O’Connell Law Blog

Home/O’Connell Law Blog/

Extrapolating Dangerous Driving from the Fact an Accident Occurred

Both the mens rea and actus reus of the offence of dangerous driving the focus on the manner of the accused’s driving.The consequences of the accused’s driving should not be used in determining whether the manner of driving was dangerous (actus reus of dangerous operation of motor vehicle) or in marked departure from the standard of care of a reasonably prudent person in the circumstances (mens rea of dangerous operation of motor vehicle).R. v. Romano, 2017 ONCA 837, at paras. 46, 68, 69, 71. Previously it was clear that consequences of the accused’s driving (such as an accident) should not be used to determine if the manner of driving was objectively dangerous to the public (actus reus)R. v. Roy, [2012] 2 SCR 60, 2012 SCC 26 (CanLII), at para. 34.  In the recent decision of R. v. Romano, the Court of Appeal for Ontario also makes it clear that it is an error to use the consequences of the accused’s driving in determining whether the manner of driving constituted a marked departure from the norm (mens rea).

By |November 6th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Extrapolating Dangerous Driving from the Fact an Accident Occurred

Police may Be Exempt From Speed Limits But Not From Criminal Offences Involving Speed

Section 128(13) of the Highway Traffic Act provides that speed limits do not apply to police department vehicles used in the lawful performance of a police officer’s duties. If an officer is in the lawful performance of their police duties, this provision exempts police officers from speed limits, but not from criminal offences such as dangerous driving [FN].R. v. Romano, 2017 ONCA 837, at para. 89. Highway Traffic Act, RSO 1990, c H.8. Fire department vehicles and police vehicles 128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,(a) a fire department vehicle while proceeding to a fire or responding to, but not returning from, a fire alarm or other emergency call;(b) a police department vehicle being used in the lawful performance of a police officer’s duties; or (c) an ambulance while responding to an emergency call or being used to transport a patient or injured person in an emergency situation.   [FN] To establish the mens rea of dangerous driving the Crown must prove that the manner of driving “was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”.  In applying this “modified objective test” in which the “accused’s circumstances” are relevant, the status of the accused as an on-duty police officer acting in the course of his duties must be considered (Romano, at para. 87).  The question becomes: was the manner of the officer’s driving a marked departure from the standard of care that a reasonable on-duty police office would observe in the circumstances.  Obviously, driving at an excessive rate of speed may be a relevant consideration within that standard of care analysis.

By |November 4th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Police may Be Exempt From Speed Limits But Not From Criminal Offences Involving Speed

Bank on the Hook for Fraudulent Cheque Scheme

Those found guilty of involvement in fraudulent cheque schemes can be required under the Criminal Code to pay restitution to any one who has sustained loss as a result of the commission of the offence.  But an order in hand is a long way from the actual recuperation of the pecuniary loss incurred as a result of the offender’s criminal conduct, and large losses often remain unsatisfied.  Thus, the answer to the question: which innocent party — the defrauded company/person (the drawer of the cheque) or the collecting banks (the drawee) — should bear the loss resulting from a fraudulent cheque scheme can have significant implications. Banks will not be happy, as their involvement may subject them to legal liability under the tort of conversion. As held in Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, the tort of conversion involves the wrongful interference with the goods of another. Where a collecting bank pays out on a forged endorsement, it will be liable for conversion. Conversion is a strict liability tort. As a result, a bank may be held liable whether or not it was negligent. Any alleged contributory negligence on the part of the drawer is, as a result, irrelevant. Teva Canada Ltd. v. TD Canada Trust, at paras. 3,4. However, liability for conversion can be avoided where the payee is a fictitious [FN1] or non-existing person [FN2]. Section. 20(5) of the Bills of Exchange Act, R.S.C., 1985, c. B-4. According to the majority of the Supreme Court of Canada, that legal rule is additionally supported by sound public policy: banks are well-situated to handle the losses arising from fraudulent cheques, allowing those losses to be distributed among users, rather than by

By |November 2nd, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Bank on the Hook for Fraudulent Cheque Scheme

Disclosure Cannot be Used as a Trap

Every accused has a constitutional right to hear Crown witnesses and have disclosure before testifying.As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. Notwithstanding, an accused’s constitutional right to disclosure cannot be allowed to become a trap. R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), at para. 71. As a general rule, the Crown is prohibited from alleging that an accused person has tailored his evidence after receiving Crown disclosure or after hearing the Crown’s evidence at the preliminary inquiry or at trial, absent evidence of recent fabrication. Such allegations are improper and unfair.             R. v. Peavoy, 1997 CanLII 3028 (ON CA). Relatedly, it is also a general rule that the prosecutor's cross-examination of an accused that is calculated to suggest to the jury that an accused's testimony was suspect because she or he had received disclosure, knew the prosecution's case and had not been asked to reveal her or his own case until testifying at trial is at once improper and potentially prejudicial. R. v. White, 1999 CanLII 3695 (ON CA). Improper cross-examination of an accused may taint a trial by causing actual prejudice to the accused or by creating the appearance of unfairness: R. v. White. However, while questions concerning disclosure are “always potentially dangerous”, not every reference to disclosure is necessarily impermissible. R. v. White.     The prudent course whenever Crown counsel wish to cross-examine on matters relating to disclosure is to vet the proposed line of questioning with the trial judge in the absence of

By |November 1st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Disclosure Cannot be Used as a Trap

Private Prosecutions: Laying an Information

Who Can Lay an Information?As set out in section 504 of the Criminal Code, “any one” who on reasonable grounds, believes that a person has committed an indictable offence within the territorial jurisdiction of the justice, etc. may lay an information in writing and under oath before a justice, and the justice shall receive the information.Section 504, Criminal Code. By use of the expansive term “any one”, section 504 permits a criminal proceeding to be initiated by a private citizen, among others, by laying an information.  “Territorial Jurisdiction” Justices of the peace have jurisdiction throughout Ontario. Section 17(1) of the Justices of the Peace Act. Section 504 of the Criminal Code makes it mandatory for a justice of the peace to receive an information, provided there is a connection between the person who is alleged to have committed an indictable offence and the "territorial jurisdiction" of the justice. In Ontario, the term “territorial jurisdiction" in section 504 refers to the province of Ontario. R. v. Ellis, 2009 ONCA 483 (CanLII), at para. 39; see section 17(1) of the Justices of the Peace Act. In other parts of Canada, where legislative schemes governing the systems of court may be different, "territorial jurisdiction" may have a different meaning. The Process of Laying an Information The process for laying an information was clearly set out by the Court of Appeal for Ontario in R. v. McHale: A private informant who wants to lay an information before a justice of the peace must complete a standard form for submission to the justice.  The private informant must provide sufficient details of the alleged offence to permit an information to be drafted, and list the names, addresses and telephone numbers of the witnesses

By |October 31st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Private Prosecutions: Laying an Information

Private Prosecutions: Pre-Enquette Hearings

The Criminal Code permits private prosecutions. In the usual course, criminal proceedings are commenced or instituted by laying an information before a justice alleging the commission of an offence [FN].  A private informant may lay an information provided he/she does so in conformity with section 504 of the Criminal Code. As long as the information alleges an offence known to law and is facially compliant with the requirements of the Criminal Code, the justice must receive the information.  The justice takes the information under oath and affixes his or her signature to the jurat on the written Form 2. R. v. McHale, 2010 ONCA 361, at para. 42; see section 504, Criminal Code. But the laying of the information does not compel the person named as the accused to attend court to answer to the charge. Where an information laid by a private informant has been received by a justice, the justice must refer it to a provincial court judge or a designated justice of the peace to consider whether to issue process (a summons or a warrant) to compel the appearance of the person charged.  See section 507.1, Criminal Code.   The hearing to determine the issue of whether to issue process to compel the appearance of the named accused to answer the charge is known as a pre­-enquette hearing. In the context of private prosecutions, the pre-enquette hearing is governed by section 507.1, Criminal Code. Notice to the Attorney-General  In order for process to be issued, the Attorney General must receive a copy of the private information and reasonable notice of the pre-enquette hearing: See ss. 507.1(3)(b) and (c). The Criminal Code does not provide a specific form of notice. The Hearing The Attorney General must have

By |October 30th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Private Prosecutions: Pre-Enquette Hearings

The Authority of the Attorney General to Stay Proceedings

The right and duty of the Attorney‑General -- as chief law officer of the Crown -- to supervise criminal proceedings (both indictable and summary) is a fundamental part of our criminal justice system.Unlike the authority to withdraw charges, the authority of the Attorney General or an instructed agent to direct entry of a stay of proceedings is statutory.  It is found at section 579 of the Criminal Code.There is no statutory power in a court to stay proceedings.  A court’s ability to stay an information or charge is found within the common law (a subject which I will leave to another day).  The Ability to Stay “Proceedings” While the Attorney General along with its counsel has the authority to direct that proceedings be stayed, the Criminal Code provides no definition of the term “proceedings”.  It is well-settled, however, that criminal proceedings are instituted or commenced by the laying or receipt of an information. R. v. McHale,2010 ONCA 361 (CanLII), at para. 43, 70.  Section 579(1) permits the direction to enter a stay to be given “at any time after any proceedings in relation to an accused…are commenced”. This permits the Attorney General to enter a stay of proceedings on an information laid before a justice prior to determination by the justice as to whether or not to issue process. See Re Dowson and the Queen, 1981 CanLII 87 (ON CA), 62 C.C.C. (2d) 286. This differs from the Crown’s ability to withdraw an information or charge, which commences when the criminal prosecution begins, the point at which process is issued. The entry of a stay is a statutory administrative discretion given to the Attorney-General, and, if exercised, its direction is to the Clerk of the

By |October 29th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Authority of the Attorney General to Stay Proceedings

The Authority of the Attorney General to Withdraw an Information

Despite the absence of express or necessarily implied authority in the Criminal Code, it is well-established at common law that the Attorney General has the authority to withdraw an information or charge prior to plea. R. v. Dick, 1968 CanLII 231 (ON SC), [1968] 2 O.R. 351 (H.C.J.), at p. 359; R. v. Osborne (1975), 11 N.B.R. (2d) 48 (S.C.(A.D.)), at paras. 17 and 30; R. v. Blasko, [1975] O.J. No. 1239 (H.C.J.), at paras. 5 and 6; Re Forrester and The Queen (1976), 33 C.C.C. (2d) 221 (Alta. S.C.(T.D.)), at pp. 223-5.Leave of the presiding judge is required to withdraw an information or charge after plea[FN].The authority of the Attorney General to withdraw an information or charge in advance of plea, however, is wide.  No authority limits the right of an agent of the Attorney General to withdraw an information to only those informations laid by law enforcement officials.  The Attorney General may, therefore, withdraw an information which has been laid by a private informant.See R. v. McHale, 2010 ONCA 361, at para. 33. While the business of withdrawals is strictly that of the Attorney General and its agents, and is subject to very limited review by the courts (R. v. McHale, 2010 ONCA 361, at para. 36), the courts have commented that the Crown may not be permitted to withdraw charges if its decision to withdraw is based on an oblique or inappropriate motive, such as an attempt to circumvent an adverse ruling by the court.See R. v. Dick; R. v. Scheller 32 C.C.C. 273;  but see R. v. Scott, [1990] 3 SCR 979, 1990 CanLII 27 (SCC), where the Crown stayed the proceedings in order to protect the identity of an informer (and later recommenced proceedings)

By |October 27th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Authority of the Attorney General to Withdraw an Information

Criminal Appeals and Electronic Documents

Criminal appeals to the Court of Appeal for Ontario involve a lot of paper:·         transcripts of lower court proceedings (most spanning multiple days or weeks of trial), ·         an appeal book, ·         a factum, ·         a book of authorities (sometimes multiple volumes) Five copies of each.  The appellant must serve a copy of each on the Crown, three copies are to be filed with court, and counsel for the appellant will want to retain a copy. In today’s world, it makes sense that some of the printed material would be replaced by the filing of electronic documents. And file electronic documents appellate counsel must.  In addition to filing all the requisite paper copies with court, in criminal appeals the appellant is required to order, serve and file with proof of service a searchable electronic version of the transcript of the lower court proceedings. Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (effective March 1, 2017). The appellant should also file an electronic copy of the appeal book and the parties are requested to file an electronic version of any factum. While the filing of electronic documents may/may not assist the panel hearing the appeal, it adds an additional procedural step for those bringing the appeal without reducing the amount of printed material. In my opinion, the time has come for trial transcripts and the book of authorities to be provided solely as electronic documents.  Technology allows it; law makes it possible [FN]; and, arguably, even the way in which transcripts and the book of authorities are used in appeals as quick reference points (at least in the hearing itself), makes the primacy of the electronic format preferable. In Girao v. Cunningham,

By |October 24th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Criminal Appeals and Electronic Documents

Appeals: Why So Much Paper?

Criminal appeals to the Court of Appeal for Ontario involve a lot of paper:·         transcripts of lower court proceedings (most spanning multiple days or weeks of trial), ·         an appeal book, ·         a factum, ·         a book of authorities (sometimes multiple volumes) Five copies of each.  The appellant must serve a copy of each on the Crown, three copies are to be filed with court, and counsel for the appellant will want to retain a copy. In today’s world, it makes sense that some of the printed material would be replaced by the filing of electronic documents. And file electronic documents appellate counsel must.  In addition to filing all the requisite paper copies with court, in criminal appeals the appellant is required to order, serve and file with proof of service a searchable electronic version of the transcript of the lower court proceedings. Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (effective March 1, 2017). The appellant should also file an electronic copy of the appeal book and the parties are requested to file an electronic version of any factum. While the filing of electronic documents may/may not assist the panel hearing the appeal, it adds an additional procedural step for those bringing the appeal without reducing the amount of printed material. In my opinion, the time has come for trial transcripts and the book of authorities to be provided solely as electronic documents.  Technology allows it; law makes it possible [FN]; and, arguably, even the way in which transcripts and the book of authorities are used in appeals as quick reference points (at least in the hearing itself), makes the primacy of the electronic format preferable. In Girao v. Cunningham,

By |October 24th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Appeals: Why So Much Paper?
error: Content is protected !!

Recent Posts