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Thursday, August 25, 2016 @ 8:00 PM

International Law - Extradition and criminal mutual legal assistance - Criminal mutual legal assistance

Application by Suthanthiran, Best Theratronics Ltd. and Best Medical Belgium for leave to appeal an order directing seized material to be sent to Belgium for use in a criminal investigation. Belgian authorities investigated fraudulent transactions allegedly perpetrated by the applicants. They officially requested the assistance of Canada in searching and seizing records in possession of the applicants. The Canadian authorities complied. They obtained a warrant and seized material that included information related to trade secrets and other sensitive commercial information. The applicants contended that the information was highly valuable and could destroy their business if disclosed to a commercial rival. The applicants alleged that one such rival was partially owned by the Belgian government. The government of Canada obtained an order directing the seized material be sent to Belgium for use in the criminal investigation. The applicants sought leave to appeal the order. ... [read more]

Thursday, August 18, 2016 @ 8:00 PM

Criminal Law - Appeals - Grounds - Miscarriage of justice - Powers of appellate court - New trial - To receive new evidence

Appeal by the accused, Brown, from convictions for second degree murder and assault with a weapon. The accused and Reid were part of a group that got into a fistfight with another group of attendees at a casino. Both groups were told to leave the premises. Minutes later, two members of the opposing group were shot by two different shooters. One of the shootings proved to be fatal. The accused and Reid were convicted at trial and appealed to the Court of Appeal. The accused’s appeal was dismissed. The sole basis for the accused’s conviction was statements he made to Sanders contained in Sanders’ KGB statement, admitted after Sanders recanted at trial. On appeal, a new trial was ordered for Reid on the basis the trial judge failed to review the central theory of Reid’s defence. Reid was acquitted following the second trial based on reasonable doubt he was one of the shooters. The accused appealed to the Supreme Court of Canada based on new evidence arising from Reid’s trial. The new evidence related to the testimony and statements to police by an eyewitness to the shooting incident, Sahal. Some of the statements by Sahal to police were made after the conclusion of the accused’s trial, and were not disclosed to the accused until after his appeal was dismissed by the Court of Appeal. Aspects of the statements supported an inference that the accused was not one of the shooters. The Supreme Court of Canada remanded the appeal to the Court of Appeal in conjunction with the application to admit the new evidence. ... [read more]

Thursday, August 18, 2016 @ 8:00 PM

Controlled drugs and substances - Possession for the purpose of trafficking - Other substances

Appeal by the accused, Daley, from a conviction for possession of fentanyl for the purpose of trafficking. A pawn shop owner called police after the accused attempted to pawn jewelry the shop owner believed was identified in a police flyer. Police arrived and the accused was detained within the store for 40 minutes without being advised of her right to counsel. In response to a question from police, the accused pointed out her vehicle in the parking lot. Another police officer approached the passenger in the vehicle and asked her for identification. The officer observed jewelry in the passenger’s purse and arrested her. The officer seized two purses and searched the contents. The accused was arrested after a knife was seized from her purse. An incidental search of the accused resulted in seizure of seven fentanyl patches. The accused was arrested. The trial judge found that the breach of the accused’s right to counsel did not impugn the subsequent searches. The detention was not arbitrary, and the incidental searches were reasonable and lawful. The accused appealed the consequent conviction. ... [read more]

Thursday, August 18, 2016 @ 8:00 PM

Armed forces - Military law - Military justice and service discipline - Service tribunals - Court martial - Appeals to Court Martial Appeal Court - Constitutional issues

Motion by Cawthorne to quash the appeal by the Minister of National Defence (Minister) from a judgment of the Court Martial Appeal Court of Canada setting aside his convictions for possession of child pornography and ordering a new trial. Appeal by the Minister from a judgment of the Court Martial Appeal Court of Canada declaring invalid s. 230.1 of the National Defence Act (Act) after military judges acquitted Gagnon of sexual assault and allowed Thibault’s plea in bar of trial. The Court was called upon to determine whether provisions of the Act giving the Minister the authority to appeal from decisions of a court martial or the Court Martial Appeal Court violated ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms (Charter). During Cawthorne’s trial, defence counsel brought a motion for a mistrial on the basis of the prejudice arising from inadmissible re-examination evidence obtained from Cawthorne’s former girlfriend. The military judge dismissed the motion, and the jury panel returned a verdict of guilty on both counts charged. A majority of the Court Martial Appeal Court found that the mistrial ought to have been granted. The Minister appealed as of right to the Court, pursuant to s. 245(2)(a) of the National Defence Act. The Minister argued that the military judge made no error in declining to grant a mistrial. Cawthorne sought to quash the Minister’s appeal on the basis that s. 245(2) violated the Charter. In the other matter, Gagnon and Thibault were each charged with sexual assault. Gagnon was acquitted, and the Minister appealed on the basis that the military judge erred by putting the defence of honest but mistaken belief in consent to the panel. Thibault presented a plea in bar of trial, claiming that the matter was not under military jurisdiction because of an insufficient nexus with military service. The military judge allowed the plea, and the Minister also appealed. Gagnon and Thibault brought motions to quash the Minister’s appeals on the basis that s. 230.1 of the National Defence Act, which gave the Minister the authority to appeal to the Court Martial Appeal Court, violated s. 7 of the Charter. The Court Martial Appeal Court dismissed the motions to quash but agreed that s. 230.1 of the National Defence Act should be invalidated. ... [read more]

Thursday, August 18, 2016 @ 8:00 PM

Powers of search and seizure - Search - Scope of power - Search warrants - Scope - Validity

Appeal by the accused, Poirier, from a conviction for possession for the purpose of trafficking. Five confidential informants advised police that the accused was an addict and drug dealer who concealed his drug supply in his rectum. Police obtained a general search warrant authorizing the accused’s detention until he either voluntarily removed the drugs from his rectum or had a bowel movement. The accused was arrested, placed in lockup, advised of the warrant’s terms, strip-searched, and placed in a cell without running water or a usable toilet. The placement in a dry cell was known as a bedpan vigil search. The accused was detained for 43 hours, experiencing severe withdrawal symptoms from his addiction. For the first 21 hours, he was handcuffed to the cell bars above his head. For nine hours, he was handcuffed with oven mitts over his hands, duct taped together. Within 24 hours, the accused eliminated three packages of drugs from his rectum containing heroin, cocaine and crystal methamphetamine. A fourth package was eliminated after 30 hours. The accused was brought before a justice of the peace the following morning. In entering a conviction, the trial judge found no Charter breach and concluded that had a breach occurred, the evidence would have nonetheless been ruled admissible. The accused appealed. ... [read more]

Thursday, August 18, 2016 @ 8:00 PM

Criminal Code offences - Offences against person and reputation - Assaults - Sexual assault - Consent - Honest but mistaken belief

Appeal by the Crown from a Youth Court decision acquitting the accused, JR, of sexual assault. The accused and the complainant, age 15, were high school students with no prior interactions. The accused approached the complainant during a workout and asked her if she was involved with another boy. He subsequently made a comment regarding her body. On their way out of the school, the accused complimented the complainant about her body and slapped her buttocks several times. The complainant felt uncomfortable and laughed off the accused’s conduct. The accused pushed the complainant into a locker, ran his hands over her body, and attempted to kiss her. The complainant moved out of the way and asked the accused to leave. The accused persisted, pushing the complainant into a closed doorway, grabbing her buttocks and breasts, and trying to kiss her. The accused told her to acquiesce and the complainant verbally refused. They left the school and the accused asked for a hug. The complainant declined and the accused hugged her anyway. At trial, the Youth Court judge rejected much of the complainant’s testimony on the issue of consent, finding her actions before, during and after the incident were inconsistent with non-consensual touching. The judge concluded the Crown failed to establish the requisite intent. The Crown appealed. ... [read more]

Thursday, August 11, 2016 @ 8:00 PM

‘And justice for all’ must be more than a cliché

We Canadians have had the benefit this past year of two highly publicized trials which have reminded us all of at least two very valuable lessons. It is presumptuous to leap to conclusions as to who is guilty or innocent, and our system of justice rests on protections which demand that our courts hear ably from both sides of any case. ... [read more]

Thursday, July 21, 2016 @ 8:00 PM

Lawyer in private practice critical of methodology in provincial program

The Nova Scotia government is not committing to making its Domestic Violence Court Program a permanent fixture in the province’s legal landscape, but it has extended the four-year pilot initiative for another 12 months. The extension comes with a significant cost to the private bar and a defendant’s right to a trial, one lawyer told The Lawyers Weekly. ... [read more]

Thursday, July 21, 2016 @ 8:00 PM

Criminal Law - Evidence - Admissibility - Prejudicial evidence - Confessions and statements by the accused - Witnesses - Examination - Cross-examination - Range of examination

Appeal by the accused, Worme, from a conviction for first degree murder. In 2008, the victim was tortured and beaten to death in the basement of his home during a robbery. The accused and his girlfriend were invitees of the victim earlier in the evening. The victim awoke later in the evening to find the accused and two others stealing from him. A physical confrontation ensued, during which the victim was beaten to surrender his bank card PIN number. The accused and the other two perpetrators were targeted in the ensuing police investigation. Police learned that one of the other perpetrators called his girlfriend during the assault and told her he was going to kill the victim. After the killing, the two accomplices turned on the accused and stabbed him. He recovered after several days in hospital. Police ran a Mr. Big operation on the accused, in which an undercover police officer posed as a criminal underworld figure in order to gain the accused’s trust. The operation lasted two months and involved 29 scenarios. During the operation, the accused’s account of his role in the killing evolved from being a bystander to full participation. The accused was tried separately prior to the other two suspects. The other two suspects were eventually convicted of manslaughter. At trial, the accused testified and recanted his confession. He maintained that his original account of being a bystander was truthful. He testified that he exaggerated his role to impress the Mr. Big operatives to gain membership into their criminal gang. The accused was convicted by a judge sitting with a jury. The accused appealed. ... [read more]

Thursday, July 21, 2016 @ 8:00 PM

Sentencing  - Breach of conditional sentence - Sentencing considerations - Time already served - Aboriginal offenders - Family background - Family obligations - Procedure - Appeals

Appeal by the offender, McDonald, from termination of her conditional sentence order (CSO) and remand to custody. In January 2014, the offender was sentenced to an 18-month CSO for uttering threats and two counts of breach of an undertaking that required abstinence from alcohol. In February 2015, the Crown alleged the offender breached the CSO by failing to keep the peace and be of good behaviour. The allegation arose following a report the offender threatened to shoot her way into a hotel to get her kids back from her husband. In March 2015, the offender was granted bail. She had completed 13 months of the CSO prior to the breach. In June 2015, the Crown sought to collapse the CSO. The presiding judge found a breach of the CSO’s conditions and, without further submissions, ordered the offender to return to custody to complete the sentence. The judge refused to hear submissions regarding the offender’s personal circumstances, stating Gladue factors had been considered when the CSO was imposed. The offender was returned to custody for two months prior to being released on bail pending appeal. The Crown conceded the judge erred in failing to consider other available sentencing options under s. 742.6(9) and in denying defence counsel the opportunity to make sentencing submissions. The Crown submitted that the termination of the CSO was nonetheless a fit sentence. ... [read more]