Stuart O'Connell Criminal Law Blog

In charging juries, trial judges are obliged to review the substantial parts of the evidence and relate that evidence to the issues the jurors must decide.  Beyond summarizing the evidence, a trial judge is permitted to opine on the evidence adduced at trial subject to certain limits. [1] The overarching principle is fairness. Within this principle of fairness is the recognition that the jury must remain the arbiter of the facts and that any comments made by the trial judge cannot amount to a rebuttal of the defence address to the jury or unfairly denigrate or undermine the position of the defence. [2] In R. v. Walker , 2019 ONCA 806, the trial judge offended this rule by offering an opinion on a critical piece of evidence that was stronger than the one the Crown had been prepared to advance: the Crown had conceded that a gun was not clearly identifiable in security video footage, while the trial judge opined to the jury that a gun was identifiable in the video. ...

Credibility and reliability are not the same thing.  "Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i.                   observe; ii.                 recall; and iii.                recount events in issue. [1] Thus, credibility is not a proxy for reliability: a credible witness may give unreliable evidence. [2] Like credibility, reliability is a factual determination. Evaluations of witness credibility and the reliability of evidence are within the province of the trial judge, as it is the trial judge who has the opportunity to hear and observe all of the witnesses. [3] While a trial judge’s findings on the cr...

Freedom of expression protects listeners as well as speakers, particularly in the context of members of the public receiving information about the activities of public institutions. Langenfeld v. TPSB , 2018 ONSC 3447, at para. 51. Where the law provides that a meeting of a government body is open to the public, the right of an individual to attend the meeting and listen to the deliberations, and if the procedures of the government body permit public participation, to make submissions, is protected under the Canadian Charter of Rights and Freedoms by the s. 2(b)  right of freedom of expression. Langenfeld v. TPSB , 2018 ONSC 3447, at para. 51. A search of the person can have the effect of imposing a limit on the exercise of one’s right to freedom of expression that will, subject to s. 1, infringe s. 2(b) of the Charter , for instance, when a public authority requires a person to submit to a search as a precondition to that person engaging in an expressive activ...

Section 12 of the Charter provides, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” A sentence will violate section 12 where it is grossly disproportionate to a fit punishment in the circumstances.   A sentence is at greater risk of being grossly disproportionate where the offence captures a wide range of conduct and circumstances.  See R v Forcillo , 2018 ONCA 402 (CanLII) . Sexual interference is such an offence as it captures a broad range of conduct from a touch “to the worst forms of human degradation.”  R v Sandercock , 1985 ABCA 218 (CanLII) at para 11 . The issue of the constitutionality of the mandatory minimum for the indictable offence of sexual interference (s. 151(a) of the Criminal Code ) has recently been considered by six courts of appeal across the country [FN]: 1.         the Quebec Court of Appeal in Caron Barrette c. R. , 2018 QCCA 516,...