Child Sex Offence Sentencing

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. The law has also been summarized by Justice Moldaver at the Ontario Court of Appeal in R. v. D.D. [2002] at para 44, as follows: "[44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher

By |2023-03-10T14:27:29-05:00February 20th, 2021|0 Comments

What is the Limitation Period for Criminal Charges?

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.

By |2023-03-10T14:28:08-05:00August 21st, 2020|0 Comments

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

By |2023-03-10T14:30:28-05:00July 10th, 2020|0 Comments

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 |2023-03-10T14:33:06-05:00June 22nd, 2020|Comments Off on Getting Away From the “Representative Sample”: A Trauma-Informed Approach to Presenting Unlawful Pornography in Court

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 |2023-03-10T14:34:01-05:00June 5th, 2020|Comments Off on Can a Written Text Message Constitute Child Pornography?

Hidden Cameras in the Common Areas of Condominiums

A condominium board has authority to cooperate with the police but only to a reasonable extent. As the Court of Appeal for Ontario tells us in R. v. Yu, 2019 ONCA 942, what is reasonable is informed by the constitutionally-protected reasonable privacy expectations of those who reside at the condominium. Under provincial law, a condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation on behalf of the owners. [FN1]  The board is elected by the owners to manage these affairs in their best interests. [FN2] This statutory duty confers a responsibility and authority on the board to act as the decision maker for the owners as a collective. R. v. Yu, at para. 91. The condominium board and, by extension, property management, are entrusted with security of the building and the residents. Residents reasonably expect that a property manager could consent to police entry into the building and its hallways and, in fact, would be likely to consent to police entry if informed of the possibility of criminal activity within the building. R. v.Yu, at para. 92. While condominium residents may expect to be under surveillance by visible cameras installed by management in common areas of the corporation and there to assist management in carrying out its responsibilities, residents do not reasonably expect to be under surveillance by “hidden cameras,” much less hidden cameras installed by the police. See R. v. Yu, 2019 ONCA 942, at paras. 124, 126, 128. Surreptitious state recording is highly, if not uniquely, invasive of individual privacy. Because of the heightened privacy interests at stake, surreptitious video recording by the police cannot be authorized by the consent of the condominium board

By |2023-03-10T14:37:23-05:00December 9th, 2019|Comments Off on Hidden Cameras in the Common Areas of Condominiums

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

By |2023-03-19T16:33:36-04:00May 5th, 2019|Comments Off on The End of Ontario’s Criminal Injuries Compensation Board

Police Officers & Excessive Force (Part 1)

Police officers are entitled to use force in the execution of their duties if they act on reasonable grounds in doing what they are required or authorized to do and the force used is necessary for that purpose. See section 25, Criminal Code. The Crown has the evidentiary burden of establishing that section 25 of the Code has been met when it relies on the provision to justify the use of force.  The Crown must therefore prove that the officer: (i)             was required or authorized by law to perform the action, that the officer undertook, in the administration or enforcement of the law; (ii)           acted on reasonable grounds in performing the action; and (iii)          did not use unnecessary force. The use of more force than necessary gives rise to both criminal and civil liability. Section 26 of the Criminal Code, which is to be read with section 25, imposes criminal responsibility on those authorized by law to use force where the force used is excessive.  Was the officer acting in execution of her/his duty at the time force was used? The powers and duties of a peace officer emanate from common law and statute. In Ontario, these common law duties have been codified in  sections 42(1) and (3) of the Police Services Act.  Examples of the type of situation in which force may be necessary in the execution of a police duty include (but are not limited to) apprehending a fleeing suspect, preventing a continuation of an offence and protecting the safety of members of the public. Force Likely to Cause Death or Grievous Bodily Harm The Criminal Code has a specific limitation on the degree of force that can be used. The officer cannot use

By |2023-03-11T14:55:10-05:00October 5th, 2018|Comments Off on Police Officers & Excessive Force (Part 1)

The Essential Elements of a Criminal Offence: The Basics

In R. v. Foster, 2018 ONCA 53, Justice Watt for the Court of Appeal for Ontario provides a useful basic overview of the essential elements of a criminal offence, which I have reprinted below. Every Criminal Offence has an Actus Reus and a Mens Rea Requirement “Expressed in the Latin maxim actus non facit reum nisi mens sit rea, it is a fundamental principle of our criminal law that a person may not be convicted of a crime unless the Crown proves beyond a reasonable doubt that the person: i.                 engaged in conduct in circumstances forbidden by the criminal law (the actus reus or external element); and ii.               had a defined state of mind in relation to the prohibited conduct (the mens rea or mental or fault element). The external element or actus reus includes all the elements of the offence except for the mental or fault element. As a result, the external element or actus reus can include: i.                 conduct (act or omission); ii.               circumstances or state(s) of affairs; and iii.              result. Sometimes, this element requires proof that the conduct, which occurred in required circumstances, yielded or caused a certain result. On other occasions, less frequent in their occurrence, proof of conduct alone is sufficient.” The Actus Reus and the Mens Rea Must Coincide “Identifying the starting and ending point of the actus reus of an offence is important for at least two reasons. The first is the substantive requirement that, at some point, the actus reus and mens rea must coincide. See, for example, R. v. Cooper, [1993] 1 S.C.R. 146. The second has to do with procedural issues, such as the time frame of the charge and territorial jurisdiction over the offence.

By |2023-03-10T14:47:24-05:00August 16th, 2018|Comments Off on The Essential Elements of a Criminal Offence: The Basics

Applications in the Provincial Criminal Court: The Basics

An application is a request to a court to make an order.  They are of two types: pre-trial applications and trial applications. Commencing an application Applications are commenced by serving the opposing parties and any other affected party with a completed Form 1 (along with supporting materials), and then filing the application with proof of service at the court office.   Form 1 is found online at addition to Form 1, an application will typically include an affidavit/s setting out the facts upon which the application is based.  [FN1] Affidavit evidence is by far the most common form of evidence used for applications.  Other types of evidence include an agreed statement of facts, transcripts, and oral testimony.  Oral testimony is usually not required in most pre-trial applications.  How many copies of the Application do I need? Make at least four copies of your application: 1.      A copy for you the Applicant/Counsel to retain. 2.      A copy to be served on the Crown (usually the Crown Office, Ministry of the Attorney General Ontario, which is found at the local courthouse). 3.      A copy to be served on the Trial Coordinator (this copy goes to the application judge); 4.      A copy to be filed at the court office after service on all parties is complete (this copy is appended to the information). 5.      Sometimes an additional copy is required, as any party with an interest in the matter must also be served.  For instance, in a contested application to remove counsel from record, counsel must serve her client, the accused. How to serve an application Service of applications may be made in person, by fax or by email.  Hard copies of the documents served must be filed with

By |2023-03-10T14:47:37-05:00August 13th, 2018|Comments Off on Applications in the Provincial Criminal Court: The Basics