Stuart O'Connell Criminal Law Blog

In R. v. Aviles , 2017 ONCA 629, the Court of Appeal of Ontario accepted the appellant’s position that when the police conduct a warrantless search, the onus is on the Crown to prove on a balance of probabilities that the search was a reasonable one. It is not the first time the Court has said as much. See R. v. Gonzales , 2017 ONCA 543, at para. 143. This position conflicts with the opinion of a number of courts which have held that the long-standing common law power of search incident to arrest is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable.             “Searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable.” R. v. Golden , [2001] 3 S.C.R 679 at para. 84;  see also , R. v. Odbert , 2017 ONSC 4390, at para. 32. The Court of Appeal’s position does, however, appear to square ...

Trial Management Power   Trial judges have a firmly rooted authority to control proceedings over which they preside. In the exercise of that authority, they may intervene when counsel or witnesses fail to follow the rules or rulings made during the course of the trial. Judges are entitled to control the procedure of trial to ensure, as best they can, that the proceedings are effective, efficient and fair to all parties, including those required to give evidence: R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont. C.A.), at para. 24; R. v. Felderhof (2003), 180 CCC (3d) 498 (Ont. C.A.), at paras. 36-40; R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at pp. 230-32, leave to appeal refused, [1986] 1 S.C.R. xiii (note). The position of established neutrality occupied by trial judges requires them to confine themselves as much as possible to their own responsibilities, and to leave to counsel and to the jury their respective functions. R. v. Torbiak and Campbell (1974), 1...

The admissibility of psychiatric opinion evidence on the accused’s disposition engages at least two inquires: ·          The admissibility of the evidence as expert opinion evidence, ·          The admissibility of the evidence as character evidence. The Admissibility of  Expert Opinion Evidence Opinion evidence, including expert opinion evidence, is presumptively inadmissible. R. v. Abbey , 2009 ONCA 624, 97 O.R. (3d) 330, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 125.   To be admissible, expert opinion evidence must satisfy certain preconditions to admissibility and also survive a cost/benefit analysis by the trial judge.  At this second stage, the trial judge decides whether having regard to the risks inherent in admitting expert evidence, the benefits to the fact-finding process in the specific case warrant the admission of that evidence: White Burges...

Evidence of fear or threats may be relevant to several different issues in a criminal trial, among them, the state of mind of a person who testifies in those proceedings. Threats to a witness, or fear on the part of a witness about consequences following the giving of evidence or testifying in a certain manner, may explain why a witness has strayed from prior versions of the same events. R. v. John, 2017 ONCA 622, at para. 80 . R. v. Cuadra (1998), 125 C.C.C. (3d) 289 (B.C.C.A), at para. 29; R. v. Lawrence (1989), 52 C.C.C. (3d) 452 (Ont. C.A.), at p. 456; Evidence of the Accused’s Bad Character It seems likely to me that a fearful witness, in explaining the reason for the inconsistencies in her statements, and thus her fear, will attempt to give evidence of the accused’s bad character.   If this evidence is admitted at all, it should be limited to the purpose of allowing the trier of fact (e.g., the jury) to assess the credibility of the witness. The trier of fac...

The court has jurisdiction to remove a solicitor from the record and restrain him from acting. Re Regina and Speid , 1983 CanLII 1704 (ON CA), at para. 5. An accused has a right to professional advice and to retain counsel of his/her choice (rights inferentially entrenched in section 10 of the Charter ).   But an accused has no right to counsel who, by accepting the brief, cannot act professionally . Re Regina and Speid , at para. 16.  [Where counsel was in a conflict of interest between his new client and his former one].   In assessing the merits of a disqualification order, the court must balance the individual's right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons. Re Regina and Speid , at para. 6. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

The Classic Mr. Big Sting The classic “Mr. Big” operation involves undercover officers befriending the suspect as members of a criminal organization run by their boss, the so-called Mr. Big. The suspect is recruited to work for the organization, and to carry out simple, apparently illegal tasks. He is included in the lavish lifestyle and camaraderie of the group, but is told that his ultimate acceptance depends on Mr. Big, and that honesty, trust and loyalty are required. The organization operates within an aura of violence, perpetrated against any member who betrays the trust. The operation culminates with Mr. Big demanding that the suspect confess to a crime he has learned the individual is suspected of: the confession will be proof of the suspect’s trustworthiness. The Problem with Mr. Big Confessions There are at least three concerns regarding these types of confessions:   1) they can result in unreliable confessions obtained by threats and inducements; 2)...

The law maintains a distinction between   1. an absence of evidence of a motive to fabricate, and 2. an absence of a motive to fabricate. R. v. L. (L.) , 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. It does not logically follow that, because a witness has no apparent reason to lie (absence of evidence), the witness must be telling the truth: R. v. B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate (absence of evidence) does not mean that the witness has no motive to fabricate. L. (L.) , at para. 44. Evidence of a good relationship between the witness and the accused In the context of a witness’ motive to fabricate, evidence of a good relationship between the witness and the prospective accused does no more than reinforce the absence of evidence of a proven motive, not prove the absence of motive.   L. (L.) , at para. 45. As Justice Watt has noted: “The distinction between absence of ...

An accused has the constitutional right to disclosure of all material that could reasonably be of use in making full answer and defence of the case against her, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms . Because pre-trial custody may involve institutional rules that are inhospitable to accessing disclosure, as well as unpredictable events, such as lockdowns, an unrepresented accused person has little scope for exercising initiative in relation to disclosure. As a result, it falls to the Crown to take positive steps to ensure that the relevant materials make in into the hands of an in-custody accused.   What steps are required will depend on the circumstances of each case but may include the following: ·          a readiness hearing held reasonably in advance of the trial in order to alleviate or eliminate any inadequate disclosure; ·          personal servic...

Banishment is a rare condition in a probation order, but can be included under section 732.1(3)(h) of the Code which reads that a probation order may include, among other conditions: (h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community. As long as the condition is reasonable, and is included for the purpose of protecting society, or aiding in the offender’s rehabilitation, then it is acceptable.  Banishment orders are not to be issued routinely, and a banishment order cannot be intended to be penal such that it promotes deterrence, denunciation or retribution. R. v. Etifier , 2009 BCCA 292 (CanLII), at paras. 9-17. Banishment for an improper purpose A practice whereby one community seeks to rid itself of undesirables by foisting them off on other communities should not be t...

In Jordan , the Supreme Court   created a new analytic framework for determining whether a breach of section 11 ( b ) of the Charter had occurred.  At its centre is “a ceiling beyond which delay is presumptively unreasonable.” The Court set two presumptive ceilings for the period of time from the date an accused person is charged to the actual, or anticipated, end of trial (the total delay): 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). R v Jordan , 2016 SCC 27 (CanLII) at para 46. R. v. Jordan does not distinguish between a one-step trial process (without preliminary inquiry) and a two-step trial process (with preliminary inquiry) in the Superior Court. R v Schenkels , 2017 MBCA 62 (CanLII); R v Cabrera , 2016 ABQB 707 (CanLII) , leave to appeal to Alta CA pending. It does, however, recognize an ex...

The common law confessions rule requires the Crown to demonstrate beyond a reasonable doubt that a confession made by a suspect to a person in authority was voluntary. The factors to be considered to determine whether a statement was made voluntarily are set out in R. v. Oickle , 2000 SCC 38 (CanLII).  Voluntariness is shorthand for a complex of values.   A statement can be found to be involuntary if it is obtained as a result of threats, promises, inducements, oppression, or if the statement is taken when the person does not have an operating mind.  Operating Mind An individual has an operating mind as long as he knows what he is saying, that he is communicating with police officers, and what is at stake if he chooses to speak to police.  Oickle supra   at para 63 citing   R. v.   Whittle , 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914   at p. 936.  Factors to be considered in determining whether an accused had an operatin...

In a narcotics-related case, the Crown must show beyond a reasonable doubt that the material seized from an accused was a prohibited substance. To that end, the Crown must prove that the substance dealt with by, or in the possession of, the accused is the same substance that is alleged in the information or indictment (and prohibited by law). R. v. Larsen , 2001 BCSC 597 (CanLII) , aff’d on other grounds 2003 BCCA 18 (CanLII) . The chemical or scientific analysis of an illegal substance normally provides a court with reliable and trustworthy evidence that the substance was actually illegal according to its components. The certificate of analysis conveys just that. In practice, the certificate ends any debate about what was seized. The danger of permitting lay identification of an allegedly illegal substance is manifest and ought not to be encouraged. R. v. Grant , 2001 ABCA 252 (CanLII), at para. 2. Although it should be the rare case in which a trial judge makes a ...

Determining whether a search is constitutionally unreasonable under section 8 of the Charter involves a consideration of whether, in the circumstances, there is a reasonable expectation of privacy.   It is that expectation that triggers the application of section 8. Electronic communications in the modern world involve a degree of anonymity and easily permit either the sender or recipient of a message to give misleading or false information. When an individual shares information across electronic social media with a person or entity he does not know, and therefore with whom he is not in a position to trust, he risks the disclosure of that information.   This militates against the individual possessing a reasonable privacy expectation. R. v. Mills , 2017 NLCA 12, at para. 23. [In which the appellant communicated via social media with a police officer posing as a fourteen-year-old girl.   The Court of Appeal for Newfoundland and Labrador concluded that the app...