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Stuart O'Connell

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Stuart O'Connell works in association with the Firm.

Raising a New Issue on Appeal

Raising a new issue on appeal requires obtaining the leave of the appellate court. If (1) the evidentiary record is sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal, and (2) the failure to raise the issue at trial was not due to tactical reasons, then leave should be granted where (3) refusing leave may result in a miscarriage of justice. On the other hand, if refusing leave would not cause a miscarriage of justice, leave to raise a new issue on appeal should ordinarily be denied.            R. v. Greer; 2020 ONCA 795, at para. 91. This recent statement by Ontario’s Court of Appeal changes the customary articulation of the test for granting leave to raise a new issue on appeal. [FN] Additionally, where the new issue arises from a change in the law while the case is still “in the system”, leave may be granted to present an evidentiary record on appeal.           R. v. Greer; 2020 ONCA 795, at para. 92. Stuart O’Connell (Barrister/Solicitor) FN: formerly, the third branch of the rule required that “(3) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.”  See R. v. Reid, 2016 ONCA 524, at para. 43.

By |January 8th, 2021|Categories: Stuart O'Connell Criminal Blog|Comments Off on Raising a New Issue on Appeal

Evidence: Assessing the Credibility and Reliability of a Witness with an Intellectual or Developmental Disability

Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice. When assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence.                      R. v. Slatter, 2020 SCC 36. On a related note see https://www.thestar.com/news/gta/2020/11/18/this-is-demeaning-to-everyone-why-alek-minassians-defence-is-provoking-anger-in-canadas-autism-community.html Stuart O’Connell (Barrister/Solicitor).

By |January 6th, 2021|Categories: Stuart O'Connell Criminal Blog|Comments Off on Evidence: Assessing the Credibility and Reliability of a Witness with an Intellectual or Developmental Disability

Giving Evidence at Trial from Outside of Canada

Section 714.2(1) of the Criminal Codes allows for a witness outside of Canada to provide their evidence remotely, that is, by videolink. The party who wishes to call the witness must give notice to their intention to do so at least 10 days before the witness is scheduled to testify. Section 714.2(1) provides:    A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice. Formerly, this section also required that “the technology must be such that it "permits the witness to testify in the virtual presence of the parties and the court." This requirement was removed in 2019 when Bill C-75 became law. [FN1] The 2019 amendment of section 714.2(1) also removed the broad term “technology” and replaced it with the form of technology required: videoconference.  The term videoconference is defined at section 2 of the Criminal Code.  In short, a videoconference requires simultaneous visual and oral communication to occur. Section 2, Criminal Code. “videoconference” means any means of telecommunication that allows the judge, justice or chairperson of a Review Board, as defined in subsection 672.1(1), and any individual to engage in simultaneous visual and oral communication in a proceeding; (vidéoconférence): Although the provision is mandatory, in the sense that it uses the word "shall" in relation to the reception of evidence from a witness outside of Canada, the use of audio‑visual technology is subject to two important limitations. 1.      The technology must provide simultaneous visual and oral communication within the proceeding; 2.      The section does not apply if one of the parties satisfies the court that the reception of such testimony would be "contrary

By |July 3rd, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Giving Evidence at Trial from Outside of Canada

Judicial Referral Hearings: A Sensible Response to Bail Breaches

Administration of justice offences are typically offences that are committed by a person against the justice system itself after another offence has already been committed or alleged. They may involve acts that are not considered criminal in themselves but are considered as such because the accused was given an order not to engage in the behaviour as a condition of their release.  Common examples are failure to comply with bail conditions, such as to abstain from consuming alcohol; failure to appear in court; or breaching a curfew. These offences impose an enormous burden on the criminal justice system, as nearly 40% of all adult cases involve at least one of these administrative charges. Canada Hansard, Jody Wilson-Raybould (Minister of Justice and Attorney General of Canada), May 24, 2018; See R v Rowan, 2018 ABPC 208 (CanLII), at para. 38. Offences involving failures to comply with conditions of judicial interim release (bail) are the most common form of offences against the administration of justice. Breaches of probation are the second most common. Police elect to lay charges and prosecution agencies pursue convictions for those offences in a remarkably high percentage of cases. Trends in Offences Against the Administration of Justice, Statistics Canada, Juristat 85-002-x, 2015. Parliamentary has recognized the problem created by the proliferation of administration of justice offences in criminal courts and in response enacted a new Criminal Code procedure in 2019 for managing failure to comply charges under s. 145(3).  This procedure is called a “judicial referral hearing” (s. 523.1). The judicial referral hearing process is able to stream certain administration of justice offences out of the traditional court system where no harm has been caused to victims. This would appear to be in line with a view

By |June 30th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Judicial Referral Hearings: A Sensible Response to Bail Breaches

Is the Death of the Appellant the end of the Appeal?

The general rule is that the death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved.  R. v. Cadeddu (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114;   R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless recognized some discretion to proceed to judgment despite the death of the accused.  The discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.  See Smith, at paras. 4, 20, 50. R. v. Slingerland, 2020 ONCA 417, at para. 12. In R. v. Singerland, 2020 ONCA 417 the ONCA found no exceptional circumstances to justify departing form the general rule that the death of an accused appellant renders the appeals against conviction and sentence moot, notably--  The appeal did not raise any issues of public importance to the administration of justice;  While stigma attaches to those who are convicted of sexual offences, that stigma is not an exceptional circumstance.  "Most serious crimes carry with them a stigma. But if stigma, coupled with media coverage, were sufficient to constitute exceptional circumstances, the rule that generally forecloses continuation of an appeal by a deceased party would be supplanted by its exception. Put otherwise, the rule would become the exception and the exception, the rule." R. v. Slingerland, at para. 19.  Stuart

By |June 25th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Is the Death of the Appellant the end of the Appeal?

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 |June 22nd, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Getting Away From the “Representative Sample”: A Trauma-Informed Approach to Presenting Unlawful Pornography in Court

Paying out of the Public Purse & the Power of a Statutory Court to Control its Own Process

Every court of law has the authority to control its own process. Superior Courts A superior court’s power to control its process is part of a superior court’s inherent jurisdiction:    R. v. Cunningham, 2010 SCC 10, at para. 18; Canada (Attorney General) v. Pacific International Securities Inc.,  2006 BCCA 3030, at para. 28.     Pursuant to the power to control its own process, a superior court can, among many other things: ·         order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct: R. v. Chapman (2006), 2006 CanLII 1178 (ON CA); ·         remove counsel from a case when required to ensure a fair trial. MacDonald Estate v. Martin, 1990 CanLII 32 (SCC).   Statutory Courts A statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its own process. However, the statutory court does not have inherent jurisdiction. R. v. Fercan Developments Inc., 2016 ONCA 269 (CanLII), at para. 52. It would be generally undesirable and inefficient if a superior court could issue an order under its power to control its process but, a statutory court confronted with the same set of circumstances could not, even though that court also possesses the power to control its process.             See R. v. Fercan Developments Inc., at paras. 56-58.   A statutory court’s power to control its own process is necessarily implied in a legislative grant of power to function as a court of law:  R. v. Cunningham, 2010 SCC 10, at para. 51. The power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its

By |June 22nd, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Paying out of the Public Purse & the Power of a Statutory Court to Control its Own Process

Robbery (Using a Firearm) and Using a Firearm to Commit a Robbery

The Criminal Code sets out four different ways in which robbery may be committed.  See Section 343, Criminal Code. The offence of robbery does not necessarily involve the use of a firearm. Section 344 sets out the penalty provision for the offence, including where a firearm is used in the commission of the offence. Section 85(1) of the Criminal Code sets out the offence of using a firearm in the commission of an indictable offence.  On its wording, the section 85(1) offence cannot be committed if the indictable offence committed happens to be the offence of robbery. Section 85(1) of the Criminal Code reads: Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm, (a)        while committing an indictable offence, other than an offence under section … 344 (robbery). In R. v. Cudmore, 2020 ONCA 389, the ONCA quashed the appellant’s conviction for the s. 85(1)(a) offence in light of the appellant’s conviction on the s. 344 robbery offence. This is clearly the right result; however, the ONCA’s finding at paragraph 6 that the use of a firearm is an essential element of the indictable offence of robbery under section 344 of the Criminal Code (which in my view is a penalty provision) is curious. “[I]t is clear that where an accused is convicted of an offence under s. 344, s. 85(1) is not applicable, as the use of a firearm is already an essential element under s. 344.” Proof of the use of a firearm is not an essential element of the offence of robbery. Proof that a firearm was used is relevant to the

By |June 18th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Robbery (Using a Firearm) and Using a Firearm to Commit a Robbery

Stare Decisis and Superior Court Declarations of Invalidity

Section 52(1) of the Constitution Act, 1982 provides that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” When the Supreme Court of Canada declares a law invalid under s. 52(1), the law is invalid for all future cases; cannot be enforced; is “null and void, and is effectively removed from the statute books. Nova Scotia (Workers' Compensation Board) at para. 31; Canada (Attorney-General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 82. However, that is not the case when a superior court makes a declaration of invalidity: the declaration does not determine the validity or enforcement of the statute “for all future cases”.  R. v. Sullivan, 2020 ONCA 333, at para. 35. Justice Paciocco, writing for himself and Justice Watt in R. v. Sullivan at para. 38, sets out how the principles of stare decisis operate after a superior court judge has made a s. 52(1) declaration of invalidity. The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks

By |June 16th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Stare Decisis and Superior Court Declarations of Invalidity

Searches and Arrest: Searching Your Vehicle One Way or Another

There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle. See R. v. Russell, 2018 BCCA 330; R. v. Cuff, 2018 ONCA 276. Having properly seized a vehicle,  police are under an obligation to keep the vehicle and its contents safe. To fulfill this responsibility, the police may have to conduct an inventory search of the vehicle. R. v. Cuff, 2018 ONCA 276. R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417 (C.A.), at paras. 29-30. The fact that the police suspect that they may find drugs while searching the vehicle does not alter their authority to conduct an inventory search. R. v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514, at para. 11, leave to appeal refused [2009] S.C.C.A. No. 164:  for inventory searches to be meaningful, the police must be able to search and itemize the contents of objects such as purses, wallets and bags to determine their contents. Inventory searches of vehicles are not searches incident to arrest. Where an inventory search is not required (say for instance, when the accused will released immediately after arrest and thus there is not need to seize control of his vehicle), police may (or may not) have the option to conduct a warrantless search of the vehicle under the common law search incident to arrest doctrine.    The police generally do not need to have reasonable and probable grounds to conduct a search incident to arrest – just a reasonable basis for doing so. But see R. v. Saeed, 2016 SCC 24,

By |June 16th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Searches and Arrest: Searching Your Vehicle One Way or Another