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Bail and Parole in the Time of COVID-19

Some individuals are particularly vulnerable to Covid 19 as a result of underlying health conditions.  It is crucial for such individuals to minimize contact with others to avoid serious illness and reduce the spread of COVID-19, and yet it is “difficult, if not impossible” for them to practice social distancing while they are in custody. See Kazaman, 2020 ONCA 251, at para. 17. The Ontario Court of Appeal has accepted that the COVID-19 pandemic is a factor that may be considered on a bail pending appeal application. The weight to be given to this factor depends on the circumstances of each case. See Kazaman, 2020 ONCA 251, at paras. 17-21 [bail granted]; R. v. Omitiran, 2020 ONCA 261, at para. 26 [bail denied];  R. v. Jesso, 2020 ONCA 280, at para. 36. Where counsel wishes to argue that the applicant’s special medical vulnerability within the context of his/her incarceration during the COVID-19 pandemic favours release, counsel should ensure that the court has the facts on which it can make an informed assessment.  The evidentiary record should include information about the specific risk faced by applicant, his/her health vulnerabilities, and what steps have been taken by the custodial institution to mitigate the risk during the COVID-19 pandemic.     COVID-19 & Parole The health-risk posed to the offender by the COVID-19 pandemic may also be relevant to federal parole decisions, including the granting of parole to an offender not yet eligible for day and/or full parole (what is sometimes known as “parole by exception”). As summarized on the Parole Board of Canada’s website: “The law requires the PBC to take into consideration all relevant available information related to the offender’s case, including the offender’s health or health-risk posed by the COVID-19

By |July 13th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Bail and Parole in the Time of COVID-19

Commuting a Prison Sentence: Some Guys have all the Luck

The separation of powers is a cornerstone to any democratic system of government. “The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other.”   Thomas Jefferson to George Hay, 1807. This week US President Donald Trump commuted the prison sentence of Roger Stone, relieving his long-time confidant from the execution of his sentence. Stone was convicted after a jury found that he had broken the law multiple times by lying to Congress and obstructing justice.[FN1]When the political executive (in this case the President) uses its power to commute a prison sentence or pardon a crime, there is real danger to the constitutional separation of powers and to the integrity of the judicial process. The commutation of a sentence or the pardoning of a crime by a political actor should not be a matter of simple executive fiat, but rather the exercise of an extraordinary power subject to a series of careful checks and balances. This extraordinary power must not to be used to interfere with a court’s decision when to do so merely substitutes of the discretion of the executive for a decision of the court. A court is required to be independent and impartial.  A president (or prime minister, in the case of Canada) is not.  Generally we expect our politicians, in most instances, to be partial. However, having a partial actor interfere with what in most cases we can expect to be an impartial judicial decision has its place, even in our contemporary constitutional and democratic order.  It is a mechanism of mercy able to relieve against excessive hardship and/or inequity, beyond that which could have been foreseen at the time of the conviction and sentencing. In my next

By |July 11th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Commuting a Prison Sentence: Some Guys have all the Luck

Defending Sexual Assault and Harassment at Work

In situations involving sexual misconduct in the workplace, criminal and employment law can intersect, sometimes with adverse results for an employee who has been accused. In situations where an employer or institution believes that one of their employee’s may be guilty of sexual misconduct in the workplace, either due to a specific complaint or through some other source, they will launch an investigation into the matter. Ontario’s Health and Safety Act was recently updated, mandating that employers must investigate any and all complaints of sexual misconduct or harassment in the workplace. Such an investigation often involves a third-party investigator being hired by the company or institution to conduct a full impartial and independent investigation into the matter. Third-party investigators are tasked with collecting any and all relevant information in order to make various findings of fact to conclude whether misconduct has occurred. In almost all cases, part of this investigation will involve speaking to the complainant, potential witnesses and to the impugned employee. Typically, the investigator will interview all relevant parties to gain a better understanding of what occurred. In most cases, law enforcement will not be contacted until the employer has completed their investigation, except in more extreme cases. This fact can lead to complications for an employee who is later arrested and charged for the allegations. Those who are charged with a criminal offence automatically gain certain rights, such as the right to remain silent and the right against self-incrimination. However, these rights have often not yet attached during the employer’s investigation. It is common for employees in this situation to feel compelled to speak to the investigator and give a statement. An accused employee may see it as their opportunity to tell

Giving Evidence at Trial from Outside of Canada

Section 714.2(1) of the Criminal Codes allows for a witness outside of Canada to provide their evidence remotely, that is, by videolink. The party who wishes to call the witness must give notice to their intention to do so at least 10 days before the witness is scheduled to testify. Section 714.2(1) provides:    A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice. Formerly, this section also required that “the technology must be such that it "permits the witness to testify in the virtual presence of the parties and the court." This requirement was removed in 2019 when Bill C-75 became law. [FN1] The 2019 amendment of section 714.2(1) also removed the broad term “technology” and replaced it with the form of technology required: videoconference.  The term videoconference is defined at section 2 of the Criminal Code.  In short, a videoconference requires simultaneous visual and oral communication to occur. Section 2, Criminal Code. “videoconference” means any means of telecommunication that allows the judge, justice or chairperson of a Review Board, as defined in subsection 672.1(1), and any individual to engage in simultaneous visual and oral communication in a proceeding; (vidéoconférence): Although the provision is mandatory, in the sense that it uses the word "shall" in relation to the reception of evidence from a witness outside of Canada, the use of audio‑visual technology is subject to two important limitations. 1.      The technology must provide simultaneous visual and oral communication within the proceeding; 2.      The section does not apply if one of the parties satisfies the court that the reception of such testimony would be "contrary

By |July 3rd, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Giving Evidence at Trial from Outside of Canada

Judicial Referral Hearings: A Sensible Response to Bail Breaches

Administration of justice offences are typically offences that are committed by a person against the justice system itself after another offence has already been committed or alleged. They may involve acts that are not considered criminal in themselves but are considered as such because the accused was given an order not to engage in the behaviour as a condition of their release.  Common examples are failure to comply with bail conditions, such as to abstain from consuming alcohol; failure to appear in court; or breaching a curfew. These offences impose an enormous burden on the criminal justice system, as nearly 40% of all adult cases involve at least one of these administrative charges. Canada Hansard, Jody Wilson-Raybould (Minister of Justice and Attorney General of Canada), May 24, 2018; See R v Rowan, 2018 ABPC 208 (CanLII), at para. 38. Offences involving failures to comply with conditions of judicial interim release (bail) are the most common form of offences against the administration of justice. Breaches of probation are the second most common. Police elect to lay charges and prosecution agencies pursue convictions for those offences in a remarkably high percentage of cases. Trends in Offences Against the Administration of Justice, Statistics Canada, Juristat 85-002-x, 2015. Parliamentary has recognized the problem created by the proliferation of administration of justice offences in criminal courts and in response enacted a new Criminal Code procedure in 2019 for managing failure to comply charges under s. 145(3).  This procedure is called a “judicial referral hearing” (s. 523.1). The judicial referral hearing process is able to stream certain administration of justice offences out of the traditional court system where no harm has been caused to victims. This would appear to be in line with a view

By |June 30th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Judicial Referral Hearings: A Sensible Response to Bail Breaches

Content Marketing and Legal Liability

Content marketing is a growing way businesses are seeking to connect with potential clients. The idea behind this type of marketing, is that if a potential customer searches for a problem they are seeking to resolve and discovers relevant information, they are more likely to be interested in that business. But what if the potential customer relies on that information to their detriment, without contracting services of the business? For example, a potential client searches for a solution to their electrical problem, finds information online, relies on that information and gets injured. In this case, the potential customer may argue the business (they never actually hired) contributed to their damages. This person may argue they read the information on the website of a local business, relied on that information related to their electrical problem and as a result, got hurt. Whether or not the claim has any merit, the business may be dragged into unwanted litigation. To reduce the potential for a claim, businesses must be careful about what they write and how they hold themselves out to the public. The business should be weary about farming out cheap content writers as these people are most likely not trained in the particular profession and simply may not care about any liability. The business should also have a complete disclaimer explaining how the website operates to the public with terms of use. Take Made Electric for example, an electrical company here in Toronto. You will see they have professional information for the public without detailed instructions, and a comprehensive disclaimer.

Is the Death of the Appellant the end of the Appeal?

The general rule is that the death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved.  R. v. Cadeddu (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114;   R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless recognized some discretion to proceed to judgment despite the death of the accused.  The discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.  See Smith, at paras. 4, 20, 50. R. v. Slingerland, 2020 ONCA 417, at para. 12. In R. v. Singerland, 2020 ONCA 417 the ONCA found no exceptional circumstances to justify departing form the general rule that the death of an accused appellant renders the appeals against conviction and sentence moot, notably--  The appeal did not raise any issues of public importance to the administration of justice;  While stigma attaches to those who are convicted of sexual offences, that stigma is not an exceptional circumstance.  "Most serious crimes carry with them a stigma. But if stigma, coupled with media coverage, were sufficient to constitute exceptional circumstances, the rule that generally forecloses continuation of an appeal by a deceased party would be supplanted by its exception. Put otherwise, the rule would become the exception and the exception, the rule." R. v. Slingerland, at para. 19.  Stuart

By |June 25th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Is the Death of the Appellant the end of the Appeal?

Neighbour’s Tree Branches Causing Damage in Ontario?

Tree Law in Ontario In heavily populated areas like the GTA, disputes between neighbours regarding trees are common. Disputes typically arise when the branches or roots of a tree on one neighbour’s property (neighbour A) begin encroaching onto their neighbour’s property (neighbour B), causing damage to or interfering with the enjoyment of neighbour B’s property. Trees and Nuisance Law In Ontario, the government does not regulate the pruning of trees on private property. As a result, determining who will pay to have a tree pruned is a civil matter. In situations where an individual (neighbour A) refuses to prune the parts of their tree that are encroaching onto their neighbour’s (neighbour B) property, the neighbour whose property is being encroached upon has two options. Neighbour B may sue neighbour A for the cost of having the tree pruned, or to force neighbour A to have the tree pruned. This, however, can be a lengthy and time-consuming process and there is no guarantee that neighbour B will win. The other option is the self-help remedy. In many cases, the fastest and easiest option to resolve a dispute of this nature is the self-help remedy. The self-help remedy allows neighbour B to pay to have the branches that pass the property line pruned. The self-help remedy may be used even where the tree is not causing damage. If the parts of the tree crossing the property line are a nuisance to neighbour B, they may be removed without notifying or seeking permission from neighbour A. Neighbour B must not, however, trespass onto neighbour A’s property to complete the pruning and must avoid pruning past the property line. As long as a tree is not considered a “boundary

Getting Away From the “Representative Sample”: A Trauma-Informed Approach to Presenting Unlawful Pornography in Court

Exposure to unlawful forms of pornography, such as child pornography, can be traumatizing. R. v. Shaw, 2018 ONCJ 61 (CanLII). On most occasions, it is unnecessary for the judge to view the child pornography that comprises the subject matter of a charge or even for the Crown to select a representative sample of images from the child pornography collection to show at the sentencing hearing. Defence and Crown counsel should do their best to agree to a mutually satisfactory verbal description of the contents of child pornography so as to protect courtroom participants (including themselves, the judge, and victims) from unnecessary exposure to potentially trauma-inducing raw material.[FN]   R. v. Marratt, 2019 ONCJ 618, per Band J; See also R. v. Shaw, 2018 ONCJ 61, per Band J. This can even be taken a step farther.  In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as to whether it can simply be filed as a written exhibit to be reviewed by the judge alone.   Where counsel does wish to present the evidence, the presiding judge or counsel should provide a warning concerning its nature.  That way, court staff and victims can raise any concerns with the presiding judge.  This will also allow members of the public to decide whether or not to remain in the courtroom.                             Written by Stuart O’Connell (Barrister/Solicitor).    [FN] This approach is permissible in certain circumstances.  Among the relevant considerations are the existence of an agreement between the parties as to the facts and whether, owing to his or her professional experience, the sentencing judge is able to “fully appreciate the sickening horror of such pornography”: see R.

By |June 22nd, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Getting Away From the “Representative Sample”: A Trauma-Informed Approach to Presenting Unlawful Pornography in Court

Paying out of the Public Purse & the Power of a Statutory Court to Control its Own Process

Every court of law has the authority to control its own process. Superior Courts A superior court’s power to control its process is part of a superior court’s inherent jurisdiction:    R. v. Cunningham, 2010 SCC 10, at para. 18; Canada (Attorney General) v. Pacific International Securities Inc.,  2006 BCCA 3030, at para. 28.     Pursuant to the power to control its own process, a superior court can, among many other things: ·         order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct: R. v. Chapman (2006), 2006 CanLII 1178 (ON CA); ·         remove counsel from a case when required to ensure a fair trial. MacDonald Estate v. Martin, 1990 CanLII 32 (SCC).   Statutory Courts A statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its own process. However, the statutory court does not have inherent jurisdiction. R. v. Fercan Developments Inc., 2016 ONCA 269 (CanLII), at para. 52. It would be generally undesirable and inefficient if a superior court could issue an order under its power to control its process but, a statutory court confronted with the same set of circumstances could not, even though that court also possesses the power to control its process.             See R. v. Fercan Developments Inc., at paras. 56-58.   A statutory court’s power to control its own process is necessarily implied in a legislative grant of power to function as a court of law:  R. v. Cunningham, 2010 SCC 10, at para. 51. The power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its

By |June 22nd, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Paying out of the Public Purse & the Power of a Statutory Court to Control its Own Process