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Wednesday, June 21, 2017 @ 8:54 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 @ 8:46 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 @ 5:31 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 @ 8:40 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 @ 8:36 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]

Monday, June 19, 2017 @ 11:50 AM

Cody v. The Queen – read my lips | Richard Pound

The Supreme Court of Canada administered what might well fall between a remedial reading session and a spanking in its unanimous judgment in Cody v. Her Majesty the Queen. The judgment was issued in the name of the court, within weeks of the hearing. The bench included judges who had dissented in the Jordan appeal. ... [read more]

Monday, June 19, 2017 @ 8:37 AM

Alcohol, memory and reasonable doubt | Timothy Moore and Julianna Greenspan

While our memories are quite accurate most of the time, cognitive science has demonstrated that memory errors are not uncommon.  When mistakes occur, they can be large, undetectable, subjectively compelling and reported with as much conviction as genuine memories.   ... [read more]

Friday, June 16, 2017 @ 1:55 PM

CONSTITUTIONAL ISSUES - Procedural rights - Trial within a reasonable time - Remedies for denial of rights - Stay of proceedings

Appeal by Cody from the judgment of the Newfoundland and Labrador Court of Appeal which set aside the stay of proceedings entered by the trial judge and remitted the matter for trial. On January 12, 2010, Cody was arrested as a part of a drug trafficking investigation. He was charged with two counts of possession for the purpose of trafficking, one count of possessing a prohibited weapon, and one count of possessing a weapon while being prohibited from doing so, and was released on bail. On June 30, 2010, the Crown indicated that it was prepared to provide disclosure but required Cody’s counsel to sign an undertaking preventing the defence from copying the two CDs containing over 20,000 pages of material. The impasse following defence counsel’s refusal to sign was resolved on September 30, 2010. The five-day trial was finally scheduled to begin on January 26, 2015 after applications by Cody for recusal and to exclude the evidence were dismissed and other events took place. Cody’s application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms was heard in late November 2014. Applying the former Morin framework, the trial judge concluded that approximately 19 months were attributable to Crown and institutional delay, which exceeded the guideline for a case tried in superior court. He ordered a stay of proceedings, concluding that the prejudice suffered by Cody because of the delay outweighed society’s interest in a trial on the merits. While the Crown’s appeal from the trial judge’s stay order was under reserve, the Supreme Court of Canada released its decision in Jordan. The majority of the Newfoundland and Labrador Court of Appeal allowed the appeal. Applying the Jordan framework, it found a number of exceptional circumstances relating primarily to disclosure as well as misconduct allegations that had been made against one of the police officers involved. After accounting for these deductions, it quantified the net delay as approximately 16 months. Because this was below the presumptive ceiling, the Court set aside the stay of proceedings and remitted the matter for trial. ... [read more]

Friday, June 16, 2017 @ 10:18 AM

Updated: Full speed ahead with Jordan’s robust approach to speedy trials Michael Crystal

Full speed ahead with R. v. Jordan’s robust approach to the Charter’s speedy trial right — that’s the clear 7-0 message from the Supreme Court of Canada in R. v. Cody. ... [read more]

Friday, June 16, 2017 @ 9:19 AM

B.C. court upholds suspended sentence for man charged in pot grow-op John Conroy

The British Columbia Court of Appeal has upheld a lower court’s decision to suspend a sentence for a man charged with participating in a marijuana grow-op. ... [read more]