Stuart O'Connell Criminal Law Blog

In the civil context, sexual assault is a form of battery: the intentional infliction of unlawful force on another. The majority decision of the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s London v Scalera ,which considers the doctrinal dimensions of the tort of battery, is summarized succinctly by Allen M. Linden and Bruce Feldthusen , Canadian Tort Law, 10 th Edition , [Toronto: LexisNexis, 2014] , beginning at para 2.32: A person who proves that the defendant made direct physical contact with her person makes her case for battery. The onus then shifts to the defendant to establish that the contact was neither intentional nor negligent; or that the plaintiff consented to the contact or that a reasonable person would think she had consented. This nominate tort protects the interest in bodily security from interference by others. It is sometimes said that the contact must be harmful or offensive, but this is misleading. By definition, any contact beyond the...

[Recognizances issued under section 810 of the Criminal Code are informally and regularly referred to as peace bonds, particularly by non-jurists. For ease of reference, I will refer to them here as 810 peace bonds.] A peace bond can be obtained through an information sworn pursuant to s. 810 of the Criminal Code or relying on the common law to require a person to enter a common law peace bond without reference to s. 810 of the Criminal Code.   Re:   Regina v. Shaben et al. (1972), 1972 CanLII 358 (ON SC), 8 C.C.C. (2d) 422.   The onus is on the applicant on the balance of probabilities.   Mackenzie v.   Martin 1954 CanLII 10 (SCC), [1954] S.C.R. 361 at 368.   Once the application is made the accused can either seek to show cause why he or she should not enter the bond, enter the bond as proposed or not show cause but contest one or more of the suggested terms. The applicant must persuade the application judge that he or she fears ...

  There is a distinction between an out-of-court exculpatory statement that is disbelieved and therefore rejected and such a statement found to be concocted or deliberately fabricated. The former has no evidentiary value. The latter can constitute evidence from which an inference of guilt may be drawn. In order to constitute a fabricated out-of-court statement, disbelief of the statement by the trier-of-fact is not sufficient; there will need to be independent evidence of concoction. In R. v. Hafeez , 2016 ONSC 769, for instance, the need for evidence of concoction was satisfied as the accused admitted in testimony that he told out-of-court lies to the police about material issues. The Disbelieved Statement In analyzing the evidentiary value of a disbelieved statement, the court will need to have regard to the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged.   R. v. O’Connor , (2002) 2002 CanLII 3...

The police must obtain consent or prior judicial authorization in order for evidence of the accused’s DNA to be legally obtained. R. v. Stillman , 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607. continues to govern the procedure for seizing the accused’s own bodily materials.   Police may dab or swab an accused’s hands incident to arrest to check for gunshot residue or to obtain a sample of blood visible on the accused’s skin See, for example, R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 139-45; R. v. Smyth, [2006] O.J. No. 5527 (QL) (S.C.J.)).   Either of these procedures might enable the police to obtain the accused’s DNA, but the police are not entitled to use them for that purpose.   Similarly, if an accused’s DNA is obtained through a penile swab and the swab was taken without a warrant authorizing such seizure, or the accused’s consent, the accused’s DNA cannot be used for any purpose. R. v. Saeed , [20...

On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, in which it established a new framework to be applied in s. 11(b) Charter applications.   At the heart of the new framework is a presumptive ceiling beyond which delay —from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). The New Framework Summarized The approach required by the new framework was recently summarized in R. v. Coulter , 2016 ONCA 704 (CanLII), [2016] O.J. No. 5005 (C.A.) at paras. 34-40: ·          Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47). ·    ...

In R. v. Liew and Yu , 2012 ONSC 1826, the Superior Court of Ontario considered the question of whether an attempt on the part of the police to establish a rapport with the accused on the car ride to the police station breached the accused’s section 10(b) right.   The accused had been informed of his right to counsel upon arrest, but had not yet had access to counsel. The Court held that the attempt on the part of the police to establish a rapport with the accused on the car ride to the police station was the initial stage of an interviewing technique employed by police (akin to the Reid Technique , which involves the interviewer establishing a rapport and level of trust with the subject, then confronting the accused about the crime).     As such, it breached the obligation on police to "hold off" questioning a detainee until he/she has been given a reasonable opportunity to contact counsel. R. v. Liew and Yu, at para 75.

  In R. v. Gowdy , 2016 ONCA 989, the Court of Appeal for Ontario considered, in obiter , whether two provincial statutes authorized or permitted the police to release the accused’s private medical information (namely, his HIV status): ·          Municipal Freedom of Information and Protection of Privacy Act ( MFIPPA ), ·          Police Services Act , ( PSA ) and Regulations passed under it.   The day after the arrest of Gowdy, Durham Regional Police had issued a media release announcing the arrest and disclosing the fact that the Gowdy was HIV positive.   Was Disclosure of the Accused’s HIV Status Authorized under the PSA? The PSA contains no express prohibition against disclosure of personal information. However, such a prohibition would seem to arise by necessary implication from s. 41(1.1), which authorizes the chief of police or anyone the chief designates for the pu...