As the year draws to a close, it's time to look back at some of the most significant cases of 2017. Here, five excellent criminal law practitioners provide their takes on the most important cases of the past year. They cover bail, search and seizure, mental health and youth sentencing, and will all have an impact on how we practice criminal law. Read on!
R. v. Antic 2017 SCC 27 by Annamaria Enenajor
One of this year's most notable Supreme Court criminal law decision was R. v. Antic-a decision which says precisely nothing new. This is not to say that Antic was neither significant nor necessary. Often times in the application of legal principles, our courts stray so far from where they ought to be that appellate courts have no choice but to re-visit and re-commit to fundamental principles that our justice system appears to have trouble fully integrating into daily operations.
Even before Antic, there was no dispute that the right not to be denied reasonable bail without just cause was an essential element of our enlightened criminal justice system. This principle is reflected not only in constitutional case law, but also in the language of the bail provisions of the Criminal Code. And yet, over the years, we have witnessed our bail system reach crisis status, with groups such as the John Howard Society, the Canadian Civil Liberties Association and the Criminal Lawyers' Association regularly sounding the alarm. Over-reliance on pre-trial detention, onerous terms of release and the over-prosecution of breach offences have led to a justice system where more than half of Canadian adults in jail are awaiting trial rather than serving a sentence. And so, with Antic, the Supreme Court took us back to the basics - presumption of innocence and all.
In Antic, the Court spoke directly to bail courts. It clarified that the default position for an accused person is his or her unconditional release. If conditions are required, they should be the least restrictive condition necessary to maintain confidence in the administration of justice and to ensure an accused person abides by her or his bail conditions. The Court clarified that it is an error of law for bail courts to fail to justify why a less onerous form of release is not acceptable. In short, Antic is less a decision about new law and more a reminded that if we followed the old law correctly, the state of bails should not be what it is today.
R v. Jones 2017 SCC 60 by Michael Spratt
In two of the last decisions released by the Supreme Court in 2017 - R.v Marakah and R. v. Jones - Canada's highest court dramatically changed the country's legal landscape. Marakah got all the attention - the court overturned a conviction and acquitted Mr. Marakah. In doing so they made a groundbreaking pronouncement - the sender of text messages has privacy in those messages even after the sent button is pressed. But it may be the case of Jones that gets more play in the legal trenches.
It was always a ridiculous situation. The Crown alleges that your client was in possession of drugs, or stolen property, or anything illegal. But the police acted unconstitutionally in their search and seizure of the illegal property. Your client maintains that the illegal property was not theirs. Then the defense has to make an impossible choice. If the defense claims no interest in the property the Crown will argue that there is no standing to advance a Charter argument about the illegal search and seizure. And if the defence pursues the Charter argument - they have admitted possession and most of the Crown's case.
It was an absurd situation that immunized illegal police action and resulted in wrongful convictions. But that was the law and the seminal Supreme Court cases of Edwards and Belnavis fully embraced this absurdity. And so did Crown prosecutors, who leveraged this catch-22 to their advantage day in and day out in courts across Canada.
But Jones changes all of this. The Supreme Court recognized the common-sense proposition that if the state is alleging that illegal property yours, and saying that you had possession and control over it, and prosecuting on that theory, then your standing to seek a Charter remedy for illegal search and seizure is virtually automatic. In other words, an accused mounting a section 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him.
Standing to bring a Charter application does not mean that application will succeed. But in reversing the absurd catch-22 that have been leverage by prosecutors for decades the Supreme Court has - finally - fully embraced the right to silence, the importance of exacting scrutiny of poor police behavior, and the realities of every day litigation in the trenches.
In the end, Marakah may have received top billing in the newspapers and had his conviction overturned but it will be Jones that defence counsel will use on a daily basis and should have at the ready in their litigation folder.
R. v. Dedeckere, 2017 ONCA 799 by Neha Chugh
This sentence appeal from the Ontario Court of Appeal caught my attention in 2017. Most criminal lawyers can say that their clients' mental health considerations form substantial portions of their sentencing submissions. How the Court's consider the appropriate sentences based on the mental health of the accused and their moral blameworthiness is considered by the Court of Appeal in this case.
The appellant pleaded guilty to criminal negligence causing bodily harm -during the course of a mental health crisis, Mr. Dedeckre drove his car in an erratic manner, striking a hydro pole, and debris from the accident seriously injuring an innocent victim. The appellant was an in-patient at a nearby mental health institution and suffering from symptoms of his mental illnesses at the time of his suicide mission. The sentencing judge imposed a term of incarceration of 2 years imprisonment in a penitentiary followed by 3 years probation and a 6-year driving prohibition. The main aspects of sentencing emphasized by the judge were denunciation and deterrence. The Court of Appeal allowed leave to appeal for sentencing and substituted the sentence of one year of incarceration and 2 years of probation. The Court of Appeal stated very clearly:
 Specific deterrence has little relevance in the context of suicide and general deterrence is a factor of decreased significance when sentencing those whose behaviour is driven by mental illness. As explained by Gillese J.A. in R. v. Batisse, 2009 ONCA 114(CanLII), 93 O.R. (3d) 643,  at para. 38, when "mental health problems play a central role in the commission of the offence ... deterrence and punishment assume less importance." Here, the Crown acknowledged that the appellant's mental illness played a central role in the offence.
 Moreover, the sentencing judge failed to consider that the moral blameworthiness of the appellant was less than that of someone who had set out to do such harm to another. The sentencing judge attached moral blameworthiness to the appellant's desire to take his own life rather than considering the impact that the appellant's bipolar disorder and depression had on his judgment.
 The sentencing judge should have considered the appellant's serious and longstanding mental health issues as a central component of the appellant's circumstances. Instead, the sentencing judge focused on the appellant's "chronically suicidal behaviours" and continued "struggles with his mental illness" as a basis for incarceration.
 Clearly these errors impacted the two-year penitentiary sentence that the sentencing judge imposed, a sentence that was unfit in the circumstances.
I like this case because it emphasizes how an accused person's mental health during the commission of an offence is directly proportionate to their intent, and therefore a paramount consideration for our Courts. During my initial interviews with clients and subsequent information gathering sessions, developing this evidentiary foundation is always on my mind. If you are accused of an offence, make sure you work with your lawyer to fully inform them about your history of mental health and any recent struggles you have had. Lawyers, keep this case in your back pocket to remember that there is an inverse relationship between moral blameworthiness and declining mental health, and don't forget to remind the Court of this during your sentencing submissions!
R v M.W. and T.F. 2017 ONCA 22 by Brock Jones
When, if ever, should criminal courts impose adult sentences on young persons for their crimes?
We are, naturally, appalled by crimes of extreme violence. Wrongdoers must be deterred and punished. Victims must be honoured.
But matters become more complicated if the perpetrator of a horrific crime was not yet 18. Are the same values engaged as with adult offenders? Should they be?
The Ontario Court of Appeal attempted to provide some guidance to this question when it granted judgment in R v M.W and T.F., 2017 ONCA 22.
The Court clarified that young persons are "constitutionally different" from adults for sentencing purposes. Since the Supreme Court's 2008 decision in R. v. D.B., 2005 SCC 22, young persons have been entitled to a presumption of diminished moral culpability under the Charter. That presumption must be rebutted by the Crown before an adult sentence may be imposed.
Of great practical value to lawyers, the Court clarified that the nature of the offence itself - however disturbing - is only one factor to consider. The background of the offender, including his or her life circumstances, will also play a central role in the analysis. In the result, M.W. and T.F, despite being found guilty of first degree murder for planning the execution of their friend, won their appeals and were granted youth sentences.
M.W. now remains the leading appellate decision on this issue. (The Crown sought, and was denied, leave to appeal to the Supreme Court of Canada.) It will inevitably shape the discussion for years to come, and all lawyers who practice children's law in any form should be familiar with it.
Brock Jones is a Crown and adjunct professor at the University of Toronto's law school. He is the author of Prosecuting and Defence Youth Criminal Justice Cases. Follow him on twitter at @BrockBJones.
R. v. M.G.T., 2017 ONCA 736 by Jessyca Greenwood
Counsel often uncover helpful evidence captured on 911 recordings. They are often made contemporaneously to events and can be extremely important to corroborate or contradict another witnesses' version of events. When a person calls 911 those calls are recorded and they are immediately accessible by police. This system is what dispatches police to calls. 911 recordings are inherently first part disclosure. Despite stating the obvious some prosecutors say that 911 recordings are not disclosable because they are not in their possession or they are third party records. The case of R. v. M.G.T., 2017 ONCA 736, has some helpful discussion of the law on disclosure of 911 calls.
At paragraph 151, Justice Watt describes: "It is unfathomable that over two decades after Stinchcombe, a local Crown Attorney's office would promulgate and adhere to a policy of non-disclosure, at once ill-conceived and constitutionally infirm. Such a policy amounts to an abrogation of the Crown's constitutional obligation, the creation of a Charter-free zone that bars entry by an accused to obtain his or her constitutional entitlement. If it persists to this day, it has exceeded its best before date by about 35 years and should cease immediately".
The non-disclosure in this case did not warrant a new trial, but hopefully a quote or two from this Court of Appeal judgment in your next disclosure letter will result in disclosure without an unnecessary application.
A huge thanks to all the contributors, and happy holidays from McElroy Law!