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Monday, June 26, 2017 @ 11:49 AM

SENTENCING - Procedure - Jurisdiction to impose sentence

Appeal by the offender, Buyck, from a sentence for sexual assault. The offender sexually assaulted his girlfriend's daughter by sexually touching her while she was unconscious from intoxication. The underlying proceedings involved 31 court appearances over two years. Prior to sentencing, the offender was assisted by three lawyers and amicus curiae. The offender initially sought a jury trial after waiving a preliminary inquiry. Approximately eight months later, the offender re-elected trial by judge alone and entered a guilty plea. An adjournment was granted to prepare pre-sentence and Gladue reports. Hours later, the offender advised his lawyer that he wanted the fact that he was in a relationship with the complainant to be added to the agreed statement of facts. A series of adjournments ensued, following which counsel withdrew and indicated the offender sought to strike his guilty plea. Five months later, the offender abandoned the plea application. The court was advised that the disagreement over the facts did not involve essential elements of the offence. Upon continuation six months later, the offender indicated he did not admit any of the facts in support of his plea. The offender advised he sought to withdraw his plea due to the belief he would be sentenced by way of a sentencing circle. The judge denied the application to strike the plea, appointed amicus curiae, and imposed an 18-month custodial sentence plus probation. The offender appealed. ... [read more]

Monday, June 26, 2017 @ 09:00 AM

It’s time to re-evaluate the jury system | Michael Spratt

Criminal trials are high stakes affairs. Unlike civil disputes criminal trials are not merely monetary. In criminal trials the defendants’ liberty and freedom hang in the balance. To lose a serious criminal trial means jail – confinement in a dirty, violent, and punitive Dickensian hellhole. Monetary damages can be reversed, property losses can be compensated but a wrongful incarceration is a scar that never heals. So when it comes to criminal trials — especially involving serious allegations — we better get it right. So, for the most serious criminal matters who does our justice system trust to get it right? ... [read more]

Friday, June 23, 2017 @ 09:28 AM

McCarthy's Doust honoured for criminal, commercial law work

Leonard Doust, associate counsel in McCarthy Tétrault’s litigation group, received special honours for 50 years of practice and outstanding contributions to the criminal law profession at the Canadian Bar Association's Vancouver Criminal Law Subsection annual dinner on June 22. ... [read more]

Friday, June 23, 2017 @ 08:45 AM

CRIMINAL CODE OFFENCES - Breach of long-term supervision order

Appeal by the Crown from Bird’s acquittal on a charge of violating a term of his long-term supervision. In May 2005, Bird was declared a long-term offender and ordered to serve a prison term followed by a period of long-term supervision. Bird was granted statutory release three times, and re-incarcerated for violating his release terms, before completing his prison term. When Bird left prison, the Parole Board placed a condition on the long-term supervision requiring Bird to reside at a community correctional centre, community residential facility or other residential facility approved by the Correctional Service of Canada (CSC) for a period of 180 days. The Parole Board had accepted the CSC’s conclusion that Bird’s plan to return to the Ahtahkakoop First Nation to reside with his brother was not sufficient to manage his risk in the community. Bird took up residence at Oskana Centre, a community correctional centre, in January 2015, but left before the end of the month and did not return. He was charged with breaching his long-term supervision order upon his apprehension in April 2015. He defended the charge by arguing that the residency requirement was unlawful. The trial judge agreed, finding the requirement to be a violation of s. 7 of the Canadian Charter of Rights and Freedoms (Charter) on the basis that it obliged Bird to live in a penal institution even though his prison term was complete. The judge found no statutory or regulatory authority for incarcerating Bird as part of his long-term supervision. ... [read more]

Wednesday, June 21, 2017 @ 06:07 PM

Ottawa says broad new immunity for CSIS crimes is Charter-compliant Paul Cavalluzzo

Ottawa says its move to give designated CSIS employees and their agents new immunities from prosecution for breaking the law in the line of duty is constitutional as it tracks a similar immunity legislated for police 15 years ago that has survived Charter attack. ... [read more]

Wednesday, June 21, 2017 @ 08:54 AM

Jury challenge for cause — courts still grapple with Criminal Code amendment Jury chairs

“Be careful what you wish for, you may just get it” serves as apt reminder for counsel preparing to select a jury in a criminal trial with the assistance of the challenge for cause procedure. ... [read more]

Wednesday, June 21, 2017 @ 08:46 AM

PROCEDURE - Jury - Challenge for cause - Jurors - Discharge of

Appeal by the accused from conviction for first degree murder. The victim’s nephew had orchestrated the murder. The appellant had acted as the middle man and hired a close friend to carry out the killing. The murder had generated a great deal of publicity before trial which raised a concern about the impartiality of prospective jurors. Both the Crown and the defence were permitted to challenge prospective jurors for cause based on pre-trial publicity. The trial judge told counsel he intended to use static triers. Defence counsel did not object to the use of static triers or raise the possibility of using rotating triers. The dialogue between the trial judge and counsel indicated that, because of the concern about pre-trial publicity, both the Crown and the defence wanted all the prospective jurors out of the courtroom during the challenges for cause. The trial judge explained that he would vet each proposed static trier and give defence counsel a chance to object to any person chosen. Defence counsel expressed satisfaction with the trial judge's proposed approach. The appellant did not make a formal application under s. 640(2.1) of the Criminal Code to exclude all jurors from the courtroom, and he did not specifically request static triers. On appeal, the appellant argued that the jury was thus improperly constituted because the trial judge used static triers to decide the challenges for cause. He also submitted that the trial judge erred by discharging without reasonable cause. The juror was discharged after the Crown’s opening address because the trial judge found the juror had serious problems which impacted on his ability to concentrate and understand the evidence. The juror had a broken back, was in a body brace, and was taking medication to control his pain. He was also using a walker and had a significant hearing impairment. Before the formal jury selection began, the trial judge learned that the juror was 70 years old, was a retired biology professor and walked with a walker because he had broken his back. The trial judge allowed him to remain in the jury pool. Both the Crown and the defence also deemed him acceptable and he became a member of the jury. ... [read more]

Tuesday, June 20, 2017 @ 05:31 PM

National security overhaul would give CSIS, its agents limited law-breaking immunity Ralph Goodale

The Liberal government has unveiled its much anticipated overhaul of Canada’s national security law framework, featuring beefed-up accountability and transparency measures to balance new powers and immunities for the Canadian Security Intelligence Service (CSIS), and expanded intelligence-gathering powers for the Communications Security Establishment (CSE). ... [read more]

Tuesday, June 20, 2017 @ 08:40 AM

Ontario court stresses importance of time limitation on warrants Matthew Gourlay

The Ontario Court of Appeal has upheld a Sarnia man's drug trafficking conviction, ruling that a trial judge made no error in concluding a warrant issued for a search and seizure with an implied date was valid. ... [read more]

Tuesday, June 20, 2017 @ 08:36 AM

Court of Appeal orders retrial over judge's charge to jury Christopher Hicks

The Ontario Court of Appeal has ruled a trial judge erred in failing to relate the evidence to the issues for the jury in a case of two men standing trial for murder. Due to this error, the court set aside the convictions and ordered a new trial. ... [read more]