Stuart O'Connell Criminal Law Blog

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