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Mack’s Criminal Law Trial Book – 2014 Edition

By Dallas Mack
Toronto, ON: CARSWELL. 2014.

This very recent 304-page text will prove to be a welcome addition to the library of any reader interested in the mechanics of a criminal trial. The author is a quite experienced prosecutor and prolific commentator, and he has skillfully blended years of acquired odds and sods on procedure, substance, evidence, sentencing and the Charter, to fashion a comprehensive “go to” source for practitioners and the judiciary. Each proposition is supported by direct references to the leading authorities and paragraph references are typically though not invariably added.

The book begins with a review of bail, followed by a discussion touching upon offences, then defences, and trial issues are addressed thereafter. The author then turns his skill and experience to summarizing evidence law, to conclude with lengthy reviews of the Charter and sentencing.

This book resembles a number of other similarly structured and written “trial books”, but it has the advantage of being the newest edition and of having been drawn by someone who obviously has mined a number of profitable veins from across the country, topped up by a thorough consideration of authorities from our highest Court. Mr. Mack has succeeded in including a number of quite instructive points that should serve to dispel confusion that is common in many areas, but that is not warranted by reason of binding authority, albeit less well understood or acknowledged. By way of limited example, allow me to point out the comments consigned at page 114 that make plain the proposition according to which: “Where the memory [of a witness] is refreshed, there is no requirement that the document be made contemporaneous to the events recorded therein (as there would be if the document represented a “past recollection recorded”) [Emphasis in text].

A further example involves the discussion at pages 69 and 69 on direct evidence in the context of a preliminary hearing. Mr. Mack’s guidance is quite insightful, and I commend in particular the advice on the issue of defence counsel’s ability to provide full answer with a view to potentially counter such direct evidence. I refer as well to page 167 and to the helpful discussion of voluntariness which includes remarks that the Crown must establish beyond a reasonable doubt that what a detainee states, even though alone in an interview room, is voluntary. These examples serve to illustrate that the book is balanced, though defence counsel may find it surprising, if not discouraging, that a fair review of the case law includes so many “pro-Crown” cases, notably in the law of evidence.

The book is replete with references to Superior Court judgments that draw are not well known but that shed valuable light on thorny issues. For example, mention is made at page 73 to R. v. Djambazov, 2007 CanLII 52432, a Ontario Superior Court judgment instructive on the sorts of remedies, short of a formal order of particulars, that a trial court may grant including “an order for ‘pleaded informal particulars’”. Further, pages 96 and 97 address fully and ably, but within a brief discussion, the question of the scope of cross-examination of a complainant during a preliminary hearing to foster a subsequent application for the disclosure of third party records.

I commend as well the author’s knack at discovering and including cases that provide direct authority on somewhat “odd” and unusual legal situations. For example, page 75 refers to the case of R. v. Deutsch, 2005 CanLII 47598, wherein the Court of Appeal for Ontario guides us as to the right of an accused to have a trial conducted in one of the official languages he may not understand as fully as his mother tongue. I grant that such situations must be rare, but the ability to point to a direct and binding authority without research is to be underscored.

The author is also to be applauded for his efforts at keeping the book current notwithstanding the exigencies associated with publication. For example, pages 102 and 103 include commentary on the Quesnelle decision of the Court of Appeal for Ontario and the fact the matter was before the Supreme Court of Canada. As well, and more significantly, the author does not shy from stating that the Court of Appeal’s decision is wrong and in demonstrating why he holds that opinion. Of course, since the release of the judgment from our highest Court, 2014 SCC 46, setting aside the order of our Court of Appeal, we know who was correct in this vein. At all events, I wish to underline the exhaustive nature of the author’s research efforts and this subject provides an excellent opportunity to do so. Page 105 refers to para. 19 of R. v. Gonzague, a judgment of the Ontario Court of Appeal, (1983), 4 C.C.C. (3d) 505, and such precision and diligence in seeking out authority for resolving legal controversies that only emerged many years later is worthy of quite favourable comment.

In closing, I would be remiss were I not to point out the many valuable lists of factors that counsel must be mindful of in various situations, adroitly drawn by author in that he had to be inclusive and yet mindful of the need for brevity. One example addresses similar fact evidence, at pages 177-178 and a further one embraces the questions arising from the use of force by police, at pages 202-203; many more might be cited.

All these complements having been conferred upon Mr. Mack, I must note as well that future editions might include a reference at page 112 to R. v. Ferguson, [2008] 1 S.C.R. 96, on the question of the correct interpretation of a jury’s factual findings when it comes to sentencing. Further, in terms of the discussion at pages 154-155 respecting the hearsay nature of phone calls apparently made by persons seeking drugs, reliance should be placed on R. v. Baldree, [2013] 2 S.C.R. 520. Finally, readers are directed to R. v. Fearon, 2014 SCC 77, when reading page 217, with respect to searches of cell phones, a judgment released subsequent to publication.

Ontario Court of Justice

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