Stuart O'Connell Criminal Law Blog

Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused’s blood for, among other things, proving the “over 80” offence in section 253(b).     It provides the prosecution with an evidentiary short cut of sorts.  By putting the certificate of qualified technician  into evidence, the prosecution is able to rely upon the breathalyzer test results as proof of an accused’s blood-alcohol level at the time of the offence, without the burden of calling further evidence on the point if the following preconditions are met: •          the breath samples were taken pursuant to a valid demand and in accordance with section 254(3);  •          each breath sample was taken “as soon as practicable” after the time when the offence was alleged to have been committed [the question to be asked is whether the police acted reasonably in circ...

The Demand to Provide a Sample of Breath           Section 254(3) of the Criminal Code If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person                     (a)      to provide, as soon as practicable, (i)    samples of breath, that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or                     (b)       if necessary, to accompany the pea...

Trial judges are entitled to question witnesses.  Indeed, sometimes they are duty-bound by the interests of justice to ask questions.  They are not required to remain silent, passive observers of trials.  There are, however, limits on their ability to intervene in the examination of witnesses.  Their interventions must never compromise the overall appearance of fairness in the trial proceedings.    R. v. Brouillard , 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39 , at p. 46 ; R. v. Darlyn (1946), 1946 CanLII 248 (BC CA), 88 C.C.C. 269 (B.C.C.A.) at p. 277 ; R. v. Pavlukoff (1953), 106 C.C.C. 249 (B.C.C.A.) ; R. v. McKitka (1982), 1982 CanLII 425 425 (BC CA), 66 C.C.C. (2d) 164 (B.C.C.A.) . A judge may intervene in the proceedings for numerous reasons. For example, a need to control the court’s process, a need to focus the questions being asked so that the evidence is received in a clear and cohesive manner, a need to avoid repetitive or irrelevant ques...

There is nothing procedurally wrong with including a summary conviction offence under the same information with an indictable offence. [31] Criminal Code proceedings are commenced by laying an information under oath alleging the commission of an offence. The same procedure applies whether the offence charged is an indictable or hybrid offence (s. 504) or a summary conviction offence (s. 788(1)).   [32]   In a Criminal Code information that charges indictable offences, subject to an exception that has no place here, any number of indictable offences may be included, provided each is contained in a separate count: s. 591(1). Likewise, s. 789(1)(b) expressly permits the inclusion of several summary conviction offences in separate counts in a single information. [33]   The Criminal Code contains no provision that expressly permits or prohibits joinder of indictable and summary conviction offences as separate counts in the same information. R v Sciascia , 2016 ...

If the accused is a person charged with an indictable offence not listed in either section 469 (offences within the exclusive jurisdiction of a judge of the superior court of criminal jurisdiction—generally, the most serious types of crimes) or section 553 of the Criminal Code ( indictable offence within the absolute jurisdiction of a provincial court judge), he/she is entitled to elect his mode of trial under section 536(2) of the Criminal Code .   If the accused is not afforded this statutory requirement, the presiding judge has no inherent jurisdiction to try the accused or receive his plea of guilty. The judge’s authority to do either depended entirely on the accused’s election “to be tried by a provincial court judge without a jury and without having had a preliminary inquiry” as s. 536(2) requires. The absence of an election means that the provincial court judge has no authority to try the appellant or to receive his plea of guilty: R. v. Shia , 201...

The defence of officially induced error of law is intended to protect a diligent person who first questions a government authority about the interpretation of legislation so as to be sure to comply with it and then is prosecuted by the same government for acting in accordance with the interpretation the authority gave him or her.     The conditions under which this defence is available are well-established. See Lévis (City) v. Tétreault , 2006 SCC 12, [2006] 1 S.C.R. 420. Whether a government official can use the defence of officially induced error of law in relation to the performance of his/her duties remains an open question; however, the Supreme Court of Canada, in obiter , expressed “serious reservations” about allowing the defence to extend to government actors. R. v. Bédard , 2017 SCC 4

Section 8 of the Charter requires search-warrant applications to be determined by persons who are neutral, impartial, and capable of acting judicially.  Hunter v. Southam Inc. , 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at 162-165 . Judges and Justices of the Peace are presumed to be such persons (or in other words, there is a presumption of impartiality ). That these judicial officers can, and should, ask relevant questions and, when appropriate, require further sworn evidence, is reflected in R. v. Araujo , 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992 .  In discussing the role of a judge before whom an application for a wiretap authorization is being made, Mr. Justice LeBel stated (at para. 29): Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.  The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submit...

In R . v. Morrisey, (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221, Doherty J.A. stated: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. At a later point in the same paragraph, he stated: If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then, in my view, it must follow that the appellant has not received a fair trial, and was a victim of a miscarriage of justice. This is so, even if the evidence, as actually adduced at trial, was capable of supporting a conviction. As the Supreme Court of Canada observed after citing Morrissey in R. v. Lohrer, [2004] 3 S.C.R. 732, at para. 4: Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the...

Pre-trials are an important mechanism to provide the public with a speedy trial that focuses on the matters in issue.  As such they are encouraged.  A pre-trial held with Crown counsel should occur in advance of the judicial pre-trial, in order to focus agreements and admissions as well as the matters in issue.  Criminal Rules of the Ontario Court of Justice (Commentary, RULE 4 — CASE MANAGEMENT) Crown Pretrial Hearings Crown pre-trial hearings, conducted in advance of judicial pre-trial hearings and usually conducted via telephone, give effect to Rule 4.2(2) of the Criminal Rules of the Ontario Court of Justice : Before attending the [judicial] pre-trial, it is desirable for the parties to ( a )  meet in order to attempt to resolve issues; and ( b )  review the file. Judicial Pretrial Hearings The Judicial Pretrial is a forum for the parties to make decisions regarding, among other things-- (a) disclosure;...

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. ...

At trial, the defence may challenge the constitutionality of a search conducted under the authority of a search warrant by demonstrating that the contents of the affidavit relied on to obtain the warrant could not justify its issuance (this affidavit is known as the Information to Obtain or ITO ).  If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter .  The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter :    R. v. Pires , 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8. On a challenge to the validity of the warrant, the reviewing judge does not make a de novo assessment of the ITO’s contents.  Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of...

The basic rule in the area of presumptively inadmissible hearsay evidence is that it will be admissible for the truth of its contents only if it meets the separate requirements of "necessity" and "reliability". The criterion of “reliability” is concerned with threshold reliability, not ultimate reliability. The function of the trial judge at the voir dire stage is limited to determining whether the particular hearsay statement, for example, exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. This process is necessary, of course, because the hearsay evidence is being presented for the veracity of its content, although the person affected by it is unable to test its veracity by a cross-examining the author of the statement. The ultimate reliability of the statement and the weight to be attached to it remain determinations for the trier of fact. General Rule: The Hearsay ...

Under s. 232 of the Criminal Code, homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. There are two essential components to the requirements of s. 232– one objective, the other subjective.  Ordinary person inquiry First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element.  Accused Person inquiry Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool. R. v. Tran , 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 23; R. v. Thibert , [1996] 1 S.C.R. 37. Contextualizing the Ordinary Person Standard Versus Individualizing It Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defenc...

The Process The 810 recognizance process begins with the swearing of the information, after which a summons for the Defendant/s is issued, and then the hearing itself (commonly referred to as a show cause hearing, as the Defendant is given an opportunity to show cause why the recognizance should not issue). Principles applicable to s. 810 applications English statute and common law conferred upon a justice of the peace a discretionary power to subject individuals to an order binding over an individual to keep the peace and to be of good conduct where the justice apprehended that these individuals would likely breach the peace.  In this one instance the English common law allowed a restraint on liberty of individuals where no offence had been proven.  This power was preventive rather than penal in nature; its purpose was to maintain order and preserve the peace.  Generally criminal law is penal in nature based upon proof of the offender having committed...