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Legal Advice to Police: No Duty of Care Owed by Crown Attorneys

Crown Attorneys do not owe the police a duty of care in respect of the legal advice they provide to them. Smith v. Ontario (Attorney General), 2019 ONCA 651. In order to determine whether or not a duty of care should be recognized, it is necessary to follow the two-stage Anns/Cooper test. At the first stage of this legal test, the question is whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. [FN]  If this is established, a prima facie duty of care arises and the analysis proceeds to the second stage, which asks whether there are policy reasons why this prima facie duty of care should not be recognized. Mutual independence is the defining feature of the relationship between the police and Crown Attorneys. The principles of police independence and prosecutorial independence are well established within our legal system.  While cooperation is also a feature of the relationship between police and Crown Attorneys, it is important to maintain their separate and independent functions.  In their quasi-judicial role as “ministers of justice”, Crown Attorneys owe duties to the public at large. Imposing a private law duty of care risks putting Crown Attorneys in a conflict of interest situation.  The formation of a solicitor-client relationship between the RCMP and the Department of Justice lawyer from whom the RCMP officers sought legal advice does not impose on Crown Attorneys a private law duty of care in giving legal advice.  Though the Court does not explicitly state it, it would appear that the functional separation of police and Crown Attorneys as well as the principle of prosecutorial immunity resist recognizing a private law duty,

By |August 15th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Legal Advice to Police: No Duty of Care Owed by Crown Attorneys

HIV+ Status and Attempted Murder

If a person consents to sexual activity knowing the partner is HIV positive, that consent is an answer to any criminal charge in respect of which the Crown must prove the absence of consent. Those charges would include assault, sexual assault, aggravated assault, and aggravated sexual assault.However, there are many such offences, including attempted murder, that do not require proof of the absence of consent.  Anyone who intends to kill someone else and does something beyond preparation to bring that result about, is not morally blameless, but rather a would-be murder who is properly accountable under the criminal law.  A complainant’s consent to have sex with a person he knows is HIV positive does not negate or vitiate any essential element of the offence of attempted murder.  It is very unlikely, however, that a court could find that an HIV+ accused who had sex with another person had the specific intent to kill (which is required for the offence of attempted murder), as intent to kill requires a finding beyond a reasonable doubt that either: 1. the accused’s purpose was to kill another (either as an end in itself or as a means to achieving some further end), or  2. the accused decided to commit an act believing, to a virtual certainty, that the act will cause the death of another.   R. v. Boone, 2019 ONCA 652 Stuart O’Connell

By |August 12th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on HIV+ Status and Attempted Murder

Not Lying in Court: Not Relevant to Sentence

[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]It is improper to assign sentencing benefits because accused persons have foregone their right to testify in their own defence. This sends an inappropriate message.  In R. v. Claros, 2019 ONCA 626, the Court of Appeal for Ontario held that the trial judge had erred in principle in treating as mitigating the fact that the accused did not testify in his own defence and "did not lie about anything or try to mislead [the court].” Honesty with the court is something that is expected and required by law.

By |July 25th, 2019|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Not Lying in Court: Not Relevant to Sentence

Recommended Jury Instruction in Sex Assault Trials: Improper Speculation about the Complainant’s Prior Sexual Activity

[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]Section 276(1) of the Criminal Code sets out an absolute bar against introducing evidence of the complainant’s prior sexual activity for the purpose of drawing either of two prohibited inferences: that, by reason of the sexual nature of that activity, the complainant is (a) more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) less worthy of belief.Further, where an accused seeks to introduce such evidence of the complainant’s prior sexual activity for some other purpose, that evidence is presumptively inadmissible, under s. 276(2).  Thus, evidence that the accused and the complainant were involved in a sexual relationship will not always be put before the jury. It may be that in the course of a trial the jury will hear other evidence that (while not constituting evidence of the complainant’s prior sexual activity) results in the jury conjecturing that there was a sexual relationship between the accused and the complainant.  An obvious example of this is when the jury hears that the accused and the complainant are or have been married. The danger of such evidence is that if the jury speculates that there was a sexual relationship, they may involve themselves in the prohibited reasoning that 276 seeks to protect against. (This danger is likely heightened, in my opinion, when the accused advances a defence of  honest but mistaken belief in consent).  In Canada, jurors are prohibited from disclosing the content of their deliberation. [See section 649, Criminal Code]. 

By |July 20th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Recommended Jury Instruction in Sex Assault Trials: Improper Speculation about the Complainant’s Prior Sexual Activity

Bail Provisions Apply to Peace Bond Proceedings

[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]A Criminal Code peace bond is an instrument of preventative justice.  Specifically, it is an order from a judge to keep the peace, be of good behaviour and abide by certain conditions. A peace bond may be ordered where the judge is satisfied on the evidence that an informant has reasonable grounds to fear that the defendant will cause harm to another person. [FN1] The Criminal Code’s judicial interim release (“JIR”) provisions, commonly referred to as the bail provisions, are found in Part XVI of the Criminal Code: “Compelling Appearance of Accused Before a Justice and Interim Release”. The JIR provisions require a judge to release an accused person pending trial without conditions unless the Crown can demonstrate why some more restrictive measure is necessary (for example, an order to abide by interim conditions, or pre-trial custody). These JIR provisions apply, with necessary modifications, to all Criminal Code peace bond proceedings. R, v. Penunsi,  2019 SCC 39, at para. 1.  Instead of reproducing the JIR procedures of Part XVI in the peace bond provisions of the Criminal Code, Parliament has chosen to apply the relevant provisions regarding compelling attendance to the peace bond scheme via a series of incorporating provisions: sections 810.2(8), 810(5), and 795.  [FN2] When applying Part XVI to peace bond proceedings, any variation of “accused charged with an offence” is to be substituted with an appropriate variation of “defendant named in a peace bond Information”. [FN3] One consequence of the JIR provisions applying to the peace bond

By |July 17th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Bail Provisions Apply to Peace Bond Proceedings

Solicitor-Client Privilege: Use of Improperly Disclosed Privileged Information

[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation] Information improperly disclosed to the trier of fact in breach of solicitor-client privilege cannot be used by the trier of fact to support a conviction.R. v. Olusoga, 2019 ONCA 565. The proper functioning of the adversarial system depends on the assurance, given to every accused, that communications with their lawyer for the purpose of receiving legal advice are, subject to certain exceptions, privileged. In Olusoga, defence counsel, in explaining to the trial judge why he had not put the appellant’s version of events to the complainant during her testimony (as was required by the rule in Browne v. Dunn), divulged that he expected that the appellant would testify to a different version of events.  This disclosure was in breach of solicitor-client privilege. The trial judge’s use of that privileged information in his assessment of the appellant’s credibility occasioned a miscarriage of justice.

By |July 17th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Solicitor-Client Privilege: Use of Improperly Disclosed Privileged Information

Ontario’s HTA Vehicle Stop Power must not be Used as a Pretext to Investigate a Crime

[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]The Exercise of a Power under the HTA must be for a Road Safety Purpose  Under Ontario’s Highway Traffic Act (HTA), the police broad powers to stop motor vehicles for highway regulation and safety purposes, and, in some circumstances, to arrest drivers of motor vehicles.  [FN1] The Legislature granted the police these powers for the purpose of ensuring road safety.  The police are not free to use these powers for purposes other than highway regulation and safety. Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA); R. v. Mayor, 2019 ONCA 578, at para. 6. If the police do not have road safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the vehicle stop.  If the police cannot point to any other legal authority for the stop, the stop will not be authorized by law and so will violate s.9 of the Charter.  R. v. Brown, supra; R. v. Nolet, 2010 SCC 24 (CanLII), [2010] 1 S.C.R. 851, at para. 36; R. v. Humphrey, 2011 ONSC 3024 (CanLII), 237 C.R.R. (2d) 109. Dual Purpose Stops OK As long as the police have a road safety purpose subjectively in mind, they may also have other legitimate purposes in mind, such as the investigation of criminal activity. What is important is that the use of the Highway Traffic Act power not be a mere ruse or pretext to stop a vehicle in order to investigate a crime. Determining the True Purpose for the Vehicle Stop When an accused challenges an

By |July 17th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Ontario’s HTA Vehicle Stop Power must not be Used as a Pretext to Investigate a Crime

R. v. Jordan: Bypassing the Preliminary Inquiry doesn’t Affect 30-Month Ceiling

[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation] Section 11(b) of the Charter provides: “Any person charged with an offence has the right … (b) to be tried within a reasonable time”. R. v. Jordan, 2016 SCC 27 established a new framework for the s. 11(b) analysis. It was designed to be simple in its application and predictable in its effect. It replaced the framework articulated in R. v. Morin, [1992] 1 S.C.R. 771, which the majority in the Supreme Court described as too unpredictable, too confusing, and too complex.      R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 38. The Jordan framework is now well-understood. At the centre of the new framework is a “presumptive ceiling” on the time between the date of the charges and the actual or anticipated end of the trial. Delay beyond that ceiling is presumptively unreasonable.      Jordan, at para. 46. For cases tried in provincial courts, the ceiling is 18 months. For cases tried in superior courts, or in provincial courts after a preliminary inquiry, it is 30 months. The Crown may prefer an indictment in superior court and thus bypass the preliminary inquiry. While this can significantly reduce the amount of time between charge and trial, it does not affect the Jordan ceiling of 30-months for trials in the superior court. In R. v. Bulhosen, 2019 ONCA 600, the appellants argued that because the Crown had preferred an indictment while the case was in the Ontario Court of Justice, the proceeding

By |July 15th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on R. v. Jordan: Bypassing the Preliminary Inquiry doesn’t Affect 30-Month Ceiling

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
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