Stuart O'Connell Criminal Law Blog

A trial judge should draw an adverse inference from the failure of a party to call a witness only with the greatest of caution. See R. v. Ellis , 2013 ONCA 9 (CanLII), at para 49. An adverse inference can only be drawn where there is no plausible reason for nonproduction, in other words, where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable . See R. v. Ellis , 2013 ONCA 9 (CanLII), at para. 48. The only adverse inference that the trier of fact may draw is that if the witness were called his/her testimony would be unfavourable, eg., would bear adversely on the credibility of the accused. An inference of guilt is not permissible.    R. v. Koffman (1985), 20 C.C.C. (3d) 232 , 10 O.A.C. 29 , per Martin JA. Comment on the Failure to Produce a Witness It is rarely permissible for the trial judge to comment on the failure to call a witness. Even where a comment on the failure to call a witness is ap

A trial judge may sketch out draft reasons either in advance of hearing counsel’s submissions or as those submissions are being offered, so long as the trial judge remains receptive to persuasion by counsel’s submissions. R. v. Chue [2011] O.J. No.  4149 (S.C.J.) , per Nordheimer J;  R. v. Purewal , 2014 ONSC 2198 . Given the acute time pressures on trial judges, resort to this practice may often be necessary. No harm is created by the practice, and some practical benefit may be gained for the process as a whole, so long as it is done with considerable care for, and appreciation of, the impression it may create if it is not undertaken in an appropriate manner. R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J;  See also R. v. Purewal, 2014 ONSC 2198 (CanLII), 2014 ONSC 2198, per Durno J. Of preeminent importance is that a judge must always keep an open mind, both in reality and in appearance. [FN] Some measure of time should be taken by a judge to

Under section 24(2) of the  Canadian Charter of Rights and Freedoms, the burden of having the court exclude evidence that is otherwise admissible passes to the defence. The Crown does not have to anticipate that the defence will seek to exclude Crown evidence on the basis of an alleged Charter breach.   The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered, will be received and considered in determining the guilt of an accused. Absent special circum­stances [FN], the general principle is that the accused must raise Charter objections to the admissibility of Crown evidence before, not after, that evidence is adduced.  Otherwise, the Crown and the Court are entitled to proceed on the basis that no Charter issue is involved in the case.                                                 R. v. Kutynec , 1992 CanLII 12755 (ON CA);                                                

Police officers are entitled to use force in the execution of their duties if they act on reasonable grounds in doing what they are required or authorized to do and the force used is necessary for that purpose.  See section 25, Criminal Code . The Crown has the evidentiary burden of establishing that section 25 of the Code has been met when it relies on the provision to justify the use of force.  The Crown must therefore prove that the officer: (i)              was required or authorized by law to perform the action, that the officer undertook, in the administration or enforcement of the law; (ii)            acted on reasonable grounds in performing the action; and (iii)           did not use unnecessary force. The use of more force than necessary gives rise to both criminal and civil liability. Section 26 of the Criminal Code, which is to be read with section 25, imposes criminal responsibility on those authorized by law to use force where the force used is e

Summary A criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal. This authority allows the court to require defence counsel who wishes to withdraw because of non-payment of legal fees to continue to represent the accused.   However, refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice . The Supreme Court of Canada in R. v. Cunningham, 2010 SCC 10 sets out a number of factors that courts should consider in determining whether permitting counsel of record to withdraw would cause serious harm to the administration of justice.  These factors—the Supreme Court of Canada tells us—are independent of the solicitor-client relationship and there is no risk of violating solicitor-client privilege when engaging in the analysis.  If a court determines that serious harm

In R. v. Foster , 2018 ONCA 53, Justice Watt for the Court of Appeal for Ontario provides a useful basic overview of the essential elements of a criminal offence, which I have reprinted below.  Every Criminal Offence has an Actus Reus and a Mens Rea Requirement “Expressed in the Latin maxim actus non facit reum nisi mens sit rea , it is a fundamental principle of our criminal law that a person may not be convicted of a crime unless the Crown proves beyond a reasonable doubt that the person: i.                  engaged in conduct in circumstances forbidden by the criminal law (the actus reus or external element); and ii.                had a defined state of mind in relation to the prohibited conduct (the mens rea or mental or fault element). The external element or actus reus includes all the elements of the offence except for the mental or fault element. As a result, the external element or actus reus can include: i.                  conduct (act or omission);

In R. v. Inksetter , the Court of Appeal for Ontario has signalled that while probation may be a component of a sentence for a child pornography offence, probation (even a relatively onerous probation) is very unlikely to reduce what is generally required by imprisonment to satisfy the primary sentencing objectives of deterrence and denunciation. See R. v. Inksetter , 2018 ONCA 474, at para. 20. Denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography: R. v. D.G.F. , 2010 ONCA 27 (CanLII), 98 O.R. (3d) 241 , at paras. 21-22 , 30; R. v. Nisbet , 2011 ONCA 26 (CanLII), [2011] O.J. No. 101 , at para. 3 ; R. v. E.O. , 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 , at para. 7 ; R. v. Stroempl , 1995 CanLII 2283 (ON CA), [1995] O.J. No. 2772 , at para. 9 . Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence. R. v.

An application is a request to a court to make an order.   They are of two types: pre-trial applications and trial applications .  Commencing an application Applications are commenced by serving the opposing parties and any other affected party with a completed Form 1 (along with supporting materials), and then filing the application with proof of service at the court office.    Form 1 is found online at www.ontariocourts.ca/ocj/criminal-rules/ ). In addition to Form 1, an application will typically include an affidavit/s setting out the facts upon which the application is based.   [FN1] Affidavit evidence is by far the most common form of evidence used for applications.   Other types of evidence include an agreed statement of facts, transcripts, and oral testimony.   Oral testimony is usually not required in most pre-trial applications.   How many copies of the Application do I need? Make at least four copies of your application: 1.       A copy for you the Applica

Punitive damages are awarded to a successful civil plaintiff when the defendant’s misconduct is so outrageous that such damages are rationally required to act as a deterrent. Hill v. Church of Scientology of Toronto et al. , [1995] 2 S.C.R. 1130, at para. 197. Non-pecuniary damages may be enough to accomplish the goals of deterrence, denunciation, and punishmen t. Notwithstanding, the fact that a civil defendant has not been punished criminally for his morally reprehensible behaviour may be relevant to whether (and the extent to which) punitive damages are needed to denounce that behaviour.   Zando v. Ali, 2018 ONCA 680, at para. 24. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author)

An accused’s lack of remorse is not ordinarily an aggravating factor on sentencing, as a court cannot punish the accused for failing to plead guilty or for having mounted a defence.  R. v. Valentini [1999] O.J. No. 251 (C.A.), at paras. 82, 83; R. v. J.F ., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff’d on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. When Lack of Remorse is Relevant  Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed.   Absence of remorse may therefore be properly considered when evaluating the risk of recidivism and, for instance, the need to isolate the accused from society.  R. v. Shah , 2017 ONCA 872, at paras. 8, 9; R. v. B. P.  (2004), 190 O.A.C. 354 (C.A.), at para. 2; R. v. Valentini , at para. 82; R. v. J.S ., 2018 O

Section 10(b) of the Canadian Charter of Rights and Freedoms reads: 10. Everyone has the right on arrest or detention […]   (b) to retain and instruct counsel without delay and to be informed of that right… As the Supreme Court held in R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, s. 10(b) imposes two duties on the police – an informational duty and an implementational duty. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The onus lies on the Applicant to demonstrate that his/her right to counsel was violated under s.10(b) of the Charter. Ri ghts to Counsel and the Role of the Police In most cases the police may infer that the detainee understands the rights read to them.   Police do not have a duty to positiv