Stuart O'Connell Criminal Law Blog

Section 737 of the Criminal Code requires that an offender who is convicted or discharged shall pay a surcharge. The surcharge regime has two objectives: (i)                 to provide funds for victim services, and (ii)               to increase offenders’ accountability to victims and the community. See R. v. Cloud , 2016 QCCA 567, 340 C.C.C. (3d) 547; R. v. Tinker , 2017 ONCA 552, at paras. 86-96. The surcharge is a unique penalty in the nature of a general kind of restitution. R. v. Crowell (1992), 115 N.S.R. (2d) 355 (Supreme Court of Nova Scotia, Appellate Division). Can victim surcharges be imposed concurrently? Victim surcharges are imposed automatically upon conviction or discharge for each offence and there is no discretion in the court to circumvent this automatic imposition by ordering concurrent vic...

In exceptional cases, hearsay evidence can be admitted under the principled approach if it satisfies the twin requirements of necessity and reliability: See R. v. Khelawon , 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 , at para. 9 ; see also R. v. Khan , 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 , 11 W.C.B. (2d) 10 ; R. v. Smith , 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 , 94 D.L.R. (4th) 590 ; and R. v. Starr , 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144 . In determining whether hearsay is sufficiently inherently trustworthy to warrant its admission, the court may consider not only the circumstances surrounding the making of the statement but other evidence properly before the trier of fact supporting or undermining the accuracy of the out-of-court statement. R. v. Dupe , 2016 ONCA 653 (CanLII), [2016] O.J. No. 4586, at para. 46. For instance, inconsistencies in the declarant’s statement/s can serve to undermine its reliability. See for instance, See R. v. Ngoddy , 2...

The absence of evidence is not evidence of absence. In R. v. Czibulka , 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199, 190 O.A.C. 1, at paras. 43-45 the Court recognized that where the Crown seeks to tender a hearsay statement under the principled approach to the admission of the hearsay evidence, the record will generally disclose one of the following three scenarios: 1.        Proved absence of motive to fabricate The Crown may be able to show that the declarant had no known motive to fabricate the hearsay story to this witness about this accused.   Khan and Smith (in respect of the first two statements) were such cases.   2.       Proved motive to fabricate Conversely, the circumstances may be such that either because of direct evidence or logical inference it is apparent that the declarant did have a motive to fabricate this story.   Starr and the third call in Smith would seem to b...

Roadside Screening Section 254(2) of the Criminal Code authorizes police to demand that the operator of a motor vehicle provide a sample of his or her breath into an “ approved screening device ” where the police have reasonable grounds to suspect that the person to whom the demand is made has alcohol in their body.  A “fail” result on an “ approved screening device ” may be considered, along with any other indicia of impairment, in satisfying the requirement for reasonable grounds to demand a breath sample pursuant to s. 254(3) of the Criminal Code.  Reasonable Grounds There are two components to reasonable grounds – a subjective belief which viewed objectively must be reasonable.  An officer is entitled to delay the administration of the test where there are grounds to believe that a delay is necessary.   For instance, an officer may have reason to believe that the test may be inaccurate because of mouth alcohol.      ...

The legal test applicable when a reviewing court is faced with an allegation of inconsistent jury verdicts is “whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge”:                  R. v. Pittiman , 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. Where the accused is tried on a multi-count indictment, “the verdicts will be supportable if the trial judge’s instructions were proper legal instructions that could have led the jury to accept a theory of the evidence producing these verdicts”: R. v. L(S) , 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 5; R. v. Tyler , 2015 ONCA 599, [2015] O.J. No. 4653, at para. 8. OK, hold on.   Here’s where things get a little tricky. Verdicts that are inconsistent are unreasonable:   they cannot be supported on a realistic view of the evidence.   As a species of unreasonable v...

In R. v. Cody , 2017 SCC 31, the Supreme Court of Canada provides a useful summary of the R. v. Jordan framework.   The new framework established in Jordan for analyzing whether an accused person’s right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts. Jordan , at para. 46. The first step under this framework entails “calculating the total delay from the charge to the actual or anticipated end of trial” Jordan , at para. 60. After the total delay is calculated, “delay attributable to the defence must be subtracted” Jordan , at para. 60. The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then “depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling” Jordan , at para. 67. Defenc...

Trial judges have a broad discretion in how to charge a jury. Their decision about how much evidence to review, what structure to use and how to organize the charge falls within that discretion. But, ideally, the charge should contain some basic components. One of these components is to set out for the jury the material evidence relevant to the issues that the jury must resolve. It is not the function of a trial judge to simply review at length all of the evidence (in reality the judge’s notes of the evidence) that the jury has heard. Rather, the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language. R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), aff’d [1994] 2 S.C.R. 310, at para. 39. Going through the evidence witness by witness A witness by witness recitation of the evidence is almost always ineffective. It is ineffective for at least two reasons. 1.      ...

In R. v. Saint, 2017 ONCA 491, the Court of Appeal for Ontario considered whether a drug warrant (section 11, Controlled Drugs and Substances Act ) was invalid as it did not specify an execution date. The function of a search warrant is to authorize police officers to enter a specified place they would otherwise have no authority to enter, in order to search for and seize specified property. Because forced entry into a private place, particularly a person’s residence, is such an extraordinary exercise of executive power, it is subject to stringent juridical control: it must be judicially authorized ex ante and is subject to judicial scrutiny ex post : R. v. Saint, 2017 ONCA 491, at para. 6; R. v. Araujo , 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29. It is uncontroversial that a non-expiring warrant undermines the purposes for the warrant requirement: facilitating meaningful judicial pre-authorization; directing and limiting the police in the execution of the search; and ...

Charter interpretation is energized by and must take account of changing social values and expectations. Carter v. Canada (Attorney General) , 2015 SCC 5 at para. 47; Canada (Attorney General) v. Bedford , 2013 SCC 72 at paras. 41, 44; R. v. Nur , 2011 ONSC 4874 at para. 49 (varied on other grounds, 2013 ONCA 677; aff’d 2015 SCC 15); Al-Isawi at paras. 51-52. Values are not immutable. They change in response to changing social conditions, social sentiments and expectations, evolving human knowledge, and technological advancement. For this reason, the Charter must adapt to changes in social context and not remain frozen in the past. R. v. Elliott, 2017 BCCA 214, at para. 36. As famously stated by Viscount Sankey in the Persons Case , the constitution is a living tree capable of growth and expansion within its natural limits. Edwards v. A.G. of Canada [1930] A.C. 124. Section 12 of the Charter: Cruel and Unusual Treatment or Punishment Sect...

An error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence. R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44 For a recent application of this rule, see R. v. A.G., 2017 ONCA 474, where although the sentencing judge had erred in principle by treating the accused’s absence of remorse as an aggravating factor, the sentence was upheld on appeal. The fitness of a sentence depends not only on the seriousness of the crime and its consequences, but also on the moral blameworthiness of the offender. R. v. Lacasse. The personal circumstances of the accused may inform the question of moral blameworthiness. R. v. Davies , 2017 ONCA 467, at para. 5 In R. v. Davies , Ibid ., the trial judge committed an error in principle by sentencing the accused wi...

The right to effective counsel is a constitutionally protected right, an aspect of an accused’s right to make full answer and defence and right to a fair trial.   That right may inform the information obligations that police have to an accused under section 10 (b) of the Charter. What are police to do when they have reason to believe counsel is ineffective?   Our courts are required to presume professional competence, absent proof to the contrary. The same presumption applies to the police when they consider the competence of the lawyer consulted by the accused. The following rule out of R. v. Dubeau is hinged on this presumption-- Police are not obligated to provide an additional section 10(b) informational warning (advising the accused of the right to consult effective counsel) unless they have reasonable grounds to believe, and do believe, that there exist factors (such as alcohol consumption) which, on a balance of probabilities, reasonably lead to a conclu...

In R. v. Butters , 2014 ONCJ 228 (CanLII) , aff’d 2015 ONCA 783 (CanLII), Justice Paciocco (now of the Court of Appeal for Ontario) considered the circumstances in which one warrantless search and two warranted searches occurred. The officer filed a report for the warranted searches but failed to file a return for the warrantless search, contrary to s. 489.1 of the Criminal Code . The judge concluded that he was not bound by the obiter remarks in Re Church of Scientology and disagreed with them (para. 53). After examining dictionary definitions, he concluded that seizure was an ongoing state of affairs so long as someone was deprived of something. In his view, the purposive interpretation favoured in Charter interpretation supported that s. 8 should be “interpreted to embrace the retention of seized goods” (para. 54). He concluded, not that the search was unlawful, but “[i]f the continuation of a seizure is not lawful, the seizure becomes unreas...