Stuart O'Connell Criminal Law Blog

Under section 253(1) of the Criminal Code , every one commits an offence who operates a motor vehicle or has care or control of a motor vehicle a) while the person’s ability to operate the vehicle is impaired by alcohol or drug; or (b) having a blood-alcohol concentration that exceeds 80 mg of alcohol per 100 ml of blood. The risk of danger is an essential element of “care or control” under s. 253(1) of the Code . Accordingly, conduct that presents no such risk falls outside the intended reach of the offence. R. v. Boudreault , 2012 SCC 56 (CanLII), at para. 10 & 32. Proving Care and Control The Crown may prove “care or control” three ways: 1. prove that the accused was driving and thus necessarily in care or control; 2.   that the accused occupied the driver’s seat of the vehicle triggering the s. 258(1)(a) presumption of care or control subject to rebuttal by the defence; 3.   that the accused had care or control of the vehicle in circumstances...

Section 276 of the Criminal Code precludes the admission of evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge. If the subject-matter of the proposed evidence falls outside the statutory language, the exclusionary terms of the provision do not apply.  R. v. M.T., 2012 ONCA 511 (CanLII), at para. 31. Questions that focus on the fact that the complainant has made a previous allegation of sexual assault, rather than the details of the episode, do not trigger the admissibility rules of section 276. R. v. M.T., 2012 ONCA 511 (CanLII), at para. 34:  “ The admissibility rules of s. 276 apply only where the evidence proposed for admission is of extrinsic sexual activity on the part of the complainant. A previous allegation of sexual assault, without more, will fall outside the section.” R. v. M. (A.G.) (1993), 1993 CanLII 4309 (QC CA). R. v. Gervais , 1990 CanLII 3701 (QC CA),...

Section 515(3) of the Code requires a justice to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case. This is why bail hearings are sometimes referred to as “show cause” hearings. Criminal Code. Section 515(3)  The justice shall not make an order under any of paragraphs (2)(b) to (e) [types of release on recognizance] unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made . There are many instances where notwithstanding the Crown’s agreement with defence counsel, or even when the Crown consents to release, where the Court must intervene as part of its supervisory or review jurisdiction to make decisions contrary to such agreements or joint submissions. R. v. D.C.G.S., 2003 ABQB 420 (CanLII). Consent release is an efficient method of achieving the release of an accused.   Although a justice or a judge should not routinely second-guess joint proposals b...

Post-Offence Conduct as Circumstantial Evidence of Guilt Evidence of what an accused has said or done after an offence has been committed is often a vital part of the case for the Crown. This is circumstantial evidence that looks backward from what happened later to something that occurred before. The subsequent conduct may take several forms: for instance, flight, destruction of evidence, change of appearance. R. v. B.(P.), 2015 ONCA 738 (CanLII), at para. 166.  And sometimes that post-offence conduct can involve giving false evidence in court for the purpose of evading criminal responsibility. Disbelief The fact that a witness is disbelieved does not prove the opposite of what he asserted. The fact that a witness’s evidence is disbelieved on a particular point may have an impact on his overall credibility, but in order to prove the opposite of what he said some positive evidence is needed. R. v O’Connor , 2002 CanLII 3540 (ONCA) at paras. 17-20; R. v. Wright...

The credibility of every witness who testifies before the courts, and reliability of their evidence must of course be carefully assessed but assessed using common sense that takes into account the age of the witness when the alleged events occurred and the age of the witness when testifying. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.               R. v. W. (R.), [1992] 2 S.C.R. 122. Credibility Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. R. v. W. (R.), [1992] 2 S.C.R. 122. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be c...

A n estimated three billion human beings own cell phones, sending more than a trillion text messages every year. Not all of these messages are benign. Sometimes, when an accused is arrested, his/her cellphone is searched, either incident to arrest or under the authority of a search warrant (or both).   And, as you might expect, the messages and pictures on that cellphone sometimes end up as Crown evidence in a criminal trial. Here’s how. Are Text Messages Hearsay? As with all admissibility questions, the first issue to be addressed is the purpose for which the evidence is sought to be tendered. Text messages are documents containing out-of-court statements. However — No evidence is hearsay on its face.  Admissibility depends on the purpose for which the evidence is sought to be admitted.  Evidence is hearsay — and presumptively inadmissible — if it is tendered to make proof of the truth of its contents. R. v. Baldree , 2013 SCC 35 (CanLII), at para...

“Real niggaz don’t crack to the coppers, muthafucka”. Rap lyrics are often a vehicle for social and political commentary.   Sometimes they are profane, violent, and disturbingly mean-spirited.   And sometimes they are evidence. As Crown evidence, the artistic self-expression of an accused often has little probative value.   W hen that self-expression is inflammatory and transgressive (as some rap lyrics are) its use at trial can be highly prejudicial. But that is not always the case. For instance, in the recent R. v. Skeete , 2017 ONCA 926 , an inflammatory rap lyric (above) was held to be admissible as evidence, its probative value outweighing the prejudicial effect of its admission. Admissions Against Interest Admissions, in the broad sense, refer to any statement (or conduct) made by a litigant and tendered as evidence at trial by the opposing party. R. v. Foreman , 2002 CanLII 6305 (ON CA). The admission need not be against the declarant’s interest (n...

T he judge believed X. The judge didn’t believe Y. But the judge could have believed Y. Therefore, the judge applied a different standard of scrutiny. Not so, according to the authorities. R. v. O.N., 2017 ONCA 923, at para. 5. The uneven scrutiny of evidence argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. R. v. J.H . (1995), 2005 CanLII 253 (ONCA), at para. 59. A trial judge is entitled to reject an accused’s evidence on the basis of the considered and reasoned acceptance of conflicting evidence beyond a reasonable doubt. To achieve success on an argument about uneven scrutiny, the appellant must point to something in the trial judge’s reasons or elsewhere in the trial record that makes it clear that the trial judge act...