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October 2019 Criminal Law Round-up


Most of the month of October was dominated by news of the federal election. And while criminal justice issues did not feature prominently in the parties' platforms, the election allowed for some reflection on the Liberals' performance on the justice portfolio over the last four years. Now, with a new Liberal minority government, it remains to be seen what changes await in criminal justice. Still, defence lawyer Michael Spratt has outlined his wish list for federal justice reform.

This month marks a year since cannabis was legalized in Canada. And despite its now lawful status, many individuals continue to buy marijuana for personal use illegally. The linked article outlines some of the factors that have allowed the black market to persist, and quotes defence lawyer Kyla Lee in the relatively little change that legalization has meant for drug-impaired driving.


The Supreme Court of Canada dismissed the appeal in the case of R v. Kernaz, which centred on whether sharing illicit drugs amounts to trafficking. (Short answer: yes, it does.)  In this case, the accused had been stopped with a large amount of cocaine on him, which he testified that he had intended to share with his girlfriend. The Supreme Court endorsed the reasons of the Court of Appeal of Saskatchewan and convicted him of trafficking, on the basis that trafficking can include sharing drugs. This summary from the Law Society of Saskatchewan provides a brief outline of the facts and findings.  

In R v. Poulin, the Supreme Court dealt with s. 11(i) of the Charter, which guarantees the right to a lesser punishment, if the punishment of the offence has been varied between the time of the commission of the offence and the time of sentencing. The Court concluded that s. 11(i) provides a binary right, not a global one, meaning that the Court does not need to look at all available sentences, but simply what was available at the time of the offence, versus the time of sentencing. This article from Canadian Lawyer Magazine quotes Breana Vandebeek, who intervened in the case on behalf of the Criminal Lawyers's Association, arguing that the decision can create arbitrariness for accused persons and undermines the principle of parity in sentencing.

Finally, in Fleming v. Ontario, the Supreme Court ruled that the police cannot arrest someone to prevent others from breaching the peace. The case arose from a protest in Caledonia in 2009, where an individual was arrested despite not having broken a law, and released a few hours later. The Supreme Court found that the police had other options available to calm the situation, and their reasoning that his arrest would prevent further disruptions of the peace was not a lawful reason for an arrest. This post by law student Alison Imrie gives a good overview to the case. 

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