Stuart O'Connell Criminal Law Blog

The interests of justice are not well served if appeals to the Court of Appeal of Ontario are not commenced, perfected, listed for hearing, heard and decided expeditiously. A timely process ensures that the principles of finality and reviewability are respected and that if proceedings are returned to trial courts, the evidence remains available and not unduly separated from the events the witnesses describe. A respondent to an appeal that has not been perfected in time has several options available under the Criminal Appeal Rules  and current Practice Direction of the ONCA, for example: Under Rule 20(2),  a request may be sent to the Registrar to have the appeal placed before a panel of the court to be dismissed as abandoned unless perfected within ten days of service of the notice. Under Rule 19, a respondent may seek directions from the chambers judge. This judge may refer the appeal to a panel for dismissal or set a deadline for perfection. Under section 9.11 of the court’s Prac

Some individuals are particularly vulnerable to Covid 19 as a result of underlying health conditions.   It is crucial for such individuals to minimize contact with others to avoid serious illness and reduce the spread of COVID-19, and yet it is “difficult, if not impossible” for them to practice social distancing while they are in custody. See Kazaman, 2020 ONCA 251, at para. 17. The Ontario Court of Appeal has accepted that the COVID-19 pandemic is a factor that may be considered on a bail pending appeal application. The weight to be given to this factor depends on the circumstances of each case. See Kazaman , 2020 ONCA 251, at paras. 17-21 [bail granted]; R. v. Omitiran , 2020 ONCA 261, at para. 26 [bail denied];  R. v. Jesso , 2020 ONCA 280, at para. 36. Where counsel wishes to argue that the applicant’s special medical vulnerability within the context of his/her incarceration during the COVID-19 pandemic favours release, counsel should ensure that the court has the fa

The separation of powers is a cornerstone to any democratic system of government. “The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other.”    Thomas Jefferson to George Hay, 1807. This week US President Donald Trump commuted the prison sentence of  Roger Stone, relieving his long-time confidant from the execution of his sentence. Stone was convicted after a jury found that he had broken the law multiple times by lying to Congress and obstructing justice.[FN1] When the political executive (in this case the President) uses its power to commute a prison sentence or pardon a crime, there is real danger to the constitutional separation of powers and to the integrity of the judicial process. The commutation of a sentence or the pardoning of a crime by a political actor should not be a matter of simple executive fiat, but rather the exercise of an extraordinary power subject to a series of careful checks and balances. Thi

Section 714.2(1) of the Criminal Codes allows for a witness outside of Canada to provide their evidence remotely, that is, by videolink. The party who wishes to call the witness must give notice to their intention to do so at least 10 days before the witness is scheduled to testify. Section 714.2(1) provides:    A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice. Formerly, this section also required that “the technology must be such that it "permits the witness to testify in the virtual presence of the parties and the court." This requirement was removed in 2019 when Bill C-75 became law. [FN1] The 2019 amendment of section 714.2(1) also removed the broad term “technology” and replaced it with the form of technology required: videoconference.   The term videoconference is defined at section 2 o

Administration of justice offences are typically offences that are committed by a person against the justice system itself after another offence has already been committed or alleged. They may involve acts that are not considered criminal in themselves but are considered as such because the accused was given an order not to engage in the behaviour as a condition of their release.   Common examples are failure to comply with bail conditions, such as to abstain from consuming alcohol; failure to appear in court; or breaching a curfew. These offences impose an enormous burden on the criminal justice system, as nearly 40% of all adult cases involve at least one of these administrative charges. Canada Hansard,  Jody Wilson-Raybould (Minister of Justice and Attorney General of Canada), May 24, 2018; See R v Rowan, 2018 ABPC 208 (CanLII) , at para. 38. Offences involving failures to comply with conditions of judicial interim release (bail) are the most common form of offences against

The general rule is that the death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved.   R. v. Cadeddu  (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114;    R. v. Smith , 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless recognized some discretion to proceed to judgment despite the death of the accused.   The discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.  See Smith , at paras. 4, 20, 50. R. v. Slingerland , 2020 ONCA 417 , at para. 12. In R. v. Singerland , 2020 ONCA 417 the ONCA found no ex

Exposure to unlawful forms of pornography, such as child pornography, can be traumatizing. R. v. Shaw , 2018 ONCJ 61 (CanLII). On most occasions, it is unnecessary for the judge to view the child pornography that comprises the subject matter of a charge or even for the Crown to select a representative sample of images from the child pornography collection to show at the sentencing hearing. Defence and Crown counsel should do their best to agree to a mutually satisfactory  verbal description  of the contents of child pornography so as to protect courtroom participants (including themselves, the judge, and victims) from unnecessary exposure to potentially trauma-inducing raw material.[FN]   R. v. Marratt , 2019 ONCJ 618 , per Band J; See also R. v. Shaw , 2018 ONCJ 61 , per Band J. This can even be taken a step farther.   In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as to whether it can

E very court of law has the authority to control its own process. Superior Courts A superior court’s power to control its process is part of a superior court’s inherent jurisdiction:    R. v. Cunningham , 2010 SCC 10, at para. 18; Canada (Attorney General) v. Pacific International Securities Inc.,   2006 BCCA 3030, at para. 28.     Pursuant to the power to control its own process, a superior court can, among many other things: ·          order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct: R. v. Chapman   (2006), 2006 CanLII 1178 (ON CA); ·          remove counsel from a case when required to ensure a fair trial . MacDonald Estate v. Martin , 1990 CanLII 32 (SCC).   Statutory Courts A statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its own process. However, the statutory court does not have inherent jurisdiction. R. v. Fercan Developments Inc ., 201

The Criminal Code sets out four different ways in which robbery may be committed.  See Section 343, Criminal Code. The offence of robbery does not necessarily involve the use of a firearm. Section 344 sets out the penalty provision for the offence, including where a firearm is used in the commission of the offence. Section 85(1) of the Criminal Code sets out the offence of using a firearm in the commission of an indictable offence .   On its wording, the section 85(1) offence cannot be committed if the indictable offence committed happens to be the offence of robbery. Section 85(1) of the  Criminal Code  reads: Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm, (a)         while committing an indictable offence, other than an offence under section … 344 (robbery) . In R. v. Cudmore , 2020 ONCA 389, the ONCA quashed the appellant’s conviction for the s. 85(1)(a)

Section 52(1) of the Constitution Act, 1982 provides that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” When the Supreme Court of Canada declares a law invalid under s. 52(1), the law is invalid for all future cases; cannot be enforced; is “null and void, and is effectively removed from the statute books. Nova Scotia (Workers' Compensation Board) at para. 31;  Canada (Attorney-General) v. Hislop , 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 82. However, that is not the case when a superior court makes a declaration of invalidity: the declaration does not determine the validity or enforcement of the statute “for all future cases”.   R. v. Sullivan , 2020 ONCA 333 , at para. 35. Justice Paciocco , writing for himself and Justice Watt in R. v. Sullivan at para. 38, sets out how the principles of stare decisis operate after a superior court judge has made a s. 52(1) declaration of inval

There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle. See  R. v. Russell , 2018 BCCA 330;  R. v. Cuff , 2018 ONCA 276. Having properly seized a vehicle,   police are under an obligation to keep the vehicle and its contents safe. To fulfill this responsibility, the police may have to conduct an inventory search of the vehicle . R. v. Cuff , 2018 ONCA 276. R. v. Nicolosi  (1998),  1998 CanLII 2006 (ON CA) , 40 O.R. (3d) 417 (C.A.), at paras.  29-30 . The fact that the police suspect that they may find drugs while searching the vehicle does not alter their authority to conduct an inventory search . R. v. Wint,  2009 ONCA 52 , 93 O.R. (3d) 514, at para.  11 , leave to appeal refused [2009] S.C.C.A. No. 164:   for inventory se

The entrapment defence is available when either: 1) “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a  bona fide  inquiry”; or 2) “although having such a reasonable suspicion or acting in the course of a  bona fide  inquiry, they go beyond providing an opportunity and induce the commission of an offence.” R. v. Mack , 1988 CanLII 24 (SCC), at pp. 964-65 The accused must establish the entrapment defence on a balance of probabilities.  Mack , at p. 975. Whatever the mode of trial, the judge ought to consider entrapment only after a finding of guilt. R. v. Imoro , 2010 ONCA 122, at para. 24. In considering entrapment, the court looks at the actions of the police, not of the accused.  O ne must guard against allowing the nature of the offence to distort the application of the entrapment doctrine. Its application does not depend on the nature of the off