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A trial judge always retains an overriding discretion to accept or reject the recommendations of counsel about the sentence that should be imposed. A trial judge is entitled to go beyond the Crown’s position on sentence if the sentence imposed is still reasonable. But when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions and provide further authorities. Ideally, the sentencing judge should give reasons for going beyond the Crown’s position. R. v. Grant, 2016 ONCA 639, at para. 164;  See also, R. v. Ibrahim, 2011 ONCA 611, at para. 16 [where reasons were not required]. It is an error in principle for the sentencing judge not to give the parties a chance to make further submissions prior to imposing a sentence above the Crown’s position. R. v. Hagen, 2011 ONCA 749 (CanLII), at para. 5;  R. v. Menary, 2012 ONCA 706 (CanLII), 298 O.A.C. 108, at para. 3; R. v. Ibrahim, 2011 ONCA 611 (CanLII);  See also, R. v. Ipeelee, 2018 ONCA 13. This error in principle entitles an appellate court to consider afresh what constitutes a fit sentence for the offender.

Section 515(3) of the Code requires a justice to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case. This is why bail hearings are sometimes referred to as “show cause” hearings.Criminal Code.Section 515(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) [types of release on recognizance] unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made. There are many instances where notwithstanding the Crown’s agreement with defence counsel, or even when the Crown consents to release, where the Court must intervene as part of its supervisory or review jurisdiction to make decisions contrary to such agreements or joint submissions. R. v. D.C.G.S., 2003 ABQB 420 (CanLII). Consent release is an efficient method of achieving the release of an accused.  Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release.  R. v. Antic, [2017] 1 SCR 509, at para. 68. It follows then that a justice may find that the evidence received at the bail hearing, in and of itself, meets the threshold of showing cause.  The Crown’s position on release is not determinative. However, rejecting a consent release is likely to be rare, as a justice cannot impose a more restrictive form of release unless, on balance, that more onerous form of release is necessary having regard to the statutory criteria.[FN]

An estimated three billion human beings own cell phones, sending more than a trillion text messages every year. Not all of these messages are benign.Sometimes, when an accused is arrested, his/her cellphone is searched, either incident to arrest or under the authority of a search warrant (or both).  And, as you might expect, the messages and pictures on that cellphone sometimes end up as Crown evidence in a criminal trial.Here’s how. Are Text Messages Hearsay? As with all admissibility questions, the first issue to be addressed is the purpose for which the evidence is sought to be tendered. Text messages are documents containing out-of-court statements. However — No evidence is hearsay on its face.  Admissibility depends on the purpose for which the evidence is sought to be admitted.  Evidence is hearsay — and presumptively inadmissible — if it is tendered to make proof of the truth of its contents. R. v. Baldree, 2013 SCC 35 (CanLII), at para. 36. So then, text messages are not necessarily hearsay: it depends on the purpose for which they are tendered. Text messages can also be admitted, for instance, as circumstantial evidence under the documents in possession rule,for the non-hearsay purpose of connecting the accused to a location, transactions, or people, or demonstrating knowledge, state of mind and so on. But where that occurs, the texts may not be used to prove the truth of their contents. R. v. Bridgman, 2017 ONCA 940, at para. 76. Out-going text messages Hearsay is presumptively inadmissible because of the accepted dangers arising from this type of evidence.  The presumption can be displaced only where the evidence fits within a categorical exception to the rule or satisfies the principled exception: R. v. Khelawon,

Police are required to obtain prior judicial authorization in the form of a warrant to enter a dwelling house for the purpose of carrying out an arrest.See R v. Feeney, 1997 CanLII 342 (SCC); Sections 529-529.5, Criminal Code (“Feeney warrants”). There are three well-established exceptions to this constitutional and statutory requirement:   a.       hot pursuit,  b.      exigent circumstances, and  c.       consent.   Today’s blog deals with the exception of consent. Absent a recognized exception, a warrantless entry by the police into a dwelling house will violate section 8 of the Charter, as it constitutes an unreasonable search within the meaning of that provision.  State intrusions into the home strike at an aspect of personal privacy which has always held a special place in the law:  R. v. Golub (1997), 1997 CanLII 6316 (ON CA).  As such, unauthorized intrusions into the home constitute serious constitutional violations.  In Canada, there are no legislative provisions that authorize warrantless searches on consent. Consensual searches are, however, permissible at common law (Young v. Ewatski (2012), 2012 MBCA 64 (CanLII), at para. 54), a common law which has adjusted to comport with the constitutional status of privacy.  A search will not be unreasonable under section 8 of the Charter where the individual has consented to the state intrusion upon his or her privacy.  R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 541 (passage approved in R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at para. 34; R. v. R.M.J.T., 2014 MBCA 36 (CanLII), at para. 46; R. v. Simon, 2008 ONCA 578 (CanLII), at para. 48. To constitute a valid waiver of the s. 8 Charter right, consent must

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made.See R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, and Eccles v. Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739).However, in the 1997 decision of R. v. Feeney, the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.   R. v. Feeney, 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code, which, among other things, creates two distinct authorization procedures (each known as a "Feeney warrant"): 1.        The inclusion of judicial authorization on an arrest warrant to enter a dwelling house for the purpose of arresting or apprehending a person.   See section 529, Criminal Code. Typically, judicial authorization will be on a Form 7 Criminal Code arrest warrant (Warrant for Arrest), though it may be on any federal warrant to arrest. 2.       A “stand-alone” warrant in Form 7.1, Criminal Code (Warrant to Enter Dwelling-House) authorizing entry to a dwelling house for the purpose of arresting or apprehending a person.              See section 529.1, Criminal Code. To obtain the Feeney entry warrant, the police will need to satisfy a judicial officer that, apart from there being a lawful basis to

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made.See R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, and Eccles v. Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739).However, in the 1997 decision of R. v. Feeney, the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.   R. v. Feeney, 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded with sections 529-.529.5 of the Criminal Code, creating what is known as the “Feeney warrant”.  To obtain the Feeney entry and arrest warrant, the police will need to satisfy a judicial officer that reasonable grounds exist to believe the person sought has committed or is about to commit an indictable offence, etc. and that the person is within the dwelling house. [FN1]  The police are generally required to announce their presence before entering the dwelling (section 529.4). In some cases, police secure lawful entry to a dwelling without a warrant and, in speaking to occupants therein and learning additional facts, such an investigation only then leads to reasonable and probable grounds to arrest, resulting in a lawful arrest. However, a warrantless end-run around Feeney requirements violates the Charter. See, for example, R. v. Adams, 2001 CanLII 16024 (ON CA);   Tymkin

As a general rule, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment. [FN1]See R. v. B. (G.)(1990), 56 C.C.C. (3d) 200, at 215-16 (SCC); Criminal Code, s. 601(4.1): “A variance between the indictment or a count therein and the evidence taken is not material with respect to (a) the time when the offence is alleged to have been committed…” Typically, when the evidence at trial divulges that the alleged offence occurred at a time outside the timeframe alleged in the indictment/information, the Crown will bring an application under section 601(2) of the Criminal Code to have the indictment amended.  However, given that the Crown is not required to prove as part of its case that the offence date corresponded with the offence date alleged in the indictment, amendment during trial is not necessarily required in order to secure a conviction. [FN2] R. v. S.M. 2017 ONCA 878: where the trial judge erred in law in requiring the Crown to prove beyond a reasonable doubt that the offences occurred within the timeframe alleged in the indictment.  R. v. Smiley (R.R.) (1995), 1995 CanLII 960 (ON CA), 80 O.A.C. 238 [endorsement]: which considered the meaning of the phrase “on or about [date]”, standard wording in an information/indictment.  If the evidence shows an offence to have been committed within some period that has a reasonable proximity to the date alleged in the indictment, the Court may proceed without a formal amendment of the information. The ultimate question is what effect does the amendment have on the accused? Prejudice to the accused remains the litmus test against which all proposed amendments are judged. R.

The offence of voyeurism (section 162 of the Criminal Code) was enacted in 2005 to address public concerns with the rapid advent of technology that could be used to spy on people surreptitiously for sexual purposes.“For a sexual purpose” Subsection (b) of the offence specifically makes it an offence to surreptitiously observe or surreptitiously visually record a person who is nude. Subsection (c) requires only that the surreptitious observation or surreptitious recording be “done for a sexual purpose”. Because observing or visually recording for a sexual purpose is a separate offence, it is clear that the voyeurism offence can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose. R. v. Jarvis, 2017 ONCA 778, at para. 44; for more on what constitutes “for a sexual purpose” see R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 50. In R. v. Rudiger, 2010 BCPC 182 (CanLII), the circumstantial evidence pointing to a sexual purpose was compelling.  The accused used a video camera to view and record very young children playing in a park, focusing in on their genital and buttocks regions.  There was also evidence indicating that the accused was masturbating while doing so. The finding that the recording/observation had been done “for a sexual purpose” was not challenged on appeal. In R. v. Jarvis, 2017 ONCA 778, a high school teacher used a camera pen to surreptitiously take videos of female students as he conversed with them at school.  The Court of Appeal for Ontario (at para. 46) held that the recordings, which

When accused persons are brought into the courtroom, handcuffs should be removed as soon as they are placed into the dock unless the court officers are aware of a security concern respecting that particular accused.  If that is the case, the officers should notify Crown counsel, preferably in advance, so that he or she may make the appropriate application before the presiding judge. R. v. Fortuin, 2015 ONCJ 116.   The presiding judge has the discretion to decide whether an accused must appear in court in any form of restraint.  A hearing is required to enable the presiding judge to properly exercise his or her discretion on the issue.   R. v. Jones, 1996 CanLII 8006 (ON SC), 107 C.C.C. (3d) 517.   There is a longstanding presumption that accused persons appearing in court should not be restrained unless the need for restraints has been justified by the Crown.   R. v. McNeill (1996), 1996 CanLII 812 (ON CA), 29 O.R. (3d) 641 (C.A); See also R. v. Wills, [2006] O.J. No. 3662 (S.C.J.) at para. 45; R. v. Zwezdaryk, [2004] O.J. No. 6137 (S.C.J.) at para. 14; R. v. Jones (1996), 1996 CanLII 8006 (ON SC), 29 O.R. (3d) 294 (Gen. Div.) at paras. 28-31. See also R. v. Cambridge Justices, Ex parte Peacock (1992), 156 J.P.R. 895 (Q.B.), at p. 902:   “They [Magistrates], not the gaoler, must decide whether a prisoner should be handcuffed in court. No prisoner should be handcuffed in court unless there are reasonable grounds for the apprehending that he will be violent or will attempt to escape. If an application is made that a prisoner should be handcuffed, the magistrates must entertain it.”   If the Crown takes

  The Process   The 810 recognizance process begins with the swearing of the information, after which a summons for the Defendant/s is issued, and then the hearing itself (commonly referred to as a show cause hearing, as the Defendant is given an opportunity to show cause why the recognizance should not issue).   Principles applicable to s. 810 applications   English statute and common law conferred upon a justice of the peace a discretionary power to subject individuals to an order binding over an individual to keep the peace and to be of good conduct where the justice apprehended that these individuals would likely breach the peace.  In this one instance the English common law allowed a restraint on liberty of individuals where no offence had been proven.  This power was preventive rather than penal in nature; its purpose was to maintain order and preserve the peace.  Generally criminal law is penal in nature based upon proof of the offender having committed an offence.  Section 810 of the Criminal Code and its predecessor sections carry on the tradition of preventive justice.   R. v. Soungie, 2003 ABPC 121 (CanLII), at para 5.   Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, the applicant's spouse, the applicant's common law partner, the applicant's children, or future damage to the applicant's property.     In making an order under s. 810 the Judge is asked to restrain an individual because of likelihood of future harm.   R. v. Soungie, at para 22.     Laying the Information   To lay an information, the applicant must swear that he or she has a fear that the defendant will cause