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July 2018 Criminal Law Round-up

We may be mid-way through the summer, but the news and cases of criminal law hasn't slowed down much. 

News:

Shortly after being elected, Doug Ford's provincial government has announced that it will postpone the implementation of the Safer Ontario Act, which would have expanded the scope of the Special investigations Unit. This editorial from defence lawyer Dan Brown warns that the new Attorney General, Caroline Mulrony, should no undo the work done by the previous government, including that of Justice Tulloch's report on use of force. 

Following the horrific crash in April involving Humbolt Broncos hockey team, the RCMP laid charges of dangerous operation of a motor vehicle against the driver of the semi-trailer that collided with the team's bus. This article highlights some of the challenges that the Crown will face in proving this charges, including commentary from law professor Michael Plaxton, who notes that a momentary lapse of judgment or moment of inattention is not enough to ground a conviction for dangerous driving.  

With the impending legalization of marijuana, the federal government has given its notice of intent to approve saliva tests to detect THC (the main psychoactive ingredient in cannabis) in drivers. The approval of the Draeger Drug Test 5000 will change the way that officers screen drivers for drug use, and comes after the passing of Bill C46 in June.

Cases:

The Supreme Court of Canada released its decision in R v. Brassington, which dealt with a number of RCMP officers who had been charged with a number of offences in connection to misconduct in the investigation of the "Surrey Six" gang-related homicide. The co-accused had applied for a declaration before the case-management judge that they could discuss information with their defence counsel that might reveal the identity of confidential informers. The Supreme Court ruled that the officers could not reveal informer privileged information to their lawyers, and that there is no reason that they should be able to depart from the 'innocence at stake' rule that binds all other accused. This article gives a good run down of the case, while Winnipeg defence lawyer Josh Rogala provides a succinct overview of the ruling on his Canlii Connects summary. 

In R v. MacIsaac, the Ontario Court of Appeal dealt with the issue of delay in the context of a re-trial. Gordon MacIsaac had already had his conviction for aggravated assault overturned and sent back for a new trial. The Court of Appeal ruling that a re-trial must receive priority in the system, and should be completed sooner than the 18 month ceiling in R v. Jordan requires.

The Ontario Court of Appeal also gave a good reminder of the frailties of eye-witness identification in the case of R v. Phillips. Witnesses to a home invasion gave statements that it was a black man who was involved, and were asked in a preliminary inquiry to identify the "black man" in the courtroom. There was only one black man in the room. The Court reviewed the dangers of in-dock identification and ultimately ruled that the verdict was unreasonable and quashed the conviction.

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