Stuart O'Connell Criminal Law Blog

See my earlier blog entry Hearsay in a Nutshell for a general elaboration as to the nature of hearsay.   In this blog entry I will discuss the relationship between demeanour evidence and hearsay. Although hearsay typically consists of spoken words, it can consist of conduct.  Such conduct can be of two types:  assertive and non-assertive.  R. v. Badgerow , 2014 ONCA 272, 119 O.R. (3d) 399 at para 106,   leave to appeal refused Assertive conduct Assertive conduct refers to non-verbal conduct that is intended as an assertion.  Examples of assertive conduct include nodding the head (indicating “yes”) and pointing to someone or something.  Assertive conduct is conduct that is tendered in evidence to prove the truth of an assertion Badgerow , at para. 107 Non-assertive conduct Non-assertive conduct describes conduct, whether by words or deeds or both, from which the trier is asked to infer a statement based on the “declarant’s” beli...

Section 10(b) of the Canadian Charter of Rights and Freedoms fulfills its purpose in two ways.   First, it requires that the detainee be advised of his right to counsel.   This is called the informational component .   Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel.   This is called the implementational component . In today’s blog entry, I discuss the informational component of the section 10(b) Charter right.   Or more simply: what must the police tell you upon arrest/detention? Canadian Charter of Rights and Freedoms 10. Everyone has the right on arrest or detention                 a. to be informed promptly of the reasons therefor;                 b. to retain and instruct counsel without delay and to be informed of that right. Overvie...

Overview Applications for a trial adjournment may be made by the Crown or the defence.   It is undisputed that whether an adjournment or a postponement should be granted or not is a discretionary matter for the trial judge:   Manhas v. The Queen, 1980 CanLII 172 (SCC , [1980] 1 S.C.R. 591 ; R. v. Barrette, 1976 CanLII 180 (SCC), , [1977] 2 S.C.R. 121 , 29 C.C.C. (2d) 189 ; R. v. Darville, (1956), 116 C.C.C. 113 (S.C.C.) ; R. v. MacDonald, 1998 CanLII 18016 (NL CA) , [1998] N.J. No. 340 (QL) (C.A.) [reported 132 C.C.C. (3d) 205]. The leading case governing trial adjournment applications is that of Darville v. the Queen , (1956) 116 C.C.C. 113 (S.C.C.) which sets out a straightforward three-part test.   Though Darville remains foundational, the test has been elaborated and expanded upon and may, it appears, include such additional factors as the consideration of the public interest in having a trial on the merits (including the related consideration of ...

Section 705 of the Criminal Code establishes and governs the court’s power to issue a material witness warrant to arrest an individual who has been properly served with a subpoena but does not attend court.   In accordance with this provision, the trial judge has discretion to issue a material witness warrant if two pre-conditions have been satisfied:  first, that subpoenas have been properly served on the prospective witnesses, and second, that the person is likely to give material evidence. CRIMINAL CODE Section 705 (1)      Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established (a)      that the subpoena has been served in accordance with this Part, and (b)      that the person is likely to give mate...

The unconscious patient under criminal investigation raises challenges for the police who seek to obtain a sample of that patient’s blood for analysis, as there would appear to be no statutory authority for their doing so.   If police are able to obtain the blood, it would have to be under their common law ancillary powers .   The exercise of all public power must find its ultimate source in a legal rule—this   precept which is a fundamental component of the rule of law , which lies at the root of our system of government. Grounded in the common law, the ancillary powers doctrine is codified in s. 31(2) of the Interpretation Act , R.S.C. 1985, c I-21: 31(2) Where power is given to a person, officer or functionary to do or enforce any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given However, it is well-established that—at least in light of the cu...

In R. v. M.C., 2014 ONCA 611 (CanLII), the Court of Appeal for Ontario provides a wonderfully clear and useful summary of hearsay, which for the most part I have excerpted below. Hearsay is not an inherent characteristic of an item of evidence: R. v. Baldree, 2013 SCC (CanLII), [2013] 2 S.C.R. 520, at paras. 30 and 36. The defining features of hearsay are two-fold: i.            the statement is adduced to prove the truth of what was said; and ii.            the absence of a contemporaneous opportunity to cross-examine the declarant. Baldree, at para. 30; and R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 56. The touchstone for the admissibility of evidence that is said to be hearsay is the purpose for which the evidence is adduced. Evidence is hearsay – and presumptively inadmissible – if it is offered to prove the truth of its contents: Baldree, at para. 36; a...