Inadmissible Anecdotal Evidence or Admissible Experience-Based Knowledge?

From time-to-time, police officers will testify as experts on the basis of expertise that has been obtained through practical experience on the job over many years. The boundaries of any proposed expert opinion must be carefully delineated.  As well, the trial judge must ensure that the expert stays within the bounds of their expertise and that the evidence is properly the subject of expert evidence.  The guilt or innocence of accused persons that the police officer had encountered in the past is generally not legally relevant to the accused’s guilt or innocence. [FN1] In R. v. J.T., 2021 ONCA 922 (CanLII), the Appellant argued that unlawful pornography had been automatically downloaded onto his computer. The forensics police officer gave evidence that in his experience he had never seen child pornography end up on a computer in an automatic fashion. The judge relied on this evidence and ultimately convicted the accused.  The admission and reliance of the evidence was challenged on appeal on the basis that it was unnecessary and irrelevant anecdotal testimony and--essentially--that in relying upon this evidence, the court was imputing the guilt of the accused from the guilt of other similarly situated offenders. The ONCA disagreed holding that the evidence was experience-based and had been provided to explain the technical operation of computers, specifically, that documents are not automatically downloaded by computers, but by human action. [FN1]  See R. v. Sekhon, 2014 SCC 15.

By |January 13th, 2022|Categories: O'Connell Law Blog|0 Comments

The Rules of Victim Impact Statements

The victim impact statement should not include opinion evidence and should be confined to discussing the harm suffered by the victim. The VIS should not encourage or urge a certain sentencing outcome. Doing so runs the risk of steering the sentence imposed based on revenge. Regardless of whether the prosecution office, or the personnel administering the program designated by the Province of Ontario (under s. 722(2)(a) of the Code), is principally involved with the victim(s), there should be some pre-filing gatekeeper function exercised in terms of ensuring that the victim impact statement(s) comply with the Criminal Code requirements. In this way, victim disappointment will be avoided R. v. Gabriel, 1999 CanLII 15050 (ON SC)

By |November 17th, 2021|Categories: O'Connell Law Blog|0 Comments

Global Sentences

In Canada, the phrase “global sentence” is used to describe a single sentence that reflects the cumulative culpability for all offences on which the offender is sentenced.   (In the US, this type of aggregate sentence is termed a “unitary” sentence). The practice of imposing a global sentence is generally discouraged outside of the context of reducing the total sentence for multiple count convictions to ensure that the sentence meets the totality principle. But even here, the sentencing judge begins by determining the appropriate sentence for each offence. See R. v. Elliott, 2012 ABCA 214 (CanLII) at para 7 for a quick summary of sentencing in multiple count situations. Judges should impose a sentence on each individual counts in order to determine the overall appropriate sentence. See section 725(1)(a) of the Criminal Code. This is so irrespective of whether the sentences are to be served consecutively or concurrently. R. v. Taylor, 2010 MBCA 103 (CanLII), at para 10. However, a failure to do so is not necessarily fatal. In R. v. T.A.P., 2014 ONCA 141 (CanLII), the Court of Appeal for Ontario provided the following guidance: [14]     The Criminal Code makes clear that, if it is possible and appropriate, sentencing judges ought to impose a sentence on each count as opposed to simply imposing one global sentence.  Section 725(1)(a) of the Criminal Code states that a court “shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences.” [15]      When a sentencing judge does nevertheless impose one global sentence for two or more counts, s. 728 of the Criminal Code applies.  Section 728 states: Where

By |November 16th, 2021|Categories: O'Connell Law Blog|0 Comments

What do you do when a juror falls asleep?

Personally, I find the law and trials fascinating, but I understand they are not everyone’s cup of tea. Take the juror in R. v. Anderson, 2021 ONCA 45 for instance; he seems to enjoy other interests.  We know this as it appears he may have fallen asleep during part of that trial. Anderson was ultimately convicted. He appealed, alleging (among other things) that a somnolent juror causes a real danger of prejudice.  That is not hard to accept, as a jury’s responsibility in a trial is to make determinations of fact—a task better performed awake than asleep. The problem with Anderson’s argument was that his trial counsel didn’t raise an objection while the juror was allegedly dozing and only made passing reference to it after it had happened. The ONCA inferred from this that the incident was not a significant one. Also, Anderson was not in a position at the time of the appeal to be able to prove that the juror had in fact fallen asleep.  By not raising his concern promptly during the trial, there had been no inquiry by the court into whether the juror had actually been sleeping. Let sleeping dogs lie, but not sleeping jurors.

What are the Drone Laws in Canada?

In recent years, drones have become an increasingly popular hobby for people of all ages. Department stores all over the country have begun to stock drones as part of their regular inventory, with models ranging in price from the low hundreds to thousands of dollars. Unfortunately, many retailers do not inform customers of the legal requirements associated with owning and operating a drone in Canada. You will not see any notices around the sales displays or general requirement for sales staff to inform the public prior to purchase. This can create a situation where a purchaser invests thousands of dollars in a drone without knowing or being told they may not be able to use it. What may be surprising to some consumers is that there are very stringent laws surrounding the ownership and operation of drones. Similar to a motor vehicle, a drone must be registered when purchased and the operator must be licensed. These facts, however, are not common knowledge, leading many Canadian’s to unknowingly break the law. Prior to purchasing a drone, it is important to understand all of the legalities surrounding ownership and operation. Registration As of June 1, 2019, all drones that are operational and weigh between 250 grams and less than 25 kilograms must be registered with Transportation Canada through the Drone Management Portal. Drones that weigh less than 250 grams do not need to be registered and drones that weigh more than 25 kilograms do not need to be registered but do require a special flight operations certificate. Once a drone has been registered, the pilot must mark the drone with the registration number prior to taking flight. Licensing According to the Canadian government, a drone is considered

Historical Sexual Assault Charges

In recent years the Supreme Court of Canada has sent an important message in relation to sentencing for sexual offences against children: the sentences must increase. Over the years, the sentencing principles used to determine the appropriate sentence for those convicted of sexual offences against children have evolved significantly. With a much deeper understanding of the lifelong trauma caused by sexual abuse, courts across Canada have begun imposing more severe penalties on those convicted. As recently as 2010, those convicted of committing explicit sexual acts on children were regularly being sentenced to lower single digit prison sentences. To reflect the trauma caused by childhood sexual abuse, the Federal government has recently amended the Criminal Code to increase the maximum penalties for those convicted of certain sexual offences against children. The maximum penalty for sexual interference for example, has increased to fourteen years in prison. In 2019, the Supreme Court of Canada released its decision in R. v. Freisen, a case involving a man charged with sexual interference after having explicit sexual contact with his intimate partner’s young daughter. The accused was sentenced to 6 years in prison at trial, but the sentenced was reduced to 4.5 years on appeal. After hearing the case the Supreme Court restored the 6-year sentence, arguing that the trial court had imposed the correct sentence. The Supreme Court went on to justify the decision by pointing out that the maximum penalty for sexual interference had increased and therefore the average sentence should increase as well. The Court argued that the appropriate sentence for an individual convicted of sexual interference of this nature is an upper single digit to lower double digit prison sentence. As directed by the Supreme Court, the

Prohibition Orders for Sex Offenders

A Prohibition Order, as outlined in section 161 of the Criminal Code, is an order placed on individuals convicted of certain designated sexual offences involving persons under the age of 16. Designated sexual offences include (among others) child pornography offences, invitation to sexual touching, sexual interference, incest, making sexually explicit material available to a child, sexual assault with a weapon, threats to a third party or causing bodily harm, and sexual assault. What does a Prohibition Order Prohibit? When an offender is convicted of a designated sexual offence, the sentencing court may order the offender to refrain from: Attending public parks or swimming areas where persons under the age of 16 are present or can reasonably be expected to be present, daycare centres, schoolgrounds, playgrounds or community centres; Being within two kilometers, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order; Seeking, obtaining or continuing any employment whether or not the employment is renumerated, or becoming or being a volunteer in a capacity, that involves being in a position or trust or authority towards a person under the age of 16 years; Having any contact – including communicating by any means – with a person who is under the age of 16, unless the offender does so under the supervision of a person whom the court considers appropriate; or Using the Internet or other digital network unless the offender does so in accordance with conditions set out by the court. What Happens if I Breach the Order? An individual who breaches a section 161 order may be charged under section 161(4) of the Code with

By |March 23rd, 2021|Categories: O'Connell Law Blog|0 Comments

Judicial Notice: Can a Judge take Judicial Notice of a Fact which the Parties have not Introduced?

Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court. Judicial notice involves the acceptance of a fact or a state of affairs without proof and may occur in two circumstances: i. When the fact is so notorious or accepted as not to be the subject of dispute among reasonable persons, or ii. When the fact is capable of immediate and accurate demonstration. In R. v. J.M., 2021 ONCA 150, the Court of Appeal for Ontario recognizes that judicial notice also has a procedural dimension. The procedural dimension of judicial notice bears on the answer to the question: What is required when a judge--on his/her own initiative--wishes to take judicial notice of a fact? The procedural dimension [36]      The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversarial process ensures a transparent consideration of the request. [37]      More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: “Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:” at §19.61. [38]      Where a judge, on his or her

New Changes to Sex Offences in 2021

Recent Changes and Guidance from the Supreme Court of Canada In recent years, the Supreme Court of Canada has made several important changes to how sexual assault cases are prosecuted in Canada. Sexual assault and the impacts of sexual violence on victims was brought to the forefront of our society in 2017 with the MeToo movement. This movement changed the way many sexual assault victims were treated by the justice system and is continuing to change the way our courts handle such offences. In 2020, 10 of the 26 criminal cases on the docket for the Supreme Court involved sexual offences. In deciding these cases, the Supreme Court sent a strong message to the justice system; the sentences for those convicted of sexual offences involving children must increase. Ranges have pushed up considerably to mid-reformatory sentences, even with a guilty plea. In recent years, the federal government has enacted legislation enhancing the maximum penalties for offenders convicted of sexual offences involving children. Offences of this nature have become among the most serious offences Canadian’s can be charged with which is now reflected in the sentencing guidelines. In the 2019 Supreme Court case R. v. Friesen, the Supreme Court opined that since the maximum penalties for those convicted of sexual offences against children have increased, so too should the sentences imposed on offenders. The Court provided a non-exhaustive list of factors that should be considered when determining the appropriate sentence for an offender. The list included whether or not the accused felt remorse for their actions, whether they had insight into their behaviour, and whether there was a high risk of recidivism. The Court also provided a sentencing range of upper single digit to lower double

By |February 27th, 2021|Categories: O'Connell Law Blog|0 Comments

What’s the Law on Reporting Child Pornography?

In 2011, the federal government enacted a piece of legislation called An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The Act sets out various reporting duties and other regulations that apply to Internet service providers who become aware of child pornography offences. Duty to Report Internet Address Section 2 of the Act stipulates that if a person is advised, in the course of providing Internet service to the public, of an Internet Protocol (IP) address or a Uniform Resource Locator where child pornography material may be available to the public, the person must report the IP address or Uniform Resource Locator to law enforcement officials. The Act does not authorize Internet providers to seek out child pornography material. Duty to Notify Police Officer Section 3 of the Act creates a duty to notify an officer, constable or another person employed for the perseveration and maintenance of the public peace, where a person providing Internet services has reasonable grounds to believe their service is being used to commit a child pornography offence. Preservation of Computer Data Section 4 of the Act creates a duty to preserve all related computer data in the Internet providers possession for a period of 21 days after a notification is made to an officer constable or another person employed for the perseveration and maintenance of the public peace. No Disclosure Section 5 of the Act stipulates that an individual must not disclose that they have made a report under section 2 of the Act or a notification under section 3 of the Act, or disclose the contents of the report or notification, if the disclosure could prejudice a criminal investigation, whether or

By |February 25th, 2021|Categories: O'Connell Law Blog|0 Comments