Stuart O'Connell Criminal Law Blog

It is improper to assign sentencing benefits because accused persons have foregone their right to testify in their own defence. This sends an inappropriate message.   In R. v. Claros , 2019 ONCA 626, the Court of Appeal for Ontario held that the trial judge had erred in principle in treating as mitigating the fact that the accused did not testify in his own defence and "did not lie about anything or try to mislead [the court].”  Honesty with the court is something that is expected and required by law.

Section 276(1) of the Criminal Code sets out an absolute bar against introducing evidence of the complainant’s prior sexual activity for the purpose of drawing either of two prohibited inferences: that, by reason of the sexual nature of that activity, the complainant is (a) more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) less worthy of belief. Further, where an accused seeks to introduce such evidence of the complainant’s prior sexual activity for some other purpose, that evidence is presumptively inadmissible, under s. 276(2).  Thus, evidence that the accused and the complainant were involved in a sexual relationship will not always be put before the jury. It may be that in the course of a trial the jury will hear other evidence that (while not constituting evidence of the complainant’s prior sexual activity) results in the jury conjecturing that there was a sexual relationship between the accused and the complainant.

A Criminal Code peace bond is an instrument of preventative justice.  Specifically, it is an order from a judge to keep the peace, be of good behaviour and abide by certain conditions. A peace bond may be ordered where the judge is satisfied on the evidence that an informant has reasonable grounds to fear that the defendant will cause harm to another person. [FN1] The Criminal Code’s judicial interim release (“JIR”) provisions, commonly referred to as the bail provisions, are found in Part XVI of the Criminal Code : “Compelling Appearance of Accused Before a Justice and Interim Release” . The JIR provisions require a judge to release an accused person pending trial without conditions unless the Crown can demonstrate why some more restrictive measure is necessary (for example, an order to abide by interim conditions, or pre-trial custody) . These JIR provisions apply, with necessary modifications , to all Criminal Code peace bond proceedings . R, v. Penunsi,   201

Information improperly disclosed to the trier of fact in breach of solicitor-client privilege cannot be used by the trier of fact to support a conviction. R. v. Olusoga , 2019 ONCA 565 . The proper functioning of the adversarial system depends on the assurance, given to every accused, that communications with their lawyer for the purpose of receiving legal advice are, subject to certain exceptions, privileged. In Olusoga , defence counsel, in explaining to the trial judge why he had not put the appellant’s version of events to the complainant during her testimony (as was required by the rule in Browne v. Dunn ), divulged that he expected that the appellant would testify to a different version of events.   This disclosure was in breach of solicitor-client privilege. The trial judge’s use of that privileged information in his assessment of the appellant’s credibility occasioned a miscarriage of justice .

The Exercise of a Power under the HTA must be for a Road Safety Purpose   Under Ontario’s Highway Traffic Act  (HTA), the police broad powers to stop motor vehicles for highway regulation and safety purposes, and, in some circumstances, to arrest drivers of motor vehicles.   [FN1] The Legislature granted the police these powers for the purpose of ensuring road safety .   The police are not free to use these powers for purposes other than highway regulation and safety. Brown v. Durham Regional Police Force   (1998), 1998 CanLII 7198 (ON CA) ; R. v. Mayor , 2019 ONCA 578 , at para. 6. If the police do not have road safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the vehicle stop.  If the police cannot point to any other legal authority for the stop, the stop will not be authorized by law and so will violate s.9 of the Charter.  R. v. Brown , supra ; R. v. Nolet ,  2010 SCC 24 (CanLII) ,  [2010] 1 S.C.R. 851 , at par

Section 11(b) of the Charter provides: “Any person charged with an offence has the right … (b) to be tried within a reasonable time”. R. v. Jordan , 2016 SCC 27 established a new framework for the s. 11(b) analysis. It was designed to be simple in its application and predictable in its effect. It replaced the framework articulated in R. v. Morin , [1992] 1 S.C.R. 771, which the majority in the Supreme Court described as too unpredictable, too confusing, and too complex.      R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 38. The Jordan framework is now well-understood. At the centre of the new framework is a “presumptive ceiling” on the time between the date of the charges and the actual or anticipated end of the trial. Delay beyond that ceiling is presumptively unreasonable.      Jordan , at para. 46. For cases tried in provincial courts, the ceiling is 18 months. For cases tried in superior courts, or in provincial courts after a preliminary