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Restricting a Young Person’s Online Access to Pornography

  Written by Stuart O’Connell (Barrister/Solicitor), Toronto. There is a fantastic online safety ad created by the New Zealand government as part of its public awareness campaign, Keep It Real Online . The 2020 ad has rightly gone viral and is one of my all-time favourites. In it two adult film actors (played by Cassandra Woodhouse and Paris Theodosiou) arrive naked at the front door of a young teenager’s house and tell his stunned mother “Hiya …We just came over because your 14-year-old son has been watching us…online… . Online we just get to it, we never really talk about consent. …We usually perform for adults but your son’s just a kid.” The dumbfounded son emerges from inside the house holding his laptop. His shocked mother (hair wrapped in a towel) reels from the disclosure that her son has been accessing pornography from his computer, and from the fact that two nude people have come to her door to explain—with hilarious nonchalance—that the online pornographic scenarios they are
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Criminal Record Suspension (Pardon): Why you Need One

Most Canadians would be likely be surprised to learn just how many of their fellow citizens have a criminal record.     According to Public Safety Canada, 3.8 million Canadians had criminal records in 2016. [FN1] To give you a sense of just how many among us have criminal records, the current population of Canada is approximately 38 million. The percentage of Canada’s adult population with a criminal record (approximately 10%) does not appear to have changed significantly in the last two decades.   [FN2] Most of those who have a criminal record go on to live law-abiding lives (or on a less optimistic view: are not convicted again if they do not).   But as they go forward, they can find their options limited. There is stigma to having a criminal record. That will surprise few. Consider how many people you know have disclosed to you that they have a criminal record.   If you are like me (at least outside my professional work as a defence lawyer), very few.   Yet it is likely that w
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Location: Toronto, ON, Canada
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Defence Bar: Help Your Judge Help You

The standard upon which sufficiency of reasons is to be assessed in the criminal context is whether the reasons are inadequate and if so whether they prevent appellate review:  R. v. Gagnon ,  2006 SCC 17 , [2006] 1 S.C.R. 621, at para  13 ;  R. v. Sheppard ,  2002 SCC 26 , [2002] 1 S.C.R. 869, at para.  20 ;  R. v. Slatter ,  2019 ONCA 807 , 452 D.L.R. (4th) 4, at paras.  107-111 .   The reasons must show why the trial judge made a certain decision:   R. v. Vuradin ,  2013 SCC 38 , [2013] 2 S.C.R. 639, at para.  15 .   As R. v. Suganaqueb , 2022 ONCA 193 demonstrates, these standards for the sufficiency of reasons operate even when the accused consents to the imposition of an order.  In Suganaqueb , the accused consented to the imposition of a dangerous offender designation (and an indeterminate sentence).   The sentencing judge was satisfied that the accused’s consent was informed and volitional.   The accused thereafter appealed on the basis that the sentencing judge
Location: Toronto, ON, Canada
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Convicting an Accused on an Unexplored Theory of Liability

Subject:  Unexplored theory of liability--trial fairness--fundamentally unfair to convict an accused person on a theory of which they are entirely unaware. At the very least, a trial judge ought to  alert trial counsel to the possibility of a conviction on a theory of liability which the Crown has not explicitly advanced nor which can be fairly inferred as having being put in play from the argument and evidence presented by the Crown.  The trier of fact is not confined to the Crown’s theory in determining liability. As a general principle, a conviction may be based on an alternative theory of liability not advanced by the Crown so long as it falls within the wording of the indictment and is supported by the evidence.   However, the application of this principle is not without constraint. In particular, this principle does not address the corresponding principle of trial fairness . An accused person is entitled to know the case that they are being asked to meet. It is fundamentally un
Location: Toronto, ON, Canada
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Inadmissible Anecdotal Evidence or Admissible Experience-Based Knowledge?

From time-to-time, police officers will testify as experts on the basis of expertise that has been obtained through practical experience on the job over many years. The boundaries of any proposed expert opinion must be carefully delineated.   As well, t he trial judge must ensure that the expert stays within the bounds of their expertise and that the evidence is properly the subject of expert evidence.   The guilt or innocence of accused persons that the police officer had encountered in the past is generally not legally relevant to the accused’s guilt or innocence. [FN1] In R. v. J.T ., 2021 ONCA 922 (CanLII), the Appellant argued that unlawful pornography had been automatically downloaded onto his computer. The forensics police officer gave evidence that in his experience he had never seen child pornography end up on a computer in an automatic fashion. The judge relied on this evidence and ultimately convicted the accused.  The admission and reliance of the evidence was challeng
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Location: Toronto, ON, Canada
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Global Sentences

In Canada, the phrase “global sentence” is used to describe a single sentence that reflects the cumulative culpability for all offences on which the offender is sentenced.     (In the US, this type of aggregate sentence is termed a “unitary” sentence). The practice of imposing a global sentence is generally discouraged outside of the context of reducing the total sentence for multiple count convictions to ensure that the sentence meets the totality principle. But even here, the sentencing judge begins by determining the appropriate sentence for each offence. See R. v. Elliott , 2012 ABCA 214 (CanLII) at para 7 for a quick summary of sentencing in multiple count situations.  Judges should impose a sentence on each individual counts in order to determine the overall appropriate sentence.   See section 725(1)(a) of the Criminal Code.   This is so irrespective of whether the sentences are to be served consecutively or concurrently.             R. v. Taylor , 2010 MBCA 103 (CanL
Location: Toronto, ON, Canada
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Capacity to Consent to Sexual Activity

There can be no consent to sexual activity without the capacity to consent.   For a complainant to be capable of providing her subjective consent to sexual activity, she must have the capacity to consent , that is, at the time of the sexual activity she must have an operating mind capable of understanding four things: 1.      the physical act; 2.      that the act is sexual in nature; 3.      the specific identity of the complainant’s partner or partners; and 4.      that she has the choice to refuse to participate in the sexual activity.               R. v. G.F ., 2021 SCC 20 (CanLII) at para 57.   The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. One route for the Crown to establish the third component of the actus reus (absence of consent) is for it prove beyond a reasonable doubt the complainant’s absence of capacity to consent in relatio
Location: Toronto, ON, Canada
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