New & Notable: A Court Order is not a Suggestion

Justice Hill is not afraid to write lengthy, thorough and verbose judgements.  His judgements are often relied upon as a comprehensive overview of the law on a given point.  In a recent ruling his succinct and pointed ruling delivers an equally clear message - a court order is not a suggestion: R v Knockwood, 2011 ONSC 5004
Kathleen Knockwood was convicted of importing heroine into Canada.  Knockwood is an aboriginal Canadian.  After conviction Hill J ordered a pre-sentence report pursuant to section 721 of the Criminal Code; pursuant to section 721(4) the court further ordered that the report be in a Gladue report format - to address the aboriginal status and issues related thereto.  Subsequently correspondence was received that the home province of Knockwood (Quebec) do not prepare Gladue reports.  It was thereafter agreed that a pre-sentence report with "Gladue content" would be accepted. 

Hill J ordered that it be prepared and delivered to the court on or before November 1, 2011.

On August 17, 2011 the Court received a letter dated August 12, 2011 from Quebec probation services which indicated that “due to workload constraints” and the limited number of officers “that would be able to conduct the interview in English” an extension of time for the preparation of the report was required; the requested due date was December 12, 2011 [para 4].

In considering this request for an extension Hill J made reference to section 720 of the Criminal Code which provides that a “court shall, as soon as practicable after an offender has been found guilty, conduct proceeding to determine the appropriate sentence” [para 5].  Hill J concluded with the following:
A time period approaching three months from the date of conviction for the completion of a PSR is well beyond the usual 6 to 8-week range frequently accommodated in the busy courts in Brampton. The court's direction of August 10 was a court order in a federal proceeding, not a request subject to the idiosyncratic response of a particular provincial probation service. If necessary, the court shall take whatever further coercive and/or punitive measures necessary to enforce its order.

It is hereby confirmed that it is ordered that the PSR is to be completed and filed with the court on or before November 1, 2011 [paras 6-7]; [emphasis in original].
DG Mack

Current & Curious: Guilty Pleas

This recent decision from the Ontario Court of Appeal has a few interesting aspects to it, including some discussion about competence of counsel. However, arguably the most interesting and curious aspect of it relates to the apparent guilty plea.

On the first date of trial the appellant and trial counsel met. Latter accounts of this meeting diverge signifcantly about what took place. Counsel indicated that the appellant provided written directions to accept the Crown's allegation - plead not guilty but not dispute the allegation. The appellant denied he ever provided those directions.
What did occur, however, was that the appellant appeared in court, plead not guilty, the Crown read in the allegations, trial counsel indicated that the appellant did not dispute the allegations and the appellant was found guitly.


On appeal the conviction was struck and a new trial was ordered.  The Court of Appeal held that what transpired constituted a miscarriage of justice as there was a plea of not guilty and no evidentiary proof was established, as required, by the Crown:

This case proceeded on the basis of a plea of not guilty, a plea by which the appellant denied having committed the offence charged and required the prosecutor to prove the essential elements of that offence by relevant, material and admissible evidence beyond a reasonable doubt.

After the plea of not guilty, the prosecutor adduced no evidence. No viva voce testimony. No real evidence. As a surrogate for evidence, the prosecutor read the allegations made against the appellant. It is fundamental that prosecutorial allegations are not evidence. Nor did they become admissions under s. 655 of the Criminal Code by the failure of the appellant's trial counsel to make submissions [paras 55-56].

DG Mack

Current & Curious: Can the Crown refuse to elect in date set court?

R v Szender, 2010 ONCJ 615, 2010 CarswellOnt 10062: Apparently the local Crown's office "consistently refuses to make elections for hybrid offences at the time a trial date is being set" [para 9].  In Szender this practice arose and Crown and defence were invited to make submissions on the issue - the Crown did so, the defence chose not to.  Ziegler JP ruled that the Crown must elect at the time of setting of dates.

DG Mack