Section 12 of the Charter provides, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”A sentence will violate section 12 where it is grossly disproportionate to a fit punishment in the circumstances. A sentence is at greater risk of being grossly disproportionate where the offence captures a wide range of conduct and circumstances. See R v Forcillo, 2018 ONCA 402 (CanLII). Sexual interference is such an offence as it captures a broad range of conduct from a touch “to the worst forms of human degradation.” R v Sandercock, 1985 ABCA 218 (CanLII) at para 11. The issue of the constitutionality of the mandatory minimum for the indictable offence of sexual interference (s. 151(a) of the Criminal Code) has recently been considered by six courts of appeal across the country [FN]: 1. the Quebec Court of Appeal in Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400; 2. the Nova Scotia Court of Appeal in R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; 3. the Manitoba Court of Appeal in R. v. JED, 2018 MBCA 123, 368 C.C.C. (3d) 212; 4. the British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379; 5. the Alberta Court of Appeal in R. v. Ford, 2019 ABCA 87, 371 C.C.C. (3d) 250; and 6. the Court of Appeal for Ontario in R. v. B.J.T., 2019 ONCA 694 (September 6, 2019). In all six cases, the courts found that the one-year mandatory minimum sentence required by s. 151 of the Criminal Code contravened s. 12 of the Charter, being cruel and unusual punishment. Written by Stuart O’Connell, O’Connell Law Group. [FN] The section 151 offence
Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis. [FN]R. v. Comeau,  1 SCR 342, 2018 SCC 15 (CanLII), at para. 26.However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” Canada (Attorney General) v. Bedford, 2018 SCC 72 (CanLII), at para. 42. While the latter exception is a narrow one [FN], it has been found to have been engaged where the underlying social context that framed the original legal debate is profoundly altered. See Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII), at para. 44. Of course, lower courts have the right to make a distinction based on the background facts before them. But for a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shift” how jurists understand the legal question at issue. It is not enough that the new evidence supports an alternative interpretation of the law. See R. v. Comeau,  1 SCR 342, 2018 SCC 15 (CanLII). Written by Stuart O’Connell, O’Connell Law Group [FN] Bedford, at para. 44; Carter v. Canada (Attorney General), at para. 44.
Where an accused is charged with multiple counts and it is clear that one of the counts will be stayed in the event of a conviction of both, the Crown should consider, either before trial or before the jury is charged, whether to pursue both counts. R. v. R.V., 2019 ONCA 664, at para. 147 (obiter). The trial judge should canvass this issue with counsel during both the pre-trial and pre-charge conferences. While, ultimately, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict, Crown should be mindful of the Court of Ontario’s repeated prescription that all trials, whether judge-alone or judge and jury, should be made less complicated, not more complicated. Proceeding with duplicative counts complicates and prolongs the trial and is a recipe for jury confusion and inconsistent verdicts. See R. v. R.V., 2019 ONCA 664, at paras. 146, 147 (obiter). Unfortunately, proceeding with duplicative counts is not unusual; in fact, it is sometimes the norm. For instance, an accused suspected of sexually touching a child is commonly charged with both sexual assault and sexual interference in relation to the same conduct.[FN] In such an instance, a conviction on both counts will result in one of the counts being stayed based on Kienapple v. R.,  1 S.C.R. 729. Stuart O’Connell, O’Connell Law Group. [FN] As the Court of Appeal for Ontario noted, however, there may be cases where the distinction between sexual assault and sexual interference makes a difference, for example: where the age of the complainant is an issue; where the difference between the mens rea requirements for the two offences may make a difference; or where the Crown has
A mistake of law occurs only where a person has an honest but mistaken belief in the legality of his or her actions. Although it is not a defence to a criminal charge, mistake of law can nevertheless be used as a mitigating factor in sentencing. Offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — in committing the same offence — are unsure about the lawfulness of their actions or know that their actions are unlawful. R. v. Suter,  2 SCR 496, 2018 SCC 34 (CanLII), at para. 64 An accused who raises mistake of law as a mitigating factor on sentence has the onus of establishing, on a balance of probability, that the requisite elements of a mistake of law have been made out. Supra, at para. 68. Stuart O’Connell, O’Connell Law Group (All rights reserved to author). [FN] Confusion or uncertainty as to the lawfulness of one’s actions –while not meeting the legal requirements for mistake of law — may still be relevant to the sentencing analysis depending on the facts of the particular case. Its mitigating effect, if any, will necessarily be less than in a situation where there is a true mistake of law: Supra, at para 65.
It is a well-established principle of the criminal justice system that judges must strive to impose a sentence tailored to the individual case; this, among other things, includes considering the personal circumstances of the offender.Violent actions against an offender for his or her role in the commission of an offence — whether by a fellow inmate, or by a vigilante group — necessarily form part of the personal circumstances of that offender and should therefore be taken into account when determining an appropriate sentence. However, for policy reasons, a sentencing court should only consider this particular collateral consequence to a limited extent: giving too much weight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process. R. v. Suter,  2 SCR 496, 2018 SCC 34 (CanLII), at paras. 53, 58. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).
Racial profiling occurs where race or racial stereotypes are used to any degree in suspect selection or subject treatment”. [FN] R. v. Le, 2019 SCC 34, at para. 76; R. v. Dudhi, 2019 ONCA 665, at para. 62. Racial profiling can occur even where there is a lawful basis for suspect selection or suspect treatment. That an individual could be lawfully arrested, for instance, does not mean that he/she was lawfully arrested. Having the grounds to arrest does not, in itself, remove the possibility of racial profiling, and thus does not remove the possibility that the arrest was unlawful. A decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment. R. v. Dudhi, 2019 ONCA 665, at para. 62. Racial profiling is as difficult to prove as it is pernicious. It is seldom proven by direct evidence, but instead inferred from the circumstances surrounding the police action that is said to be the product of racial profiling. Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 95. Attitudes or beliefs do not come and go in the moment. They are held. A statement or an action of a police officer which exposes the officer as having a conscious or unconscious racist attitude or belief can be after-the-fact circumstantial evidence of the officer’s state of mind at the time of
Crown Attorneys do not owe the police a duty of care in respect of the legal advice they provide to them. Smith v. Ontario (Attorney General), 2019 ONCA 651. In order to determine whether or not a duty of care should be recognized, it is necessary to follow the two-stage Anns/Cooper test. At the first stage of this legal test, the question is whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. [FN] If this is established, a prima facie duty of care arises and the analysis proceeds to the second stage, which asks whether there are policy reasons why this prima facie duty of care should not be recognized. Mutual independence is the defining feature of the relationship between the police and Crown Attorneys. The principles of police independence and prosecutorial independence are well established within our legal system. While cooperation is also a feature of the relationship between police and Crown Attorneys, it is important to maintain their separate and independent functions. In their quasi-judicial role as “ministers of justice”, Crown Attorneys owe duties to the public at large. Imposing a private law duty of care risks putting Crown Attorneys in a conflict of interest situation. The formation of a solicitor-client relationship between the RCMP and the Department of Justice lawyer from whom the RCMP officers sought legal advice does not impose on Crown Attorneys a private law duty of care in giving legal advice. Though the Court does not explicitly state it, it would appear that the functional separation of police and Crown Attorneys as well as the principle of prosecutorial immunity resist recognizing a private law duty,
If a person consents to sexual activity knowing the partner is HIV positive, that consent is an answer to any criminal charge in respect of which the Crown must prove the absence of consent. Those charges would include assault, sexual assault, aggravated assault, and aggravated sexual assault.However, there are many such offences, including attempted murder, that do not require proof of the absence of consent. Anyone who intends to kill someone else and does something beyond preparation to bring that result about, is not morally blameless, but rather a would-be murder who is properly accountable under the criminal law. A complainant’s consent to have sex with a person he knows is HIV positive does not negate or vitiate any essential element of the offence of attempted murder. It is very unlikely, however, that a court could find that an HIV+ accused who had sex with another person had the specific intent to kill (which is required for the offence of attempted murder), as intent to kill requires a finding beyond a reasonable doubt that either: 1. the accused’s purpose was to kill another (either as an end in itself or as a means to achieving some further end), or 2. the accused decided to commit an act believing, to a virtual certainty, that the act will cause the death of another. R. v. Boone, 2019 ONCA 652 Stuart O’Connell
[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]It is improper to assign sentencing benefits because accused persons have foregone their right to testify in their own defence. This sends an inappropriate message. In R. v. Claros, 2019 ONCA 626, the Court of Appeal for Ontario held that the trial judge had erred in principle in treating as mitigating the fact that the accused did not testify in his own defence and "did not lie about anything or try to mislead [the court].” Honesty with the court is something that is expected and required by law.
Recommended Jury Instruction in Sex Assault Trials: Improper Speculation about the Complainant’s Prior Sexual Activity
[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 276(1) of the Criminal Code sets out an absolute bar against introducing evidence of the complainant’s prior sexual activity for the purpose of drawing either of two prohibited inferences: that, by reason of the sexual nature of that activity, the complainant is (a) more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) less worthy of belief.Further, where an accused seeks to introduce such evidence of the complainant’s prior sexual activity for some other purpose, that evidence is presumptively inadmissible, under s. 276(2). Thus, evidence that the accused and the complainant were involved in a sexual relationship will not always be put before the jury. It may be that in the course of a trial the jury will hear other evidence that (while not constituting evidence of the complainant’s prior sexual activity) results in the jury conjecturing that there was a sexual relationship between the accused and the complainant. An obvious example of this is when the jury hears that the accused and the complainant are or have been married. The danger of such evidence is that if the jury speculates that there was a sexual relationship, they may involve themselves in the prohibited reasoning that 276 seeks to protect against. (This danger is likely heightened, in my opinion, when the accused advances a defence of honest but mistaken belief in consent). In Canada, jurors are prohibited from disclosing the content of their deliberation. [See section 649, Criminal Code].