Stuart O'Connell Criminal Law Blog

Freedom of expression protects listeners as well as speakers, particularly in the context of members of the public receiving information about the activities of public institutions. Langenfeld v. TPSB , 2018 ONSC 3447, at para. 51. Where the law provides that a meeting of a government body is open to the public, the right of an individual to attend the meeting and listen to the deliberations, and if the procedures of the government body permit public participation, to make submissions, is protected under the Canadian Charter of Rights and Freedoms by the s. 2(b)  right of freedom of expression. Langenfeld v. TPSB , 2018 ONSC 3447, at para. 51. A search of the person can have the effect of imposing a limit on the exercise of one’s right to freedom of expression that will, subject to s. 1, infringe s. 2(b) of the Charter , for instance, when a public authority requires a person to submit to a search as a precondition to that person engaging in an expressive activ...

Section 12 of the Charter provides, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” A sentence will violate section 12 where it is grossly disproportionate to a fit punishment in the circumstances.   A sentence is at greater risk of being grossly disproportionate where the offence captures a wide range of conduct and circumstances.  See R v Forcillo , 2018 ONCA 402 (CanLII) . Sexual interference is such an offence as it captures a broad range of conduct from a touch “to the worst forms of human degradation.”  R v Sandercock , 1985 ABCA 218 (CanLII) at para 11 . The issue of the constitutionality of the mandatory minimum for the indictable offence of sexual interference (s. 151(a) of the Criminal Code ) has recently been considered by six courts of appeal across the country [FN]: 1.         the Quebec Court of Appeal in Caron Barrette c. R. , 2018 QCCA 516,...

Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis . R. v. Comeau , [2018] 1 SCR 342, 2018 SCC 15 (CanLII), at para. 26. However, stare decisis is not a straitjacket that condemns the law to stasis.  Trial courts may reconsider settled rulings of higher courts in two situations:   (1) where a new legal issue is raised; and   (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”. Canada (Attorney General) v.   Bedford , 2018 SCC 72 (CanLII), at para. 42.  While the latter exception is a narrow one [FN], it has been found to have been engaged, for example, where the underlying social context that framed the original legal debate is p...