The ReeveLaw Blog

Before a client enters a plea of guilty the criminal code requires that one of the things an accused person must understand is that ultimately the sentence imposed is up to the Judge, not the Crown or the defence lawyer. That scares some clients, however a Judge is not to reject a joint submission on sentence made by the Crown and defence unless there are cogent reasons for doing so. “Cogent reasons may include, among others, where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest. It must be more than an opinion on the part of the sentencing judge that the sentence would not be enough (and not just) because the sentencing judge wants to “send this guy to jail””. Here is a link to the actual decision: http://www.canlii.org/en/mb/mbca/doc/2016/2016mbca34/2016mbca34.html

Case: R v Giesbrecht, 2016 MBCA 34 (CanLII) Keywords: Fraud; Joint Sentencing Recommendation; Prearranged Funeral Services Act, CCSM c F200; R v. Sharpe (KD), 2009 MBCA 50 (CanLII); R. v. Sinclair (E.J.), 2004 MBCA 48 (CanLII); s. 742.3(1) of the Criminal Code Synopsis: The Appellant, Mr. Harvey Giesbrecht, owns a funeral home in Beausejour; enters …

Source: Supreme Advocacy LLP

“We know it is impossible to arrest our way out of this problem,” So why are they going to keep arresting, criminalizing, fining and jailing people in the next year for something that will be legal this time a year from now??

We know it is impossible to arrest our way out of this problem,”

Source: Federal marijuana legislation to be introduced in spring 2017, Philpott says – Politics – CBC News

Since we deal with a lot of domestic disputes I can say that these words are just as true in criminal law as in family law. “A father thought it would be a good idea to present nude pictures of his ex-spouse in a bid to persuade the judge she was a bad, neglectful mother.” The Judge found “the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life. Big deal.” and did not grant the father’s request.

Any judgment that starts with the words “do nude pictures of parents help judges decide who should get custody?” is going to be a good one.

Source: FindLaw Canada | Judge unimpressed with ‘50 Shades of Grey’ nude photos in nasty custody battle

Now that (ex)Constable James Forcillo has been found guilty of attempting to murder Sammy Yatim with a firearm he is facing one of Harper’s mandatory minimum sentences of at least 4 years in jail. He says the mandatory minimum sentence was “designed to penalize those involved in criminal activity and not police officers trying to protect the public” so it shouldn’t apply to him. Now even the police don’t like MMSs. What do you think? What do you think Justice Then will think?

Source: Mandatory minimums not constitutional?

Our present criminal code is a mess. “minor tinkering, poorly written private members’ bills, massive omnibus legislation, and opportunistic political reaction” has made it so. It is so convoluted and complicated that even the best criminal lawyers, prosecutors and Judges can’t make sense of it all. We need to create a new independent Law Commission (eliminated in 2006 by Harper) to do a long overdue comprehensive review. A complete overhaul is necessary. A good brief article by Spratt.

Source: The Criminal Code is a weighty book — literally

“Parliament revised this regime in 2009. It did not do away with enhanced credit, but it capped that credit at one and a half days for each day of pre-sentence custody. Parliament also — which brings us to the issue in this case — removed a sentencing court’s discretion to give any enhanced credit to offenders for pre-sentence custody, if they were denied bail primarily on the basis of their criminal record. I conclude that the provision infringes s. 7 of the Charter (right to life, liberty and security), and is not justified under s. 1 of the Charter.”

Source: R. v. Safarzadeh‑Markhali – SCC Cases (Lexum)

The S.C.C. has been busy today striking down PM Harper’s unconstitutional excesses. “We are asked to decide the constitutionality of a one-year mandatory minimum sentence for a controlled substances offence. I conclude that this provision, while permitting constitutional sentences in a broad array of cases, will sometimes mandate sentences that violate the constitutional guarantee against cruel and unusual punishment. Insofar as the law requires a one-year sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter and is not justified under s. 1.”

Source: R. v. Lloyd – SCC Cases (Lexum)

“Imagine for a moment that everybody’s front door has the same key. Now imagine that the police have a copy of that key, and can saunter into your living room to poke around your belongings while you’re out, and without your knowledge. If I’m not on the [Business Enterprise Server], I’m a dead chicken. That’s the reality of it, that’s what we don’t want the general public to know.”

The RCMP intercepted and decrypted over one million messages.

Source: Exclusive: How Canadian Police Intercept and Read Encrypted BlackBerry Messages

Justice of the Peace Lauzon has bravely opined that bail courts “have devolved into dysfunctional and punitive bodies. “The Canadian bail system has effectively been a pretrial punitive regime that’s inconsistent with the presumption of innocence and Charter protection. Sometimes those in custody must choose between fighting a bail hearing or agreeing to onerous conditions. They live with those conditions for months until trial and can end up with charges after breaching the conditions, which might not have been necessary in the first place. The police can release more people; the Crown attorneys cannot press for sureties and conditions to the extent that they probably do now. If bail is going to be set by justices of the peace, they have to be legally trained, as is required in Alberta.”

Source: JP is lauded for comments on bail system

 Do you think that someone who is able to deny bail and detain individuals pending trial as well as to incarcerate them for certain offences and issue warrants to search your house should at least have a legal eduction? In Ontario in order to become a J.P. you need at least 10 years of full-time work experience, paid or volunteer and a university degree or college equivalent in any field.

Critics argue that JPs, given power to deny bail and jail individuals pending trial, should have more legal training.

Source: Only five of 14 new justices of the peace have a law degree: Does that make sense? | Toronto Star