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November Criminal Law Round-up

On Behalf of | Nov 30, 2016 | Uncategorized

While the U.S. election dominated headlines this month, there were plenty of important criminal law stories north of the border.


As Trump supporters celebrated the outcome of the election, a judge in Hamilton broadcast his approval by wearing a ‘Make America Great Again’ hat in court. Justice Bern Zabel was swiftly criticized for the move with many organizations, including the Criminal Lawyers Association, filing complaints with the Judicial Council. Justice Zand has since apologized for his actions. University of Windsor law profession David Tanovich responded to the incident, outlining how the political statement not only runs counter to the Principles of Judicial Office, but also raises a perception that individuals of minority groups would not receive a far and impartial hearing.

Another troubling story of the past month stemmed from reports that Montreal police have been spying on journalist Patrick Lagace. Police obtained at least 24 surveillance warrants, tracking Lagace’s phone, including incoming and outgoing phone numbers, to probe into street gangs and drug trafficking. The podcast Canadaland gave some interesting insight into the intersection of criminal courts and freedom of the press in Canada.

Marie Henein, who represented Jian Ghomeshi earlier this year, has sparked debate over a speaking engagement at Bishop’s University (to be broadcast to other universities). Some students have claimed that Henein might re-traumatize victims of sexual violence and perpetuate rape culture, while the response from the legal community has been to question the public’s understanding of the role of defence counsel. Criminal defence lawyer Breese Davies wrote a powerful piece for the Walrus, arguing that attacking lawyers like Henein will not serve to end violence against women.

Justice Minister Jody Wilson-Raybould announced plans to repeal section 159 of the Criminal Code, which prohibits anal intercourse for people under 18 years old, unless they are husband and wife, as it violates equality rights. The section is just one of many ‘zombie clauses’ that remain in the Criminal Code despite having been declared unconstitutional. (See the Vader case from September’s round-up.)

And in lighter news, the Kensington Police Service in Prince Edward Island is threatening to play Nickelback to people arrested for impaired driving. They released a statement on Facebook, stating: “We figure if you are foolish enough to get behind the wheel after drinking, then a little Chad Kroeger and the boys is the perfect gift for you.” Now there might be an example of deterrence…


Adam Picard, who was accused of the murder of Fouad Nayel in Ottawa, was granted a stay of proceedings in his case because of the 4 year delay in getting the matter to trial. The case comes after new rules from the Supreme Court of Canada in R v. Jordan (see August’s round-up) In her decision, Justice Parfett noted that there remains a ‘culture of complacency’ in terms of delay, and reluctantly stayed the charge. The Crown is appealing the decision.

The Ontario Court of Appeal found that a section of the Criminal Code brought in by Harper’s conservative government that limits pre-sentence custody is unconstitutional. Section 719.3 placed a cap of credit on those in custody who had breached a bail condition and then were arrested and detained. Read the full decision here.

And in perhaps the most unusual case of the month, an Ottawa man was found guilty of smuggling $165000 worth of gold from the Royal Canadian Mint… through his rectum. Read all of the sordid details here.

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