Stuart O'Connell Criminal Law Blog

Parliament, not the judiciary, may expand the scope of criminal liability. Criminal offences in Canada since 1955 have been entirely statutory (with the exception of criminal contempt). However, the common law continues to play an important role in defining criminal conduct.  However, w here a court is asked to expand criminal liability by departing from the well-understood common law meaning of a term, three principles of statutory interpretation are particularly salient: 1.        When Parliament uses a legal term with a well-understood legal meaning, it is presumed that Parliament intended to incorporate that legal meaning into the statute. 2.        Any departure from that legal meaning must be clear, either by express language or necessary implication from the statute. 3.        Apart from criminal contempt, there can be no liability for common law crimes. Creating and de...

Sometimes courts will receive demeanour evidence, that is to say, evidence of how a person appeared or acted after or during an event. In its normal, natural everyday sense, the term “demeanour” refers to conduct, behaviour, a way of acting or to a person’s bearing, mien or outward manner. Implicit in the reception of evidence of a person’s demeanour, however, are two invalid assumptions. The first assumes that for every action or event there is a normal reaction or manner of reaction. And the second is that an individual’s reaction actually reflects his or her inner emotional reaction or state: R. v. Wall (2007), 2005 CanLII 80695 (ON CA), 2005 CanLII, 203 C.C.C. (3d) 232 (Ont. C.A.), at para. 49. As a result of the invalid assumptions that underpin demeanour evidence, this evidence requires a predominance of probative value over prejudicial effect to be admissible: Wall , at para. 50; see also R. v. Pannu, 2015 ONCA 677. The evidence must be sufficiently clear to ...

  The Unreasonable Verdict Test   Under section 686(1)(a)(i) Criminal Code, a court on appeal will set aside a verdict of guilt as unreasonable where it finds that there was no evidence on which a properly instructed jury could make a finding of guilt. R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381.   The reasonableness of a jury verdict focuses on the conclusion reached at trial – the verdict – and measures it against the totality of the evidence adduced at trial: R. v. Sinclair , 2011 SCC 40 (CanLII), [2011] 3 S.C.R. 3, at paras. 69, 78, 81.   Under s. 686(1)(a)(i), the function of the court of appeal extends beyond merely finding that there was evidence adduced at trial to support a conviction, the verdict rendered by the jury. It is to determine on the evidence as a whole whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes , 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, ...

Toronto, December 8, 2016, 9:00 am-2:00 pm. An advanced seminar on criminal procedure and Charter issues arising in the criminal investigation and trial process.   Registrants will have input into which topics are covered. Held at Knights LPC, 100 Bass Pro Mills, Suite 44, Vaughan, Ontario. L4K 5X1. $75.00 Contact info@leadersinlaw.ca to register or for more info.

The offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance . R. v. Kennedy, 2016 ONCA 879 Criminal Code, Section 129 (a) Every one who resists or willfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer is guilty of [an indictable or summary offence] [emphasis mine]. s. 129(a) constitutes one offence of “resists or willfully obstructs” where “resist” and “obstruct” are alternate means of committing an offence: R. v. Glowach, 2001 BCSC 241 (CanLII).   The Actus Reus of the Offence of Resisting a Police Officer In order to prove a charge of resisting arrest, the actions of the accused must constitute “active resistance” and not “passive resistance”. Further, the officer must be acting in execution of his/her duty. Conduct, without such active resistance may, conceivably, amount to obstruction of the officer, but ...

The Constitutional Right to Retain and Instruct Counsel The Supreme Court of Canada has recognized that the purpose of the right to retain and instruct counsel guaranteed by section 10( b ) of the Charter is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”.  A person who is detained or arrested is, “in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty”. The assistance of counsel helps to ensure that those who are in custody, and therefore in legal jeopardy, are positioned to make a voluntary and informed decision whether or not to speak, or otherwise cooperate, with the police. Section 10(b) includes the right to consult a lawyer of one’s choosing The Supreme Court of Canada has interpreted the right to retain and instruct counsel, g...

A trier-of fact may draw reasonable factual inferences from the post-offence conduct of an accused. As with any kind of circumstantial evidence, the inferences to be drawn from post-offence conduct will depend on the nature of the conduct, the fact that is sought to be inferred from that conduct, the position of the parties, and the totality of the evidence. Inference drawing is situation-specific and is not amenable to a set of preset rules that categorize certain kinds of post-offence conduct as always relevant to, or never relevant to, a particular fact in issue. R. v. Figueroa, 2008 ONCA 106 , 232 C.C.C. (3d) 51 at para. 33: Evidence of an accused’s words and conduct after a crime has been committed may provide circumstantial evidence of an accused’s complicity in that offence. The inference involved looks backwards from the later words or conduct to the alleged conduct said to constitute the crime. No special rule applies to evidence of post-offence words or conduct: R...