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Stuart O'Connell

About Stuart O'Connell

Stuart is Lead Counsel at O’Connell Law Group - http://www.leadersinlaw.ca/ and works in association with the Firm.

Written Submissions are not a Replacement for Oral Submissions

It is common practice in the criminal courts to require written submissions, not only at the end of the evidence in judge alone cases, but also in respect of various evidentiary motions, or pre-charge discussions held before or during trial.  In those cases, written argument is used, not in lieu of oral argument, but in addition to and usually as a precursor to oral argument.If a trial judge requires arguments to be made by written submissions, the trial judge must allow counsel, after written argument has been exchanged, to make oral arguments in the presence of the accused to supplement, correct, or otherwise amplify the written argument.  Procedural fairness and the accused’s right to be present throughout his/her trial require this. [FN]R. v. McDonald, 2018 ONCA 369, at paras. 46, 47.  Counsel, however, may agree to waive oral argument either entirely or as a supplement to written argument. Ibid., at para 46.  [FN]: Section 650 of the Criminal Code gives the accused the right to be present in court during the whole of his trial subject to exceptions. Closing arguments are part of an accused's trial. Procedural fairness speaks to the principle that persons affected by the proceedings should have the opportunity: (i) to present their case fully and fairly, and (ii) have any decision affecting their rights, interests, or privileges made using a fair, impartial and open process: see Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to author).

By |April 16th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Written Submissions are not a Replacement for Oral Submissions

Ineffective Assistance of Counsel: False Affidavit

The right to effective assistance of counsel extends to all accused persons.  In Canada that right is seen as a principle of fundamental justice.  It is derived from the evolution of the common law, s. 650(3) of the Criminal Code  and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.When a claim of ineffective assistance is raised, the onus is on the appellant to establish (1) the facts that underpin the claim;  (2) the incompetence of the assistance provided [FN1]; and (3) the incompetent assistance resulted in a miscarriage of justice. R. v. L.C.T., 2012 ONCA 116, at para. 37. To succeed at this third step, the appellant must establish either that there is a)    a reasonable probability that the verdict would have been different had he received effective legal representation [FN2], or b)     that his counsel’s conduct deprived him of a fair trial. See R. v. G.D.B., [2000] 1 S.C.R. 520. The accused who is the victim of a miscarriage of justice is entitled to at least a new trial In R. v. L.H.E., 2018 ONCA 362, the appellant alleged that his trial counsel made him sign a blank piece of paper.  Counsel then wrote the contents of the appellant’s affidavit supporting a bail review application herself, attached the blank page signed by the appellant, and signed the jurat.  She then filed the affidavit with the court without reviewing its contents with the appellant. At trial, the appellant gave some evidence which was inconsistent with the evidence provided in his affidavit (an affidavit he claimed he did not write or review).  At least to some degree, this would have impugned his credibility as a witness at his trial.  The appellant

By |April 15th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Ineffective Assistance of Counsel: False Affidavit

Fitness of Sentence and Appeals to the Supreme Court of Canada

Section 40(1) of the Supreme Court Act provides that an application for leave to appeal to the Supreme Court of Canada is to be decided on the basis of the importance of the case. This is consistent with a core function of the Supreme Court of Canada: settle questions of law of national importance in the interests of promoting uniformity in the application of the law across the country, especially with respect to matters of federal competence. To obtain leave to appeal to the Supreme Court of Canada from a sentence imposed, varied or affirmed by a provincial or territorial court of appeal, an applicant must demonstrate, to the satisfaction of the court, that the question raised, by reason of its public importance or the importance of any issue of law or of mixed law and fact involved in that question, is one that ought to be decided by that court or that it is, for any other reason, of such a nature or significance as to warrant a decision by that court. While the Supreme Court of Canada has jurisdiction under s. 40(1) of the Supreme Court Act to assess the fitness of a sentence (that is to say, the quantum of a sentence), as a matter of policy the Court has decided, as a rule of its own making, that it should not do so. It deals with principle, not fitness. R. v. Boussoulas, 2018 ONCA 326, at para. 15; R. v. Gardiner (1982), 68 C.C.C (2d) 477 (S.C.C.), at pp. 506-507. Supreme Court Act Appeals with leave of Supreme Court 40(1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of

By |April 10th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Fitness of Sentence and Appeals to the Supreme Court of Canada

Should the Accused be Permitted to Sit at Counsel Table during his/her Trial? Part 3

A trial judge’s ruling in relation to where an accused sits during his trial is discretionary and entitled to deference. R. v. A.C.,2018 ONCA 333 (CanLII) at para. 37. In every case, the accused’s placement must permit him to make full answer and defence, but the issue is to be assessed on a case-by-case basis, having regard to the interests of a fair trial and courtroom security in the particular circumstances of the case. R. v. Lalande (1999),1999 CanLII 2388 (ON CA), 138 C.C.C. (3d) 441 (Ont. C.A.); R. v. A.C., 2018 ONCA 333 (CanLII) at para. 37. The seriousness of the offence for which the accused is charged is, in and of itself, not a factor to be considered in determining the placement of the accused in the court, as the seriousness of the offence says nothing about security concerns or the interests of a fair trial.  R. v. A.C., 2018 ONCA 333 (CanLII) at para. 38. For more see Stuart O’Connell Law Bog, Should the Accused be Permitted to Sit at Counsel Table during his/her Trial? Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).

By |April 9th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Should the Accused be Permitted to Sit at Counsel Table during his/her Trial? Part 3

Goodbye to Preliminary Inquiries

Bill C-75, the federal government’s 300+ page omnibus bill (which had its first reading on March 28, 2018) makes some significant alterations to the landscape of criminal procedure, including restricting preliminary inquiries to offences punishable by imprisonment for life and investing a justice with increased powers to limit the issues explored and the witnesses to be heard at the inquiry.  What is a Preliminary Inquiry? A preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to require a person charged with a crime to stand trial. R. v. Hynes, 2001 SCC 82 (CanLII), [2001] 3 S.C.R. 623, at para. 30;  R. v. Sazant, 2004 SCC 77 (CanLII), [2004] 3 S.C.R. 635, at paras. 14‑16.   Subject to one exception [FN], preliminary inquiries are available to an accused’s who is to be tried in the Superior Court and who has requested one.  The Superior Court generally only tries the most serious criminal offences.  To the lay person, a preliminary inquiry can look like a trial.  Even a lawyer walking into a preliminary inquiry may not be able to tell, at least initially, that he/she has stumbled into a preliminary inquiry and not a trial. Preliminary inquiries occur before a judge (not of the Superior Court, but of the provincial court); witnesses give their evidence under oath and are subject to cross-examination by opposing counsel.  The test to commit an accused to trial (that is, to require an accused to stand trial) is not proof beyond a reasonable doubt.  It is much lower: is there evidence upon which a reasonable and properly instructed jury could convict.  Since 2002, parties can agree to limit the scope of a preliminary inquiry, a change

By |April 6th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Goodbye to Preliminary Inquiries

Reviewing a Bail Order of the Superior Court

There is concurrent jurisdiction in the Superior Court of Justice and the Court of Appeal to conduct a bail review under section 520 of the Criminal Code.R. v. Durrani, 2008 ONCA 856 (CanLII), at para. 16; This results from the definitions of “superior court of criminal jurisdiction” and “judge” in sections 2 and 493 of the Criminal Code including both judges of the Superior Court of Justice of Ontario and the Ontario Court of Appeal. A judge of the Superior Court of Justice may review the bail order (including a detention order) made by another judge of that same court. R. v. Rootenberg, 2018 ONCA 335. Section 520 clearly envisions more than one opportunity to bring a bail review application and contemplates that different judges of the superior court will sometimes hear these applications. R. v. Durrani, 2008 ONCA 856 (CanLII), at para. 29. Absent special circumstances, courts of appeal should deal with bail pending appeal and superior courts should deal with bail prior to and during a trial. R. v. Durrani, at para. 34. An alleged error of law by a judge of the Superior Court of Justice does not, on its own, qualify as a special circumstance justifying a judge of the Court of Appeal to entertain a review. R. v. Rootenberg, 2018 ONCA 335, at para. 16;  for a non-exhaustive list of what may constitute special circumstances see para. 29 of Durrani; see also R. v. George, 2018 ONCA 314. Criminal Code. Section 520(1). If a justice … makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review

By |April 5th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Reviewing a Bail Order of the Superior Court

Errors on Search Warrants Even After All these Years

The Face of a WarrantThe face of the warrant is the document that empowers police to search a particular location for particular evidence. Re Times Square Book Store and the Queen, 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503; R. v. Parent, 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385; R. v. Ricciardi, 2017 ONSC 2788 (CanLII); R. v. Merritt, 2017 ONSC 80 (CanLII).  It is vitally important that search warrants are clear on their face. Clarity on the face of a warrant ensures that police officers know the scope of the judicial authorization. Officers must be guided in the execution of the search warrant by the parameters imposed by the issuing justice. If the warrant is not clear on its face, no such guidance can be obtained. R. v Nguyen, 2017 ONSC 1341 (CanLII), The Interplay between the Face of a Warrant and the ITO The section of the warrant document known as the “Information to Obtain” provides an issuing justice the grounds to either grant or deny the police the right to search the location described on the face of the warrant for certain evidence.  However, the ITO is not part of the warrant that a searching officer is expected to examine.  Instead, the searching officer is only required to familiarize themselves with the face of the warrant in order to understand the parameters of the search.  As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the "fellow officer" test -- that is, would a fellow officer be able to understand the items sought and the location to be searched as a

By |March 16th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Errors on Search Warrants Even After All these Years

When can the Police ask if the Accused Wishes to say Anything in Answer to the Charge?

Among other things, the right to retain and instruct counsel under section 10 (b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269. This helps ensure that detainees understand their legal rights and obligations, and most importantly, that they understand their right to remain silent, so they can make an informed decision about whether to waive their right to silence after receiving legal advice relevant to their situation. The standard police caution, customarily read to the accused upon arrest, informs the suspect in plain language of his/her right to remain silent.  For instance, it may be as brief as: “You are not obliged to say anything but whatever you do say may be given in evidence. Do you understand?” The question, “Do you wish to say anything in answer to the charge?” has also been a common feature of the standard police caution. See for instance R. v. Singh, 2007 SCC 48 (CanLII), at para. 31. While a police caution is not mandatory, courts quickly recognized that the presence of a caution helps prove that a suspect made a voluntary statement. R v Boudreau, 1949 CanLII 26 (SCC), [1949] SCR 262, 7 CR 427; R v KF, 2010 NSCA 45 (CanLII) at paras 21-38, 290 NSR (2d) 387. Where the accused has invoked his right to counsel, the question, “Do you wish to say anything?” violates the constitutional duty of police to hold off under section 10(b) of the Charter if that question elicits an incriminatory response from the accused. R. v. G.T.D., 2018 SCC 7.  Postscript:  If

By |February 27th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on When can the Police ask if the Accused Wishes to say Anything in Answer to the Charge?

Challenging the Validity of a Guilty Plea

To be effective a guilty plea must be voluntary, unequivocal and informed. And to be informed, the person pleading guilty must be aware of the nature of the allegations said to constitute the offence, the effect of the plea;,and the consequences of the plea.R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 371. A guilty plea is a formal in-court admission of guilt. It constitutes a waiver not only of the accused’s right to require the Crown to prove guilt beyond a reasonable doubt by properly admissible evidence, but also of the related procedural safeguards in the criminal trial process, some of which are constitutionally enshrined and protected.  T.(R.), at p. 519; Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41, at p. 49. On an appeal from conviction, an accused may challenge the validity of a guilty plea, but bears the onus of showing, on a balance of probabilities, that the plea was invalid because one (or more) of the elements essential to a valid plea was lacking.  In the usual course, an appellate challenge to the validity of a guilty plea entered at trial involves the introduction of fresh evidence in support of the claim, as well as a review of the trial record: T.(R.), at p. 519. An appellate court retains a discretion, exercisable in the interest of justice, to receive fresh evidence to explain the circumstances that led to the plea and to demonstrate that a miscarriage of justice has occurred.R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 19; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369, at para. 34. R. v. Faulkner,

By |February 24th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Challenging the Validity of a Guilty Plea

Disclosure of Defence Materials Reviewed by its Witnesses in Preparing for Trial

Litigation privilege applies to non-confidential communications between a lawyer and third parties, it exists only in the context of litigation, and it ends when the litigation (and all closely-related litigation) has ended. It is based on the need of the adversarial process to provide a zone of privacy to facilitate investigation and preparation of cases for trial. Solicitor-client privilege protects a relationship, while litigation privilege protects a process. Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 28. Although all statements of Crown witnesses must be disclosed to the defence before trial, there is no reciprocal obligation on the defence. R. v. Stinchcombe, [1991] 3 S.C.R. 326 There is no traditional litigation privilege over Crown witness statements made during interviews with Crown counsel in preparation for trial. This is because the Crown cannot claim privilege over that which it is obliged to disclose. R. v. Malik, 2003 BCSC 1709 at para. 9. Litigation privilege attaches to defence witness’ statements made during interviews with defence counsel in the same circumstances. However, an accused implicitly waives litigation privilege over the witness’ statement when the witness has read the document either while testifying or at a reasonable time prior to testifying, and that this has assisted the witness to refresh his/her memory in some way.[FN] R. v. Mitchell, 2018 BCCA 52, at para. 45. When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. R. v. Sachkiw, 2014 ONCJ 287, at para. 62. The Crown is entitled to explore through cross-examination the impact of the statement on the witness’ recollection of the events in

By |February 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Disclosure of Defence Materials Reviewed by its Witnesses in Preparing for Trial
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