Category: Criminal Law

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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...

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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...

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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....

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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...

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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...

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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...

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R v Meer: the Trouble with Bad Lawyers

The Supreme Court’s judgment in R v Meer [2016 SCC 5] was very brief. In essence: appeal dismissed; majority below—right, dissent—wrong. The case itself, however, as described in the reasons of the Alberta Court of Appeal (“ABCA”) [2015 ABCA 141] from which the appeal was made, has all the qualities of a soap opera. It would be entertaining had very real harm not come to very real people. Here’s how it happened. One Mr. Meer owned a business. Eventually the business went under. Mr. Meer’s creditors, including the Royal Bank of Canada, started suing him. The business went into receivership....

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Update on R v Riesberry: it’s more than just a game.

Some time ago, I wrote a piece on the one line Supreme Court of Canada (“SCC”) holding that the appeal in R v Riesberry [Riesberry] is to be dismissed. In that article, I purported to prognosticate on the ratio to be derived from what, on the facts, appears to be a straightforward case. Briefly: a professional horse trainer was caught on tape doping two horses before two races, in an effort, clearly, to give them an advantage. He was charged with cheating in a game and fraud. The trial judge acquitted him, saying that horseracing isn’t a game, and that...

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R v Rogers Communications: Some Guidelines for Big Brother

In R v Rogers Communications, 2016 ONSC 70 [Rogers], Justice John Sproat of the Ontario Superior Court of Justice provided some much needed guidance to police and issuing justices when handling production orders for “tower dumps.” Sought by investigators through a court order, tower dumps occur when a telecom company is compelled to provide the names and numbers of cellphone users that have used a particular cellphone tower. So why should you care if you did not commit a crime? What are the police going to do with that information? There is a good chance that if the information is...

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Applying Sentencing Principles in Dangerous Driving Cases: R v Bosco

Sentencing is both a science and an art. In R v Bosco, 2016 BCCA 55 [Bosco], the British Columbia Court of Appeal reviewed both the general guiding principles of sentencing and the desired impact of sentencing in dangerous driving charges. The appellant and the Crown agreed on these principles but disagreed on whether the sentencing judge followed them.