Stuart O'Connell Criminal Law Blog

The Test for Release under s. 20 of the Extradition Act Section 20(a) of the Act provides that the test to be applied is that set out in s. 679 of the Criminal Code [Section 679: Release pending determination of appeal] with any modifications that the circumstances require.  Accordingly, the Applicant must show that: a)              his appeal is not frivolous; b)              he is not a flight risk; and                                                                    c)       ...

Applications for search warrants and authorizations to intercept private communications under Part VI are ex parte proceedings. As a result, the author of the supportive document must make full, fair and frank disclosure of all material facts so that the authorizing judge or justice can assess whether the contents satisfy the conditions precedent to issuance of the search authority: R. v. Araujo , 2000 SCC 65, [2000] 2 S.C.R. 998, at para. 46. The obligation to make full, fair and frank disclosure of all material facts in an ITO or Part VI affidavit is a function of the ex parte nature of the procedure involved in obtaining the search authority. R. v. Donnelly , 2016 ONCA 988 at para 82.      Without more, inclusion of false or misleading information in the ITO or supportive affidavit does not vitiate the search authority. The reviewing judge excludes the erroneous information and then determines whether there remains reliable information that mig...

Criminal Code 516. Remand in custody 516. (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.   Section 516(1) of the Criminal Code permits a justice, before or at any time during the course of a judicial interim release hearing, on application by the prosecutor or accused, to adjourn the proceedings and remand the accused in custody in prison. Where the adjournment exceeds three clear days, the consent of the accused is required. It necessarily follows that an adjournment that is not more than three clear days does not require any consent on the part of the accused. R. v. Donnelly , 2016 ONCA 988 at para 76      A Crown’s request for adjournment ...

         Canadian Charter of Rights and Freedoms Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. It is not every qualification or compromise of a person`s security that comes within the reach of s. 7 of the Charter . The qualification or compromise must be significant enough to warrant constitutional protection. To suggest that any qualification or compromise of security of the person engages s. 7 risks trivializing the protections of the Charter : Cunningham v. Canada , [1993] 2 S.C.R. 143, at p. 151. Security of the person protects both the physical and psychological integrity of the individual: Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 55; R. v. Morgentaler , [1988] 1 S.C.R. 30, at pp. 56 and 173; Carte...

  While individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance and weight of other factors increase with the seriousness of the crime. This approach respects the fundamental principle of sentencing stated in s. 718.2 of the Criminal Code: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". R. v. Brown , 2015 ONCA 361 Similarly, in R. v. Thurairajah , 2008 ONCA 91 (CanLII), which concerned the sentencing of a youthful first offender for a particularly serious sexual assault, the Court of Appeal for Ontario held: Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 2007 ONCA 597 (CanLII), 87 O.R. (3d) 81 at 93-94 (C....

The time spent in custody by an offender on unrelated charges can be considered in a limited way in determining a fit sentence. As Justice Rosenberg stated in R . v. Wilson , 2008 ONCA 510, 236 C.C.C. (3d) 285 at para. 46, “a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender.” Justice Rosenberg cited as one example a situation where an offender with a drug problem received treatment while serving his sentence.  However, it would be an error in law for the sentencing judge to go beyond this limited analysis and grant credit for the time served on unrelated charges. R. v. Pammett , 2016 ONCA 979 at para 29. Giving an offender credit for pretrial custody for unrelated charges would permit an accused to “bank” time spent in custody. As Rosenberg J.A. observed in R . v. Wilson , at para. 45: But, at the end of the day when it comes time to sentence an offender t...

The defence of accident varies with the nature of the crime. In Criminal Pleading & Practice, Ewaschuck (2nd Edition), the Learned Justice states as follows: The “so-called” defence of accident varies depending on the nature of the crime. Where the crime involves specific intent, the defence of accident may relate to a denial of a voluntary act causing the prohibited harm or to a denial of intent or purpose to cause the prohibited harm. Where the crime involves general intent or recklessness, the defence of accident generally relates to an unexpected or chance event so unreasonably foreseeable that it exculpates the accused from any blameworthy conduct preceding the accident. In the criminal law, the term “accident” is used in two senses: an unintended act and an unintended consequence. The former relates to the conduct or actus reus element of an offence, the latter to the fault or mens rea element. R. v. Ward , 2016 ONCA 984; R. v. Mathisen , (2008) 2008 ONC...

THE OFFENCE OF FRAUD Like virtually all offences, fraud consists of two main components, the prohibited act ( actus reus ) and the required state of mind ( mens rea ). MENS REA The mental element of fraud consists of two states of mind: 1.        Subjective knowledge of the prohibited act; and 2.        Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk). R. v. Théroux , [1993] 2 S.C.R. 5 at p. 20; R. v. Zlatic , [1993] 2 S.C.R. 29 at p. 43. The question is not whether the accused believed the acts or their consequences to be moral.   A defrauder will not be acquitted because he or she believed that what they were doing was honest. Mens rea for fraud consists of the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood ...

Local Situation It may be appropriate for a judge to consider the fact that a type of offence occurs with particular frequency in a given region as a relevant factor in determining a just and appropriate sentence. R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 13. Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. In R. v. M. (C.A.), [1996] 1 S.C.R. 500 Lamer C.J. stated the following: The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community . [Emphasis added] Considerations of procedural fairness will generally require that a judge who intends t...

The timing of a guilty plea affects its impact in mitigation. A plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly. R. v. O. (C.) , 2008 ONCA 518, 91 O.R. (3d) 528, at paras. 16‑17; R. v. Wright , 2013 ABCA 428, 566 A.R. 192, at para. 12. The trial judge was right to attach less weight to the remorse expressed by the accused and to his guilty plea because of the lateness of that plea. R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 81.

Standard for Intervention on an Appeal From a Sentence Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . R. v. M. (C.A.) , [1996] 1 S.C.R. 500 at para. 90 Except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 11. Sentencing Ranges Sentencing ranges are primarily guidelines, and not hard and fast rules: As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. R. v. Lacasse , at pa...

In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 the accused was charged with impaired operation of motor vehicle causing death.   It was undisputed on appeal that at the time of the motor vehicle accident, the accused was impaired by alcohol. The majority of the Supreme Court of Canada noted in obiter that although the consumption of cannabis by the accused may not have played a role in fatal motor vehicle accident, it could be considered an aggravating factor on sentence, as it was evidence of the accused’s irresponsibility.   Presumably because of the risk the accused undertook when he consumed cannabis and then drove. R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 84

Canadian Charter of Rights and Freedoms 10. Everyone has the right on arrest or detention      a) to be informed promptly of the reasons therefor;      b) to retain and instruct counsel without delay and to be informed of that right; Section 10(b) of the Canadian Charter of Rights and Freedoms does not mandate the presence of defence counsel throughout a custodial interrogation. In most cases, an initial warning of the right to counsel, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not (the right to silence).   Normally, this purpose is achieve...

R. v. Wills, 2016 ONCA 965 the Court of Appeal for Ontario held that that trial judge had erred in admitted the child complainants’ hearsay statements about the alleged offences as evidence at trial based on a finding that 1. the children would be unlikely to provide a coherent and comprehensive account of the events due to a lack of present recollection, and 2. because having to testify in court would cause them undue trauma. The trial judge made these determinations based on evidence from the complainants’ parents and a video recording of brief police interviews with each child shortly before trial and about a year after their initial disclosures. Undue Trauma Unless the trial judge has had the opportunity to see the child’s reaction to questioning in the courtroom setting, “it will be a rare case … where the Crown can establish necessity based on the potential of psychological trauma without a proper assessment of the child by a qualified expert”. R. v. S.M.R....

Facts in issue cannot always be proved by direct evidence alone. “Usually, witnesses testify as to what they personally saw or heard. For example, a witness might say that he or she saw it raining outside. That is called direct evidence. Sometimes, however, witnesses say things from which you are asked to draw certain inferences. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might infer that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.” 10.2 of the Model Jury Instructions prepared by the National Committee on Jury Instructions of the Canadian Judicial Council It has become standard in Canada for the trial judge, in the course of the instructions to the jury, to explain to the jury the difference between direct and circumstantial evidence. This instr...

  As a general rule, opinion evidence is not admissible; witnesses testify as to the facts which they perceived, not as to the inferences – that is, the opinions -- that they drew from their perceptions: Graat v. The Queen , 1982 CanLII 33 (SCC), [1982] 2 S.C.R. There is, however, an exception for witnesses duly qualified to express an expert’s opinion: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24. The opinion evidence of non ‑ expert witnesses is generally inadmissible. In R. v. D.D ., 2000 SCC 43 (CanLII), [2000] 2 S.C.R. 275at para. 49, Justice Major summarized this long-standing exclusionary rule: A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience. This is a commendable   principle since it is the task of the fact finder, whether a jury or judge alone, to decide what secondary inferences are to be drawn from the facts proved. There is a...