Opportunity is the sine qua non of crime.Evidence which shows or tends to show that an accused was present at or near a place at or near the time an offence was committed is relevant, material and prima facie admissible.R. v. Doodnaught, 2017 ONCA 781, at para. 67. Where conduct occurs and the Crown alleges that a particular person did it personally, not through an agent or some other instrumentality, the person’s physical presence, within the proper range of time and place, is an item of circumstantial evidence that enhances the likelihood that the person with that opportunity – the accused – committed the offence. R. v. Doodnaught, at para. 66. However, evidence of bare opportunity to commit an offence is not, without more, sufficient to establish the guilt of an accused beyond a reasonable doubt. R. v. Yebes, 1987 CanLII 17 (SCC),  2 S.C.R. 168. Evidence of opportunity, insufficient on its own to establish guilt beyond reasonable doubt, may have a different complexion placed upon on it by other evidence, as for example, evidence of skill, expertise, physical capacity, or possession of tools by which an offence was committed. R. v. Doodnaught, at para. 69; R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 436-437; R. v. Syms (1979), 47 C.C.C. (2d) 114 (Ont. C.A.), at p. 116. Explaining away opportunity It is always open to a party, such as an accused, to adduce evidence explaining away opportunity, such as by evidence of lack of physical capacity, or by evidence that tends to show the equivalent (or better) opportunity of others: R. v. Minhas (1986), 29 C.C.C. (3d) 193 (Ont. C.A.), at p. 219; R. v. Doodnaught, at para. 68.
In R. v. Jarvis, 2017 ONCA 778, the Court of Appeal for Ontario, applying principles of statutory interpretation [FN] held that for the purposes of the voyeurism offence – section 162 of the Criminal Code – the reasonable expectation of privacy of the person being secretly stared at or videoed does not include a reasonable expectation that she/he not be surreptitiously recorded or observed.If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant (at para. 108).Given Huscroft J.A’s lucid dissent, I imagine that this proposition may find itself tested at the Supreme Court of Canada. Criminal Code 162(1) Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity; or (c) the observation or recording is done for a sexual purpose. [FN] Specifically, the common law presumption that Parliament does not legislate in vain.
In R. v. Jarvis, 2017 ONCA 778, the Court of Appeal for Ontario, applying principles of statutory interpretation [FN] held that for the purposes of the voyeurism offence – section 162 of the Criminal Code – the reasonable expectation of privacy of the person being secretly stared at or videoed does not include a reasonable expectation that she/he not be surreptitiously recorded or observed.If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant (at para. 108).Given Huscroft J.A’s lucid dissent, I imagine that this proposition may find itself tested at the Supreme Court of Canada. Criminal Code 162(1) Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity; or (c) the observation or recording is done for a sexual purpose. [FN] Specifically, the common law presumption that Parliament does not speak in vain: although a statute may be redundant, the contrary is presumed.
The offence of voyeurism (section 162 of the Criminal Code) was enacted in 2005 to address public concerns with the rapid advent of technology that could be used to spy on people surreptitiously for sexual purposes.“For a sexual purpose” Subsection (b) of the offence specifically makes it an offence to surreptitiously observe or surreptitiously visually record a person who is nude. Subsection (c) requires only that the surreptitious observation or surreptitious recording be “done for a sexual purpose”. Because observing or visually recording for a sexual purpose is a separate offence, it is clear that the voyeurism offence can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose. R. v. Jarvis, 2017 ONCA 778, at para. 44; for more on what constitutes “for a sexual purpose” see R. v. Sharpe, 2001 SCC 2,  1 S.C.R. 45, at para. 50. In R. v. Rudiger, 2010 BCPC 182 (CanLII), the circumstantial evidence pointing to a sexual purpose was compelling. The accused used a video camera to view and record very young children playing in a park, focusing in on their genital and buttocks regions. There was also evidence indicating that the accused was masturbating while doing so. The finding that the recording/observation had been done “for a sexual purpose” was not challenged on appeal. In R. v. Jarvis, 2017 ONCA 778, a high school teacher used a camera pen to surreptitiously take videos of female students as he conversed with them at school. The Court of Appeal for Ontario (at para. 46) held that the recordings, which
Hearsay evidence is inadmissible for the truth of its contents unless it satisfies the principled approach to the admission of hearsay (in which both the necessity and reliability of the hearsay evidence must be established) or it falls in one of the traditional hearsay exceptions, such as the res gestae exception (pronounced “res jest-eye”).There are two situations where hearsay utterances may be admitted under the res gestae doctrine:· Declarations accompanying and explaining a relevant act, and · Spontaneous utterances. R v. Sheri, 2004 CanLII 8529 (ON CA) at para. 107; but see Cross on Evidence (4th edition) at p. 502: There are "four exceptions to the hearsay rule associated with the doctrine of res gestae in criminal cases. These are statements accompanying and explaining a relevant act, spontaneous statements relating to an event in issue, a person's statements concerning his contemporaneous state of mind or emotion, and a person's statements concerning his contemporaneous physical sensation." As with all statements by an accused, the hearsay statements are subject to the general requirements of voluntariness. R. v. Ervern(1978) 1978 CanLII 19 (SCC), 44 C.C.C. (2d) 76 at 94. Spontaneous Utterances (also known as “excited utterances”, etc.) The theory underlying the spontaneous utterance exception to the hearsay rule was explained in R. v. Khan (1988), 27 O.A.C. 142 (C.A.), at p. 148, aff’d  2 S.C.R. 531: [A] spontaneous statement made under the stress or pressure of a dramatic or startling event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly
Qualifying the Expert WitnessFor expert evidence to be admissible the expert must be properly qualified. The party who tenders the witness as an expert is required to demonstrate that the witness has acquired a special knowledge of a particular topic by formal study, practical experience, or both, which extends beyond that of the trier of fact. The competence of the witness to give expert evidence, or to be qualified as an expert, does not depend on how the skill was acquired, only that it has been gained.Justice Watt, Manual of Criminal Evidence, 2013 at pg. 428. Deficiencies in an expert’s opinion go to weight, not admissibility. R. v. Marquard, 1993 CanLII 37 (SCC) at pg. 224. Additionally, in order for the expert to be properly qualified, the expert must be willing and able to fulfil the expert's duty to the court to provide evidence that is: i. Impartial, ii. Independent, and ` iii. Unbiased. Nothing less than scrupulous vigilance from trial judges is required when dealing with the admissibility of expert opinion evidence. R. v. Livingston, 2017 ONCJ 645 (CanLII), at para. 36; see also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII),  2 S.C.R. 182, at para. 12: “We are now all too aware that an expert’s lack of independence and impartiality can result in egregious miscarriages of justice.” The court is required to consider the particular circumstances of the proposed expert and the substance of his/her proposed evidence. The test is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance. White Burgess, at para. 50. Given this test,
In similar fact evidence cases, at the admissibility stage, the trial judge’s main task is to weigh the probative value of the evidence against its potential prejudicial effect. The possibility of collusion may significantly affect this balancing.See R. v. Wilkinson, 2017 ONCA 756 (CanLII), at para. 29. The theory of similar fact evidence turns largely on the improbability of coincidence. Collusion, by offering an alternative explanation for the "coincidence" of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility. R. v. Shearing, 2002 SCC 58 (CanLII),Shearing, at para. 40. Accused to Establish an Air of Reality to the Allegation of Collusion The dividing line between cases in which collusion is a live issue, and cases in which it is not, is the presence of an “air of reality.” As Binnie J. held in Handy,2002 SCC 56 (CanLII), at para. 111: “The issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury.” Crown must then disprove collusion on balance Although collusion is a feature of probative value, it is singled out for special consideration at the admissibility stage. The Crown must disprove the possibility of collusion. Where, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. Handy, at para. 112. If this threshold test is passed, the jury must determine for itself what weight, if any, to assign to the similar fact evidence. Shearing, at para. 42. Inadvertent Collusion Collusion may
An accused who testifies can be cross-examined on prior inconsistent statements, assuming those statements are admissible. Cross-examination on a prior inconsistent statement may be used to impeach the credibility of the accused, or in an attempt to have the accused adopt the prior statement as true.R. v. Hill, 2015 ONCA 616, at para. 43;R. v. Paris, 2000 CanLII 17031 (ON CA),  O.J. No. 4687, at para. 41. Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details. R. v. Hill, at para. 45. Impeaching the Accused’s Credibility through his Omissions to Police Generally, an accused’s exercise of his right to silence when questioned by the police cannot be used as circumstantial evidence of guilt or to impeach the credibility of the accused’s trial testimony: The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused’s testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused’s silence when questioned by the police, the cross-examination is inappropriate. A trial judge can refuse or limit cross-examination on the prior statement of an accused to police when there is a legitimate concern that the cross-examination may trespass improperly on the accused's right to silence. R. v. Hill, at para. 46; see for instance R. v. Shawanda, 2017 ONSC 5559.
In summaryconviction appeal proceedings, the Superior Court of Justice is the primary appellate court. Access to the Court of Appeal from these decisions of the Superior Court is restricted to questions of law alone and only if leave to appeal is granted (see s. 839, Criminal Code).Such appeals are appeals from the decision of the summary conviction appeal judge and are not a second appeal from the trial decision. The test for obtaining leave to appeal under s. 839 of the Criminal Code is exacting. As the Court of Appeal for Ontario held in R. v. R.R. (2008), 90 O.R. (3d) 641 (C.A.), at para. 32: Leave to appeal may be granted where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case. Leave to appeal may also be granted where there appears to be a clear error even if it cannot be said that the error has significance to the administration of justice beyond the specific case. The Court of Appeal for Ontario has made it clear that it is not enough that an appeal raises a question of law. Appeal counsel should frame their applications for leave to appeal accordingly. Counsel arguing the application of settled law to a particular case will generally get stopped at the door, so to speak. See for instance, R. v. Nield, 2017 ONCA 722 (leave to appeal denied);
Presiding over a jury trial probably is the most demanding task asked of a judge. Jury trials are imbued with a dynamic volatility that spins off numerous trial management challenges. Jury questions are one such challenge.Presented with a jury question, a trial judge, with the assistance of counsel, must decipher the question, craft a full and proper response, assess the impact of the response on overall trial fairness, and do all of this under the pressure of a relentless time clock.Introducing an Alternative Theory of Criminal Liability within the Answer to a Jury Question Where an alternative theory of criminal liability, which had not been a live issue at trial, is introduced by the trial judge in his answer to a question from the jury, the trial judge is obliged, at a minimum, to canvass and implement reasonable steps to mitigate any trial prejudice caused to the accused by the injection of a new basis of liability so late in the proceedings. The failure to do so will prejudice the accused’s ability to make full answer and defence to the charge and materially compromised trial fairness. R. v. Grandine, 2017 ONCA 718.