Criminal Law

Protect record during trial in view of possible appeal

By Peter Small, AdvocateDaily Contributor

Lawyers conducting a criminal trial should always think about how to protect the record for a possible future appeal, says Toronto criminal lawyer Lindsay Daviau.

“By saying protect the record, I mean objecting when you should object, and making sure all relevant evidence is in,” says Daviau, who practises with Rosen & Company Barristers .

“Obviously, the most important thing at the time is the trial, but conduct yourself in a way that your client is protected on appeal should it have to go that far,” she tells

Daviau, who has handled multiple criminal trials and appeals, recalls preparing an appeal when the trial lawyer informed her that the Crown had put in all sorts of documents that it shouldn’t have.

“I get the transcript, and I’m reading it, and the judge, very clearly at the beginning, says, ‘Object if something goes in that you don’t want in.’ And there’s no objection.

“On appeal, how do I translate that?” Daviau says.

It would be almost impossible to raise that issue on appeal without arguing that the trial lawyer was ineffective or incompetent, she says, but that presents its own hurdles.

Any issue not raised at trial will be difficult to raise on appeal, Daviau says. In some circumstances, you can raise it by bringing a fresh-evidence application, but the test for that is high, she says.

Trial lawyers should not hesitate to raise each objection, even if perfunctorily, Daviau says. Nobody wants to interrupt proceedings for no reason, but if trial lawyers record their objections, however briefly, “it helps immensely later on,” she says.

Some lawyers may not rise to object every time an issue comes up because they have already stated their position and believe their feelings are obvious. But their feelings won’t show on the transcript, Daviau says.

Record your objections every time, she says.

“If you stand up and object nine times and lose nine times, and you don’t stand up the tenth time because you know you are going to lose, well, on appeal something might be read into the fact that you didn’t stand up.”

Although some judges become irritated by a lawyer’s continued objections, that should not deter you, Daviau says. “Your job first and foremost is the fearless defence of your client.”

It’s also important to make sure the appeal lawyer has a complete trial record, she says.

“Making sure exhibits are entered and labelled properly is a huge help,” Daviau says. “The witness might have a document, but if it is not marked as an exhibit, the appeal lawyer won’t have that document and can’t see what they’re talking about.”

Similarly, if a witness points at something, it must be set on the record. Otherwise, it’s impossible to know what they’re referring to, she says.

Even in the late stages of the trial, if you realize you missed an important issue, or if something new arises, you must address it, she says.

“You’re obligated to do something about it whether it’s an application to reopen before the judge is functus,” Daviau says.

“Whether it’s an application to reopen cross-examination, or an application to have the Crown recall a witness, or you have to call the witness, you’re obligated to do something about it when it becomes known. If you don’t, that might prevent being able to rely on it on appeal,” she says.

A lawyer’s first priority, of course, is the defence of your client at trial, Daviau says.

For that reason, sometimes an issue that could be important on appeal is best not raised at trial because it may hurt the defendant, Daviau says.

“Your client needs to know, ‘If we do it this way it might hurt your appeal,’” she says. “Your focus has to be on the strategic direction of the trial.”

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