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Challenging the Warrant: The Ability of the Defence to Cross-examine the Affiant even though it has already done so at the Preliminary Inquiry

Although the defence cannot challenge the validity of a search warrant at the preliminary inquiry, it can seek to cross-examine the affiant of the affidavit in support of the application for the search warrant under the authority of R. v. Dawson (1998), 1998 CanLII 1010 (ON CA). 

The defence is not obligated to accept cross-examination of the affiant at the preliminary inquiry as a substitute for cross-examination at trial. 

When the defence shows a reasonable likelihood that cross-examination of the affiant on the s. 8 application at trial will generate evidence tending to discredit the existence of one or more of the grounds for the issuance of the warrant, the defence is entitled to conduct that cross-examination as part of the s. 8 application at trial regardless of whether that cross-examination will add to the cross-examination conducted at the preliminary inquiry. 

R. v. Shivrattan, 2017 ONCA 23 (CanLII) at paras. 53,54 (leave to appeal to the SCC refused, 2017 CanLII 46398).
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Stu…

The End of Ontario's Criminal Injuries Compensation Board

It is not surprising that the consequences of crime fall hardest on its victims.While it is sometimes difficult to evaluate the extent of the effects of crime, it has been estimated that 67% of the financial burdens resulting from crime--including replacing property and possessions, lost wages, health costs, time off work, funeral costs, and various other out-of-pocket expenses—are borne by the victims of crime.
This leads to an important societal question: should we leave victims to assume the greater part of those financial losses which crime has occasioned?
Since the late twentieth century, the answer to that question in both the international and domestic spheres has been, increasingly, no.
See for instance, The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the U.N. General Assembly on 29 November 1985.
A primary means by which government has sought to ameliorate the financial burden of crime on those who were not responsible for it ha…

Absconding Accused during Trial

When an Accused may be absent from his/her trial

Section 650 of the Criminal Code requires an accused to be present during his trial except in three situations:
(1) when an accused so disrupts or interferes with the proceedings he must be removed; (2) the trial court permits the accused to be absent; or (3) during a fitness hearing where allowing the accused to remain in the courtroom has the potential for causing an adverse affect upon the accused's mental condition.

Section 475 of the Code deals with what may be done when an accused "absconds during the course of his trial." [Code s. 475(1)].Under this provision, the Court may be called upon to determine at the outset whether the trial has commenced.Having found that the trial has commenced, the Court must determine whether there has been an abscondence.

Absconds
It is common ground that the meaning of Aabsconding" for the purpose of s. 475 is as defined by Martin J.A. in R. v. Garofoli (1988), 1988 CanLII 3270 (ON C…

When is a Judge Bound to Her/His Pre-trial Sentencing Position?

Where, in a pre-trial hearing, the sentencing judge agrees toimpose a particular sentence on an accused in exchange for a guilty plea, and the accused enters a guilty plea relying on the judge’s sentencing position at the pre-trial hearing, the appearance of fairness requires that the judge impose the sentence he/she committed to in the pre-trial hearing and upon which the accused relied.
R. v. O’Quinn(2001), 2002 CanLII 44942 (ON CA).
So as to avoid misunderstandings as to the appropriate sentence, where the judge has agreed to impose a particular sentence (including a sentence within a particular range), counsel should place the essence of the pre-trial discussions on the record at the time the guilty plea is entered.
R. v. O’Quinn(2001), 2002 CanLII 44942 (ON CA), at para. 14;
See also R. v. Scott, 2011 ONCA 365 (CanLII).
However, a sentencing judge is entitled to change his/her mind as to what constitutes an appropriate sentence if additional relevant facts are brought to his/her att…

R. v. Mills: Reasonable Expectations of Privacy and the Protection of Children

Children are especially vulnerable to sexual crimes and, without question, the Internet allows for greater opportunities to sexually exploit them.

Protecting children from becoming victims of sexual offences is vital in a free and democratic society, and that need can inform the scope of one's reasonable expectation of privacy under section 8 of the Charter. 

Most relationships between adults and children are worthy of s. 8’s protection, including, but in no way limited to, those with family, friends, professionals, or religious advisors.

R. v. Mills, 2019 SCC 22, at paras. 23, 24 [plurality opinion; Moldaver J, concurring].
However, an adult does not have a reasonable expectation of privacy in online communications between himself and a person he believes to be child, where the person he believes to be a child is effectively a stranger to him, and where police are aware of this.


Ibid., at para. 30. 


Thus, police did not need to obtain a warrant to capture the online communications sen…

Consequences for Foreign Nationals Convicted of Indictable Offences

A foreign national convicted in Canada of an indictable offence is inadmissible to Canada on grounds of criminality under s. 36(2)(a) of the Immigration and Refugee Protection Act. The consequences of inadmissibility for a foreign national are that she is deportable from Canada and is ineligible to become a permanent resident or to apply to enter or remain in Canada unless given an exemption by the Department of Immigration, Refugees and Citizenship Canada.
       See R. v. Moran, 2019 ONCA 217.

Immigration and Refuge Protection Act
Criminality
36 (2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising …

Rethinking W.(D.)

What an accused says in court is not always believable.  But lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.
A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.

         See R. v. J.H.S., [2008] 2 SCR 152, at para. 8,

Thus, Canada’s highest court propounded the W(D) instruction: what the Court hoped would be a simple, coherent formula to assist juries in understanding and applying the burden and standard of proof in criminal trials where an accused provides exculpatory evidence.
While the Supreme Court of Canada never intended the W(D) instruction to be a magical incantation, those who practice criminal law often recite the three-part instruction as though it were.  
However, reciting and relying solely on the wording of W(D), without elaboration, will not …