Stuart O'Connell Criminal Law Blog

The significance of lack of memory was discussed in R. v. J.R ., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (S.C.J.): ...Absent expert evidence, a loss of memory or a ‘blackout’ is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, “a complete loss of memory for a portion of time during a drinking episode.” In a sexual assault case this is particularly unfortunate since, as was noted in R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), ‘[t] he parties testimony is usually the most important evidence in sexual assault cases.” Esau is particularly relevant to the case at bar because it is a sexual assault case involving a complainant with no memory of the relevant time. In Esau at 297, Justice Major said of the complainant's memory loss, “[a]ny number of things may have happened during the per...

—3 years custodial sentence for criminal harassment arising from the unauthorized dissemination of intimate images— Crown and defence made a joint submission for a custodial sentence of 9-12 months.   The trial judge’s rejection of the joint submission was consistent with the procedure set out by the Supreme Court of Canada in R. v. Anthony-Cook , 2016 SCC 43. The trial judge gave the parties clear notice of his concerns about the adequacy of their joint submission; invited them to make submissions on the matter; and afforded the accused an opportunity to withdraw his guilty plea. Nothing more was required. Three years was within the range that the Court of Appeal has identified for serial harassers: R. v. O’Connor 2008 ONCA 206. R. v. Myles , 2017 ONCA 375.

In R. v. Youvarajah , 2013 SCC 41 (CanLII), [2013] 2 S.C.R. 720, at para. 30, the Supreme Court of Canada re-affirmed that threshold reliability may be established by: (1) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and/or (2) sufficient circumstantial guarantees of reliability, or an inherent trustworthiness (substantive reliability), and noted that these two principal ways of demonstrating threshold reliability are “not mutually exclusive.”  See R. v. Devine , 2008 SCC 36 (CanLII), [2008] 2 S.C.R. 283, at para. 22; R. v. Singh , 2010 ONCA 808 (CanLII), 266 C.C.C. (3d) 466, at para. 34; R. v. Adjei , 2013 ONCA 512 (CanLII), 309 O.A.C. 328, at paras. 32-40; R. v. Carroll , 2014 ONCA 2 (CanLII), 304 C.C.C. (3d) 252, at paras. 99-105; R. v. M.C., 2014 ONCA 611 (CanLII), 314 C.C.C. (3d) 336, at paras. 52-57; R. v. Kanagalingam , 2014 ONCA 727 (CanLII), 315 C.C.C. (3d) 199, at para. 31; R. v. Napope , 2015 ABCA 27 (CanLII), at para...

For centuries, the law of hearsay in Canada and other common law countries had been strictly governed by a general exclusionary rule, and a broad and complex array of exceptions judicially developed and refined over time.  Under this long-standing legal regime, the law of hearsay may not have seemed concerned with any unifying legal principle, but it was certain and practical in its routine application.  With its landmark decision in Khan, however, the Supreme Court of Canada ushered in a new era, holding that even hearsay evidence that did not fall within one of the traditionally recognized exceptions to the exclusionary rule would still be admissible if it met the twin criteria of reliability and necessity.  R. v F.C ., 2015 ONSC 6428 (CanLII). Necessity Necessity refers to the necessity of the hearsay evidence to prove a fact in issue, and thus relates to relevance and availability of evidence. See M. Fuerst, S. N. Lederman and A. W. Bryant, The Law ...

A trial judge cannot rely on social studies or literature or scientific reports unless they have been accepted after being properly introduced and tested by the parties.  See, R. v. P.(S.D.) (1995), 1995 CanLII 8923 (ON CA), 98 C.C.C. (3d) 83 (Ont.C.A.) at ¶ 33, 36; Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 85 O.A.C. 54 at ¶ 47, 49-51; R. v. Désaulniers (1994), 1994 CanLII 5909 (QC CA), 93 C.C.C. (3d) 371, (Que.C.A.) at ¶ 21, 23-24, 26-27. R. v B.M.S., 2016 NSCA 35 (CanLII):   It was an error for the trial judge to use articles he found about the psychological harm of sexual photo sharing by means of smartphones (“sexting”) without notice or a proper foundation to decide a central and contentious issue: in this case, whether the accused’s youth’s possession of child pornography through sexting caused psychological harm that amounted to a “violent offence” within the meaning of section 2 of the Youth Criminal Justice Act.

Effective assistance by counsel requires that counsel be competent. However, effective assistance involves more; it also requires counsel to give the accused’s cause her undivided loyalty, which is a prerequisite to proper legal representation. R. v. W. (W.) (1995), 25 O.R. (3d) 161 (C.A.), at pp. 171-72. To establish a lack of effective assistance based on counsel’s conflict of interest, the appellant must demonstrate (i)            an actual conflict of interest between the respective interests represented by his counsel, and (ii)          as a result of that conflict, some impairment of counsel’s ability to effectively represent the appellant’s interests. The appellant need not demonstrate that, but for the ineffective representation of counsel, the verdict would have been different W. (W.) , at p. 173; see also R. v. Baharloo , 2017 ONCA 362.

A lawyer’s duty of loyalty to a client includes a duty to avoid conflicting interests. Divided Loyalties One type of prejudice from which the law of conflict of interest seeks to protect a client is the “prejudice arising where the lawyer ‘soft peddles’ his representation of a client in order to serve his own interests, those of another client, or those of a third person.” Canadian National Railway Co. v. McKercher LLP , 2013 SCC 39, [2013] S.C.R. 649 (“ CNR ”), at para. 23. As regards a current client, a lawyer must not place herself in a situation that jeopardizes her effective on-going representation of the client.   CNR , at para. 23. That is because “[t]here should be no room for doubt about counsel’s loyalty and dedication to the client’s case.” R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.), at p. 67. As well, “[w]hen a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements...