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Ottawa Criminal Defence Law Blog

January 2017 Criminal Law Round-up

espite the overwhelming barrage of news coming from the U.S., there have been plenty of important cases and stories in criminal law here in Canada.

News:

Toronto citizen Waseed Khan filmed the arrest and tasing of a man by the Toronto Police and was told by police that they would seize his phone and that he was going to get HIV from the arrestee spitting in his face. Mr. Khan has filed a complaint with the Ontario Independent Police Review Director to investigate the officer's behaviour. The case has also raised questions of a citizen's right to film police (spoiler: as long as you aren't inferring, you're permitted) and maybe, as argued by Shantal Otchere, it's your civic duty.

Justice Denied: Delay in Criminal Court and the Right to a Speedy Trial

It has now been just over six months since one of the most important cases of 2016, R v. Jordan, was released. In it, the Supreme Court of Canada established a presumptive ceiling of 18 months delay in getting a case to trial at the provincial court level. If a case takes longer, then the Crown must prove that the delay is not unreasonable given the circumstances of the case. Otherwise, an accused person's right to a trial in a reasonable time under s. 11(b) are breached, and the case should be stayed.

As more s. 11(b) applications are making their way through the system, we are starting to get a better sense of how lower courts judges are interpreting and applying the case. And so far, some cases have resulted in stays of proceedings. Of course, defence lawyers are only cautiously optimistic about this, knowing that many of these decisions are being appealed and that successes at lower levels of court still stand to be overturned.

December Criminal Law Round-up

As the final hours of 2016 tick away, I am delighted to announce that McElroy Law blog received a 'Clawbie' Canadian Law Blog Award for Best Practitioner Blog. Thanks to everyone who read, shared and provided feedback over the last year. Looking forward to 2017! 

The Cost of Impaired Driving

We all know that impaired driving has a huge cost on our society, with the loss of lives, injuries and damage to property. But it also has a direct financial cost on those who are charged with the offence. Here is what you could expect to pay should you be charged or convicted of impaired driving in Ontario. 

"We all share blame": Reconciliation and sentencing in R v. Pelletier

Last month, Justice Nakatsuru of the Ontario Court of justice in Toronto released a decision in the matter of R v. Pelletier. Ms. Pelletier, an Indigenous woman from Regina, Saskatchewan, was before the courts in Ontario for breaching a long-term offender supervision order. The resulting sentencing decision is absolutely worth reading, for lawyers and non-lawyers alike. While many cases describe the factors that should be considered in Indigenous people following R v. Gladue, Justice Nakatsuru manages, in a mere 8 pages, to capture the essence of Gladue in a humanizing way. In my view, the decision is important for a few reasons: 

October Criminal Law Round-up

Here are this month's headlines and cases from the world of criminal law:

News:

In big legal news, Newfoundlander Malcolm Rowe was nominated to the Supreme Court of Canada. He was sworn in this morning and put straight to work on Dennis Oland's bail pending appeal (see below). His appointment is being considered a win for regional representation, but has left some wondering about diversity on the bench. This op-ed by lawyer Ranjand Agarwal argued that there is still need for a minority or Indigenous judge on the highest court in the land.

Joint positions and the administration of justice

Many of the cases winding their way through the criminal justice system will end in guilty pleas. And of those pleas, many will be the subject of joint positions, meaning that both the Crown and the defence are asking for an agreed-upon sentence. The Supreme Court of Canada released a new decision last week, R v. Anthony-Cook, clarifying the role of judges in considering joint positions. Before this decision, there had been some disagreement between provinces as to the right test to apply, but the Supreme Court confirmed that a judge must apply a 'public interest test.' According to the test, a trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute. This test is more stringent than other tests that have been used, such as whether a sentence is fit. 

September Criminal Law Round-up

Fall is finally in the air, and it has been a busy month in the world of criminal law.

News:

It hasn't been an easy month for judges, particularly in Alberta (see the Vader decision below...). Justice Robin Camp, a judge from Alberta who now sits on the Federal Court, faced a disciplinary hearing following his comments in a sexual assault trial to a complainant, asking why she didn't just keep her knees together. The story has raised questions about the pervasive myths surrounding sexual assault, and, as seen in this article from Macleans', the value of the current judicial disciplinary process.

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