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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

Challenging the Warrant: The Ability of the Defence to Cross-examine the Affiant even though it has already done so at the Preliminary Inquiry

Although the defence cannot challenge the validity of a search warrant at the preliminary inquiry, it can seek to cross-examine the affiant of the affidavit in support of the application for the search warrant under the authority of R. v. Dawson (1998), 1998 CanLII 1010 (ON CA). The defence is not obligated to accept cross-examination of the affiant at the preliminary inquiry as a substitute for cross-examination at trial.  When the defence shows a reasonable likelihood that cross-examination of the affiant on the s. 8 application at trial will generate evidence tending to discredit the existence of one or more of the grounds for the issuance of the warrant, the defence is entitled to conduct that cross-examination as part of the s. 8 application at trial regardless of whether that cross-examination will add to the cross-examination conducted at the preliminary inquiry.  R. v. Shivrattan, 2017 ONCA 23 (CanLII) at paras. 53,54 (leave to appeal to the SCC refused, 2017 CanLII 46398).. Stuart O'Connell, O'Connell Law Group. (All rights reserved to author).

By |May 8th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Challenging the Warrant: The Ability of the Defence to Cross-examine the Affiant even though it has already done so at the Preliminary Inquiry

The End of Ontario’s Criminal Injuries Compensation Board

It is not surprising that the consequences of crime fall hardest on its victims.  While it is sometimes difficult to evaluate the extent of the effects of crime, it has been estimated that 67% of the financial burdens resulting from crime--including replacing property and possessions, lost wages, health costs, time off work, funeral costs, and various other out-of-pocket expenses—are borne by the victims of crime.This leads to an important societal question: should we leave victims to assume the greater part of those financial losses which crime has occasioned? Since the late twentieth century, the answer to that question in both the international and domestic spheres has been, increasingly, no. See for instance, The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the U.N. General Assembly on 29 November 1985. A primary means by which government has sought to ameliorate the financial burden of crime on those who were not responsible for it has been through providing victims with financial compensation. Victim compensation is also the earliest type of organized victim assistance in Canada and the United States. With the exception of Nova Scotia, Newfoundland and Labrador, and Nunavut, every province and territory in Canada administers a comprehensive victim financial assistance program. [FN1] In Ontario, the Criminal Injuries Compensation Board is the quasi-judicial administrative tribunal that assesses and provides financial compensation for victims of violent crime.  It was established under the Compensation for Victims of Crime Act (CVCA) in 1971.  Ontario has been unique in its use of an adjudicative model: a specialized administrative tribunal to review cases of criminal injury and provide compensation where appropriate. The Board’s process is often inquisitorial in nature, and it has not

By |May 5th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on The End of Ontario’s Criminal Injuries Compensation Board

Restricting the 715.1 Video Statement to Describing “Acts Complained of”

Section 715.1 of the Criminal Codes permits the reception of a videotaped statement of a complainant or witness under 18 at the time an offence is alleged to have been committed, provided certain statutory requirements have been satisfied. The provision does not authorize the introduction of evidence that offends other admissibility rules.  Editing may be required to ensure compliance with these rules.Section 715.1 permits the introduction of evidence only to the extent that the witness or complainant “describes the acts complained of”. References to other conduct not encompassed by the indictment or to conversations that form no part of “the acts complained of” are not rendered admissible by s. 715.1. In R. v. J.A.T., for instance, the Court of Appeal for Ontario held that the trial judge had erred in admitting the complainant’s video statement under 715.1 without editing out references to the accused’s post-offence conduct. R. v. J.A.T., 2012 ONCA 177 (CanLII), at para. 147, 159. Criminal Code Evidence of victim or witness under 18 715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice. [Emphasis mine]. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |February 4th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Restricting the 715.1 Video Statement to Describing “Acts Complained of”

Searches of USB Keys

A person has a reasonable expectation of privacy in the contents of the USB key found in her/his pocket.            R. v. Balendra, 2019 ONCA 68, at paras. 35, 38.In  Tuduce, Gillese J.A. considered the privacy interests implicated in USB keys found in a person’s possession:First, a USB key can store a significant amount of data. USB keys commonly hold anywhere from one to ten gigabytes of data, and USB keys with a storage capacity of over one terabyte exist. It seems likely that their storage capacities will only increase over time.Second, data can be left on a USB key without a user’s knowledge. This data includes information about the date and time a file was created or modified and information about the user who created or modified that file. Third, a user does not have complete control over which files an investigator will be able to find on a USB key. Data can be salvaged from a USB key through forensic analysis even after a user has deleted or “saved over” it. It is true that a USB key is not a home computer or a cell phone. Thus, it may not always contain personal information, like a list of contacts, the contents of past communications, and information about an individual’s web searching habits. On the other hand, however, a person’s personal USB key arguably engages more serious privacy interests than a work computer. The two key reasons why individuals have a somewhat diminished reasonable expectation of privacy in a work computer are that a work computer is not actually owned by the employee who uses it, and the employee’s use of the work computer is often subject to terms

By |January 31st, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Searches of USB Keys
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