Stuart O’Connell Criminal Blog

Home/Stuart O'Connell Criminal Blog

Dangers of Hearsay

Hearsay is an out-of-court statement tendered for the truth of its contents.While all relevant evidence is generally admissible, hearsay is presumptively inadmissible, given the dangers it presents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Hearsay dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact. R. v. Khelawon, 2006 SCC 57 (CanLII), at paras. 35. The core hearsay dangers are as follows—Perception    The declarant may have misperceived the facts to which the hearsay statement relates; Memory Perception Even if correctly perceived, the relevant facts may have been wrongly remembered; The declarant may have narrated the relevant facts in an unintentionally misleading manner; The declarant may have knowingly made a false assertion. R. v. Bradshaw, 2017 SCC 35 (CanLII), at para. 20; R. v. Khelawon, 2006 SCC 57 (CanLII), at para. 2; R. v. Baldree, 2013 SCC 35 (CanLII), [2013] 2 S.C.R. 520.

By |November 15th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Dangers of Hearsay

Directed Verdicts of Acquittal

In a typical criminal case, the Crown Prosecutor leads evidence in an attempt to prove beyond a reasonable doubt all the essential elements of each of the charges before the Court. When the Crown has concluded its case, the Court invites the accused to call evidence. Before deciding whether to call evidence it is open to the accused to bring an application for a directed verdict of acquittal on the basis that no reasonable jury, properly instructed, could return a verdict of guilty.A directed verdict of acquittal (also called a non-suit) is a creature of the common law. R. v. Litchfield, 1993 CanLII 44 (SCC).   A directed verdict takes its name from the fact, that historically, the trial judge literally directed the jury to return a verdict of not guilty (a procedure which was reformed in 1994 in R. v. Rowbotham, [1994] 2 S.C.R. 463). It is only after the prosecution has formally closed its case that an application for a directed verdict can be brought. The test a trial judge is to apply on an application for a directed verdict is the same as that which an extradition judge or a judge at a preliminary inquiry must employ: is there is any evidence upon which a reasonable jury properly instructed could conclude that the accused is guilty beyond a reasonable doubt? [FN1] See for instance R. v. Arcuri, 2001 SCC 54 (CanLII), at para. 21; United States of America v. Shephard, 1976 CanLII 8 (SCC). Ergo, a directed verdict will be granted if the Crown fails to call some evidence, direct or circumstantial, on each element of the offence.  Dealing with Circumstantial EvidenceWhere the Crown adduces circumstantial evidence, the court must consider whether

By |November 14th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Directed Verdicts of Acquittal

Reopening the Defence After Conviction

An application after verdict by a trial judge sitting alone to reopen the defence case or to declare a mistrial based on new evidence should not be approached as an appeal of the trial judge’s own decision. Keep in mind also that (in a judge alone trial) once the sentence is imposed the judge’s authority is spend (functus officio). When faced with an application to reopen the evidence, the trial judge should first be satisfied that the proposed evidence is relevant to a material issue in the case [see item #2, The Test to Reopen After Conviction, below]. That determination can usually be made on the basis of counsel’s summary of the anticipated evidence.R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.) at para. 17 The test for reopening the defence when the application is made prior to conviction is different from the more rigorous post-conviction test. The Test to Reopen After Conviction The legal test to reopen the defence after conviction tracks the test for admissibility of fresh evidence on appeal set out in Palmer v. The Queen, [1980] 1 SCR 759, 1979 CanLII 8 (SCC):1.        the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial although this general principle will not be applied as strictly in criminal cases as in civil cases; 2.        the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; 3.       the evidence must be credible in the sense that it is reasonably capable of belief; 4.      it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the

By |November 13th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Reopening the Defence After Conviction

Reopening the Defence After Conviction (Fresh Evidence)

An application after verdict by a trial judge sitting alone to reopen the defence case or to declare a mistrial based on new evidence should not be approached as an appeal of the trial judge’s own decision. Keep in mind also that (in a judge alone trial) once the sentence is imposed the judge’s authority is spent (functus officio). When faced with an application to reopen the evidence, the trial judge should first be satisfied that the proposed evidence is relevant to a material issue in the case [see item #2, The Test to Reopen After Conviction, below]. That determination can usually be made on the basis of counsel’s summary of the anticipated evidence.R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.) at para. 17 The test for reopening the defence when the application is made prior to conviction is different from the more rigorous post-conviction test. The Test to Reopen After Conviction The legal test to reopen the defence after conviction tracks the test for admissibility of fresh evidence on appeal set out in Palmer v. The Queen, [1980] 1 SCR 759, 1979 CanLII 8 (SCC):1.        the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial although this general principle will not be applied as strictly in criminal cases as in civil cases; 2.        the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; 3.       the evidence must be credible in the sense that it is reasonably capable of belief; 4.      it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the

By |November 13th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Reopening the Defence After Conviction (Fresh Evidence)

The Best Evidence Rule

The rule that the “best evidence must be given on which the nature of the case permits” [FN1] is an old rule has gone by the board long ago.  Underpinning that rule was an understanding that documentary proof is usually more reliable than human evidence.It is now well established that any application of the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does not. [FN2] The modern rule only requires that an original (which includes true copies or duplicate originals) should be tendered, if available. When an “original” document is unavailable, exceptionally, secondary evidence is admissible to prove the document. The court must be satisfied that an original document existed, but is unavailable: e.g. has been lost or destroyed, or is in the possession of a third party from whom production cannot be compelled.R. v. Howe, 2017 NSSC 199, at para. 48. The best evidence rule is not engaged when a document is not tendered as proof of its contents. David Watt, Watt's Manual of Criminal Evidence.  [FN] Ford v Hopkins, 1 Salk. 283 (1701). [FN2] R. v. Burton, 2017 NSSC 3 (CanLII), at para. 21: the term best evidence rule continues to be used even though what we are talking about is the documentary originals rule.

By |November 12th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Best Evidence Rule

Obtaining a New Trial on the Basis of Non-Disclosure

The right to full disclosure is just one component of the right to make full answer and defence. It does not follow that solely because the appellant’s right to full disclosure was breached, his/her Charter right to make full answer and defence was also compromised.To obtain a new trial on the basis of non-disclosure, the appellant must establish, on a balance of probabilities, that there is a reasonable possibility that the non-disclosure affected either(1) the outcome of the trial, or (2) the overall fairness of the trial process. STEP ONE      Establish Breach of the Right to Disclosure Where evidence proposed for admission on appeal has to do with information that was not disclosed prior to trial, an appellant must first establish that the undisclosed information meets the Stinchcombe standard and thus amounts to a breach of the appellant’s constitutional right to disclosure. R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 22; R. v. Taillefer; R. v. Duguay, 2003 SCC 70 (CanLII), [2003] 3 S.C.R. 307, at para. 61; T.S., 2012 ONCA 289 (CanLII, at para. 123.   The appellant must next establish, on a balance of probabilities, that the disclosure failure impaired the appellant’s right to make full answer and defence. Dixon, at para. 33; T.S., at para. 124.  STEP TWO     Establish Breach of the Right to Full Answer and Defence Trial Outcome Here the court inquires whether there is a reasonable possibility that the undisclosed evidence, when considered in the context of the trial as a whole, could have impacted on the verdict. A new trial should be ordered where it is so established. Taillefer, at para. 82; Dixon, at para. 36. Trial Fairness Here the court inquires whether

By |November 11th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Obtaining a New Trial on the Basis of Non-Disclosure

Defence Counsel Receives Disclosure Subject to an Implied Undertaking

Defence counsel or an accused receives disclosure subject to an implied undertaking:  without direction from the court, no use may be made of disclosure outside of the context of the criminal proceedings.R. v. Mossaddad, 2017 ONSC 5520, at para. 39. The Crown has an obligation to disclose all relevant information in its possession relating to the investigation against an accused. This information is know as disclosure (or the Stinchcombe disclosure package) and is provided to allow the accused to make full answer and defence to the allegation that he/she has committed an offence.     Criminal investigative files may contain highly sensitive material including:  outlines of unproven allegations; statements of complainants or witnesses — at times concerning very personal matters; personal addresses and phone numbers; photographs; medical reports; bank statements; search warrant information; surveillance reports; communications intercepted by wiretap; scientific evidence including DNA information; criminal records, etc.  R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14. The holding in R. v. Mossaddad is sensible in that there are many interests which require protection in a criminal trial, which include not only the interests of the accused person but also the privacy and safety interests of victims, witnesses and the need to protect the integrity of the administration of justice. Some of these interests will be unnecessarily imperiled if an accused is able to disseminate Crown disclosure for a purpose other than to make full answer and defence. At the same time, dissemination of part of the disclosure package by the accused may, at times, be in the public interest [FN].  As the Supreme Court of Canada instructed in R. v. Stinchcombe, [1991] 3 S.C.R. 326: "the fruits of the investigation which are in

By |November 8th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Defence Counsel Receives Disclosure Subject to an Implied Undertaking

Apologies in the Age of the Internet

An apology is one means by which an offender can demonstrate his/her remorse and take personal responsibility for wrongdoing.  The capacity of human beings who have erred to recognize the magnitude of their wrongdoing, and to redeem themselves, offers perhaps the best hope that those who have committed crimes will not repeat them.  Sincere apologies have significance, not only for courts (as they provide at least some assurance of the redirection of the offender) but also for some victims.Before determining the sentence to be imposed, the sentencing court is required to ask whether the offender has anything to say (section 726, Criminal Code).  If the offender takes this opportunity to acknowledge responsibility and apologize to his victim, he will usually find himself apologizing at a time when the victim is not physically present in court to hear the apology. In the age of the internet, an offender who wishes to make a written apology to a victim of his crime now takes a risk that the victim may post that apology on the internet.  Though that risk may be low, and one should not presume that a victim of a crime will broadcast a written apology across the internet, there is nothing stopping a victim from doing so, per se. Information put online can have unknown permanence.   An offender, particularly a young offender, should be entitled to closure at some point in time. Further, the risk of internet exposure can be a disincentive to conveying an apology.  Written Apologies and Probation Orders Where the offender is subject to a probation order, one novel way of addressing these challenges is by the inclusion of a condition such as the following: “That the offender prepare a letter

By |November 7th, 2017|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Apologies in the Age of the Internet

Appeal Court Gets Creative Around Consecutive Sentences

Consecutive or concurrent sentences.The first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of the sentences are to be served concurrently or consecutively. This question and the decision does not relate to the overall length of sentence.  Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other.See for instance, R. v. Maroti (M.), 2010 MBCA 54 (CanLII).   Risk of Deportation as a Factor on Sentence Under section 36(1)(1) of the Immigration and Refuge Protection Act, a permanent resident or foreign national is inadmissible on grounds of serious criminality whereupon he/she is convicted of ·         federal offence (which includes any offence in the Criminal Code or the Controlled Drugs and Substances Act) punishable by a maximum term of at least 10 years’ imprisonment, or ·         a federal offence for which a term of imprisonment of more than 6 months has been imposed. The risk of deportation can be a factor to be taken into account in choosing appropriate sentencing dispositions and in tailoring the sentences to fit the crime and the offender. See R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 156 (C.A.). At the same time, courts cannot impose inadequate or artificial sentences in an inappropriate attempt to circumvent problems at will in immigration matters. See R. v. Bhadwar, 2011 ONCA 266, at para. 45.  In R. v. Regis, 2017 ONCA 848 the Court of appeal for Ontario -- taking into account the fact that were the appellant to be sentenced to a period of incarceration of 6 months or more he would be subject

By |November 6th, 2017|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Appeal Court Gets Creative Around Consecutive Sentences
error: Content is protected !!

Recent Posts