Stuart O'Connell Criminal Law Blog

Subject:  Unexplored theory of liability--trial fairness--fundamentally unfair to convict an accused person on a theory of which they are entirely unaware. At the very least, a trial judge ought to  alert trial counsel to the possibility of a conviction on a theory of liability which the Crown has not explicitly advanced nor which can be fairly inferred as having being put in play from the argument and evidence presented by the Crown.  The trier of fact is not confined to the Crown’s theory in determining liability. As a general principle, a conviction may be based on an alternative theory of liability not advanced by the Crown so long as it falls within the wording of the indictment and is supported by the evidence.   However, the application of this principle is not without constraint. In particular, this principle does not address the corresponding principle of trial fairness . An accused person is entitled to know the case that they are being asked to meet. It ...

From time-to-time, police officers will testify as experts on the basis of expertise that has been obtained through practical experience on the job over many years. The boundaries of any proposed expert opinion must be carefully delineated.   As well, t he trial judge must ensure that the expert stays within the bounds of their expertise and that the evidence is properly the subject of expert evidence.   The guilt or innocence of accused persons that the police officer had encountered in the past is generally not legally relevant to the accused’s guilt or innocence. [FN1] In R. v. J.T ., 2021 ONCA 922 (CanLII), the Appellant argued that unlawful pornography had been automatically downloaded onto his computer. The forensics police officer gave evidence that in his experience he had never seen child pornography end up on a computer in an automatic fashion. The judge relied on this evidence and ultimately convicted the accused.  The admission and reliance of the evidenc...

In Canada, the phrase “global sentence” is used to describe a single sentence that reflects the cumulative culpability for all offences on which the offender is sentenced.     (In the US, this type of aggregate sentence is termed a “unitary” sentence). The practice of imposing a global sentence is generally discouraged outside of the context of reducing the total sentence for multiple count convictions to ensure that the sentence meets the totality principle. But even here, the sentencing judge begins by determining the appropriate sentence for each offence. See R. v. Elliott , 2012 ABCA 214 (CanLII) at para 7 for a quick summary of sentencing in multiple count situations.  Judges should impose a sentence on each individual counts in order to determine the overall appropriate sentence.   See section 725(1)(a) of the Criminal Code.   This is so irrespective of whether the sentences are to be served consecutively or concurrently.    ...

There can be no consent to sexual activity without the capacity to consent.   For a complainant to be capable of providing her subjective consent to sexual activity, she must have the capacity to consent , that is, at the time of the sexual activity she must have an operating mind capable of understanding four things: 1.      the physical act; 2.      that the act is sexual in nature; 3.      the specific identity of the complainant’s partner or partners; and 4.      that she has the choice to refuse to participate in the sexual activity.               R. v. G.F ., 2021 SCC 20 (CanLII) at para 57.   The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. ...

Personally, I find the law and trials fascinating, but I understand they are not everyone’s cup of tea. Take the juror in R. v. Anderson , 2021 ONCA 45  for instance; he seems to enjoy other interests.   We know this as it appears he may have fallen asleep during part of that trial.   Anderson was ultimately convicted.   He appealed, alleging (among other things) that a somnolent juror causes a real danger of prejudice.   That is not hard to accept, as a jury’s responsibility in a trial is to make determinations of fact—a task better performed awake than asleep. The problem with Anderson’s argument was that his trial counsel didn’t raise an objection while the juror was allegedly dozing and only made passing reference to it after it had happened. The ONCA inferred from this that the incident was not a significant one.   Also, Anderson was not in a position at the time of the appeal to be able to prove that the juror had in fact fallen asleep.   B...

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...

  The opportunity to consult counsel in private is a vital component of the s.10(b) right. R. v. Playford  (1987), 63 O.R. (2d) 289 (Ont. C.A.) at para 31;  R. v. McKane  (1987), 35 C.C.C. (3d) 481 (Ont. C.A.) at p. 134. Once an accused has requested that he be permitted to consult counsel, that carries with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit. R. v. Doherty   (1974), 1974 CanLII 1531 (NS CA).   In R. v. Pileggi , 2021 ONCA 4 , the accused was arrested at his home during the execution of a search warrant.   The accused’s right to consult counsel in private would have been compromised had the police attempted to facilitate contact at the house while a search of the house was underway. In such circumstances it was not a breach of s. 10(b) of the Charter for the police to transport the accused to the police station before implementing his contact with coun...