Stuart O'Connell Criminal Law Blog

Administration of justice offences are typically offences that are committed by a person against the justice system itself after another offence has already been committed or alleged. They may involve acts that are not considered criminal in themselves but are considered as such because the accused was given an order not to engage in the behaviour as a condition of their release.   Common examples are failure to comply with bail conditions, such as to abstain from consuming alcohol; failure to appear in court; or breaching a curfew. These offences impose an enormous burden on the criminal justice system, as nearly 40% of all adult cases involve at least one of these administrative charges. Canada Hansard,  Jody Wilson-Raybould (Minister of Justice and Attorney General of Canada), May 24, 2018; See R v Rowan, 2018 ABPC 208 (CanLII) , at para. 38. Offences involving failures to comply with conditions of judicial interim release (bail) are the most common form of offence...

The general rule is that the death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved.   R. v. Cadeddu  (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114;    R. v. Smith , 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless recognized some discretion to proceed to judgment despite the death of the accused.   The discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.  See Smith , at paras. 4, 20, 50. R. v. Slingerland , 2020 ONCA 417 , at para. 12. In R. v. Singerland , 2020 ...

Exposure to unlawful forms of pornography, such as child pornography, can be traumatizing. R. v. Shaw , 2018 ONCJ 61 (CanLII). On most occasions, it is unnecessary for the judge to view the child pornography that comprises the subject matter of a charge or even for the Crown to select a representative sample of images from the child pornography collection to show at the sentencing hearing. Defence and Crown counsel should do their best to agree to a mutually satisfactory  verbal description  of the contents of child pornography so as to protect courtroom participants (including themselves, the judge, and victims) from unnecessary exposure to potentially trauma-inducing raw material.[FN]   R. v. Marratt , 2019 ONCJ 618 , per Band J; See also R. v. Shaw , 2018 ONCJ 61 , per Band J. This can even be taken a step farther.   In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as...

E very court of law has the authority to control its own process. Superior Courts A superior court’s power to control its process is part of a superior court’s inherent jurisdiction:    R. v. Cunningham , 2010 SCC 10, at para. 18; Canada (Attorney General) v. Pacific International Securities Inc.,   2006 BCCA 3030, at para. 28.     Pursuant to the power to control its own process, a superior court can, among many other things: ·          order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct: R. v. Chapman   (2006), 2006 CanLII 1178 (ON CA); ·          remove counsel from a case when required to ensure a fair trial . MacDonald Estate v. Martin , 1990 CanLII 32 (SCC).   Statutory Courts A statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its...

The Criminal Code sets out four different ways in which robbery may be committed.  See Section 343, Criminal Code. The offence of robbery does not necessarily involve the use of a firearm. Section 344 sets out the penalty provision for the offence, including where a firearm is used in the commission of the offence. Section 85(1) of the Criminal Code sets out the offence of using a firearm in the commission of an indictable offence .   On its wording, the section 85(1) offence cannot be committed if the indictable offence committed happens to be the offence of robbery. Section 85(1) of the  Criminal Code  reads: Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm, (a)         while committing an indictable offence, other than an offence under section … 344 (robbery) . In R. v. Cudmore , 2020 ONCA 389, the ONCA q...

Section 52(1) of the Constitution Act, 1982 provides that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” When the Supreme Court of Canada declares a law invalid under s. 52(1), the law is invalid for all future cases; cannot be enforced; is “null and void, and is effectively removed from the statute books. Nova Scotia (Workers' Compensation Board) at para. 31;  Canada (Attorney-General) v. Hislop , 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 82. However, that is not the case when a superior court makes a declaration of invalidity: the declaration does not determine the validity or enforcement of the statute “for all future cases”.   R. v. Sullivan , 2020 ONCA 333 , at para. 35. Justice Paciocco , writing for himself and Justice Watt in R. v. Sullivan at para. 38, sets out how the principles of stare decisis operate after a superior court judge has made a s. 52(1) declaration of ...

There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle. See  R. v. Russell , 2018 BCCA 330;  R. v. Cuff , 2018 ONCA 276. Having properly seized a vehicle,   police are under an obligation to keep the vehicle and its contents safe. To fulfill this responsibility, the police may have to conduct an inventory search of the vehicle . R. v. Cuff , 2018 ONCA 276. R. v. Nicolosi  (1998),  1998 CanLII 2006 (ON CA) , 40 O.R. (3d) 417 (C.A.), at paras.  29-30 . The fact that the police suspect that they may find drugs while searching the vehicle does not alter their authority to conduct an inventory search . R. v. Wint,  2009 ONCA 52 , 93 O.R. (3d) 514, at para.  11 , leave to appeal re...

The entrapment defence is available when either: 1) “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a  bona fide  inquiry”; or 2) “although having such a reasonable suspicion or acting in the course of a  bona fide  inquiry, they go beyond providing an opportunity and induce the commission of an offence.” R. v. Mack , 1988 CanLII 24 (SCC), at pp. 964-65 The accused must establish the entrapment defence on a balance of probabilities.  Mack , at p. 975. Whatever the mode of trial, the judge ought to consider entrapment only after a finding of guilt. R. v. Imoro , 2010 ONCA 122, at para. 24. In considering entrapment, the court looks at the actions of the police, not of the accused.  O ne must guard against allowing the nature of the offence to distort the application of the entrapment doctrine. Its application does not de...

An accused is prohibited from appealing an interlocutory ruling, such as a ruling relating to the admissibility of evidence. Instead, the accused is obliged to wait until the end of his trial before he can have the ruling challenged in an appeal. However, a plea of guilty is a bar to re-litigation of interlocutory rulings unless the plea of guilty can be set aside on some basis. [FN1] See for instance R. v. Faulkner , 2018 ONCA 174 (CanLII) , at para. 101; R. v. Chuhaniuk , 2010 BCCA 403, at paras. 46-49. Where the validity of the plea is raised for the first time on appeal, the appellant has the onus of showing that the plea was invalid.  [FN2] Thus, the guilty plea of the accused will impose an additional and sometimes insurmountable obstacle on appeal.   Where the success or failure of the case for the Crown depends on the result of pre-trial motions, there may be good reason for an accused to plead guilty if unsuccessful on those motions.   Doing so spares v...

The fact that inadmissible evidence is adduced by the accused without objection from the Crown or comment by the trial judge does not render that evidence admissible.  Inaction does not transform the improper into the proper. In the context of a section 276 Criminal Code application, counsel is not permitted to use evidence of a complainant’s other sexual activity  as part of the evidentiary basis for a 276 application if that sexual activity evidence  was adduced at a criminal proceeding (be it a trial, a bail hearing, or a preliminary inquiry) but was not admissible under section 276.   If it were otherwise, counsel could potentially ignore section 276 and its associated provisions to their benefit, defeating the purpose of the provisions themselves: the protection of complainants’ privacy, equality, and security interests in sexual offence prosecutions. In R. v. Kuzmich , 2020 ONCA 359, the complainant, in response to a question put to her by the defence in ...

Section 276 of the Criminal Code and its ancillary provisions create a strict regime for the admission of evidence of a complainant’s other sexual activity, that is, sexual activity that does not form the subject-matter of the criminal charge.  The application of section 276 extends beyond trials to other proceedings, such as preliminary inquiries and bail proceedings. R. v. Kuzmich , 2020 ONCA 359, at para. 34;  Conversely, see R. v. S. (M.P.) , 2014 BCCA 338, (2014), 338 C.C.C. (3d) 200, where the British Columbia Court of Appeal held that s. 276 has no application at a preliminary inquiry. Relying on  T. (W.S.) , Groberman J.A. held, at para. 68, that “[n]othing in the current s. 276 and ancillary provisions compels an interpretation that would apply the exception in s. 276(2) at a preliminary inquiry.” Written by Stuart O’Connell (Barrister/Solicitor)

In R. v. McSween , 2020 ONCA 343 , the Court of Appeal for Ontario considered whether text messages from an adult to a 14-year-old boy describing sexual acts he would like to perform on another 14-year old constitutes child pornography .  It does.  In the Canadian law child pornography includes (b) any  written material , visual representation or audio recording  that advocates or counsels sexual activity  with a person under the age of eighteen years that would be an offence under this Act; (c) any  written material  whose  dominant characteristic is the description , for a sexual purpose ,  of sexual activity  with a person under the age of eighteen years that would be an offence under this Act. [Emphasis added.] Section 163.1(1), Criminal Code [note: I have not included the definition of child pornography under 163.1(1)(a) or (d) in the interests of clarity]. Section 163.1 does not require the alleged child pornography to me...