However, the defence is not bound by any such duty in undertaking its own investigation independently of the courts and the prosecution. The defence is entitled to do what it can to identify the informant and otherwise make full answer and defence, provided that the methods used are lawful. The right to make full answer and defence is fundamental to criminal justice and is protected by s. 7 of the Charter. However, not all attempts to identify an informant will be linked to that right.

It will depend on the circumstances. Some defence enquiries may amount to an obstruction of justice, or extortion, depending on the manner in which the enquiries are carried out and their intended purpose, and the other circumstances of the case.

Source: R. v. Barros, 2011 SCC 51

Subject to the abuse of process doctrine, supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court.  The Crown’s decision in this case to resile from the plea agreement and to continue the prosecution clearly constituted an act of prosecutorial discretion subject to the principles set out in Krieger:  it is only reviewable for abuse of process.  Prosecutorial discretion is not spent with the decision to initiate the proceedings, nor does it terminate with a plea agreement.  So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued, and if so, in respect of what charges.

There are two categories of abuse of process under s. 7 of the Charter:  (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.  While s. 24(1) of theCharter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of the justice system.  Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.

The repudiation of a plea agreement may well constitute an abuse of process, either because it results in trial unfairness or meets the narrow residual category of abuse that undermines the integrity of the judicial process.  The more difficult question in this appeal is how the initial exercise of prosecutorial discretion — Crown counsel’s offer to resolve the matter on the basis of a plea to a lesser charge — should figure in the analysis regarding abuse of process.

A plea agreement should not be regarded as a contractual undertaking.  Vitiating factors, such as mistake, misrepresentation or fraud, which usually inform a private party’s right to resile from a bargain, do not fully capture the public interest considerations which are at play.

However, the analogy can usefully underscore the utmost importance of honouring the agreement.  The situations in which the Crown can properly repudiate a plea agreement are, and must remain, very rare.  Moreover, the reasonably defensible test applied by the application judge to Crown counsel’s decision to enter into a plea agreement is not the appropriate measure to determine whether there is an abuse of process.  Indeed, it is the circumstances surrounding the repudiation of a plea agreement which should be reviewed to determine whether that decision amounts to an abuse of process.  Reviewing for “reasonableness” a decision made in the exercise of prosecutorial discretion runs contrary to the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal prosecutions as well as the principles set out in Krieger.

Given that acts of prosecutorial discretion are generally beyond the reach of the court, there is good reason to impose a threshold burden on the applicant who alleges abuse of process.  A court should not embark on an inquiry into the reasons behind the exercise of prosecutorial discretion without a proper evidentiary foundation.

However, evidence that a plea agreement has been entered into and subsequently reneged by the Crown meets the requisite threshold.  Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement.  The ultimate burden of proving abuse of process, however, remains on the applicant.

In this case, the Crown’s repudiation conduct cannot be considered so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed on the dangerous driving Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process.  Indeed, the Acting Assistant Deputy Minister, in good faith, determined that Crown counsel’s assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges.  This can hardly be regarded as evidence of misconduct.  Finally, the accused was returned to the position she was in at the conclusion of the preliminary hearing before the plea agreement was entered into and thus suffered no prejudice as a result of the repudiation.

Source: R. v. Nixon, 2011 SCC 34.

Ontario is testing all of its accredited interpreters.

The first group to take the tests didn’t fare well as only 46 passed, 69 were given conditional credentials and 77 failed. About 600 interpreters are still to be tested.

The results mean that in the Greater Toronto Area, for example, right now there is only one fully accredited Mandarin interpreter and one fully accredited Tamil language interpreter.

Selahedin Abubaker is one of the interpreters who failed. But he has been a court translator for more than 20 years, working on cases all over Ontario.

Abubaker says he is fluent in two languages spoken in Ethiopia, but as of this week the Ministry of the Attorney General says he’s no longer qualified.

No complaints

Abubaker says that over the past two decades he has never had a complaint about his work from “the justices of the peace, the judges, the clients.”

He says his exam was too academic and didn’t take into account the nuances of the languages he interprets.

“The speed and the pause of our language” are extremely important, he said, “and that doesn’t reflect what the test is all about.”

Stella Rahman, president of the Court Interpreters Association of Ontario, says the organization offered to work with the ministry to upgrade skills or train interpreters, but the ministry refused.

Courtroom co-ordinators have told Rahman they now have strict instructions to use interpreters from the accredited list first, then those with conditional credentials.

Rahman worries that some of those on the list have little court experience.

“Although the interpreter has passed the test, he or she is not competent to handle high-profile cases like murder trials,” she said. “But [the court co-ordinator’s] hands are tied. He has to call on that interpreter.”

Bev Dowd, a Spanish interpreter who passed her test, says the fallout may be felt in the Ontario legal system for years to come.

Chaos predicted

“Lawyers are saying, ‘Maybe I’ll go back and say that wasn’t a good interpreter, the whole decision should be overturned.’ So it’s going to just create chaos,” said Dowd.

Some lawyers say there aren’t enough qualified interpreters.

Gary Anandasangaree, who represents many clients whose first language is Tamil, said the ministry’s decision could put a barrier between “people who are effectively the accused and the system.”

In a statement sent to CBC News, the ministry said it is recruiting new interpreters to help fill holes. And it defended the examinations.

“The new tests are specific to courts and are based on actual court documents and trial transcripts from Ontario court proceedings,” the ministry said.

“This approach ensures the tests match a realistic court interpreter experience and reflect the high level of skill and specialized terminology required for court interpretation.”
Source: https://www.cbc.ca/canada/toronto/story/2010/04/16/court-interpreters.html

But Cornelius Dupree Jr. refused to do so, doggedly maintaining his innocence in a 1979 rape and robbery, in the process serving more time for a crime he didn’t commit than any other Texas inmate exonerated by DNA evidence.

“Whatever your truth is, you have to stick with it,” Dupree, 51, said Tuesday, minutes after a Dallas judge overturned his conviction.

Nationally, only two others exonerated by DNA evidence spent more time in prison, according to the Innocence Project, a New York legal centre that specializes in wrongful conviction cases and represented Dupree. James Bain was wrongly imprisoned for 35 years in Florida, and Lawrence McKinney spent more than 31 years in a Tennessee prison.

Dupree was sentenced to 75 years in prison in 1980 for the rape and robbery of a 26-year-old Dallas woman a year earlier. He was released in July on mandatory supervision, and lived under house arrest until October. About a week after his release, DNA test results came back proving his innocence in the sexual assault.

A day after his release, Dupree married his fiancee, Selma. The couple met two decades ago while he was in prison.

His exoneration hearing was delayed until Tuesday while authorities retested the DNA and made sure it was a match to the victim. Dallas County District Attorney Craig Watkins supported Dupree’s innocence claim.

Looking fit and trim in a dark suit, Dupree stood through most of the short hearing, until state district Judge Don Adams told him, “You’re free to go.” One of Dupree’s lawyers, Innocence Project Co-Director Barry Scheck, called it “a glorious day.”

“It’s a joy to be free again,” Dupree said.

This latest wait was nothing for Dupree, who was up for parole as recently as 2004. He was set to be released and thought he was going home, until he learned he first would have to attend a sex offender treatment program.

Those in the program had to go through what is known as the “four R’s.” They are recognition, remorse, restitution and resolution, said Jim Shoemaker, who served two years with Dupree in the Boyd Unit south of Dallas.

“He couldn’t get past the first part,” said Shoemaker, who drove up from Houston to attend Dupree’s hearing.

Shoemaker said he spent years talking to Dupree in the prison recreation yard, and always believed his innocence.

“I got a lot of flak from the guys on the block,” Shoemaker said. “But I always believed him. He has a quiet, peaceful demeanour.”

Under Texas compensation laws for the wrongly imprisoned, Dupree is eligible for $80,000 for each year he was behind bars, plus a lifetime annuity. He could receive $2.4 million in a lump sum that is not subject to federal income tax.

The compensation law, the nation’s most generous, was passed in 2009 by the Texas Legislature after dozens of wrongly convicted men were released from prison. Texas has freed 41 wrongly convicted inmates through DNA since 2001 — more than any other state.

Dallas County’s record of DNA exonerations — Dupree is No. 21 — is unmatched nationally because the county crime lab maintains biological evidence even decades after a conviction, leaving samples available to test. In addition, Watkins, the DA, has co-operated with innocence groups in reviewing hundreds of requests by inmates for DNA testing.

Watkins, the first black district attorney in Texas history, has also pointed to what he calls “a convict-at-all-costs mentality” that he says permeated his office before he arrived in 2007.

At least a dozen other exonerated former inmates from the Dallas area who collectively served more than 100 years in prison upheld a local tradition by attending the hearing and welcoming the newest member of their unfortunate fraternity. One of them, James Giles, presented Dupree with a $100 bill as a way to get his life restarted.

Source:https://ca.news.yahoo.com/texas-man-cleared-dna-30-years-prison-declared-20110104-080607-533.html