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Ottawa Criminal Law Blog

90 day mandatory minimum sentence for sexual interference stuck down

Mandatory minimum senteces for sexual offences are continuing to fall. The mandatory minimum sentence of one year in jail for sexual interference when the Crown proceeds by indictment has previuosly been declared unconstitutional in many cases Now, the mandatory minimum of 90 days in jail has beem struck down.

Despite police mistakes when seizing a computer to search constituting Charter breaches, the evidence was still deemed admissible

One of the methods by which police are made aware of the presence of child pornography on a computer is when a computer technician is hired to fix the computer and in the process of doing so discovers the illegal content. A recent decision of the Court of Appeal of Alberta, R v Villaroman, 2018 ABCA 220¸ considered such a case.

R. v. Hammerstorm - A Witness' Youth Criminal Record

Often times in a trial, the credibility of a witness is an important issue. The lawyers may seek to attack the credibility of a witness by asking them questions about their criminal record (If they have one). For example, if John Smith swears that he saw my client stealing from a grocery store, it might be helpful to highlight the fact that he himself has a criminal record for perjury (lying to a court). In those circumstances, John Smith's previous criminal conviction for perjury, is relevant to whether he is a credible a witness in my client's trial.

Cannabis detection: Roadside mouth swabs proposed in Canada

A request to walk in a straight line, or take a breathalyzer test, may be expected if you are pulled over under suspicion of drunk driving. But what options are available to police officers when they suspect someone has been driving under the influence of cannabis? This is a question many Canadians have asked since the country announced the legalization of cannabis earlier this year.

 

Court considers admissibility of detector dogs and ion scanners at border crossings

When you cross the border into Canada from the USA, you are subjected to a search, where there is a lower expectation of privacy than you would otherwise have. A recent decision of the Ontario Superior Court considered the use of both detector dogs and ion scanners at the border. The case involved a truck driver crossing into Canada with a load of oranges, and upon inspection they found 30 kilograms of cocaine hidden among the oranges. Subsequently, the detector dog, Pumba, made an indication on a suitcase in the cab of the truck. A search of the bag revealed no drugs, although a swab of the suitcase put through an ion scanner tested positive for cocaine.

What if my Child is Going to be a Witness in a Trial

If your child is going to be a witness in a trial, it might be helpful to get some legal advice in advance of his or her testimony in order to ensure that both you and your child understand the risks and obligations that are at play.

Another One Bites the Dust - ONCA strikes down certain Mandatory Minimum Sentences for production of marijuana

In May 2018, the Ontario Court of Appeal in R v Vu, 2018 ONCA 436 has struck down mandatory minimum sentences (MMS) in relation to the productions of marijuana. Parliament had implemented a sliding scale of MMS for marijuana production offences. The MMS go from 6 months to 3 years imprisonment depending on the number of plants produced and whether there are statutory aggravating factors covered by section 7(3) of the Controlled Drug and Substances Act. The Court found that section 7(2)(b)(iii), (v), (vi) and 7(3)(c) are unconstitutional and violate section 12 of the Charter of Rights and Freedoms to be free of cruel and unusual punishment.

Ontario Court of Appeal Orders New Trial in Dangerous Driving Causing Death Case

Martial Laverdure was charged with dangerous driving causing death.  He hit a pedestrian who was leaving a hockey game.  He was driving approximately 60 km/hr in a 50 km/hr zone.  The trial judge found that the driving was dangerous, particularly given the higher than normal volume of pedestrian traffic.  The Court of Appeal agreed with that finding but went on to note that a finding that the driving was dangerous was not sufficient to enter a conviction.  On a charge of dangerous driving, a court must also consider whether the driving constituted amounted to "marked departure" from the standard of care that a reasonable person would observe if placed in the circumstances in which the accused found himself.  Mere negligence or carelessness is not enough.  In some cases, the manner of driving will be so egregious that a finding of a marked departure will automatically flow from that evidence.  This was not such a case and, as a result, a new trial was ordered. 

Choosing a Trial

After you have been arrested you will receive a date to appear in court.  The first thing that will happen is that you will receive a copy of the "disclosure".  This is all of the evidence that the police have gathered against you.  Once you have reviewed all of the disclosure with your lawyer you will then need to decide whether to plead guilty or set a trial date.  In most cases, the trial will take place in provincial court and will be set anywhere from about 8 to 18 months into the future depending on the length of the trial and the complexity of the issues.  However, in some more serious cases, such as a sexual assault, you will be able to choose the court where the trial will take place.  You can choose to have the trial in provincial court, superior court to be tried by judge alone or superior court to be tried by judge and jury.  If the trial in the superior court you will also having the option of a preliminary inquiry which is held in provincial court.  At a preliminary inquiry your lawyer will have the ability to cross-examine some or all of the witnesses to test their evidence in preparation for trial.  Which venue is best in a particular case is dependent on a number of factors and is a topic which should be explored in detail with your lawyer.

I have been charged with assault, what next?

Assault charges can arise out of any number of circumstances, such as an argument with a domestic partner, a dispute with a neighbour, or a fight outside a bar.  The offence of assault is widely defined.  It includes any circumstance where a person, without the consent of the other person, applies force intentionally to that person, directly or indirectly.  It also includes certain situations where no actual force is applied.  An assault occurs when a person attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds, that he has, present ability to effect his purpose.

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Ottawa Criminal Law Blog | Bayne Sellar Ertel Carter