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January 2018 Criminal Law Round-up

News

As the #MeToo movement continues, more women have come forward with allegations of sexual misconduct. Most notably, (former) Ontario Conservative leader Patrick Brown stepped down after allegations of sexual impropriety were leveled against him. The story has garnered much commentary from the media and legal community alike. Some, like Edward Prustchi argue that the case signals the fall of the presumptions of innocence and due process, while columnist Edward Keenan argues that the presumption of innocence does not have a place in politics.

Public Safety Minister Ralph Goodale announced that the federal government is examining the possibility of pardons for those with convictions for possession of marijuana. I spoke to CBC about the issue here, emphasizing that pardons would be a way to redress some of the harm of marijuana convictions that has been disproportionately born by marginalized communities. Anthony Morgan highlights the impact of marijuana policy on Black Canadians, and how these voices have been missing from the consultations and conversations so far.

Gerald Stanley, the man accused of killing Cree man Colten Boushie when he stopped for help at his farm, began his trial this month, raising the issue of jury selection and Indigenous jurors. University of Toronto professor Kent Roach argues that the process of jury selection is not fair to Indigenous communities given the availability of preremptory challenges, and the Supreme Court's ruling in 2015 that an accused does not have a right to representative jury.

Cases

The Ontario Court of Appeal addressed the limits on sentencing judge's ability to amend a sentence once it had been imposed in the case of R v. Hasiu. In this case, after the completion of the sentencing, a judge modified the sentence so that it one count would run consecutively to the other. The issue on appeal was whether the judge was functus at that point, and the court found that the amendment to the information was not fair and restored the concurrent sentence.

In a lengthy decision, British Columbia Supreme Court judge ruled that indefinite solitary confinement is unconstitutional and that the Correctional Service's Canada administrative segregation policies discriminate against Indigenous and mentally ill inmates. This post from the BC Civil Liberties Association provides a good overview of the case and the reasons for the decision. 

In R v. Le, the Ontario Court of Appeal upheld a conviction of a man who was arrested after officers entered his backyard to see what the occupants were doing and ended up finding drugs and guns. In this search and seizure Charter case, a strong dissent by Justice Lauwers acknowledged the Charter violations and that this situation would not likely have happened in a more affluent and less racialized community. The appellant is considering an appeal to the Supreme Court.

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