Stuart O'Connell

About Stuart O'Connell

Stuart O’Connell is counsel in association with the Firm on complex Criminal, Civil and Regulatory Defence files, he has been running trials with Jordan Donich since 2013. Mr. O’Connell is a distinguished legal academic and holds a Masters in Law with Distinction. He was a law school professor at the University of Ottawa and is presently completing his PhD in Law at Queen’s University.

Global Sentences

In Canada, the phrase “global sentence” is used to describe a single sentence that reflects the cumulative culpability for all offences on which the offender is sentenced.   (In the US, this type of aggregate sentence is termed a “unitary” sentence). The practice of imposing a global sentence is generally discouraged outside of the context of reducing the total sentence for multiple count convictions to ensure that the sentence meets the totality principle. But even here, the sentencing judge begins by determining the appropriate sentence for each offence. See R. v. Elliott, 2012 ABCA 214 (CanLII) at para 7 for a quick summary of sentencing in multiple count situations. Judges should impose a sentence on each individual counts in order to determine the overall appropriate sentence. See section 725(1)(a) of the Criminal Code. This is so irrespective of whether the sentences are to be served consecutively or concurrently. R. v. Taylor, 2010 MBCA 103 (CanLII), at para 10. However, a failure to do so is not necessarily fatal. In R. v. T.A.P., 2014 ONCA 141 (CanLII), the Court of Appeal for Ontario provided the following guidance: [14]     The Criminal Code makes clear that, if it is possible and appropriate, sentencing judges ought to impose a sentence on each count as opposed to simply imposing one global sentence.  Section 725(1)(a) of the Criminal Code states that a court “shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences.” [15]      When a sentencing judge does nevertheless impose one global sentence for two or more counts, s. 728 of the Criminal Code applies.  Section 728 states: Where

By |2023-03-10T14:26:08-05:00November 16th, 2021|0 Comments

Getting Away From the “Representative Sample”: A Trauma-Informed Approach to Presenting Unlawful Pornography in Court

Exposure to unlawful forms of pornography, such as child pornography, can be traumatizing. R. v. Shaw, 2018 ONCJ 61 (CanLII). On most occasions, it is unnecessary for the judge to view the child pornography that comprises the subject matter of a charge or even for the Crown to select a representative sample of images from the child pornography collection to show at the sentencing hearing. Defence and Crown counsel should do their best to agree to a mutually satisfactory verbal description of the contents of child pornography so as to protect courtroom participants (including themselves, the judge, and victims) from unnecessary exposure to potentially trauma-inducing raw material.[FN]   R. v. Marratt, 2019 ONCJ 618, per Band J; See also R. v. Shaw, 2018 ONCJ 61, per Band J. This can even be taken a step farther.  In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as to whether it can simply be filed as a written exhibit to be reviewed by the judge alone.   Where counsel does wish to present the evidence, the presiding judge or counsel should provide a warning concerning its nature.  That way, court staff and victims can raise any concerns with the presiding judge.  This will also allow members of the public to decide whether or not to remain in the courtroom.                             Written by Stuart O’Connell (Barrister/Solicitor).    [FN] This approach is permissible in certain circumstances.  Among the relevant considerations are the existence of an agreement between the parties as to the facts and whether, owing to his or her professional experience, the sentencing judge is able to “fully appreciate the sickening horror of such pornography”: see R.

By |2023-03-10T14:33:06-05:00June 22nd, 2020|Comments Off on Getting Away From the “Representative Sample”: A Trauma-Informed Approach to Presenting Unlawful Pornography in Court

Can a Written Text Message Constitute Child Pornography?

In R. v. McSween, 2020 ONCA 343, the Court of Appeal for Ontario considered whether text messages from an adult to a 14-year-old boy describing sexual acts he would like to perform on another 14-year old constitutes child pornography.  It does.  In the Canadian law child pornography includes (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act; (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act. [Emphasis added.] Section 163.1(1), Criminal Code [note: I have not included the definition of child pornography under 163.1(1)(a) or (d) in the interests of clarity]. Section 163.1 does not require the alleged child pornography to meet the definition under both s. 161.1(1)(b) and (c). One will suffice. Electronic communications (email, text messages,etc.) may constitute “written material” within the meaning of ss. 163.1(1)(b) and (c). R. v. McSween, 2020 ONCA 343, at para. 48: the ONCA interpreting s. 163.1 in light of Parliament’s goal in enacting the child pornography legislation (that is, protecting children from its various harms) and the wording of the section itself. For a discussion on the harms of child pornography that Parliament sought to address see R. v. Sharpe, 2001 SCC 2. See also R. v. Gagné, 2011 QCCA 2157, at para. 14, where the QCCA held that any “writing”, whether electronic or otherwise, is capable of constituting child pornography. An email or text conversation is not a document created by a single person and does not fall into the usual format for child pornography—that is,

By |2023-03-10T14:34:01-05:00June 5th, 2020|Comments Off on Can a Written Text Message Constitute Child Pornography?

Hidden Cameras in the Common Areas of Condominiums

A condominium board has authority to cooperate with the police but only to a reasonable extent. As the Court of Appeal for Ontario tells us in R. v. Yu, 2019 ONCA 942, what is reasonable is informed by the constitutionally-protected reasonable privacy expectations of those who reside at the condominium. Under provincial law, a condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation on behalf of the owners. [FN1]  The board is elected by the owners to manage these affairs in their best interests. [FN2] This statutory duty confers a responsibility and authority on the board to act as the decision maker for the owners as a collective. R. v. Yu, at para. 91. The condominium board and, by extension, property management, are entrusted with security of the building and the residents. Residents reasonably expect that a property manager could consent to police entry into the building and its hallways and, in fact, would be likely to consent to police entry if informed of the possibility of criminal activity within the building. R. v.Yu, at para. 92. While condominium residents may expect to be under surveillance by visible cameras installed by management in common areas of the corporation and there to assist management in carrying out its responsibilities, residents do not reasonably expect to be under surveillance by “hidden cameras,” much less hidden cameras installed by the police. See R. v. Yu, 2019 ONCA 942, at paras. 124, 126, 128. Surreptitious state recording is highly, if not uniquely, invasive of individual privacy. Because of the heightened privacy interests at stake, surreptitious video recording by the police cannot be authorized by the consent of the condominium board

By |2023-03-10T14:37:23-05:00December 9th, 2019|Comments Off on Hidden Cameras in the Common Areas of Condominiums

The End of Ontario’s Criminal Injuries Compensation Board

It is not surprising that the consequences of crime fall hardest on its victims.  While it is sometimes difficult to evaluate the extent of the effects of crime, it has been estimated that 67% of the financial burdens resulting from crime--including replacing property and possessions, lost wages, health costs, time off work, funeral costs, and various other out-of-pocket expenses—are borne by the victims of crime. This leads to an important societal question: should we leave victims to assume the greater part of those financial losses which crime has occasioned? Since the late twentieth century, the answer to that question in both the international and domestic spheres has been, increasingly, no. See for instance, The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the U.N. General Assembly on 29 November 1985. A primary means by which government has sought to ameliorate the financial burden of crime on those who were not responsible for it has been through providing victims with financial compensation. Victim compensation is also the earliest type of organized victim assistance in Canada and the United States. With the exception of Nova Scotia, Newfoundland and Labrador, and Nunavut, every province and territory in Canada administers a comprehensive victim financial assistance program. [FN1] In Ontario, the Criminal Injuries Compensation Board is the quasi-judicial administrative tribunal that assesses and provides financial compensation for victims of violent crime.  It was established under the Compensation for Victims of Crime Act (CVCA) in 1971.  Ontario has been unique in its use of an adjudicative model: a specialized administrative tribunal to review cases of criminal injury and provide compensation where appropriate. The Board’s process is often inquisitorial in nature, and it has

By |2023-03-19T16:33:36-04:00May 5th, 2019|Comments Off on The End of Ontario’s Criminal Injuries Compensation Board

Police Officers & Excessive Force (Part 1)

Police officers are entitled to use force in the execution of their duties if they act on reasonable grounds in doing what they are required or authorized to do and the force used is necessary for that purpose. See section 25, Criminal Code. The Crown has the evidentiary burden of establishing that section 25 of the Code has been met when it relies on the provision to justify the use of force.  The Crown must therefore prove that the officer: (i)             was required or authorized by law to perform the action, that the officer undertook, in the administration or enforcement of the law; (ii)           acted on reasonable grounds in performing the action; and (iii)          did not use unnecessary force. The use of more force than necessary gives rise to both criminal and civil liability. Section 26 of the Criminal Code, which is to be read with section 25, imposes criminal responsibility on those authorized by law to use force where the force used is excessive.  Was the officer acting in execution of her/his duty at the time force was used? The powers and duties of a peace officer emanate from common law and statute. In Ontario, these common law duties have been codified in  sections 42(1) and (3) of the Police Services Act.  Examples of the type of situation in which force may be necessary in the execution of a police duty include (but are not limited to) apprehending a fleeing suspect, preventing a continuation of an offence and protecting the safety of members of the public. Force Likely to Cause Death or Grievous Bodily Harm The Criminal Code has a specific limitation on the degree of force that can be used. The officer cannot use

By |2023-03-11T14:55:10-05:00October 5th, 2018|Comments Off on Police Officers & Excessive Force (Part 1)

The Essential Elements of a Criminal Offence: The Basics

In R. v. Foster, 2018 ONCA 53, Justice Watt for the Court of Appeal for Ontario provides a useful basic overview of the essential elements of a criminal offence, which I have reprinted below. Every Criminal Offence has an Actus Reus and a Mens Rea Requirement “Expressed in the Latin maxim actus non facit reum nisi mens sit rea, it is a fundamental principle of our criminal law that a person may not be convicted of a crime unless the Crown proves beyond a reasonable doubt that the person: i.                 engaged in conduct in circumstances forbidden by the criminal law (the actus reus or external element); and ii.               had a defined state of mind in relation to the prohibited conduct (the mens rea or mental or fault element). The external element or actus reus includes all the elements of the offence except for the mental or fault element. As a result, the external element or actus reus can include: i.                 conduct (act or omission); ii.               circumstances or state(s) of affairs; and iii.              result. Sometimes, this element requires proof that the conduct, which occurred in required circumstances, yielded or caused a certain result. On other occasions, less frequent in their occurrence, proof of conduct alone is sufficient.” The Actus Reus and the Mens Rea Must Coincide “Identifying the starting and ending point of the actus reus of an offence is important for at least two reasons. The first is the substantive requirement that, at some point, the actus reus and mens rea must coincide. See, for example, R. v. Cooper, [1993] 1 S.C.R. 146. The second has to do with procedural issues, such as the time frame of the charge and territorial jurisdiction over the offence.

By |2023-03-10T14:47:24-05:00August 16th, 2018|Comments Off on The Essential Elements of a Criminal Offence: The Basics

Applications in the Provincial Criminal Court: The Basics

An application is a request to a court to make an order.  They are of two types: pre-trial applications and trial applications. Commencing an application Applications are commenced by serving the opposing parties and any other affected party with a completed Form 1 (along with supporting materials), and then filing the application with proof of service at the court office.   Form 1 is found online at addition to Form 1, an application will typically include an affidavit/s setting out the facts upon which the application is based.  [FN1] Affidavit evidence is by far the most common form of evidence used for applications.  Other types of evidence include an agreed statement of facts, transcripts, and oral testimony.  Oral testimony is usually not required in most pre-trial applications.  How many copies of the Application do I need? Make at least four copies of your application: 1.      A copy for you the Applicant/Counsel to retain. 2.      A copy to be served on the Crown (usually the Crown Office, Ministry of the Attorney General Ontario, which is found at the local courthouse). 3.      A copy to be served on the Trial Coordinator (this copy goes to the application judge); 4.      A copy to be filed at the court office after service on all parties is complete (this copy is appended to the information). 5.      Sometimes an additional copy is required, as any party with an interest in the matter must also be served.  For instance, in a contested application to remove counsel from record, counsel must serve her client, the accused. How to serve an application Service of applications may be made in person, by fax or by email.  Hard copies of the documents served must be filed with

By |2023-03-10T14:47:37-05:00August 13th, 2018|Comments Off on Applications in the Provincial Criminal Court: The Basics

Jumping the Crown’s Position on Sentence

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.

By |2023-03-10T18:17:11-05:00January 13th, 2018|Comments Off on Jumping the Crown’s Position on Sentence

Rejecting a Consent Release

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]

By |2023-03-10T14:50:11-05:00December 21st, 2017|Comments Off on Rejecting a Consent Release