Stuart O'Connell Criminal Law Blog

Summary A criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal. This authority allows the court to require defence counsel who wishes to withdraw because of non-payment of legal fees to continue to represent the accused.   However, refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice . The Supreme Court of Canada in R. v. Cunningham, 2010 SCC 10 sets out a number of factors that courts should consider in determining whether permitting counsel of record to withdraw would cause serious harm to the administration of justice.  These factors—the Supreme Court of Canada tells us—are independent of the solicitor-client relationship and there is no risk of violating solicitor-client privilege when engaging in the analysis.  If a court determines...

In R. v. Foster , 2018 ONCA 53, Justice Watt for the Court of Appeal for Ontario provides a useful basic overview of the essential elements of a criminal offence, which I have reprinted below.  Every Criminal Offence has an Actus Reus and a Mens Rea Requirement “Expressed in the Latin maxim actus non facit reum nisi mens sit rea , it is a fundamental principle of our criminal law that a person may not be convicted of a crime unless the Crown proves beyond a reasonable doubt that the person: i.                  engaged in conduct in circumstances forbidden by the criminal law (the actus reus or external element); and ii.                had a defined state of mind in relation to the prohibited conduct (the mens rea or mental or fault element). The external element or actus reus includes all the elements of the offen...

In R. v. Inksetter , the Court of Appeal for Ontario has signalled that while probation may be a component of a sentence for a child pornography offence, probation (even a relatively onerous probation) is very unlikely to reduce what is generally required by imprisonment to satisfy the primary sentencing objectives of deterrence and denunciation. See R. v. Inksetter , 2018 ONCA 474, at para. 20. Denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography: R. v. D.G.F. , 2010 ONCA 27 (CanLII), 98 O.R. (3d) 241 , at paras. 21-22 , 30; R. v. Nisbet , 2011 ONCA 26 (CanLII), [2011] O.J. No. 101 , at para. 3 ; R. v. E.O. , 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 , at para. 7 ; R. v. Stroempl , 1995 CanLII 2283 (ON CA), [1995] O.J. No. 2772 , at para. 9 . Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence. R. v. ...

An application is a request to a court to make an order.   They are of two types: pre-trial applications and trial applications .  Commencing an application Applications are commenced by serving the opposing parties and any other affected party with a completed Form 1 (along with supporting materials), and then filing the application with proof of service at the court office.    Form 1 is found online at www.ontariocourts.ca/ocj/criminal-rules/ ). In addition to Form 1, an application will typically include an affidavit/s setting out the facts upon which the application is based.   [FN1] Affidavit evidence is by far the most common form of evidence used for applications.   Other types of evidence include an agreed statement of facts, transcripts, and oral testimony.   Oral testimony is usually not required in most pre-trial applications.   How many copies of the Application do I need? Make at least four copies of your application:...

Punitive damages are awarded to a successful civil plaintiff when the defendant’s misconduct is so outrageous that such damages are rationally required to act as a deterrent. Hill v. Church of Scientology of Toronto et al. , [1995] 2 S.C.R. 1130, at para. 197. Non-pecuniary damages may be enough to accomplish the goals of deterrence, denunciation, and punishmen t. Notwithstanding, the fact that a civil defendant has not been punished criminally for his morally reprehensible behaviour may be relevant to whether (and the extent to which) punitive damages are needed to denounce that behaviour.   Zando v. Ali, 2018 ONCA 680, at para. 24. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author)

An accused’s lack of remorse is not ordinarily an aggravating factor on sentencing, as a court cannot punish the accused for failing to plead guilty or for having mounted a defence.  R. v. Valentini [1999] O.J. No. 251 (C.A.), at paras. 82, 83; R. v. J.F ., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff’d on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. When Lack of Remorse is Relevant  Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed.   Absence of remorse may therefore be properly considered when evaluating the risk of recidivism and, for instance, the need to isolate the accused from society.  R. v. Shah , 2017 ONCA 872, at paras. 8, 9; R. v. B. P.  (2004), 190 O.A.C. 354 (C.A.), at para. 2; R. v. Valentini , at para....