Stuart O'Connell Criminal Law Blog

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...

  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/Solic...

Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper. R. v. Rose , 2001 CanLII 24079 (ON CA), at para. 27: It is improper to call upon an accused to comment on the credibility of his accusers. See also R. v. L.L. , 2009 ONCA 413 (CanLII), at paras. 15-16. The concern with this line of questioning is two-fold: 1.        It is unfair to ask an accused to speculate about a witness’s motives; 2.       These questions risk shifting the burden of proof. The burden is on the Crown to prove beyond a reasonable doubt that a complainant’s allegations are true. Yet questions to an accused about a complainant’s motives may cause the trier of fact to focus on whether the accused can provide an explanation for why a complainant would make false allegations, and find the accused guilty if a credible explanation is not fort...