Category Archives: Criminal

A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

By: Admin

PDF Version: A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

Case Commented On: R v Boisjoli, 2018 ABQB 410 (CanLII)

The decision of Justice Eldon J. Simpson in R v Boisjoli is unusual. On April 5, 2018, the Crown and the accused, Mr. Boisjoli, appeared before Justice Simpson to select jurors for a trial scheduled for the week of April 9. The charge (or one of the charges) was one of intimidation of a justice system participant, contrary to section 423.1 of the Criminal Code, RSC 1985, c C-46. However, no jury was selected on April 5. Instead, Justice Simpson, by his own motion and under the claimed authority of the court’s inherent jurisdiction, ordered that Mr. Boisjoli’s trial go ahead as a trial by judge alone. Justice Simpson’s order was made because of the anticipated behavior of Mr. Boisjoli, i.e. that he intended to “artificially frustrate the jury selection process” (at para 24) and “disrupt and sabotage” the jury trial (at para 37). There was only a brief mention of Mr. Boisjoli’s Charter right to a trial by jury, and no Charter analysis. Instead, Justice Simpson relied upon an analogy to a section in the Criminal Code that equated an accused’s non-appearance with a waiver of a jury trial.

Continue reading →

Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada

By: Lisa Ann Silver

PDF Version: Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada

Case Commented On: Groia v The Law Soceity of Upper Canada, 2018 SCC 27

The hot off the presses decision in Groia v The Law Society of Upper Canada confirms my belief that criminal law matters in all areas of law. Criminal law principles are foundational and have a reach beyond criminal case law. This is most evident in the rules of evidence where those principles do not distinguish between areas of law. Evidence is evidence no matter the context. It is the courtroom that gives the rules of evidence its perspective, not any particular area of law. There is a caveat to that proposition: some evidential rules blossom and find deeper meaning in the criminal law context where Charter rights provide a signpost to evidential rulings. In many ways, Groia borrows from the texture of criminal law, not only in the specific areas I will touch upon in this blog posting. The concept of fearless and resolute advocacy, peppered throughout the Groia decision, defines the criminal defence lawyer’s duty to her client. A client who faces the ultimate sanction of our justice system, a potential loss of liberty and societal condemnation. In some ways, the fact that Justice Moldaver, who authored the majority decision in Groia and began his litigation career as a criminal lawyer, references criminal law principles in the Groia judgment should not surprise anyone. Yet, to see not only outright usage of criminal principles but to also detect an almost metaphysical reliance on criminal law analysis brings a welcome richness to this decision. It also helps that the case is situated in a quasi-criminal law environment as a prosecution by the securities commission. A prosecution with a decidedly criminal law bent as Jay Naster started his career as a Crown prosecutor.

Continue reading →

Leaving A Paper Trail: A Comment on Bill C-75

By: Lisa Silver

PDF Version: Leaving A Paper Trail: A Comment on Bill C-75

Legislation Commented On: Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

Receiving the newest Bill tabled in the House on proposed changes to the criminal justice system brings to mind the image of opening gifts at a birthday party. Each gift is scrupulously wrapped in an array of cheerful paper with shiny ribbons. As each bundle is displayed, there is a jostling amongst the party goers – each eager to see the gift unwrapped to reveal the prize inside. The image goes only so far when it comes to the government’s proposed amendments to the Criminal Code tabled last week under the auspices of Bill C-75. Underneath the wrapping, over 300 pages of paper, is no prize but a maze of amendments and changes – a patchwork of pieces – some of which significantly change the criminal justice system. Although some of these amendments are welcome, others signal a significant shift in our criminal justice system. Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. Unfortunately, this omnibus Bill in many respects fails to be visionary. Rather, short-term administrative efficiency seems to be the prize under the mountain of paper. Continue reading →

Evidentiary Issues with Claim of Racial Profiling in R v Kenowesequape

By: Chad Haggerty

PDF Version: Evidentiary Issues with Claim of Racial Profiling in R v Kenowesequape

Case Commented On: R v Kenowesequape, 2018 ABQB 135 (CanLII)

In 1999, the Ontario Court of Appeal adopted the following definition of “racial profiling”

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group (R v Richards, 26 CR (5th) 286, 1999 CanLII 1602 (ON CA) at para 24).

In R v Kenowesequape, Madam Justice Khullar of the Alberta Court of Queen’s Bench was tasked, in part, with determining whether an allegation of racial profiling was justified. This post will focus on the court’s rejection of the argument that racial profiling was in play during this police action. Continue reading →

Wilful Blindness and the Contradictions of Sentencing

By: Erin Sheley

PDF Version: Wilful Blindness and the Contradictions of Sentencing

Case Commented On: R v Giroux, 2018 ABCA 56 (CanLII)

Sentencing is a notoriously self-contradictory component of the criminal process. On the one hand, it allows judges freedom from many of the oft-restrictive rules of evidence that govern the trial itself, giving them the flexibility to take into account aspects of the individual accused’s circumstances and history, often in favor of leniency within the very broad statutory ranges where the facts urge it. On the other, the rule of law requires a degree of consistency across sentences, and for particularly serious cases a trial judge’s broad discretion is limited by mandatory minimums created by Parliament. Furthermore, section 718 and related provisions of the Criminal Code, RSC 1985, c C-46, specify principles that must govern sentencing, codifying the various accepted theoretical purposes of criminal punishment, particularly denunciation, deterrence and rehabilitation. Often, these principles directly contradict one another when applied to the facts of a particular case: it is easy to imagine, for example, how the goal of rehabilitating the offender may urge a very different sentence from the goal of denouncing particularly serious conduct. Furthermore, case law construing these statutory sentencing provisions imposes further constraints on lower courts.  Due, however, to the difficulties in navigating these choppy legal waters, sentencing judges typically receive a high degree of deference as they have the closest view of the facts before them and the testimony of the accused, victims, and other relevant witnesses. Indeed, a court of appeal may disturb a sentence only where: 1) the sentence reflects an error of principle; or 2) the sentence is demonstrably unfit (see R v Cowan, 2012 ABCA 199 (CanLII) at para 14). Finally, after R v Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 (SCC), Parliament amended section 718(e) of the Code to require that sentencing judges take into account the particular circumstances of Aboriginal defendants in considering alternatives to incarceration. Continue reading →