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August 2018 Criminal Law Round-up

As summer draws to a close, there is plenty of news and cases to catch up on in the world of criminal law: 

News:

Ontario Premier Doug Ford announced that he would allocate $25 million to fighting gun violence in Toronto. A portion of the money will be earmarked for Crowns for purposes of bail in gun cases, dubbed 'bail swat teams.' Defence lawyer Michael Spratt explains that Crowns already take gun violence very seriously and that the money could be much more effectively spent on increasing community safety through housing, addictions counselling, mental health programs, and so on. 

The Ministry of the Attorney General released statistics this month that showed that despite the additional resources afforded to the courts, delays in the courts in Ottawa remain the same. I spoke to CBC's Ottawa Morning about it and emphasized that despite the added judicial resources, we haven't seen changes to how (and which) matters are prosecuted. 

And farther afield, a New Zealand judge asked counsel in a serious drug case whether there was any empirical evidence that long sentences achieve deterrence. The defence lawyer, Anne Maxwell-Scott, cited studies showing that long sentences are not effective in terms of deterring either the individual being sentenced or others, and that the likelihood of recidivism for drug offences actually increased when someone was sentenced to a prison sentence as opposed to a sentence in the community. The accuseds were ultimately sentenced to 7 and 13 years but the judge noted that the studies showing that long sentences are not effective in terms of deterring makes it difficult to hand out long sentences for that reason.

 And for any frustrated lawyers out there, note that telling a judge "F*@$ yourself" will earn you a reprimand and a fine of $500.

Cases:

In R v. Dell, the Ontario Court of Appeal dealt with the retroactive application of the faint hope clause, which allows an individual serving a sentence of longer than 15 years to be eligible to apply for parole after 15 years. The clause had been changed in 2011 to require a judge to determine that there was a substantial likelihood that the application would be successful before empaneling a jury to hear the matter. The appellant had argued that the change retroactively increased the punishment for a crime, and the court found that sections 7 and 11(h) and (i) of the Charter applied and that the applicant was therefore entitled to the previous procedures at the time of her sentence.

The Ontario Court of Appeal also released its decision in R v. Szilagyi  ruling on the exclusion of evidence following a search and seizure. In the case, the court found that the information to obtain used to get the search warrant had a number of deficiencies and that the police's negligent investigation could not be understood as demonstrating good faith. Criminal lawyer Leo Fugazza provides a good overview of the case and the issue of police good faith in s. 24(2) analysis

In R v. McCaw, Justice Spies of the Ontario Superior Court affirmed that s. 33.1 of the Criminal Code, which allows for a defence of extreme intoxication to sexual assault, is of no force and effect. The section had previously been struck down by other courts for offending an accused's Charter rights, and the judge found that these rulings meant that the section was already of no force and effect. Still, she underwent her own analysis to determine that the provision violated the Charter in that it could allow for a conviction where the court had a reasonable doubt as to an essential element of the offence (namely the mental intent or mens rea). This post from defence lawyer Thomas Surmanski breaks down some of the history of the provision as well as the decision itself. 

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