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Stare Decisis and Superior Court Declarations of Invalidity

Section 52(1) of the Constitution Act, 1982 provides that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” When the Supreme Court of Canada declares a law invalid under s. 52(1), the law is invalid for all future cases; cannot be enforced; is “null and void, and is effectively removed from the statute books. Nova Scotia (Workers' Compensation Board) at para. 31; Canada (Attorney-General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 82. However, that is not the case when a superior court makes a declaration of invalidity: the declaration does not determine the validity or enforcement of the statute “for all future cases”.  R. v. Sullivan, 2020 ONCA 333, at para. 35. Justice Paciocco, writing for himself and Justice Watt in R. v. Sullivan at para. 38, sets out how the principles of stare decisis operate after a superior court judge has made a s. 52(1) declaration of invalidity. The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks

By |June 16th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Stare Decisis and Superior Court Declarations of Invalidity

Creating a Successful and Resilient Law Practice

With the COVID-19 outbreak causing a near complete lockdown of the country, life has changed in a huge way. Businesses all over Canada are suffering after having been forced to close their doors roughly two months ago. In most respects, law firms are no different. COVID-19 has exposed the vulnerabilities of many law firms, both small and large, including their reliance on open courts for revenue. As a lawyer, it is easy to get lulled into a false sense of confidence regarding job security. Many people believe that since crime will always exist, criminal lawyers will always be needed. The COVID-19 outbreak and lockdown that has accompanied it has shown that this is not always the case. With courts shut down, even recession proof criminal lawyers have been without work. The pandemic has put into perspective how important it is as a lawyer or any business owner to control expenses and make regular investments in the business. Control Expenses Law firms can experience periods of rapid growth during a strong economy. However, without proper budgeting and planning, they can just as easily find themselves failing during periods of economic downturn. This is especially true when there is little to no notice, as was the case with COVID-19. With overhead expenses remaining and no new business, many law firms have found themselves struggling financially, in some cases, not being able to cover overhead expenses. The best way to avoid this is to consistently manage the firm’s expenses. These expenses include rent, insurance costs, support staff and technology. While it may be tempting to spend more on expenses when the economy is strong, it is important to have overhead expenses that may be managed for a period

Searches and Arrest: Searching Your Vehicle One Way or Another

There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle. See R. v. Russell, 2018 BCCA 330; R. v. Cuff, 2018 ONCA 276. Having properly seized a vehicle,  police are under an obligation to keep the vehicle and its contents safe. To fulfill this responsibility, the police may have to conduct an inventory search of the vehicle. R. v. Cuff, 2018 ONCA 276. R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417 (C.A.), at paras. 29-30. The fact that the police suspect that they may find drugs while searching the vehicle does not alter their authority to conduct an inventory search. R. v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514, at para. 11, leave to appeal refused [2009] S.C.C.A. No. 164:  for inventory searches to be meaningful, the police must be able to search and itemize the contents of objects such as purses, wallets and bags to determine their contents. Inventory searches of vehicles are not searches incident to arrest. Where an inventory search is not required (say for instance, when the accused will released immediately after arrest and thus there is not need to seize control of his vehicle), police may (or may not) have the option to conduct a warrantless search of the vehicle under the common law search incident to arrest doctrine.    The police generally do not need to have reasonable and probable grounds to conduct a search incident to arrest – just a reasonable basis for doing so. But see R. v. Saeed, 2016 SCC 24,

By |June 16th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Searches and Arrest: Searching Your Vehicle One Way or Another

Entrapment: Opportunity to Commit a Crime

The entrapment defence is available when either: 1) “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry”; or 2) “although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.” R. v. Mack, 1988 CanLII 24 (SCC), at pp. 964-65 The accused must establish the entrapment defence on a balance of probabilities.  Mack, at p. 975. Whatever the mode of trial, the judge ought to consider entrapment only after a finding of guilt. R. v. Imoro, 2010 ONCA 122, at para. 24. In considering entrapment, the court looks at the actions of the police, not of the accused.  One must guard against allowing the nature of the offence to distort the application of the entrapment doctrine. Its application does not depend on the nature of the offence, or its seriousness, or the fact that the offence may be difficult to investigate. Culpability is not the basis for the application of the doctrine. R. v. Ghotra, 2020 ONCA 373, at para. 69 (per Nordheimer J.A., in dissent, but not on this issue).   A Quick Summary of Entrapment Police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity.  The exception to this rule where police are undertaking “a bona fide” investigation directed at an area where it is reasonably suspected that criminal activity is occurring. Where police neither have reasonable suspicion of an individual already engaged in crime,

By |June 12th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Entrapment: Opportunity to Commit a Crime

Protecting the Right of Appeal: The Problem with Pleading Guilty

An accused is prohibited from appealing an interlocutory ruling, such as a ruling relating to the admissibility of evidence. Instead, the accused is obliged to wait until the end of his trial before he can have the ruling challenged in an appeal. However, plea of guilty is a bar to re-litigation of interlocutory rulings unless the plea of guilty can be set aside on some basis. [FN1] See for instance R. v. Faulkner, 2018 ONCA 174 (CanLII), at para. 101; R. v. Chuhaniuk, 2010 BCCA 403, at paras. 46-49. Where the validity of the plea is raised for the first time on appeal, the appellant has the onus of showing that the plea was invalid. [FN2] Thus, the guilty plea of the accused will impose an additional and sometimes insurmountable obstacle on her appeal.  Where the success or failure of the case for the Crown depends on the result of pre-trial motions, there may be good reason for an accused to plead guilty if she is unsuccessful on those motions.  Doing so spares valuable and limited court resources where it is clear that the admissibility of the evidence is dispositive of guilt.  It may also spare a complainant and others from having to give evidence and from being challenged on that evidence. A guilty plea is usually considered by the sentencing judge as an expression of remorse. By expressing finality to the conviction process, it invites leniency in the sentencing portion of the trial. Additionally, it expedites appellate review. The problem with entering a guilty plea is in preserving the accused’s right to challenge the correctness of a pre-trial ruling.  There is no such thing as a conditional plea of guilty, whereby an accused’s plea of

By |June 11th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Protecting the Right of Appeal: The Problem with Pleading Guilty

Setting up a s. 276 Application: Don’t Build it on a Rotten Core

The fact that inadmissible evidence is adduced by the accused without objection from the Crown or comment by the trial judge does not render that evidence admissible. Inaction does not transform the improper into the proper. In the context of a section 276 Criminal Code application, counsel is not permitted to use evidence of a complainant’s other sexual activity as part of the evidentiary basis for a 276 application if that sexual activity evidence was adduced at a criminal proceeding (be it a trial, a bail hearing, or a preliminary inquiry) but was not admissible under section 276.  If it were otherwise, counsel could potentially ignore section 276 and its associated provisions to their benefit, defeating the purpose of the provisions themselves: the protection of complainants’ privacy, equality, and security interests in sexual offence prosecutions. In R. v. Kuzmich, 2020 ONCA 359, the complainant, in response to a question put to her by the defence in cross-examination at a preliminary inquiry, stated that she had not had sex with the accused. Such evidence is other sexual activity evidence and is presumptively admissible under section 276 of the Criminal Code.  However, the Crown did not object to the admission of this evidence and the preliminary inquiry judge did not intervene.   The defence had a video of the complainant engaging in oral sex with the accused. Not surprisingly, at trial the defence sought to adduce evidence of the complainant’s prior sexual activity with the accused in order to contradict her preliminary inquiry statement and thus impugn her credibility. However, “the defence counsel was not entitled to set up this contradiction in the first place.” R. v. Kuzmich, 2020 ONCA 359, at para. 58. Written by Stuart O’Connell (Barrister/Solicitor)

By |June 9th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Setting up a s. 276 Application: Don’t Build it on a Rotten Core

Evidence of Other Sexual Activity: Section 276 Applies Beyond Trials

Section 276 of the Criminal Code and its ancillary provisions create a strict regime for the admission of evidence of a complainant’s other sexual activity, that is, sexual activity that does not form the subject-matter of the criminal charge.  The application of section 276 extends beyond trials to other proceedings, such as preliminary inquiries and bail proceedings. R. v. Kuzmich, 2020 ONCA 359, at para. 34;  Conversely, see R. v. S. (M.P.), 2014 BCCA 338, (2014), 338 C.C.C. (3d) 200, where the British Columbia Court of Appeal held that s. 276 has no application at a preliminary inquiry. Relying on T. (W.S.), Groberman J.A. held, at para. 68, that “[n]othing in the current s. 276 and ancillary provisions compels an interpretation that would apply the exception in s. 276(2) at a preliminary inquiry.” Written by Stuart O’Connell (Barrister/Solicitor)

By |June 9th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Evidence of Other Sexual Activity: Section 276 Applies Beyond Trials

Can a Written Text Message Constitute Child Pornography?

In R. v. McSween, 2020 ONCA 343, the Court of Appeal for Ontario considered whether text messages from an adult to a 14-year-old boy describing sexual acts he would like to perform on another 14-year old constitutes child pornography.  It does.  In the Canadian law child pornography includes (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act; (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act. [Emphasis added.] Section 163.1(1), Criminal Code [note: I have not included the definition of child pornography under 163.1(1)(a) or (d) in the interests of clarity]. Section 163.1 does not require the alleged child pornography to meet the definition under both s. 161.1(1)(b) and (c). One will suffice. Electronic communications (email, text messages,etc.) may constitute “written material” within the meaning of ss. 163.1(1)(b) and (c). R. v. McSween, 2020 ONCA 343, at para. 48: the ONCA interpreting s. 163.1 in light of Parliament’s goal in enacting the child pornography legislation (that is, protecting children from its various harms) and the wording of the section itself. For a discussion on the harms of child pornography that Parliament sought to address see R. v. Sharpe, 2001 SCC 2. See also R. v. Gagné, 2011 QCCA 2157, at para. 14, where the QCCA held that any “writing”, whether electronic or otherwise, is capable of constituting child pornography. An email or text conversation is not a document created by a single person and does not fall into the usual format for child pornography—that is,

By |June 5th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Can a Written Text Message Constitute Child Pornography?

Totality Principle and Consecutive Sentences

The totality principle is properly applied to the total sentence imposed on an offender. Its purpose, where consecutive sentences are imposed, is to ensure that the total sentence is proportionate to the culpability of the offender. As Lamer C.J. said in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 531: “The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.” The totality principle also operates to ensure that the total sentence imposed does not extinguish the rehabilitative potential of the offender. [FN1] Having determined the fit disposition for each count, and running the sentences consecutive to one another, a trial judge is required to look at the total sentence and ask whether it exceeded the overall culpability of the offender. The failure to do so reflects an error in principle. [FN2] One way to reconcile the overall sentence with the totality principle is to impose concurrent sentences, where otherwise the sentences would be consecutive. This approach has been favoured by the Court of Appeal for Ontario in a variety of decisions. [FN3]   Written by Stuart O’Connell (Barrister/Solicitor)   [FN1] See R. v. Angelis, 2016 ONCA 675, at para. 51 (per Watt J.A): “Totality is a principle of sentence the purpose of which is to ensure that the total sentence imposed does not extinguish the rehabilitative potential of the offender”; see also R. v. Hannora, 2020 ONCA 335, at para. 10. FN[2]: However, the error in principle will justify appellate intervention only where it appears from the trial judge’s decision that the error had an impact on the sentence: R.

By |June 4th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on Totality Principle and Consecutive Sentences

161 Orders: “attending a public park”

When offenders are convicted of certain sexual offences against a person under the age of 16 years, section 161 of the Criminal Code gives sentencing judges the discretion to prohibit them from engaging in a variety of everyday conduct upon their release into the community, subject to any conditions or exemptions the judge considers appropriate.             See generally R. v. K.R.J., 2016 SCC 31 (CanLII). One of the prohibitions that a sentencing court shall consider and may make as part of the 161 Order is the prohibition that the offender attend “a public park or swimming area where person under the age of 16 years are present and can reasonably be expected to be present…” Section 161(1)(a), Criminal Code.   In my experience, when 161 Orders are made this particular prohibition is almost always imposed. In R. v. R.L.S., 2020 ONCA 338, that part of a 161 order prohibiting the offender from not attending "a public park or public swimming area..." was varied on appeal to prohibit the offender's attendance at "a public swimming area or community centre".  [Emphasis mine]  The Appellant had argued that the definition of “park” is so broad that he was left unable to safely assess where he can and cannot go.  The Court of Appeal for Ontario held that the Appellant’s past conduct did not suggest that he constituted a risk to persons present in parks and that the specific condition in the 161 order that he not attend parks could be tailored to target the remaining risks more narrowly (as set out above).             R. v. R.L.S., 2020 ONCA 338, at para. 14.   Written by Stuart O’Connell (Barrister/Solicitor)   CRIMINAL CODE 161. (1) When an offender is convicted, or

By |June 4th, 2020|Categories: Stuart O'Connell Criminal Blog|Comments Off on 161 Orders: “attending a public park”