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March 2019 Criminal Law Round-up

News:

The Office of the Independent Review of Police released a report this month that concluded that Ontario's police conduct too many unjustified strip searches, with police procedures and collection of data varying across the province. The report provides 50 recommendations on the conduct of strip searches, as well as documentation and training for police officers.

Jaskirat Singh Sidhu, the driver in the Humboldt Bronco's crash was sentenced this month to 8 years of jail. Lisa Kerr, a professor at Queen's University, offers her commentary as to whether the sentence was justified given the driver's moral culpability, the mitigating factors and the need for deterrence.

Cases

In R v. Morrison, the Supreme Court of Canada considered the constitutionality of the child luring offences in the Criminal Code, specifically that of the presumption that an accused person is aware that they are speaking to someone who is under the age of 16. The case involved an individual who has posted an online ad on Craiglist, which was answered by an undercover police officer. He argued at trial that he believed he was speaking to an adult engaging in role play. The Court found that the presumption violated the accused's presumption of innocence under s. 11(d) of the Charter, but found that the reasonable steps provision was constitutional. Steph Brown, a law student at Osgood Hall Law School provides a good overview on the law blog "The Court" or you can read the always helpful 'Case in Brief" from the Supreme Court. 

Another important decision was released by the Supreme Court in R v. Myers, which clarified how courts should approach detention reviews for individuals in custody awaiting trial. The Court emphasized that release pending trial should be the norm, not the exception, and that a review of an individual's detention under s. 525 of the Criminal Code should be mandatory and automatic. This article by Christine Mainville, who argued on behalf of the Canadian Civil Liberties Association, outlines the Court's decision which identifies the question at a detention review as whether the continued detention of an individual is justified, given the time that has elapsed an the proportionality of the detention.

Two cases were released this month with respect to solitary confinement in Ontario. In Canadian Civil Liberties Association v. Canada (Attorney General), the Ontario Court of Appeal ruled that administrative segregation for longer than 15 consecutive days violates s. 12 of the Charter (cruel and unusual punishment). Meanwhile, in the lengthy decision of Brazeau v Attorney General (Canada), Justice Perell of the Superior Court in Ontario, awarded 20 million dollars in damages in a class action of individuals who had been held in solitary confinement. 

The Ontario Court of Appeal also released the decision of R v. Montesano, which concluded that an appeal court cannot remit a matter to a trial court for sentencing, but instead can either dismiss the appeal or vary the sentence. It also dealt with the issue of whether discharges can be used in sentencing, concluding that s. 6.1(1)(a) of the Criminal Records Act precludes disclosure of the record iteslf, as well as its existence (i.e. that a discharge was granted) once outside the disclosure period, except with approval of the Minister.

And finally:

You can read my comments with respect to the problems with roadside screening devices for impairment by cannabis in this article from the Law Times. 

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