Stuart O'Connell Criminal Law Blog

A condominium board has authority to cooperate with the police but only to a reasonable extent. As the Court of Appeal for Ontario tells us in R. v. Yu, 2019 ONCA 942, what is reasonable is informed by the constitutionally-protected reasonable privacy expectations of those who reside at the condominium.  Under provincial law, a condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation on behalf of the owners. [FN1]  The board is elected by the owners to manage these affairs in their best interests. [FN2] This statutory duty confers a responsibility and authority on the board to act as the decision maker for the owners as a collective. R. v. Yu , at para. 91. The condominium board and, by extension, property management, are entrusted with security of the building and the residents.   Residents reasonably expect that a property manager could consent to police entry into the building and its hallways and, in f

There is no rule as to how victims of sexual assault are apt to behave.    A trial judge makes a fatal error in reasoning when that judge bases findings of credibility on assumptions that are unsupported by the evidence.  It is an error of law to rely on pre-conceived views about how a sexual assault victim would behave.   R. v. D.D., 2000 SCC 43 (CanLII),   [2000] 2 S.C.R. 275 at para. 65;  R. v. A.R.J.D., 2018 SCC 6 (CanLII) ,  [2018] 1 S.C.R. 218, at para. 2.  Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what women will and will not do may impact a judge’s objective deliberation of the reasonable doubt standard. R. v. J.L. , 2018 ONCA 756 (CanLII), at para. 47: where the trial judge improperly relied on a behavioural assumption in assessing credibility, viz: "I cannot accept that a young woman would go outside wearing a dress in mid-December

There are various reasons why a victim of sexual abuse might delay in making an allegation of sexual abuse or even not disclose the abuse at all:   embarrassment, fear, guilt, a lack of understanding and knowledge, etc. It is unacceptable for a court to rely on the stereotypical view that victims of sexual aggression are likely to immediately report the acts, and conversely, to conclude that the lack of immediate reporting reflects either absence of assaultive or non-consensual behaviour. R. v. D. D. , 2000 2 S.C.R. 275, at para. 63; R. v. W. (R.) , [1992] 2 S.C.R. 122, at p. 136. In assessing credibility, the timing of the complaint is simply one circumstance to consider in the context of the case. Delayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual sexual encounter is true or raises a reasonable doubt. R. v. Lacombe , 2019 ONCA 938, at para. 42; R. v. D.D., 2000 2 S.C.R. 275, at para. 65. Wri

Myths and stereotypes about sexual assault victims have no place in a rational and just system of law. Relying on myths and stereotypes to assess the credibility of complainants jeopardizes the court's truth-finding function.   R. v. A.G. , 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2. Reliance on discredited stereotypes in the assessment of credibility is an error of law.                  A.R.D. , 2017 ABCA 237, at para. 9. Dress The stereotypical assumption that “if a woman is not modestly dressed, she is deemed to consent” no longer finds a place in Canadian law”.   R. v.   Ewanchuk , 1999 SCC 71, [1999] 1 S.C.R. 330. In R. v. Lacombe , 2019 ONCA 938 , the complainant wore loose-fitting pajamas with no bra or underwear when she met the accused on two successive occasions during which, she claimed, the accused sexually touched her without her consent. The trial judge, in his assessment of the complainant’s credibility on the issue of whether the comp

To be valid, a guilty plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and “legally relevant collateral consequences” of that plea.             R. v. Wong , 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-4. Legally relevant collateral consequences include immigration consequences.  To set aside a presumptively valid plea, the appellant must establish that:  (i)               he was unaware of a legally relevant consequence of the plea, assessed objectively; and (ii)             he has suffered prejudice, in the sense that he would have acted differently had he been properly made aware of the consequences. Wong , 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33. Where deportation is within the range of possible consequences, and where the accused would not otherwise have obtained that information (for instance, by consulting with an immigration lawye

The primary purpose of a preliminary inquiry is to screen out meritless allegations. A preliminary inquiry gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence to justify the case going forward to trial.  On September 19, 2019 new amendments to the Criminal Code came into force. [FN1] These amendments substantially limit the availability of preliminary inquiries. Prior to the amendments, anyone in Ontario who had elected trial in the Superior Court of Justice (judge and jury, or judge alone) could request and, upon request, was entitled to a preliminary inquiry.   The recent amendments limit that entitlement to offences that provide for a sentence of at least 14 years’ imprisonment. Those who have Requested a Preliminary Inquiry Before September 19, 2019 The amendments to preliminary inquiries do not apply to an accused who is charged with an indictable electable offence and who has elected trial i

At common law, the authority of a court to grant an adjournment exists for both superior courts and inferior courts within the jurisdiction of the court to control its own process.              Figliola v. Ontario (Director, Family Responsibility Office) , 2009 ONCJ 275, at paras. 27, 28. The decision to grant or not to grant an adjournment is  a matter that is within the discretion of any trial judge.              R. v. Patel , 2018 ONCA 541, at para. 3           See R. v. Violette , 2008 BCSC 472 (CanLII);             Manhas v. The Queen , [1980] 1 SCR 591, 1980 CanLII 172 (SCC).   The test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations. Reza v. Canada , 1994 CanLII 91 (SCC).   The constitutional rights of the accused must be balanced against  the trial judge’s right to control the trial process, a right that includes a wide discretion to g