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August 2018 Archives

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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August 2018 Archives | Ottawa Criminal Law Blog