Loading...

Follow Donich Law | Toronto Criminal Lawyers on Feedspot

Continue with Google
Continue with Facebook
or

Valid

Section 737 of the Criminal Code requires that a victim surcharge be imposed for every offence committed. The section removes the discretion of sentencing judges to decline to impose a surcharge based upon the specific circumstances of the offender.

The imposition and enforcement of the victim surcharge creates deeply disproportionate effects for those who are the most impoverished among us,

In R. v. Boudreault the Supreme Court of Canada went further, holding that “the impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable.”

That is to say, the surcharge is a constitutionally impermissible form of cruel and unusual punishment under section 12 of the Charter.  The Court found that victim surcharge regime as set out in section 737 was not saved under section 1 of the Charter (the reasonable limits provision).

R. v. Boudreault, 2018 SCC 58 (CanLII), at paras. 94, 97.

The Supreme Court declared section 737 of the Criminal Code “to be of no force and effect immediately, pursuant to s.52(1) of the Constitution Act, 1982.”

R. v. Boudreault, at para. 98.  

Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

A trial judge should draw an adverse inference from the failure of a party to call a witness only with the greatest of caution.

See R. v. Ellis, 2013 ONCA 9 (CanLII), at para 49.

An adverse inference can only be drawn where there is no plausible reason for nonproduction, in other words, where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable.

See R. v. Ellis, 2013 ONCA 9 (CanLII), at para. 48.

The only adverse inference that the trier of fact may drawn is that if the witness were called his/her testimony would be unfavourable, eg., would bear adversely on the credibility of the accused. An inference of guilt is not permissible.   

R. v. Koffman (1985), 20 C.C.C. (3d) 232, 10 O.A.C. 29, per Martin JA.

Comment on the Failure to Produce a Witness

It is rarely permissible for the trial judge to comment on the failure to call a witness.

Even where a comment on the failure to call a witness is appropriate, the failure to call a witness should not be given undue prominence and a comment should only be made where the witness is of some importance in the case.

R. v. Koffman (1985), 20 C.C.C. (3d) 232, 10 O.A.C. 29, per Martin JA.

The judge or counsel for the prosecution are prohibited from commenting on the failure of the accused (or the husband or wife of the accused) to testify.

Section 4(6) of the Canada Evidence Act.

Where neither the Crown nor the accused might wish to call, the jury may be so advised but the jury should not be told that if they concluded the defence should have called a witness, they could draw an adverse inference against the accused.

Where the Defence Fails to Call a Witness

To draw an adverse inference against an accused in a criminal trial risks imposing a burden of adducing evidence on the accused, thereby shifting the onus of proof.

R. v. Lapensee, 2009 ONCA 646 (CanLII), at para. 45.

There is no obligation on the defence to call a particular witness and there may be a perfectly valid reason for not calling the witness.  The trial judge should instruct the jury accordingly when comment has been made regarding the failure to call a witness.

R. v. Koffman (1985), 20 C.C.C. (3d) 232, 10 O.A.C. 29, per Martin JA.

 Where the Crown Fails to Call a Witness

As a matter of general principle, Crown counsel is under no obligation to call a witness whom the Crown considers is unnecessary to the Crown’s case.

It is all the more so where Crown counsel does not know of the existence or identity of the witness, or considers the evidence of the witness unworthy of belief.

Jolivet, at para. 29.

Even where the Crown does not call a relevant witness, in most cases defence counsel will have the ability to call that same witness. [FN1]

In civil proceedings, an adverse inference following from a failure to call a witness may not be drawn unless, among other things [FN2], the party that failed to call the witness alone had the ability to bring the witness before the court.

            Buck v Morris, 2013 ONSC 7596 (CanLII).

The “adverse inference” principle is rooted in ordinary logic and experience: R. v. Ellis, at para. 48. In my opinion, the ability of the defence to call the witness the Crown has not called is relevant to whether or not an adverse inference should be drawn against the Crown.

[FN1] If the defence has any concerns with respect to the evidence the witnesses might present and whether they could be adverse to the accused, an application to have the witness declared adverse should be made so that his/her evidence can be the subject matter of cross-examination by the defence.

[FN2]: Buck v Morris, 2013 ONSC 7596 (CanLII):  a)The party has not explained the failure to call an important witness, b) the evidence of that witness has not been provided from other sources, c) a prima facie case has been established by the opposing party that the party failing to call a witness must disprove or risk losing the case, and d) that party alone could bring the witness before the court.

Stuart O’Connell, O’Connell Law Group (all rights reserved to author).

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

A trial judge may sketch out draft reasons either in advance of hearing counsel’s submissions or as those submissions are being offered, so long as the trial judge remains receptive to persuasion by counsel’s submissions.

R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J; 

R. v. Purewal, 2014 ONSC 2198.

Given the acute time pressures on trial judges, resort to this practice may often be necessary.

No harm is created by the practice, and some practical benefit may be gained for the process as a whole, so long as it is done with considerable care for, and appreciation of, the impression it may create if it is not undertaken in an appropriate manner.

R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J; 

See also R. v. Purewal, 2014 ONSC 2198 (CanLII), 2014 ONSC 2198, per Durno J.

Of preeminent importance is that a judge must always keep an open mind, both in reality and in appearance. [FN]

Some measure of time should be taken by a judge to reflect on the submissions and to ensure that any draft or sketched out reasons have taken them into account. 

R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J.

However, there is a strong presumption that judicial officers act exclusively out of consideration for the interests of the court and the administration of justice generally (the presumption of judicial regularity).

A function of judicial independence is the ability of a judge to note and document on paper, thoughts and reflections about the evidence, law, and anything else logically connected with the judicial function of deciding a case or part of it. A trial judge has no obligation to disclose to counsel of any party his or her own notes or preliminary or draft rulings.  

R. v. Bukin, 2018 ONCJ 146.


FN: Reasonable Apprehension of Bias–Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: The burden of establishing bias is on the party arguing that it exists. The test is well-established:  What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly?  There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259; Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.

Stuart O’Connell, O’Connell Law Group. (All rights reserved to author). 

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Under section 24(2) of the Canadian Charter of Rights and Freedoms, the burden of having the court exclude evidence that is otherwise admissible passes to the defence. The Crown does not have to anticipate that the defence will seek to exclude Crown evidence on the basis of an alleged Charter breach.  The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered, will be received and considered in determining the guilt of an accused.

Absent special circum­stances [FN], the general principle is that the accused must raise Charter objections to the admissibility of Crown evidence before, not after, that evidence is adduced. 

Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case.

                                                R. v. Kutynec, 1992 CanLII 12755 (ON CA);

                                                R. v. Luksicek, 1993 CanLII 1148 (BC CA).

[FN]: A trial judge has the discretion to allow counsel to challenge evidence already received and will do so where the interests of justice so warrant.

[FN] Consider also your obligation to provide formal notice of the application and the factual basis supporting it under any rules of the court (eg. Rules 2 & 3 of the Criminal Rules of the Ontario Court of Justice).  

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca. (All rights reserved to author).
Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Police officers are entitled to use force in the execution of their duties if they act on reasonable grounds in doing what they are required or authorized to do and the force used is necessary for that purpose. 

See section 25, Criminal Code.

The Crown has the evidentiary burden of establishing that section 25 of the Code has been met when it relies on the provision to justify the use of force. 

The Crown must therefore prove that the officer:

(i)             was required or authorized by law to perform the action, that the officer undertook, in the administration or enforcement of the law;

(ii)           acted on reasonable grounds in performing the action; and

(iii)          did not use unnecessary force.

The use of more force than necessary gives rise to both criminal and civil liability.

Section 26 of the Criminal Code, which is to be read with section 25, imposes criminal responsibility on those authorized by law to use force where the force used is excessive.

 Was the officer acting in execution of her/his duty at the time force was used?

The powers and duties of a peace officer emanate from common law and statute. In Ontario, these common law duties have been codified in  sections 42(1) and (3) of the Police Services Act. 

Examples of the type of situation in which force may be necessary in the execution of a police duty include (but are not limited to) apprehending a fleeing suspect, preventing a continuation of an offence and protecting the safety of members of the public.

Force Likely to Cause Death or Grievous Bodily Harm

The Criminal Code has a specific limitation on the degree of force that can be used. The officer cannot use force that is intended or likely to cause death or grievous bodily harm unless he believes that it is necessary for the purpose of preserving himself or anyone under his protection from death or grievous bodily harm. That limitation is found in s. 25(3) of the Criminal Code. 

The Criminal Code also includes provisions regarding the use of force in specific circumstances: the suppression of a riot, force on board an aircraft, and force against an inmate escaping from a penitentiary, etc. 

Grievous bodily harm is not defined in the Criminal Code.   At common law it means serious hurt or pain. 

R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), at para. 5. 

Necessary Force v. Excessive Force

In determining whether the amount of force used by the officer was necessary the trier of fact must have regard to the circumstances as they existed at the time the force was used.   

Allowance must be made for the exigencies of the moment.  Officers cannot be expected to measure the force used with exactitude.  It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective.  To do so would result in unnecessary danger to themselves and others.  Officers are justified and exempt from liability in these situations if they use no more force than is necessary, having to regard to their reasonably held assessment of the circumstances and dangers in which they find themselves.

Chartier v. Greaves, [2001] OJ 634 (SCJ) para. 64;

R. v. Nasogaluak, 2010 SCC 6 (CanLII); R. v. Nasogaluak 2007 ABCA 339 (CanLII).

         Stuart O’Connell, O’Connell Law Group, leadersinlaw.ca (All rights reserved to author).

CRIMINAL CODE

Protection of Persons Acting Under Authority

Section 25.  Everyone who is required or authorized by law to do anything in the administration or enforcement of the law…

(b)        as a peace officer …

if he acts on reasonable grounds, justified in doing what he required or authorized to do and in using as much force as is necessary for that purpose.

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Section 254(3) of the Criminal Code authorizes a peace officer to make a demand for breath samplesprovided the officer “has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving ‘over 80’.

The failure to meet this standard would mean that there would be no legal authority for obtaining the breath samples and an illegal search or seizure is unreasonable constituting an infringement of s. 8 of the Charter.

See R v Collins, 1987 CanLII 84 (SCC).

Crown Burden

The Crown has the burden of proving that reasonable grounds existed for the breath sample demand.

R. v. Bush, 2010 ONCA 554, at para. 13; R. v. Haas (2005), 2005 CanLII 26440 (ON CA), 76 O.R. (3d) 737, [2005] O.J. No. 3160 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 423.

The Reasonable Grounds Standard (Generally)

The standard of reasonable grounds is used to define the point at which the state’s interest in detecting and preventing crime begins to prevail over the individual’s liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion.  The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. In short, the threshold requires that there must be a “reasonable probability.” 

See Hunter v. Southam Inc., 1984 CanLII 33 (SCC); R. v. Debot, at p. 1166; Baron v. Canada, 1993 CanLII 154 (SCC).

The requirement of reasonable grounds has both a subjective and objective component. The officer must subjectively have an honest belief that the suspect committed an offence, and that belief must be supported by objective grounds:

R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193 at para. 48.

The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable grounds for the arrest.

R. v. Storrey, 1990 CanLII 125 (SCC).

Reasonable Grounds to Believe the Accused was Impaired

The test for establishing reasonable grounds is not onerous. It will be enough to show the findings of fact objectively support the officer’s subjective belief that the suspect was impaired.

R. v. Bush, 2010 ONCA 554 (CanLII), 259 C.C.C. (3d) 127 at paras. 47-48; R. v. Wang, 2010 ONCA 435 (CanLII), 256 C.C.C. (3d) 225 at para. 17; R. v. Wong, 2011 BCCA 13 (CanLII) at para. 20, leave to appeal ref’d [2011] S.C.C.A. No. 90.

Impairment may be established where the prosecution proves any degree of impairment from slight to great:

R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), 1994 CanLII 94 (SCC); R. v. Wang, [2010] O.J. No. 2490, 2010 ONCA 435 (CanLII).

Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road.

R. v. Censoni (2001), 22 M.V.R. (4th) 178, at para. 47(Ont. Sup. Ct. J.).

The authorities recognize the reasonableness of the officer’s opinion must be judged by reference to the totality of the circumstances, and in the situation in which it was formed; a roadside investigation that demands a quick and informed decision, without the luxury of reflection.

Bush at paras. 42, 45 and 55.

An opinion as to whether a person’s ability to drive is impaired is not an expert opinion and may be given by a lay person. Indeed, the fact one witness has seen more impaired drivers than another is not in itself enough to prefer the evidence of the more experienced witness:

            R. v. Graat, 1982 CanLII 33 (SCC).

However, the authorities recognize a police officer’s experience may strengthen his/her opinion but, typically, this is expressed in terms of an ability to recognize and interpret subtleties that may not be apparent to a layperson.

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to author).

                                   

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Summary

A criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal. This authority allows the court to require defence counsel who wishes to withdraw because of non-payment of legal fees to continue to represent the accused. 

However, refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice.

The Supreme Court of Canada in R. v. Cunningham, 2010 SCC 10 sets out a number of factors that courts should consider in determining whether permitting counsel of record to withdraw would cause serious harm to the administration of justice.  These factors—the Supreme Court of Canada tells us—are independent of the solicitor-client relationship and there is no risk of violating solicitor-client privilege when engaging in the analysis. 

If a court determines that serious harm would result, withdrawal may be refused.

Revealing that the Accused has not paid legal fees

Revealing that an accused has not paid his or her fees does not normally touch on the rationale for solicitor-client privilege in the criminal context.

R. v. Cunningham, 2010 SCC 10, at para. 27.

Disclosure of non-payment of fees in cases where it is unrelated to the merits and will not cause prejudice to the accused is not an exception to solicitor-client privilege.  Rather, non-payment of legal fees in this context does not attract the protection of solicitor-client privilege in the first place. 

R. v. Cunningham, 2010 SCC 10, at para. 31.

Withdrawal where no adjournment required

 If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal.  In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.

R. v. Cunningham, 2010 SCC 10, at para. 47.

Serious Harm to the Administration of Justice

If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request.  In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:

a.      whether it is feasible for the accused to represent himself or herself;

b.      other means of obtaining representation;

c.      impact on the accused from delay in proceedings, particularly if the accused is in custody;

d.     conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;

e.      impact on the Crown and any co‑accused;

f.        impact on complainants, witnesses and jurors;

g.      fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;

h.      the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).

Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

In R. v. Foster, 2018 ONCA 53, Justice Watt for the Court of Appeal for Ontario provides a useful basic overview of the essential elements of a criminal offence, which I have reprinted below. 

Every Criminal Offence has an Actus Reus and a Mens Rea Requirement

“Expressed in the Latin maxim actus non facit reum nisi mens sit rea, it is a fundamental principle of our criminal law that a person may not be convicted of a crime unless the Crown proves beyond a reasonable doubt that the person:

i.                 engaged in conduct in circumstances forbidden by the criminal law (the actus reus or external element); and

ii.               had a defined state of mind in relation to the prohibited conduct (the mens rea or mental or fault element).

The external element or actus reus includes all the elements of the offence except for the mental or fault element. As a result, the external element or actus reus can include:

i.                 conduct (act or omission);

ii.               circumstances or state(s) of affairs; and

iii.              result.

Sometimes, this element requires proof that the conduct, which occurred in required circumstances, yielded or caused a certain result. On other occasions, less frequent in their occurrence, proof of conduct alone is sufficient.”

The Actus Reus and the Mens Rea Must Coincide

“Identifying the starting and ending point of the actus reus of an offence is important for at least two reasons. The first is the substantive requirement that, at some point, the actus reus and mens rea must coincide.

See, for example, R. v. Cooper, [1993] 1 S.C.R. 146.

The second has to do with procedural issues, such as the time frame of the charge and territorial jurisdiction over the offence.

Sometimes, the conjunction or concurrence of the actus reus and mens rea, which makes the offence complete, does not terminate the offence. The conjunction of the two elements essential for the commission of the offence continues. As a result, an accused remains in what might be described as a state of criminality so long as the offence continues.

Bell v. The Queen, [1983] 2 S.C.R. 471, at p. 488.

We describe these offences, such as possession, as continuing offences.”

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to author).
Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

In R. v. Inksetter, the Court of Appeal for Ontario has signalled that while probation may be a component of a sentence for a child pornography offence, probation (even a relatively onerous probation) is very unlikely to reduce what is generally required by imprisonment to satisfy the primary sentencing objectives of deterrence and denunciation.

See R. v. Inksetter, 2018 ONCA 474, at para. 20.

Denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography:

R. v. D.G.F., 2010 ONCA 27 (CanLII), 98 O.R. (3d) 241, at paras. 21-22, 30; R. v. Nisbet, 2011 ONCA 26 (CanLII), [2011] O.J. No. 101, at para. 3; R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563, at para. 7; R. v. Stroempl, 1995 CanLII 2283 (ON CA), [1995] O.J. No. 2772, at para. 9.

Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence.

R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, at p. 87.

The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence.

 R. v. Lacasse, 2015 SCC 64 (CanLII), [2015] 3 S.C.R. 1089, at para. 6.

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (All rights reserved to the author).
Read Full Article
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

An application is a request to a court to make an order.  They are of two types: pre-trial applications and trial applications. 

Commencing an application

Applications are commenced by serving the opposing parties and any other affected party with a completed Form 1 (along with supporting materials), and then filing the application with proof of service at the court office.   Form 1 is found online at www.ontariocourts.ca/ocj/criminal-rules/).

In addition to Form 1, an application will typically include an affidavit/s setting out the facts upon which the application is based.  [FN1] Affidavit evidence is by far the most common form of evidence used for applications.  Other types of evidence include an agreed statement of facts, transcripts, and oral testimony.  Oral testimony is usually not required in most pre-trial applications. 

How many copies of the Application do I need?

Make at least four copies of your application:

1.      A copy for you the Applicant/Counsel to retain.

2.      A copy to be served on the Crown (usually the Crown Office, Ministry of the Attorney General Ontario, which is found at the local courthouse).

3.      A copy to be served on the Trial Coordinator (this copy goes to the application judge);

4.      A copy to be filed at the court office after service on all parties is complete (this copy is appended to the information).

5.      Sometimes an additional copy is required, as any party with an interest in the matter must also be served.  For instance, in a contested application to remove counsel from record, counsel must serve her client, the accused.

How to serve an application

Service of applications may be made in person, by fax or by email.  Hard copies of the documents served must be filed with the court.

     Rule 3.3(1) of Criminal Rules of the Ontario Court of Justice.

The Rules allow for the electronic filing of applications where authorized by a practice direction. [FN2] But until that overdue change comes to your town serve the Crown and the trial coordinator personally, as the Crown’s office and the trial coordinator’s office are inevitably within the same courthouse where you must file the application.  

Applications must be served at least 30 days before the application hearing date.

     Rule 3.1(1) of Criminal Rules of Ontario Court of Justice.

Applications which do not meet the time requirements for service are known in the industry as “short service applications”.  The Court may or may not, at its discretion, hear a short service application. [FN3]

Who Chooses the Application Hearing Date?

For simple pre-trial applications such as removal of counsel of record, bring forward motions, applications to vacate trial, the Applicant (his/her counsel) selects the hearing date, mindful of the rules that applications must be served at least 30 days before the application hearing date, and that, unless ordered otherwise, pre-trial applications are heard at the Ontario Court of Justice at least 60 days before trial.

     See Criminal Rules of the Ontario Court of Justice, Rule 2.4 (1).

Applications such as section 11(b) applications (unreasonable delay), section 276 applications (application to adduce evidence of other sexual activity), and section 278 applications (third party records, Mills regime) are scheduled directly through the trial coordinator’s office.  If you are unaware of the correct scheduling protocol, contact the trial coordinator at the courthouse for assistance.

Where the Applicant is unable to meet the time requirements for service, he/she should specifically include in the relief sought a request for an abridgement of the time limits for serving and/or filing the relevant application material (eg. “An order abridging the time required for service of this application”).  The reason for non-compliance with the Rules should be set out in an affidavit.  It is a good idea to also include whether consent has been sought and obtained.

It is my view that where part of the relief sought in the application includes an order shortening the time otherwise required for service, the Crown cannot refuse to accept service of the application on the basis that it is a short service application.  The authority to hear a short service application (or not) resides in the court. That said, it is very unlikely a court will hear the application where the Crown raises real concerns relating to the lack of timely notice. 

Applications at Courthouses in Toronto

For applications that are not required to be scheduled directly through the trial coordinator:

Scarborough

1911 Eglinton Avenue East

Applications heard any weekday

Courtroom 406 at 10:00 am.

College Park Courthouse

444 Yonge Street—2nd Floor

Applications heard any weekday

Courtroom 503 (plea court) at 10:00 am

Old City Hall Courthouse

60 Queen Street West                  

Applications heard any weekday

Courtroom 112 at 10:00 am.  


1000 Finch
1000 Finch Avenue West, Toronto
Applications heard any weekday
Courtroom 303 at 10:00 am           

[Information current at date of writing, Aug 13, 2018.]

Proof of Service

When you personally serve your application on the Crown, the Crown will endorse acceptance of service on the application itself by signing and dating at least two copies of the applications it receives (one of which it retains).  On the other copies, the Crown may simply stamp that the application has been received, along with the date of receipt. The stamped copies are returned to you.

The trial coordinator will also endorse acceptance of service by stamping the copies of the application “Received” along with the date of receipt. Like the Crown, the trial coordinator will retain one copy and return the other stamped copies to you.  Therefore, the application that you file at the court office will have stamps indicating service on both the Crown Office and the Trial Coordinator. These stamps suffice as proof of service.

Of the remaining copies of the application you have, file the copy which the Crown has signed (and not just stamped “Received”).  

If you are required to serve a non-institutional party (such as the accused), be sure to file an affidavit of service attesting to the fact that the party was served, unless that party endorses directly on the application that service is accepted.  

Hearing dates

[FN1] Where the Application is more extensive than just Form 1 and a brief supporting affidavit an Application Record should be created.  The document is bound, and will include a coverpage, backpage, index, and tabs separating the different components of the application.  Ideally, its pages should be sequentially numbered. Where used, a book of authorities and factum may be provided as separately bound documents.

[FN2] Rule 3(2) of Rules. Practice directions are issued by the Chief Justice or her/his delegate and are posted online at www.ontariocourts.on.ca.  They may be province-wide, regional, or local in scope.

[FN3] Under Rule 5.3, the Court may excuse non-compliance in order to ensure that the fundamental objectives of the Rules are met.  Additionally, the Court has the inherent power to control its own process.

Stuart O’Connell, O’Connell Law Group,  www.leadersinlaw.ca (All rights reserved to author).

Read Full Article

Read for later

Articles marked as Favorite are saved for later viewing.
close
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Separate tags by commas
To access this feature, please upgrade your account.
Start your free month
Free Preview