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Stuart O'Connell

About Stuart O'Connell

Stuart is Lead Counsel at O’Connell Law Group - and works in association with the Firm.

Victim Surcharge Regime Declared Unconstitutional

Section 737 of the Criminal Code requires that a victim surcharge be imposed for every offence committed. The section removes the discretion of sentencing judges to decline to impose a surcharge based upon the specific circumstances of the offender.The imposition and enforcement of the victim surcharge creates deeply disproportionate effects for those who are the most impoverished among us, In R. v. Boudreault the Supreme Court of Canada went further, holding that “the impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable.” That is to say, the surcharge is a constitutionally impermissible form of cruel and unusual punishment under section 12 of the Charter.  The Court found that victim surcharge regime as set out in section 737 was not saved under section 1 of the Charter (the reasonable limits provision). R. v. Boudreault, 2018 SCC 58 (CanLII), at paras. 94, 97. The Supreme Court declared section 737 of the Criminal Code “to be of no force and effect immediately, pursuant to s.52(1) of the Constitution Act, 1982.” R. v. Boudreault, at para. 98.   Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |January 3rd, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Victim Surcharge Regime Declared Unconstitutional

The Failure of a Party to Call a Witness (Drawing an Adverse Inference)

A trial judge should draw an adverse inference from the failure of a party to call a witness only with the greatest of caution.See R. v. Ellis, 2013 ONCA 9 (CanLII), at para 49. An adverse inference can only be drawn where there is no plausible reason for nonproduction, in other words, where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable. See R. v. Ellis, 2013 ONCA 9 (CanLII), at para. 48. The only adverse inference that the trier of fact may drawn is that if the witness were called his/her testimony would be unfavourable, eg., would bear adversely on the credibility of the accused. An inference of guilt is not permissible.    R. v. Koffman (1985), 20 C.C.C. (3d) 232, 10 O.A.C. 29, per Martin JA. Comment on the Failure to Produce a Witness It is rarely permissible for the trial judge to comment on the failure to call a witness. Even where a comment on the failure to call a witness is appropriate, the failure to call a witness should not be given undue prominence and a comment should only be made where the witness is of some importance in the case. R. v. Koffman (1985), 20 C.C.C. (3d) 232, 10 O.A.C. 29, per Martin JA. The judge or counsel for the prosecution are prohibited from commenting on the failure of the accused (or the husband or wife of the accused) to testify. Section 4(6) of the Canada Evidence Act. Where neither the Crown nor the accused might wish to call, the jury may be so advised but the jury should not be told that if they concluded the defence

By |December 25th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Failure of a Party to Call a Witness (Drawing an Adverse Inference)

Can Judges Prepare Draft Reasons for Judgment Before Hearing the Closing Submissions of Counsel?

A trial judge may sketch out draft reasons either in advance of hearing counsel’s submissions or as those submissions are being offered, so long as the trial judge remains receptive to persuasion by counsel’s submissions.R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J;  R. v. Purewal, 2014 ONSC 2198. Given the acute time pressures on trial judges, resort to this practice may often be necessary. No harm is created by the practice, and some practical benefit may be gained for the process as a whole, so long as it is done with considerable care for, and appreciation of, the impression it may create if it is not undertaken in an appropriate manner. R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J;  See also R. v. Purewal, 2014 ONSC 2198 (CanLII), 2014 ONSC 2198, per Durno J. Of preeminent importance is that a judge must always keep an open mind, both in reality and in appearance. [FN] Some measure of time should be taken by a judge to reflect on the submissions and to ensure that any draft or sketched out reasons have taken them into account.  R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J. However, there is a strong presumption that judicial officers act exclusively out of consideration for the interests of the court and the administration of justice generally (the presumption of judicial regularity). A function of judicial independence is the ability of a judge to note and document on paper, thoughts and reflections about the evidence, law, and anything else logically connected with the judicial function of deciding a case or part of it. A trial judge has no obligation to disclose to counsel of any

By |December 8th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Can Judges Prepare Draft Reasons for Judgment Before Hearing the Closing Submissions of Counsel?

Raise Your Charter Argument Before the Crown Closes its Case

Under section 24(2) of the Canadian Charter of Rights and Freedoms, the burden of having the court exclude evidence that is otherwise admissible passes to the defence. The Crown does not have to anticipate that the defence will seek to exclude Crown evidence on the basis of an alleged Charter breach.  The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered, will be received and considered in determining the guilt of an accused.Absent special circum­stances [FN], the general principle is that the accused must raise Charter objections to the admissibility of Crown evidence before, not after, that evidence is adduced.  Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case.                                                 R. v. Kutynec, 1992 CanLII 12755 (ON CA);                                                 R. v. Luksicek, 1993 CanLII 1148 (BC CA). [FN]: A trial judge has the discretion to allow counsel to challenge evidence already received and will do so where the interests of justice so warrant. [FN] Consider also your obligation to provide formal notice of the application and the factual basis supporting it under any rules of the court (eg. Rules 2 & 3 of the Criminal Rules of the Ontario Court of Justice).   Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca. (All rights reserved to author).

By |November 18th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Raise Your Charter Argument Before the Crown Closes its Case

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 |October 5th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Police Officers & Excessive Force (Part 1)

Withdrawing as Counsel for Non-payment of Legal Fees

SummaryA criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal. This authority allows the court to require defence counsel who wishes to withdraw because of non-payment of legal fees to continue to represent the accused.  However, refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice. The Supreme Court of Canada in R. v. Cunningham, 2010 SCC 10 sets out a number of factors that courts should consider in determining whether permitting counsel of record to withdraw would cause serious harm to the administration of justice.  These factors—the Supreme Court of Canada tells us—are independent of the solicitor-client relationship and there is no risk of violating solicitor-client privilege when engaging in the analysis.  If a court determines that serious harm would result, withdrawal may be refused. Revealing that the Accused has not paid legal fees Revealing that an accused has not paid his or her fees does not normally touch on the rationale for solicitor-client privilege in the criminal context. R. v. Cunningham, 2010 SCC 10, at para. 27. Disclosure of non-payment of fees in cases where it is unrelated to the merits and will not cause prejudice to the accused is not an exception to solicitor-client privilege.  Rather, non-payment of legal fees in this context does not attract the protection of solicitor-client privilege in the first place.  R. v. Cunningham, 2010 SCC 10, at para. 31. Withdrawal where no adjournment required  If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then

By |August 28th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Withdrawing as Counsel for Non-payment of Legal Fees

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. Sometimes,

By |August 16th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Essential Elements of a Criminal Offence: the Basics

Probation and Child Pornography Offences

In R. v. Inksetter, the Court of Appeal for Ontario has signalled that while probation may be a component of a sentence for a child pornography offence, probation (even a relatively onerous probation) is very unlikely to reduce what is generally required by imprisonment to satisfy the primary sentencing objectives of deterrence and denunciation.See R. v. Inksetter, 2018 ONCA 474, at para. 20. Denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography: R. v. D.G.F., 2010 ONCA 27 (CanLII), 98 O.R. (3d) 241, at paras. 21-22, 30; R. v. Nisbet, 2011 ONCA 26 (CanLII), [2011] O.J. No. 101, at para. 3; R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563, at para. 7; R. v. Stroempl, 1995 CanLII 2283 (ON CA), [1995] O.J. No. 2772, at para. 9. Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence. R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, at p. 87. The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence.  R. v. Lacasse, 2015 SCC 64 (CanLII), [2015] 3 S.C.R. 1089, at para. 6. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to the author).

By |August 14th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Probation and Child Pornography Offences

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 www.ontariocourts.ca/ocj/criminal-rules/).In 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 |August 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Applications in the Provincial Criminal Court: The Basics

Punitive Damages in Civil Trials where there has been no Criminal Penalty

Punitive damages are awarded to a successful civil plaintiff when the defendant’s misconduct is so outrageous that such damages are rationally required to act as a deterrent.Hill v. Church of Scientology of Toronto et al., [1995] 2 S.C.R. 1130, at para. 197. Non-pecuniary damages may be enough to accomplish the goals of, deterrence denunciation, and punishment. Notwithstanding, the fact that a civil defendant has not been punished criminally for his morally reprehensible behaviour may be relevant to whether (and the extent to which) punitive damages are needed to denounce that behaviour.   Zando v. Ali, 2018 ONCA 680, at para. 24.

By |August 12th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Punitive Damages in Civil Trials where there has been no Criminal Penalty
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