Failure to hear from the offender before sentencing: When does it matter?

Automatic Excision Rule: Mini Lecure

A simple rule in many respects but often misunderstood and overlooked. The automatic excision rule requires courts to remove any information obtained through a Charter breach from an Information to Obtain (ITO) before assessing whether there were reasonable and probable grounds for a search or arrest. If the remaining information can't support the state action on its own, the warrant or arrest is invalid. The rule ensures the state can't rely on unconstitutional conduct to justify privacy intrusions.

Failure to hear from the offender before sentencing: When does it matter?

Ontario courts have long recognized the importance of s. 726, but they have also clarified that a lapse in offering allocution does not automatically void the sentencing outcome. In R. v. Bynoe, 2025 ONCA 274, for example, the Ontario Court of Appeal dealt with a sentencing judge’s failure to invite the offender to speak. The transcript showed the offender was not offered any opportunity to address the court before sentence. The Crown on appeal conceded this was an error under s. 726, but characterized it as an inadvertent oversight – noting that Bynoe was represented by counsel who did not indicate that Bynoe wished to speak at the time. The Court of Appeal agreed the trial judge erred, yet ultimately dismissed the sentence appeal, finding no basis to disturb the sentence in that case. This outcome is in line with prior Ontario decisions (e.g. R. v. Holub & Kufrin (2002 ONCA) and R. v. Legault (2005 ONCA)) holding that a mere failure to ask “Do you have anything to say?” will not automatically vitiate the sentence . [http://lawsociety.sk.ca] In other words, appellate courts will acknowledge the error but assess whether it actually caused any injustice or impacted the sentence.

Can Provocation Co-Exist with Self Defence? R. v. Copeland

In this episode of The Full Court Press, ChatGPT discusses the recent Ontario Court of Appeal case R. v. Copeland (2025 ONCA 278), focusing on the partial defence of provocation. We outlined the key facts: Copeland was convicted of second-degree murder after claiming self-defence during a fatal confrontation with his girlfriend. He attempted, late in the trial, to also argue provocation based on being accused of theft and attacked with a knife. We clarified the elements of provocation under Canadian law—both objective (a wrongful act or insult sufficient to provoke an ordinary person) and subjective (a sudden loss of self-control in response). The main appellate issue was whether provocation had an "air of reality," meaning sufficient evidence existed to put the defence before a jury. The Court of Appeal upheld the trial judge's decision to exclude provocation, emphasizing that Copeland’s testimony showed deliberate action aimed at self-preservation, not a sudden, uncontrolled loss of temper. We highlighted the inherent tension between self-defence and provocation defences, noting practical takeaways for defence lawyers: provocation requires clear evidence of sudden anger and loss of control and cannot simply be a fallback strategy when self-defence is the primary narrative.

R. v. Chizanga, 2025 SCC 9 (Notebook LM Pod)

🎙️This time on the Full Court Press we listen to an AI generated convo created by Google's "Notebook LM." It's not a dynamic, real-time interaction with an AI model but, rather, a (very realistic-sounding) "fake" conversation between two speakers generated after uploading the case into Notebook LM's large language model. I say "fake" conversation but then again: How do we define "fake". If it sounds like a duck, walks like a duck... Regardless, an interesting decision out of the SCC that we should be aware of and the corresponding judgment out of the ONCA. Jury charge case re. the admission and use of uncharged discreditable conduct.

No REP in EDR 🚗

Case Overview: R. v. Attard, 2024 ONCA 616 Court: Ontario Court of Appeal Date: August 16, 2024 Panel: Gillese, van Rensburg, and Roberts JJ.A. Facts: Wendel Attard was charged with dangerous operation of a motor vehicle causing bodily harm after a serious crash in Brampton, Ontario. At trial, the Crown sought to admit data from the vehicle's Event Data Recorder (EDR), which logged details such as speed, throttle, and braking in the five seconds before impact. The data showed Attard was speeding—up to 130 km/h in an 80 km/h zone. Police had seized the car and extracted the EDR without a warrant or consent, relying on s. 489(2) of the Criminal Code. Trial Decision: The trial judge excluded the EDR evidence, finding: * The police lacked reasonable grounds under s. 489(2) to seize the vehicle. * Attard had a reasonable expectation of privacy in the EDR data, engaging s. 8 of the Charter. * Under s. 24(2), the exclusion of the evidence was necessary to uphold the integrity of the justice system. Attard was acquitted due to insufficient evidence of speed and acceleration without the EDR. Court of Appeal Ruling: The Court of Appeal allowed the Crown’s appeal, finding three key errors in the trial decision: 1. The seizure was lawful: Officer Ball had reasonable grounds under s. 489(2)(c) based on witness accounts, dashcam footage, and the scene’s severity. 2. No reasonable expectation of privacy in the EDR data once the vehicle was lawfully seized—echoing appellate decisions from B.C. (Fedan) and Saskatchewan (Major). 3. The exclusion under s. 24(2) was an error. Given the legal uncertainty around EDR privacy at the time and the reliability and importance of the evidence, the data should have been admitted. Outcome: The acquittal was set aside. A new trial was ordered, with the EDR evidence to be admitted.