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Showing posts from February, 2017

Where Incarceration will have a Disproportionate Impact on a Person with Disabilities

The fact that a custodial sentence will have a disproportionate impact on a person with disabilities may well be a legitimate factor to be taken into account in determining the length of that custodial sentence: R. v. T.L.B. , 2007 ABCA 61; R. v. R.(A.) (1994) 1994 CanLII 4524 (MB CA), 88 C.C.C. (3d) 184 (C.A.) ; R. v. Nuttall (2001), 2001 ABCA 277 (CanLII), 293 A.R. 364 Similarly, the offender’s physical infirmity may result in incarceration having a disproportionate impact on that individual. Where this is so, this impact may be taken into account in fashioning the appropriate sentence. R. v. C.D. , 2012 ONCA 696; see also R. v. Allen , 2017 ONCA 170.

Third party Suspect Evidence

Evidence that tends to show that a specific alternate party was the perpetrator of the crime is relevant to raise a reasonable doubt about the accused’s guilt. The evidence may be direct or circumstantial.  Evidence that someone other than the accused committed the crime in question is admissible, provided that there is a sufficient connection between the third party and the crime:  R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.) , aff’d. 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824 ; R. v. Grandinetti , [2005] 1 S.C.R. 27 , 2005 SCC 5 (CanLII), at para. 46 . The importance of establishing a sufficient connection with the crime was explained by Karakatsanis J. on behalf of the Supreme Court of Canada in R. v. Grant , [2015] 1 S.C.R. 475, 2015 SCC 9 (CanLII), at para 4:  The integrity of the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not b

A Judge’s Final Instructions to the Jury

In a criminal jury trial, the jury determines the guilt or innocence of the accused.  Questions of fact are solely within the jury’s competence.  The jury draws the final conclusion on the basis of the facts it considers established by the evidence.  The trial judge is required to determine and to state the law, and to regulate and order the proceedings in accordance with the law.  It is essential that the direction of the trial judge to the jury sets out the position of the Crown and defence, the legal issues involved and the evidence that may be applied in resolving the legal issues and ultimately in determining the guilt or innocence of the accused. R. v. Thatcher , 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652 Or put another way, every jury must understand i.      the factual issues to be determined; ii.       the legal principles applicable to the issues and the evidence adduced at trial; iii.     the positions of the parties; and

The Reasonable Expectation of Privacy in the Common Areas of Multi-Unit Buildings post R. v. White

Until recently, the case law appeared to suggest that for the purposes of section 8 of the Canadian Charter of Rights and Freedoms tenants in an apartment building had no reasonable expectation of privacy in the common areas of the building.  That changed with R. v. White , 2015 ONCA 508 (CanLII), 127 O.R. (3d) 32. In R. v. White , the Court of Appeal for Ontario found that multiple police entries into the common areas of a condominium building resulting in observations of the contents of the accused’s storage locker and the eavesdropping of conversations inside the unit were so intrusive that it could not be said that there was no reasonable expectation of privacy in the building’s hallways and common areas. However, the Court did not go so far as to say that a tenant always has a reasonable expectation of privacy in the common areas of multi-unit dwellings, as reasonable expectation of privacy "is a context-specific concept that is not amenable to categorical answers.

The Right to Effective Assistance of Counsel:  Effective Assistance Requires Counsel to advise an accused adequately of his/her right to elect the mode of trial

The right to the effective assistance of counsel is constitutionally protected. It is part of the right to make full answer in defence and the right to a fair trial: R. v. G.D.B., [2000] 1 S.C.R. 520, para. 24; R. v. Joanisse, [1995] O.J. No. 2883, at para. 63. The analytical framework was set out by Doherty J.A. in Joanisse at para. 69, and in R. v. Baylis, 2015 ONCA 477, at para 61 . The court starts with the presumption that trial counsel was competent. The framework has three elements. ·          First, t he appellant must establish the facts on which the claim of incompetence is based. ·          Second, the appellant must establish that the representation provided by trial counsel was incompetent, in that counsel’s performance fell below a standard of reasonable professional assistance. ·          Third, the appellant must establish prejudice by showing that the incompetent representation resulted in a miscarriage of justice. The miscarriage of justice can be es

Does an Individual have a Reasonable Expectation of Privacy in his/her Municipal Address?

Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure.” This right contains internal limits: its scope is limited to circumstances in which there is a reasonable expectation of privacy. Hunter v. Southam , 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 , at p. 159 . The factors that inform the analysis of whether there is a reasonable expectation of privacy have been grouped under four broad headings: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: R. v. Spencer , 2014 SCC 43 (CanLII), [2014] 2 S.C.R. 212 , at para. 18 . In the informational context, s.8 of the Charter protects “a biographical core” of personal information that “tends to reveal intimate details of the life

Does Retrieving Information for Police Make One an Agent of the State?

In determining whether or not an individual is a state agent, one needs to ask: Would the exchange between the individual and the government actor (or alleged government actor) have taken place, in the form and manner in which it did, but for the intervention of the state? R. v. Broyles , [1991] 3 S.C.R. 595 .   It is an important question, as those who operate under the authority of the government may be subject to a different set of laws than those which regulate the conduct of private individuals--perhaps most importantly, the Canadian Charter of Rights and Freedoms . Under the Broyles test, whether one is an agent of the state is typically a fact-driven inquiry. Is an Individual Acting as an Agent of the State when He/She Retrieves Information at the Request of the Police The act of an individual retrieving information in response to a narrow and specific request from the police does not necessarily make that individual a state agent. Ward , at para. 96; R. v

Exigent Circumstances Searches under the Controlled Drugs and Substances Act

It is well-established that ordinarily a warrant is required in order to enter a residence to effect an arrest or conduct a search. Section 529.3(2)(b) of the Criminal Code and section 11(7)  of the Controlled Drugs and Substances Act (“CDSA") both provide an exception to the requirement for a warrant to enter a residence if there are exigent circumstances. CRIMINAL CODE POWERS TO ENTER DWELLING HOUSES TO CARRY OUT ARRESTS 529.3(2) Exigent circumstances For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or (b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

Can the Police Set Up Video Cameras in the Common Areas of Multi-Unit Dwellings without  Prior Judicial Authorization?

Video Installation in the Hallway of a Condominium R. v. White , [2015] O.J. No. 3563, 2015 ONCA 508 (CanLII) clarifies that there is a reasonable expectation of privacy for a tenant or owner related to common areas of a multi-unit building. That privacy interest is obviously less than that related to the interior of a living unit. In R. v Phan , 2017 ONSC 978 (CanLII), police installed a video camera in the hallway outside the condominium unit where the accused lived.   While the police had obtained judicial orders authorizing various types of searches in respect of the accused (eg. a Part VI intercept, and a tracking device warrant), the installation of the camera had not been specifically authorized. The hallway camera did not capture the front of the applicant’s door, let alone the interior of the unit. Nonetheless, the Court held that it constituted an unauthorized search in violation of section 8 of the Charter. An application of the principles in R. v. Grant , 2009

Suspending the Right to Counsel

Section 10(b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The rationale for the right was discussed by the Supreme Court of Canada in R. v. Suberu , 2009 SCC 33 (CanLII), at para 42:      [T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination. The right to counsel is broken down into informational and implementational components. The informational component requires that the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the