Stuart O'Connell Criminal Law Blog

Among other things, the right to retain and instruct counsel under section 10   ( b ) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. R. v. Prosper , [1994] 3 S.C.R. 236, at p. 269. This helps ensure that detainees understand their legal rights and obligations, and most importantly, that they understand their right to remain silent, so they can make an informed decision about whether to waive their right to silence after receiving legal advice relevant to their situation. The standard police caution, customarily read to the accused upon arrest, informs the suspect in plain language of his/her right to remain silent.  For instance, it may be as brief as: “You are not obliged to say anything but whatever you do say may be given in evidence. Do you understand?” For more see What Must the Police Tell Me Upon Arrest , O’Connell Law...

To be effective a guilty plea must be voluntary, unequivocal and informed. And to be informed, the person pleading guilty must be aware of the nature of the allegations said to constitute the offence, the effect of the plea;,and the consequences of the plea. R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. Lyons , [1987] 2 S.C.R. 309, at p. 371. A guilty plea is a formal in-court admission of guilt. It constitutes a waiver not only of the accused’s right to require the Crown to prove guilt beyond a reasonable doubt by properly admissible evidence, but also of the related procedural safeguards in the criminal trial process, some of which are constitutionally enshrined and protected.   T.(R.) , at p. 519; Korponay v. Canada (Attorney General) , [1982] 1 S.C.R. 41, at p. 49. On an appeal from conviction, an accused may challenge the validity of a guilty plea, but bears the onus of showing, on a balance of probabilities, that the plea was invalid becau...

Litigation privilege applies to non-confidential communications between a lawyer and third parties, it exists only in the context of litigation, and it ends when the litigation (and all closely-related litigation) has ended. It is based on the need of the adversarial process to provide a zone of privacy to facilitate investigation and preparation of cases for trial. Solicitor-client privilege protects a relationship, while litigation privilege protects a process.  Blank v. Canada (Minister of Justice) , 2006 SCC 39 at para. 28. Although all statements of Crown witnesses must be disclosed to the defence before trial, there is no reciprocal obligation on the defence. R. v. Stinchcombe , [1991] 3 S.C.R. 326 There is no traditional litigation privilege over Crown witness statements made during interviews with Crown counsel in preparation for trial. This is because the Crown cannot claim privilege over that which it is obliged to disclose. R. v. Malik , 2003 BCS...

An included offence is a distinct offence that arises from the same facts and is necessarily committed where the charged offence has been committed. R. v. Ovcaric (1973), 11 C.C.C. (2d) 565 (Ont. C.A.) ; R. v. G.R. , 2005 SCC 45 (CanLII) , [2005] 2 S.C.R. 371 , at para. 25 . It is not unfair to try the accused on an included offence since the charge laid alerts the accused person that they are alleged to have satisfied all of the elements of the included offence, as well as the charged offence. [FN] R. v. Pawluk , 2017 ONCA 863, at para. 28.   For instance, a person charged with impaired driving is sufficiently informed that they also face the included offence of impaired care or control . See R. v. Plank (1986), 28 C.C.C. (3d) 386 (Ont. C.A.) . Similarly, a person charged with driving over 80 (that is, operation of a motor vehicle with a blood-alcohol concentration in excess of 80 mg per 100 ml of blood) is sufficiently informed that they also face the includ...

Investigative Detentions and the Constitution Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. A detention will not be arbitrary if it is lawful.  One type of lawful detention is a common law investigative detention. This power allows the police to detain people for investigation “if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary.” However, the investigative detention must be “brief in duration” and conducted in a reasonable manner. R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45. All Investigative Detentions Must Be Brief The permitted duration of an investigative detention is determined by considering whether the interference with the suspect’s liberty interest by his continuing detention was more intrusive than was reasonably necessary to perform the officer’s duty, having particular regard to the seriou...

An accused is constitutionally entitled to effective representation.  Effective representation means reasonably competent representation.  Counsel’s performance is measured without the benefit of hindsight and bearing in mind that the reasonable exercise of professional judgment will in many instances allow for different tactical decisions. R. v. G.D.B. , 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520 , at paras. 27-28 . Was there a miscarriage of justice? If an accused who receives ineffective representation at trial is convicted, the conviction must be quashed if the result is properly characterized as a miscarriage of justice .  A miscarriage of justice occurs if the ineffective representation either: a.       Sufficiently undermines the reliability of the verdict ·        the reliability of a verdict is sufficiently undermined if the appeal court concludes that there is a reasonable probability that...

  Section 8 of the Canadian Charter of Rights and Freedoms protects an individual’s reasonable expectation of privacy from unreasonable state intrusion. R. v. Tessling , 2004 SCC 67 (CanLII) at para. 18; R. v. Orlandis-Habsburgo , 2017 ONCA 649 (CanLII), 352 C.C.C. (3d) 525 , at para. 37 .   State conduct that infringes on an individual’s reasonable expectation of privacy will be treated as a search for the purposes of section 8. R. v. Buhay , 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631 , at para. 18 ; R. v. Spencer , 2014 SCC 43 (CanLII), [2014] 2 S.C.R. 212 , at paras. 16-17 .   In considering a reasonable expectation of privacy claim, the court begins by identifying the subject matter of the claim. It then asks first, did the claimant have a subjective expectation of privacy in the subject matter, and second, if so, was that expectation objectively reasonable, having regard to the totality of the circumstances?  R. v. Spencer , 2014 SCC ...

The defence of alibi (Latin for “elsewhere”) arises where there is an air of reality that, at the time of the commission of the offence, the accused was not present at the scene of the crime. The requirements of an alibi are strict; evidence that an accused had only a limited opportunity to commit a crime is not an alibi. R. v. Tomlinson , 2014 ONCA 158, at para. 55. Proper Notice of an Alibi Failure to give proper notice of an alibi permits the trier of fact to draw an adverse inference when weighing the alibi.  Proper disclosure of an alibi has two components: 1.        adequacy, and 2.       timeliness. That is, disclosure of an alibi should be given with sufficient particularity and early enough to permit the authorities to investigate the alibi meaningfully. Notice need not come from the accused or his counsel. Notice from a witness will suffice. Nor must notice be delivered to th...