Criminal Defence Law Blog
When you define a human being as we do in s. 223 of our criminal code as a child who has “completely proceeded, in a living state, from the body of its mother”, it has certain consequences. One such result is that “any woman can destroy her near-term or term fetus and can induce an abortion accordingly and do what she will with the remains without risking any criminal sanctions.”
Former GTA stripper acquitted of concealing dead baby’s body | Toronto Star.
What it takes to get shot by police in the States: 1 being black 2 shopping at Walmart.
Cops Escape Charges For Killing Walmart Shopper Holding A BB Gun Sold At The Store | ThinkProgress.
What it takes to get shot by police in the States: 1 being black 2 possible driving violation 3 obeying police orders.
Video Shows South Carolina Cop Shooting Black Man Without Any Apparent Provocation | ThinkProgress.
A little bit of power, unrestrained … is a violent and ugly thing. These days we have video in our defence. Every interaction with police should be on video.
NYPD Officer Allegedly Caught On Video Throwing Pregnant Woman To the Ground | Mother Jones.
We have a saying that bad cases make bad law. “When judges stretch the law to accommodate the needs of individual cases they risk creating precedents that are not what anyone intended.” On the other hand, unyielding laws require unyielding decisions. This is why we advocate against zero tolerance laws without a relief valve for the exercise of judicial discretion in appropriate cases.
I don’t know if this is still under discussion but it’s bad thinking. The U.S. wants its border officers to operate in Canada and be exempt from Canadian criminal law. The U.S. sought similar agreements from Iraq and Afghanistan for it’s military soldiers. The problem with this idea is that it fails to distinguish between non-democratic and constitutionally protected countries in that it ignores the basic fundamental principle of our country, being the “rule of law”, which is the principle that nobody is above the law. In other words, every person is subject to the law. It also fails to distinguish between military and civil police forces. This is a discussion we shouldn’t even be having.
U.S. pushes for cross-border officers to be exempt from Canadian law: RCMP memo – The Globe and Mail.
I’ve said a lot against the Harper Government “tough on crime” agenda. “The track record of the Harper government’s crime agenda reads like the ancient Greek myth of the hydra: For each unconstitutional law the courts cut down, two new laws — equally stupid — grow in its place.” It looks like I’m going to be saying a lot more about it in the future. Here is a good article by:
Michael Spratt of www.ipolitics.ca:
“Another fall in Ottawa, another sitting of Parliament — we’re all a summer older and the Harper government still hasn’t learned a thing about passing criminal laws that work.
Let’s recap, just for laughs: When the House of Commons adjourned for the summer the Conservatives — as they love to do — were talking tough on crime. The courts, on the other hand, were paying close attention to logic and constitutionality of the government’s criminal justice agenda.
And we all know how that turned out. Minimum sentences, mandatory victim fines and the retroactive elimination of parole – all Conservative legislation, all declared unconstitutional by the courts.
And the government’s losing streak continues: Last week, the Ontario Court of Appeal declared a fundamental aspect of the ‘Truth in Sentencing Act’ to be unconstitutional.
The Act sought to impose strict limits on the amount of credit that an offender could receive for pre-sentence custody.
Historically — and for very good reasons — judges retained the discretion to determine the amount of credit an offender could receive for time spent in custody prior to conviction. This credit could then be applied to reduce the offender’s ultimate sentence.
Over and over again, courts have recognized that it’s fundamentally unfair to treat a day in custody prior to sentencing as equivalent to a day in custody after sentencing. There are two reasons.
The first is quantitative: Pre-sentence custody does not count towards parole eligibility or earned parole remission.
The second is qualitative: Conditions in remand facilities are deplorable. While waiting for their trial, the accused — and these are people presumed to be innocent, remember — are warehoused in remand detention centers that are overcrowded, dangerous and devoid of any rehabilitative programming.
As a result – and despite the Conservatives’ best arguments at the Supreme Court – when the circumstances justify it, judges are still able to increase pre-sentence credit to account for these inequities.
The Truth in Sentencing Act sought to completely eliminate this aspect of judicial discretion in cases where an offender had been denied bail because of a past criminal record.
The Ontario Court of Appeal unanimously found that the elimination judicial discretion on this point “offends the proportionality principle, and the parity principle which is a vital part of it, by subjecting identically placed offenders to different periods of incarceration, depending on whether they are able to obtain bail, for reasons that are irrelevant to sentencing. It also produces effects that are grossly disproportionate.”
You think they’d learn. You’d be wrong. The track record of the Harper government’s crime agenda reads like the ancient Greek myth of the hydra: For each unconstitutional law the courts cut down, two new laws — equally stupid — grow in its place.
Not just disproportionate — illogical. The real problem with the Truth in Sentencing Act is that it makes no sense. Let’s talk cases:
Imagine we have two different people accused of identical crimes. Each has a criminal record. The first offender has strong community support and is released on bail. The second offender is less lucky – maybe he’s poor, homeless, or without family — and he’s ordered remanded into custody pending trial.
If both these offenders ultimately receive identical sentences, the offender who was denied bail will actually spend more time in jail — because the time spent in pre-sentence custody (in abysmal conditions) doesn’t count toward parole.
And because the poor and marginalized are less likely to obtain bail, they’re the ones who stand to lose the most through the Truth in Sentencing Act. That should have been obvious to the Conservatives. Maybe it was. But the bill’s purpose was to play up the government’s crime-fighting cred with the Conservative party base. When your objective is purely political, logic is irrelevant.
But rabid partisanship and faulty logic tend to play poorly in our courts; judges like to hear arguments based on facts. The Ontario Court of Appeal’s decision on the Act is an indictment the Harper government’s entire approach to criminal law: “Like many attempts to replace the scalpel of discretion with a broadsword, its application misses the mark and results in unfairness, discrimination and ultimately unjust sentences.”
The Conservatives say that their heavy-handed take on criminal law is necessary to restore public faith in the justice system. Ironically, the Court of Appeal suggested that the opposite is true — that the public’s confidence in the criminal justice system is being eroded by irrational laws that end up exploding in their authors’ faces.
You think they’d learn. You’d be wrong. The track record of the Harper government’s crime agenda reads like the ancient Greek myth of the hydra: For each unconstitutional law the courts cut down, two new laws — equally stupid — grow in its place.
And the man leading the parade isn’t turning it around. He may not know how. Speaking to a packed partisan crowd at the Ottawa Convention Centre recently, Prime Minister Harper vowed more of the same:
“This fall we will do more. We will move to speed the removal of foreign criminals from our shores, we will end automatic early parole for serious offenders, and we will make sure that a life sentence means what it is supposed to mean — prison for life,”
More parole changes. Indefinite incarceration … until death. Think about that for a minute.
Eliminating any possibility of parole would be a profound change to Canadian criminal law. At the very least, it’s something that deserves careful and considered debate. But the Conservatives’ don’t like debates, don’t like being contradicted and aren’t interested in hearing any facts that don’t support their arguments. So if there is a debate, it won’t be a long one.
Last year the Supreme Court found the last Conservative attempt at parole reform — the retroactively limiting of parole — was unconstitutional.
Last week the Ontario Court of Appeal found that the section of the Truth in Sentencing Act that eliminated any exercise of discretion to account for parole disparities was also unconstitutional.
Given Harper’s tub-thumping, I suspect the courts will be called upon to slay yet another dragon. And unless things change in Ottawa, two new heads will grow in its place.
Michael Spratt is a well-known criminal lawyer and partner at the Ottawa law firm Abergel Goldstein & Partners. He has appeared in all levels of court and specializes in complex litigation. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and is on the board of directors of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt
The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.”
“The young men who are vilified as non-contributing members of society are not the problem, they’re the solution. Being “tough on crime” is not the solution, it’s the problem!
This is an extremely important point! “More than 75,000 prosecutions every year are based entirely on the recollections of others. While perjury is a felony, the overwhelming majority of eyewitness errors aren’t conscious or intentional. Rather, they’re the inevitable side effects of the remembering process.” Most of us don’t know or believe that eyewitness accounts and identification are inherently unreliable! This type of evidence HAS to be tested. This is why we have trials.
Jonah Lehrer on Memory, Witnesses and Crime | Head Case – WSJ.
Previously we have been blogging about some of the basic elements of criminal law including offences and defences so that people charged with offences and looking for a criminal lawyer to represent them could become better informed about what they’ve got themselves into. There is, of course, a limited amount of information that can be provided in this format.
You may not be aware that concurrently we have been maintaining our Facebook page of Hobson & Reeve where we primarily post relevant and what we find interesting articles and commentary on current legal issues. In addition to our ongoing blogging we will now also be posting these articles here. We hope you find this interesting, informative and sometimes controversial.
We invite you to use the Facebook logo button at the top right of the screen to access our page and to “like” the page if you wish to follow these posts instead of revisiting this page. Also, we invite you to comment and/or begin a dialogue.
We would LIKE you to LIKE us. Please do, and enjoy.