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Thursday, October 27, 2016 @ 8:00 PM

Internet ban for sex offenders deemed 'too harsh'

A recent Ontario Court of Appeal decision may signal a growing reluctance by judges to issue prohibition orders banning convicted sex offenders from using the Internet. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Defences - Insanity or mental disorder

Appeal by Mock from his second degree murder conviction. Mock lived with his father and brother on a farm. Both Mock and his brother, Tim, suffered from bipolar disorder. Shortly prior to the shooting, Mock destroyed a cell phone he purchased because he believed the FBI and CIA were using it to monitor his activities. He also reported that he believed Tim was a clone. Mock called 911 the evening of February 22, 2012 to report that Tim had been shot. He later told investigators that after smoking marijuana and falling asleep reading, Mock was awakened by a noise he thought was someone trying to steal cattle. He fired a round from his handgun to scare off potential rustlers. He went back to the main farmhouse and discovered that Tim had been shot. While waiting for emergency personnel to arrive, Mock decided to take his brother to hospital himself, but crashed the family car into a shed. He started a tractor, then abandoned it. He removed his clothes and started running naked through a field. He then attempted suicide by biting on a pipe and hitting himself in the back of the head with a hard object. Emergency responders interrupted this endeavour. Police arrived to find Tim’s body in the house. Mock then ran inside the house, naked, screaming, crying and incoherent. He was very dirty and had numerous cuts and bruises, including a black eye. Mock was taken to the police station where he explained the next day that he had no memory of the events of the prior evening. His defence of not criminally responsible by reason of a mental disorder (NCRMD) was rejected at trial. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Procedure - Jury - Questions by jury - Opening and closing statements by counsel - Trial judge’s duties - Charge or directions - Evidence of witnesses

Appeal by the accused from conviction for second degree murder. The victim and the appellant were members of rival gangs. After a confrontation, the victim was shot at close range. Several eyewitnesses identified the appellant as the shooter. This was the appellant’s third conviction for this murder. He and the co-accused had successfully appealed their two previous convictions. The co-accused pleaded guilty to manslaughter at the third trial and testified for the Crown. The victim died about one month after the shooting from a blood clot which blocked the flow of blood to his lungs, likely brought on by complications arising after surgery. During the trial, the trial judge received a note from the jury that gave some personal information about one of the jurors and asked what dangers there were to his life and family’s life from the appellant’s gang. The jury later withdrew this question. The appellant argued the trial judge erred in refusing to start an inquiry to determine whether the jury’s concern expressed in the note arose from evidence at trial or external information, and whether concern for their own safety might prevent jurors from discharging their duty according to their oath. The trial judge found that there was nothing in the note to indicate that the jury would do anything other than to abide by the oath of impartiality. The appellant argued that trial judge gave inadequate and erroneous instructions on the issues of eye-witness and in-dock identification and erred by failing to grant a mistrial after the Crown made the impugned comments in its closing address suggesting to the jury that because of the co-accused’s testimony, the evidence against the appellant was stronger than it had been in his two previous trials. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Criminal Law - Appeals - Grounds - Misapprehension of or failure to consider evidence

Appeal by Langlois from convictions for possession of child pornography and accessing child pornography. Langlois testified at his trial, denying the allegations that he had knowledge and control of one image found in his Blackberry pictures folder and of six deleted images which were inaccessible without specialized tools. Langlois admitted that he purchased and used the Blackberry, that he visited an adult website after hearing about it from his girlfriend, and that he viewed only adult pornography there. He denied accessing any child pornography using the Blackberry, denied seeing any child pornography images, and testified he had no idea how they got on his device. Evidence from Bell Canada, service provider to Langlois, established that an internet session lasting 295 minutes took place on July 30, 2010 between 2:51 and 7:46 p.m., and that another data session took place on August 19, 2010. Langlois was arrested on July 30 and his Blackberry was seized at 4:04 p.m. Two accessible images found on the device, one of which was the image of child pornography that was the subject of the possession charge, was created on July 30 at 3:01 p.m. Dates for the creation of the deleted images could not be discerned. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Legal pot coming but impact on driving murky

Not Applcable ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Client compensation fund gets hefty increase

Clients who have money stolen by dishonest lawyers in Ontario can now be compensated by the Law Society of Upper Canada for up to $500,000 — a dramatic increase over the previous limit of $150,000. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Appeal court says text to recipient not private

The next time you send a text message to your spouse or best friend or colleague thinking that the communication is private, think again. It may not be. The Court of Appeal for Ontario has decided, in R. v. Marakah 2016 ONCA 542, that the sender of a text does not have a reasonable expectation of privacy in the message in the hands of the recipient. This means that once our text messages (or any communications sent through media that create digital records of our words) arrive on the other end, they are vulnerable to search and seizure by the police. And we cannot constitutionally challenge the search, seizure, or use of those communications. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Apply 'common sense' to breath tests, court says

A unanimous Saskatchewan Court of Appeal decision confirms the Crown does not need to prove that breath samples must be taken as soon as possible in an impaired driving case in order to satisfy the Criminal Code’s “as soon as practicable” requirement. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Criminal Law - Appeals - Grounds - Procedure

Appeal by the Crown from the dismissal of its application for substituted service of its appeal from Marton’s acquittal on charges of dangerous driving and flight from police. Marton was convicted of stunt driving in relation to the same information. The Crown made numerous attempts to serve Marton personally with the notice of appeal, then, having concluded that he was evading service, applied for an order for substituted service. The summary conviction appeal court dismissed the application on the basis that it lacked jurisdiction to order substituted service. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Legal Profession - Practice by unauthorized persons - Suspended or disbarred lawyers

Appeal by Beaver from the injunction granted to the Law Society, prohibiting Beaver, a suspended lawyer, from engaging in the practice of law, including acting as an agent. Beaver had been a criminal defence lawyer in Edmonton for many years prior to being suspended in May 2015 amid allegations of financial misconduct. The suspension was interim in nature, as the investigation by the Society was ongoing. Following the suspension, Beaver began operating a website, Beaver Legal Consulting, in which he offered services as a legal agent. The website contained a disclaimer stating that he was not currently licensed to practice law and was facing an interim suspension imposed by the Society. In December 2015, the Society relayed concerns to Beaver that he was providing legal services. It asked Beaver to sign an undertaking to refrain from engaging in various prohibited activities. Beaver took the position that his signature on the undertaking did not preclude his acting as an agent. In January 2016, the Society brought an originating application asking for declarations that Beaver was providing legal services and acting as a barrister and solicitor, and seeking injunctive relief to prevent him from practicing law and providing any of the services offered by his website. ... [read more]