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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.

Withdrawing for Ethical Reasons: Court not to Inquire Further

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal.  In this situation, there is no need for the court to inquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.Assuming that timing is an issue, the court is entitled to inquire further.  Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged.  R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331 at para. 48.  If counsel asserts that ethical reasons (or, to put it more broadly, a breakdown in the client-solicitor relationship) require that he/she no longer act for the client, the trial judge is obliged to order counsel removed without any inquiry into the particulars underlying the request.R. v. Cunningham, at paras. 48-49, 58; R. v. C. (D.D.), 1996 ABCA 303 (CanLII), 110 C.C.C. (3d) 323, at para. 19, leave to appeal refused: [1996] S.C.C.A. No. 453.  Inquiry into the breakdown of the client-solicitor relationship runs a very real risk of revealing communications that are subject to client-solicitor privilege and would put trial counsel in a position where he or she had to compromise the duty of loyalty owed to the client to fully explain the breakdown of the relationship.  It is hard to think of circumstances in which any meaningful inquiry into the reason for the breakdown in the client-solicitor relationship would not potentially compromise the accused’s position and his future defence by other counsel.  R. v. Short, 2018 ONCA 1, at para. 35. Requiring counsel to represent

By |January 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Withdrawing for Ethical Reasons: Court not to Inquire Further

Applications to Remove Counsel of Record & the Need to Hear from the Accused

A client is entitled to discharge counsel at any time for any reason. If a client does not want to be represented by a particular counsel, the court cannot force that representation on the client.On an application by trial counsel to be removed from the record, it is imperative that the client’s position be known to the judge hearing the application. Some inquiry, albeit one carefully circumscribed to avoid entrenching on client-solicitor privilege, is necessary.               R. v. Short, 2018 ONCA 1, at para. 40 (obiter).

By |January 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Applications to Remove Counsel of Record & the Need to Hear from the Accused

Jumping the Crown’s Position on Sentence

A trial judge always retains an overriding discretion to accept or reject the recommendations of counsel about the sentence that should be imposed. A trial judge is entitled to go beyond the Crown’s position on sentence if the sentence imposed is still reasonable. But when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions and provide further authorities. Ideally, the sentencing judge should give reasons for going beyond the Crown’s position. R. v. Grant, 2016 ONCA 639, at para. 164;  See also, R. v. Ibrahim, 2011 ONCA 611, at para. 16 [where reasons were not required]. It is an error in principle for the sentencing judge not to give the parties a chance to make further submissions prior to imposing a sentence above the Crown’s position. R. v. Hagen, 2011 ONCA 749 (CanLII), at para. 5;  R. v. Menary, 2012 ONCA 706 (CanLII), 298 O.A.C. 108, at para. 3; R. v. Ibrahim, 2011 ONCA 611 (CanLII);  See also, R. v. Ipeelee, 2018 ONCA 13. This error in principle entitles an appellate court to consider afresh what constitutes a fit sentence for the offender.

By |January 13th, 2018|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Jumping the Crown’s Position on Sentence

Care and Control of a Stationary Motor Vehicle: Part 1

Under section 253(1) of the Criminal Code, every one commits an offence who operates a motor vehicle or has care or control of a motor vehiclea) while the person’s ability to operate the vehicle is impaired by alcohol or drug; or(b) having a blood-alcohol concentration that exceeds 80 mg of alcohol per 100 ml of blood. The risk of danger is an essential element of “care or control” under s. 253(1) of the Code. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence. R. v. Boudreault, 2012 SCC 56 (CanLII), at para. 10 & 32. Proving Care and Control The Crown may prove “care or control” three ways: 1. prove that the accused was driving and thus necessarily in care or control; 2.  that the accused occupied the driver’s seat of the vehicle triggering the s. 258(1)(a) presumption of care or control subject to rebuttal by the defence; 3.  that the accused had care or control of the vehicle in circumstances that posed a risk of danger If any of the above three prongs are met, the accused will be found to be in care and control of a motor vehicle.   The Statutory Presumption of Care and Control An intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence. [FN1] Section 258(1)(a) of the Code provides a presumption that an accused who occupies the driver’s seat of a motor vehicle is in care or control of that vehicle (as he is presumed to have an intention to drive).  Rebutting the Statutory Presumption of Care and Control That presumption may be rebutted if the accused establishes on a balance

By |December 31st, 2017|Categories: Drinking and Driving Offences, Stuart O'Connell Criminal Blog|Comments Off on Care and Control of a Stationary Motor Vehicle: Part 1

Care and Control of a Motor Vehicle:  Is there a Realistic Risk of Danger?

Under section 253(1) of the Criminal Code, every one commits an offence who operates a motor vehicle or has care or control of a motor vehiclea) while the person’s ability to operate the vehicle is impaired by alcohol or drug; or(b) having a blood-alcohol concentration that exceeds 80 mg of alcohol per 100 ml of blood. The risk of danger is an essential element of “care or control” under s. 253(1) of the Code. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence. R. v. Boudreault, 2012 SCC 56 (CanLII), at para. 10 & 32. Proving Care and Control The Crown may prove “care or control” three ways: 1. prove that the accused was driving and thus necessarily in care or control. 2.  that the accused occupied the driver’s seat of the vehicle triggering the s. 258(1)(a) presumption of care or control subject to rebuttal by the defence. 3.  that the accused had care or control of the vehicle in circumstances that posed a risk of danger If any of the above three prongs are met, the accused will be found to be in care and control of a motor vehicle.   The Statutory Presumption of Care and Control An intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence. [FN1] Section 258(1)(a) of the Code provides a presumption that an accused who occupies the driver’s seat of a motor vehicle is in care or control of that vehicle (as he is presumed to have an intention to drive).  Rebutting the Statutory Presumption of Care and Control That presumption may be rebutted if the accused establishes on a balance

By |December 31st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Care and Control of a Motor Vehicle:  Is there a Realistic Risk of Danger?

Cross-examining a Complainant on a Previous Allegation of Sexual Assault without a Seaboyer Application

Section 276 of the Criminal Code precludes the admission of evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge.If the subject-matter of the proposed evidence falls outside the statutory language, the exclusionary terms of the provision do not apply. R. v. M.T., 2012 ONCA 511 (CanLII), at para. 31. Questions that focus on the fact that the complainant has made a previous allegation of sexual assault, rather than the details of the episode, do not trigger the admissibility rules of section 276. R. v. M.T., 2012 ONCA 511 (CanLII), at para. 34:  “The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant. A previous allegation of sexual assault, without more, will fall outside the section.” R. v. M. (A.G.) (1993), 1993 CanLII 4309 (QC CA). R. v. Gervais, 1990 CanLII 3701 (QC CA), at para. 60 (per Justice Fish, prior to his appointment to the Supreme Court of Canada):Evidence that the complainant has made another allegation of sexual assault, does not, without more, comprise evidence that the complainant has engaged in sexual activity within the meaning of section 276.  This remains good law (see above) notwithstanding R. v. Gervais was decided a year before the section 276 provisions, as they then stood, were struck down by the Supreme Court of Canada in R. v. Seaboyer, 1991 CanLII 76 (SCC).  The current version of 276 was enacted in response to Seaboyer. Where counsel seeks to question a complainant on the fact she/he has made another allegation of sexual assault and proceeds without an application under section 276, the trial judge

By |December 22nd, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Cross-examining a Complainant on a Previous Allegation of Sexual Assault without a Seaboyer Application

Rejecting a Consent Release

Section 515(3) of the Code requires a justice to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case. This is why bail hearings are sometimes referred to as “show cause” hearings.Criminal Code.Section 515(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) [types of release on recognizance] unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made. There are many instances where notwithstanding the Crown’s agreement with defence counsel, or even when the Crown consents to release, where the Court must intervene as part of its supervisory or review jurisdiction to make decisions contrary to such agreements or joint submissions. R. v. D.C.G.S., 2003 ABQB 420 (CanLII). Consent release is an efficient method of achieving the release of an accused.  Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release.  R. v. Antic, [2017] 1 SCR 509, at para. 68. It follows then that a justice may find that the evidence received at the bail hearing, in and of itself, meets the threshold of showing cause.  The Crown’s position on release is not determinative. However, rejecting a consent release is likely to be rare, as a justice cannot impose a more restrictive form of release unless, on balance, that more onerous form of release is necessary having regard to the statutory criteria.[FN]

By |December 21st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rejecting a Consent Release

When the Accused’s Evidence is not Believed

Post-Offence Conduct as Circumstantial Evidence of GuiltEvidence of what an accused has said or done after an offence has been committed is often a vital part of the case for the Crown. This is circumstantial evidence that looks backward from what happened later to something that occurred before. The subsequent conduct may take several forms: for instance, flight, destruction of evidence, change of appearance.R. v. B.(P.), 2015 ONCA 738 (CanLII), at para. 166.  And sometimes that post-offence conduct can involve giving false evidence in court for the purpose of evading criminal responsibility. The fact that a witness is disbelieved does not prove the opposite of what he asserted. The fact that a witness’s evidence is disbelieved on a particular point may have an impact on his overall credibility, but in order to prove the opposite of what he said some positive evidence is needed. R. v O’Connor, 2002 CanLII 3540 (ONCA) at paras. 17-20; R. v. Wright, 2017 ONCA 560 (CanLII), at para. 38. Fabrication versus Disbelief The law distinguishes between an exculpatory statement which is disbelieved and one that is found to have been fabricated or concocted to avoid culpability. A statement which is merely disbelieved is not evidence that strengthens the Crown’s case. However, if the Crown can establish, through extrinsic or independent evidence, that an exculpatory statement was fabricated or concocted to conceal involvement in the offence, the statement evidence can be capable of supporting an inference of guilt. R v. O’Connor;  R. v. Wright, at para. 38. Or as the Court of Appeal for Ontario succinctly put it as recently as this week: It is an error of law to draw an inference of guilt from the disbelief of the accused’s

By |December 20th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on When the Accused’s Evidence is not Believed

Memories Formed in Childhood But Recounted in Adulthood

The credibility of every witness who testifies before the courts, and reliability of their evidence must of course be carefully assessed but assessed using common sense that takes into account the age of the witness when the alleged events occurred and the age of the witness when testifying.Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.              R. v. W. (R.), [1992] 2 S.C.R. 122. Credibility Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. R. v. W. (R.), [1992] 2 S.C.R. 122. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. A.M., 2014 ONCA 769 (CanLII), at para. 11. A “central inconsistency” in the testimony of an adult witness about a childhood event, however, cannot be approached with the “same latitude as a peripheral inconsistency. Reliability The issue of the reliability of a complainant’s evidence is heightened where the complainant testifies to events she alleges occurred several decades before, when she was a young child.R. v. A.N., 2017 ONCA 647 (CanLII), at para. 17 [alleged incidents occurring 33 years prior].

By |December 20th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Memories Formed in Childhood But Recounted in Adulthood

Text Messages as Evidence

An estimated three billion human beings own cell phones, sending more than a trillion text messages every year. Not all of these messages are benign.Sometimes, when an accused is arrested, his/her cellphone is searched, either incident to arrest or under the authority of a search warrant (or both).  And, as you might expect, the messages and pictures on that cellphone sometimes end up as Crown evidence in a criminal trial.Here’s how. Are Text Messages Hearsay? As with all admissibility questions, the first issue to be addressed is the purpose for which the evidence is sought to be tendered. Text messages are documents containing out-of-court statements. However — No evidence is hearsay on its face.  Admissibility depends on the purpose for which the evidence is sought to be admitted.  Evidence is hearsay — and presumptively inadmissible — if it is tendered to make proof of the truth of its contents. R. v. Baldree, 2013 SCC 35 (CanLII), at para. 36. So then, text messages are not necessarily hearsay: it depends on the purpose for which they are tendered. Text messages can also be admitted, for instance, as circumstantial evidence under the documents in possession rule,for the non-hearsay purpose of connecting the accused to a location, transactions, or people, or demonstrating knowledge, state of mind and so on. But where that occurs, the texts may not be used to prove the truth of their contents. R. v. Bridgman, 2017 ONCA 940, at para. 76. Out-going text messages Hearsay is presumptively inadmissible because of the accepted dangers arising from this type of evidence.  The presumption can be displaced only where the evidence fits within a categorical exception to the rule or satisfies the principled exception: R. v. Khelawon,

By |December 6th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Text Messages as Evidence
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