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Sentencing: Wilful Blindness

The mens rea required for some offences may be proven by recourse to the doctrine of willful blindness; specifically, wilful blindness acts as a substitute for actual knowledge when knowledge is a component of mens rea.Wilful blindness does not define the mens rea required for particular offences. … The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21.  Wilful blindness involves a state of what has been described as “deliberate ignorance” that involves “an actual process of suppressing suspicion”. It does not involve a failure to inquire, but an active decision not to inquire so as to avoid being fixed with knowledge. Briscoe, at para. 24, citing Don Stuart, Canadian Criminal Law: A Treatise, 5th ed. (2007), at p. 241. Courts sometimes refer to wilful blindness (vis-a-vis actual knowledge) as a lesser form of mens rea; however, any such distinction is generally not reflected in sentence. Indeed, in R. v. Sidhu the Court of Appeal for Ontario stated that wilful blindness, rather than actual knowledge, was not a mitigating circumstance on sentence: Having kept himself in the dark, [the accused] cannot rely on his lack of knowledge as a mitigating factor. R. v. Sidhu , 2009 ONCA 81 (CanLII), at paragraph 19. It appears to me, however, that there is still room for wilful blindness to operate as a factor in the mitigation of sentence.  But whether it does or not will be circumstance dependent (and not predicated on a mere distinction between actual and imputed knowledge).

By |October 23rd, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Sentencing: Wilful Blindness

Removal Orders:  Serious Criminality

 Canada’s Immigration and Refugee Protection Act ("IRPA") recognizes that there are important social, cultural and economic benefits to immigration. It also recognizes that successful integration of permanent residents involves mutual obligations for those new immigrants and for Canadian society.One obligation incumbent on permanent residents is the obligation to avoid “serious criminality”. Section 36(1)(a) of the IRPA. This obligation is breached when a permanent resident is convicted of a federal offence punishable by “a maximum term of imprisonment of at least 10 years”, or of a federal offence for which “a term of imprisonment of more than 6 months” has been imposed. Can a conditional sentence be “a term of imprisonment for more than 6 months”? A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders.  Interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality A conditional sentence does not comprise a “term of imprisonment” for the purposes of  section 36(1) (a) of the IRPA. Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at para. 28. “Punishable by a maximum term of imprisonment of at least 10 years” The phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at para. 35. [FN] The phrase “term of imprisonment” does not bear a uniform meaning within the Criminal Code. In some instances, it captures conditional sentences.

By |October 21st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Removal Orders:  Serious Criminality

Sentencing: Mental health and its Role in the Commission of the Offence

When mental health problems play a central role in the commission of the offence deterrence and punishment assume less importance. R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643,t para. 38, per Gillese J.A; see also R. v. Dedeckere, 2017 ONCA 799. The impact of mental illness on the offender’s judgment may be a factor reducing the moral blameworthiness of the offender. See R. v. Dedeckere, at para. 15.  A sentence must be fit having regard to the particular crime and the particular offender. Where the offender’s criminal conduct is driven by mental illness, it is an error for the sentencing judge not to consider an offender’s serious and longstanding mental health issues as part of that offender’s circumstances. R. v. Dedeckere, 2017 ONCA 799, at para. 16.

By |October 21st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Sentencing: Mental health and its Role in the Commission of the Offence

Evidence of Opportunity

Opportunity is the sine qua non of crime.Evidence which shows or tends to show that an accused was present at or near a place at or near the time an offence was committed is relevant, material and prima facie admissible.R. v. Doodnaught, 2017 ONCA 781, at para. 67. Where conduct occurs and the Crown alleges that a particular person did it personally, not through an agent or some other instrumentality, the person’s physical presence, within the proper range of time and place, is an item of circumstantial evidence that enhances the likelihood that the person with that opportunity – the accused – committed the offence. R. v. Doodnaught, at para. 66. However, evidence of bare opportunity to commit an offence is not, without more, sufficient to establish the guilt of an accused beyond a reasonable doubt. R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. Evidence of opportunity, insufficient on its own to establish guilt beyond reasonable doubt, may have a different complexion placed upon on it by other evidence, as for example, evidence of skill, expertise, physical capacity, or possession of tools by which an offence was committed.  R. v. Doodnaught, at para. 69; R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 436-437; R. v. Syms (1979), 47 C.C.C. (2d) 114 (Ont. C.A.), at p. 116. Explaining away opportunity It is always open to a party, such as an accused, to adduce evidence explaining away opportunity, such as by evidence of lack of physical capacity, or by evidence that tends to show the equivalent (or better) opportunity of others: R. v. Minhas (1986), 29 C.C.C. (3d) 193 (Ont. C.A.), at p. 219; R. v. Doodnaught, at para. 68.

By |October 14th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Evidence of Opportunity

Voyeurism: Secret Recordings and Expectation of Privacy

In R. v. Jarvis, 2017 ONCA 778, the Court of Appeal for Ontario, applying principles of statutory interpretation [FN] held that for the purposes of the voyeurism offence – section 162 of the Criminal Code – the reasonable expectation of privacy of the person being secretly stared at or videoed does not include a reasonable expectation that she/he not be surreptitiously recorded or observed.If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant (at para. 108).Given Huscroft J.A’s lucid dissent, I imagine that this proposition may find itself tested at the Supreme Court of Canada. Criminal Code 162(1) Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity; or (c) the observation or recording is done for a sexual purpose. [FN] Specifically, the common law presumption that Parliament does not speak in vain: although a statute may be redundant, the contrary is presumed. 

By |October 13th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Voyeurism: Secret Recordings and Expectation of Privacy

Voyeurism: Secret Recordings and Expectations of Privacy

In R. v. Jarvis, 2017 ONCA 778, the Court of Appeal for Ontario, applying principles of statutory interpretation [FN] held that for the purposes of the voyeurism offence – section 162 of the Criminal Code – the reasonable expectation of privacy of the person being secretly stared at or videoed does not include a reasonable expectation that she/he not be surreptitiously recorded or observed.If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant (at para. 108).Given Huscroft J.A’s lucid dissent, I imagine that this proposition may find itself tested at the Supreme Court of Canada. Criminal Code 162(1) Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity; or (c) the observation or recording is done for a sexual purpose. [FN] Specifically, the common law presumption that Parliament does not legislate in vain.

By |October 13th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Voyeurism: Secret Recordings and Expectations of Privacy

Voyeurism: Does the Victim Need to be Naked?

The offence of voyeurism (section 162 of the Criminal Code) was enacted in 2005 to address public concerns with the rapid advent of technology that could be used to spy on people surreptitiously for sexual purposes.“For a sexual purpose” Subsection (b) of the offence specifically makes it an offence to surreptitiously observe or surreptitiously visually record a person who is nude. Subsection (c) requires only that the surreptitious observation or surreptitious recording be “done for a sexual purpose”. Because observing or visually recording for a sexual purpose is a separate offence, it is clear that the voyeurism offence can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose. R. v. Jarvis, 2017 ONCA 778, at para. 44; for more on what constitutes “for a sexual purpose” see R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 50. In R. v. Rudiger, 2010 BCPC 182 (CanLII), the circumstantial evidence pointing to a sexual purpose was compelling.  The accused used a video camera to view and record very young children playing in a park, focusing in on their genital and buttocks regions.  There was also evidence indicating that the accused was masturbating while doing so. The finding that the recording/observation had been done “for a sexual purpose” was not challenged on appeal. In R. v. Jarvis, 2017 ONCA 778, a high school teacher used a camera pen to surreptitiously take videos of female students as he conversed with them at school.  The Court of Appeal for Ontario (at para. 46) held that the recordings, which

By |October 13th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Voyeurism: Does the Victim Need to be Naked?

Hearsay Exceptions: Res Gestae (Spontaneous Utterances)

Hearsay evidence is inadmissible for the truth of its contents unless it satisfies the principled approach to the admission of hearsay (in which both the necessity and reliability of the hearsay evidence must be established) or it falls in one of the traditional hearsay exceptions, such as the res gestae exception (pronounced “res jest-eye”).There are two situations where hearsay utterances may be admitted under the res gestae doctrine:·         Declarations accompanying and explaining a relevant act, and ·         Spontaneous utterances. R v. Sheri, 2004 CanLII 8529 (ON CA) at para. 107; but see Cross on Evidence (4th edition) at p. 502: There are "four exceptions to the hearsay rule associated with the doctrine of res gestae in criminal cases. These are statements accompanying and explaining a relevant act, spontaneous statements relating to an event in issue, a person's statements concerning his contemporaneous state of mind or emotion, and a person's statements concerning his contemporaneous physical sensation." As with all statements by an accused, the  hearsay statements are subject to the general requirements of voluntariness. R. v. Ervern(1978) 1978 CanLII 19 (SCC), 44 C.C.C. (2d) 76 at 94. Spontaneous Utterances (also known as “excited utterances”, etc.) The theory underlying the spontaneous utterance exception to the hearsay rule was explained in R. v. Khan (1988), 27 O.A.C. 142 (C.A.), at p. 148, aff’d [1990] 2 S.C.R. 531: [A] spontaneous statement made under the stress or pressure of a dramatic or startling event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly

By |October 12th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Hearsay Exceptions: Res Gestae (Spontaneous Utterances)

Expert Witnesses: the Duty to Provide Fair, Non-partisan, and Objective Assistance

Qualifying the Expert WitnessFor expert evidence to be admissible the expert must be properly qualified.   The party who tenders the witness as an expert is required to demonstrate that the witness has acquired a special knowledge of a particular topic by formal study, practical experience, or both, which extends beyond that of the trier of fact. The competence of the witness to give expert evidence, or to be qualified as an expert, does not depend on how the skill was acquired, only that it has been gained.Justice Watt, Manual of Criminal Evidence, 2013 at pg. 428.  Deficiencies in an expert’s opinion go to weight, not admissibility. R. v. Marquard, 1993 CanLII 37 (SCC) at pg. 224. Additionally, in order for the expert to be properly qualified, the expert must be willing and able to fulfil the expert's duty to the court to provide evidence that is: i. Impartial, ii. Independent, and `           iii. Unbiased. Nothing less than scrupulous vigilance from trial judges is required when dealing with the admissibility of expert opinion evidence. R. v. Livingston, 2017 ONCJ 645 (CanLII), at para. 36; see also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182, at para. 12: “We are now all too aware that an expert’s lack of independence and impartiality can result in egregious miscarriages of justice.” The court is required to consider the particular circumstances of the proposed expert and the substance of his/her proposed evidence. The test is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance. White Burgess, at para. 50. Given this test,

By |October 5th, 2017|Categories: Expert Evidence, Stuart O'Connell Criminal Blog|Comments Off on Expert Witnesses: the Duty to Provide Fair, Non-partisan, and Objective Assistance

Similar Fact Evidence: Unintentional Collusion

 In similar fact evidence cases, at the admissibility stage, the trial judge’s main task is to weigh the probative value of the evidence against its potential prejudicial effect. The possibility of collusion may significantly affect this balancing.See R. v. Wilkinson, 2017 ONCA 756 (CanLII), at para. 29. The theory of similar fact evidence turns largely on the improbability of coincidence. Collusion, by offering an alternative explanation for the "coincidence" of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility. R. v. Shearing, 2002 SCC 58 (CanLII),Shearing, at para. 40. Accused to Establish an Air of Reality to the Allegation of Collusion The dividing line between cases in which collusion is a live issue, and cases in which it is not, is the presence of an “air of reality.” As Binnie J. held in Handy,2002 SCC 56 (CanLII), at para. 111: “The issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury.” Crown must then disprove collusion on balance  Although collusion is a feature of probative value, it is singled out for special consideration at the admissibility stage. The Crown must disprove the possibility of collusion. Where, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission.  Handy, at para. 112. If this threshold test is passed, the jury must determine for itself what weight, if any, to assign to the similar fact evidence. Shearing, at para. 42. Inadvertent Collusion Collusion may

By |October 4th, 2017|Categories: Similar Fact Evidence, Stuart O'Connell Criminal Blog|Comments Off on Similar Fact Evidence: Unintentional Collusion
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