Stuart O'Connell Criminal Law Blog

When an Accused may be absent from his/her trial Section 650 of the Criminal Code requires an accused to be present during his trial except in three situations: (1) when an accused so disrupts or interferes with the proceedings he must be removed; (2) the trial court permits the accused to be absent; or (3) during a fitness hearing where allowing the accused to remain in the courtroom has the potential for causing an adverse affect upon the accused's mental condition. Section 475 of the Code deals with what may be done when an accused "a bsconds during the course of his trial." [ Code s. 475(1)].   Under this provision, the Court may be called upon to determine at the outset whether the trial has commenced.   Having found that the trial has commenced, the Court must determine whether there has been an abscondence. Absconds It is common ground that the meaning of A absconding" for the purpose of s. 475 is as defined by Martin J.A. in ...

Where, in a pre-trial hearing, the sentencing judge agrees to impose a particular sentence on an accused in exchange for a guilty plea, and the accused enters a guilty plea relying on the judge’s sentencing position at the pre-trial hearing, the appearance of fairness requires that the judge impose the sentence he/she committed to in the pre-trial hearing and upon which the accused relied. R. v. O’Quinn (2001), 2002 CanLII 44942 (ON CA). So as to avoid misunderstandings as to the appropriate sentence, where the judge has agreed to impose a particular sentence (including a sentence within a particular range), counsel should place the essence of the pre-trial discussions on the record at the time the guilty plea is entered. R. v. O’Quinn (2001), 2002 CanLII 44942 (ON CA), at para. 14; See also R. v. Scott , 2011 ONCA 365 (CanLII). However, a sentencing judge is entitled to change his/her mind as to what constitutes an appropriate sentence if additional relevant facts ...

Children are especially vulnerable to sexual crimes and, without question, the Internet allows for greater opportunities to sexually exploit them. Protecting children from becoming victims of sexual offences is vital in a free and democratic society, and that need can inform the scope of one's reasonable expectation of privacy under section 8 of the Charter.  Most relationships between adults and children are worthy of s. 8’s protection, including, but in no way limited to, those with family, friends, professionals, or religious advisors. R. v. Mills , 2019 SCC 22, at paras. 23, 24 [plurality opinion; Moldaver J, concurring]. However, an adult does not have a reasonable expectation of privacy in online communications between himself and a person he believes to be child, where the person he believes to be a child is effectively a stranger to him, and where police are aware of this. Ibid. , at para. 30.  Thus, police did not need to obtain a warrant to c...

A foreign national convicted in Canada of an indictable offence is inadmissible to Canada on grounds of criminality under s. 36(2)(a) of the Immigration and Refugee Protection Act . The consequences of inadmissibility for a foreign national are that she is deportable from Canada and is ineligible to become a permanent resident or to apply to enter or remain in Canada unless given an exemption by the Department of Immigration, Refugees and Citizenship Canada.        See R. v. Moran , 2019 ONCA 217. Immigration and Refuge Protection Act Criminality 36 (2) A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Pa...

What an accused says in court is not always believable.  But lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.          See R. v. J.H.S ., [2008] 2 SCR 152, at para. 8, Thus, Canada’s highest court propounded the W(D) instruction: what the Court hoped would be a simple, coherent formula to assist juries in understanding and applying the burden and standard of proof in criminal trials where an accused provides exculpatory evidence. While the Supreme Court of Canada never intended the W(D) instruction to be a magical incantation, those who practice criminal law often recite the three-part instruction as though it were.   However, reciting and relying solely on t...

In no particular order: #10 Consider the immigration status of your client & the potential collateral consequences of a guilty plea For permanent residents and foreign nationals, very significant consequences may follow a conviction that rises to the level of serious criminality under the Immigration and Refuge Protection Act , namely, the offender being subject to a removal order from Canada upon completion of their sentence. It is essential then to be aware of a client’s immigration status.  As a matter of good practice, your firm’s client intake form should include information regarding immigration status. [FN1] Under section 36(1)(1) of the Immigration and Refuge Protection Act , a permanent resident or foreign national is inadmissible on grounds of serious criminality whereupon he/she is convicted of  1.        a federal offence (which includes any offence in the Criminal Code or the Controlled Drugs and Substances Act ) pu...

Under section. 162(1)(c) of the Criminal Code the offence of voyeurism is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose.   See R. v. Rudiger , 2011 BCSC 1397 (CanLII) , 244 C.R.R. (2d) 69 , at para. 75 . The voyeurism offence was enacted in 2005 to address public concerns with the rapid advent of technology that could be used to spy on people surreptitiously for sexual purposes.   While the offence of voyeurism is almost fifteen years old, there has been relatively few decisions under the section, which makes the Supreme Court of Canada’s release of its unanimous decision in R. v. Jarvis all the more important. In R. v. Jarvis the Supreme Court of Canada has provided a doctrinal framework for determining when circumstances will give rise to a reasonable expectation of privac...