Stuart O'Connell Criminal Law Blog

The stay driving prohibition application is an important step that has significant consequences.  If successful, it restores the Applicant’s driving privileges during the appeal period, after they were lost due to the conviction and sentence at trial. Under section 261 of the Criminal Code, a judge of the court being appealed to may direct that a driving prohibition be stayed pending final disposition of the appeal (or until otherwise ordered by the court). Section 261 of the Criminal Code does not set out any statutory test for the granting of a license suspension stay, pending appeal.  It simply grants a broad discretion.   However, as a matter of practice, the test that has developed is analogous to the related powers found in s. 679 and s. 683(5), which deal with bail pending appeal and with stays of fines, probation orders and other sentences pending appeal.  The statutory tests set out in these two provisions are that the “appeal is not frivolous”, t...

In my last blog entry, I discussed remorse in the context of criminal sentencing. But what about demonstrations of remorse before sentencing? The timing of an accused’s contrition is tactically important.   An apology made by the accused for the conduct which forms the basis of a criminal charge may be used at trial to incriminate the accused (assuming it is admissible under rules of evidence). Though in most circumstances such an apology would simply be one piece of the factual puzzle, and incriminating only to the extent that it is, for instance, reliable, elaborated upon, and qualified.   Such was the case in R. v. J.F., 2015 ONSC 3136.  Since 2009, Ontario has had an Apology Act which provides that: an apology made by or on behalf of a person in relation to any matter does not constitute an admission of fault or liability by the person. This is good social policy as it encourages individuals to take responsibility and make amends for their wrongful a...

Evidence of an offender’s remorse, as for instance by a plea of guilty, will often justify reduction of a sentence below the level which would otherwise be appropriate for the offence committed. However, a court must be very careful in treating lack of remorse as an aggravating circumstance. A sincere expression of remorse can be an important mitigating factor and can reduce the sentence that might otherwise be imposed. Lack of remorse is not, ordinarily, an aggravating circumstance. It should only be considered aggravating in very unusual circumstances such as where the accused's attitude toward the crime demonstrates a substantial likelihood of future dangerousness. R. v. Anderson (1992), 1992 CanLII 6002 (BC CA); See R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.), at paras. 80-85.  Considering an offender’s lack of remorse as an aggravating factor in sentencing constitutes an error in principle.   See R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.).  ...

With advances in software and computer technology, greater amounts of data may be downloaded from the internet with increasing ease and rapidity.   One consequence of this is, in my experience, a general increase in the sheer number of images that those caught with unlawful pornography have in their possession.   More and more in child pornography cases, the unlawful pornographic images were not individually downloaded, but rather as part of large files (batch files: compressed files capable of containing multiple images, sometimes tens of thousands).   Downloading this way takes little effort on the offender’s part to amass a large collection. In some cases, it is reasonable to infer that the individual has only viewed a small part of that collection. Yet, the size of an offender’s collection of child pornography has figured prominently in sentencing decisions, largely because it is a useful means by which to gauge an offender’s level of culpability.  ...

Mandatory minimum sentence should be reserved for the best offender and the least serious version of the crime.  See R. v. Garcia , [2004] O.J. No. 1714 at para. 148 (S.C.) ; R. v. B.C.M. , 2008 BCCA 365 (CanLI) at para. 32 ; and R. v. Newman , 2009 NLCA 32 (CanLII) at paras. 55-57 .  However, the Court of Appeal has provided repeated direction that an offender’s first sentence of imprisonment should be as short as possible and tailored to that individual’s particular circumstances.  See R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 at 297-298 (Ont. C.A.) ; R. v. Vandale and Maciejewski (1974), 21 C.C.C. (2d) 250 at pgs. 251-252 (Ont. C.A.); R. v. Hayman (1999), 1999 CanLII 3710 (ON CA), 135 C.C.C. (3d) 338 at paras. 22-23 (Ont. C.A.) ; R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225 at para. 36 (Ont. C.A.) .

The ‘air of reality’ test governs whether a defence should be put to the jury. That test provides that the determination of putting a defence to the jury is based on “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit”: R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 49. The trial judge “must put to the jury all defences that arise on the facts”.   It does not matter whether an accused advanced such a defence: Cinous , at para. 51. Nor does it matter if the defence is incompatible with defences advanced by the accused: see R. v. Gauthier , 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 31-34. At the same time, the trial judge must not put to the jury any defences that lack an air of reality: Cinous , at para. 51. As Cory J. explained, “[s]peculative defences that are unfounded should not be presented to the jury. To do so would be wrong, confusing, and unnecessarily lengthen jury trials”: R. v....

R. v. Dunkley , 2016 ONCA 597 (CanLII), is interesting for a number of reasons. First, in a rare move, Court of Appeal for Ontario overturned the decision of the trial court to include gun evidence which was obtained in violation Canadian Charter of Rights and Freedoms. Second, the appeal considered the interaction between the authority of the police to conduct an inventory search of a vehicle impounded pursuant to the Highway Traffic Act and the right under s. 8 of the Charter to be free from unreasonable search and seizure. And third, in considering whether the police had the lawful authority to search the appellant’s vehicle under the common law investigative detention doctrine, the Court said this: In this case, the Crown cannot rely on this power to justify a search for identification after the appellant has fled the scene.  The search of the car at that point had no nexus to a concern for officer or public safety directly arising out of an investigative detenti...

When an out-of-court statement offered as evidence contains another out-of-court statement, both layers of hearsay must be found separately admissible. [E]ach level of double hearsay must fall within an exception, or be admissible under the principled approach. R. v. Starr , [2000] 2 S.C.R. 144 at para 172  So, for example, where A describes to B what A witnessed during fight (one level of hearsay), and B makes a statement to police about what A has told him (another level of hearsay), the party seeking to have B’s hearsay police statement admitted as evidence for the truth of its contents would have to a.        prove that B’s out-of-court statement represents that version of events which was recounted to him by A, and then b.        prove that the version of events described by A to B was what actually happened. See R. v. Cesar , 2016 ONCA 890 Hearsay evidence “is defined not by the nature of the e...

Past recollection recorded is a well-established exception to the hearsay rule.  Although the test has been described in different language over the years, the essential conditions for admissibility are as follows: Reliable record  The past recollection must have been recorded in a reliable way.  This requirement can be broken down into two separate considerations:  First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it.  Second, the original record must be used if it is available. Timeliness The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate. The timeliness requirement does not call for strict contemporaneity.  It is sufficient if the record is prepared close enough to the events to ensure accuracy.  The appropriate length of time will vary wi...

The rule excluding hearsay Hearsay evidence is presumptively inadmissible primarily because, absent contemporaneous cross-examination of the declarant, the party against whom the evidence is offered cannot effectively test the reliability and veracity of the out-of-court statement.  Hearsay evidence is excluded both to protect the integrity of the truth seeking function of the trial and to preserve the fairness of the trial: See Khelawon, at paras. 48, 63; and R. v. Couture,  2007 SCC 28 (CanLII) , [2007] 2 S.C.R. 517, at para. 77. The principled exception to the rule excluding hearsay The principled exception   to the hearsay rule was discussed by the Supreme Court of Canada in the cases of R. v. Khan, 1990 CanLII 77 (SCC),  [1990] 2 S.C.R. 531, R. v. Smith,  1992 CanLII 79 (SCC) , [1992] 2 S.C.R. 915 and R. v. Khelawon, 2006 SCC 57 (CanLII) , [2006] 2 S.C.R. 787.  In essence, the Supreme Court of Canada has found that hears...

Today the right to effective assistance of counsel extends to all accused persons.  In Canada that right is seen as a principle of fundamental justice.  It is derived from the evolution of the common law, s.650(3) of the Criminal Code of Canada and sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers.  In some cases the result will be a miscarriage of justice.  To succeed in setting aside a trial verdict on the basis of the ineffective assistance of counsel, the appellant must show two things: 1.        That counsel’s acts or omissions constituted incompetence Incompetence is determined by a reasonableness standard.  The analysis proceeds upon a strong presumption that counsel’s...

R. v. Edwards, 1996 CanLII 255 (SCC) is accepted authority for the proposition that whether a claimant possesses a reasonable expectation of privacy determines whether the claimant has legal standing to challenge the search/seizure under section 8 of the Canadian Charter of Rights and Freedoms. Identifying the type of privacy interest that may be at stake from among—territorial, informational, personal—potentially allows courts to focus on different privacy values engaged in differing circumstances. However, while the distinction between personal, territorial and informational privacy provides useful analytical tools, in a given case, the privacy interest may overlap the categories.    R. v. Tessling   R. v. Edward also provides us with the standard legal test for determining a reasonable expectation of privacy situated in territorial/spatial interests.   In R. v. Henry, 2016 ONCA 873, the Court of Appeal for Ontario agreed with the conclusion of ...