Stuart O'Connell Criminal Law Blog

Who Can Lay an Information? As set out in section 504 of the Criminal Code , “any one” who on reasonable grounds, believes that a person has committed an indictable offence within the territorial jurisdiction of the justice, etc. may lay an information in writing and under oath before a justice, and the justice shall receive the information. Section 504, Criminal Code . By use of the expansive term “any one”, section 504 permits a criminal proceeding to be initiated by a private citizen, among others, by laying an information.   “Territorial Jurisdiction” Justices of the peace have jurisdiction throughout Ontario. Section 17(1) of the Justices of the Peace Act . Section 504 of the Criminal Code makes it mandatory for a justice of the peace to receive an information, provided there is a connection between the person who is alleged to have committed an indictable offence and the "territorial jurisdiction" of the justice. In Ontario, the term “territorial j...

The Criminal Code permits private prosecutions.  In the usual course, criminal proceedings are commenced or instituted by laying an information before a justice alleging the commission of an offence [FN].   A private informant may lay an information provided he/she does so in conformity with section 504 of the Criminal Code . As long as the information alleges an offence known to law and is facially compliant with the requirements of the Criminal Code , the justice must receive the information.  The justice takes the information under oath and affixes his or her signature to the jurat on the written Form 2. R. v. McHale , 2010 ONCA 361 , at para. 42; see section 504, Criminal Code . But the laying of the information does not compel the person named as the accused to attend court to answer to the charge. Where an information laid by a private informant has been received by a justice, the justice must refer it to a provincial court judge...

T he right and duty of the Attorney‑General -- as chief law officer of the Crown -- to supervise criminal proceedings (both indictable and summary) is a fundamental part of our criminal justice system. Unlike the authority to withdraw charges, the authority of the Attorney General or an instructed agent to direct entry of a stay of proceedings is statutory.   It is found at section 579 of the Criminal Code . There is no statutory power in a court to stay proceedings.   A court’s ability to stay an information or charge is found within the common law (a subject which I will leave to another day).   The Ability to Stay “Proceedings” While the Attorney General along with its counsel has the authority to direct that proceedings be stayed, the Criminal Code provides no definition of the term “proceedings”.   It is well-settled, however, that criminal proceedings are instituted or commenced by the laying or receipt of an information. R. v. McHale ,...

Despite the absence of express or necessarily implied authority in the Criminal Code , it is well-established at common law that the Attorney General has the authority to withdraw an information or charge prior to plea.  R. v. Dick , 1968 CanLII 231 (ON SC), [1968] 2 O.R. 351 (H.C.J.), at p. 359; R. v. Osborne (1975), 11 N.B.R. (2d) 48 (S.C.(A.D.)), at paras. 17 and 30; R. v. Blasko , [1975] O.J. No. 1239 (H.C.J.), at paras. 5 and 6; Re Forrester and The Queen (1976), 33 C.C.C. (2d) 221 (Alta. S.C.(T.D.)), at pp. 223-5. Leave of the presiding judge is required to withdraw an information or charge after plea[FN]. The authority of the Attorney General to withdraw an information or charge in advance of plea, however, is extensive.  No authority limits the right of an agent of the Attorney General to withdraw an information to only those informations laid by law enforcement officials.  The Attorney General may, therefore, withdraw an information which has been laid by...

Criminal appeals to the Court of Appeal for Ontario involve a lot of paper: ·          transcripts of lower court proceedings (most spanning multiple days or weeks of trial), ·          an appeal book, ·          a factum, ·          a book of authorities (sometimes multiple volumes) Five copies of each.   The appellant must serve a copy of each on the Crown, three copies are to be filed with court, and counsel for the appellant will want to retain a copy. In today’s world, it makes sense that some of the printed material would be replaced by the filing of electronic documents. And file electronic documents appellate counsel must.   In addition to filing all the requisite paper copies with court, in criminal appeals the appellant is required to order, serve and file with proof of service a searchable el...

The mens rea required for some offences may be proven by recourse to the doctrine of willful blindness; specifically, wilful blindness acts as a substitute for actual knowledge when knowledge is a component of mens rea. Wilful blindness does not define the mens rea required for particular offences. … The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21.  Wilful blindness involves a state of what has been described as “deliberate ignorance” that involves “an actual process of suppressing suspicion”. It does not involve a failure to inquire, but an active decision not to inquire so as to avoid being fixed with knowledge. Briscoe, at para. 24, citing Don Stuart, Canadian Criminal Law: A Treatise , 5th ed. (2007), at p. 241. Courts sometimes refer to...

  Canada’s Immigration and Refugee Protection Act ("IRPA") recognizes that there are important social, cultural and economic benefits to immigration. It also recognizes that successful integration of permanent residents involves mutual obligations for those new immigrants and for Canadian society. One obligation incumbent on permanent residents is the obligation to avoid “serious criminality”. Section 36(1)(a) of the IRPA. This obligation is breached when a permanent resident (or a foreign national) is convicted of a federal offence punishable by “ a maximum term of imprisonment of at least 10 years ” , or of a federal offence for which “ a term of imprisonment of more than 6 months ” has been imposed. Can a conditional sentence be “a term of imprisonment for more than 6 months”? A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders.   Interpreting “a term of imprisonment of more than six months” as...

When mental health problems play a central role in the commission of the offence deterrence and punishment assume less importance.  R. v. Batisse , 2009 ONCA 114, 93 O.R. (3d) 643 , t para. 38, per Gillese J.A; see also R. v. Dedeckere , 2017 ONCA 799 .  The impact of mental illness on the offender’s judgment may be a factor reducing the moral blameworthiness of the offender. See R. v. Dedeckere , at para. 15.  A sentence must be fit having regard to the particular crime and the particular offender. Where the offender’s criminal conduct is driven by mental illness, it is an error for the sentencing judge not to consider an offender’s serious and longstanding mental health issues as part of that offender’s circumstances. R. v. Dedeckere , 2017 ONCA 799, at para. 16. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

Opportunity is the sine qua non of crime. Evidence which shows or tends to show that an accused was present at or near a place at or near the time an offence was committed is relevant, material and prima facie admissible. R. v. Doodnaught , 2017 ONCA 781, at para. 67. Where conduct occurs and the Crown alleges that a particular person did it personally, not through an agent or some other instrumentality, the person’s physical presence, within the proper range of time and place, is an item of circumstantial evidence that enhances the likelihood that the person with that opportunity – the accused – committed the offence. R. v. Doodnaught , at para. 66. However, evidence of bare opportunity to commit an offence is not, without more, sufficient to establish the guilt of an accused beyond a reasonable doubt. R. v. Yebes , 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. Evidence of opportunity, insufficient on its own to establish guilt beyond reasonable doubt, may have a d...

To come within the offence  of voyeurism (section 162 of the Criminal Code ), the impugned observation or recording must be done surreptitiously. Also, the person who is observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy.  In R. v. Jarvis , 2017 ONCA 778 the Court of Appeal for Ontario, applying principles of statutory interpretation [FN], held that for the purposes of the voyeurism offence the reasonable expectation of privacy of the person being secretly stared at or videoed does not include a reasonable expectation that she/he not be surreptitiously recorded or observed. If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant (at para. 108). Given Huscroft J.A’s cogent dissent, I imagine that this proposition may find itself tested at the Supreme Court of Canad...

No.  The offence of voyeurism (section 162 of the Criminal Code ) was enacted in 2005 to address public concerns with the rapid advent of technology that could be used to spy on people surreptitiously for sexual purposes. “For a sexual purpose” Subsection (b) of the offence specifically makes it an offence to surreptitiously observe or surreptitiously visually record a person who is nude. Subsection (c) requires only that the surreptitious observation or surreptitious recording be “done for a sexual purpose”. Because observing or visually recording for a sexual purpose is a separate offence, it is clear that the voyeurism offence can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose. R. v. Jarvis , 2017 ONCA 778, at para. 44; for more on what constitutes “for a sexual purpose” see R. v. Sharpe , 2001 SCC 2, [20...

Hearsay evidence is inadmissible for the truth of its contents unless it satisfies the principled approach to the admission of hearsay (in which both the necessity and threshold reliability of the hearsay evidence must be established) or it falls in one of the traditional hearsay exceptions, such as the res gestae exception (pronounced “res jest-eye”). The phrase “ res gestae” means literally “the thing done” and it is used in law as meaning the circumstances which are the automatic and undesigned incidents of the particular act in issue, and which are admissible in evidence when illustrative and explanatory of the act. Keefe v. State (1937), 50 Ariz. 293. The phrase is frequently applied to the statements or explanations of witnesses of the act where the act and those communications are integrated in a way which makes the communications sufficiently reliable as to permit their admission as evidence. Res gestae has been described (somewhat quaintly) as “words brigaded to ...