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Errors on Search Warrants Even After All these Years

The Face of a WarrantThe face of the warrant is the document that empowers police to search a particular location for particular evidence. Re Times Square Book Store and the Queen, 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503; R. v. Parent, 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385; R. v. Ricciardi, 2017 ONSC 2788 (CanLII); R. v. Merritt, 2017 ONSC 80 (CanLII).  It is vitally important that search warrants are clear on their face. Clarity on the face of a warrant ensures that police officers know the scope of the judicial authorization. Officers must be guided in the execution of the search warrant by the parameters imposed by the issuing justice. If the warrant is not clear on its face, no such guidance can be obtained. R. v Nguyen, 2017 ONSC 1341 (CanLII), The Interplay between the Face of a Warrant and the ITO The section of the warrant document known as the “Information to Obtain” provides an issuing justice the grounds to either grant or deny the police the right to search the location described on the face of the warrant for certain evidence.  However, the ITO is not part of the warrant that a searching officer is expected to examine.  Instead, the searching officer is only required to familiarize themselves with the face of the warrant in order to understand the parameters of the search.  As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the "fellow officer" test -- that is, would a fellow officer be able to understand the items sought and the location to be searched as a

By |March 16th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Errors on Search Warrants Even After All these Years

When can the Police ask if the Accused Wishes to say Anything in Answer to the Charge?

Among other things, the right to retain and instruct counsel under section 10 (b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269. This helps ensure that detainees understand their legal rights and obligations, and most importantly, that they understand their right to remain silent, so they can make an informed decision about whether to waive their right to silence after receiving legal advice relevant to their situation. The standard police caution, customarily read to the accused upon arrest, informs the suspect in plain language of his/her right to remain silent.  For instance, it may be as brief as: “You are not obliged to say anything but whatever you do say may be given in evidence. Do you understand?” The question, “Do you wish to say anything in answer to the charge?” has also been a common feature of the standard police caution. See for instance R. v. Singh, 2007 SCC 48 (CanLII), at para. 31. While a police caution is not mandatory, courts quickly recognized that the presence of a caution helps prove that a suspect made a voluntary statement. R v Boudreau, 1949 CanLII 26 (SCC), [1949] SCR 262, 7 CR 427; R v KF, 2010 NSCA 45 (CanLII) at paras 21-38, 290 NSR (2d) 387. Where the accused has invoked his right to counsel, the question, “Do you wish to say anything?” violates the constitutional duty of police to hold off under section 10(b) of the Charter if that question elicits an incriminatory response from the accused. R. v. G.T.D., 2018 SCC 7.  Postscript:  If

By |February 27th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on When can the Police ask if the Accused Wishes to say Anything in Answer to the Charge?

Challenging the Validity of a Guilty Plea

To be effective a guilty plea must be voluntary, unequivocal and informed. And to be informed, the person pleading guilty must be aware of the nature of the allegations said to constitute the offence, the effect of the plea;,and the consequences of the plea.R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 371. A guilty plea is a formal in-court admission of guilt. It constitutes a waiver not only of the accused’s right to require the Crown to prove guilt beyond a reasonable doubt by properly admissible evidence, but also of the related procedural safeguards in the criminal trial process, some of which are constitutionally enshrined and protected.  T.(R.), at p. 519; Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41, at p. 49. On an appeal from conviction, an accused may challenge the validity of a guilty plea, but bears the onus of showing, on a balance of probabilities, that the plea was invalid because one (or more) of the elements essential to a valid plea was lacking.  In the usual course, an appellate challenge to the validity of a guilty plea entered at trial involves the introduction of fresh evidence in support of the claim, as well as a review of the trial record: T.(R.), at p. 519. An appellate court retains a discretion, exercisable in the interest of justice, to receive fresh evidence to explain the circumstances that led to the plea and to demonstrate that a miscarriage of justice has occurred.R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 19; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369, at para. 34. R. v. Faulkner,

By |February 24th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Challenging the Validity of a Guilty Plea

Disclosure of Defence Materials Reviewed by its Witnesses in Preparing for Trial

Litigation privilege applies to non-confidential communications between a lawyer and third parties, it exists only in the context of litigation, and it ends when the litigation (and all closely-related litigation) has ended. It is based on the need of the adversarial process to provide a zone of privacy to facilitate investigation and preparation of cases for trial. Solicitor-client privilege protects a relationship, while litigation privilege protects a process. Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 28. Although all statements of Crown witnesses must be disclosed to the defence before trial, there is no reciprocal obligation on the defence. R. v. Stinchcombe, [1991] 3 S.C.R. 326 There is no traditional litigation privilege over Crown witness statements made during interviews with Crown counsel in preparation for trial. This is because the Crown cannot claim privilege over that which it is obliged to disclose. R. v. Malik, 2003 BCSC 1709 at para. 9. Litigation privilege attaches to defence witness’ statements made during interviews with defence counsel in the same circumstances. However, an accused implicitly waives litigation privilege over the witness’ statement when the witness has read the document either while testifying or at a reasonable time prior to testifying, and that this has assisted the witness to refresh his/her memory in some way.[FN] R. v. Mitchell, 2018 BCCA 52, at para. 45. When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. R. v. Sachkiw, 2014 ONCJ 287, at para. 62. The Crown is entitled to explore through cross-examination the impact of the statement on the witness’ recollection of the events in

By |February 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Disclosure of Defence Materials Reviewed by its Witnesses in Preparing for Trial

Care & Control Over 80 as an Included Offence

An included offence is a distinct offence that arises from the same facts and is necessarily committed where the charged offence has been committed.R. v. Ovcaric (1973), 11 C.C.C. (2d) 565 (Ont. C.A.);R. v. G.R., 2005 SCC 45 (CanLII), [2005] 2 S.C.R. 371, at para. 25. It is not unfair to try the accused on an included offence since the charge laid alerts the accused person that they are alleged to have satisfied all of the elements of the included offence, as well as the charged offence. [FN] R. v. Pawluk, 2017 ONCA 863, at para. 28.   For instance, a person charged with impaired driving is sufficiently informed that they also face the included offence of impaired care or control. See R. v. Plank (1986), 28 C.C.C. (3d) 386 (Ont. C.A.). Similarly, a person charged with driving over 80 is sufficiently informed that they also face the included offence of care or control over 80. R. v. Pawluk, 2017 ONCA 863, at para 28.  [FN]: However, where the Crown has actively induced the accused, to their detriment, into believing that the Crown is proceeding only on the theory of the charged offence, it may well be unfair for the Crown to rely on an included offence, and for a trial judge to convict on one: R. v. Pawluk, at para. 30 (obiter).

By |February 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Care & Control Over 80 as an Included Offence

The Permissible Length of an Investigative D­­etention

Investigative Detentions and the ConstitutionSection 9 of the Charter provides that everyone has the right not to be arbitrarily detained. A detention will not be arbitrary if it is lawful. One type of lawful detention is a common law investigative detention. This power allows the police to detain people for investigation “if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary.” However, the investigative detention must be “brief in duration” and conducted in a reasonable manner. R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45. All Investigative Detentions Must Be Brief The permitted duration of an investigative detention is determined by considering whether the interference with the suspect’s liberty interest by his continuing detention was more intrusive than was reasonably necessary to perform the officer’s duty, having particular regard to the seriousness of the risk to public or individual safety.   R. v. Clayton, at para. 31; R. v. Mann, at p. 324;  R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 36. However, an investigative detention that is not brief cannot be constitutionally sustained. The purpose of the brief detention contemplated under the investigative detention power is to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect.   R. v. Barclay, 2018 ONCA 114, at para. 29.  “Brief” describes a range of time, not a precise limit.  While all investigative detentions must be brief, the permitted duration of an investigative detention is case-specific and is informed by a number of factors (set out

By |February 8th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Permissible Length of an Investigative D­­etention

Ineffective Representation: Failure of Trial Counsel to Bring a 276 Application

An accused is constitutionally entitled to effective representation.  Effective representation means reasonably competent representation.  Counsel’s performance is measured without the benefit of hindsight and bearing in mind that the reasonable exercise of professional judgment will in many instances allow for different tactical decisions.R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520, at paras. 27-28. Was there a miscarriage of justice? If an accused who receives ineffective representation at trial is convicted, the conviction must be quashed if the result is properly characterized as a miscarriage of justice.  A miscarriage of justice occurs if the ineffective representation either: a.      Sufficiently undermines the reliability of the verdict ·       the reliability of a verdict is sufficiently undermined if the appeal court concludes that there is a reasonable probability that the verdict would have been different had the appellant received adequate legal representation. b.     Results in an unfair trial.  See R. v. Prebtani, 2008 ONCA 735 (CanLII), at para. 4;  R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883, at paras. 74-80 (C.A.), leave to appeal to SCC refused, [1996] S.C.C.A. No. 347. Failure of trial counsel to bring a 276 application Section 276 of the Criminal Code requires that before evidence can be adduced of sexual activity other than the activity alleged in the charge, counsel must apply for and obtain an order permitting the eliciting of that evidence.  In some instances, appellate counsel will be able to establish that the failure of trial counsel to bring a 276 application sufficiently undermined the reliability of the verdict. See for example R. v. Walendzewicz, 2018 ONCA 103, at para. 10.   However, the failure of trial counsel to even attempt to bring a s.

By |February 7th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Ineffective Representation: Failure of Trial Counsel to Bring a 276 Application

Subjective Expectation of Privacy

 Section 8 of the Canadian Charter of Rights and Freedoms protects an individual’s reasonable expectation of privacy from unreasonable state intrusion.R. v. Tessling, 2004 SCC 67 (CanLII) at para. 18; R. v. Orlandis-Habsburgo, 2017 ONCA 649 (CanLII), 352 C.C.C. (3d) 525, at para. 37.  State conduct that infringes on an individual’s reasonable expectation of privacy will be treated as a search for the purposes of section 8. R. v. Buhay, 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631, at para. 18; R. v. Spencer, 2014 SCC 43 (CanLII), [2014] 2 S.C.R. 212, at paras. 16-17.  In considering a reasonable expectation of privacy claim, the court begins by identifying the subject matter of the claim. It then asks first, did the claimant have a subjective expectation of privacy in the subject matter, and second, if so, was that expectation objectively reasonable, having regard to the totality of the circumstances?  R. v. Spencer, 2014 SCC 43(CanLII), [2014] 2 S.C.R. 212, at para. 18. A subjective expectation of privacy is an important factor to be taken into account when deciding whether in the totality of the circumstances the claimant had a reasonable expectation of privacy.  A subjective expectation of privacy cannot, however, be a prerequisite to a finding of a reasonable expectation of privacy.  Otherwise, the protection afforded to personal privacy by s. 8 would shrink in direct correlation to the pervasiveness and notoriety of state intrusions upon personal privacy:   Tessling, at para. 42; R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 44; R. v. Ward, 2012 ONCA 660 (CanLII), at paras. 86-87. Section 8 protects the privacy interests that the citizen subjectively believes ought to be respected by the government and that society is prepared to

By |February 7th, 2018|Categories: Reasonable Expectation of Privacy, Stuart O'Connell Criminal Blog|Comments Off on Subjective Expectation of Privacy

Alibi: Wasn’t There, Wasn’t Me

The defence of alibi (Latin for “elsewhere”) arises where there is an air of reality that, at the time of the commission of the offence, the accused was not present at the scene of the crime.The requirements of an alibi are strict; evidence that an accused had only a limited opportunity to commit a crime is not an alibi.R. v. Tomlinson, 2014 ONCA 158, at para. 55. Proper Notice of an Alibi Failure to give proper notice of an alibi permits the trier of fact to draw an adverse inference when weighing the alibi.  Proper disclosure of an alibi has two components: 1.       adequacy, and 2.      timeliness. That is, disclosure of an alibi should be given with sufficient particularity and early enough to permit the authorities to investigate the alibi meaningfully. Notice need not come from the accused or his counsel. Notice from a witness will suffice. Nor must notice be delivered to the Crown. Notice to the police will suffice. Improper notice can only weaken alibi evidence; it cannot exclude it. R. v. Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 S.C.R. 175, at para 3, 4. The Disbelieved Alibi Versus the Concocted Alibi A trier of fact may find that the alibi is untrue because it was not disclosed when it is reasonable to assume an innocent person would have disclosed it. R. v. Hill (1995), 1995 CanLII 271 (ON CA), 102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 477-479. However, in the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value. R. v. Hibbert(2002), 163 C.C.C.(3d) (SCC).

By |February 1st, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Alibi: Wasn’t There, Wasn’t Me

Gladue Hearings: Systemic or Background Factors

When sentencing an Aboriginal offender, courts must consider: (1)    The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts.To do this courts are to take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples.  These matters provide the necessary context for understanding and evaluating the case‑specific information presented by counsel.  (2)    The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. R. v. Gladue, 1999 CanLII 679 (SCC), at para. 66. Aboriginal Offender not required to establish causal connection  It is an error in principle for a sentencing judge, in assessing the first branch of the Gladue framework, to require an offender to establish a causal link between systemic and background factors and the commission of the offence. R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. R. v. F.H.L.,2018 ONCA 83, at para. 32; R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at paras. 32-33;  R. v. Kreko, 2016 ONCA 367, at paras. 20-21. Such a requirement displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples and imposes an evidentiary burden on offenders that was not intended by Gladue. Ipeelee, at para. 82.

By |January 31st, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Gladue Hearings: Systemic or Background Factors
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