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Should the Accused be Permitted to Sit with Counsel During His/Her Trial? (Part 2)

In my last blog entry, I looked at why the accused should be permitted to sit at counsel table during his/her trial.  In this blog, I look at the other side of the issue and provide some justifications as to why the accused ought to remain in his/her customary and designated location, the dock (also known as the prisoner’s box, defendant’s box, et. al).Note: counsel table or the dock are not the only locations for an accused during trial.  On occasion, courts have ordered that the defendant remain seated outside the defendant’s box but behind defence counsel Dispelling Stigma through a Direction to the Jury  One of the strongest arguments for taking the accused out of the prisoner dock is that sitting in the box connotes to the jury an aura or stigma contrary to the presumption of innocence.  Though, some courts have taken the position that the accused is no more stigmatised in the dock than is the jury in the jury box or the witness in the witness box. If counsel feel that the position of the accused in the courtroom might prejudice the jury, counsel can ask the judge for an appropriate direction. Some judges as a matter of course direct the jury that everyone in the courtroom has their traditional and individual place, including the judge and the jurors and the accused, that the accused like the judge and the jurors sits in the place traditionally reserved for him, and the jury cannot take that against the accused who is presumed innocent. R. v. Gervais, 2001 CanLII 28428 (ON SC);  R. v. Browne, 2017 ONSC 4615, at para. 14. The Design and Structure of the Particular Dock  In some courtrooms, the

By |September 14th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Should the Accused be Permitted to Sit with Counsel During His/Her Trial? (Part 2)

Should the Accused Be Permitted to Sit with Counsel During His/Her Trial? (Part 1)

At the beginning of a trial, defence counsel may bring an application to have the accused sit at the table with his counsel.   The customary position is that the accused in the courtroom remain in the dock/prisoner box. R. v. Gervais, 2001 CanLII 28428 (ON SC). The prisoner’s dock is traditionally an uncomfortable narrow wooden bench with no place to write or place pen and paper. Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security. R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327 (S.C.C). Each case must be examined on its own merits. R v Power, 1992 CanLII 7110 (NL CA), at para. 20. As the Supreme Court of Newfoundland and Labrador (Court of Appeal) has opined:  the prisoner’s dock is a form of restraint.  One might contemplate that the use of the prisoner's dock may eventually disappear completely except when it or some other facility may be necessary in the public interest for the protection of persons involved in criminal prosecutions and, in certain cases, for the security of the prisoner.  R v Power, 1992 CanLII 7110 (NL CA), in obiter. Custom is a poor rationale for perpetuating a state of affairs that may carry with it problematic, if unintentional, consequences. The argument in Gervais that it is “customary” for the accused to be in the prisoners’ box is unpersuasive.  We are now cognizant that there may be legitimate concerns regarding potential, if subtle, impacts inherent in that custom.   R. v. M.T., 2009 CanLII 43426(ON SC) The presence of the accused in the dock does not violate

By |September 13th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Should the Accused Be Permitted to Sit with Counsel During His/Her Trial? (Part 1)

Malicious Prosecution

The test for malicious prosecution is set out in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339. The plaintiff must prove that:(1) the prosecution was initiated by the defendant; (2) it was terminated in the plaintiff's favour; ·         This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. ·         where the termination does not result from an adjudication on the merits, a live issue may arise whether the termination of the proceedings was “in favour” of the plaintiff: See Ferri v. Ontario (2007) 2007 ONCA 79 (CanLII), ONCA 79, [2007] OJ No. 397 per LaForme J.A., at paras. 50-58  (3) there was an absence of reasonable and probable cause to commence the prosecution; ·         s. 108(10) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that it is for the trier of fact to determine whether there was reasonable and probable cause for instituting the prosecution. ·         prior judicial determinations made during criminal proceedings may support a finding by a civil court that there existed reasonable and probable cause for an impugned criminal prosecution, though they are not necessarily determinative.  (4) the defendant's conduct in setting the criminal process in motion was fueled by malice. ·         malice cannot be inferred from a Crown Attorney’s decision to proceed with a prosecution in the absence of reasonable and probable cause; malice must be established by proof of an “improper purpose.” ·         a plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded

By |September 12th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Malicious Prosecution

The Use of Leg Shackles and Handcuffs on the Accused

When accused persons are brought into the courtroom, handcuffs should be removed as soon as they are placed into the dock unless the court officers are aware of a security concern respecting that particular accused.  If that is the case, the officers should notify Crown counsel, preferably in advance, so that he or she may make the appropriate application before the presiding judge.R. v. Fortuin, 2015 ONCJ 116.The presiding judge has the discretion to decide whether an accused must appear in court in any form of restraint.  A hearing is required to enable the presiding judge to properly exercise his or her discretion on the issue. R. v. Jones, 1996 CanLII 8006 (ON SC), 107 C.C.C. (3d) 517. There is a longstanding presumption that accused persons appearing in court should not be restrained unless the need for restraints has been justified by the Crown. R. v. McNeill (1996), 1996 CanLII 812 (ON CA), 29 O.R. (3d) 641 (C.A); See also R. v. Wills, [2006] O.J. No. 3662 (S.C.J.) at para. 45; R. v. Zwezdaryk, [2004] O.J. No. 6137 (S.C.J.) at para. 14; R. v. Jones (1996), 1996 CanLII 8006 (ON SC), 29 O.R. (3d) 294 (Gen. Div.) at paras. 28-31. See also R. v. Cambridge Justices, Ex parte Peacock (1992), 156 J.P.R. 895 (Q.B.), at p. 902: “They [Magistrates], not the gaoler, must decide whether a prisoner should be handcuffed in court. No prisoner should be handcuffed in court unless there are reasonable grounds for the apprehending that he will be violent or will attempt to escape. If an application is made that a prisoner should be handcuffed, the magistrates must entertain it.” If the Crown takes the position that restraints are necessary, it bears

By |September 11th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Use of Leg Shackles and Handcuffs on the Accused

Rape Shield Provisions:  Evidence of Significant Probative Value

Section 276 of the Code, the so called “rape shield” provision, prohibits using any evidence of the complainant’s sexual activity other than the activity which is the subject of the charge for “twin myth” reasoning. Evidence that “the complainant has previously engaged in sexual activity, whether with the accused or any other person, is never admissible to support an inference that, by reason of the sexual nature of that activity”, the complainant is “more likely to have consented to the sexual activity that forms the subject matter of the charge” or that the “complainant is less worthy of belief”.If the evidence is to be used for a different purpose then it may only be introduced with leave of the court following the procedure set out in the section if it meets the statutory test. In particular the evidence of other sexual activity must be: ·         evidence of specific instances of sexual activity (s. 276(2)(a)); ·         relevant to an issue at trial (s. 276(2)(b)); and ·         have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (s. 276(2)(c)). Evidence of Significant Probative Value The third condition to admissibility, as stated in s. 276(2)(c), is that the accused must demonstrate that the evidence has “significant probative value”, and that the probative value “is not substantially outweighed by the danger of prejudice to the proper administration of justice”.   Evidence of “significant probative value” is evidence that has more than “trifling relevance” and is capable in the context of all of the evidence of leaving the jury with a reasonable doubt. R. v. Darrach, [2000] S.C.R. 443, at paras. 39-41.  Evidence that a sexual relationship between the accused and the

By |September 8th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rape Shield Provisions:  Evidence of Significant Probative Value

Rape Shield Provisions: “Specific Instances of Sexual Activity”

In order to be admissible under section 276(2) of the Criminal Code, the evidence must meet three preconditions, the first of which is that the evidence refer to “specific instances of sexual activity”. This requirement is designed to ensure that the nature of the proposed evidence is properly identified so that the criteria for admissibility in s. 276(2) can be accurately applied.  The provision also serves to ensure that the Crown has full notice of the evidence to be adduced and that the complainant’s legitimate interests can be properly safeguarded.R. v. B. (B.), [2009] O.J. No. 862 (Ont. Sup. Ct.), at para. 16. In an inquiry under section 276, the court is not called upon to make findings of credibility or to determine the accuracy or reliability of the evidence put forward by the accused.  See R. v. N.K., 2017 ONSC 3482, at para. 16 (obiter). Degree of Specificity will depend on the Nature of the Sexual Activity The phrase “specific instances” modifies the phrase “sexual activity”.  The degree of specificity required to meet s. 276(2) (a) depends to a large extent on the nature of the sexual activity that the accused seeks to adduce:  see R. v. Aziga, 2008 CanLII 60336 (ON SC), at paras. 21-22 (S.C.).  If an accused wants to lead evidence of a specific incident of sexual activity, the details must identify that specific incident.  If, however, the accused seeks to adduce evidence of a general nature, describing the relationship between himself and the complainant, the specificity requirement speaks to factors relevant to identifying the relationship and its nature and not to details of specific sexual encounters.  Insofar as relationship evidence is concerned, the required specifics would include reference to the parties

By |September 7th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rape Shield Provisions: “Specific Instances of Sexual Activity”

Rape Shield Provisions: Evidence that the Sexual Relationship Continued Past the Date of the Alleged Assault

Section 276(2) of the Criminal Code provides that evidence that a complainant engaged in sexual activity with the accused or anyone else, other than the sexual activity alleged in the charge (other sexual activity), is inadmissible at the instance of the accused, regardless of the purpose for which it is tendered, unless the accused meets the three criteria set down in s. 276(2).  The evidence of other sexual activity must be: ·       evidence of specific instances of sexual activity (s. 276(2)(a)); ·       relevant to an issue at trial (s. 276(2)(b)); and ·       have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (s. 276(2)(c)). Relevant to an Issue at Trial Evidence that the relationship between the complainant and the accused, including the sexual component of the relationship, carried on as it had before the alleged assault may be relevant to whether the assault occurred, where the defence takes the position that the parties carried on as if nothing had happened because nothing had in fact happened. R. v. L.S., 2017 ONCA 685 Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely.  There is a big difference between evidence that is relevant and evidence that is determinative:  see R. v. A. (No. 2), [2001] 2 W.L.R. 1546, at para. 31 (H.C.).  Evidence that the relationship continued as before is far from determinative of whether the assault occurred, but it may be relevant. R. v. L.S., 2017 ONCA 685, at para. 89.

By |September 7th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rape Shield Provisions: Evidence that the Sexual Relationship Continued Past the Date of the Alleged Assault

Sentence Was Fit Then, But Is It Fit Now?

On occasion, appellate courts have reduced a sentence which was fit when imposed because of the significant progress the offender made while awaiting the hearing of the appeal. The offender is required to establish that he/she has taken something akin to “very unusual significant strides” or “extraordinary rehabilitative efforts” since the original sentence was imposed, and -- typically -- that the sentencing objectives have been met by the offender’s extraordinary efforts. The exercise of this appellate discretion is exceptional.  As the Court of Appeal for Ontario noted in R. v. L.S., 2017 ONCA 685, at para. 117, in most cases, positive steps taken by the appellant between sentencing and the hearing of an appeal are best dealt with by the correctional authorities.  The appeal court cannot act as a de facto parole board, but must trust the parole authorities to exercise their powers to facilitate the appellant’s reintegration into the community at the earliest appropriate time. It should be noted, however, that in R. v. L. S., the principal goal underlying the appellant’s sentence (denunciation) remained as vital as it was when the sentence was imposed. Contra, see the leading case of R. v. Ghadban, 2015 ONCA 760 (CanLII). Where denunciation comprises a primary sentencing objective When an offence calls for a denunciatory sentence, the length of the sentence imposed is most often the means used by the court to send the denunciatory message.  An appellant’s positive lifestyle while on bail pending appeal does not justify departure from that norm. R. v. L.S., at para. 111. However, see R. v. Ramta, 2017 ONCA 580, where the same Court found that the public interest would be better served by allowing the appellant to continue his efforts to

By |September 7th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Sentence Was Fit Then, But Is It Fit Now?

The Informed Guilty Plea:  Immigration Consequences

Where an accused agrees to plead guilty and takes a joint position on sentence with the Crown, and where, because of the immigration status of the accused, the resulting conviction or sentence renders the accused inadmissible to Canada and subject to removal, the failure of defence counsel to have informed his client as to the serious collateral immigration consequences that will follow from his guilty plea, makes the plea uninformed.An uninformed plea is not a valid plea and, therefore, cannot form the basis of a conviction.R. v. Sangs, 2017 ONCA 683. FN: 36(1)(a) of the Immigration Refugee Protection Act, S.C. 2001, c. 27, (“IRPA”) deems inadmissible to Canada permanent residents sentenced to a term of imprisonment of six months or more, or convicted of an indictable offence punishable by a maximum term of imprisonment of at least 10 years. Under ss. 64(1) and (2) of IRPA, a permanent resident has no right of appeal from a removal order if found inadmissible on the ground of serious criminality, which includes an offence punished by a term of at least six months of imprisonment.

By |September 6th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Informed Guilty Plea:  Immigration Consequences

Guilty Plea but No Election

An accused charged with an indictable offence is entitled to elect her mode of trial under s. 536(2) of the Criminal Code if the offence is nota.       an offence listed or described in s. 469 – offences falling within the exclusive trial jurisdiction of the Superior Court of Justice, orb.       an offence listed or described in s. 553 of the Criminal Code – offences falling within the absolute jurisdiction of a judge of the Ontario Court of Justice sitting as a provincial court judge. It is well settled that the failure to comply with the election requirements in s. 536(2) (eg. putting the accused to her election as to the mode of trial) goes to the jurisdiction of the trial court.  The jurisdiction of a judge of the Ontario Court of Justice to try the accused or to receive and act upon her plea of guilty, depends entirely upon her choice of that court as her mode of trial. Absent an election under s.536(2), the provincial court judge has no jurisdiction to receive and to act upon the plea of guilty that the accused entered. R. v. Tadesse, 2017 ONCA 682, at para. 5 [guilty plea and conviction set aside and a new trial ordered].

By |September 6th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Guilty Plea but No Election
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