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May/June 2019 Criminal Law Round-up

After a brief hiatus in May, we're back with a double edition of your latest round-up. There is lots to catch up on in the world of criminal law, so read on: 

News:

In June, Legal Aid Ontario announced that it would be cutting various aspects of criminal certificates, including bail hearings, mental health and Indigenous issues. The move has left many lawyers worried about the effects on access to justice and delays to the courts, including Stephanie DiGiuseppe who commented that the move will cause a 'coverage crisis' in bail court. You can see my comments on the issue here. Shortly after this announcement, Premier Doug Ford shuffled his cabinet, introducing a new provincial Attorney General, Doug Downey.

As Parliament wound down for the summer, a number of bills received royal assent, including Bill C-75. This omnibus bill changes a range of procedures in criminal courts, including limiting preliminary inquiries and peremptory challenges and will come into force in parts over the next 6 months.

The National Inquiry into Missing and Murdered Indigenous Women released its final report in June. The report includes a number of calls to action involving the criminal justice system, such as adding violence against an Indigenous woman as an aggravating factor on sentencing and modifying the availability of a first degree murder conviction if it involves a pattern of abuse against an Indigenous woman. The recommendations were largely accepted by the government, although some critics, such as Jonathan Rudin from Aboriginal Legal Services, have concerns over the impact it could have on criminalizing and incarcerating Indigenous people .

After many days of litigation in a third party records motion, the charges against Vice-Admiral Mark Norman for breach of trust were withdrawn by the prosecution. You can find a timeline of the saga here.

Cases:

In the first of three highly anticipated cases over the past two months, the Supreme Court released its decision in R v. Barton. The Court addressed a number of issues in this manslaughter appeal, which is alleged to have occurred within the context of sexual assault. Ultimately, the court finessed the definition of honest mistaken belief in consent to include the fact that the consent must be communicated, and dealt with the trial judge's failure to adhere to the s. 276 regime with respect to prior sexual activity at trial. You can read my take-aways from the trial here, or check out Kate Rawson of Weisberg Law's blog post at https://www.weisberg.ca/r-v-barton-business-as-usual-for-section-276-canadas-rape-shield-law/ (Excuse the technical difficulty of this link not loading - I'll try to fix it, but meanwhile go read this post!) 

Next, the Supreme Court released its decision in R v. Le. In this case, a police officer had entered into a backyard barbecue and questioned the occupants. While the main issue was an individual's rights under s. 9 of the Charter, the issue of race relations and interactions with police officers played a pivotal role. The Court ultimately found that the arrest was not lawful, and provided some commentary on race relations, which you can find excerpted by Adam Philip Newman of Derstine Penman here.  

Finally, the Court released another decision on the topic of sexual assault with R v. Goldfinch. In this case (likely the only SCC case to ever reference an Alanis Morrisette song, which it used in defining 'friends with benefits'), the Court dealt with the s. 276 regime with respect to a previous sexual history between the complainant and the accused. For an in-depth overview of the decision, check out another great Twitter thread from UBC prof Emma Cunliffe.

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