September Criminal Law Round-up

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


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. 


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: 


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.


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.

Drunk on power: proposed changes to impaired driving law in Canada

A few weeks ago, the Ottawa Citizen wrote about a study from the U.S. Centers for Disease Control that found that Canada is number 1 among wealthy countries for roadway deaths involving impaired driving. According to the study, 34 % of motor vehicle deaths in Canada involve alcohol, much higher than many other countries.

The article outlines how the study has been received by some advocates as a call to action to combat impaired driving, and points to a private member’s bill currently before parliament that seeks to do just that. The bill has already gone through second reading and will be undergoing review by parliamentary committee in the fall.

Bill C-226 proposes some far-reaching measures that will completely reconfigure the landscape of impaired driving law in Canada. While some of the proposals focus on mandatory minimum sentences for certain offences, particularly impaired driving causing death, others go to the procedural side of investigations.

In Canada, if a police officer suspects that someone has alcohol in their body while driving, they can demand a sample of their breath into a roadside screening device. The court needs to find that the officer subjectively suspected, but also that their suspicion was reasonable given their observations. If a court finds that an officer does not have a reasonable suspicion to ask for a roadside, then the subsequent breath samples can be thrown out of court. A similar line of reasoning follows for situations where an officer has reasonable grounds to believe that a person is impaired while driving. Then, they can skip the roadside test and go straight to a breath sample that happens at the police station. Criminal trials on impaired driving charges often turn on whether or not the officer had a reasonable suspicion or reasonable grounds, with defence lawyers bringing a Charter application to have the evidence excluded. The idea is that if an officer is collecting evidence without a proper reason for doing so, that they are infringing on the individual’s right to be free from reasonable search and seizure (s. 8 of the Charter) and arbitrary detention (s. 9).

Bill C-226, however, proposes a list of factors that, alone, would constitute reasonable grounds to suspect a person has alcohol in their body. They include erratic movements of a car, a person’s admission of consuming alcohol, the odour of alcohol on someone’s breath or their car and involvement in an accident that resulted in bodily harm or death. Under the current regime, an officer typically needs to establish at least an admission of consumption and an odour of alcohol from the person’s breath, although the variables of observations often change. This proposed change widens the scope of police arrest power almost infinitely. Imagine you were a designated driver, and are pulled over, only to have an officer smell alcohol coming from you car (i.e. passengers who you are designated to drive home). “Erratic movements” of a car, which could be attributable to many things, could also form the basis for a stop. Allowing stops and roadside demands on the basis of just one indicia of bad driving or impairment is a huge change from the current procedure.

The bill goes even further to say that if a police officer has an approved screening device (roadside) in their possession, then they can randomly stop individuals to test their breath. This change marks a huge leap from the current requirements, essentially giving police officers carte blanche to stop whoever they choose. I cannot see how this broad search power would survive a Charter challenge, given how much power it would give to police to randomly stop motorists.

Clearly, drinking and driving remains a pervasive problem in Canada.  But the law is a blunt tool to spur social change, and the amendments proposed by Bill C-226 may do little to curb this issue.  Often, people who are driving while drunk are not aware of their own intoxication.  Mandatory minimum sentences often provide little deterrence until someone is actually charged, as people are usually not aware of the sentences. More importantly, the sweeping changes to expand police search powers will need to be balanced against an individual’s right to be free from unreasonable searches and stops.  A cure for this social problem will require a more complex approach than what is now being offered. 

Black Lives Matter: Police Accountability in Ontario

In the past few days, the deaths of Philando Castile and Alton Sterling have rightly dominated headlines and my social media feeds. In the days and weeks after of such tragic and senseless events, it is hard not to feel helpless. As I was listlessly scrolling through my twitter feed this afternoon, I was struck by this link to a article entitled "5 questions every citizen should know about police accountability.' It references a number of tweets from ljeoma Oluo, an editor for 'the Establishment' and urges those wondering what they can do to help to ask themselves whether they are familiar with their city’s police accountability procedures. It also asks about mechanisms for civilian oversight, as well as the threshold for an officer being indicted. While Canada’s systems are slightly different, and handled provincially, the message and answers are just as important so I'm sharing the procedures for my city and province here.

In Ontario, police accountability is handled through the Ontario Independent Police Review Board. It receives and investigates complaints against municipal, regional and provincial police services. The OIRPD must believe that there are reasonable grounds to believe that misconduct occurred in order for the complaint to be substantiated. If the complaint is less serious, then it might proceed to an ‘Informal Resolution.’ In more serious cases, the chief must hold a disciplinary hearing. The link to the complaint form is here.

 If an incident involving police and civilians has resulted in serious injury, death or allegations of sexual assault, then that matter is referred to the Special Investigations Unit (SIU). The SIU is a civilian agency, independent of the police. It is mandated by the Police Services Act. Incidents that fall into their mandate (death, serious injury, sexual assault) must be reported to the SIU by the police service, but can also be reported by the complainant or another person. The SIU can be contacted here. 

Finally, The Ontario Civilian Police Commission (OCPC) is an independent oversight agency that hears appeals of police disciplinary decisions and conducts investigations and inquiries into the conduct of chiefs of police, police officers and members of police service boards.

The Canadian system is different from the American one. Here, officers aren’t indicted, but they can fact disciplinary hearings or criminal charges. (Remember Cst. Forcillo who was tried and convicted of attempted murder in the death of Sammy Yatim.) Ontario’s Court of Appeal recently clarified the standard of proof in disciplinary proceedings as ‘clear and convincing evidence, which is a higher threshold than the civil standard of a balance of probabilities, and allows for less scrutiny of police officers.

Just because the frameworks are there does not mean that they work perfectly or respond properly to police misconduct. In fact, Ontario recently ordered a review of police oversight agencies. Also, Ontario’s Ombudsman just recently released a report on the adequacy of police training to de-escalate violent situation. It asked whether police were doing enough to ‘talk people down’ and found that it wasn’t that police officers weren’t following their training, it was that they weren’t properly trained. The report makes 22 recommendations in total, focusing on legislative changes and an updated use-of-force model that focuses on de-escalation.

In instances where the contact with police resulted in an individual being charged, the Charter may also provide some recourse. Cases such as Stacy Bonds, who was strip searched and kicked by Ottawa Police officers resulted in a stay of proceedings, meaning that the judge tossed out the charges given the egregious Charter violations.. Meanwhile, the Supreme Court has held in the case R v. Nasogaluak that an individual’s sentence may be reduced as a remedy for excessive use of force during their arrest.

It is important for defence lawyers to be mindful of these cases and to be viligant about ensuring that evidence of excessive use of force or police brutality are being brought up in court. Regardless of whether it results in a remedy for the specific client, it can establish a pattern behaviour that highlights systemic issues of discrimination. Such was the outcome of a recent case in Toronto, where Justice Heather Armstrong stayed an impaired driving charge after the accused person was strip-searched. She found that it was necessary to send a clear message to the police force that this practice was unacceptable, stating that anything short of a stay would be “judicial condonation of egregious police misconduct and erode the public’s confidence in the administration of justice.”

Canadians need to stand in solidarity with Americans in the wake of these events and cannot rest easy with the false idea that this sorts of things cannot or do not happen here. Knowledge of the complaint and oversight procedures are an important step in working towards police accountability. 

June Criminal Law Round-up

The month of June brought some interesting topics to the fore, particularly from the highest court in the land. Read on: 


At the beginning of the month, the task force on the Ottawa Carleton Detention Centre released its recommendations to improve the conditions at the jail. The recommendations range from reforming bail to improving health care (see an overview here: ) . While they are seen as a positive start, the outcomes have been criticized by groups such as the John Howard Society, who argue that the report does not go far enough to address issues with bail and the overreliance on sureties.

Newly appointed Minister of Community Safety, David Orazietti will also be reviewing the recommendations of the Ontario Ombudsman in a report on police use of force, following the death of Sammy Yatim and others by police. The report urges more rigorous training for police to de-escalate violent situations, and criticizes Yasir Naqvi's handling of the issue. Read the full report, or an overview from the Ottawa Citizen's Dave Reevely.

The Toronto Star ran a story about a law student who was denied a ride along based on police records that had documented him while in the company of people with criminal records. Mr. Singh is bringing a complaint to the human rights tribunal, claiming that he has been unfairly targeted on the basis of his skin colour. The story shows the dangers of police carding and the far-reaching implications of collecting data on the basis of race. …

In an unusual case, three Toronto police officers are suing the Attorney General on the basis that the Crown attorney did not challenge accusations that they had beaten a robbery suspect. The officers argue that had the Crown (it names three individuals specifically) properly conducted the trial that the officers would not have suffered damage to their livelihoods and reputations. 


The Supreme Court released a decision about bestiality, tracing the history of the offence to find that the offence requires penetration with an animal. The full decision is here,  you can read this overview of the case by Camille Labchuk, who intervened in the case on behalf of Animal Justice. Her article provides a quick summary of the case and argues that it is in fact good news for animals.  

The Court also released a decision in R v. Saeed, a case which asked whether police need a warrant in order to swab a man’s penis for a complainant’s DNA.  The Court likened penile swabs to a strip search, finding that as long as it is carried out in a reasonable manner, search can be justified. The case allows for the collection of samples without a warrant, a troubling expansion of police powers, as articulated by defence lawyer Howard Krongold, who represented the Criminal Lawyers Association at the hearing. 

The British Columbia Supreme Court awarded damages of 8 million dollars to Ivan Henry following his wrongful conviction and 27 year incarceration. The Court found that the Crown had withheld disclosure which affected Henry’s right to a fair trial. This article provides a helpful summary of the 130 page decision . The most concise commentary on this decision comes from Emma Cunliffe, a professor at the Allard School of Law at UBC, who wrote a series of tweets about the questions that the case raises.