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Kienapple and Convictions for Forcible Confinement and Sexual Assault

Where the accused is convicted of both unlawful confinement (s. 279(2), Code) and sexual assault (s. 271, Code), and the confinement of the complainant forms an integral part of the conviction for sexual assault, a sufficient factual and legal nexus between the two offences exists to trigger the application of the Kienapple principle. The conviction on the charge of unlawful confinement is, therefore, to be conditionally stayed. R. v. Palmer-Coke, 2019 ONCA 106 (obiter); R. v. Alli, 1996 CanLII 363 (Ont. C.A.): “We are, however, of the opinion that any confinement of the complainant formed an integral part of the convictions for sexual assault or assault simpliciter. By virtue of the principle enunciated c the conviction on the charge of unlawful confinement cannot stand. (See R. v. D. (S.) (1992), 1992 CanLII 7556 (ON CA), 10 O.R. (3d) 402 (Ont. C.A.)).” See generally R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Written by Stuart O’Connell (All rights reserved to author).

By |January 17th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Kienapple and Convictions for Forcible Confinement and Sexual Assault

Hidden Cameras in the Common Areas of Condominiums

A condominium board has authority to cooperate with the police but only to a reasonable extent. As the Court of Appeal for Ontario tells us in R. v. Yu, 2019 ONCA 942, what is reasonable is informed by the constitutionally-protected reasonable privacy expectations of those who reside at the condominium. Under provincial law, a condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation on behalf of the owners. [FN1]  The board is elected by the owners to manage these affairs in their best interests. [FN2] This statutory duty confers a responsibility and authority on the board to act as the decision maker for the owners as a collective. R. v. Yu, at para. 91. The condominium board and, by extension, property management, are entrusted with security of the building and the residents. Residents reasonably expect that a property manager could consent to police entry into the building and its hallways and, in fact, would be likely to consent to police entry if informed of the possibility of criminal activity within the building. R. v.Yu, at para. 92. While condominium residents may expect to be under surveillance by visible cameras installed by management in common areas of the corporation and there to assist management in carrying out its responsibilities, residents do not reasonably expect to be under surveillance by “hidden cameras,” much less hidden cameras installed by the police. See R. v. Yu, 2019 ONCA 942, at paras. 124, 126, 128. Surreptitious state recording is highly, if not uniquely, invasive of individual privacy. Because of the heightened privacy interests at stake, surreptitious video recording by the police cannot be authorized by the consent of the condominium board

By |December 9th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Hidden Cameras in the Common Areas of Condominiums

Myths and Stereotypes about Sexual Assault Victims: Expected Conduct

There is no rule as to how victims of sexual assault are apt to behave. A trial judge makes a fatal error in reasoning when that judge bases findings of credibility on assumptions that are unsupported by the evidence. It is an error of law to rely on pre-conceived views about how a sexual assault victim would behave. R. v. D.D., 2000 SCC 43 (CanLII),  [2000] 2 S.C.R. 275 at para. 65;  R. v. A.R.J.D., 2018 SCC 6 (CanLII), [2018] 1 S.C.R. 218, at para. 2. Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what women will and will not do may impact a judge’s objective deliberation of the reasonable doubt standard. R. v. J.L., 2018 ONCA 756 (CanLII), at para. 47: where the trial judge improperly relied on a behavioural assumption in assessing credibility, viz: "I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity." See also R. v. Mah, 2002 NSCA 99 (CanLII), [2002] N.S.J. No. 349, at para. 75, per Cromwell J.A. (as he then was). Reliance on stereotypical assumptions is not always immediately obvious.  Sometimes the impermissible use of stereotypes is opaque, cloaked with the faux imprimatur of common sense. See R. v. A.B.A. 2019 ONCA 124 (CanLII), 372 C.C.C. (3d) 301, at para. 7. To suggest that stereotypical thinking is merely logic or common sense is a licence for it to continue unmasked and unabated.              R. v A.R.D., 2017 ABCA 237 (CanLII), at para. 9 (per Paperny and Schutz JJ.A). Among others, the following have been found to be

By |December 1st, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Myths and Stereotypes about Sexual Assault Victims: Expected Conduct

Myths and Stereotypes about Sexual Assault Victims: Absence of Immediate Reporting

There are various reasons why a victim of sexual abuse might delay in making an allegation of sexual abuse or even not disclose the abuse at all: embarrassment, fear, guilt, a lack of understanding and knowledge, etc. It is unacceptable for a court to rely on the stereotypical view that victims of sexual aggression are likely to immediately report the acts, and conversely, to conclude that the lack of immediate reporting reflects either absence of assaultive or non-consensual behaviour. R. v. D. D., 2000 2 S.C.R. 275, at para. 63; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 136. In assessing credibility, the timing of the complaint is simply one circumstance to consider in the context of the case. Delayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual sexual encounter is true or raises a reasonable doubt. R. v. Lacombe, 2019 ONCA 938, at para. 42; R. v. D.D., 2000 2 S.C.R. 275, at para. 65. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |November 29th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Myths and Stereotypes about Sexual Assault Victims: Absence of Immediate Reporting

Myths and Stereotypes about Sexual Assault Victims: Dress

Myths and stereotypes about sexual assault victims have no place in a rational and just system of law. Relying on myths and stereotypes to assess the credibility of complainants jeopardizes the court's truth-finding function. R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2. Reliance on discredited stereotypes in the assessment of credibility is an error of law.                 A.R.D., 2017 ABCA 237, at para. 9. Dress The stereotypical assumption that “if a woman is not modestly dressed, she is deemed to consent” no longer finds a place in Canadian law”.  R. v. Ewanchuk, 1999 SCC 71, [1999] 1 S.C.R. 330. In R. v. Lacombe, 2019 ONCA 938, the complainant wore loose-fitting pajamas with no bra or underwear when she met the accused on two successive occasions during which, she claimed, the accused sexually touched her without her consent. The trial judge, in his assessment of the complainant’s credibility on the issue of whether the complainant had consented to the touching, found the complainant’s state of dress to be “significant” (though he did not explain how). On a successful Crown appeal, the Court of Appeal for Ontario concluded that the trial judge had relied on impermissible reasoning:  the significance that the trial judge imputed to what the complainant chose to wear when she interacted with the accused relied on impermissible reasoning, as it was rooted in a discredited stereotype. Dress does not signify consent, nor does it justify assaultive behavior. R. v. Lacombe, 2019 ONCA 938, at para. 39. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |November 29th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Myths and Stereotypes about Sexual Assault Victims: Dress

Pleading Guilty Without Knowing that you may be Deported

To be valid, a guilty plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and “legally relevant collateral consequences” of that plea.            R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-4.Legally relevant collateral consequences include immigration consequences.  To set aside a presumptively valid plea, the appellant must establish that:  (i)              he was unaware of a legally relevant consequence of the plea, assessed objectively; and (ii)            he has suffered prejudice, in the sense that he would have acted differently had he been properly made aware of the consequences. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33. Where deportation is within the range of possible consequences, and where the accused would not otherwise have obtained that information (for instance, by consulting with an immigration lawyer),  defence counsel should go further than simply informing the client that serious immigration consequences might follow from the guilty plea.  Counsel should specifically inform the client as to the prospect of deportation. See R. v. Pineda, 2019 ONCA 935, where the Court of Appeal for Ontario found that the appellant had not been informed by his counsel and was not otherwise aware of the potentially serious immigration consequences arising from his guilty pleas, specifically that he could be deported without a right of appeal.  Guilty pleas and consequent convictions set aside.  New trial ordered.Written by Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |November 27th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Pleading Guilty Without Knowing that you may be Deported

Preliminary Inquiry: Who Gets One, Who Doesn’t

The primary purpose of a preliminary inquiry is to screen out meritless allegations. A preliminary inquiry gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence to justify the case going forward to trial. On September 19, 2019 new amendments to the Criminal Code came into force. [FN1] These amendments substantially limit the availability of preliminary inquiries. Prior to the amendments, anyone in Ontario who had elected trial in the Superior Court of Justice (judge and jury, or judge alone) could request and, upon request, was entitled to a preliminary inquiry.  The recent amendments limit that entitlement to offences that provide for a sentence of at least 14 years’ imprisonment. Those who have Requested a Preliminary Inquiry Before September 19, 2019 The amendments to preliminary inquiries do not apply to an accused who is charged with an indictable electable offence and who has elected trial in the Superior Court of Justice and requested a preliminary inquiry prior to September 19, 2019 but has not yet had that preliminary inquiry.  That person has a right to request and is entitled to have a preliminary inquiry. [FN2]                R. v. R.S., 2019 ONCA 906, at para. 4. The elimination of the preliminary inquiry through the amendments affects a substantive right of those who have requested but not yet received a preliminary inquiry prior to September 19, 2019: the entitlement to be discharged at a preliminary inquiry if the Crown cannot meet its evidentiary burden.  Legislation that interferes with acquired substantive rights is presumptively prospective and only rebutted where Parliament has clearly signaled that the legislation should have retrospective effect.  Parliament had not evinced such an intention.                 R. v. R.S.,

By |November 19th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Preliminary Inquiry: Who Gets One, Who Doesn’t

The Discretion of a Judge to Grant an Adjournment

The ability of a court to grant a simple adjournment is not necessarily set out in any rule or statute; yet a court could not function if it did not have control over this very basic aspect of its own process.Even if it is not specifically set out in a rule, regulation or statute, the ability of a court to grant an adjournment exists for both superior courts and inferior courts within the common law jurisdiction of a court to control its own process.A trial judge has a discretion in determining whether or not to grant an adjournment requested by either Crown or the defence.              See R. v. Violette, 2008 BCSC 472 (CanLII);             Manhas v. The Queen, [1980] 1 SCR 591, 1980 CanLII 172 (SCC).  The test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations. Reza v. Canada, 1994 CanLII 91 (SCC). This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings. R. v. Barrette, 1976 CanLII 180 (SCC), at p. 125 (per Pigeon, J.). It may be prudent for trial judges to heed the words of Prowse J.A. in R. v. Gilbert (1974) ALTASCAD 85 (CanLII): In reaching a decision as to whether an adjournment should be granted, the Court is bound to consider the interests of the accused, the witnesses and the public, interests which may from time to time be in conflict.  However, all those interests must be considered and due weight given to each, and the decision, whatever it should be, such that

By |November 10th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Discretion of a Judge to Grant an Adjournment

Cross-Examining the Accused about why the Complainant Would Falsely Accuse Him

Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper. R. v. Rose, 2001 CanLII 24079 (ON CA), at para. 27: It is improper to call upon an accused to comment on the credibility of his accusers. See also R. v. L.L., 2009 ONCA 413 (CanLII), at paras. 15-16. The concern with this line of questioning is two-fold: 1.       It is unfair to ask an accused to speculate about a witness’s motives; 2.      These questions risk shifting the burden of proof. The burden is on the Crown to prove beyond a reasonable doubt that a complainant’s allegations are true. Yet questions to an accused about a complainant’s motives may cause the trier of fact to focus on whether the accused can provide an explanation for why a complainant would make false allegations, and find the accused guilty if a credible explanation is not forthcoming. R. v. T.M., 2014 ONCA 854, at paras. 37-38. The fact that  it may be appropriate for the police as part of an investigation to ask the accused to explain why the complainant made the allegations against him does not mean that portions of an accused's statement in which such questions are asked are properly admissible at trial. R. v. L.(L.), 2009 ONCA 413, 96 O.R. (3d) 412, at para. 17. R. v. F.(C.), [1996] CanLII 623 (Ont. C.A.).  The Crown is entitled to cross-examine on inconsistencies between what the accused stated to police as the complainant s motive for accusing him and what he later states in examination-in-chief.   R. v. M.S., 2019 ONCA 869, at para. 8. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |November 9th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Cross-Examining the Accused about why the Complainant Would Falsely Accuse Him

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