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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.

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

Lack of Remorse: When it can Affect Sentence

An accused’s lack of remorse is not ordinarily an aggravating factor on sentencing, as a court cannot punish the accused for failing to plead guilty or for having mounted a defence. R. v. Valentini [1999] O.J. No. 251 (C.A.), at paras. 82, 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff’d on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. When Lack of Remorse is Relevant Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness. R. v. Shah, 2017 ONCA 872, at paras. 8, 9; R. v. B. P.  (2004), 190 O.A.C. 354 (C.A.), at para. 2; R. v. Valentini, at para. 82; R. v. J.S., 2018 ONCA 675, at para. 84.  Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to author). 

By |August 2nd, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Lack of Remorse: When it can Affect Sentence

Rights to Counsel: The Role of Police where a Detainee has Problems with Language Comprehension

Section 10(b) of the Canadian Charter of Rights and Freedoms reads:10. Everyone has the right on arrest or detention […]  (b) to retain and instruct counsel without delay and to be informed of that right… As the Supreme Court held in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, s. 10(b) imposes two duties on the police – an informational duty and an implementational duty. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The onus lies on the Applicant to demonstrate that his/her right to counsel was violated under s.10(b) of the Charter. Rights to Counsel and the Role of the Police In most cases the police may infer that the detainee understands the rights read to them.  Police do not have a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail. Officers are only required to communicate those rights to the detainee. R. v. Culotta, 2018 ONCA 665, at para. 38. Absent special circumstances indicating that a detainee may not understand the s. 10(b) caution (such as language difficulties or a known or obvious mental disability), police are not required to assure themselves that a detainee fully understands the s. 10(b) caution. R. v. Bartle, [1994] 3 S.C.R. 173, at p. 193;  R. v. Baig, [1987] 2 S.C.R. 537, at p. 540; R. v. Feeney, [1997] 2 S.C.R. 13, at paras. 108-09 per L’Heureux-Dubé (dissenting); R. v. Evans, [1991] 1 S.C.R. 869, at p. 891; R. v. Willier, 2010 SCC 37, [2010] 2

By |July 26th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rights to Counsel: The Role of Police where a Detainee has Problems with Language Comprehension

Defence Counsel Fall Outside the Circle of Informer Privilege

Defence counsel do not fall within the “circle” of informer privilege — the group of people who are entitled to access information covered by informer privilege and who are bound by it.Traditionally, this circle is tightly defined and has only included the confidential informer himself or herself, the police, the Crown and the court. R. v. Brassington, 2018 SCC 37, at para. 41; R. v. Barros, [2011] 3 S.C.R. 368, at para. 37.  In all cases where informer privilege applies, disclosure outside the circle requires a showing of “innocence at stake”. R. v. Brassington, at para. 47. Thus, solicitor-client privilege, which protects the client's communications with counsel from disclosure and compulsion, does not provide a basis for that client to communicate information that is otherwise protected from disclosure if it tends to identify a confidential informer. R. v. Brassington, at para. 48. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).

By |July 24th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Defence Counsel Fall Outside the Circle of Informer Privilege

Prior Consistent Statements: Admissible as Narrative

As a general rule, prior consistent statements of a witness are inadmissible.  There are two primary justifications for the exclusion of such statements: first, they lack probative value (they are self-serving, easily fabricated, and redundant) and second, they constitute hearsay when adduced for the truth of their contents.               R. v. Dinardo, 2008 SCC 24 (CanLII) at para. 36.  Further, their repetition before the trier of fact is capable of working significant prejudice. See R. v. M.P., 2018 ONCA 608 , at para. 77. Exceptions to the rule Like other admissibility rules which are primarily exclusionary in their effect, the general rule enjoining introduction of prior consistent statements of a witness brooks exception. These exceptions permit introduction of prior consistent statements for restricted purposes which differ depending on the exception, for instance: 1. To rebut a claim of recent fabrication. R. v. Evans, [1993] 2 S.C.R. 629, at p. 643. 2.To provide context in which to assess attacks on testimonial reliability based on alleged prior inconsistencies. R. v. O.(L.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 34. 3. As narrative. R. v. F.(J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476; Khan, at paras. 29-30 A Prior Consistent Statement may be Admissible as Narrative The fact of a prior complaint may be admissible under the narrative exception to the general rule.  To qualify as narrative, the witness must recount relevant and essential facts which describe and explain his or her experience as a victim of the crime alleged so that the trier of fact will be in a position to understand what happened and how the matter came to the attention of the proper authorities. In all cases where evidence is admitted

By |July 4th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Prior Consistent Statements: Admissible as Narrative

Court Rejects the Defence of Murder-Suicide Pact

It is not for judges to create criminal offences, but rather for the legislature to enact such offences.  This has been true since Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517, and is a precept which finds statutory recognition in section 9 of the Criminal Code. A person may not be convicted of an offence at common law. [FN1]While the Criminal Code removes criminal liability for common law offences, it maintains the availability of common law defences, except where they are inconsistent with subsequent legislation: see section 8(3), Criminal Code. While some common law defences (eg.  defences necessity, duress, and entrapment) are well-understood, other common law defences remain to be discovered. In 1993, the Quebec Court of Appeal recognized the very narrow common law defence of suicide pact. This defence is available only when the parties formed a common and irrevocable intention to commit suicide together, simultaneously by the same event and the same instrumentality, and where the risk of death was identical for both. See R. v. Gagnon (1993), 84 C.C.C. (3d) 143, 24 C.R. (4th) 369 (Que. C.A.). This is different from a murder-suicide pact in which one person has agreed to first kill the other and then kill himself. Gagnon did not extend the suicide pact defence to the murder-suicide situation. In R. v. Dobson,2018 ONCA 589, the appellant sought to have Court of Appeal for Ontario go even further than the Quebec court did in Gagnon and recognize a common law defence in situations of a murder-suicide pact.  The defence would not be a complete defence; rather a partial defence, reducing  murder to manslaughter to reflect the culpability of the survivor of a suicide pact. The appellant faced two problems from

By |June 29th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Court Rejects the Defence of Murder-Suicide Pact

Admission of Fresh Evidence: Crown’s Failure to Disclose (the “Dixon Test”)

 There are two ways in which fresh evidence may become admissible on appeal: (1) Dixon Test:  On the basis of non-disclosure giving rise to a breach of the right to make full answer and defence.  This is governed by the test first set out in Dixon, (the “Dixon test”); or  (2) Palmer Test:  On the basis that the cogency of the evidence is such that it warrants admission and the interests of justice require that it be received.  This is governed by the test  first set out in R. v. Palmer, [1980] 1 S.C.R. 759 (the "Palmer test").. The Dixon Test There are two components to the Dixon test. 1. Did the Crown breach its duty to disclose? If the court concludes that, at the relevant time, the Crown failed in its disclosure obligations, then Dixon requires that the court go on to consider the following: 2. Was there a “reasonable possibility” that the non-disclosure: (a) impacted the outcome of the trial; or (b) impacted the overall fairness of the trial process? R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 71, 78; See also Dixon, R. v. Dixon, 1998 CanLII 805 (SCC), [1998]at paras. 34-35.  Although, a reasonable possibility must be more than "entirely speculative" in nature, the mere existence of such a possibility constitutes an infringement of the right to make full answer and defence:  Taillefer, at para. 78.            Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).

By |June 27th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Admission of Fresh Evidence: Crown’s Failure to Disclose (the “Dixon Test”)
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