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Gardiner Hearings: Evidence at Sentencing Hearings

Sentencing is part of the trial process. It is no surprise then that certain procedural rights that exist for the accused at earlier parts of the trial, exist at the sentencing phase: the right to counsel, the right to call evidence and cross-examine prosecution witnesses, the right to give evidence him/herself and to address the court. At sentencing, a court is not bound by the same strict rules of evidence that guide the process of determining guilt or innocence.  Flexibility is key.  The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base the sentence.  For instance, hearsay evidence may be accepted where it is found to be credible and trustworthy.  When an accused enters an early guilty plea there will have been no trial and thus no findings of fact by the court.  It is not unusual in such situations for counsel to provide the court with the evidence for sentencing through informal oral submissions. However, when a sentencing court is confronted with conflicting submissions, material, or assertions surrounding the commission of the offence or the personal circumstances of the accused, the court must not simply accept the Crown's version of these unproven facts.  It must hold a formal hearing of the evidence (known as a Gardiner hearing), at which time the facts in dispute must be proven. The Gardiner evidentiary hearing usually involves the calling of witnesses and the hearing of their testimony, as well as the cross-examination of these witnesses.  While the Gardiner hearing may look like a trial, the admissibility of evidence is subject to rules particular to the sentencing process. Section 724(3) of the Criminal Code provides that the party wishing to

By |June 19th, 2019|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Gardiner Hearings: Evidence at Sentencing Hearings

Public Perceptions of the Toronto Police

This week the Toronto Police Services Board released Perceptions of the Toronto Police and Impact of Rule Changes Under Regulation 58/16: A Community Survey.  The survey examines public perceptions of the Toronto Police Service and community views on issues such as racial profiling, bias in policing, and public trust in the city’s law enforcement officers. The survey involved personal interviews using a structured questionnaire and was undertaken over a two-month period (November-December 2017) in various locations across Toronto.  While the 135-page survey provides a baseline against which its metrics may be compared in subsequent years, recency of the survey data can be important to an accurate assessment of our present perceptions about how we are policed. That the survey was released almost a year and a half after the data it relies upon was collected should give us pause for concern.  On the other hand, there appears to be no immediate reason for us to think that attitudes towards policing in Toronto have significantly altered since the time the data was collected.  Some of the survey’s conclusions are as follows: *There is skepticism that bias on the part of police officers can be effectively eliminated with the implementation of new legislation, such as Ontario Regulation 58/16 (which came into force on January 1, 2017 and now governs the practice of “regulated interactions”, such as street checks and carding).  (Survey, p. 9/135). *Forty-two percent of Torontonians agree with the use of physical force by the city’s police officers against members of their community. (Survey, p. 3/135). *Sixty-five percent of Torontonians believe that the city’s police officers can be trusted to treat individuals of their ethnic group fairly. *Sixty-four percent of Torontonians believe that carding does indeed

By |June 2nd, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Public Perceptions of the Toronto Police

Challenging the Warrant: The Ability of the Defence to Cross-examine the Affiant even though it has already done so at the Preliminary Inquiry

Although the defence cannot challenge the validity of a search warrant at the preliminary inquiry, it can seek to cross-examine the affiant of the affidavit in support of the application for the search warrant under the authority of R. v. Dawson (1998), 1998 CanLII 1010 (ON CA). The defence is not obligated to accept cross-examination of the affiant at the preliminary inquiry as a substitute for cross-examination at trial.  When the defence shows a reasonable likelihood that cross-examination of the affiant on the s. 8 application at trial will generate evidence tending to discredit the existence of one or more of the grounds for the issuance of the warrant, the defence is entitled to conduct that cross-examination as part of the s. 8 application at trial regardless of whether that cross-examination will add to the cross-examination conducted at the preliminary inquiry.  R. v. Shivrattan, 2017 ONCA 23 (CanLII) at paras. 53,54 (leave to appeal to the SCC refused, 2017 CanLII 46398).. Stuart O'Connell, O'Connell Law Group. (All rights reserved to author).

By |May 8th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Challenging the Warrant: The Ability of the Defence to Cross-examine the Affiant even though it has already done so at the Preliminary Inquiry

The End of Ontario’s Criminal Injuries Compensation Board

It is not surprising that the consequences of crime fall hardest on its victims.  While it is sometimes difficult to evaluate the extent of the effects of crime, it has been estimated that 67% of the financial burdens resulting from crime--including replacing property and possessions, lost wages, health costs, time off work, funeral costs, and various other out-of-pocket expenses—are borne by the victims of crime.This leads to an important societal question: should we leave victims to assume the greater part of those financial losses which crime has occasioned? Since the late twentieth century, the answer to that question in both the international and domestic spheres has been, increasingly, no. See for instance, The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the U.N. General Assembly on 29 November 1985. A primary means by which government has sought to ameliorate the financial burden of crime on those who were not responsible for it has been through providing victims with financial compensation. Victim compensation is also the earliest type of organized victim assistance in Canada and the United States. With the exception of Nova Scotia, Newfoundland and Labrador, and Nunavut, every province and territory in Canada administers a comprehensive victim financial assistance program. [FN1] In Ontario, the Criminal Injuries Compensation Board is the quasi-judicial administrative tribunal that assesses and provides financial compensation for victims of violent crime.  It was established under the Compensation for Victims of Crime Act (CVCA) in 1971.  Ontario has been unique in its use of an adjudicative model: a specialized administrative tribunal to review cases of criminal injury and provide compensation where appropriate. The Board’s process is often inquisitorial in nature, and it has not

By |May 5th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on The End of Ontario’s Criminal Injuries Compensation Board

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
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