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. 

May Criminal Law Round-up

This month saw a big variety of interesting cases on the criminal law front, from policing to jails to sentencing.


After news stories of the severe impact of solitary confinement continued to capture public attention, Ontario’s ombudsman called for an end to indefinite segregation. Professor Lisa Kerr wrote an op-ed for The Globe and Mail, calling for amendments to the Corrections and Conditional Release Act to stop this dehumanizing treatment.

Ottawa lawyer Paul Champ announced that he is bringing a class action lawsuit against the province on behalf of two former prisoners at the Ottawa Carleton Detention Centre. You can read more and listen to an interview about the case here.

Jian Ghomeshi managed to stay in the news this month as his case came to an abrupt end when he entered into a peace bond and his final charge of sexual assault was withdrawn by the Crown. In case you missed the media storm surrounding this event, you can refresh your memory here.


A Superior Court judge found that inmates at the Maplehurst jail had their Charter rights violated by the frequent lockdowns. The judge awarded the two individuals who brought the case $60000 and $25000 respectively. This case is different than the Ottawa one listed above, as it was not a class action, but still provides an important precedent. You can read the decision here or read a helpful overview hereAnd if you missed it, you can catch up on my post about lockdowns at the Ottawa jail here. 

A judge in Brampton decided an impaired driving case and held that the device used in impaired driving screening, the Intoxilyzer 8000C, is unreliable, calling into question the validity of guilty verdicts in such cases. The case is being appealed by the Crown, but could have a significant impact on the ways in which drunk driving cases are handled by police and the Crown.  

The Court of Appeal for Ontario released a case this month dealing with the standard for police officers who are disciplined under the Police Services Act. The court found that in order to show misconduct, the evidence must be clear and convincing, rather than proof on a balance of probabilities. Yamri Taddesse provides an overview here, outlining how this decision provides for a heightened quality of evidence in order to show misconduct.

Another notable case from the Ontario Court of Appeal dealt with sentencing of Aboriginal people and the application of Gladue principles. (See my previous post on that here.) The court found that it is an error in law not to take into account an individual's Aboriginal background. You can find the full case here, or read an overview here. 

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I had an op-ed published in the Ottawa Citizen, explaining how peace bonds, particularly in the context of cases such as Ghomeshi, can indeed be a 'path to the truth' as suggested by complainant Kathryn Borel. You can read it here


A step-by-step guide to a criminal case

Despite seeing news relating to criminal law on a daily basis, most people who have never been charged have no idea how the court system works. The whole process can be overwhelming, but it helps to know what steps are involved. I find myself routinely sketching out this diagram with clients, so I decided I should share it here.

The first step of the process is the incident itself. A charge is laid by the police which sets the system in motion. The individual charged will then be compelled to appear in court by one of several means. If the police release the person from the scene, they may issue a summons or a promise to appear. If they are not released, they could be held for bail.

If someone is held for bail (or ‘show cause’) then they will be brought to court by the police. There, a Crown attorney will review the file and decide whether they will consent to the individual being released. If so, then the Crown and a defence lawyer will work together to draft conditions that the person must follow. These could include not attending certain locations or abstaining from alcohol. If the Crown does not consent, then we must set a bail hearing. This hearing might take place a couple of days later, and will involve presenting evidence to a justice of the peace about where the person might live and what supervision can be offered. A person may then be released on a recognizance and given a date to come back to court. 

Once bail has been decided, then the individual will appear in remand court. Remand, or set-date as it is called in some courts, is used to set meetings and other court dates. No pleas are entered here. If a person does not have a bail condition to appear personally for remand, then a lawyer can appear on their behalf if they’ve signed a form designating them as counsel.

The next important step is to review disclosure. Disclosure is all of the evidence that the Crown has about the case, which they are obligated to give to the defence. The review of disclosure by a lawyer with a client is critical to assessing the strength of the Crown’s case and possible defences. 

A lawyer will then meet with a Crown prosecutor in a counsel pre-trial (or CPT). This meeting is used to discuss where the file is going, either to plea or trial. A defence lawyer might bring information about a client’s background to pitch a more lenient sentence, or the lawyers might simply discuss length of trial.

Sometimes a case will warrant some further discussions with a judge. In this case, we would set a judicial pre-trial (or JPT). At this meeting, the investigating police officer might also attend to give input. A judge will give their opinion as to an appropriate sentence, or confirm how long a trial would take.

Once the case has been reviewed and discussed, it is then up to the client to decide whether they want to plead or go to trial. (Sometimes a case will resolve outside of these options, if for example the Crown decides to withdraw the charge, but these are the typical options.) The client gives their instructions as to how they wish to plead. 

If someone pleads guilty, then they are taking responsibility for the facts that the Crown is alleging. In a plea court, the person is admitting to what they have been charged with and then are sentenced, which will be discussed below.

At a trial, a person is holding the Crown to their job of proving every charge beyond a reasonable doubt. The Crown will call witnesses to testify to prove their case and a defence lawyer will have the opportunity to cross-examine them. The individual may choose to testify at his or her own trial, but there is no obligation to do so. If the judge finds a person not guilty, then they are acquitted and the case ends there. If the person is guilty, then they proceed to sentencing.

At sentencing, a judge will decide the appropriate punishment for an offence. A sentence can range from an absolute discharge to jail, depending on a variety of factors. A judge’s ultimate job here is to balance aggravating and mitigating factors to decide the appropriate outcome.

Keep in mind that this is a very brief sketch of the typical case. While some files will deviate from this course, this is the routine path that criminal matter will take through the courts. 

April Criminal Law Round-up

While the Duffy verdict dominated headlines, there were lots of other criminal law news and cases of note this month:


The Ottawa Carleton Detention Centre continued to make the news, with Minister Yasir Naqvi ultimately calling a task force to address the chronic overcrowding and harsh conditions. Read about the taskforce here, or find my thoughts on it in a previous blog post

Macleans ran a heartbreaking story featuring a letter written to Kinew James, a woman who died at the Regional Psychiatric Centre in Saskatoon. The letter gives a rare insight into compassion and resilience of the women who are incarcerated in Canada. An inquest into James' death began this month but is being adjourned to expand its scope to include her medical and mental health records from her time in custody.

Meanwhile, in Toronto, the Special Investigations Unit report in Andrew Loku's death was finally (partially) released. Loku was killed by police in July of 2015, and after intense pressure by the group Black Lives Matter Toronto, the Ontario government released the findings of the report. Read some background as to the decision and the impact of the decision here.  


In a lengthy decision, Justice Vaillancourt acquitted Mike Duffy was acquitted of all 31 counts of fraud, bribery and breach of trust. In case you aren't up for reading the full decision, you can listen to Michael Spratt and Emilie Taman speak with law professor Peter Sankoff on their podcast "The Docket."

The Supreme Court released two important criminal law decisions this month. R v. Lloyd dealt found the mandatory minimum sentence for drug possession where a person had a previous record for drugs was unconstitutional. In R v. Safarzadeh-Marhkalithe court found that the Conservative's Truth in Sentencing Act, which limited pre-sentence custody to those detained awaiting trial because of their criminal records was also unconstitutional. The cases were seen as the court dismantling Harper's 'Tough on Crime' regime. Read an overview of the cases here and see my thoughts on Safarzadeh-Markhali here.

The case of David and Collet Stephan, whose son died of meningitis after being treated with naturopathic remedies, drew lots of attention. The couple were ultimately convicted of failing to provide the necessities of life and the matter has been adjourned for sentencing. 


My Brain Made Me Do It: Neuroscience & Criminal Law

CBC’s the Nature of Things will be airing a fascinating documentary tomorrow night, March 17 at 8 pm, about the intersection of neuroscience and criminal behaviour. (Check out the trailer here.) The show asks some important questions about how the human brain affects behaviour and how the criminal justice system deals with this information. Essentially it comes down to asking who is ultimately to blame for criminal behaviour, the individual or their brain?

For me, one of the documentary’s most compelling examples was of an individual with no criminal background who all of a sudden started to hoard pornography. His behaviour escalated and he was later arrested for sexual assault against a child. A brain scan revealed a massive tumour that was pressing on a part of the brain responsible for inhibiting urges and desires. Once the tumour was removed, his symptoms of pedophilia disappeared. Interestingly, his symptoms began to re-emerge six months later and a brain scan showed that the tumour had grown back.

While this is perhaps an extreme example, the film also shows research of brain scans done on individuals who are incarcerated. The results show a pattern characterized as less ‘muscle mass’ in the emotional regions of the brain and a weaker connection between the frontal lobe and temporal lobe. These characteristics can affect empathy, impulse control and decision making. Similarly, drugs can affect our brain’s ability to manage information, throwing the rewards systems off balance. In fact, the film showed some examples of individuals who were given medication for Parkinson’s disease, and subsequently found themselves engaging in compulsive behaviours, from obsessively studying to gambling.

These stories made me reflect on many of the clients that I’ve represented over the years, who have acted in ways that didn’t make sense even to themselves. What would their brain scans look like? And how might that affect their cases?

The film doesn’t seem to suggest that neuroscience should necessarily absolve an individual of all responsibility for a crime, but instead might give some context as to their moral culpability. We use drug courts to provide a different structure to the court process that focuses on treatment rather than strict punishment, so maybe there could be room for this in terms of a person’s brain biology.

While the more extreme examples of brain lesions might come into the territory of NCR (not criminally responsible), the more common cases where a person’s brain is wired such that they are pre-disposed to criminal activity could provide a useful mitigating factor on sentence. In the same way that drug addiction or mental health are used to contextualize a person’s behaviour, neuroscience could provide significant insights. More importantly, this information could hopefully help to treat and rehabilitate those being sentenced, rather than just warehousing them in prisons. Indeed, the documentary shows that often the punishment of jail does nothing to deter behaviour, given the underlying reasons for the behaviour.

In the end, the documentary seems to suggest that as technology develops, criminal behaviour may become more ‘treatable.’ From my perspective, this shift in technology will need to be accompanied by a shift in how we understand culpability and moral responsibility, and an emphasis on rehabilitation rather than deterrence. These views are certainly at odds with the “Tough on Crime” approach that has dominated Canada’s justice system under our previous government. But a focus on the underlying causes of crime, be it the brain, addiction, mental illness or something else, coupled with an emphasis on treatment and rehabilitation should benefit both those within the criminal justice system and the community at large.

(If you're not able to catch the doc on CBC tomorrow night, it will be posted on March 18 at http://www.cbc.ca/natureofthings/episodes/my-brain-made-me-do-it).