About Stuart O'Connell

Stuart O'Connell is a lawyer and accomplished legal academic.

Inadmissible Anecdotal Evidence or Admissible Experience-Based Knowledge?

From time-to-time, police officers will testify as experts on the basis of expertise that has been obtained through practical experience on the job over many years. The boundaries of any proposed expert opinion must be carefully delineated.  As well, the trial judge must ensure that the expert stays within the bounds of their expertise and that the evidence is properly the subject of expert evidence.  The guilt or innocence of accused persons that the police officer had encountered in the past is generally not legally relevant to the accused’s guilt or innocence. [FN1] In R. v. J.T., 2021 ONCA 922 (CanLII), the Appellant argued that unlawful pornography had been automatically downloaded onto his computer. The forensics police officer gave evidence that in his experience he had never seen child pornography end up on a computer in an automatic fashion. The judge relied on this evidence and ultimately convicted the accused.  The admission and reliance of the evidence was challenged on appeal on the basis that it was unnecessary and irrelevant anecdotal testimony and--essentially--that in relying upon this evidence, the court was imputing the guilt of the accused from the guilt of other similarly situated offenders. The ONCA disagreed holding that the evidence was experience-based and had been provided to explain the technical operation of computers, specifically, that documents are not automatically downloaded by computers, but by human action. [FN1]  See R. v. Sekhon, 2014 SCC 15.

By |January 13th, 2022|Categories: O'Connell Law Blog|0 Comments

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 |November 16th, 2021|Categories: O'Connell Law Blog|0 Comments

What do you do when a juror falls asleep?

Personally, I find the law and trials fascinating, but I understand they are not everyone’s cup of tea. Take the juror in R. v. Anderson, 2021 ONCA 45 for instance; he seems to enjoy other interests.  We know this as it appears he may have fallen asleep during part of that trial. Anderson was ultimately convicted. He appealed, alleging (among other things) that a somnolent juror causes a real danger of prejudice.  That is not hard to accept, as a jury’s responsibility in a trial is to make determinations of fact—a task better performed awake than asleep. The problem with Anderson’s argument was that his trial counsel didn’t raise an objection while the juror was allegedly dozing and only made passing reference to it after it had happened. The ONCA inferred from this that the incident was not a significant one. Also, Anderson was not in a position at the time of the appeal to be able to prove that the juror had in fact fallen asleep.  By not raising his concern promptly during the trial, there had been no inquiry by the court into whether the juror had actually been sleeping. Let sleeping dogs lie, but not sleeping jurors.

Judicial Notice: Can a Judge take Judicial Notice of a Fact which the Parties have not Introduced?

Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court. Judicial notice involves the acceptance of a fact or a state of affairs without proof and may occur in two circumstances: i. When the fact is so notorious or accepted as not to be the subject of dispute among reasonable persons, or ii. When the fact is capable of immediate and accurate demonstration. In R. v. J.M., 2021 ONCA 150, the Court of Appeal for Ontario recognizes that judicial notice also has a procedural dimension. The procedural dimension of judicial notice bears on the answer to the question: What is required when a judge--on his/her own initiative--wishes to take judicial notice of a fact? The procedural dimension [36]      The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversarial process ensures a transparent consideration of the request. [37]      More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: “Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:” at §19.61. [38]      Where a judge, on his or her

Executing a Search Warrant & Implementing the Arrested Person’s Right to Consult with Counsel in Private

The opportunity to consult counsel in private is a vital component of the s.10(b) right.        R. v. Playford(1987), 63 O.R. (2d) 289 (Ont. C.A.) at para 31;        R. v. McKane(1987), 35 C.C.C. (3d) 481 (Ont. C.A.) at p. 134. Once an accused has requested that he be permitted to consult counsel, that carries with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit.        R. v. Doherty(1974), 1974 CanLII 1531 (NS CA). In R. v. Pileggi, 2021 ONCA 4, the accused was arrested at his home during the execution of a search warrant.  The accused’s right to consult counsel in private would have been compromised had the police attempted to facilitate contact at the house while a search of the house was underway. In such circumstances it was not a breach of s. 10(b) of the Charter for the police to transport the accused to the police station before implementing his contact with counsel.        R. v. Pileggi, 2021 ONCA 4at paras 75-78. Stuart O’Connell (Barrister/Solicitor)

By |February 3rd, 2021|Categories: O'Connell Law Blog|0 Comments

12 Days to a Bail Hearing: Court Stays all Charges for Abuse of Process

There are two well-recognized categories of abuse of process. The first, and more common, category is engaged by prosecutorial conduct affecting the fairness of the trial; the second, the residual category, is engaged by prosecutorial conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process.        R. v. Nixon, 2011 SCC 34, 2 S.C.R., at para. 36;        R. v. O’Connor, 1995 CanLII 51. Abuses of process within the residual category tend to involve Charter violations and conduct that is likely to be perpetuated into the future. In R v. Simonelli, 2021 ONSC 354 (CanLII), the accuseds brought applications to stay the proceedings under Section 24(1) of the Canadian Charter of Rights and Freedoms for abuse of process.  They claimed that the twelve days from their arrests to their special bail hearing [FN1] constituted an abuse of process falling within the "residual" category of that common law doctrine.  Typically bail hearings occur within 24 hours of arrest. [FN2] Beyond the delay particular to them, the Applicants in Simonelli established that there were ongoing systemic bail delay problems within the jurisdiction (Brampton, Ontario).  The 12 day pre-trial custody period the Applicants endured was a clear violation of 11(e) of the Canadian Charter of Rights and Freedoms--the right not to be denied reasonable bail without just cause--but did the delay also amount to an abuse of process? Yes. The Court concluded that the bail delays the Applicants had experienced were part of a serious unaddressed systemic problem with no end in sight, “a blot on the administration of justice” (para. 141). Stay of Proceedings A stay of proceedings is a prospective rather than a retroactive remedy. It does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if

By |January 30th, 2021|Categories: O'Connell Law Blog|0 Comments

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: O'Connell Law 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: O'Connell Law 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: O'Connell Law 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: O'Connell Law Blog|Comments Off on Judicial Referral Hearings: A Sensible Response to Bail Breaches