For those with even a passing interest in the news or the criminal justice system, it would seem that the Canadian courts are now overrun with problematic sexual assault cases and judges. We recently saw Robin Camp resign as a federal court judge, after infamously asking why a complainant failed to 'keep her knees' together. A case in Halifax has the public outraged as a judge asserted that even drunks can consent. As public confidence in our court system seems to be shaken, the federal government has cast its gaze on judicial education as a response.
This past weekend, the Criminal Lawyer's Association hosted a conference in Toronto for women defence counsel. The well-attended event provided female defence lawyers, and some students, lots of practical tips and food for thought of our role in the criminal justice system. The conference, now in its third year, grew out of a need for a space for female defence lawyers to talk about specific issues that affect women in private practice. In 2016, the CLA released a report with respect to the Retention of Women in Private Practice, which illustrated the various challenges facing women defence lawyers, from the financial logistics of taking time off to have a child, to the gendered difference of treatment by those in the court system. The conference was one way for defence lawyers to connect and talk about these challenges, while providing space for women to share and celebrate some of their successes.
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.
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.
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.
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!
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.
While the U.S. election dominated headlines this month, there were plenty of important criminal law stories north of the border.
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:
Here are this month's headlines and cases from the world of criminal law:
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.