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November 2017 Criminal Law Round-up

News:

The biggest news of the month came right at the end, when Justin Trudeau announced Sheilah Martin as the new chief justice of the Supreme Court of Canada. Justice Martin was elevated from the Alberta Court of Appeal and boasts an impressive resume. (Have a look at her judicial questionnaire to see her long list of accomplishments.) She has been received by many legal experts as a qualified and competent choice, however many were disappointed by the fact that Trudeau did not choose an Indigenous judge for the position. This article featuring Ottawa University professor Vanessa Macdonell provides an excellent overview of the process and factors that go into selecting a chief justice.

Prime Minister Trudeau also issued a long-awaited apology to members of the LGBTQ2 community who were affected by the government's discriminatory practices, including the criminalization of homosexual activity. Legislation was also introduced to clear the criminal records for those who were prosecuted for consensual same-sex activity. Some critics, such as University of Ottawa law professor Kyle Kirkup, argue that the apology does not go far enough to redress ongoing discrminatory policies such as the gay  blood ban and the criminalization of HIV.

MP's in the justice committee began a study into the mental health effects of serving on a jury, in an effort to help jurors with PTSD and other lasting effects from participating in the justice system. On their podcast "The Docket" Michael Spratt and Emilie Taman discuss why this sort of counselling should be available to all justice system participants, particularly defence lawyers often work alone or in small offices and can be isolated.

The Ontario Human Rights Commission announced that it is launching a public interest inquiry into racial profiling in the Toronto Police Service. Chief Commissioner Renu Mandhane detailed how the commission will ask for 7 years of data from the service in order to determine how racialized communities are disproportionately impacted by police encounters. 

Cases:

The Supreme Court ruled in R v. Sciascia that courts can try cases that involve both criminal offences and provincial offences (such as Highway Traffic Act charges) so long as there is a sufficient factual nexus between the two sets of charges and it is in the interests of justice to try them together. This article provides a good overview of the case, outlining the factors the court took into consideration. Given that a joint trial is not prohibited by the statute, the joint trial would be more efficient, the offences came out of the same event and were therefore factually connected and finally that there was no prejudice to the accused.

In R v. Barnett, the Ontario Court of Appeal considered the issue of pre-sentence custody and how it is allocated when an accused person is in custody on more than one set of charges. Ultiamtely, the court found that the sentencing judge was justified in using pre-sentence following a first arrest towards a later conviction, given that the later charges were properly viewed as meeting the 'as a result of' requirement in s. 719(3) of the Criminal Code.

In British Columbia, a judge sentenced Patrick Fox to 4 years for harassing his wife online and creating revenge websites. The case is being considered a new landmark in online criminal harassment, given the length of the sentence and the fact that the criminal activity occured only online.

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