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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

The Guilty Plea: Too Little, Too Late

There are a number of reasons why a court will accept a guilty plea as a mitigating factor on sentence:·       A guilty plea may be an expression of remorse and an acceptance of responsibility; ·       A guilty plea may save the justice system the time and expense of a trial, and ·       A guilty plea may provide a degree of finality from the perspective of the victims which would not exist without the plea.   A plea of guilt does not entitle an offender to a set standard of mitigation. The amount of credit a guilty plea attracts will vary in each case. R. v. F.H.L., 2018 ONCA 83, at para. 22 [guilty plea did not deserve any weight as a mitigating factor]. The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable. R. v. Faulds (1994), 20 O.R. (3d) 13 (ONCA.), at para. 14; R. v. Carreira, 2015 ONCA 639, 337 O.A.C. 396, at para. 15. Therefore, where there are triable issues and a guilty plea is being made nonetheless, counsel should state as much. A very brief account of what those triable issues are adds credence to the claim.

By |January 30th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Guilty Plea: Too Little, Too Late

Withdrawing for Ethical Reasons: Court not to Inquire Further

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal.  In this situation, there is no need for the court to inquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.Assuming that timing is an issue, the court is entitled to inquire further.  Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged.  R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331 at para. 48.  If counsel asserts that ethical reasons (or, to put it more broadly, a breakdown in the client-solicitor relationship) require that he/she no longer act for the client, the trial judge is obliged to order counsel removed without any inquiry into the particulars underlying the request.R. v. Cunningham, at paras. 48-49, 58; R. v. C. (D.D.), 1996 ABCA 303 (CanLII), 110 C.C.C. (3d) 323, at para. 19, leave to appeal refused: [1996] S.C.C.A. No. 453.  Inquiry into the breakdown of the client-solicitor relationship runs a very real risk of revealing communications that are subject to client-solicitor privilege and would put trial counsel in a position where he or she had to compromise the duty of loyalty owed to the client to fully explain the breakdown of the relationship.  It is hard to think of circumstances in which any meaningful inquiry into the reason for the breakdown in the client-solicitor relationship would not potentially compromise the accused’s position and his future defence by other counsel.  R. v. Short, 2018 ONCA 1, at para. 35. Requiring counsel to represent

By |January 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Withdrawing for Ethical Reasons: Court not to Inquire Further

Applications to Remove Counsel of Record & the Need to Hear from the Accused

A client is entitled to discharge counsel at any time for any reason. If a client does not want to be represented by a particular counsel, the court cannot force that representation on the client.On an application by trial counsel to be removed from the record, it is imperative that the client’s position be known to the judge hearing the application. Some inquiry, albeit one carefully circumscribed to avoid entrenching on client-solicitor privilege, is necessary.               R. v. Short, 2018 ONCA 1, at para. 40 (obiter).

By |January 13th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Applications to Remove Counsel of Record & the Need to Hear from the Accused

Jumping the Crown’s Position on Sentence

A trial judge always retains an overriding discretion to accept or reject the recommendations of counsel about the sentence that should be imposed. A trial judge is entitled to go beyond the Crown’s position on sentence if the sentence imposed is still reasonable. But when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions and provide further authorities. Ideally, the sentencing judge should give reasons for going beyond the Crown’s position. R. v. Grant, 2016 ONCA 639, at para. 164;  See also, R. v. Ibrahim, 2011 ONCA 611, at para. 16 [where reasons were not required]. It is an error in principle for the sentencing judge not to give the parties a chance to make further submissions prior to imposing a sentence above the Crown’s position. R. v. Hagen, 2011 ONCA 749 (CanLII), at para. 5;  R. v. Menary, 2012 ONCA 706 (CanLII), 298 O.A.C. 108, at para. 3; R. v. Ibrahim, 2011 ONCA 611 (CanLII);  See also, R. v. Ipeelee, 2018 ONCA 13. This error in principle entitles an appellate court to consider afresh what constitutes a fit sentence for the offender.

By |January 13th, 2018|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Jumping the Crown’s Position on Sentence
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