Stuart O'Connell Criminal Law Blog

Where an accused is charged with multiple counts and it is clear that one of the counts will be stayed in the event of a conviction of both, the Crown should consider, either before trial or before the jury is charged, whether to pursue both counts.  R. v. R.V ., 2019 ONCA 664, at para. 147 ( obiter ). The trial judge should canvass this issue with counsel during both the pre-trial and pre-charge conferences. While, ultimately, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict, Crown should be mindful of the Court of Ontario’s repeated prescription that all trials, whether judge-alone or judge and jury, should be made less complicated, not more complicated. Proceeding with duplicative counts complicates and prolongs the trial and is a recipe for jury confusion and inconsistent verdicts. See R. v. R.V ., 2019 ONCA 664, at paras. 146, 147 ( obiter ).  Unfortunately, proceeding with duplicative counts is not u...

A mistake of law occurs only where a person has an honest but mistaken belief in the legality of his or her actions. Although it is not a defence to a criminal charge, mistake of law can nevertheless be used as a mitigating factor in sentencing.   Offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — in committing the same offence — are unsure about the lawfulness of their actions or know that their actions are unlawful. R. v. Suter , [2018] 2 SCR 496, 2018 SCC 34 (CanLII), at para. 64  An accused who raises mistake of law as a mitigating factor on sentence has the onus of establishing, on a balance of probability, that the requisite elements of a mistake of law have been made out.  Supra , at para. 68. Stuart O’Connell, O’Connell Law Group (All rights reserved to author). [FN] Confusion or uncertainty as to the lawfulness of one’s actions –while not meeting the le...