November Criminal Law Round-up

While the U.S. election dominated headlines this month, there were plenty of important criminal law stories north of the border. 

News:

As Trump supporters celebrated the outcome of the election, a judge in Hamilton broadcast his approval by wearing a 'Make America Great Again' hat in court. Justice Bern Zabel was swiftly criticized for the move with many organizations, including the Criminal Lawyers Association, filing complaints with the Judicial Council. Justice Zand has since apologized for his actions. University of Windsor law profession David Tanovich responded to the incident, outlining how the political statement not only runs counter to the Principles of Judicial Office, but also raises a perception that individuals of minority groups would not receive a far and impartial hearing.

Another troubling story of the past month stemmed from reports that Montreal police have been spying on journalist Patrick Lagace. Police obtained at least 24 surveillance warrants, tracking Lagace's phone, including incoming and outgoing phone numbers, to probe into street gangs and drug trafficking. The podcast Canadaland gave some interesting insight into the intersection of criminal courts and freedom of the press in Canada. 

Marie Henein, who represented Jian Ghomeshi earlier this year, has sparked debate over a speaking engagement at Bishop's University (to be broadcast to other universities). Some students have claimed that Henein might re-traumatize victims of sexual violence and perpetuate rape culture, while the response from the legal community has been to question the public's understanding of the role of defence counsel. Criminal defence lawyer Breese Davies wrote a powerful piece for the Walrus, arguing that attacking lawyers like Henein will not serve to end violence against women. 

Justice Minister Jody Wilson-Raybould announced plans to repeal section 159 of the Criminal Code, which prohibits anal intercourse for people under 18 years old, unless they are husband and wife, as it violates equality rights. The section is just one of many 'zombie clauses' that remain in the Criminal Code despite having been declared unconstitutional. (See the Vader case from September's round-up.)

And in lighter news, the Kensington Police Service in Prince Edward Island is threatening to play Nickelback to people arrested for impaired driving. They released a statement on Facebook, stating: "We figure if you are foolish enough enough to get behind the wheel after drinking, then a little Chad Kroeger and the boys is the perfect gift for you." Now there might be an example of deterrence...

Cases:

Adam Picard, who was accused of the murder of Fouad Nayel in Ottawa, was granted a stay of proceedings in his case because of the 4 year delay in getting the matter to trial.  The case comes after new rules from the Supreme Court of Canada in R v. Jordan (see August's round-up)  In her decision, Justice Parfett noted that there remains a 'culture of complacency' in terms of delay, and reluctantly stayed the charge. The Crown is appealing the decision. 

The Ontario Court of Appeal found that a section of the Criminal Code brought in by Harper's conservative government that limits pre-sentence custody is unconstitutional. Section 719.3 placed a cap of credit on those in custody who had breached a bail condition and then were arrested and detained. Read the full decision here. 

And in perhaps the most unusual case of the month, an Ottawa man was found guilty of smuggling $165000 worth of gold from the Royal Canadian Mint... through his rectum. Read all of the sordid details here.

 

"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:

1. It speaks in plain language.

Lawyers and judges often resort to complex legal writing and can forget that the subject of the proceedings (the accused person) is not used to this language. Here, Justice Nakatsuru made a concerted effort not only to address Ms. Pelletier directly, but to speak clearly and simply. For example, instead of using aggravating/mitigating factors, he simply said “Some things made this offence more serious,” and “Some things weigh in your favour.”

2. It is respectful of the trauma suffered by Indigenous people.

I’ve written before about the challenges that come with representing Indigenous clients, and of eliciting and presenting evidence of past trauma while respecting the privacy of the client. Justice Nakatsuru made a pointed decision not to detail the trauma Ms. Pelletier had suffered, given that this would not help her to heal, but acknowledged this trauma with respect and empathy.  

3. It acknowledges that the line between victim and offender does not always exist.

Justice Nakatsuru drew a direct line from Ms. Pelletier’s personal history and the history of Indigenous people in Canada to the offence. In doing so, he recognized that her experiences throughout her life, including at residential school, have resulted in deep suffering and concluded “You are as much a victim as an offender when I look at the whole picture.” [para 15]. This realization is true for many accused people in the criminal justice system, and is an important reminder in the face of polarizing political rhetoric that urges us to see victims and offenders are completely separate.

4. It recognizes the complicity of all Canadians in how have treated Indigenous people.

Perhaps the most striking line of the judgment comes at paragraph 21, where Justice Nakatsuru writes:

 “I must have regard to your special circumstances as an indigenous offender. How it is connected to you and this offence. When I do, while I must hold you responsible for your actions, the moral blameworthiness of it is lessened. Quite frankly, in a way, we all share blame for what you have become and what you have done.” [para 21]

It is almost startling to see this kind of phrase within a judgment.  Gladue factors can often get watered down into a set a circumstances that courts much consider. But the whole point of Gladue is to redress the historical harms imposed on Indigenous people, and part of that is acknowledging the responsibility of all Canadians. Justice Nakatsuru is able to connect reconciliation with sentencing, holding the rest of the justice system accountable in recognizing our complicity in having so many Indigenous people before the courts and in jail.

5. It inspires hope.

Justice Nakatsuru recognized that Ms. Pelletier wished to return to Saskatchewan and concluded the decision by speaking about the natural human instinct to go home. He wrote:

“The idea of home is about a place of safety. A refuge. A sanctuary. Where love resides. Home is a place of hope. A place of potential.” 

And finally:

“After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.”

I take some small bit of solace in the fact that despite how busy courts can be, and how awful someone’s personal circumstances may be, that there is space for the courts to treat accused persons with compassion and grace while calling for all Canadians to take responsibility in working on these issues and moving forward. 

 

 

 

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. 

Perhaps the biggest story in terms of conditions in jails came from a meeting of Ontario Human Right’s Commissioner Renu Mandhane, when she met with Adam Capay, a young Indigenous man who has been kept in solitary confinement for over 4 years while awaiting trial. The outcry has reached national proportions, including an editorial from the Globe and Mail condemning Mr. Capay’s treatment.  I found Michael Enright’s essay on the Sunday Edition to be a poignant encapsulation of this horrific story. 

 In a much less public, but still important story, Justice Minister Jody Wilson-Raybold announced proposed legislation that would restore judicial discretion in imposing the victim fine surcharge. Presently, when someone is convicted of an offence, they automatically pay a fine of $100 per charge (if by summary conviction). The new law would allow judges to waive that fee if it would cause an individual undue hardship.

Ottawa Police released a study on race and traffic stops, findings that Middle Eastern and black drivers are stopped at disproportionate rates. Read the full study here or just skip straight to Michael Spratt’s commentary on the persistent issues with systemic racism in policing. 

And in the spirit of Halloween, check out Toronto defence lawyer Sean Robichaud’s take on killer clowns.

Cases:

Dennis Oland’s conviction for the murder of his father was overturned and a new trial ordered. The New Brunswick Court of Appeal found that the trial judge had not properly cautioned the jury about considering a piece of information provided by Oland in his police interview about the colour of his jacket. Find the full decision here.  

The Supreme Court released its decision in R v. Anthony-Cook, clarifying how judges should treat joint positions in sentencing. The court found that generally a judge should follow a joint recommendation on sentence unless it would bring the administration of justice into disrepute. You can see my overview of it here.

Ontario’s Court of Appeal found  in R v. Duncan that harsh conditions in pre-sentence custody can warrant credit for time spend at more than 1.5 to 1.  The court must consider both the conditions in custody and how they affect the accused person. 

Happy Halloween!

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-Cookclarifying 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.

But what does it mean for a sentence to bring the administration of justice into disrepute? The Supreme Court quoted a case of the Newfoundland and Labrador Court of Appeal, which states that the sentence cannot be “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down of the proper functioning of the criminal court system.” In other words, the judge should avoid a decision that will cause an informed and reasonable public to lose confidence in the courts.

Interestingly, this is almost the exactly situation that happened in that very province only a few weeks ago. In the case of Christopher Butt, Justice Goodridge of the Newfoundland and Labrador Supreme Court, accepted a joint position of 5 years for the violent sexual assault of an 11 year old girl. The judge balanced the aggravating facts of the case with the mitigating factors of the guilty plea, apology and Butt’s efforts at rehabilitation. The other important factor was that the girl had had difficulty testifying at the preliminary hearing and her ability to testify at a trial was in question. Given the fact that the plea guaranteed a conviction, and weighing the other factors, the judge found that the proposed sentence was not so low as to bring the administration of justice into disrepute or be contrary to the public interest.

However, the public’s reaction to the case told a different story. Nova Scotia rapper Classified drew attention to the case on social media, calling on the judge to explain himself and asking why the case wasn’t bigger news. A quick scroll through the responses on Twitter shows that he was not alone in thinking that the sentence was too lenient. Indeed, journalist Christie Blatchford wrote that the rapper is in fact more in touch with the public pulse and what brings the administration of justice into disrepute.

So, while the Supreme Court has clarified the rules about how a judge sentence, the question remains as to how judges are gauging how the public might perceive a sentence. The other question that this raises is how informed the public is: were Classified and his supporters aware of the typical range of sentences in sexual assault cases and the specific frailties of the Crown’s case? Even if they were, what is the remedy if a judge did make the wrong call and brought the administration of justice into disrepute? Given that both the defence and the Crown worked out the plea agreement for Butt, neither would be likely to appeal the decision, so what next?

Joint positions are a valuable tool for the criminal justice system that save resources and court time in avoiding trials. And while the courts have established a framework to ensure that proposed sentences are just, the question of the administration of justice will no doubt persist in difficult cases. 

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. 

Meanwhile, two other Alberta judges are having their decisions reviewed in sexual assault cases.

Ontario’s provincial jails have again come under scrunity, after an assault in the Brockville jail. Justice Peter Wright made a call for a public inquiry into the jail, and the victim in the assault has brought a lawsuit against the province for failing to keep in safe while he was in custody.

If you’re looking for a longer read, this CBC interactive story tells the unusual case of a conviction overturned before sentencing in a domestic and sexual assault case in Renfrew. 

Cases:

Justice Thomas, who presided over the murder trial of Travis Vader, broke ground in allowing cameras into his courtroom for the decision. However, this move was quickly overshadowed by the glaring error in his judgment (R v. Vader), where he used a section of the Criminal Code to find Mr. Vader of second degree murder that has been struck down by the Supreme Court. Peter Sankoff, a professor at the University of Alberta, wrote this article for the National Post outlining how the decision uncovers the dangers of these ‘zombie clauses’ in the Criminal Code.  Also, see Michael Spratt's critique of cameras in court

A judge in Ontario’s Superior Court found the mandatory minimum sentence for production of marijuana unconstitutional.  In R v. Pham, a Toronto woman was convicted of producing 1100 marijuana plants in her apartment. Justice Code agreed with her  lawyer that  that the mandatory minimum sentence of 3 years would be grossly disproportionate and sentenced her to 10 months jail and 18 months probation. Read an overview of the case here. 

A Crown attorney also came under fire this month for inappropriate conduct during a trial. In R v. Dhaliwal, the Ontario Court of Appeal found that Crown had engaged in improper cross-examination of a witness and then made a call (on speaker) to another witness in court, while people were still in the courtroom. The Court found that this call was a deliberate ploy to influence the testimony of the witness and that the Crown had deprived the accused of a fair trial. This case, along with another recent case where the Crown was found to have given an improper jury closing, has brought up questions of the ways in which misconduct by Crowns is handled by the Attorney General’s Office. 

The Basics of Bail

We often hear about bail, but many clients (and their families) that I deal with are very unfamiliar with the process. The process in Canada is different from what we see on TV shows and in the news from the United States. While I’ve written about bail before (here and here), this post is meant to be an overview as to how bail works in Canada.

Anyone who is charged with an offence and awaiting trial is considered to be ‘on bail’ whether or not they had a formal bail hearing. There are several types of releases, which will depend on the seriousness of the offence and background of the person being charged.

If someone is charged at the scene of the offence, they may simply be released without conditions and given either a Summons to appear in Court, or Promise to Appear which outlines their next court date.

 If the individual is brought to the police station instead, they may be released with a Promise to Appear and an Undertaking to a Peace Officer. This undertaking is a promise to follow certain conditions, which could include not communicating with the complainant or co-accused, or not to attend their residence or place of work. The conditions could also prevent the individual from going to the location where the offence is alleged to have taken place or taking part is certain activities, such as drinking alcohol. The conditions are meant to be linked to the offence itself and from preventing future offences while the person is on bail.

If a person is not released directly from the station, the police will bring them to court for 'show cause.' In this case, the Crown then makes the decision as to whether they will agree to have the person released on bail.  This situation is more common if the person is already out on bail or has a previous criminal record. Practically, this means that the person who is charged will brought to a courthouse within 24 hours of their arrest, and their lawyer will speak with the Crown and present a plan of release. This plan could include living at a certain address, or not attending certain locations. The person might also propose a surety, which is a person who will supervise them in the community. A surety signs the bail papers, called a recognizance of bail, as a promise to call the police if they are aware that the accused is not following their conditions. They might also provide either a cash deposit or a bond, which is a promise of an amount of money if they don’t report a breach. If the person does not have anyone to act as a surety, they might also consider a bail supervision program from the John Howard Society, which allows them to check in at regular dates.

If the Crown does not agree to an individual’s release, then they may wish to set a bail hearing. In a bail hearing (also called a ‘show cause’ hearing), the Crown presents an overview of their case, often just reading in the synopsis of what happened according to police, although sometimes an officer will testify. If the accused is proposing a surety, then they would testify to show the court that they believe the person would listen to them and follow their conditions. The Crown has the opportunity to cross-examine the surety, and then both sides argue as to why the person should or shouldn’t be released.

There are three grounds of bail:

  • Primary: basically means that person will show up to court and won’t flee the city or country. This ground tends to be an issue if a person isn’t from the place where they were arrested and don’t have roots in the community.
  •  Secondary: this grounds deals with the safety of the community and the substantial likelihood of re-offence. In other words, can the court be satisfied that the public will be safe if they are released and that the person won’t commit any further crimes.
  • Tertiary: whether detaining the person is necessary to maintain confidence in the administration of justice. This ground is generally used in more serious cases, and basically asks whether the average, informed person would be shocked if this person were to be released on bail.

If a person breaks or ‘breaches’ one of their conditions, they can be charged with a separate criminal offence under the Criminal Code. Their bail could be revoked, and they could have to wait in jail for their trial. The other consequence is that both they and their surety can be liable for whatever money they pledged. The Crown needs to go through a process called estreatment to get the money, which involves a hearing before a judge.

The right to reasonable bail is a part of our Constitution. In my view, bail can be a crucial first step of a case, which might allow a person to keep their job, stay with their family and seek treatment while they’re awaiting the outcome of their case. The overall goal of the system, however, is to balance the ability of an accused person to do those things with the safety of the public and the proper functioning of the courts.  

On feminism and criminal defence

I recently met with a law student who was interested in doing an internship with me. As we finished our conversation, she expressed her excitement about the opportunity to work with a feminist criminal defence lawyer. Her eyes sparkled as she said this, as if she had spotted some sort of elusive rainbow unicorn. I sort of shrugged it off at the time, but the comment stuck with me. I realize that when I finished law school and was grappling with how to merge my own goals of social justice with actually paying my bills, that I had not yet identified any feminist practitioners to look to as role models. That being said, I would count many of my own colleagues as feminists, whether they self-identify or not. And while merging feminist analysis with criminal defence work certainly comes with its own set of challenges, I’ve found that it has strengthened my practice.

Whenever I speak to law students, particularly women, I often get a question of whether I could represent someone in a sexual assault case. The idea, of course, is that the rights of sexual assault complainants and accused persons are diametrically opposed. And in some ways they are. However, I always explain that I think it’s better to have a defence lawyer who is well aware of the myths and stereotypes that are often invoked in these trials, who will treat complainants with respect during cross-examinations. The Criminal Code limits the scope of cross-examinations, keeping things like recent complaint and past sexual history off bounds. But there is room there for a feminist ethic to cross-examine on inconsistencies without invoking other sexist tropes.

I also often meet with complainants of domestic assault charges to provide them with independent legal advice. They often are completely overwhelmed as to what is going on and find it helpful to understand the steps of a criminal case and what to expect as a file moves along. I have assisted women to draft affidavits to have their version of events told on their own terms, when they felt that their interactions with police left them feeling ambushed and without control. Meanwhile, I think that a feminist analysis that tries to understand the context of race, mental health, ability and colonialism helps me to better advocate for my clients.

Still, there remains this idea that feminism and criminal defence somehow can’t co-exist.  Watching the Jian Ghomeshi trial unfold was uncomfortable for me, given the media storm and accusations that defence lawyers exploit complainants and hold up a system that surpresses women. I don’t deny that the criminal justice system has its faults, but it was difficult to hear these indictments while being so acutely aware of these issues. I almost wanted to yell “I’m trying!!!” I’m trying to be mindful of my own privilege and power when approaching these cases and to examine my own biases, while still vigorously defending my client. As I prepared to speak on the CBC Ottawa’s evening news about the case, a colleague joked with me that I would be booted from the legal feminist guild. “There’s a special place in hell for women who don’t help other women!’ he laughed. But I didn’t receive any hate mail, and I would like think that I was able to offer some insight into the case and the imperfect way that the courts deal with complex social problems. (Later on, I pulled some comfort from Marie Henein’s comment to Peter Mansbridge: “I’m not about to send myself back to the kitchen just because someone doesn’t like what I do”)

So while feminism and criminal defence may seem like unlikely bedfellows, I think having this approach has helped in my practice. And yes, it was a nice surprise to see that a soon-to-be lawyer has identified this work as something that she can aspire to do too.

 

July Criminal Law Round-up

Race and policing have been at the forefront of headlines, but the month of July brought a host of other criminal law issues into the news. Here are some highlights: 

News: 

The month began with some disturbing case of police violence in the US and ended with a brutal case in Ottawa. Abdiraham Abdi, a 37 year old Somali Canadian died after a violent arrest by Ottawa police. The case has brought up questions about racism in Canada and the use of the force training by police. Sadly, it comes weeks after Ontario’s ombudsman released a report criticising police use of force models and training. A recent march aimed to show support for the family and spark more conversation about police violence and intersections between race and mental illness.  This article by Jamie Long of CBC provides some insight into the role that video can play in the SIU investigation, and references some recent cases, including that of Cst. James Forcillo in the death of Sammy Yatim. And if you missed my post on police accountability procedures in Ontario, you can find it here.

Parts of the carding legislation in Ontario came into force on July 1. The regulations restrict the ability of police officers to randomly stop individuals to check their identity, as these stops are understood to often be racially motivated. For an excellent resource that breaks down the new rules, check out the public legal education initiative “Between the Lines.” 

Justice Lori Douglas, who was the subject of a judicial scandal after her ex-husband leaked intimate photographs of her and the matter was reviewed by the Canadian Judicial Counsel spoke to ‘Real Life’ in an article outlining her experience. It is worth a read.

Cases:

The Supreme Court of Canada released a pair of cases that deals with the issue of delay in getting matters to trial. R v. Jordan and R. v. Williamson completely change the current regime and impose a ‘presumptive ceiling’  of the timelines that are acceptable.  Leonid Sirota who writes the constitutional blog  ‘Double Aspect’ provides an excellent overview of the new regime here as well as a critique of the decision here. 

In British Columbia, a couple who were convicted of terrorism offences had their convictions stayed by the B.C. Supreme Court. The Court found that the RCMP went too far in entrapping the pair, essentially aiding and abetting the commission of the crimes in question. The lengthy decision is here and an overview of the case is here. (Incidentally, the case made the New York Times, which you can read here.) 

The Supreme Court released a case involving the retrospective application of legislative amendments to s. 161 of the Criminal Code which gives courts the ability to restrict certain conduct of individuals convicted of sexual offences against a person under 16 years old once they are released into the community (in this case, using the internet).  Even though the Charter generally prohibits the retrospective use of a harsher law, the court found that the rapidly changing landscape of new technology and social media warranted the restriction. Find the full case here and an overview here.

Cst. James Forcillo, who was convicted of attempting murder in the death of Sammy Yatim, was sentenced to 6 years. He is out on bail pending the outcome of his appeal of the decision. Find an overview which includes the bail decision here

The Ontario Court of Appeal found in R v. Marakah that cell phone users do not have a reasonsable expectation of privacy in a text that is sent to and stored on a recipient’s phone. The case involved text messages that were exchanged with respect to gun trafficking and sent the message that there is no inherent right to text in private. A good overview of the case by lawyer Dan Michaluk is here.