Stuart O'Connell Criminal Law Blog

As part of its inherent jurisdiction, a Superior Court has the discretionary authority to permit an individual’s testimony to be audio recorded for the purpose of facilitating voice analysis of that witness where doing so is necessary to ensure “justice between the parties and to secure a fair trial between them”. R. v. Dunstan , 2017 ONCA 432, at para. 46, in obiter.   In R. v. Dunstan , the defence sought an order from a Superior Court judge permitting the defence to use a high-quality microphone to record the testimony of a particular police officer.   The defence alleged that the officer had staged a break-in to the accused’s home and placed the anonymous call to police reporting a break-in in order to gain access to his house illegally. Police responding to the anonymous call discovered significant amounts of various drugs and cash. On the evidentiary record, the defence was able to establish an air of reality to its allegation. Inherent Jurisdiction Inherent jur

Examples of a Secondary Caution The standard police secondary caution reads as follows: You must understand that anything said to you previously should not influence you nor make you feel compelled to say anything at this time.  Whatever you felt influenced or compelled to say earlier you are not now obliged to repeat, nor are you obliged to say anything further, but whatever you do say may be given in evidence.  Do you understand? Another common form of the police caution (a pared down version of the above example) given to a person who has been charged with an offence is the following:  You are charged with . . .  Do you wish to say anything in answer to the charge?  You are not obliged to say anything but whatever you do say may be given in evidence. The Function of a Secondary Caution A secondary caution can serve to insulate subsequent interviews from previous errors or misconduct on the part of other police officers, inform the suspect of his right to remain silent

When police officers undertake tasks that are repetitive (such as the administration of a roadside test) contemporaneous note-taking is crucial to allow officers to recall evidence with precision.   The repetitive nature of a task lends itself to a blending of different factual situations with the passage of time. R. v. Dinh , 2010 ONCJ 540 (CanLII), at para. 35. R. v. Dinh involved alleged impaired driving and a breath sample device that malfunctioned or failed due to an uncooperative driver. The evidence from two officers varied or was contradictory in relation to device calibration and officer and driver location.  Given that case’s circumstances, contemporaneous note-taking was deemed crucial.  And on the subject of police notes and credibility— While officers cannot be held to a standard of perfection in note-taking, the completeness or accuracy of police notes may have an impact on the case where the credibility of an officer is an issue. R. v. Relleve , 20

Thanks to all those who follow me following the law.   I began the blog in November of 2016; lots more to come.                       "Law never is, but is always about to be." Benjamin Cardozo Stuart O'Connell, O'Connell Law Group ( leadersinlaw.ca )

No unqualified right of counsel for a co-accused to participate in the voluntariness voir dire It is fundamental that in nearly all cases, a statement made to a person in authority by one accused is not admissible in relation to another co-accused in a joint trial, even if the statement refers to something said or done by the other accused. R. v. Zvolensky, 2017 ONCA 273, at para. 25. The co-conspirators’ exception to hearsay is an exception to this general rule. See, R. v. Baron (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at p. 533. It follows that, at least as a general rule, a co-accused has no direct interest in a voir dire held to determine the admissibility of another co-accused’s statement, thus no unqualified right to participate in a voir dire to determine the admissibility of that statement: R. v. McLeod (1983), 6 C.C.C. (3d) 29 (Ont. C.A.), at p. 36, affirmed [1986] 1 S.C.R. 703. R. v. Richards , 2017 ONCA 424: the trial judge erred in permitting couns

The Common Law Confessions Rule An accused’s statement to a person in authority is only admissible at his trial if it is proved that the statement was given voluntarily: R. v. Oickle , 2000 SCC 38 (CanLII), [2000] 2 S.C.R. 3 ; R. v. Spencer , 2007 SCC 11 (CanLII), [2007] 1 S.C.R. 500 , at para. 11 .   All of the relevant circumstances surrounding the making of the statement must be considered. While the test is objective, the individual characteristics of the accused are relevant in the application of the objective test. R. v. Singh , 2007 SCC 48 (CanLII), [2007] 3 S.C.R. 405 , at para. 36 . The Crown bears the burden of proving voluntariness beyond a reasonable doubt. Oickle , at para. 30. In R. v. Spencer , 2007 SCC 11 (CanLII), [2007] 1 S.C.R. 500,  Deschamps J. summarized the common law confessions rule at para. 12: In Oickle , the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the volu

If the circumstances under which a confession is made raise a reasonable doubt about its voluntariness, it will not be admissible in evidence. The Crown bears the burden of satisfying the court beyond a reasonable doubt that the confession was voluntary. R. v. Oickle , 2000 SCC 38 (CanLII).   There is no absolute duty on police to record by means of audio or video devices, conversations with an accused in custody.              R. v. Oickle , para. 47 and R. v. Moore-McFarla ne , 2001 CanLII 6363 (ON CA). However, creating such a recording is highly desirable and certainly avoids concerns and suspicions surrounding the taking of a statement where such contact is recorded electronically. Onus on Crown to Establish a Sufficient Record of the Police-Accused Interaction In R. v. Moore-McFarlane ­the Court of Appeal for Ontario held that as long as recording equipment is available, the failure to record will generally preclude a finding of voluntariness, except in the ci

In R. v. E. H ., 2017 ONCA 423, the performance of trial counsel fell below the standard of reasonable professional assistance in a criminal case.   As there was a "reasonable possibility" that the outcome of the trial would have been different had trial counsel properly discharged his professional obligations, the appellant’s convictions were set aside and a new trial ordered. Trial counsel failed to view the three-hour video statement that the appellant gave to the police. The DVD containing the statement was defective, and trial counsel did not request another copy from the Crown. Instead, he relied upon a synopsis of the statement prepared by the police. Counsel failed to review the statement with the appellant, despite the appellant’s repeated requests. The appellant was significantly prejudiced, as a result: caught unawares when he was cross-examined by the Crown on his statement at trial.   The prejudice was compounded (or at least let to lie) by the fact that

Restitution advances important goals of sentencing, such as “provid[ing] reparations for harm done to victims or to the community” ( Criminal Code , s. 718(e)), and promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. Like a guilty plea, making restitution prior to sentencing is a clear acknowledgment of responsibility and an important step towards rehabilitation. An offender's ability and willingness to pay restitution is an important consideration in the sentencing of fraud and related offences. R. v. McLellan , 2012 ONCA 717, 293 C.C.C. (3d) 326, leave to appeal refused, [2013] S.C.C.A No. 100, at para. 44. In the context of a fraud or related offence, the failure of a sentencing judge to take a restitution offer into account is an error in principle. R. v. Mathur , 2017 ONCA 403, at para. 10. In R. v. Bogart (2002), 61 O.R. (3d) 75 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 398, L

In R. v. Desrosiers , 2017 ONCJ 299 (CanLII), the Ontario Court of Justice held that it was more probable than not that the accused was in a state of automatism (due to sleepwalking or parasomnia) when she operated her motor vehicle with a blood-alcohol concentration three times above the legal limit (267 and 288 mg. of alcohol in 100 ml., respectively). The resulting verdict: Not Criminally Responsible. It is curious, at least to me, that the Court appears to have placed marginal importance on the accused’s evidence that one of the last things she remembered before waking up in a police holding cell was ingesting the sedative-hypnotic Zopiclone.   The defence of automatism The leading case dealing with the defence of automatism is the decision of the Supreme Court of Canada in R v Stone. The principles to be derived from that decision can be summarized as follows: ·          Automatism is defined as “a state of impaired consciousness, rather than a state of unconsciousne

Canadian courts have generally had little problem in accepting that a search incident to arrest can precede the actual arrest, with the crucial proviso that reasonable grounds for arrest, independent of the evidence discovered on the search, existed prior to the search.  Their willingness to do so has come in large part from their willingness to accept as law the obiter dicta statements from the Court of Appeal for Ontario, namely those of Martin J.A. in R. v. Debot (1987). R. v. Debot (1987), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 [a t page 8 therein, Martin J. A. appears to accept the above premise regarding SITA based on the well-established practice in the United States; see also, R. v. Tomaso (1989), 70 C.R. (3d) 152 (Ont. C.A.) at pp. 160-16, citing R. v. Debot for authority. However, in the recent, R. v. Sharma , 2017 ONCJ 295 (CanLII), Justice Rose rejected the Crown’s argument that if a person is arrestable, but not arrested, the police may search the detain

It is well-settled in Ontario that in a civil proceeding costs may be awarded against a lawyer personally by virtue of Rule 57.07 of the Rules of Civil Procedure . Indeed, this week in Nassab v. ErinoakKids , 2017 ONSC 2740, the Ontario Superior Court of Justice (Divisional Court) ordered the lawyer for an unsuccessful judicial review applicant to pay the respondent’s costs, fixed at $50,000.   The applicant's lawyer had, among other things, advanced wholly meritless positions and made serious allegations of impropriety on the part of the respondent with no factual or legal basis for doing so. And it was this week also that the Supreme Court of Canada considered costs awards against lawyers in a different context:   a court's ability at common law to make a costs order against a lawyer in a criminal proceeding.   See Quebec (Criminal and Penal Prosecutions) v. Jodoin , 2017 SCC 26 (CanLII). The Power of the Courts The courts have the power to maintain respect f