Stuart O'Connell Criminal Law Blog

  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).