Stuart O'Connell Criminal Law Blog

Section 10(b) of the Canadian Charter of Rights and Freedoms reads: 10. Everyone has the right on arrest or detention […]   (b) to retain and instruct counsel without delay and to be informed of that right… As the Supreme Court held in R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, s. 10(b) imposes two duties on the police – an informational duty and an implementational duty. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The onus lies on the Applicant to demonstrate that his/her right to counsel was violated under s.10(b) of the Charter. Ri ghts to Counsel and the Role of the Police In most cases the police may infer that the detainee understands the rights read to them.   Police do not have a duty t...

Defence counsel do not fall within the “circle” of informer privilege — the group of people who are entitled to access information covered by informer privilege and who are bound by it. Traditionally, this circle is tightly defined and has only included the confidential informer himself or herself, the police, the Crown and the court. R. v. Brassington , 2018 SCC 37, at para. 41; R. v. Barros , [2011] 3 S.C.R. 368, at para. 37.  In all cases where informer privilege applies, disclosure outside the circle requires a showing of “innocence at stake”. R. v. Brassington , at para. 47. Thus, solicitor-client privilege, which protects the client's communications with counsel from disclosure and compulsion, does not provide a basis for that client to communicate information that is otherwise protected from disclosure if it tends to identify a confidential informer. R. v. Brassington , at para. 48. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (...

As a general rule, prior consistent statements of a witness are inadmissible.  There are two primary justifications for the exclusion of such statements: first, they lack probative value ( they are self-serving, easily fabricated, and redundant) and second, they constitute hearsay when adduced for the truth of their contents.                 R. v. Dinardo , 2008 SCC 24 (CanLII) at para. 36.  Further, their repetition before the trier of fact is capable of working significant prejudice. See R. v. M.P., 2018 ONCA 608 , at para. 77. Exceptions to the rule Like other admissibility rules which are primarily exclusionary in their effect, the general rule enjoining introduction of prior consistent statements of a witness brooks exception. These exceptions permit introduction of prior consistent statements for restricted purposes which differ depending on the exception, for instance: 1 . T...

It is not for judges to create criminal offences, but rather for the legislature to enact such offences.  This has been true since  Frey v. Fedoruk ,  1950 CanLII 24 (SCC) , [1950] S.C.R. 517, and is a precept which finds statutory recognition in section 9 of the Criminal Code . A person may not be convicted of an offence at common law. [FN1] While the Criminal Code removes criminal liability for common law offences, it maintains the availability of common law defences, except where they are inconsistent with subsequent legislation: see section 8(3), Criminal Code . While some common law defences (eg.   defences necessity, duress, and entrapment) are well-understood, other common law defences remain to be discovered. In 1993, the Quebec Court of Appeal recognized the very narrow common law defence of suicide pact . This defence is available only when the parties formed a common and irrevocable intention to commit suicide together, simultaneously by ...

  There are two ways in which fresh evidence may become admissible on appeal:  (1) Dixon Test:   On the basis of non-disclosure giving rise to a breach of the right to make full answer and defence.  This is governed by the test first set out in Dixon, (the “ Dixon test”); or  (2) Palmer Test:  On the basis that the cogency of the evidence is such that it warrants admission and the interests of justice require that it be received.  This is governed by the test  first set out in R. v. Palmer , [1980] 1 S.C.R. 759 (the " Palmer test ").. The Dixon Test T here are two components to the Dixon test. 1. Did the Crown breach its duty to disclose? If the court concludes that, at the relevant time, the Crown failed in its disclosure obligations, then Dixon requires that the court go on to consider the following: 2. Was there a “reasonable possibility” that the non-disclosure: (a) impacted the outcome of...

In use-of-force scenarios, circumstances may change quickly.  The Court of Appeal for Ontario has signaled in R. v. Forcillo that a significant change in the circumstances in which force is used—even within the same transaction—may make the further use of a level of defensive force which had been justified (even at the level of lethal force) no longer so.   As one’s apprehension of the threat he/she is facing changes, for instance, so too may his/her ability to use force as a lawful response.  In R. v. Forcillo , 2018 ONCA 402, a Toronto police officer, Forcillo, fired two volleys of shots at a young man, Yatim, who was brandishing a knife on a Toronto streetcar, threatening passengers, and acting erratically.  Officer Forcillo fired the two volleys 5.5 seconds apart.  It was open for the jury to find that the Crown had proved beyond a reasonable doubt that the second volley was not a justified use of lethal force on the basis that at the time Forcillo ...

It is common practice in the criminal courts to require written submissions, not only at the end of the evidence in judge alone cases, but also in respect of various evidentiary motions, or pre-charge discussions held before or during trial.  In those cases, written argument is used, not in lieu of oral argument, but in addition to and usually as a precursor to oral argument. If a trial judge requires arguments to be made by written submissions, the trial judge must allow counsel, after written argument has been exchanged, to make oral arguments in the presence of the accused to supplement, correct, or otherwise amplify the written argument.  Procedural fairness and the accused’s right to be present throughout his/her trial require this. [FN] R. v. McDonald , 2018 ONCA 369, at paras. 46, 47.  Counsel, however, may agree to waive oral argument either entirely or as a supplement to written argument. Ibid ., at para 46.  [FN]: Section 650 of the Crimin...