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Lack of Remorse: When it can Affect Sentence

An accused’s lack of remorse is not ordinarily an aggravating factor on sentencing, as a court cannot punish the accused for failing to plead guilty or for having mounted a defence. R. v. Valentini [1999] O.J. No. 251 (C.A.), at paras. 82, 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff’d on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. When Lack of Remorse is Relevant Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness. R. v. Shah, 2017 ONCA 872, at paras. 8, 9; R. v. B. P.  (2004), 190 O.A.C. 354 (C.A.), at para. 2; R. v. Valentini, at para. 82; R. v. J.S., 2018 ONCA 675, at para. 84.  Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to author). 

By |August 2nd, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Lack of Remorse: When it can Affect Sentence

Rights to Counsel: The Role of Police where a Detainee has Problems with Language Comprehension

Section 10(b) of the Canadian Charter of Rights and Freedoms reads:10. Everyone has the right on arrest or detention […]  (b) to retain and instruct counsel without delay and to be informed of that right… As the Supreme Court held in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, s. 10(b) imposes two duties on the police – an informational duty and an implementational duty. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The onus lies on the Applicant to demonstrate that his/her right to counsel was violated under s.10(b) of the Charter. Rights to Counsel and the Role of the Police In most cases the police may infer that the detainee understands the rights read to them.  Police do not have a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail. Officers are only required to communicate those rights to the detainee. R. v. Culotta, 2018 ONCA 665, at para. 38. Absent special circumstances indicating that a detainee may not understand the s. 10(b) caution (such as language difficulties or a known or obvious mental disability), police are not required to assure themselves that a detainee fully understands the s. 10(b) caution. R. v. Bartle, [1994] 3 S.C.R. 173, at p. 193;  R. v. Baig, [1987] 2 S.C.R. 537, at p. 540; R. v. Feeney, [1997] 2 S.C.R. 13, at paras. 108-09 per L’Heureux-Dubé (dissenting); R. v. Evans, [1991] 1 S.C.R. 869, at p. 891; R. v. Willier, 2010 SCC 37, [2010] 2

By |July 26th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rights to Counsel: The Role of Police where a Detainee has Problems with Language Comprehension

Defence Counsel Fall Outside the Circle of Informer Privilege

Defence counsel do not fall within the “circle” of informer privilege — the group of people who are entitled to access information covered by informer privilege and who are bound by it.Traditionally, this circle is tightly defined and has only included the confidential informer himself or herself, the police, the Crown and the court. R. v. Brassington, 2018 SCC 37, at para. 41; R. v. Barros, [2011] 3 S.C.R. 368, at para. 37.  In all cases where informer privilege applies, disclosure outside the circle requires a showing of “innocence at stake”. R. v. Brassington, at para. 47. Thus, solicitor-client privilege, which protects the client's communications with counsel from disclosure and compulsion, does not provide a basis for that client to communicate information that is otherwise protected from disclosure if it tends to identify a confidential informer. R. v. Brassington, at para. 48. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).

By |July 24th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Defence Counsel Fall Outside the Circle of Informer Privilege

Prior Consistent Statements: Admissible as Narrative

As a general rule, prior consistent statements of a witness are inadmissible.  There are two primary justifications for the exclusion of such statements: first, they lack probative value (they are self-serving, easily fabricated, and redundant) and second, they constitute hearsay when adduced for the truth of their contents.               R. v. Dinardo, 2008 SCC 24 (CanLII) at para. 36.  Further, their repetition before the trier of fact is capable of working significant prejudice. See R. v. M.P., 2018 ONCA 608 , at para. 77. Exceptions to the rule Like other admissibility rules which are primarily exclusionary in their effect, the general rule enjoining introduction of prior consistent statements of a witness brooks exception. These exceptions permit introduction of prior consistent statements for restricted purposes which differ depending on the exception, for instance: 1. To rebut a claim of recent fabrication. R. v. Evans, [1993] 2 S.C.R. 629, at p. 643. 2.To provide context in which to assess attacks on testimonial reliability based on alleged prior inconsistencies. R. v. O.(L.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 34. 3. As narrative. R. v. F.(J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476; Khan, at paras. 29-30 A Prior Consistent Statement may be Admissible as Narrative The fact of a prior complaint may be admissible under the narrative exception to the general rule.  To qualify as narrative, the witness must recount relevant and essential facts which describe and explain his or her experience as a victim of the crime alleged so that the trier of fact will be in a position to understand what happened and how the matter came to the attention of the proper authorities. In all cases where evidence is admitted

By |July 4th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Prior Consistent Statements: Admissible as Narrative

Court Rejects the Defence of Murder-Suicide Pact

It is not for judges to create criminal offences, but rather for the legislature to enact such offences.  This has been true since Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517, and is a precept which finds statutory recognition in section 9 of the Criminal Code. A person may not be convicted of an offence at common law. [FN1]While the Criminal Code removes criminal liability for common law offences, it maintains the availability of common law defences, except where they are inconsistent with subsequent legislation: see section 8(3), Criminal Code. While some common law defences (eg.  defences necessity, duress, and entrapment) are well-understood, other common law defences remain to be discovered. In 1993, the Quebec Court of Appeal recognized the very narrow common law defence of suicide pact. This defence is available only when the parties formed a common and irrevocable intention to commit suicide together, simultaneously by the same event and the same instrumentality, and where the risk of death was identical for both. See R. v. Gagnon (1993), 84 C.C.C. (3d) 143, 24 C.R. (4th) 369 (Que. C.A.). This is different from a murder-suicide pact in which one person has agreed to first kill the other and then kill himself. Gagnon did not extend the suicide pact defence to the murder-suicide situation. In R. v. Dobson,2018 ONCA 589, the appellant sought to have Court of Appeal for Ontario go even further than the Quebec court did in Gagnon and recognize a common law defence in situations of a murder-suicide pact.  The defence would not be a complete defence; rather a partial defence, reducing  murder to manslaughter to reflect the culpability of the survivor of a suicide pact. The appellant faced two problems from

By |June 29th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Court Rejects the Defence of Murder-Suicide Pact

Admission of Fresh Evidence: Crown’s Failure to Disclose (the “Dixon Test”)

 There are two ways in which fresh evidence may become admissible on appeal: (1) Dixon Test:  On the basis of non-disclosure giving rise to a breach of the right to make full answer and defence.  This is governed by the test first set out in Dixon, (the “Dixon test”); or  (2) Palmer Test:  On the basis that the cogency of the evidence is such that it warrants admission and the interests of justice require that it be received.  This is governed by the test  first set out in R. v. Palmer, [1980] 1 S.C.R. 759 (the "Palmer test").. The Dixon Test There are two components to the Dixon test. 1. Did the Crown breach its duty to disclose? If the court concludes that, at the relevant time, the Crown failed in its disclosure obligations, then Dixon requires that the court go on to consider the following: 2. Was there a “reasonable possibility” that the non-disclosure: (a) impacted the outcome of the trial; or (b) impacted the overall fairness of the trial process? R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 71, 78; See also Dixon, R. v. Dixon, 1998 CanLII 805 (SCC), [1998]at paras. 34-35.  Although, a reasonable possibility must be more than "entirely speculative" in nature, the mere existence of such a possibility constitutes an infringement of the right to make full answer and defence:  Taillefer, at para. 78.            Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).

By |June 27th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Admission of Fresh Evidence: Crown’s Failure to Disclose (the “Dixon Test”)

R. v. Forcillo: One Burst of Bullets Justified, the Other Not

In use-of-force scenarios, circumstances may change quickly. The Court of Appeal for Ontario has signaled in R. v. Forcillo that a significant change in the circumstances in which force is used—even within the same transaction—may make the further use of a level of defensive force which had been justified (even at the level of lethal force) no longer so.   As one’s apprehension of the threat he/she is facing changes, for instance, so too may his/her ability to use force as a lawful response.  In R. v. Forcillo, 2018 ONCA 402, a Toronto police officer, Forcillo, fired two volleys of shots at a young man, Yatim, who was brandishing a knife on a Toronto streetcar, threatening passengers, and acting erratically.  Officer Forcillo fired the two volleys 5.5 seconds apart.  It was open for the jury to find that the Crown had proved beyond a reasonable doubt that the second volley was not a justified use of lethal force on the basis that at the time Forcillo fired the second volley, Forcillo did not reasonably perceive that Yatim posed an imminent threat to him.              Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).

By |April 30th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on R. v. Forcillo: One Burst of Bullets Justified, the Other Not

Written Submissions are not a Replacement for Oral Submissions

It is common practice in the criminal courts to require written submissions, not only at the end of the evidence in judge alone cases, but also in respect of various evidentiary motions, or pre-charge discussions held before or during trial.  In those cases, written argument is used, not in lieu of oral argument, but in addition to and usually as a precursor to oral argument.If a trial judge requires arguments to be made by written submissions, the trial judge must allow counsel, after written argument has been exchanged, to make oral arguments in the presence of the accused to supplement, correct, or otherwise amplify the written argument.  Procedural fairness and the accused’s right to be present throughout his/her trial require this. [FN]R. v. McDonald, 2018 ONCA 369, at paras. 46, 47.  Counsel, however, may agree to waive oral argument either entirely or as a supplement to written argument. Ibid., at para 46.  [FN]: Section 650 of the Criminal Code gives the accused the right to be present in court during the whole of his trial subject to exceptions. Closing arguments are part of an accused's trial. Procedural fairness speaks to the principle that persons affected by the proceedings should have the opportunity: (i) to present their case fully and fairly, and (ii) have any decision affecting their rights, interests, or privileges made using a fair, impartial and open process: see Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to author).

By |April 16th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Written Submissions are not a Replacement for Oral Submissions

Ineffective Assistance of Counsel: False Affidavit

The right to effective assistance of counsel extends to all accused persons.  In Canada that right is seen as a principle of fundamental justice.  It is derived from the evolution of the common law, s. 650(3) of the Criminal Code  and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.When a claim of ineffective assistance is raised, the onus is on the appellant to establish (1) the facts that underpin the claim;  (2) the incompetence of the assistance provided [FN1]; and (3) the incompetent assistance resulted in a miscarriage of justice. R. v. L.C.T., 2012 ONCA 116, at para. 37. To succeed at this third step, the appellant must establish either that there is a)    a reasonable probability that the verdict would have been different had he received effective legal representation [FN2], or b)     that his counsel’s conduct deprived him of a fair trial. See R. v. G.D.B., [2000] 1 S.C.R. 520. The accused who is the victim of a miscarriage of justice is entitled to at least a new trial In R. v. L.H.E., 2018 ONCA 362, the appellant alleged that his trial counsel made him sign a blank piece of paper.  Counsel then wrote the contents of the appellant’s affidavit supporting a bail review application herself, attached the blank page signed by the appellant, and signed the jurat.  She then filed the affidavit with the court without reviewing its contents with the appellant. At trial, the appellant gave some evidence which was inconsistent with the evidence provided in his affidavit (an affidavit he claimed he did not write or review).  At least to some degree, this would have impugned his credibility as a witness at his trial.  The appellant

By |April 15th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Ineffective Assistance of Counsel: False Affidavit

Fitness of Sentence and Appeals to the Supreme Court of Canada

Section 40(1) of the Supreme Court Act provides that an application for leave to appeal to the Supreme Court of Canada is to be decided on the basis of the importance of the case. This is consistent with a core function of the Supreme Court of Canada: settle questions of law of national importance in the interests of promoting uniformity in the application of the law across the country, especially with respect to matters of federal competence. To obtain leave to appeal to the Supreme Court of Canada from a sentence imposed, varied or affirmed by a provincial or territorial court of appeal, an applicant must demonstrate, to the satisfaction of the court, that the question raised, by reason of its public importance or the importance of any issue of law or of mixed law and fact involved in that question, is one that ought to be decided by that court or that it is, for any other reason, of such a nature or significance as to warrant a decision by that court. While the Supreme Court of Canada has jurisdiction under s. 40(1) of the Supreme Court Act to assess the fitness of a sentence (that is to say, the quantum of a sentence), as a matter of policy the Court has decided, as a rule of its own making, that it should not do so. It deals with principle, not fitness. R. v. Boussoulas, 2018 ONCA 326, at para. 15; R. v. Gardiner (1982), 68 C.C.C (2d) 477 (S.C.C.), at pp. 506-507. Supreme Court Act Appeals with leave of Supreme Court 40(1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of

By |April 10th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Fitness of Sentence and Appeals to the Supreme Court of Canada
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