Stuart O'Connell Criminal Law Blog

In R. v. Paterson ,  2017 SCC 15, the Supreme Court of Canada excluded evidence that police had obtained in violation of the Canadian Charter of Rights and Freedoms , including loaded firearms and a substantial amount of hard narcotics.  I have provided a quick summary of the Court's section 24(2) analysis below. Case (1)Seriousness   of the Charter   -Infringing State Conduct (2) Impact on the Charter -Protected Interests of the Accused (3) Society’s Interest in an Adjudication of the Case on its Merits (4) Would the Admission of the Evidence Bring the Administration of Justice into Disrepute? R. v. Paterson , 2017 SCC 15 In light of well-established legal principles governing the authority of police to enter a residence without a warrant, the Charter violation was sufficiently serious to favour exclusion of the evidence obtained as a result. Warrantless entry into ...

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action...

The Crown must prove the voluntariness of an accused’s statement before it can rely upon that statement at trial as supporting a finding of guilt. The purpose of the judicial inquiry in a Charter voir dire is distinct from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire , however, the focus is not on the accused’s guilt, but on whether the accused’s constitutional rights were infringed. A Charter voir dire therefore involves a review of the totality of the circumstances known to, and relied upon by, the state actor at the time of the impugned action. Admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused’s guilt, does not engage the rationale for the confessions rule. To apply the rule to evidence presented at a Charter voir dire would distort both the rule and its rational...

Fitness to Stand Trial Legal Standards for Fitness The legal standard that applies to determine fitness is provided for in section 2 of the Criminal Code , where “unfit to stand trial” is defined. “‘unfit to stand trial’ means unable on account of mental disorder to conduct a defence at any stage in the proceedings before a verdict is rendered or to instruct counsel to do so, and in particular, on account of mental disorder to (a)   understand the nature or object of the proceedings, (b)   understand the possible consequences of the proceedings, or (c)   communicate with counsel;” In determining whether the accused person is unfit, the “ Taylor test” is applied. the Taylor test calls only for “limited cognitive capacity”. The standard for fitness is therefore not high. It requires only a “relatively rudimentary understanding of the judicial process” ( R. v. Morrissey 2007 ONCA 770 (CanLII), [2007] O.J. No. 4340 at para 27 (Ont, C.A)) and a basic but m...

Approved Instrument v. Approved Screening Device Demands      Courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption created by s. 258(1)(c) of the Criminal Code   is that the "samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)" of the  Criminal Code , namely by means of an "approved instrument" demand. Approved screening device demands made pursuant to s. 254(2)(b) of the Criminal Code   have been consistently held to be legally inadequate for this purpose. R. v. Waisanen , 2015 ONSC 5823 (CanLII) [Court upheld trial judge’s conclusion that providing the accused with an approved screening device demand rather than the approved instrument demand did not constitute a lawful demand pursuant to section 254(3)(a)(I); as a result, the certificate of analysis was excluded]. See also R. v. Kagayalingam ,...

In sentencing an aboriginal offender, the judge must consider, among other things, the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. See R. v. Gladue , [1999] 1 SCR 688, 1999 CanLII 679 (SCC) In R. v. Sledz, 2017 ONCJ 151, the Court in considering whether or not to grant judicial interim release (bail) for an indigenous accused recognized the causal relationship between the general and woeful historical treatment of aboriginals in Canada and the particular and contemporary situation of the indigenous accused seeking bail but with no person willing to come forward to act as his surety. The lack of a surety was not a bar to interim release. There is a disproportionate number of indigenous persons in jail…too many indigenous persons compared to their overall population in this country find themselves behind bars.  Too often this starts at the pretrial stage when they cannot get bail. ...

Bolus drinking describes the consumption of large quantities of alcohol immediately or shortly before driving. The onus is on the Crown to prove a negative, namely that the accused has not engaged in bolus drinking. A toxicologist’s report is based on the premise that there has been no bolus drinking.   In the absence of evidence on the record to suggest the contrary, the Court of Appeal for Ontario has ruled that the trier of fact may resort to a common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving. R. v. Paszczenko 2010 ONCA 615 (CanLII), 103 O.R. (3d) 424 , at paras. 27-29 . In such circumstances, the toxicologist’s report may be relied upon as an accurate representation of a person’s blood alcohol content at the time of the occurrence. In the absence of evidence to the contrary, there is no presumption that the accused is deemed not to have consumed large quantities of alcohol. The burden remains on t...