Stuart O'Connell Criminal Law Blog

Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”.   The doctrinal framework for the right to be tried within a reasonable time is set out in R. v. Jordan , 2016 SCC 27. Under the Jordan framework, where the delay falls below the presumptive ceiling of 18 months ( for cases going to trial in the provincial court) , the onus is on the defence to show the delay was unreasonable. The defence must show: (i)      it took meaningful steps that demonstrate a sustained effort to expedite the proceedings ( defence initiative ); and (ii)    that the case took markedly longer than it reasonably should have: Jordan , at para. 82 ( reasonable time requirement ). In transitional cases, the two ...

The s. 8 Charter right to be secure against unreasonable searches protects a person’s expectation of privacy from state intrusion. Nowhere is that expectation of privacy higher than in one’s home. To enter a home, police ordinarily need previous authorization: a warrant. Warrantless entries of a home are presumed to be unreasonable and in breach of s. 8.   See R. v. Silveira , [1995] 2 S.C.R. 297, at para. 162. But exceptions exist, both by statute and at common law. Criminal Code Exceptions to the Warrant Requirement Under s. 529.3 of the Criminal Code , the police may enter a home without a warrant to arrest or apprehend a person if the conditions for obtaining a warrant exist but “exigent circumstances” – that is, urgent or pressing circumstances – make it impractical to obtain one. The Code includes among exigent circumstances those where the police have reasonable grounds to suspect entry into the home is necessary to protect a person’s imminent harm or death...

In the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit   referred to in section 719(3.1) of the Criminal Code. In considering whether any enhanced credit should be given, the court will consider both ·          the conditions of the presentence incarceration, and ·          the adverse effect of those conditions on the accused. R. v. Duncan, 2016 ONCA 754 (CanLII).  A relevant factor will also be whether the difficult conditions (such as prolonged lockdowns) for which the offender seeks sentence mitigation are related to the offender’s own misconduct: R. v. J.B. [2016] O.J. No. 855 at para 22. The harshness of prolonged lockdowns, or protective custody, or a series of assaults upon the inmate, for instance, are the types of things that may merit enhanced cr...

A lockdown refers to a period of time when inmates who are housed in general population remand living units and who would have typically have access to the day room and inmate programming, instead remain locked in their cells.  Despite the fact that a “lockdown”   is not the norm within the institution and it should not be viewed as such” ( R. v. Bedward , 2016 ONSC 939, at para 22. ), the Central East Correctional Centre in Lindsay, Ontario reported a staggering 199 lockdowns in one year. Toronto Star Report, Tuesday July 14, 2015. Consequences of a Lockdown? When an inmate is subject to total lockdown, they are, typically, confined with another inmate to their cell – a standard cell is a 15 foot by 7 ½ foot by 9 foot (in height) concrete box containing two bunk style beds. Though the conditions prisoners experience during a lockdown may vary depending on the particular correctional facility, or on the reason for the lockdown, the following are some of the usual...

An accused is entitled to a pre-trial bail credit where the Court is satisfied there has been an impact on his liberty as a result of strict bail conditions.  R v Downes (2005), 2006 CanLII 3957 (ON CA), 205 CCC (3d) 488 (ONCA); R v Newman , 2005 ABCA 249 (CanLII); R v Liparoti , 2011 ABCA 250 (CanLII); and R v Olsen , 2011 ABCA. * Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. * As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. * The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. * The amount of credit to be given for time spent on bail under house arrest is within the dis...

Paragraph 258(1)(c) of the  Criminal  Code provides that evidence of the results of the analyses by an Intoxilyzer of samples of breath of a defendant are proof of the concentration of alcohol in his or her blood at the time of the alleged offence if, among other things, each breath sample was taken "as soon as practicable after the time the offence was committed". In order to take advantage of this statutory presumption the Crown must prove beyond a reasonable doubt that each of its requirements have been met. As Justice Hill held in R. v. Walker , [2006] O.J. No. 2679 , Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject. There is no requirement that the tests be taken as soon as possible . Nor does the provision require an exact accounting of every moment in the chronology. ·             The provisi...

Impairment may be established where the prosecution proves any degree of impairment from slight to great The offence of impaired driving has been made out where the evidence of impairment establishes beyond a reasonable doubt any degree, from slight to great, of impairment by alcohol of the defendant’s ability to operate a motor vehicle. R. v. Stellato , 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. R. v. Censoni , [2001] O.J. No. 5189 at para. 47 (S.C.J. per Hill J., cited with approval in R. v. Bush , 2010 ONCA 554 (CanLII), [2010] O.J. No. 3453 at par. 47 (C.A.)). Impairment must be in relation to the ability to drive As the Alberta Court of Appeal has held in R. v. Andrews (1996),...

As a general rule, where an appellant appeals both his or her conviction and sentence, the conviction appeal should be heard first. It is preferable that the appeals be heard together. The advantages of this order of proceeding are clear. It enhances the efficient use of the court’s resources, avoids the possibility of contradictory outcomes, and ensures that the panel hearing the sentence appeal has the benefit of the full context for the appeal.   Appeals from conviction and sentence should only be bifurcated where there are compelling reasons to do so. The British Columbia Court of Appeal’s comments on this issue in R. v. Freeman (1998), 101 B.C.A.C. 79 , at para. 5 , are instructive: The usual practice in this Court is to hear appeals from conviction prior   appeals from sentence, where both appeals are set to be heard in this Court. This is for the obvious reason that a successful conviction appeal renders a sentence appeal redundant. There may be exceptions to...

The Crown’s duty to disclose to an accused all relevant information in its possession necessarily gives rise to an obligation on the Crown and the police to preserve this information. Was the Loss or Destruction of the Evidence the Result of Unacceptable Negligence?   If such material is lost or destroyed, the Crown must explain this. In considering the adequacy and import of the Crown’s explanation, a trial judge must consider all of the circumstances surrounding the loss of the information, including ·          the relevance it was seen to have at the time, and ·          whether the police acted reasonably in attempting to preserve it. If the explanation reveals that the information was destroyed or lost due to unacceptable negligence, this constitutes a breach of the Crown’s disclosure obligation and a violation of the accused’s s. 7 rights under the Charter . When the Loss ...

First Party (Stinchcombe) Disclosure Under Stinchcombe , the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges. R. v. Stinchcombe , 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at pp. 336-40 ; R. v. Quesnelle , 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390 , at para. 11 . The duty is triggered upon request without recourse to a court. R. v. McNeil , 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66, at para. 17. For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to all Crown entities, federal and provincial. All other Crown entities, including the police, are third parties. Quesnelle , at para. 11; McNeil , at para. 22. Apart from the p...