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Stuart O'Connell works in association with the Firm.

Evidence of an Accused’s Prior Sexual History

Historically, evidence of an accused’s prior sexual history was much more restricted than comparable evidence relative to a complainant.  That is no longer the case, however.   Section 276 the Criminal Code specifically restricts the admissibility of evidence of a complainant’s sexual history in a prosecution for sexual assault. The Criminal Code does not contain a similar provision prohibiting evidence of the sexual history of an accused.  Any such restriction, therefore, must depend on general principles of the law of evidence or on concerns of trial fairness. Evidence of an accused’s sexual history must be treated cautiously, and not routinely admitted. The law of evidence restricts the admissibility of evidence of character, and there is a particular danger that evidence of sexual history will be misused. Where such evidence is admissible for some purpose, precautions should be taken to ensure that it is not misused to simply label the accused as a person unworthy of credit or respect. R. v. Grant, 2019 BCCA 369 (CanLII), at para. 30. Courts cannot countenance an asymmetry in which tenuously relevant evidence of the complainant’s sexual history is excluded, but equally dubious evidence of the accused’s sexual history is used to draw questionable inferences. R. v. Grant, at para. 31. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |November 4th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Evidence of an Accused’s Prior Sexual History

Sentencing a Crime Which Occurs Within a Cluster of Other Crimes

Sentencing does not occur in the abstract.  It is very much an individualized process ultimately involving an assessment of the circumstances of the offence and the individual offender.The circumstances in which an offence was committed bears on sentence, as these circumstances may affect the gravity of the offence and the degree of responsibility of the offender. A sentencing court is entitled to treat the commission of multiple offences at the same time as part as the overall context in which the offences have been committed. And this may increase the seriousness of each offence. See R. v. Simeunovich, 2019 ONCA 856, at para. 11. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |November 3rd, 2019|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Sentencing a Crime Which Occurs Within a Cluster of Other Crimes

Delayed Access to Counsel

Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”.Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel. The section 10(b) Charter right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention.  R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41. The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 45. An Applicant Asserting a 10(b) Breach is not Required to give Evidence as to why he Requires his Right to be Respected A detainee is not required to offer direct evidence about why he requires access to counsel without delay.   R. v. Noel, 2019 ONCA 860, at para. 27. The Impact of Delayed Access to Counsel In assessing the impact of such breaches under the Grant framework for section 24(2) of the Charter, it is not appropriate for courts to plumb the content and significance

By |November 2nd, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Delayed Access to Counsel

The Current Framework for Determining a Reasonable Expectation of Privacy: The Basics

The principal purpose of section 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State.  Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of the provision. R. v. Law, 2002 SCC 10 (CanLII), at para. 15. A section 8 analysis consists of two steps:  (1) whether the state action constitutes a search; and if so, (2) whether the search was reasonable. R. v. Law, 2002 SCC 10 (CanLII). A search occurs when state conduct interferes with an individual’s reasonable expectation of privacy. Hunter v. Southam Inc., 1984 CanLII 33 (SCC);  R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 12; R. v. Law, 2002 SCC 10 (CanLII), at para. 15. The Doctrinal Framework for Determining a Reasonable Expectation of Privacy Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”.  R. v. Cole, 2012 SCC 53 (CanLII), at para. 34; R. v. Spencer, 2014 SCC 43 (CanLII), at para. 16; R. v. Tessling, 2004 SCC 67 (CanLII), at para. 18.  To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable. R. v. Edwards, 1996 CanLII 255 (SCC), at para 45; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), at pp. 159-60; Katz v. United States, 389 U.S. 347 (1967), at p. 361, per Harlan J., concurring.  Whether the claimant had a reasonable expectation of privacy must be assessed

By |October 24th, 2019|Categories: Reasonable Expectation of Privacy, Stuart O'Connell Criminal Blog|Comments Off on The Current Framework for Determining a Reasonable Expectation of Privacy: The Basics

Post-Verdict Delay Gets its Own Ceiling: R. v. Jordan

In many criminal cases, particularly the more serious cases, sentencing will, of necessity, take time, sometimes a matter of months. Dangerous offender applications, situations in which expert reports are required or extensive evidence is tendered, for instance,  significantly lengthen the sentencing process.   While the Jordan analysis does apply to post-verdict delay, the presumptive ceilings established in Jordan do not include post-verdict delay. Post-verdict delay, for the purposes of applying a presumptive ceiling, is to be assessed separately from pre-verdict delay and is subject to its own presumptive ceiling.                 R. v. Charley, 2019 ONCA 726. The Court of Appeal for Ontario in R. v. Charley fixed that ceiling at five months. Five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls to the Crown to justify the delay. Where a section 11(b) breach occurs prior to verdict, a stay of proceedings is the only available remedy. This is settled law. However, where section 11(b) has been breached post-verdict, the appropriate remedy remains an open question.             Stuart O'Connell, O'Connell Law Group (All rights reserved to author). FN: Several appellate courts in addition to the ONCA have held that the presumptive ceilings in Jordan run from the laying of the charge to the verdict or anticipated date of the verdict and not to the date of sentence: see S. C.W., 2018 BCCA 346 at para 34; R. v. Rode, 2019 SKCA 17 (CanLII), leave to appeal refused, [2019] S.C.C.A. No. 112; R. v. Le compte, 2018 NBCA 33 (CanLII); R. v. Rice, 2018 QCCA 198 (CanLII).

By |October 13th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Post-Verdict Delay Gets its Own Ceiling: R. v. Jordan

Can Police Arrest Someone Acting Lawfully in Order to Prevent an Apprehended Breach of Peace by Others?

The police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law. Otherwise they act unlawfully.To determine whether a particular police action that interferes with individual liberty is authorized at common law, the ancillary powers doctrine must be applied. Fundamental to this doctrine is whether the police action is reasonably necessary in order to fulfil a statutory or common law duty of police (for instance, preserving the peace, preventing crime and protecting life and property). In Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223, the Court of Appeal for Ontario accepted (in obiter) that the police have a common law power of arrest to prevent an apprehended breach of the peace, provided that the apprehended breach is imminent and the risk of it occurring is substantial. Writing for the Supreme Court of Canada in Fleming v. Ontario, 2019 SCC 45, at para. 60, Justice Côté (also writing in obiter) noted, “While it is not necessary to decide this in the instant case, I seriously question whether a common law power of this nature would still be necessary in Canada today.” However, Justice Côté  was clear that there is no common law power to arrest someone who is acting lawfully to prevent an apprehended breach of peace by other persons.  Lawful conduct does not become criminal because a natural and probable result of that conduct will be to provoke others to violent retributive action. While the presence of

By |October 10th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Can Police Arrest Someone Acting Lawfully in Order to Prevent an Apprehended Breach of Peace by Others?

When a Trial Judge Offers an Opinion on a Contested Fact: Jury Trial

In charging juries, trial judges are obliged to review the substantial parts of the evidence and relate that evidence to the issues the jurors must decide.Beyond summarizing the evidence, a trial judge is permitted to opine on the evidence adduced at trial subject to certain limits. The overarching principle is fairness. Within this principle of fairness is the recognition that the jury must remain the arbiter of the facts and that any comments made by the trial judge cannot amount to a rebuttal of the defence address to the jury or unfairly denigrate or undermine the position of the defence. In R. v. Walker, 2019 ONCA 806, the trial judge offended this rule by offering an opinion on a critical piece of evidence that was stronger than the position the Crown had been prepared to advance: the Crown had conceded that a gun was not clearly identifiable in security video footage, while the trial judge opined to the jury that a gun was identifiable in the video.  The Crown withdrew its concession and in closing took a position with respect to the gun that aligned with the judge’s. The Court of Appeal for Ontario held that the trial judge’s comment rendered the trial unfair, as it had profoundly impacted the course of argument on a critical piece of evidence. Stuart O’Connell, O’Connell Law Group (All rights reserved to author). See R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 108-10 (per Watt J.A.). R. v. Lawes (2006), 80 O.R. (3d) 192 (C.A.), at para. 23, leave to appeal refused, [2006] S.C.C.A. No. 175, (per Rouleau J.A.).

By |October 9th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on When a Trial Judge Offers an Opinion on a Contested Fact: Jury Trial

Credibility v. Reliability (Part 2)

Credibility and reliability are not the same thing.  "Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accuratelyi.                 observe; ii.                recall; and iii.               recount events in issue. Thus, credibility is not a proxy for reliability: a credible witness may give unreliable evidence. Like credibility, reliability is a factual determination. Evaluations of witness credibility and the reliability of evidence are within the province of the trial judge, as it is the trial judge who has the opportunity to hear and observe all of the witnesses. While a trial judge’s findings on the credibility and reliability are entitled to deferencea failure of the trial judge to articulate how credibility or reliability concerns are resolved, particularly in the face of significant inconsistencies in a complainant’s testimony, may constitute a reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt. Stuart O’Connell, O’Connell Law Group (All rights reserved to author). R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. H.C., at para. 41; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 526. R. v. Slatter, 2019 ONCA 807, at para. 118, per Pepall J.A. (dissenting, but not on this point). R. v. Slatter, 2019 ONCA 807, at paras. 70-72; R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 31; See also R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18: See also R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at para. 35: “major inconsistencies in the evidence of material witnesses” should be addressed and explained.

By |October 9th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Credibility v. Reliability (Part 2)

Searches that Impede Freedom of Expression

Freedom of expression protects listeners as well as speakers, particularly in the context of members of the public receiving information about the activities of public institutions.Langenfeld v. TPSB, 2018 ONSC 3447, at para. 51. Where the law provides that a meeting of a government body is open to the public, the right of an individual to attend the meeting and listen to the deliberations, and if the procedures of the government body permit public participation, to make submissions, is protected under the Canadian Charter of Rights and Freedoms by the s. 2(b)  right of freedom of expression. Langenfeld v. TPSB, 2018 ONSC 3447, at para. 51. A search of the person can have the effect of imposing a limit on the exercise of one’s right to freedom of expression that will, subject to s. 1, infringe s. 2(b) of the Charter, for instance, when a public authority requires a person to submit to a search as a precondition to that person engaging in an expressive activity, such as attendance at a public meeting of a government body.  Langenfeld v. Toronto Police Services Board, 2019 ONCA 716. In June 2017 the Chief of Police of the Toronto Police Service implemented a security protocol requiring all members of the public who wish to enter the police headquarters building at 40 College Street to submit to a search.  The search involves the individual being “wanded” with a metal detecting wand, and having any bags manually searched. Importantly, 40 College Street building is also where the Toronto Police Services Board holds its monthly public meetings.  In Langenfeld v. Toronto Police Services Board, 2019 ONCA 716 the appellant, who sought to attend the monthly public meetings of the TPSB, argued that

By |September 18th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Searches that Impede Freedom of Expression

1-year Mandatory Minimum for Sexual Interference Struck Down by ONCA

Section 12 of the Charter provides, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”A sentence will violate section 12 where it is grossly disproportionate to a fit punishment in the circumstances.  A sentence is at greater risk of being grossly disproportionate where the offence captures a wide range of conduct and circumstances.  See R v Forcillo, 2018 ONCA 402 (CanLII). Sexual interference is such an offence as it captures a broad range of conduct from a touch “to the worst forms of human degradation.”  R v Sandercock, 1985 ABCA 218 (CanLII) at para 11. The issue of the constitutionality of the mandatory minimum for the indictable offence of sexual interference (s. 151(a) of the Criminal Code) has recently been considered by six courts of appeal across the country [FN]: 1.       the Quebec Court of Appeal in Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400; 2.      the Nova Scotia Court of Appeal in R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; 3.      the Manitoba Court of Appeal in R. v. JED, 2018 MBCA 123, 368 C.C.C. (3d) 212; 4.      the British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379; 5.      the Alberta Court of Appeal in R. v. Ford, 2019 ABCA 87, 371 C.C.C. (3d) 250; and 6.      the Court of Appeal for Ontario in R. v. B.J.T., 2019 ONCA 694 (September 6, 2019). In all six cases, the courts found that the one-year mandatory minimum sentence required by s. 151 of the Criminal Code contravened s. 12 of the Charter, being cruel and unusual punishment.  Written by Stuart O’Connell, O’Connell Law Group. [FN] The section 151 offence

By |September 6th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on 1-year Mandatory Minimum for Sexual Interference Struck Down by ONCA