Stuart O'Connell Criminal Law Blog

In Canada, the phrase “global sentence” is used to describe a single sentence that reflects the cumulative culpability for all offences on which the offender is sentenced.     (In the US, this type of aggregate sentence is termed a “unitary” sentence). The practice of imposing a global sentence is generally discouraged outside of the context of reducing the total sentence for multiple count convictions to ensure that the sentence meets the totality principle. But even here, the sentencing judge begins by determining the appropriate sentence for each offence. See R. v. Elliott , 2012 ABCA 214 (CanLII) at para 7 for a quick summary of sentencing in multiple count situations.  Judges should impose a sentence on each individual counts in order to determine the overall appropriate sentence.   See section 725(1)(a) of the Criminal Code.   This is so irrespective of whether the sentences are to be served consecutively or concurrently.             R. v. Taylor , 2010 MBCA 103 (CanL

There can be no consent to sexual activity without the capacity to consent.   For a complainant to be capable of providing her subjective consent to sexual activity, she must have the capacity to consent , that is, at the time of the sexual activity she must have an operating mind capable of understanding four things: 1.      the physical act; 2.      that the act is sexual in nature; 3.      the specific identity of the complainant’s partner or partners; and 4.      that she has the choice to refuse to participate in the sexual activity.               R. v. G.F ., 2021 SCC 20 (CanLII) at para 57.   The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. One route for the Crown to establish the third component of the actus reus (absence of consent) is for it prove beyond a reasonable doubt the complainant’s absence of capacity to consent in relatio

Personally, I find the law and trials fascinating, but I understand they are not everyone’s cup of tea. Take the juror in R. v. Anderson , 2021 ONCA 45  for instance; he seems to enjoy other interests.   We know this as it appears he may have fallen asleep during part of that trial.   Anderson was ultimately convicted.   He appealed, alleging (among other things) that a somnolent juror causes a real danger of prejudice.   That is not hard to accept, as a jury’s responsibility in a trial is to make determinations of fact—a task better performed awake than asleep. The problem with Anderson’s argument was that his trial counsel didn’t raise an objection while the juror was allegedly dozing and only made passing reference to it after it had happened. The ONCA inferred from this that the incident was not a significant one.   Also, Anderson was not in a position at the time of the appeal to be able to prove that the juror had in fact fallen asleep.   By not raising his concern promptly

Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court.   Judicial notice involves the acceptance of a fact or a state of affairs without proof and may occur in two circumstances:  i. When the fact is so notorious or accepted as not to be the subject of dispute among reasonable persons, or ii.  When the fact is capable of immediate and accurate demonstration.  In R. v. J.M. , 2021 ONCA 150, the Court of Appeal for Ontario recognizes that judicial notice also has a procedural dimension.  The procedural dimension of judicial notice bears on the answer to the question: What is required when a judge--on his/her own initiative--wishes to take judicial notice of a fact?                  The procedural dimension [36]      The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversaria

  The opportunity to consult counsel in private is a vital component of the s.10(b) right. R. v. Playford  (1987), 63 O.R. (2d) 289 (Ont. C.A.) at para 31;  R. v. McKane  (1987), 35 C.C.C. (3d) 481 (Ont. C.A.) at p. 134. Once an accused has requested that he be permitted to consult counsel, that carries with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit. R. v. Doherty   (1974), 1974 CanLII 1531 (NS CA).   In R. v. Pileggi , 2021 ONCA 4 , the accused was arrested at his home during the execution of a search warrant.   The accused’s right to consult counsel in private would have been compromised had the police attempted to facilitate contact at the house while a search of the house was underway. In such circumstances it was not a breach of s. 10(b) of the Charter for the police to transport the accused to the police station before implementing his contact with counsel. R. v. Pileggi , 2021 ONCA 4 at paras 75-7

  There are two well-recognized categories of abuse of process. The first, and more common, category is engaged by prosecutorial conduct affecting the fairness of the trial; the second, the residual category, is engaged by prosecutorial conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process. R. v. Nixon, 2011 SCC 34,  2 S.C.R., at para. 36;   R. v. O’Conno r, 1995 CanLII 51. Abuses of process within the residual category tend to involve Charter violations and conduct that is likely to be perpetuated into the future. In R v. Simonelli , 2021 ONSC 354 (CanLII), the accuseds brought applications to stay the proceedings under Section 24(1) of the Canadian Charter of  Rights and Freedoms for abuse of process.   They claimed that the twelve days from their arrests to their special bail hearing [FN1] constituted an abuse of process falling within the "re sidual" category of that common law doctrine.   Typically bail hear

Raising a new issue on appeal requires obtaining the leave of the appellate court. If (1) the evidentiary record is sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal, and (2) the failure to raise the issue at trial was not due to tactical reasons, then leave should be granted where (3) refusing leave may result in a miscarriage of justice. On the other hand, if refusing leave would not cause a miscarriage of justice, leave to raise a new issue on appeal should ordinarily be denied. R. v. Greer, 2020 ONCA 795 , at para. 91. This recent statement by Ontario’s Court of Appeal changes the customary articulation of the test for granting leave to raise a new issue on appeal. [FN] Additionally, where the new issue arises from a change in the law while the case is still “in the system”, leave may be granted to present an evidentiary record on appeal. R. v. Greer, 2020 ONCA 795 , at para. 92. Stuart O’Connell (Barris

  Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice. When assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence.                R. v. Slatter , 2020 SCC 36. On a related note see https://www.thestar.com/news/gta/2020/11/18/this-is-demeaning-to-everyone-why-alek-minassians-defence-is-provoking-anger-in-canadas-autism-community.html Stuart O’Connell (Barrister/Solicitor).