O’Connell Practitioner’s Law Blog

Home/O’Connell Practitioner’s Law Blog/

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

The Residual Discretion to Set Aside a Properly Issued Warrant

A trial judge has a residual discretion to set aside a properly issued search warrant or authorization.In order to bring him/herself within the sweep of this residual discretion, the Applicant must demonstrate that the police conduct was so subversive of the pre-authorization process that the search authority issued must be set aside to protect the process and the preventative function it serves.R. v. Paryniuk, 2017 ONCA 87 (CanLII) at para. 66, leave to appeal refused, [2017] S.C.C.A. No 81.Subversionconnotes undermining, corrupting, weakening, destroying or disrupting a system or process.Supra, at para. 74. Where the judge is satisfied that the conduct of the police has subverted the pre-authorization process through such egregious misconduct as the following: deliberate non-disclosure,  bad faith, deliberate deception, fraudulent misrepresentation and the like. a trial judge has a residual discretion to set aside a properly issue search warrant or authorization.  However, the standard to be met to invoke this discretion is high.Supra, at para. 70. As one BC court has noted: if the purpose and legitimacy of the Garofoliprocedure is not to be undermined, any such residual discretion must be exercised sparingly and only in rare cases.R. v. Wong, 2017 BCSC 306 (CanLII), at para. 102. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |January 30th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Residual Discretion to Set Aside a Properly Issued Warrant

Can the Police Enter a Shared Home with the Consent of Only One Resident?

Police entry into a shared residence is a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed. Police frequently attend residences to investigate suspected or ongoing criminal activity.  Many of those residences are inhabited by more than one person with authority to permit third parties to enter the home.  If a resident cannot consent to police entry to a shared home without the consent of all the other residents, it undermines the dignity and autonomy of that resident — especially for a victim of a crime. Further, a rule, for instance, that the police may enter the common areas of a shared home only if they obtain consent from each and every person who lives there is unworkable.  That one resident can consent to have police enter the home does not displace the privacy expectations of the other residents, however. In the case of joint residents, the question is not whether one resident can waive the constitutional rights of another. They cannot. Rather, the question is what, if any, impact the fact of joint residency has on one’s expectations of privacy, assessed in the totality of circumstances. R. v. Reeves, 2017 ONCA 365 (CanLII), at para. 49. And here, currently, the law is not entirely settled.  Commenting in obiter, a majority of the Supreme Court in R. v. Reeves, 2018 SCC 56 recognized that police entry into a shared home with the consent of only one resident raises a number of important questions: Would police also be authorized to search common areas of the home? Should the privacy interests of other residents affect the authority to seize evidence, even if in plain view? Could another resident who

By |January 22nd, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Can the Police Enter a Shared Home with the Consent of Only One Resident?

When is Disclosure Required Under Stinchcombe?

When is Disclosure Required Under Stinchcombe? It is commonplace that two different regimes govern disclosure in criminal cases: the Stinchcombe regime and the O’Connor third party records regime. The first party disclosure regime originated in Stinchcombe and was supplemented by duties imposed on the Crown and the investigating police in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.  This requires disclosure of all relevant information upon request.  Where Crown refuses disclosure   If the Crown refuses disclosure, the Crown bears the burden of establishing that the information is privileged from disclosure or “clearly irrelevant”.  R. v. Gubbins, 2018 SCC 44, at para. 29. When does Stinchcombe Govern? Where either of the following two questions yields an affirmative answer, the first party Stinchombe disclosure regime applies [FN]: (1)          Is the information sought in the possession or control of the prosecuting Crown? (2)          Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will occur when the information sought qualifies as part of the “fruits of the investigation” OR    the additional information sought is “obviously relevant” to the accused’s case. What are “fruits of the investigation”?  The term “fruits of the investigation” refers to police investigative files, not to operational records or background information. In other words, the term describes information generated or acquired during or as a result of the specific investigation into the charges against the accused. This information may relate to the unfolding of the narrative of material events, the credibility of witnesses or to the reliability of evidence that may form part of the case an accused is required

By |January 13th, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on When is Disclosure Required Under Stinchcombe?

Victim Surcharge Regime Declared Unconstitutional

Section 737 of the Criminal Code requires that a victim surcharge be imposed for every offence committed. The section removes the discretion of sentencing judges to decline to impose a surcharge based upon the specific circumstances of the offender.The imposition and enforcement of the victim surcharge creates deeply disproportionate effects for those who are the most impoverished among us, In R. v. Boudreault the Supreme Court of Canada went further, holding that “the impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable.” That is to say, the surcharge is a constitutionally impermissible form of cruel and unusual punishment under section 12 of the Charter.  The Court found that victim surcharge regime as set out in section 737 was not saved under section 1 of the Charter (the reasonable limits provision). R. v. Boudreault, 2018 SCC 58 (CanLII), at paras. 94, 97. The Supreme Court declared section 737 of the Criminal Code “to be of no force and effect immediately, pursuant to s.52(1) of the Constitution Act, 1982.” R. v. Boudreault, at para. 98.   Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

By |January 3rd, 2019|Categories: Stuart O'Connell Criminal Blog|Comments Off on Victim Surcharge Regime Declared Unconstitutional

The Failure of a Party to Call a Witness (Drawing an Adverse Inference)

A trial judge should draw an adverse inference from the failure of a party to call a witness only with the greatest of caution.See R. v. Ellis, 2013 ONCA 9 (CanLII), at para 49. An adverse inference can only be drawn where there is no plausible reason for nonproduction, in other words, where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable. See R. v. Ellis, 2013 ONCA 9 (CanLII), at para. 48. The only adverse inference that the trier of fact may drawn is that if the witness were called his/her testimony would be unfavourable, eg., would bear adversely on the credibility of the accused. An inference of guilt is not permissible.    R. v. Koffman (1985), 20 C.C.C. (3d) 232, 10 O.A.C. 29, per Martin JA. Comment on the Failure to Produce a Witness It is rarely permissible for the trial judge to comment on the failure to call a witness. Even where a comment on the failure to call a witness is appropriate, the failure to call a witness should not be given undue prominence and a comment should only be made where the witness is of some importance in the case. R. v. Koffman (1985), 20 C.C.C. (3d) 232, 10 O.A.C. 29, per Martin JA. The judge or counsel for the prosecution are prohibited from commenting on the failure of the accused (or the husband or wife of the accused) to testify. Section 4(6) of the Canada Evidence Act. Where neither the Crown nor the accused might wish to call, the jury may be so advised but the jury should not be told that if they concluded the defence

By |December 25th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Failure of a Party to Call a Witness (Drawing an Adverse Inference)
error: Content is protected !!