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February 2019 Criminal Law Round-up

On Behalf of | Mar 1, 2019 | Uncategorized

February 2019 round-up

The biggest news story this month was, of course, the allegations of political interference by the Prime Minister’s office in the SNC Lavalin matter. There are likely thousands of articles written now, particularly following the testimony of Jody Wilson-Raybould before the Justice Committee. Instead, I will steer you towards the helpful analysis of Mike Spratt and Emilie Taman in their episode of the podcast “The Docket” to get some context to the use of Deferred Prosecution Agreements and the implications of political interference on the rule of law.

Meanwhile, Ontario’s Attorney General Caroline Mulroney announced changes to the province’s police oversight rules. The Special Investigations Unit (SIU) had been changed under the previous Liberal government, following a report by Justice Tulloch (See April 2017 round-up) and these news reforms will aim to streamline the timelines and procedures of the SIU.

Two high profile murder cases concluded this month, with sentences being handed down to Bruce McArthur in the Toronto mass murders and Alexandre Bisonnette in the Quebec City mosque shooting. These stories raised questions of what period of parole eligibility is appropriate in such serious matters. This article from Sean Fine in the Globe and Mail gives some insight into the judges’ rationale in applying the relatively new provisions around consecutive periods of parole ineligibility.


In R v. Jarvis, the Supreme Court of Canada dealt with the issue of a reasonable expectation of privacy in the context of voyeurism. In this case, the accused was a high school teacher who had taken surreptitious videos of students while at school, and argued that given the public location, that there was no reasonable expectation of privacy. The Court disagreed, finding that the analysis around privacy has to be contextual and taken in a number of factors. Law professor Emily Laidlaw gives some insight into the decision, arguing that the in the analysis of the reasonable expectation of privacy, the Court connects technology with our everyday experiences, and how tech can transform something we expect to be private into something public. You can also read my overview of the decision here.

The reasons for decision in the R v. Capay case were released this month. The judge granted a stay of Mr. Capay’s charge of first degree murder given the multiple breaches of his Charter rights in being held in solitary confinement for years while pending sentence. The decision has renewed efforts by the Ontario Human Rights Commission to call for the government to end the practice of segregation, as Chief Commissioner Renu Mandhane argues here.

The Ontario Court of Appeal ordered a new trial in the case of R v. Tsega, given a change in the law around hearsay evidence. At his trial, the Crown had lead statements of the co-accused who refused to testify. However, given the Supreme Court’s decision in R v. Bradshaw which heightened the threshold for reliability in the principled exception rule to hearsay, the court found that the statements should not have been admitted, and that they were equally consistent with other inferences.

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