Recent Changes and Guidance from the Supreme Court of Canada In recent years, the Supreme Court of Canada has made several important changes to how sexual assault cases are prosecuted in Canada. Sexual assault and the impacts of sexual violence on victims was brought to the forefront of our society in 2017 with the MeToo movement. This movement changed the way many sexual assault victims were treated by the justice system and is continuing to change the way our courts handle such offences. In 2020, 10 of the 26 criminal cases on the docket for the Supreme Court involved sexual offences. In deciding these cases, the Supreme Court sent a strong message to the justice system; the sentences for those convicted of sexual offences involving children must increase. Ranges have pushed up considerably to mid-reformatory sentences, even with a guilty plea. In recent years, the federal government has enacted legislation enhancing the maximum penalties for offenders convicted of sexual offences involving children. Offences of this nature have become among the most serious offences Canadian’s can be charged with which is now reflected in the sentencing guidelines. In the 2019 Supreme Court case R. v. Friesen, the Supreme Court opined that since the maximum penalties for those convicted of sexual offences against children have increased, so too should the sentences imposed on offenders. The Court provided a non-exhaustive list of factors that should be considered when determining the appropriate sentence for an offender. The list included whether or not the accused felt remorse for their actions, whether they had insight into their behaviour, and whether there was a high risk of recidivism. The Court also provided a sentencing range of upper single digit to lower double
In 2011, the federal government enacted a piece of legislation called An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The Act sets out various reporting duties and other regulations that apply to Internet service providers who become aware of child pornography offences. Duty to Report Internet Address Section 2 of the Act stipulates that if a person is advised, in the course of providing Internet service to the public, of an Internet Protocol (IP) address or a Uniform Resource Locator where child pornography material may be available to the public, the person must report the IP address or Uniform Resource Locator to law enforcement officials. The Act does not authorize Internet providers to seek out child pornography material. Duty to Notify Police Officer Section 3 of the Act creates a duty to notify an officer, constable or another person employed for the perseveration and maintenance of the public peace, where a person providing Internet services has reasonable grounds to believe their service is being used to commit a child pornography offence. Preservation of Computer Data Section 4 of the Act creates a duty to preserve all related computer data in the Internet providers possession for a period of 21 days after a notification is made to an officer constable or another person employed for the perseveration and maintenance of the public peace. No Disclosure Section 5 of the Act stipulates that an individual must not disclose that they have made a report under section 2 of the Act or a notification under section 3 of the Act, or disclose the contents of the report or notification, if the disclosure could prejudice a criminal investigation, whether or
Conditional Sentence to Child Pornography Charge Record Suspension/Appeals Waiting Period: Criminal Records Act 4(1) states that an individual is ineligible for a Record Suspension until the following time periods have elapsed after the expiration of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine imposed for an offence; (a) 10 years, where the case is prosecuted by indictment or is an offence for which the offender was punished by a fine of more than $5,000.00 or imprisonment for more than six months. (b) five years, where the case is prosecuted by summary conviction. Ineligible Persons: Criminal Records Act 4(2) indicates that subject to subsection (3), a person is ineligible for a record suspension if he or she has been convicted of: (a) an offence referred to in schedule 1 Schedule I s. 1 (v) Child Pornography (s. 163.1 cc) Exception: Pursuant to s. 4(3) of the Criminal Records Act an individual who is convicted of an offence under Schedule I may apply for a record suspension if the Board is satisfied that (a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her (b) the person did not use, threaten to use to attempt to use violence, intimidation, or coercion in relation to the victim; and The person was less than five years older than the victim. US Waiver A person would be inadmissible with a child pornography conviction. An person would be required to apply for a US Waiver of inadmissibility, however given the nature of the offence its very unlikely the waiver would be granted.
In Canada, sexual offences involving children are among the most serious crimes an individual can be charged with. This, however, has not always been reflected in the sentences imposed on individuals convicted of sex offences involving children. In the past, those convicted of sexual offences including those involving children were sentenced significantly more leniently than they are today. In a 2010 case, R v. P.M., the Ontario Court of Justice sentenced a father to five years in prison after he pled guilty to sexual assault, incest, sexual interference, and possession of child pornography for repeatedly raping his young daughter and filming the attacks At the time, courts across Ontario routinely imposed three-to-five-year sentences on individuals convicted of sexually assaulting their children. To surpass a five-year prison sentence, Ontario courts often required additional aggravating factors including a pattern physical violence or threats of physical violence, or severe psychological, physical, or emotional harm. More recently, there has been a shift in the way courts throughout the country sentence those convicted of sexual offences against children. With a deeper understanding of the lifelong trauma suffered by victims of sexual assault, courts have begun to take a more hardline approach to sentencing these types of offenders. The federal government has also enacted legislation codifying deeper protections for child victims of sex assault and harsher penalties for offenders. For example, in 2015, the Canadian government enacted the Tougher Penalties for Child Predators Act. The Act amended the Criminal Code, the Canada Evidence Act and the Sex Offender Information Act to enhance penalties for those who are convicted, ensure spouses are competent and compellable witnesses in child pornography cases and to increase reporting obligations for sex offenders. In 2020, the Supreme
Executing a Search Warrant & Implementing the Arrested Person’s Right to Consult with Counsel in Private
The opportunity to consult counsel in private is a vital component of the s.10(b) right. R. v. Playford(1987), 63 O.R. (2d) 289 (Ont. C.A.) at para 31; R. v. McKane(1987), 35 C.C.C. (3d) 481 (Ont. C.A.) at p. 134. Once an accused has requested that he be permitted to consult counsel, that carries with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit. R. v. Doherty(1974), 1974 CanLII 1531 (NS CA). In R. v. Pileggi, 2021 ONCA 4, the accused was arrested at his home during the execution of a search warrant. The accused’s right to consult counsel in private would have been compromised had the police attempted to facilitate contact at the house while a search of the house was underway. In such circumstances it was not a breach of s. 10(b) of the Charter for the police to transport the accused to the police station before implementing his contact with counsel. R. v. Pileggi, 2021 ONCA 4at paras 75-78. Stuart O’Connell (Barrister/Solicitor)
There are two well-recognized categories of abuse of process. The first, and more common, category is engaged by prosecutorial conduct affecting the fairness of the trial; the second, the residual category, is engaged by prosecutorial conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process. R. v. Nixon, 2011 SCC 34, 2 S.C.R., at para. 36; R. v. O’Connor, 1995 CanLII 51. Abuses of process within the residual category tend to involve Charter violations and conduct that is likely to be perpetuated into the future. In R v. Simonelli, 2021 ONSC 354 (CanLII), the accuseds brought applications to stay the proceedings under Section 24(1) of the Canadian Charter of Rights and Freedoms for abuse of process. They claimed that the twelve days from their arrests to their special bail hearing [FN1] constituted an abuse of process falling within the "residual" category of that common law doctrine. Typically bail hearings occur within 24 hours of arrest. [FN2] Beyond the delay particular to them, the Applicants in Simonelli established that there were ongoing systemic bail delay problems within the jurisdiction (Brampton, Ontario). The 12 day pre-trial custody period the Applicants endured was a clear violation of 11(e) of the Canadian Charter of Rights and Freedoms--the right not to be denied reasonable bail without just cause--but did the delay also amount to an abuse of process? Yes. The Court concluded that the bail delays the Applicants had experienced were part of a serious unaddressed systemic problem with no end in sight, “a blot on the administration of justice” (para. 141). Stay of Proceedings A stay of proceedings is a prospective rather than a retroactive remedy. It does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if
Raising a new issue on appeal requires obtaining the leave of the appellate court. If (1) the evidentiary record is sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal, and (2) the failure to raise the issue at trial was not due to tactical reasons, then leave should be granted where (3) refusing leave may result in a miscarriage of justice. On the other hand, if refusing leave would not cause a miscarriage of justice, leave to raise a new issue on appeal should ordinarily be denied. R. v. Greer; 2020 ONCA 795, at para. 91. This recent statement by Ontario’s Court of Appeal changes the customary articulation of the test for granting leave to raise a new issue on appeal. [FN] Additionally, where the new issue arises from a change in the law while the case is still “in the system”, leave may be granted to present an evidentiary record on appeal. R. v. Greer; 2020 ONCA 795, at para. 92. Stuart O’Connell (Barrister/Solicitor) FN: formerly, the third branch of the rule required that “(3) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.” See R. v. Reid, 2016 ONCA 524, at para. 43.
Evidence: Assessing the Credibility and Reliability of a Witness with an Intellectual or Developmental Disability
Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice. When assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence. R. v. Slatter, 2020 SCC 36. On a related note see https://www.thestar.com/news/gta/2020/11/18/this-is-demeaning-to-everyone-why-alek-minassians-defence-is-provoking-anger-in-canadas-autism-community.html Stuart O’Connell (Barrister/Solicitor).
When we think of limitation periods in Canada, we often think of the limitation periods that apply to civil lawsuits. However, there is also a limitation period that applies to criminal matters in Canada. Section 786(2) of the Criminal Code states that when dealing with summary conviction offences, the Crown may only lay charges against an accused for up to one year after the alleged incident occurs. This means that if an accused person assaults another individual on May 1, 2020 and the Crown wishes to proceed summarily, they may only lay charges against the accused until May 1, 2021. After this one-year period has elapsed the Court no longer has jurisdiction. It is important to note that this limitation period only applies to criminal cases that are summary conviction offences, or hybrid offences that are being prosecuted summarily. When an individual has committed an indictable offence or a hybrid offence that is being prosecuted as an indictable offence there is no applicable limitation period and the accused may be charged at any point after the alleged incident. In some situations, it may be beneficial for an accused to waive the limitation period, allowing the Crown to lay summary conviction charges after the one year period. This tactical decision may be preferable where the accused has allegedly committed a hybrid offence and the Crown intends to proceed by indictment if the accused does not waive the limitation period. It is generally preferable for an accused to have the Crown proceed summarily because of the enhanced maximum prison sentences that accompany indictable offences.
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