Stuart O'Connell Criminal Law Blog

An accused who testifies can be cross-examined on prior inconsistent statements, assuming those statements are admissible. Cross-examination on a prior inconsistent statement may be used to impeach the credibility of the accused, or in an attempt to have the accused adopt the prior statement as true. R. v. Hill , 2015 ONCA 616, at para. 43; R. v. Paris , 2000 CanLII 17031 (ON CA), [2000] O.J. No. 4687 , at para. 41 . Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details. R. v. Hill , at para. 45. Impeaching the Accused’s Credibility through his Omissions to Police Generally, an accused’s exercise of his right to silence when questioned by the police cannot be used as circumstantial evidence of guilt or to impeach the credibility of the accused’s trial testimony:  The pro...

I n summary conviction appeal proceedings, the Superior Court of Justice is the primary appellate court. Access to the Court of Appeal from these decisions of the Superior Court is restricted to questions of law alone and only if leave to appeal is granted (see s. 839, Criminal Code ). Such appeals are appeals from the decision of the summary conviction appeal judge and are not a second appeal from the trial decision.   The test for obtaining leave to appeal under s. 839 of the Criminal Code is exacting.  As the Court of Appeal for Ontario held in R. v. R.R. (2008), 90 O.R. (3d) 641 (C.A.), at para. 32: Leave to appeal may be granted where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case.  Leave to appeal may also be granted where there appears to be a clear error even if it cannot be said that the error has sign...

Presiding over a jury trial probably is the most demanding task asked of a judge. Jury trials are imbued with a dynamic volatility that spins off numerous trial management challenges. Jury questions are one such challenge. Presented with a jury question, a trial judge, with the assistance of counsel, must decipher the question, craft a full and proper response, assess the impact of the response on overall trial fairness, and do all of this under the pressure of a relentless time clock. Introducing an Alternative Theory of Criminal Liability within the Answer to a Jury Question Where an alternative theory of criminal liability, which had not been a live issue at trial, is introduced by the trial judge in his answer to a question from the jury, the trial judge is obliged, at a minimum, to canvass and implement reasonable steps to mitigate any trial prejudice caused to the accused by the injection of a new basis of liability so late in the proceedings.   The failure to do s...

In my last blog entry, I looked at why the accused should be permitted to sit at counsel table during his/her trial.   In this blog, I look at the other side of the issue and provide some justifications as to why the accused ought to remain in his/her customary and designated location, the dock (also known as the prisoner’s box, defendant’s box, et. al). Note: counsel table or the dock are not the only locations for an accused during trial.   On occasion, courts have ordered that the defendant remain seated outside the defendant’s box but behind defence counsel Dispelling Stigma through a Direction to the Jury  One of the strongest arguments for taking the accused out of the prisoner dock is that sitting in the box connotes to the jury an aura or stigma contrary to the presumption of innocence.   Though, some courts have taken the position that the accused is no more stigmatised in the dock than is the jury in the jury box or the witness in the witness...

At the beginning of a trial, defence counsel may bring an application to have the accused sit at the table with his counsel.     The customary position is that the accused in the courtroom remain in the dock/prisoner box. R. v. Gervais , 2001 CanLII 28428 (ON SC). The prisoner’s dock is traditionally an uncomfortable narrow wooden bench with no place to write or place pen and paper. Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security. R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327 (S.C.C) . Each case must be examined on its own merits. R v Power , 1992 CanLII 7110 (NL CA), at para. 20. As the Supreme Court of Newfoundland and Labrador (Court of Appeal) has opined:   the prisoner’s dock is a form of restraint.   One might contemplate that the use of the prisoner's dock may eventually disappear comp...

The test for malicious prosecution is set out in Miazga v. Kvello Estate , 2009 SCC 51, [2009] 3 S.C.R. 339. The plaintiff must prove that: (1) the prosecution was initiated by the defendant; (2) it was terminated in the plaintiff's favour; ·          This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. ·          where the termination does not result from an adjudication on the merits, a live issue may arise whether the termination of the proceedings was “in favour” of the plaintiff: See Ferri v. Ontario (2007) 2007 ONCA 79 (CanLII), ONCA 79 , [2007] OJ No. 397 per LaForme J.A., at paras. 50-58   (3) there was an absence of reasonable and probable cause to commence the prosecution; ·          s. 108(10) of the Courts of Justice A...

When accused persons are brought into the courtroom, handcuffs should be removed as soon as they are placed into the dock unless the court officers are aware of a security concern respecting that particular accused.  If that is the case, the officers should notify Crown counsel, preferably in advance, so that he or she may make the appropriate application before the presiding judge. R. v. Fortuin , 2015 ONCJ 116. The presiding judge has the discretion to decide whether an accused must appear in court in any form of restraint.   A hearing is required to enable the presiding judge to properly exercise his or her discretion on the issue. R. v. Jones , 1996 CanLII 8006 (ON SC) , 107 C.C.C. (3d) 517. There is a longstanding presumption that accused persons appearing in court should not be restrained unless the need for restraints has been justified by the Crown. R. v. McNeill (1996), 1996 CanLII 812 (ON CA) , 29 O.R. (3d) 641 (C.A); See also R. v. Wills, [2006] O.J. ...

Section 276 of the Code, the so called “ rape shield” provision, prohibits using any evidence of the complainant’s sexual activity other than the activity which is the subject of the charge for “twin myth” reasoning.  Evidence that “the complainant has previously engaged in sexual activity, whether with the accused or any other person, is never admissible to support an inference that, by reason of the sexual nature of that activity”, the complainant is “more likely to have consented to the sexual activity that forms the subject matter of the charge” or that the “complainant is less worthy of belief”. If the evidence is to be used for a different purpose then it may only be introduced with leave of the court following the procedure set out in the section if it meets the statutory test. In particular the evidence of other sexual activity must be: ·          evidence of specific instances of sexual activity (s. 276(2)(a)); ·  ...

In order to be admissible under section 276(2) of the Criminal Code , the evidence must meet three preconditions, the first of which is that the evidence refer to “specific instances of sexual activity”.  This requirement is designed to ensure that the nature of the proposed evidence is properly identified so that the criteria for admissibility in s. 276(2) can be accurately applied.  The provision also serves to ensure that the Crown has full notice of the evidence to be adduced and that the complainant’s legitimate interests can be properly safeguarded. R. v. B. (B.) , [2009] O.J. No. 862 (Ont. Sup. Ct.), at para. 16. In an inquiry under section 276 , the court is not called upon to make findings of credibility or to determine the accuracy or reliability of the evidence put forward by the accused.  See R. v. N.K ., 2017 ONSC 3482, at para. 16 (obiter). Degree of Specificity will depend on the Nature of the Sexual Activity The phrase “specific insta...

Section 276(2) of the Criminal Code provides that evidence that a complainant engaged in sexual activity with the accused or anyone else, other than the sexual activity alleged in the charge (other sexual activity), is inadmissible at the instance of the accused, regardless of the purpose for which it is tendered, unless the accused meets the three criteria set down in s. 276(2).  The evidence of other sexual activity must be: ·        evidence of specific instances of sexual activity (s. 276(2)(a)); ·        relevant to an issue at trial (s. 276(2)(b)); and ·        have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (s. 276(2)(c)). Relevant to an Issue at Trial Evidence that the relationship between the complainant and the accused, including the sexual component of the relationship, carrie...

On occasion, appellate courts have reduced a sentence which was fit when imposed because of the significant progress the offender made while awaiting the hearing of the appeal.  The offender is required to establish that he/she has taken something akin to “very unusual significant strides” or “ extraordinary rehabilitative efforts” since the original sentence was imposed, and -- typically -- that the sentencing objectives have been met by the offender’s extraordinary efforts. See O’Connell Blog, Reducing a Sentence because of the Progress the Offender has Made Awaiting Appeal (July 7, 2017). The exercise of this appellate discretion is exceptional.   A s the Court of Appeal for Ontario noted in R. v. L.S ., 2017 ONCA 685, at para. 117, in most cases, positive steps taken by the appellant between sentencing and the hearing of an appeal are best dealt with by the correctional authorities.  The appeal court cannot act as a de facto parole board, but must t...

Where an accused agrees to plead guilty and takes a joint position on sentence with the Crown, and where, because of the immigration status of the accused, the resulting conviction or sentence renders the accused inadmissible to Canada and subject to removal, the failure of defence counsel to have informed his client as to the serious collateral immigration consequences that will follow from his guilty plea, makes the plea uninformed. An uninformed plea is not a valid plea and, therefore, cannot form the basis of a conviction. R. v. Sangs , 2017 ONCA 683. FN: 36(1)(a) of the Immigration Refugee Protection Act , S.C. 2001, c. 27, (“ IRPA ” ) deems inadmissible to Canada permanent residents sentenced to a term of imprisonment of six months or more, or convicted of an indictable offence punishable by a maximum term of imprisonment of at least 10 years. Under ss. 64(1) and (2) of IRPA , a permanent resident has no right of appeal from a removal order if found inadmissible on...

An accused charged with an indictable offence is entitled to elect her mode of trial under s. 536(2) of the Criminal Code if the offence is not a.        an offence listed or described in s. 469 – offences falling within the exclusive trial jurisdiction of the Superior Court of Justice, or b.         an offence listed or described in s. 553 of the Criminal Code – offences falling within the absolute jurisdiction of a judge of the Ontario Court of Justice sitting as a provincial court judge. It is well settled that the failure to comply with the election requirements in s. 536(2) (eg. putting the accused to her election as to the mode of trial) goes to the jurisdiction of the trial court.   The jurisdiction of a judge of the Ontario Court of Justice to try the accused or to receive and act upon her plea of guilty, depends entirely upon her choice of that court as her mode of trial. Absent an election under...