Stuart O'Connell Criminal Law Blog

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...

The separation of powers is a cornerstone to any democratic system of government. “The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other.”    Thomas Jefferson to George Hay, 1807. This week US President Donald Trump commuted the prison sentence of  Roger Stone, relieving his long-time confidant from the execution of his sentence. Stone was convicted after a jury found that he had broken the law multiple times by lying to Congress and obstructing justice.[FN1] When the political executive (in this case the President) uses its power to commute a prison sentence or pardon a crime, there is real danger to the constitutional separation of powers and to the integrity of the judicial process. The commutation of a sentence or the pardoning of a crime by a political actor should not be a matter of simple executive fiat, but rather the exercise of an extraordinary power subject to a series of careful checks and b...

Section 714.2(1) of the Criminal Codes allows for a witness outside of Canada to provide their evidence remotely, that is, by videolink. The party who wishes to call the witness must give notice to their intention to do so at least 10 days before the witness is scheduled to testify. Section 714.2(1) provides:    A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice. Formerly, this section also required that “the technology must be such that it "permits the witness to testify in the virtual presence of the parties and the court." This requirement was removed in 2019 when Bill C-75 became law. [FN1] The 2019 amendment of section 714.2(1) also removed the broad term “technology” and replaced it with the form of technology required: videoconference.   The term videoconference is defined at section...

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...

The general rule is that the death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved.   R. v. Cadeddu  (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114;    R. v. Smith , 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless recognized some discretion to proceed to judgment despite the death of the accused.   The discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.  See Smith , at paras. 4, 20, 50. R. v. Slingerland , 2020 ONCA 417 , at para. 12. In R. v. Singerland , 2020 ...

Exposure to unlawful forms of pornography, such as child pornography, can be traumatizing. R. v. Shaw , 2018 ONCJ 61 (CanLII). On most occasions, it is unnecessary for the judge to view the child pornography that comprises the subject matter of a charge or even for the Crown to select a representative sample of images from the child pornography collection to show at the sentencing hearing. Defence and Crown counsel should do their best to agree to a mutually satisfactory  verbal description  of the contents of child pornography so as to protect courtroom participants (including themselves, the judge, and victims) from unnecessary exposure to potentially trauma-inducing raw material.[FN]   R. v. Marratt , 2019 ONCJ 618 , per Band J; See also R. v. Shaw , 2018 ONCJ 61 , per Band J. This can even be taken a step farther.   In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as...

E very court of law has the authority to control its own process. Superior Courts A superior court’s power to control its process is part of a superior court’s inherent jurisdiction:    R. v. Cunningham , 2010 SCC 10, at para. 18; Canada (Attorney General) v. Pacific International Securities Inc.,   2006 BCCA 3030, at para. 28.     Pursuant to the power to control its own process, a superior court can, among many other things: ·          order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct: R. v. Chapman   (2006), 2006 CanLII 1178 (ON CA); ·          remove counsel from a case when required to ensure a fair trial . MacDonald Estate v. Martin , 1990 CanLII 32 (SCC).   Statutory Courts A statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its...