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SCC Upholds  Bill C51’s Sexual Offence Regime as Constitutional

SCC Upholds Bill C51’s Sexual Offence Regime as Constitutional

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.”

 

We’re Hiring an Associate

We’re Hiring an Associate

Daniel Brown Law LLP, a Toronto-based boutique law firm specializing in criminal trials and appeals, is looking for an associate lawyer for our Toronto office.

About Daniel Brown Law LLP

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.

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 0-5 year call, interested in managing and litigating their own assigned trial and appellate matters, as well as acting as second chair for all kinds of criminal cases.

We’re 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’s not a mandatory requirement for the position.

The associate’s work assignments would include:

  • Conducting initial consultations with clients to assess client goals and provide legal advice
  • Representing clients throughout their case, 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 appeals
  • Legal writing including content for books, papers and articles

Daniel Brown Law takes 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 also get an 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 range for this position will be commensurate with the applicant’s skills and experience, plus benefits, insurance, and Law Society fees. This position is eligible for annual salary review and the potential for both bonus and profit-sharing opportunities.

How to apply:

Apply by forwarding a cover letter, resumé, writing sample, transcripts, and two reference letters or the names of two referees to Daniel Brown at [email protected]. All applications will be held in confidence. Only those candidates selected for an interview will be contacted.

Application Deadline: May 20, 2022

Start date: Summer 2022 (though flexible)

We’re Hiring an Associate

Daniel Brown Law Welcomes Two New Lawyers

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

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 Bray

James Bray

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.

We’re Hiring an Associate

Daniel Brown Law Welcomes Our Newest Partners

Daniel Brown Law LLP is excited to announce that Colleen McKeown, Andrew Bigioni and Lindsay Board have joined our partnership. We wish them all ongoing success as they continue their practices as partners in the firm.

Colleen McKeown

Colleen McKeown

Colleen practices criminal and constitutional law with a focus on criminal appeals. She has argued appeals at all levels of court in Ontario and has appeared at the Supreme Court on behalf of the Criminal Lawyers’ Association in in R. v. Morrison, R. v. Goldfinch, and R. v. K.G.K. Colleen also argues complex trial motions, has acted as counsel at a Coroner’s Inquest, and has supported the work of a Canadian Judicial Council committee as its research lawyer. She is currently an Adjunct Professor at the University of Toronto Faculty of Law. Before joining Daniel Brown Law, she clerked at the Court of Appeal for Ontario. Learn more about Colleen here.

Andrew Bigioni

Andrew Bigioni

Andrew practices criminal and constitutional law at Daniel Brown Law. He regularly appears at all levels of court in Ontario and assists clients both at trial and on appeal. Andrew’s practice focuses on Charter litigation and the defence of complex sexual offences and large-scale drug matters. He is a former board member of the Criminal Lawyers’ Association and is regularly consulted by the media to speak on cases of public importance. Prior to joining Daniel Brown Law, Andrew was in private practice alongside some of Canada’s leading criminal litigators. Learn more about Andrew here.

Lindsay Board

Lindsay Board

Lindsay practices criminal and constitutional law at Daniel Brown Law. She regularly appears at all levels of court in Ontario and at the Supreme Court of Canada. Her practice focuses on complex, serious charges with significant reputational consequences for her clients, with a particular focus on sexual offences. Before joining the team at Daniel Brown Law, she practiced civil, regulatory, and criminal law at a top Toronto litigation boutique and clerked for the Court of Appeal for Ontario. Lindsay is an adjunct professor at Queen’s University Faculty of Law and is a frequent conference panelist regarding criminal law issues. She also provides regular commentary to media outlets on cases of public importance. Learn more about Lindsay 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.

Defending Utter Threats Charges

Defending Utter Threats Charges

How To Successfully Defend Utter Threats Charges in Toronto

The crime of uttering threats carries with it serious consequences, including the potential for imprisonment. Quite often, allegations of uttering threats to cause bodily harm or death will arise out of a domestic dispute.  In these types of cases, a special approach is required which takes into account the future needs of the parties and the public interest in preserving family harmony. For more information on domestic assault cases, read here. 

Our lawyers have defended utter threats charges in all corners of the province and often appear in courts across the GTA in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.

Daniel Brown is a criminal law specialist with extensive knowledge and experience defending against allegations of uttering threats. As such, he is often sought out by the media to comment on national and international stories on the subject. Daniel recently spoke with the Toronto Star about a high profile uttering threats case in the news.

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Defending Dangerous Driving Charges

Defending Dangerous Driving Charges

Defending Dangerous Driving Charges in Toronto

Our lawyers have defended dangerous driving charges in all corners of the province and often appear in courts across the GTA in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.

top criminal law firm toronto
Daniel Brown Law is recognized as one of Canadian Lawyer Magazine’s Top 10 Criminal Law Boutique Firms for 2018-19.

Our firm is often called upon by the media to comment on high-profile dangerous driving cases in the news. Recently, Daniel spoke to CTV News about a woman convicted of dangerous driving causing death.

In 2020, Daniel was voted the Toronto Star’s Readers’ Choice Diamond Award Winner in the category of Best Lawyer. Daniel Brown Law was also voted the 2020 Diamond Award Winner in the category of Best Legal Services.

The remainder of this article defines the criminal charge of dangerous driving, reviews possible defences, and summarizes the penalties associated with a dangerous driving conviction in Toronto, Ontario. If you are charged with dangerous driving you should contact Daniel Brown Law at (416) 297-7200 for immediate legal advice. (more…)

Appealing A Provincial Offences Act Conviction

Appealing A Provincial Offences Act Conviction

How To Appeal Your Provincial Offences Act Conviction or Sentence in Toronto, Ontario.

Are you looking to hire a lawyer to appeal your Provincial Offences Act conviction or sentence in Toronto, Ontario or elsewhere in the Greater Toronto Area? This article is intended to provide general information about appealing your conviction or the sentence you received.

Follow this link for information about the criminal appeal process if you are looking to appeal your criminal conviction or overturn your criminal sentence. If you would like to speak to one of the appeal lawyers at Daniel Brown Law to get legal advice about appealing your conviction or sentence for a provincial offence, call (416) 297-7200 to schedule a consultation. 

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Failing to Stop or Remain at the Scene of an Accident

Failing to Stop or Remain at the Scene of an Accident

This article provides a brief summary of the law in relation to the offence of failing to stop or failing to remain at the scene of a traffic accident (section 320.16 of the Criminal Code). In most provinces, a provincial driving statute such as the Ontario Highway Traffic Act may also regulate the offence of failing to remain at the scene of an accident. This article does not consider the law with respect to those provincial traffic statutes. If you or someone you know has been criminally charged with failing to remain at the scene of an accident, contact a criminal lawyer. The lawyers at Daniel Brown Law can be reached for an immediate consultation at (416) 297-7200.

Frequently asked questions about failing to remain at the scene of an accident:

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Firm Update on COVID-19 and Updates on Court Closures

Firm Update on COVID-19 and Updates on Court Closures

The lawyers at Daniel Brown Law continue to closely monitor the COVID-19 situation. As always, our priority is the health and well-being of our firm members, clients, and community.

To do our part to reduce the risk of spreading COVID-19, effective Monday, March 16, 2020, and until further notice, our physical offices will be closed, barring emergencies. All lawyers will remain available but will be working remotely. We remain available to assist existing and new clients with their criminal matters. 

We understand that criminal charges can be particularly disruptive to our clients’ lives during this time. We are committed to serving you and will continue to operate at full capacity. Daniel Brown Law is pleased to offer both video and phone meetings and consultations. For existing and potential clients trying to reach a lawyer on his or her firm line, those calls will be automatically re-routed to each lawyer’s out-of-office location. We remain committed to providing high-quality, timely service to our clients. We also remain available for consultation with new clients. Do not hesitate to get in touch with us.

Court Updates:

To date, all courts have released a response plan regarding COVID-19-related closures. In short, almost all non-urgent matters originally scheduled to take place before the end of May including out-of-custody trial matters will be rescheduled.

For current clients, your lawyer will be in touch with you as soon as possible regarding the impact these court closures may have on your case.

For more information about court-specific closures, please see the websites below for the most up-to-date information:
Ontario Court of Justice
Superior Court of Justice
Court of Appeal for Ontario
Federal Court and Federal Court of Appeal

Publishing An Intimate Image Without Consent

Publishing An Intimate Image Without Consent

How to Defend Allegations of Publishing an Intimate Image Without Consent

Since 2015, publishing an intimate image of someone else without their permission is a crime in Canada. Section 162.1 of the Criminal Code captures all ways in which intimate images may be shared, including through physical delivery, social networking, email, or other means by publishing, distributing, transmitting, selling, making available or advertising an intimate image of another person knowing that the person depicted in the image did not give their consent to that conduct.

Our lawyers have defended allegations of publishing or distributing an intimate image in all corners of the province and often appear in courts across the GTA in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.

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