R v PN, 2019 ONSC 2858  

The Issue

When examining a potential surety during a bail hearing, should the Crown be allowed to question this individual about conversations that s/he had with the accused related to the accused’s charges? 

The Answer

The court found that yes – asking a potential surety whether the charges had been discussed with them by the accused is acceptable. Justice O’Marra reasoned that such questioning was not improper here as 1) such questions do not imperil the fair trial interest of the accused; 2) the presiding justice has an overriding discretion to limit such questions to prevent abusive or protracted proceedings; and 3) such questions may be relevant to the strength of the Crown’s cases and potentially the protection of the public.

The Fine Print

The Defence objected to the questioning of the prospective surety, citing R v KK, 2019 ONSC 1578 which prohibited questioning in the following situations:

  1. The question is an attempt to unfairly exploit the bail hearing to discover the defence’s position and elicit evidence of the accused’s admissions;

  2. The bail hearing cannot be used for the ulterior purpose of augmenting the Crown’s case, but only to determine whether and on what conditions the accused should be held on.

Justice O’Marra did not find that these situations applied to the case at hand for three reasons:

  1. The questions asked would not violate the accused’s right to a fair trial.

  2. A justice overseeing the bail hearing is not restricted to evidence that would be admissible at trial but to a broad scope of evidence as classified under section 518 of the Code. The Justice has the authority to control questioning that is irrelevant.

  3. Section 518(1) (d.2) of the Code provides that the Court shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim or of a witness to an offence. Questions to prospective sureties related to information received from the accused since arrest may be very relevant to the protection of the public. 


The Mistake of Fact and Criminal Defence

* The following is a guest post by John Adams. NOTE: It is written in the context of US law *

In criminal cases, there are a number of defenses that the accused person can use in the court when facing criminal charges. ‘Mistake of Defense’ is a type of defense that refers to a misunderstanding by someone about the facts of a situation, and this misunderstanding leads a person committing a crime or an illegal act.

The person did not mean to commit the crime, but did accidentally - this defense is considered valid for the intent of crime and for the charges when the person is required to intend or know that he or she is going to commit a crime.

As a Criminal Defense:

When a person uses a mistake of fact as a defense, he or she has little understanding as well as knowledge about the law at the time of the crime occurred. The person does not have an understanding of legal issues nor the intent of committing a crime or has a lack of awareness between right and wrong at that time.

Although, these defenses are valid, however, there are very rare and are not much permitted by the court. The person using the mistake of fact must have circumstances present at the time of the crime or sufficient proof that it is purely a legitimate mistake and not a defense strategy.

When Mistake of Fact is Usable?

The defense of mistake of fact is usable when the defendant was not aware of the fact that his or her actions could result in a crime. In case the person faces charges of larceny but believes that the property he or she took belonged to him or her, this means that there is a valid misunderstanding that can deny the aspect of the intent of committing the crime.

As many theft crimes require the intent of theft, such misunderstanding could separate the prosecution’s case. The defendant can be awarded a not-guilty verdict if the criminal defense attorney lawfully argues and convinces the court that there was a misunderstanding.

The Mistake in the Case:

Usually, given the seriousness of the mistake, it can deny a part or complete charges against the person. For the intent crimes, the absence of intent is an important matter that can remove the particular intent charge and results in the acquittal of the accused.

In theft crimes, the intent is to deprive the owner of his or her property permanently, lack of intent and returning the item upon realizing leads to the removal of the charges of the criminal activity. This mistake is valid, honest and reasonable.


Katie takes her Labrador to the dog park every day. One day she loses the sight of her dog for a few minutes. Upon relocating him, she takes her back home. Later during the day, she notices his collar where the name of some other Labrador is written. Since both looked alike, she mistook someone else’ dog as hers and realized later when she was at home. This is a reasonable mistake of fact.

Using the Mistake Later in the Case:

While there are various ways that the defendant can think of as a defense against criminal charges, the accused cannot use the mistake in later stages of the case. The mistake has to be honest and reasonable. In case of any contradiction provable in the court, the defendant will not have a valid claim of committing a mistake of fact. Willfully taking the property of another person is not a mistake but intentional theft.

The Assistance of an Attorney:

Many accused persons, faced criminal charges, don’t know how to use this defense or don’t understand it at all. In order to use this defense, the person will need to have a criminal defense lawyer who will explain the mistake as valid. The lawyer can present the case with the mistake of fact and can argue against the charges that do not fit. But that is on the condition that accuses have enough proof to show in the courtroom. This way the attorney, can show the lack of knowledge or misunderstood information the person had at the time of the illegal activity.

How to Find the Ideal Lawyer to Deal with your Case

** The following is a guest post from John Pallister **

Every year, many people find themselves in need of a lawyer with specialist knowledge when it comes to particular areas of the law. Finding the right lawyer is something that can make a big difference when it comes to the outcome of your case, which is why it is so important to find the right legal expert for your case.

For instance, if you have been involved in a car accident that was not your fault, you can go online to access an accident guide and find out what you need to do. However, if you are making a claim for compensation due to personal injury stemming from the accident, you may need the services of a specialist lawyer with the right amount of experience and expertise with this area of the law. In this article, we will look at some of the main considerations when you are selecting a lawyer to help with your case.

Key Points to Consider

So, what are the key points to consider when it comes to finding the ideal lawyer? Well, experience is one of the most important things, as you naturally want a legal professional with lots of relevant experience to boost your chances of success. You need to look at how much experience the lawyer has in terms of general law but also how much experience they have when it comes to dealing with the relevant legal sector that your case falls under. The more experience the professional has when it comes to dealing with cases that are similar to yours, the better it will be.

You should also consider the cost of the legal service, as this can vary based on various factors. The legal firm or professional you choose can have an impact on what you pay. However, the type and complexity of your case coupled with your financial circumstances can also have an impact. In addition, legal firms sometimes employ different pricing structures. For instance, some may charge a flat fee, some will charge hourly, and some may work on a contingency fee basis based on the type of case it is. You should not base your decision solely on cost, as you also need a lawyer with experience and relevant expertise. However, you need to take cost into consideration so you can ensure it fits in with your budget.

Finally, make sure you look at how reputable and reliable the individual or law firm is before you make your decision. The easiest way to do this is to go online and look at what past clients have to say about the service they received. This will also enable you to get an idea of what the outcome of cases similar to yours was, which means you can then make a more informed decision.

By taking all these factors into consideration, you will find it much easier to find the perfect legal expert to help with your case.

MCLNugget: Montesano ONCA

R v Montesano, 2019 ONCA 194 

The Issue

What reference, if any, may be made to a prior discharge of an accused or offender. Put differently, can the Crown rely on a discharge during sentencing submissions and disclose such information to the court.

The Answer

Section 6.1(1)(1)(a) of the Criminal Records Act provides that “no record of a discharge…shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if (a) more than one year has elapsed since the offender was discharged”: Section 6.1(1)(a) CRA.

This language is plain. This provision prohibits disclosure not only of the record, but also of the existence of fact of a discharge beyond one year [para 9].

The Fine Print

Notwithstanding this absolute prohibition on disclosure, the Crown is “entitled to put before the court the factual reality of the incident – the fact that this was not the first incident – but nothing more” [para 4].

MCLNugget: McGuigan ONCA

York (Regional Municipality) v McGuigan, 2018 ONCA 1062

The Issue

Are the excerpts of a user manual related to the “testing and operation” of a speed measuring device subject to disclosure under the first party regime or production under the third party regime – as well as the related issue of relevance of such records.

The Answer

The “testing and operation” instructions contained in the user manual for speed measuring devices are subject to disclosure under the first party regime. While they are not fruits of the investigation, they are “obviously relevant” and thus disclosable.

The Fine Print

The issue came to the Court of Appeal via an appeal from a certiorari decision – of interest is that in a footnote in the ruling the court commented that the “writ of certiorari is no longer issued We use the phrase the “certiorari order” as shorthand for the more cumbersome “order in lieu of certiorari” [footnote 2]. The Justice of the Peace [JP] had ordered disclosure. The Crown succeeded in quashing that order on the review. The Court of Appeal reinstated the initial order. The notable points include:

First, here the JP had the jurisdiction to “determine disclosure issues and to grant or deny disclosure order…[and] to determine whether the disclosure sought fell within the first party or third party disclosure regime” [para 63].

Second, on the issue of the availability of certiorari, the court noted that s141(4) of the Provincial Offences Act limits such a review to cases where there is a “substantial wrong or miscarriage of justice” [para 58]. Properly considered, certiorari should not have been granted.

Third, the manual related to operation and testing is “obviously relevant” and falls under first party disclosure in line with the principles of R v McNeil, 2009 SCC 3.

MCLNugget: Prystay ABQB

R v Prystay, 2019 ABQB 8


The Issue

Prystay was charged with a number of offences including possess of a loaded firearm and failing to stop for police. Following his arrest he was detained in custody for 28.5 months. During this period of time he assaulted another inmate. He was consequently placed in administrative segregation – remaining there for 13.5 months. The issues for the court on sentencing were:

  1. Did the segregation amount to a violation of sections 7 or 12

  2. If so, what remedy – a stay or a sentence reduction via enhanced credit beyond 1.5:1 – is appropriate

The Answer

The placement of Prystay in administrative segregation amounted to a violation of s12. It was not the clearest of cases, however, and a stay was not warranted. As an alternative remedy, the court granted enhanced credit beyond 1.5:1 at a rate of 3.75:1.

The Fine Print

In coming to this conclusion the court touched on a number of points related to detention conditions. First, the court noted the general recognition that pre-sentence custody time is more onerous than sentencing time:

It has long been recognized that time served in remand or pre-trial custody is more onerous than time served in a penitentiary after sentencing.  Not only is the environment harsher, with limited access to programs, but pre-trial custody does not count toward parole eligibility or statutory release: R v Sooch, 2008 ABCA 186 at para 11, 433 AR 270; R v Summers, 2014 SCC 26 at para 26, [2014] 1 SCR 575; R v Adams, 2016 ABQB 648 at para 29, [2017] 4 WWR 741. [Para 19].


Second, with respect to segregation, the court arrived at the following conclusions:

Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells.  They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall. 


Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way and to form any type of meaningful relationship. [Paras 28, 39]


Third, the court discussed limits and expectations regarding the length of segregation:

To reiterate, Prystay does not challenge his initial placement in AS. His conduct against a fellow inmate warranted this action. The legitimate penal aim in placing Prystay in AS was to ensure the safety and security of other inmates and staff. As outlined below, placement in AS for 13 ½ months went well beyond what was necessary to achieve this legitimate aim. 

Of note, an inmate cannot be placed in DS for more than 14 days at a time: Correctional Institute Regulation, Alta Reg 205/2001, s 46. In contrast, neither the Corrections and Conditional Release Act, s 1992, c 20 (CCRA), nor its regulations, mandate any limit on placement in AS. [Paras 48-49].


Fourth, the court commented on the impact of the “indefinite” placement in segregation on Prystay:

I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.   

Despite Prystay not having demonstrated permanent psychological injury caused by his stay in AS, I have no hesitation in concluding that while in AS, he suffered mental injury and physical symptoms and his placement put him at significant risk of permanent psychological injury. 

Finally, I conclude that Prystay’s placement was devoid of procedural fairness and appropriate oversight, and on the evidence, his ongoing placement was not justified. [Paras 82-84].


Finally, in terms of remedy, the court found a stay was not appropriate:

Similarly, while I find the evidence here to be shocking and deeply disturbing, these circumstances fall short of the “clearest of cases,” especially since a reduction in sentence can be fashioned so as to provide an appropriate remedy. [Para 162].

MCLNugget: Plante ONCA

R v Plante, 2018 ONCA 251

The Issue

What factors govern the granting of credit for pre-sentence custody, especially in relation to an offender sentenced to a reformatory period of incarceration.

The Answer

The Court of Appeal noted the difference between provincial and federal jail time:

A prisoner who is sentenced to 18 months jail, but does not obtain parole is released after 12 months because of earned remission, unless institutional misconduct results in forfeiture of remission. Twelve months of presentence custody is equivalent to an 18 month sentence in these circumstances. According to Summers, this differential alone justifies enhanced credit at a ratio of 1.5:1. [@7]

The court clarified the approach and noted the error of the sentencing judge:

The sentencing judge was wrong to equate re-committal for violation of the terms of statutory release under the federal system with misconduct while serving a sentence within a provincial institution which would lead to a loss of earned remission under the provincial system. There was no evidence here of institutional misconduct which would likely lead to a prolongation of the appellant’s incarceration past the two thirds mark of his sentence. [@10]

The Fine Print

For context, the sentencing judge refused the 1.5:1 credit for the following reasons:

I have considered the defence request that Mr. Plante receive enhanced credit for his presentence in custody. On five previous occasions Mr. Plante was a statutory release violator. I conclude that he is not a candidate for parole or early release. I have not been provided with information about overcrowding at the detention centre or other conditions that might have made Mr. Plante’s presentence detention more onerous. The defence has not met its onus to demonstrate that enhanced credit should be awarded for the presentence in custody. [@2 ONCA]

See to similar effect R v Pitamber, 2018 ONCA 518 where the Court of Appeal offered the following:

The sentencing judge refused to give the appellant credit for pre-sentence custody on any more than a one-for-one basis as the appellant had breached the no contact provisions of previous orders on many occasions. The sentencing judge did not have the benefit of R. v. Plante, 2018 ONCA 251 (CanLII), as well as the fresh evidence indicating that the accused has behaved well during his time in custody.

There is no reason to believe that the accused will not be entitled to release after serving two thirds of his sentence in a provincial institution. Parity of treatment in these circumstances between persons released on bail and those detained in custody mandates a further credit on a 1.5:1 basis of 43 days. The sentence was otherwise fit. [@1-2]


MCLNugget: Burke NLCA

R v Burke, 2018 NLCA 31

The Issue

The standard and appropriateness of imposing a restitution order under s738 of the Code.

The Answer

Stand-alone restitution orders are constitutionally valid. They are discretionary and such discretion must take into account an offender’s ability to pay: R v Zelensky, [1978] 2 SCR 940. However, where there is a breach of trust, ability to pay is not a predominant consideration: R v Castro, 2010 ONCA 718.

The Fine Print

In the present case there was a breach of trust. The evidence did not support an inability to pay. The $35,821.85 restitution order was upheld.



R v WDAZ, 2018 BCCA 180

 The Issue

Can a complainant adopt her s715.1 statement if her viva voce evidence is inconsistent with her video statement; and what impact do leading questions have on admissibility of such a statement.

The Answer

The test for admissibility of a s715.1 statement was set out by the court:

The video statement is admitted on the basis that young children cannot be expected to clearly remember events that occurred months or years prior to trial and the statement “will almost inevitably reflect a more accurate recollection of events than will testimony given later”: R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 at para. 19. This is especially true when the child retains no memory of the incident and the video is the only way to bring the child’s evidence before the court: F.(C.C.) at para. 21.
To be admissible at trial, the statement must be properly adopted, meaning the child must recall giving the statement and testify that she intended to be honest when she gave the statement: F.(C.C.). The child does not need to remember the specific events discussed in the statement, although the inability to cross-examine the child on this evidence should necessitate a warning to the trier of fact about convicting on this evidence alone: F.(C.C.) at para. 44. [@52-53]

The Fine Print

The Court of Appeal upheld the trial judge’s ruling admitting the statement.

In this case, the use of leading questions within the s. 715.1 statement went to the issue of weight to be given to the evidence at trial and not to the admissibility of the statement. The judge did not err by failing to address the issue of weight at this stage. In my view, he properly exercised his discretion to admit the s. 715.1 statement as evidence at the trial. This decision is reasonable and entitled to deference. [@64]


MCLNugget: LeBreton NBCA

R v LeBreton, 2018 NBCA 27

The Issue

Does 724(3)(e) ) of the Code allow a sentencing judge to infer a disputed aggravating fact from the undisputed facts presented at an informal sentencing hearing?

The Answer

In short, yes. The NBCA cited R v Gardiner, [1992] 2 SCR 368 where the SCC held as follows:

It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. [Gardiner @111].

The Fine Print

The NBCA held that the sentencing judge could, in this case, draw the impugned inference:

In this case, the dispute centres on the sentencing judge’s inference of premeditation, a state of mind which is a question of fact. In my view, the judge was entitled to draw the inference if she was satisfied beyond a reasonable doubt it was the only reasonable inference to be drawn from the facts. On this point, although Mr. LeBreton admitted to planning and taking the steps necessary to implement his plan, as noted, his dispute rested with whether the plan was for the purpose of scaring or killing his victim, which raised a question of his state of mind. I conclude his state of mind could be inferred from the facts. Applying Gardiner, it is easily concluded the sentencing judge had the right to rely on admitted facts to infer Mr. LeBreton’s state of mind. It is for this reason I am of the view the sentencing judge’s interpretation of s. 724(3)(e) was consistent with the framework set out by the Supreme Court in Gardiner. [@18]