Stuart O'Connell

About Stuart O'Connell

Stuart O’Connell is counsel in association with the Firm on complex Criminal, Civil and Regulatory Defence files, he has been running trials with Jordan Donich since 2013. Mr. O’Connell is a distinguished legal academic and holds a Masters in Law with Distinction. He was a law school professor at the University of Ottawa and is presently completing his PhD in Law at Queen’s University.

Adjourning the Trial When a Witness Fails to Attend

OverviewApplications for a trial adjournment may be made by the Crown or the defence.  It is undisputed that whether an adjournment or a postponement should be granted or not is a discretionary matter for the trial judge: Manhas v. The Queen, 1980 CanLII 172 (SCC, [1980] 1 S.C.R. 591; R. v. Barrette, 1976 CanLII 180 (SCC), , [1977] 2 S.C.R. 121, 29 C.C.C. (2d) 189; R. v. Darville, (1956), 116 C.C.C. 113 (S.C.C.); R. v. MacDonald, 1998 CanLII 18016 (NL CA), [1998] N.J. No. 340 (QL) (C.A.) [reported 132 C.C.C. (3d) 205].The leading case governing trial adjournment applications is that of Darvillev. the Queen, (1956) 116 C.C.C. 113 (S.C.C.) which sets out a straightforward three-part test.  Though Darville remains foundational, the test has been elaborated and expanded upon and may, it appears, include such additional factors as the consideration of the public interest in having a trial on the merits (including the related consideration of the seriousness of the offences charged), and whether there would be a lack of significant prejudice to the accused.Further—in my opinion—where the defence seeks the request, the accused’s right to full answer and defence and even the right to a fair trial, section 11(d) of the Canadian Charter of Rights and Freedoms,may be engaged.  For an overview of the right to full answer and defence see R. v. Mills, [1999] 3 S.C.R. 668Trial Adjournment - The Darville Test On the elements to be considered by a judge when asked to grant an adjournment of a criminal trial due to the absence of a witness, the Supreme Court of Canada provided some guidelines in 1956 in R. v. Darville:( 1)   that the absent witnesses are material witnesses in the case;(2)   that the

By |2023-03-10T15:00:41-05:00December 14th, 2016|0 Comments

A Brief Overview of the Rule in Kienapple

The Kienapple principle provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the more serious offence. This is done by the Court staying the lesser charge/s.The Kienapple principle is designed to protect against undue exercise by the Crown of its power to prosecute and punish.  It applies where there is both a factual and a legal nexus between the offences.  The requisite factual nexus is established if the charges arise out of the same transaction.  The legal nexus is established if the offences constitute a single criminal wrong:  see R. v. Rocheleau, 2013 ONCA 679, at para. 24.

By |2023-03-10T15:02:43-05:00November 18th, 2016|0 Comments