Stuart O'Connell Criminal Law Blog

Common Law Searches To determine whether a search is authorized by the common law, a court must determine: (1) whether the police conduct in issue falls within the general scope of any duty imposed on the officer by any statute or common law, and   (2) whether, in the circumstances, the police conduct involved a justifiable use of the powers associated with the engaged duty. R. v. Waterfield , [1964] 1 Q.B. 164; R. v. Godoy, [1999] 1 S.C.R. 311, at para. 12. Searches incident to investigative detention One line of jurisprudence concerning when a search is justifiable arises from searches conducted pursuant to an investigative detention. In R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court established the following four requirements. 1.        The police officer must have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is nec...

Recognition evidence Recognition evidence is a subset of eyewitness identification evidence, in which the eyewitness’ identification is based on prior acquaintance. The recognition witness may or may not have been present at the scene of the crime. As a form of identification evidence “[t]he same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.”  R. v. Olliffe , 2015 ONCA 242, at para. 39. The test for admitting recognition evidence This type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. R. v. Leaney , [1989] 2 S.C.R. 393; R. v. Brown , 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39. The importance of identifying particular features or idiosyncrasies of the person to be identified The importance of unique identifiable fe...

Although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification: Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality. Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983), at p. 10, quoted in R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), at p. 422. Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Certainty should not be mis...

A verdict based simply on the comparison of stories improperly shifts the burden of proof to the accused and does not respect the principle of reasonable doubt. An accused’s evidence cannot be rejected simply because the evidence of a complainant is accepted . W.(D.) precludes this “either/or” approach to the assessment of credibility. More is required. R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742: the W.(D.) test requires that judges and juries refrain from engaging in “credibility contests” between the accused and the complainant. Where an accused testifies and isn’t impeached, there is a route to conviction, however.   A trial judge can reject the accused’s evidence based on compelling conflicting evidence, the truth of which the trial judge accepts beyond a reasonable doubt.  This was explained by Justice Doherty in R. v. J.J.R.D . (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.). He wrote:  An outright rejection of an acc...

Prior consistent statements are declarations made by witnesses before they take the stand that are consistent with the testimony they give while on the stand. David M. Paciocco, " The Perils and Potential of Prior Consistent Statements: Let's Get It Right " (2013) 17 Can. Crim. L.R. 181, at p. 181. Prior consistent statements are generally inadmissible. Traditionally, they have been treated as inadmissible because they are out-of-court statements made in the absence of trial safeguards such as cross-examination and the taking of an oath or affirmation to tell the truth. The hearsay rule precludes the admission of prior consistent statements for the truth of their contents. Additionally, prior consistent statements lack probative value. See R. v. Stirling , 2008 SCC 10 (CanLI) , [2008] 1 S.C.R. 10 , at para. 5 ; R. v. Dinardo , 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788 , at para. 36 .  Put differently, repetition of a statement by the same person does...

Credibility relates to a witness's sincerity, whether she is speaking the truth as she believes it to be.   Reliability relates to the actual accuracy of her testimony.  In determining this, a court will consider a witness’s ability to accurately observe, recall and recount the events in issue.  A credible witness may give unreliable evidence . R. v. Morrissey , 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.) per Doherty J.A. at para 33; R. v. H.C ., 2009 ONCA 56 (CanLII), [2009] O.J. No. 214 (Ont. C.A.) per Watt J.A. at para. 41; Paciocco and Stuesser, The Law of Evidence , 6th ed. (Toronto: Irwin Law, 2011), at pp. 32 - 33. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.   R. v. J.J.R.D ., 2006 CanLII 40088 (ON CA) , [2006] O.J. No. 4749 (Ont. C.A.) per Doherty J.A. at para 47; R. v. J.W., [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26.   Finlayson...