We’re proud to announce the newest members of our team at Daniel Brown Law: Jason Dos Santos, Ema Ibrakovic, and Thomas McCann. Each brings unique experience and expertise that will further strengthen our ability to deliver exceptional criminal defence to our clients.
Jason Dos Santos — Partner & Experienced Trial Lawyer
Jason joins the firm as a Partner, bringing extensive courtroom experience and a proven record of defending complex criminal cases. Over the course of his career, he has appeared in more than one thousand criminal trials before both the Ontario Court of Justice and the Superior Court of Justice.
Jason has defended individuals charged with the most serious offences, including first-degree murder, organized crime, firearms and drug offences, sexual assault, domestic assault, and impaired driving. His strategic advocacy, combined with his steady presence in high-stakes litigation, makes him a formidable voice for his clients.
At Daniel Brown Law, Jason strengthens our trial practice and serves as a mentor to the next generation of defence lawyers, ensuring that every client benefits from his deep knowledge and sharp courtroom skills.
Ema Ibrakovic — Associate Lawyer with Appellate Insight
Ema joins us as an Associate Lawyer, bringing with her a wealth of academic and practical experience. She has clerked at the Ontario Superior Court, the Court of Appeal for Ontario, and the Supreme Court of Canada, providing her with rare insight into judicial decision-making at every level of court.
Graduating as Valedictorian from the University of Toronto Faculty of Law, Ema excelled in competitive mooting, competing in the Gale Cup and Grand Moot, and later coached law students in appellate advocacy.
Her practice focuses on both trials and appeals, where she applies her appellate expertise and sharp analytical skills to develop strategic arguments. Clients benefit not only from her intellectual rigour, but also from her commitment to ensuring they feel heard and supported throughout the legal process.
Thomas McCann — Associate Lawyer with Prosecution & Defence Experience
Thomas expands our litigation team as an Associate Lawyer, with experience on both sides of the courtroom. Before joining Daniel Brown Law, he worked as an Assistant Crown Attorney, prosecuting organized crime and serious drug cases. This perspective allows him to anticipate prosecutorial strategies and craft defence approaches that are proactive and effective.
A graduate of Osgoode Hall Law School, Thomas was a leader in the criminal law division of the school’s legal clinic, where he represented vulnerable clients. Since then, he has conducted jury trials, preliminary inquiries, constitutional challenges, and bail hearings, giving him wide-ranging experience across the criminal law spectrum.
Thomas is passionate about guiding clients through the justice system with skill and compassion, ensuring they are fully supported at every stage of their case.
At Daniel Brown Law, we know that every client’s case deserves both skill and dedication. With Jason, Ema, and Thomas joining our team, we’ve expanded our depth of trial and appellate experience, enhanced our strategic insight, and reinforced our commitment to client care.
Please join us in welcoming these three outstanding lawyers to the firm. We look forward to the contributions they will make to our clients and to the broader legal community.
About Daniel Brown Law
For nearly two decades, we have represented both organizations and individuals in criminal litigation at trial and on appeal. Our firm has consistently been recognized as one of Canada’s top criminal law boutiques by Canadian Lawyer Magazine and nationally ranked among the country’s best criminal defence firms by Best Lawyers. We remain committed to delivering superior advice and advocacy, guided by the same innovation and dedication on which our firm was founded. Our lawyers regularly appear before trial courts across Ontario, the Court of Appeal for Ontario, and the Supreme Court of Canada in complex, serious, and precedent-setting cases.
Alex Formenton was barely 18 years old and on the verge of a promising professional hockey career that came to a screeching halt on June 18, 2018, after what was meant to be a night of celebration with his coaches and teammates.
For the last seven years, he has lived under a dark cloud. The public now knows what Alex has always maintained: that he is innocent of this false allegation – but only after his case erupted into a massively publicized social cause.
Alex’s face has appeared on millions of screens and newspaper pages. There can be little doubt that an untold number of people believed he was guilty simply because he had been accused of a crime, long before any evidence was presented in court.
This rush to judgment – to believe the worst of people – is one of the most regrettable of human traits. So, too, is our reluctance to change that opinion, even when it is proved wrong after a full and fair trial.
Notwithstanding Justice Carroccia’s unequivocal exoneration of Alex, there will inevitably be those who will still believe that he committed a crime.
Nobody in room 209 that night has emerged unscarred. The criminal court process is a bruising experience for anyone, but never more than when a case is a high profile and incorporates such high stakes.
In Alex’s case, he was condemned and felt banished from society. This experience has been crushing. Nevertheless, the impact of this case has changed Alex as a person and has matured him well beyond his years. It is inevitable that some people will not forgive Alex for what he was accused of doing. Others, however, will understand that this tragic matter rightly comes to an end today.
Alex has never minimized his role in this sexual encounter or denied engaging in consensual sex with the complainant. He fully cooperated with the police investigation and provided investigators with an honest account of the events that unfolded in his hotel room back in 2018.
Alex’s narrative is not conjecture. His police statement was corroborated at trial by several Crown witnesses, by video evidence, and was even supported in large measure by the complainant’s own testimony.
While no police investigation is perfect, the London Police got it right seven years ago by deciding it would be a mistake to charge Alex. The evidence always demonstrated that he did not commit a sexual assault. However, political and media pressure brought this allegation back into the spotlight in 2022 and the Crown Attorney knowingly forged ahead with a hopeless prosecution.
Besides the human toll to everyone involved, this lengthy legal proceeding exhausted scarce police and court resources that could have been redirected elsewhere to support our already overburdened justice system.
Alex, his family, and his defence team are grateful to Justice Carroccia for carefully considering all the evidence presented at this trial with an open mind. She has reached a just and correct verdict that must be respected.
Nobody disputes that sexual assault is a terrible, societal plague, and Alex sincerely hopes that this prosecution does not stop the quest to combat sexual violence and to bring genuine offenders to justice.
However, an accusation is just that – an accusation. This case stands for the fact that we must never lose sight of the fundamental right to be presumed innocent.
Now more than ever before, a fair response to sexual assault claims requires a balanced perspective and public trust in the decision making of the courts. Anything less only harms the justice system, and the cause of eliminating sexual violence.
Sincerely,
Daniel Brown & Hilary Dudding.
About Daniel Brown LawLLP:
For two decades, we have represented organizations and individuals in criminal litigation at trial and on appeal. Our firm has repeatedly been recognized as one of Canada’s top criminal law boutiques by Canadian Lawyer Magazine and nationally ranked as one of Canada’s best criminal defence firms by Best Lawyers. We remain dedicated to superior advice and advocacy using the same innovation and dedication on which our firm was founded. We regularly appear before trial courts across the province, the Court of Appeal for Ontario, and the Supreme Court of Canada on complex, serious, and precedent-setting cases.
Daniel Brown Law LLP is a Toronto-based boutique law firm specializing in criminal trials and appeals. We are looking for an associate lawyer to join our office.
About Daniel Brown LawLLP:
For nearly two decades, we have represented organizations and individuals in criminal litigation at trial and on appeal. Our firm has repeatedly been recognized as one of Canada’s top criminal law boutiques by Canadian Lawyer Magazine and nationally ranked as one of Canada’s best criminal defence firms by Best Lawyers. We remain dedicated to superior advice and advocacy using the same innovation and dedication on which our firm was founded. We regularly appear before trial courts across the province, the Court of Appeal for Ontario, and the Supreme Court of Canada on complex, serious, and precedent-setting cases.
Job Description:
We are seeking an associate with a passion for criminal defence work to join our growing team of trial and appeal lawyers. The ideal candidate is a 0-7 year call, interested in managing and litigating their own assigned trial and appellate matters and acting as co-counsel for more complicated criminal cases.
We are looking for a lawyer who thinks critically, works well with a team, and can effectively manage their time on a wide range of tasks. While prior criminal law experience is an asset, it is not a requirement for the position.
The associate’s work assignments would include:
Conducting initial consultations with clients to assess client goals and provide preliminary legal advice;
Representing clients throughout their cases, including pre-trial negotiations and court preparation;
Drafting applications, factums, and other court documents;
Legal research;
Conducting bail hearings;
Arguing contested applications;
Representing clients at trial or on appeal; and
Legal writing including content for books, papers, and articles.
We take mentorship seriously. In addition to working collaboratively on the firm’s files alongside senior lawyers, we will regularly meet to discuss emerging legal issues and trial strategy as well as professional development. The chosen candidate will have the opportunity to learn how to build all aspects of their criminal defence practice from the ground up.
We encourage applications from equity-seeking groups.
Compensation:
The salary for this position will be commensurate with the applicant’s skills and experience and ranges from $90,000 to $150,000, plus benefits, insurance, and Law Society fees. This position is eligible for annual salary review and the potential for both bonuses and profit-sharing opportunities.
How to Apply:
Please forward a cover letter, resumé, writing sample, transcripts, and two reference letters or the names of two referees to Daniel Brown at brown@danielbrownlaw.ca.
All applications will be held in confidence. Only those candidates selected for an interview will be contacted.
Daniel Brown Law LLP is thrilled to announce the addition of Maxime Bédard who joins us as an associate lawyer.
Maxime Bédard
Maxime’s defence practice focuses on both criminal trials and appeals.
Prior to joining Daniel Brown Law, Maxime worked as a judicial law clerk for Justice Kasirer at the Supreme Court of Canada and for Justice Gagné at the Quebec Court of Appeal. These experiences provided Maxime with unique insight into crafting successful appellate arguments that assist him with approaching legal problems from a judicial perspective, combining rigorous analysis with a humane approach to the law.
Maxime also honed his skills as a litigator while working as an associate at one of Canada’s premier national law firms where he contributed to a variety of criminal and constitutional law files.
Maxime graduated from Laval University’s Faculty of Law as the class valedictorian and served as the President of the Law Student Association. Raised in a bilingual environment, Maxime is perfectly equipped to provide legal representation in both French and English
For nearly two decades, Daniel Brown Law LLP has represented organizations and individuals in complex criminal litigation at trial and on appeal. Recognized as one of Canada’s best criminal defence boutiques by Canadian Lawyer Magazine, we remain dedicated to superior advice and advocacy through the same innovation and dedication on which our firm was founded.
Daniel Brown Law LLP is thrilled to announce the addition of two lawyers to the firm. Samantha Bondoux and Robert Nanni have joined us as associates.
Samantha Bondoux
Samantha’s practice focuses on criminal trials and appeals and she represents those charged with or convicted of all Criminal Code offences.
Before joining Daniel Brown Law, Samantha worked for the Ministry of the Attorney General at the Crown Law Office – Criminal (Toronto) where she worked on complex criminal appeals including appeals of serious offences of sexual assault, drug trafficking, and first-degree murder. She also clerked for some of Canada’s most respected criminal law judges at the Court of Appeal for Ontario, including Justices Simmons, Trotter, and Paciocco.
Samantha completed her law degree at Queen’s University where she graduated with the Silver Medal in Law for second highest standing, and received a number of awards including course prizes in constitutional law and the law of international crime and armed conflict. Samantha has also completed certificate in international law focusing on international criminal law, and she has a Bachelor of Science from McGill University. Learn more about Samantha here.
Robert’s practice focuses on criminal trials and appeals. His approach to advocacy is informed by his clerkship at the Court of Appeal for Ontario, where he clerked for Associate Chief Justice Fairburn, Justice Coroza, and Justice Favreau.
Prior to joining Daniel Brown Law, Robert worked as a litigation lawyer at a prestigious law firm in New York City. During that time, Robert assisted with a variety of cases, including pro bono matters involving wrongful convictions and prisoners’ rights, through which he continued to develop his advocacy skills.
Robert completed a joint Juris Doctor/Master of Business Administration at the University of Toronto. Robert also holds an Honours Bachelor of Science degree in chemistry and psychology at Western University, where he graduated as the gold medalist of his undergraduate program. Learn more about Robert here.
For nearly two decades, Daniel Brown Law LLP has represented organizations and individuals in complex criminal litigation at trial and on appeal. Recognized as one of Canada’s best criminal defence boutiques by Canadian Lawyer Magazine, we remain dedicated to superior advice and advocacy through the same innovation and dedication on which our firm was founded.
Are you a highly organized and detail-oriented individual with a passion for criminal law? Daniel Brown Law LLP, a Toronto-based law firm specializing in criminal trials and appeals is currently seeking a motivated and skilled Legal Assistant to join our team. As a Legal Assistant, you will play a crucial role in supporting our lawyers and ensuring the smooth operation of our legal practice. If you are looking for a dynamic work environment that offers the opportunity for professional growth and development, we encourage you to apply.
Client Intake: Assist in the initial client intake process, gather essential information, and maintain accurate client records.
Scheduling: Manage lawyers’ calendars and schedule client meetings, court appearances, and other appointments efficiently.
Financial Support: Process client payments, track invoices, and facilitate timely payments for vendors and service providers.
Court Filings: Prepare, review, and manage court filings, ensuring compliance with all court rules and procedures.
Office Management: Oversee the inventory and ordering of office supplies, ensuring that the office is well-stocked and organized at all times.
Equipment Maintenance: Coordinate the maintenance and repair of office equipment to ensure smooth operations.
File Management: Organize and maintain legal documents, electronic files, and records for trial and appeal matters, ensuring they are readily accessible.
Trial and Appeal Support: Provide administrative support during trial and appellate proceedings, including preparation of trial binders and exhibits.
Communication: Maintain professional and effective communication with clients, court personnel, and external parties.
Qualifications:
Education: Bachelor’s degree and/or law clerk or paralegal certification is preferred but not mandatory.
Experience: Prior experience as a legal assistant or in a related legal support role is advantageous but we will consider candidates of all experience levels. The ideal candidate will have 0-5 years of related experience.
Organizational Skills: Strong organizational skills and the ability to manage multiple tasks simultaneously are essential.
Technological Skills:
Attention to Detail: Keen eye for detail and accuracy when handling legal documents and correspondence.
Communication: Excellent written and verbal communication skills to interact with clients and colleagues effectively.
Technology Proficiency: Comfortable working with legal software, document management systems, Adobe Acrobat and MS Office Suite. Familiarity with the criminal court system, Legal Aid Online, and/or PCLaw is an asset.
Confidentiality: Uphold the highest level of confidentiality and integrity when dealing with sensitive information.
Adaptability: Ability to adapt to changing priorities and work well under pressure.
Team Player: Collaborative and willing to assist colleagues when necessary.
Benefits:
The expected salary range is $45,000-50,000 and includes a robust health benefits package
Four weeks of paid vacation
Opportunities for professional development and training
Positive and inclusive work environment
Chance to work and collaborate with experienced lawyers on diverse and challenging cases
How to Apply: If you are interested in this Legal Assistant position, please submit your resume and a cover letter detailing your relevant experience and why you believe you are the ideal candidate for the role. Email your application to Rylie Burns at burns@danielbrownlaw.ca. While we appreciate the interest of all applicants, only those who are selected for an interview will be contacted.
We look forward to reviewing your application and welcoming a dedicated Legal Assistant to our team! Application deadline: August 14, 2023 and the expected start date is flexible but may commence as soon as September 1, 2023.
Note: The job responsibilities and qualifications mentioned above are intended to describe the general nature and level of work for this position. They are not an exhaustive list of all duties, responsibilities, and skills required. The successful candidate may be required to perform additional tasks as needed to meet the needs of the legal practice.
About Daniel Brown LawLLP
For nearly two decades, Daniel Brown Law LLP has represented organizations and individuals in criminal litigation at trial and on appeal. Recognized as one of Canada’s best criminal defence boutiques by Canadian Lawyer Magazine, we remain dedicated to superior advice and advocacy through the same innovation and dedication on which our firm was founded. We regularly appear before courts across the province, the Court of Appeal for Ontario and the Supreme Court of Canada on complex, serious, and precedent-setting cases.
Forcible Confinement Lawyers Toronto – How to Defend Forcible Confinement Charges
Forcible confinement is a serious offence under Canadian criminal law, and can result in severe legal consequences if convicted. In this blog post, we will explore the legal definition of forcible confinement, potential defences, the court process, and possible legal consequences if convicted of this offence.
A forcible confinement allegation may be accompanied by other charges including assault, sexual assault, uttering threats or mischief, especially in the context of a domestic dispute. It is not uncommon for an allegation of forcible confinement to be raised during a divorce and custody dispute because a criminal claim of this nature can typically assist a complainant with obtaining an advantage in family law proceedings. Allegations of forcible confinement can be challenging to defend because there are rarely other witnesses or physical evidence to support or refute the claim.
Our team of forcible confinement lawyers has successfully defended hundreds of domestic related allegations in all corners of Ontario. We regularly appear in courtrooms across the Greater Toronto Area in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.
What is forcible confinement?
According to Canada’s Criminal Code, forcible confinement is defined as intentionally confining, imprisoning, or forcibly seizing another person without their lawful authority. This means that if someone intentionally restrains or confines another person against their will, they could be charged with forcible confinement.
What must the Crown Attorney prove to establish the crime of forcible confinement?
In a forcible confinement case, the Crown must prove several elements of the offence beyond a reasonable doubt in order to secure a conviction. Specifically, the Crown must establish the following:
The accused intentionally confined, imprisoned, or forcibly seized another person without lawful authority;
The confinement was against the will of the victim;
The accused had the necessary intent to commit the offence, which means they acted purposefully or with knowledge that their actions would result in the confinement of the victim.
It is important to note that the Crown must prove all three elements of the offence beyond a reasonable doubt in order to secure a conviction. This means that the evidence presented must be sufficient to convince the judge or jury beyond a reasonable doubt that the accused is guilty of committing the crime.
If the Crown is unable to prove any one of these elements beyond a reasonable doubt, the accused may be acquitted of the offence. It is important to note that an accused person is presumed innocent until proven guilty, and it is the burden of the Crown to prove the case against them.
What are legal defences to forcible confinement?
It is important to note that there are certain legal defences available in cases of forcible confinement. For example, if the accused can demonstrate that they were acting in self-defence or in the defence of others, or that they had a reasonable belief that they had the lawful authority to confine the person, they may be able to avoid a conviction for forcible confinement.
It is also possible to argue that the complainant was not confined, the complainant was not a credible witness, gave consent to be confined or that the complainant misidentified the perpetrator of the allegation.
In terms of the court process, forcible confinement is considered a serious offence and will typically be prosecuted more vigorously by the prosecutor. The accused will have the right to a fair trial, which may include the calling of witnesses, cross-examination of the prosecutor’s witnesses, and the presentation of evidence and witnesses that undermine the allegation.
What are the legal consequences of a forcible confinement conviction?
If convicted of forcible confinement, the legal consequences can be severe. Under the Criminal Code, the maximum penalty for this offence when prosecuted by indictment is 10 years in prison. The maximum jail sentence is reduced to two years less a day when the case is prosecuted on summary conviction. It is important to note that this is the maximum penalty, and the actual sentence imposed will depend on a variety of factors, including the severity of the offence, the presence of aggravating or mitigating factors, and the offender’s criminal record and personal circumstances. In cases where the offence involves aggravating factors, such as the use of a weapon or threats of violence, or if the victim is a vulnerable person, such as a child or an older person, the sentence is likely to be more severe. Conversely, if the offender has no prior criminal record and is able to demonstrate remorse or other mitigating factors, the sentence may be more lenient. Ultimately, the decision on the appropriate sentence will be made by the judge, who will consider all relevant factors in the case before imposing a sentence.
Additionally, a conviction for forcible confinement can have long-lasting consequences, including a criminal record and difficulty obtaining employment or travelling internationally.
In conclusion, forcible confinement is a serious offence under Canadian criminal law that can result in significant legal consequences if convicted. If you are facing charges of forcible confinement, it is important to seek legal advice from a qualified criminal defence lawyer to understand your options and potential defences. Call the lawyers at Daniel Brown Law at (416) 297-7200 to consult with you about a forcible confinement allegation.
Daniel Brown Law LLP is thrilled to announce the addition of Teodora Pasca who joins us as an associate.
Teodora Pasca
Teodora’s practice focuses on criminal trials and appeals. She believes everyone in the criminal justice system should be treated with dignity and respect, and enthusiastically takes on cases involving all types of criminal charges.
Teodora completed her Juris Doctor at the University of Toronto, where she was constantly on her feet as an advocate in the moot court program. Teodora also holds a Bachelor’s and Master’s degrees in Criminology from the University of Toronto.
While in law school, Teodora represented marginalized clients in criminal court on behalf of Downtown Legal Services and assisted with wrongful conviction review applications at Innocence Canada. Teodora understands that power dynamics within the criminal justice system often work against her clients — and she is committed to putting up a fight on their behalf.
Prior to joining Daniel Brown Law, Teodora served as a law clerk to judges of the Ontario Superior Court of Justice, assisting with a number of complex criminal trials. She also worked for the United Nations in the judicial chambers of a criminal tribunal in The Hague, Netherlands.
Beginning in August of 2023, Teodora will take a brief leave from Daniel Brown Law to clerk for the Honourable Justice Sheilah Martin of the Supreme Court of Canada.
For nearly two decades, Daniel Brown Law LLP has represented organizations and individuals in complex criminal litigation at trial and on appeal. Recognized as one of Canada’s best criminal defence boutiques by Canadian Lawyer Magazine, we remain dedicated to superior advice and advocacy through the same innovation and dedication on which our firm was founded.
Thursday morning, the Supreme Court of Canada released its much-anticipated decision regarding the constitutionality of the Bill C-51 Amendments. In R v. J.J. ,the majority decision upheld the amendments as constitutional in their entirety, while at the same time offering some clarity on how to interpret them. The Supreme Court’s decision stands to impact thousands of sexual offence cases currently in the system. Below are some of the main takeaways.
The Definition of “Record”
The trial judge must review “both the content and context” of a possible defence record to determine whether it engages a reasonable expectation of privacy such that the s. 278.92 is engaged. The first step is looking at the content of the evidence. No category of evidence is excluded, meaning electronic communications between the complainant and the accused are captured. At para. 49: “Records do not attract a reasonable expectation of privacy simply because of the medium used to convey them. The more important consideration is the sensitivity of the information contained in the record.”
The trial judge must make a determination about whether something is a “record” at stage 1 of the application process under s. 278.93. Because the possible value of impeachment material is often unclear until mid-trial, this means that trial judges will increasingly be tasked with screening potentially irrelevant evidence ahead of time.
However, an argument may be available that what constitutes a “record” should be narrowly construed. At para. 53, the Court states: “the scheme is not intended to catch more mundane information, even if such information is communicated privately. Moreover, given the accused’s right to make full answer and defence, mere discomfort associated with lesser intrusions of privacy will generally be tolerated. In this context, a complainant’s privacy in open court “will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self”. Similarly, at para. 54: “a non-enumerated record will fall within the definition of s. 278.1 if it contains information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being.” Finally, at para. 56: “mundane information such as general emotional states, everyday occurrences or general biographical information would typically not give rise to a reasonable expectation of privacy.”
The Supreme Court emphasized that, like for s. 276 evidence, the narrow category to which the record regime applies is part of the gateway to its constitutionality. At para. 162, the Court concludes that “screening in the context of private record applications applies to a narrow set of evidence that implicates important interests of complainants in sexual offence cases and has the potential to create serious prejudice. Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial”.
The Supreme Court was clear that courts must also consider the context in which the record was shared – for example, why the complainant shared the information, and who she shared the information with. Consider, for example, where information was shared with someone with whom the complainant was in a relationship of trust or authority, and whether the information was intended to be shared privately or publicly disseminated. At para. 60: “Records produced in the private domain (e.g., one-on-one communications between the complainant and accused) may attract an enhanced reasonable expectation of privacy; records created or obtained in the public domain, where they could be accessed by multiple people or the general public (e.g., social media or news media), are less likely to attract a reasonable expectation of privacy.”
Note that material may engage the s. 278.92 records regime even if the complainant is not a participant in it. In other words, something might be a record where the evidence is about the complainant. Para. 63: “The complainant may be the sender or recipient of the communication, or the content of the communication pertains to the complainant.”
Finally, note that unlike for s. 276 evidence, even evidence that captures the subject matter of an offence will likely engage the records regime. See paras. 65-67, which highlights that explicit communications, videos, or photographs implicating the subject matter of the charge are “likely” to require a records application.
A “Records” Application is Required When “Adducing” Information
The Supreme Court has clarified that a s. 278.92 records application will be required even where the defence seeks to ask questions about the content of a record, but not adduce the record itself as an exhibit or for impeachment purposes. The situation remains unclear when an accused was formerly in possession of a record but no longer has it – e.g. deleted text messages or emails. At para. 76, the Court states: “Specifically, under the record screening regime, the accused must screen records when they seek to use information during a hearing that they specifically learned from those records. If they have independent knowledge of the information, gathered from sources that do not rely on the complainant’s private records, they may use this information without invoking the record screening regime (subject to other applicable evidentiary rules and trial procedures).” We anticipate this will be the subject of further litigation.
Complainant’s Participatory Rights at Stage 1 and Stage 2
The Supreme Court confirmed that a complainant has no right to participate in a stage 1 hearing under s. 278.93. However, at para. 92, the Supreme Court suggests that the Crown should provide “a general description of the nature of the record and of its relevance to an issue at trial to the complainant and/or the complainant’s counsel…At the same time, only a general description is required at this stage because it is not yet clear whether a Stage Two hearing involving the complainant will be required.” In other words, although the complainant cannot appear and make submissions at a stage 1 hearing, the Crown is permitted to share information with them about the details of the application at this stage.
The Court confirmed that the defence application record should typically be disclosed to the complainant before a stage 2 hearing under s. 278.94 to allow them to meaningfully participate in the process. Note, however, that the trial judge retains a residual discretion to order that an application record not be provided directly to the complainant. At para. 96, the Court states: “Importantly, the presiding judge retains the discretion to direct that the application not be disclosed to the complainant or that portions of it be redacted. This may arise based on a party’s or the judge’s own concerns about the impact of disclosure on trial fairness.” Finally, the Court suggested that the application record should not be provided to the complainant in a confidential way. At paras. 173-175, the Court suggests that the Crown should be involved with the process of disclosing an application record to the complainant and consulting with them about it. As always, should anything arise as a result of that consultation, that evidence must be disclosed to the defence.
Finally, the Supreme Court confirmed that complainant counsel has no right to cross-examine an accused on an affidavit filed at stage 2 of the application hearing, and that this ability is reserved for the Crown only.
Record Applications Should be Brought Pre-Trial
The Supreme Court held that mid-trial records applications should be the exception, not the rule. However, the court leaves open the possibility of bringing an application during cross-examination where advanced disclosure “will genuinely negate the efficacy of cross‑examination”: at para. 190. In reaching this conclusion, the Court was concerned about trial efficiency. At para. 86, it states: “However, as a general rule, private record applications should be brought at the pre-trial stage of the proceedings. There is good reason for this. If mid-trial applications become routine, this would result in frequent adjournments, significant delays, scheduling difficulties – particularly in jury trials – and potential unfairness to the accused. Mid‑trial applications could also harm complainants and discourage the reporting and prosecution of sexual offences.”
Final Notable Issues
A few subsidiary points are worth noting. First, at para. 73, the Supreme Court held that the Crown is not bound by the records regime. In other words, the Crown has no obligation to bring a records application, unlike where the Crown intends to lead evidence of the complainant’s other sexual activity and is required to bring a common law Seaboyer application.
Second, the Supreme Court commented on the motion for directions procedure that has been widely used to date for litigating whether evidence engages the record regime. The Court stated that motions for direction should be rare but may be appropriate in certain circumstances. At para. 103, the Court states that “they are purely a discretionary exercise of the presiding judge’s trial management power.” Note that, at para. 105, the Court commented that the trial judge retains discretion to give a complainant standing at this type of motion.
Finally, as a procedural point, the Supreme Court confirms that complainant appeals of stage 2 hearings by way of certiorari applications or by way of appeal directly to the Supreme Court (as was done by the complainant A.S. in this case) should be rare. At para. 110, the Court comments that: “interlocutory appeals arising out of s. 276 or private record applications should be rare and restricted to clearly exceptional circumstances.”
Daniel Brown Law LLP is thrilled to announce the addition of two lawyers to the firm. Hilary Dudding has joined our team as a partner and James Bray has joined us as an associate.
Hilary Dudding
Over the last two decades, Hilary has defended almost every type of criminal charge from theft to murder and has developed a special proficiency defending individuals charged with sexual assault, drug offences, and human trafficking. She is an accomplished and adept professional ready to guide her clients through rough terrain.
Hilary is a graduate of the University of Toronto’s Faculty of Law and obtained her Master of Laws in Criminal Law and Procedure from Osgoode Hall Law School.
Prior to joining Daniel Brown Law, Hilary was a partner at another well regarded criminal defence firm in Toronto where she defended clients in a wide range of challenging trials and appeals. Learn more about Hilary here.
James practices in the areas of criminal law, constitutional law and regulatory defence. He appears at all levels of court in Ontario and assists clients both at trial and on appeal. James’ practice includes defending professionals at regulatory hearings, defending sexual offences and extradition matters.
Prior to joining Daniel Brown Law, James worked as a lawyer at a top boutique criminal defence firm in Toronto where he handled a wide variety of trial and appeal cases.
James is a graduate of the Schulich School of Law at Dalhousie University and previously studied at the University of Oxford as a Rhodes Scholar. Learn more about James here.
For nearly two decades, Daniel Brown Law LLP has represented organizations and individuals in complex criminal litigation at trial and on appeal. Recognized as one of Canada’s best criminal defence boutiques by Canadian Lawyer Magazine, we remain dedicated to superior advice and advocacy through the same innovation and dedication on which our firm was founded.
Thursday morning, the Supreme Court of Canada released its much-anticipated decision regarding the constitutionality of the Bill C-51 Amendments. In 
