Celebrating 200 Blog Posts!


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)



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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 "a bsconds 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 A absconding" for the purpose of s. 475 is as defined by Martin J.A. in ...
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The Curative Proviso : When Being Wrong Doesn't Matter

Section 686(1)(b)(iii) (the “curative proviso”) of the Criminal Code permits an appellate court to uphold a conviction despite error of law committed by the trial judge where that error has not led to a substantial wrong or miscarriage of justice.  The “ curative proviso ” is to be applied only in those cases where the outcome of the trial, irrespective of the error, would necessarily have been the same. Colpitts v. The Queen , 1965 CanLII 2 (SCC), [1965] S.C.R. 739 ).  The onus of establishing that this high standard is met is on the Crown. R. v. Jolivet , 2000 SCC 29 (CanLII), [2000] 1 S.C.R. 751 ; R. v. Khan , 2001 SCC 86 (CanLII), [2001] 3 S.C.R. 823 ; R. v. Van , 2009 SCC 22 (CanLII), [2009] 1 S.C.R. 716 . The curative proviso may be applied, according to its modern interpretation, where the Crown can establish on a balance of probabilities that the legal error is harmless, in the sense that no prejudice has resulted, or that, despite any preju...
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Disclosure of Third Party Records Under the O’Connor Regime

The O’Connor framework addresses the right of an accused to obtain documents that are in the hands of third parties. In view of the privacy interests at stake, an accused bears the burden of demonstrating that the documents sought are “logically probative to an issue at trial or the competence of a witness to testify ”: R. v. O’Connor , 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 , at para. 22 (emphasis in original). An O’Connor application is a two-step process. At the first step, an accused must demonstrate that the records sought are likely relevant to an issue at trial, such as the credibility or reliability of a witness. If an accused meets the likely relevance threshold, the documents will be produced to the trial judge, who must then weigh the “salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence” ( O’Connor , at para. 30). This p...
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