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.   ...

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 h...

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 offence...

Section 515(3) of the Code requires a justice to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case. This is why bail hearings are sometimes referred to as “show cause” hearings. Criminal Code. Section 515(3)  The justice shall not make an order under any of paragraphs (2)(b) to (e) [types of release on recognizance] unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made . There are many instances where notwithstanding the Crown’s agreement with defence counsel, or even when the Crown consents to release, where the Court must intervene as part of its supervisory or review jurisdiction to make decisions contrary to such agreements or joint submissions. R. v. D.C.G.S., 2003 ABQB 420 (CanLII). Consent release is an efficient method of achieving the release of an accused.   Although a justice or a judge should not routinely second-guess joint proposals b...

For as long as I can remember there has been a widespread disjunction between the legal rule that the form of bail release imposed on an accused be no more onerous than necessary and the application of that rule in our courts.   In my experience, release of the accused on a recognizance with a surety/sureties (which the Supreme Court of Canada has recognized as an onerous form of bail) has become the sine qua non of a bail release.   Suggest at a bail hearing that the accused ought to be released on his own undertaking without or even with conditions and you will likely have to endure an eye roll from the presiding justice.   Coming to a bail hearing expecting that sureties will not be required is simply folly.   Yet the legal rule (known as the ladder principle ) that release of the accused should occur at the earliest reasonable opportunity and on the least onerous grounds is well-established in our jurisprudence. The June 2017 decision of the Supreme Co...