Back in the 1970s and 1980s, the Law Reform Commission of Canada (LRCC) consistently produced exhaustive and intelligent work papers and reports on matters of concern to criminal lawyers, whether defence counsel or prosecutors. Its commissioners and staff were first rate - more than one went on to sit on the Supreme Court of Canada. But the Mulroney government got rid of the LRCC, which left a great lacuna when it came to objective criminal law research and writing. In 1997 the Chretien government established the Law Commission of Canada (LCC), which while it does good work is a poorly funded body that produces almost nothing of relevance to practising criminal lawyers. It may not be an exaggeration to say that most criminal lawyers are not even aware of the LCC's existence.

It's with sadness that GFN says goodbye to Talman Rodocker, long a mainstay at the firm and a true barrister who is much respected by clients and colleagues alike. Talman has moved to Toronto to pursue new opportunities. He will be sorely missed, and we wish him all the best.

Last week our Court of Appeal put an end to a faulty and unfair jury instruction that has plagued our province for far too long. The result will be fairer jury charges for accused persons and, as a natural by-product, a reduced risk that the justice system will result in miscarriages of justice. What jury instruction was in issue, and why was it so unfair? The issue concerns statements made by the accused that contain both incriminating and exculpatory elements, and are sometimes loosely referred to as a "mixed statements".

Several of the GFN lawyers are participating in this year's Trial Lawyers Association of British Columbia criminal law conference, to be held at the Century Plaza Hotel in Vancouver this coming Friday. Richard Fowler, Matthew Nathanson and David Layton will be on a panel entitled "When Your Client Sings Like a Canary: Statement Exclusion Strategies". Richard Fowler and Peter Schmidt (co-authors) and David Layton have written papers that will be included in the conference materials.

On September 8 the Supreme Court of Canada settled a long-standing dispute as to whether litigation privilege is merely a subset of solicitor-client privilege. In Blank v. Canada (Minister of Justice), the Court answered this question in the negative. What exactly is this issue, and why should it matter to criminal lawyers?

With the exception of cases where there has been a dissent in the court of appeal, the Supreme Court of Canada will not hear an appeal absent a successful leave to appeal application. A party bringing a leave application bears the onus of showing why the case deserves to be heard by our country's highest court. Leave will only be granted if the Court decides that the case raises an issue of national importance.

There is a compelling, indeed indisputable, case to be made that faulty identification evidence has contributed to wrongful convictions. The cases of David Milgaard and Thomas Sophonow are prime examples. The crux of the danger lies in the fact that identification witnesses are often mistaken, and yet may be utterly convinced, and convincing, in their assertion that they've correctly picked out the perpetrator. A number of safeguards have been proposed, including the admission of expert evidence to point out to juries the particular frailties of identification evidence. Vancouver criminal defence lawyer Tamara Levy recently advocated this position in her compelling article "The Need for Expert Evidence on the Frailties of Eyewitness Identification", found in The Verdict, Issue 109, June 2006, at p. 38.

Another frequently suggested means of guarding against bad identification evidence is to prevent its creation in the first place by employing double-blind sequential (DBS) photo array lineups. The idea has 2 parts, and is deceptively simple. First, neither the police officer who shows the photo array, nor the witness, knows which of the people in the array is the police suspect, hence the term "double blind". The double blind procedure prevents the officer from consciously or unconsciously prompting the witness to pick the suspect from the array. Second, the array is shown sequentially, one photo at a time, rather than all at once. Sequential display avoids errors caused by the witness choosing the person who looks most like the culprit. Research has shown that witnesses sometimes do this even though the true culprit is not in the lineup.