Category: Criminal Law

0

Overthrowing Precedent: R v Jordan’s Impact on the Crown and the Right to a Trial Within a Reasonable Time

On July 8, 2016, the Supreme Court of Canada released R v Jordan, 2016 SCC 27 [Jordan], a decision that fundamentally changed the framework that determines whether an accused has been tried within a reasonable time under s 11(b) of the Charter. While the impact of explicitly overthrowing a well-established framework with years of precedent remains to be seen, it is clear that this decision has already begun to have a radical impact on the Crown.

0

Let’s Talk About Lacasse, Part 2: The Implications of Lacasse for the Sentencing Process

This is the second part of a two-part series on the Supreme Court’s decision in R v Lacasse. Part 1 discusses how the majority decision in Lacasse raises the standard for appellate review on sentencing decisions. Part 2 highlights two problematic aspects of Lacasse: the majority’s unconvincing reasoning in justifying a high standard of review and the implications of the majority’s endorsement of using local crime rates as a factor in the sentencing process.

0

Let’s Talk About Lacasse, Part 1: Raising the Standard for Appellate Review of Sentencing Decisions

This is the first part of a two-part series on the Supreme Court’s decision in R v Lacasse. Part 1 discusses how the majority decision in Lacasse raises the standard for appellate review on sentencing decisions. Part 2 highlights two problematic aspects of Lacasse: the majority’s unconvincing reasoning in justifying a high standard of review and the implications of the majority’s endorsement of using local crime rates as a factor in the sentencing process.

0

Prosecuting Crime at Home Secures Respect for Human Rights

The Government of Canada is acutely aware of the cost of litigation. Those costs, along with the policy and legal implications of litigation, are now the subject matter of a new Cabinet Committee on Litigation Management, chaired by Minister Dominic LeBlanc. This committee will advise federal Justice Minister Jody Wilson-Raybould, who recently suggested in a speech to the Canadian Bar Association that the Government of Canada would be reconsidering its “litigation position” in several cases so as to ensure that its overall legal strategy comports with Canada’s Charter of Rights and Freedoms. We support this goal, with the Government’s predecessor...

2

Aboriginal Dangerous Offenders and Sentencing

This month the British Columbia Court of Appeal (“BCCA”) handed down a decision in the case of an Aboriginal offender, David Jennings. The accused in R v Jennings, 2016 BCCA 127 had a violent criminal history involving repeated sexual offenses against children over the course of nearly 30 years. Central to the appeal was the issue of how Gladue factors should be weighed by a judge in the trial of an Aboriginal person along with alternative forms of sentencing for Aboriginal people. This ruling speaks to the misconception that an Aboriginal person should necessarily be treated more leniently by the...

1

Ontario Court of Appeal Holding on Spousal Incompetency Now Moot: R v Nguyen

The recent decision of the Ontario Court of Appeal in R v Nguyen, 2015 ONCA 278 [Nguyen] on the spousal incompetency rule has now been rendered largely moot as a result of changes to the Canada Evidence Act [CEA] brought in by the previous Harper government. At issue in Nguyen was whether the spousal incompetency rule could be extended to common law spouses. Following a jury trial Bao Quoc Nguyen (“Bao”) and Kien Binh Tu (“Binh”) were convicted of first-degree murder, and Bao Tri Nguyen (“Tri”) was found guilty as an accessory after the fact to murder. The victim, Quang...

2

Cold Case Murders in Toronto and the Role of the Public

I’ve stopped counting the number of people that have asked me whether I tuned into the “Serial” podcast about the murder of Baltimore teen Hae Min Lee and possible wrongful conviction of her boyfriend Adnan Syed. The popularity of this online version of a 48 hours special spread like wildfire. Fans of the show seemed to wait with baited breath while discussing what new elements of the case the next episode would uncover. The podcast captured the attention of not only armchair investigator wannabes, but also a State prosecutor, defence attorneys and other justice actors in the State of Maryland....

0

Mr. Big Confessions: Distinguishing Hart from Johnston

Among the more controversial areas of Canadian evidence law are confessions obtained through “Mr. Big” operations. This unique investigative tactic involves the creation of an elaborate but fictitious criminal organization that recruits the suspect of a cold case to join its ranks. Over the course of several “scenarios,” the participating undercover police officers engage the individual in their dealings, offering monetary and (sometimes significant) social incentives to the person, and exposing him or her to (usually quite violent) criminal activity. After building a sufficient bond, the target is ultimately given an “interview” with Mr. Big – the head of the...

0

Defining the Mental State for Infanticide: R v Borowiec

The Supreme Court of Canada (“SCC”) recently heard the Crown appeal of R v Borowiec, 2015 ABCA 232 (“R v MB”). The case is significant given the possibility for a change in the law of infanticide in Canada, as the Crown has argued for the need for greater clarity of what constitutes a ‘disturbed mind’ in the infanticide provision, through the substitution of a higher bar for such a finding. The impugned provision, section 233 of the Criminal Code, RSC 1985, c C-46 states: A female person commits infanticide when by a wilful act or omission she causes the death...

0

R v Elliott: An Unhinged Use of Hashtags

In R v Elliott, 2016 ONCJ 35 [Elliott], Gregory Elliott was found not guilty of criminally harassing two women by repeatedly communicating with them via Twitter through various hashtags they had created. In my view, Mr. Elliott fulfills the definition of a “Twitter troll” and I find his opinions personally offensive. But is the fact that he engaged these women in repeated debate, even after being blocked, enough to find him criminally responsible of harassment? Justice Brent Knazan found that Mr. Elliott’s not letting go of a topic is stubborn and may be considered childish, but it does not provide...