a former police officer. Markham Silver: Because you got to think about this for a minute, and one of the things that I do is I actually play for you the actual Mr big. Markham Silver: interview with a real Mr big target fellow by the name of your Kim chuck
47:29
who killed his brother in law and also killed a drug dealer in Saskatoon I acted for a coke used in both of those trials. Markham Silver: My client was not yeah come check, who was convicted of two counts of first degree murder my client was found guilty of what we call an unlawful act manslaughter which is. Markham Silver: A lesser included offensive murder, obviously, but it's what we call an unlawful act manslaughter and you'll learn about that with Lisa as well.
47:56
Markham Silver: On the Calgary case and was acquitted of first degree murder in Saskatoon case, but Mr big is pretty amazing because. Markham Silver: No matter what you got to figure everybody knows everybody here know what a Mr big, as you can raise your your hand, you know by by using reactions everybody knows what Mr bigots right it's where the police, create a pretend. Markham Silver: gang and they're going to invade all this target to be part of their
48:22
gang as long as the target is truthful with them. Markham Silver: And at some point, Mr big is going to want to talk to them to make sure that you know they're being truthful and that they have to know they have to come clean. Markham Silver: Because we've got people in the police force that that are crooked and they can clean up any mess that you've already made, but we need to know what it is. Markham Silver: And what blows my mind is no matter how often Mr big, as mentioned in
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the news this own soul, was arrested after a successful Mr big Stan when these idiots are talking to each other they're talking about oh you're going to meet Mr big. Markham Silver: What you can't put two and two together and figure out that Mr big as a police officer. Markham Silver: Anyway, that so we're gonna have Mr big and what I also bring in is. Markham Silver: The judge whatnot who right, I also bring in the judge who dealt dealt
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with Mr big case that I was involved in in Saskatoon so it's Mr justice Richard data luck, of the Saskatoon Court of Queen's bench who admitted the Mr big statement. Markham Silver: Because yakima chuck refused to testify in Saskatoon and the Crown wanted to admit his here say Mr big statement for the truth of its contents. Markham Silver: Ah, this is yet more evidentiary issues okay you're going to learn about how the principled approach to the exception of hearsay operates.
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Markham Silver: And how the Crown needs to prove to thanks necessity and reliability, so the statement of Mr yakin check was reliable enough to be heard by the Trier of fact. Markham Silver: But then when justice standard like put his hat on because this was a judge alone murder trial, not a jury murder trial when he put his hat on as Trier of fact. Markham Silver: He said he couldn't believe a word of what the outcome check said and
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acquitted, the three people of first degree murder so you'll get Mr justice Dan Alex view of Mr big and then I bring in the handler. Markham Silver: of Mr big, so the guy that was actually the handler of jaco chuck the one who was with yak and chuck on a daily basis and brought yakking chuck to Mr big I'll bring him in and he'll talk to you about what it was like dealing with Mr jaco chuck. Markham Silver: We deal with civility and ethics, which is also something that gets
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covered in Lisa has a trial at course and third year. Markham Silver: will spend one class on that and usually we get deputy chief judge to rant of our provincial court to come in and talk about that. Markham Silver: There was a very what I would call somewhat famous case in Ontario of the pig truck so there was a truck that was loaded down with pigs being led to the slaughter. Markham Silver: Which got stopped outside the slaughterhouse and a woman by the name
51:13
of Christ which rhymes with heights and it's spelled kind of different but. Markham Silver: Christ gave the pig some water and she was charged with mischief so we talked a little bit about animal rights issues and that case is also quite interesting for the fact that the Defense lawyers. Markham Silver: Had the judge where virtual reality goggles to see what it was like to be a pig in the truck on that hottest day of the year in.
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Markham Silver: outside of Toronto Ontario where it's unbelievably human, so we do a little bit of that and I bring in one of the lawyers that was involved in that trial, we just happens to be my baby brother. Markham Silver: And he's always very excited to talk to my classes about issues that surround petta of which he is not only a member, but one of their their lawyers. Markham Silver: I bring in three people from our Court administration to answer the question
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that is on everybody's mind when their children. Markham Silver: mommy where do juries come from, so we actually have a class that talks about how we pick juries how people get selected to be on the panel. Markham Silver: what's the behind the scenes stuff and then what happens from a jurors perspective in a jury trial and we don't do a lot of jury trials in Alberta. Markham Silver: But we do quite a few and you need to know how juries operate and the
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fact that as lawyers, we are sales people, we have to sell ourselves before we can sell our clients. Markham Silver: And as long as they're laughing they're not convicting so you got to be close with your jurors and you got to understand the mentality of jury so where they come from, is important. Markham Silver: We talk about indigenous courts and law, which also includes things like oral traditions what's another word for an oral tradition.
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Markham Silver: Ah, we talked about it a few minutes ago hearsay, but if you can establish the validity and reliability of that oral tradition, by calling elders. Markham Silver: All of a sudden, it is admissible for the truth of its contents, again, you need to take evidence to learn how you get something which on its face might appear to be inadmissible and make it admissible. Markham Silver: We talk about fitness and NCR MD which stands for not criminally responsible
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on account of mental disorder. Markham Silver: And that also talks about the whole issue of what happens if a person is found not criminally responsible formerly known as not guilty by reason of insanity. Markham Silver: Unless you lived in the time of Queen Victoria when it was guilty, but insane so we've come full circle back to the time of Queen Victoria. Markham Silver: where you are not criminally responsible because you are not why don't
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use that term but it's on account of mental disorder. Markham Silver: We talk about queen's bench advocacy We talked a little bit about the intersection of mental health and law and I bring in a lawyer from Ontario that argued an unbelievable case and Supreme Court of Canada on that. Markham Silver: We have a class on appellate law, so what happens when you screw up the trial, how we can try to fix that on appeal, and if that doesn't work, how we can try to fix that in Supreme Court of Canada.
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Markham Silver: And when that doesn't work, we can try to go after a wrongful conviction application, under the provisions of the criminal code, either with the assistance of project innocence or innocence Canada. Markham Silver: or with just yourself as a lawyer, trying to fit yourself in with a hook, to say to the Ministry of Justice, why this was a wrongful conviction, I bring in surgeon Jody yarns from our CSU unit, we don't have CSI, we have CSU, which is crime scene unit.
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Markham Silver: And Jody is unbelievable she is a forensic specialist who not only can process crime scenes. Markham Silver: But also, she is a blood spatter expert and we talked about blood spatter and this brings me to one thing, and I know we're going to end up going a little past sex. Markham Silver: I apologize, but Lisa took up a little bit more time than the 30 minutes, she was a lot it. Markham Silver: So I'm going to just ask for your indulgence for a few minutes and I'm
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going to regret having said that, oh in about 15 minutes when we get off of this. Markham Silver: Alright, so one of the things that we do in the class you're going to see it in a in one of. Markham Silver: The slides that's about to come up is I take you through a number of assignments, that you will have, and one of the two of the assignments relate to a. Markham Silver: person who's been played, who has pled guilty to an unlawful act manslaughter
55:52
where he's been charged with the second degree murder. Markham Silver: it's an actual case know all the names were changed to protect both the guilty and deceased Okay, because of privacy issues. Markham Silver: And Jody was the forensic blood spatter expert on that case so we're actually using the real exhibits from the case and God will explain to you. Markham Silver: Not only how to process that crime scene so you're actually seeing a real crime scene and how its processed.
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Markham Silver: But also the blood spatter evidence that was introduced at the preliminary inquiry which led to the Crown accepting the plea to a lesser included fence manslaughter. Markham Silver: So, and then we'll talk a little bit about that thing that doesn't really exist, all that much anymore, which are preliminary inquiries. Markham Silver: And a preliminary inquiries done in provincial court on certain offenses
56:39
now, such as murder or fences that are punishable by more than 14 years jail. Markham Silver: where you have a right to preliminary inquiry which will test the sufficiency of the evidence is there enough evidence to warrant proceeding to a trial, so I just giving you a bit of a flavor there. Markham Silver: The learning objectives that I'd like to see at the end of the course you'll be able to identify understand and apply emerging trends in criminal law.
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Markham Silver: analyze fact patterns and formulate appropriate course of action to conduct a trial or post trial proceeding identify evidential or other trial issues, applying the relevant principles. Markham Silver: relevant to those issues you can read the slide real quickly because I'm going to pass by it. Markham Silver: Only out of the interest of time, but you can see that what I'm doing is I'm going to try to give you the understanding of.
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Markham Silver: The anatomy of a trial and the anatomy of ethical issues related to trial preparation, as well as trial management issues. Markham Silver: A praise and critique the strengths and weaknesses of the current state of criminal law, particularly as it pertains to attaining it stated objectives and other measures of sustained to justice, including indigenous spot. Markham Silver: So my personal objectives are to learn to question why because that's
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always a big question learn to consider all viewpoints, because you got to do that. Markham Silver: learn to make connections, because there's always a connection you're always going to find a connection between something and something else, and you got to learn to respect the narrative. Markham Silver: because sometimes well you can't change the narrative it's the way the narrative is presented, that makes all the difference, and that also is the storytelling aspect of criminal law.
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Markham Silver: Okay class structure for my class well it's either going to be in person or it's going to be online one or the other right now we're planning for it to be in person, but whenever knows. Markham Silver: It depends on the flavor of the month, and also what the numbers look like in terms of covert. Markham Silver: Okay, you already heard about the instructional method which is guest lectures mostly are people coming in fact situations case analysis exercises classroom discussions.
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Markham Silver: zoom breakout rooms and role playing with you, being a lawyer, because, of course, by the time he get to me you'll all know how to use a law library. Markham Silver: And you'll all know how to use Westlaw Quicklaw and, once you know how to use a law library and once you know how to use Westlaw Quicklaw you my friends are lawyers, because that separates. Markham Silver: us from plebeians they don't know how to use law libraries and no matter what our.
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Markham Silver: Law degree will always trump their Google search just remember that Okay, so our law degree trump's Google searches. Markham Silver: Student Assessment in my classes one written reflection which has to do with the trial advocacy trial. Markham Silver: And that's What would you do different than preparing a witness, and if you take the course and second year, you will be a witness on that third year trial
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and you're going to describe in your reflection of what it was like to be a witness. Markham Silver: So second year students will be providing a written reflection on what it's like to be a witness, whereas third year students are going to be doing a written reflection on. Markham Silver: Oh, my God did I screw up that witness prep and how I would do it differently if I have to do it again. Markham Silver: Written sentencing submissions I give you everything you need, but you got
1:00:06
to come up with the written sentencing submissions. Markham Silver: Oral sentencing submissions, which is the presentation that you would make the Court class attendance is mandatory and class participation is mandatory and that's because it's a pass fail course. Markham Silver: Okay, so that's what you get their Student Assessment is participation and you got to be her mighty granger. Markham Silver: Okay, because that's how we figure out if you're really learning something.
1:00:31
Markham Silver: Okay attendance participation is mandatory okay ask questions answer them participate I usually say to my class if I know your name, at the end of the class you pass Okay, because it means you've either been there, or you've been talking okay so. Markham Silver: Class etiquette again will depend on whether we're online or in person, but there is etiquette and I'll go over this again with you and we're in the class and,
1:00:58
obviously, keep calm and don't panic, because the answer is always number 42 Okay, no matter what the answer is 42. Markham Silver: Speak asking discuss one, at a time, use the chat function if we're in if we're online or raise your hand or raise your other hand, on the the. Markham Silver: zoom thing listen and think because that's what this is all about and respect others obviously so everybody's got a viewpoint, because remember if everybody agreed we wouldn't be doing trials.
1:01:30
Markham Silver: and be civil okay civility is the most important thing, as some at one particular judge will say, but every lawyer who has ever practiced in the Court will tell you. Markham Silver: It takes a long time to build a reputation, it takes exactly a half a second to kill it and once your reputation is gone, you will never get it back and civility plays a large part of that. Markham Silver: Okay classes like today may be recorded if you're attending and we're
1:02:03
doing it by zoom or if there are students, that are not in attendance, because of covert issues, we will be recording and your attendance will be deemed to be. Markham Silver: Your consent and remember the dolphin says your calls being recorded for training purposes, it always is. Markham Silver: Do the readings 10 class participate and ask questions and obviously submit assignments on time. Markham Silver: we're a little bit lacks at law school and sometimes you know will say
1:02:32
I you know what that's fine you try to submit written submissions late to a judge, like Mr justice gates. Markham Silver: they'll say you for contempt like deadlines are deadlines and in criminal law where you have a ceiling to get your case finished, which includes sentences. Markham Silver: There is no I need an extension you gotta submit things on time so I'm going to try to train you to do that. Markham Silver: and obviously everybody loves dogs have fun that's always part of the program
1:03:08
okay So where is my. Markham Silver: Okay, just a second here because I now need to get out of. Markham Silver: The recording. Markham Silver: Just bear with me for a sec. Markham Silver: Okay, and now I don't see where my. Markham Silver: bar is here. Markham Silver: I can't seem to turn off. Lisa Ann Silver: My head on top. Markham Silver: No it's not coming up. Lisa Ann Silver: Okay well that's Okay, you can believe it that's Nice. Markham Silver: that's nice you think so.
1:03:53
Catherine Valestuk: yeah yeah. Markham Silver: stir you got. Lisa Ann Silver: yeah so does anyone have any questions. Markham Silver: While I'm still trying to figure out where. Lisa Ann Silver: my mind to figure it out, you can put it in the chat or. Markham Silver: I got it. Markham Silver: I found it there okay I'm not I'm not as. Lisa Ann Silver: shown as a question okay. Jonah Secreti: yeah. Jonah Secreti: cuz actually curious Professors Silver um what attracted either of you to
1:04:18
practice in criminal law when you were law students are sort of looking what area to practice on. Lisa Ann Silver: Well, and that's good that you ask both of us, because we have different I would suggest that we have to read different reasons it'll be interesting to take it'll be interesting for me to hear what Markham says, but. Lisa Ann Silver: For me, a criminal law is it's truly what I, I believe, so if we come
1:04:43
with our myths and stereotypes of what law is all about, to me, criminal law was the epitome of what law ought to be, it is a service, it is giving voice to those who have no voice, it is. Lisa Ann Silver: Protecting an individual, I mean that's I was oriented towards Defense work and so to me it was about helping people. Lisa Ann Silver: And I became very involved when I was at law school and I suggest, all of you do so as well, I became very involved in a student legal aid clinic.
1:05:19
Lisa Ann Silver: And that it gave it gave long life and meaning and you heard mark say respect the narrative it really showed me what I could do for others and what how I can share my knowledge and make an impact in my community. Lisa Ann Silver: Markham. Markham Silver: Oh, my turn okay so I'm a little bit different because when I was born, my father was in first year law school and I was at his call to the bar at, then I was
1:05:53
surrounded by criminal law pretty much from the time that I was four years old going forward. Markham Silver: which made it a little bit more difficult, but by the same token, I think that, in my case, I always knew that I was going to end up doing criminal law, and that was from a desire to help people that. Markham Silver: couldn't really help themselves and we speak on their behalf, we say things that they would say if they had the ability to say it.
1:06:21
Markham Silver: Or if they had the understanding to do things, and it was a long road, and I can tell you that I do remember as. Markham Silver: An 11 year old my dad took me down to court, with him, and it was a fraud trial was a jury trial, and it was in particular courtroom in Toronto, the number doesn't really matter but I'll tell you it was two dash three. Markham Silver: And in that courtroom I was sitting at the far back left hand side of
1:06:47
the Court, when my dad was cross examining a witness I was saying to myself how does he know what questions to ask, and then, when he did his jury address. Markham Silver: It was what went through my mind was how does he know what to say it's just it just came out so wonderfully this whole story and then many years later. Markham Silver: When I did my first jury trial which I kind of fell into, and I was about
1:07:13
I think two and a half months at the bar I did a solo jury trials and aggravated assault case. Markham Silver: And I'll never forget my fourth person, Mrs capacity bless her soul, but coincidentally, the trial happened in court route two dash three. Markham Silver: And in Toronto, and when I was cross examining the witness, but the main witness I was remember standing in the courtroom and saying to myself wow I know what questions to ask.
1:07:40
Markham Silver: And then, when I did my jury address and and I. Markham Silver: My dad never taught me, you know how, how do you do a jury address. Markham Silver: But I remember that it was basically him telling the tale was basically him standing up and telling the tale of what happened. Markham Silver: But in his words and he had to look a little piece of paper in his hand when he was doing it, it just.
1:08:00
Markham Silver: was probably some some scribbles or some notes or something so I figured you needed to have notes, when you did a jury trial, and when you did a jury address. Markham Silver: And in Toronto, you would literally stand right in front of the jury when you do your your jury address and, in fact, even in Alberta the judge will let you stand wherever you feel most comfortable to do your your jury address.
1:08:19
Markham Silver: But I was standing in front and there's this little bar in front and I had inadvertently put my little piece of paper which was no bigger than a cue card of notes. Markham Silver: On the jury box and juror number four, who I was standing in front of started laughing because the notes that I had written were basically. Markham Silver: Because I thought you had to have some notes to say something, and it actually said, Mary had a little lamb whose fleece was white as snow.
1:08:47
Markham Silver: And everywhere that Mary went her lamb was sure to go, etc, because I figured you needed to have something, because I was doing my my jury address from the top, like just standing there and talking to them, telling them the tale. Markham Silver: It takes a lot more prep to be able to do that, particularly where jury address is going to go for an hour an hour and 20 minutes but there's nothing more gratifying.
1:09:13
Markham Silver: than doing a trial, where you are putting yourself on the Defense side against the power of the state. Markham Silver: and getting an acquittal and I will tell you that there is nothing more lonely than at the end of that trial when the jury has come back in this case, my first jury trial they came back at about 130 in the morning. Markham Silver: And I said to my client after he was acquitted I'll be right out and I went into the hallway and he was gone.
1:09:46
Markham Silver: Or, as they said in the usual suspects like Kaiser so say a puff of smoke. Markham Silver: Gone and that was it there's no more lonely feeling than that, where you stand by yourself, the end of the jury trial or the fact that, as it happened at. Markham Silver: With the crowd was when we finished the jury trial, he said boy I'm on holidays now for a couple weeks having done this jury trial, what about you and I said.
1:10:16
Markham Silver: I'm back here in eight hours picking another jury and I just went from one trial into another and that's how you practice criminal law, and I think that's why I did it sorry I probably went on too long for that, but I made up for Lisa take the extra few minutes. Jonah Secreti: Thank you so much for sharing your experiences. Markham Silver: Questions thoughts criticisms. Lisa Ann Silver: Any other questions.
1:10:43
Markham Silver: This is where you get to say add these guys are full of it and there's no downside of course unless of course you get Professor Silver for criminal law and she remembers if you were here saying that. Carter Czaikowski: Just Out of curiosity, how do you remove. Carter Czaikowski: Maybe indirect bias, or something along that nature when defending someone and you obviously can have your own opinion on whether they're guilty or not guilty.
1:11:13
Lisa Ann Silver: I think the law me so Carter I I'm going to read between the lines on that question, and because it is always. Lisa Ann Silver: A question that you ask yourself whether you're a crown or a Defense lawyer is you know, can I, how can I not personalize what I'm doing you know I just said. Lisa Ann Silver: That I was attracted to criminal law because of the people, and I wanted to interact with the people who needed my help but.
1:11:47
Lisa Ann Silver: How can you do your job without being emotional and you know, I have to tell you that when I started when mark comes started practicing. Lisa Ann Silver: I mean no one, no one took care of that no one, no one talked to us about the emotional side, no one talked to us about. Lisa Ann Silver: How to deal with really trauma as a lawyer and, in fact, we were told you know that stiff upper lip that you've got to go in you've got to do a job you got to focus.
1:12:21
Lisa Ann Silver: On on the elements of the offense you have to focus on the legal principles and the law seems to fill that gap. Lisa Ann Silver: That may be there when you are doing your job and you're not thinking about the person. Lisa Ann Silver: But I think what makes a good lawyer isn't someone and actually what I what makes a great judge and I'll talk about this in my one hour class it's that compassion.
1:12:49
Lisa Ann Silver: Right there's nothing wrong in fact there's everything right about being a passionate lawyer, but also being a compassionate one. Lisa Ann Silver: And, and to care for the people, that you are helping but that includes being being upfront with them, and that means being upfront with yourself that you can't save everybody. Lisa Ann Silver: Right, all you can do is ensure that justice is served and that your client at the end of the day, can look at you and say I had a fair trial.
1:13:18
Lisa Ann Silver: So it's not about guilt or innocence it's so you know through law school we start to build that identity as a lawyer. Lisa Ann Silver: But I would say Carter that that in today's world you know, there are a lot of you get a lot of support from your friends this these people here on this zoom or your cohort that you will know forever, I mean, I still speak to. Lisa Ann Silver: You know, over 30 years ago I still have very close friends that I will
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phone that I went to law school with to talk to them about my feelings and there is now a lot of discussion about trauma informed loitering as well, so that's my long answer to your great question. Markham Silver: Okay I've got a short answer Carter. Markham Silver: Okay, my short answer, is this, as you will find out. Markham Silver: None of my clients are guilty. Markham Silver: Right that's what's called the presumption of innocence.
1:14:17
Markham Silver: Now, as it happens, of course, they may be guilty of something, but they may not be guilty of what they're charged with that's, the first thing second of all we're no different than surgeons and you have to approach cases objectively not. Lisa Ann Silver: subjectively. Markham Silver: they're not paying clients don't pay you for judgment they pay you for advocacy. Markham Silver: And as long as you can advocate on their behalf, then, and you can do your
1:14:42
job up basically build a bit of a wall around your heart Now I understand what he says about trauma, you know that we all suffer trauma and, believe me. Markham Silver: I can say that probably I've got the scars of battle, just as much as anybody else and I've been doing this 37 years so I'm a little bit ahead of Lisa as well, but. Markham Silver: You know, but really The second thing you got to bear in mind is that you
1:15:07
are your clients representative and you've got you've got an advanced their best. Markham Silver: case that you could possibly advance on their behalf, bearing in mind as my former assistant told me and before she got a job with me, she actually sat on a jury. Markham Silver: And they're not jurors aren't allowed to talk to you about what they deliberate, but what was interesting was one line that she said was when they first came in, as an array so before they were even select it.
1:15:33
Markham Silver: And they read the charge out loud the standard comment that came out from the group was so that's the son of a bitch you did it. Markham Silver: So we're already at a disadvantage, notwithstanding the presumption of innocence. Markham Silver: Being able to show the jury ultimately or the Trier of fact, why your client is not guilty of what they're charged with and it starts with that presumption of innocence.
1:16:00
Markham Silver: And I mean I joke about it, and I say, none of my clients are guilty and that's true until the jury says that they are or a Trier of fact says that they are so they're all close with that presumption of innocence. Markham Silver: I've never I don't think I've ever had a case where I've not been able to advocate for a client I've never been able to say to clients sorry. Markham Silver: there's a special terminology, for it, which I won't use because we're being
1:16:27
recorded but it's basically where if you're feeling uncomfortable about a case you might quote a retainer amount that's justified but that's signals to the client that they might want to go elsewhere. Markham Silver: But other than that. Markham Silver: I've never actually said no to a client. Carter Czaikowski: I better to very insightful answers I appreciate it. Catherine Valestuk: Well, I just want to thank both Lisa and Markham for what's been a really informative and interesting.
1:17:00
Catherine Valestuk: presentation, I know you guys probably have a lot of questions and such interesting compelling area of law, but we are 6:20 I guess coming in 10 minutes. Markham Silver: Sorry, Catherine. Markham Silver: Know we're we're supposed to be there in 10 minutes off. Catherine Valestuk: Come on down. Catherine Valestuk: dinner will be a little late but there's lots of room anyway, I just want to say thank you.
1:17:28
Catherine Valestuk: to both of you for taking the time and sharing your knowledge your passion for this area of law with our soon to be one else students, as you can see there's a lot for you to sink your teeth into a lot that. Catherine Valestuk: is compelling and interesting and you know I'm at my 30th anniversary from law school this year and I feel like I could just go right back into the one l class and take criminal law all over again so.
1:17:54
Catherine Valestuk: Thank you all, and yes, this recording will be posted on our YouTube Channel with our other many lectures in about a day, so you can check there and our next mini lecture will be on indigenous law and that will be on August 28 at noon, so I hope you can join us then.
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