Stuart O’Connell Criminal Blog

Home/Stuart O'Connell Criminal Blog

Rap Lyrics as Evidence (Part 1)

“Real niggaz don’t crack to the coppers, muthafucka”.Rap lyrics are often a vehicle for social and political commentary.  Sometimes they are profane, violent, and disturbingly mean-spirited.  And sometimes they are evidence. As Crown evidence, the artistic self-expression of an accused often has little probative value.  When that self-expression is inflammatory and transgressive (as some rap lyrics are) its use at trial can be highly prejudicial. But that is not always the case. For instance, in the recent R. v. Skeete, 2017 ONCA 926, an inflammatory rap lyric (above) was held to be admissible as evidence, its probative value outweighing the prejudicial effect of its admission.Admissions Against Interest Admissions, in the broad sense, refer to any statement (or conduct) made by a litigant and tendered as evidence at trial by the opposing party. R. v. Foreman, 2002 CanLII 6305 (ON CA). The admission need not be against the declarant’s interest (notwithstanding that admissions are sometimes categorized as “admissions against interest”). Admissions are presumptively admissible without the necessity of a voir dire. [FN] R. v. S.G.T., 2010 SCC 20 (CanLII); R. v. Foreman, 2002 CanLII 6305 (ON CA), at para. 37. Admissions are received as an incident or product of the adversary system when tendered by the opposite party. Reception of admissions is rooted in the belief that what a party has previously stated can be admitted against the party in whose mouth it ill lies to complain of the unreliability of his or her own statemen. R. v. Evans, [1993] 3 S.C.R. 653, at p. 664. An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect. R. v. Terry,

By |December 3rd, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rap Lyrics as Evidence (Part 1)

Rap Lyrics as Evidence

“Real niggaz don’t crack to the coppers, muthafucka”.Rap lyrics are often a vehicle for social and political commentary.  Sometimes they are profane, violent, and disturbingly mean-spirited.  As Crown evidence, the artistic expression of an accused often has little probative value.  And when that self-expression is inflammatory and transgressive (as some forms of rap are) its use at trial can be highly prejudicial. But that is not always the case. For instance, in the recent R. v. Skeete, 2017 ONCA 926, an inflammatory rap lyric (above) was held to be admissible as evidence, its probative value outweighing the prejudicial effect of its admission.Admissions Against Interest Admissions, in the broad sense, refer to any statement (or conduct) made by a litigant and tendered as evidence at trial by the opposing party. R. v. Foreman, 2002 CanLII 6305 (ON CA). The admission need not be against the declarant’s interest (notwithstanding that admissions are sometimes categorized as “admissions against interest”). Admissions are presumptively admissible without the necessity of a voir dire. [FN] R. v. S.G.T., 2010 SCC 20 (CanLII); R. v. Foreman, 2002 CanLII 6305 (ON CA), at para. 37. Admissions are received as an incident or product of the adversary system when tendered by the opposite party. Reception of admissions is rooted in the belief that what a party has previously stated can be admitted against the party in whose mouth it ill lies to complain of the unreliability of his or her own statemen. R. v. Evans, [1993] 3 S.C.R. 653, at p. 664. An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect. R. v. Terry, 1996 CanLII 199

By |December 3rd, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Rap Lyrics as Evidence

Uneven Scrutiny of Evidence

The judge believed X. The judge didn’t believe Y. But the judge could have believed Y. Therefore, the judge applied a different standard of scrutiny. Not so, according to the authorities.R. v. O.N., 2017 ONCA 923, at para. 5.The uneven scrutiny of evidence argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. R. v. J.H. (1995), 2005 CanLII 253 (ONCA), at para. 59. A trial judge is entitled to reject an accused’s evidence on the basis of the considered and reasoned acceptance of conflicting evidence beyond a reasonable doubt. To achieve success on an argument about uneven scrutiny, the appellant must point to something in the trial judge’s reasons or elsewhere in the trial record that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and the complainant. It is not enough to show that the trial judge could have calibrated the evidence differently and reached a different conclusion. See Stuart O’Connell Law Blog, Arguing Uneven Scrutiny, 

By |December 1st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Uneven Scrutiny of Evidence

Prosecutorial Discretion

Prosecutorial discretion is an expansive term that covers all decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it.R. v. Anderson, 2014 SCC 41 (CanLII), at para. 44.It includes, among many other things, the Crown's decision to negotiate a plea agreement [FN], as well the Crown's election.             See Stuart O'Connell Law Blog, Crown Election,  Judicial non-interference with prosecutorial discretion has been referred to as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice which also recognizes that prosecutorial discretion is especially ill-suited to judicial review. See R. v. Anderson, 2014 SCC 41 (CanLII), at para. 23. Prosecutorial discretion is reviewable solely for abuse of process.  Anderson, at para. 51. The Exercise of Prosecutorial Discretion as an Abuse of Process To succeed on an application for abuse of process, the accused is obliged to demonstrate Crown conduct that was “egregious and seriously compromise[d] trial fairness and/or the integrity of the justice system”.              Anderson, at para. 50.   Only if an accused meets the threshold evidentiary burden of establishing a proper evidentiary foundation for his/her abuse of process will the court inquire into the reasons behind the exercise of prosecutorial discretion.             R. v. Delchev, 2015 ONCA 381, at para. 49;              R. v. St. Amand, 2017 ONCA 913, at para. 31 (for a recent application of this principle). [FN] R. v. Anthony-Cook, 2016 SCC 43 (CanLII), at para. 34 sets out a particular legal test as to when a court may depart from a joint submission by on

By |December 1st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Prosecutorial Discretion

Crown Election

The Criminal Code creates two categories of offences: summary conviction offences and indictable offences.The trial of a summary conviction offence is before a different court and follows a different procedure from that of an indictable offence.  An appeal against the decision at trial goes to a different court of appeal. Since indictable offences are more serious, a prosecution by indictment triggers additional procedural safeguards [FN1] and a conviction attracts more severe penalties.  Indictable offences also confront the accused with greater expense and delay, and carry greater stigma. Hybrid offences Some offences may be prosecuted either summarily or by indictment, at the Crown’s discretion.  These offences are commonly known as hybrid offences (or dual procedure offences).  Hybrid offences do not comprise a third category of offences.  In hybrid offences, the same essential elements must be proven whether the Crown elects to proceed by way of indictment or by summary conviction. In virtue of s. 34 of the federal Interpretation Act, hybrid offences are deemed at law to be indictable unless and until the Crown has elected to proceed summarily.   R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570, at para. 64 (in dissent, but not on this proposition); See Interpretation Act, R.S.C., 1985, c. I-21, section 34(1)(a). Crown Election The Crown is entrusted with making the necessary determination whether to proceed summarily or by indictment, different means of prosecuting the offence.  The Crown derives its power to proceed by indictment or summarily by common law, not statute. An indication by the Crown on the Charge Screening Form as to how it will elect (summarily or by indictment) is not the Crown’s election.              See Stuart O’Connell Law Blog, The Charge Screening Form, Crown election

By |November 30th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Crown Election

The Charge Screening Form

Typically, the Crown provides an accused with a charge screening form at the accused's first court appearance. The form sets out, among other things, how the Crown intends to elect to proceed (summarily or by indictment); whether the case is appropriate for some form of resolution outside the criminal justice system (such as diversion/direct accountability); and, if not, the sentence the Crown will seek upon the accused entering an early guilty plea.The charge screening form is not the Crown’s election and should not be regarded as such.             R. v. Hynes (2000), 46 W.C.B. (2d) 115 (Ont. C.A.).  The Crown election is made in court and on the record. As a procedural safeguard, the Crown election is recorded on the information. R. v. Mitchell 1997 CanLII 6321 (ON CA), at para. 4: The Crown election should be made expressly and recorded on the information. While the charge screening form is some indication of the Crown’s intention, it cannot and should not be regarded as indicative of a binding position in the normal course. Particularly where there is a proviso attached, it is of little assistance. R. v. Massaroni, 2000 CanLII 22810 (ON SC), at para. 15. The charge screening form is regarded as speaking to resolution at an early stage of the proceedings. [FN]             R. v. Hechavarria, 1999 CanLII 2334 (ON CA). [FN] Additionally, Legal Aid offices generally require that an application for a legal aid certificate include a copy of the Crown charge screening form.

By |November 28th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on The Charge Screening Form

Arrested at Home (Part 2):  Consent

Police are required to obtain prior judicial authorization in the form of a warrant to enter a dwelling house for the purpose of carrying out an arrest.See R v. Feeney, 1997 CanLII 342 (SCC); Sections 529-529.5, Criminal Code (“Feeney warrants”). There are three well-established exceptions to this constitutional and statutory requirement:   a.       hot pursuit,  b.      exigent circumstances, and  c.       consent.   Today’s blog deals with the exception of consent. Absent a recognized exception, a warrantless entry by the police into a dwelling house will violate section 8 of the Charter, as it constitutes an unreasonable search within the meaning of that provision.  State intrusions into the home strike at an aspect of personal privacy which has always held a special place in the law:  R. v. Golub (1997), 1997 CanLII 6316 (ON CA).  As such, unauthorized intrusions into the home constitute serious constitutional violations.  In Canada, there are no legislative provisions that authorize warrantless searches on consent. Consensual searches are, however, permissible at common law (Young v. Ewatski (2012), 2012 MBCA 64 (CanLII), at para. 54), a common law which has adjusted to comport with the constitutional status of privacy.  A search will not be unreasonable under section 8 of the Charter where the individual has consented to the state intrusion upon his or her privacy.  R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 541 (passage approved in R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at para. 34; R. v. R.M.J.T., 2014 MBCA 36 (CanLII), at para. 46; R. v. Simon, 2008 ONCA 578 (CanLII), at para. 48. To constitute a valid waiver of the s. 8 Charter right, consent must

By |November 28th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Arrested at Home (Part 2):  Consent

Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made.See R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, and Eccles v. Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739).However, in the 1997 decision of R. v. Feeney, the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.   R. v. Feeney, 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded with sections 529-.529.5 of the Criminal Code, creating what is known as the “Feeney warrant”.  To obtain the Feeney entry and arrest warrant, the police will need to satisfy a judicial officer that reasonable grounds exist to believe the person sought has committed or is about to commit an indictable offence, etc. and that the person is within the dwelling house. [FN1]  The police are generally required to announce their presence before entering the dwelling (section 529.4). In some cases, police secure lawful entry to a dwelling without a warrant and, in speaking to occupants therein and learning additional facts, such an investigation only then leads to reasonable and probable grounds to arrest, resulting in a lawful arrest. However, a warrantless end-run around Feeney requirements violates the Charter. See, for example, R. v. Adams, 2001 CanLII 16024 (ON CA);   Tymkin

By |November 22nd, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Feeney Warrants

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made.See R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, and Eccles v. Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739).However, in the 1997 decision of R. v. Feeney, the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.   R. v. Feeney, 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code, which, among other things, creates two distinct authorization procedures (each known as a "Feeney warrant"): 1.        The inclusion of judicial authorization on an arrest warrant to enter a dwelling house for the purpose of arresting or apprehending a person.   See section 529, Criminal Code. Typically, judicial authorization will be on a Form 7 Criminal Code arrest warrant (Warrant for Arrest), though it may be on any federal warrant to arrest. 2.       A “stand-alone” warrant in Form 7.1, Criminal Code (Warrant to Enter Dwelling-House) authorizing entry to a dwelling house for the purpose of arresting or apprehending a person.              See section 529.1, Criminal Code. To obtain the Feeney entry warrant, the police will need to satisfy a judicial officer that, apart from there being a lawful basis to

By |November 22nd, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Arrested at Home: Feeney Warrants

Amending the Indictment/Information at Trial

As a general rule, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment. [FN1]See R. v. B. (G.)(1990), 56 C.C.C. (3d) 200, at 215-16 (SCC); Criminal Code, s. 601(4.1): “A variance between the indictment or a count therein and the evidence taken is not material with respect to (a) the time when the offence is alleged to have been committed…” Typically, when the evidence at trial divulges that the alleged offence occurred at a time outside the timeframe alleged in the indictment/information, the Crown will bring an application under section 601(2) of the Criminal Code to have the indictment amended.  However, given that the Crown is not required to prove as part of its case that the offence date corresponded with the offence date alleged in the indictment, amendment during trial is not necessarily required in order to secure a conviction. [FN2] R. v. S.M. 2017 ONCA 878: where the trial judge erred in law in requiring the Crown to prove beyond a reasonable doubt that the offences occurred within the timeframe alleged in the indictment.  R. v. Smiley (R.R.) (1995), 1995 CanLII 960 (ON CA), 80 O.A.C. 238 [endorsement]: which considered the meaning of the phrase “on or about [date]”, standard wording in an information/indictment.  If the evidence shows an offence to have been committed within some period that has a reasonable proximity to the date alleged in the indictment, the Court may proceed without a formal amendment of the information. The ultimate question is what effect does the amendment have on the accused? Prejudice to the accused remains the litmus test against which all proposed amendments are judged. R.

By |November 21st, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Amending the Indictment/Information at Trial
error: Content is protected !!

Recent Posts