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.

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​.

In other words, appellate courts will acknowledge the error but assess whether it actually caused any injustice or impacted the sentence.

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.