Stuart O'Connell Criminal Law Blog

In use-of-force scenarios, circumstances may change quickly.  The Court of Appeal for Ontario has signaled in R. v. Forcillo that a significant change in the circumstances in which force is used—even within the same transaction—may make the further use of a level of defensive force which had been justified (even at the level of lethal force) no longer so.   As one’s apprehension of the threat he/she is facing changes, for instance, so too may his/her ability to use force as a lawful response.  In R. v. Forcillo , 2018 ONCA 402, a Toronto police officer, Forcillo, fired two volleys of shots at a young man, Yatim, who was brandishing a knife on a Toronto streetcar, threatening passengers, and acting erratically.  Officer Forcillo fired the two volleys 5.5 seconds apart.  It was open for the jury to find that the Crown had proved beyond a reasonable doubt that the second volley was not a justified use of lethal force on the basis that at the time Forcillo ...

It is common practice in the criminal courts to require written submissions, not only at the end of the evidence in judge alone cases, but also in respect of various evidentiary motions, or pre-charge discussions held before or during trial.  In those cases, written argument is used, not in lieu of oral argument, but in addition to and usually as a precursor to oral argument. If a trial judge requires arguments to be made by written submissions, the trial judge must allow counsel, after written argument has been exchanged, to make oral arguments in the presence of the accused to supplement, correct, or otherwise amplify the written argument.  Procedural fairness and the accused’s right to be present throughout his/her trial require this. [FN] R. v. McDonald , 2018 ONCA 369, at paras. 46, 47.  Counsel, however, may agree to waive oral argument either entirely or as a supplement to written argument. Ibid ., at para 46.  [FN]: Section 650 of the Crimin...

The right to effective assistance of counsel extends to all accused persons.  In Canada that right is seen as a principle of fundamental justice.  It is derived from the evolution of the common law, s. 650(3) of the Criminal Code   and ss. 7 and 11( d ) of the Canadian Charter of Rights and Freedoms . When a claim of ineffective assistance is raised, the onus is on the appellant to establish (1) the facts that underpin the claim;   (2) the incompetence of the assistance provided [FN1]; and (3) the incompetent assistance resulted in a miscarriage of justice. R. v. L.C.T. , 2012 ONCA 116, at para. 37. To succeed at this third step, the appellant must establish either that there is a)    a reasonable probability that the verdict would have been different had he received effective legal representation [FN2], or b)      that his counsel’s conduct deprived him of a fair trial. See R. v. G.D.B. , [2000] 1 S.C.R. 52...

Bill C-75, the federal government’s 300+ page omnibus bill makes some significant alterations to the landscape of criminal procedure, including restricting preliminary inquiries to offences punishable by imprisonment for life and investing a justice with increased powers to limit the issues explored and the witnesses to be heard at the inquiry. A preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to require a person charged with a crime to stand trial. Subject to one exception, preliminary inquiries are available to an accused’s who is to be tried in the Superior Court and who has requested one.  The Superior Court generally only tries the most serious criminal offences.  To the lay person, a preliminary inquiry can look like a trial.  Even a lawyer walking into a preliminary inquiry may not be able to tell, at least initially, that he/she has stumbled into a preliminary inquiry and not a trial. Pre...

Section 40(1) of the Supreme Court Act provides that an application for leave to appeal to the Supreme Court of Canada is to be decided on the basis of the importance of the case.  This is consistent with a core function of the Supreme Court of Canada: to settle questions of law of national importance in the interests of promoting uniformity in the application of the law across the country, especially with respect to matters of federal competence . To obtain leave to appeal to the Supreme Court of Canada from a sentence imposed, varied or affirmed by a provincial or territorial court of appeal, an applicant must demonstrate, to the satisfaction of the court, that the question raised, by reason of its public importance or the importance of any issue of law or of mixed law and fact involved in that question, is one that ought to be decided by that court or that it is, for any other reason, of such a nature or significance as to warrant a decision by that court. While the ...

A trial judge’s ruling in relation to where an accused sits during his trial is discretionary and entitled to deference.  R. v. A.C., 2018 ONCA 333 (CanLII) at para. 37. In every case, the accused’s placement must permit him to make full answer and defence, but the issue is to be assessed on a case-by-case basis, having regard to the interests of a fair trial and courtroom security in the particular circumstances of the case. R. v. Lalande (1999), 1999 CanLII 2388 (ON CA), 138 C.C.C. (3d) 441 (Ont. C.A.) ; R. v. A.C ., 2018 ONCA 333 (CanLII) at para. 37. The seriousness of the offence for which the accused is charged is, in and of itself, not a factor to be considered in determining the placement of the accused in the court, as the seriousness of the offence says nothing about security concerns or the interests of a fair trial.  R. v. A.C ., 2018 ONCA 333 (CanLII) at para. 38. For more see Stuart O’Connell Law Bog, Should the Accused be Permitted to ...

There is concurrent jurisdiction in the Superior Court of Justice and the Court of Appeal to conduct a bail review under section 520 of the Criminal Code . R. v. Durrani , 2008 ONCA 856 (CanLII) , at para. 16; This results from the definitions of “superior court of criminal jurisdiction” and “judge” in sections 2 and 493 of the Criminal Code including both judges of the Superior Court of Justice of Ontario and the Ontario Court of Appeal. A judge of the Superior Court of Justice may review the bail order (including a detention order) made by another judge of that same court. R. v. Rootenberg , 2018 ONCA 335 . Section 520 clearly envisions more than one opportunity to bring a bail review application and contemplates that different judges of the superior court will sometimes hear these applications. R. v. Durrani , 2008 ONCA 856 (CanLII) , at para. 29. Absent special circumstances , courts of appeal should deal with bail pending appeal and s...