BCCA Upholds Constitutional Invalidity of 1 Year Mandatory Minimum Under Section 151

R. v. Scofield (2019 BCCA 3)

Court of Appeal affirms that 1 year indictable mandatory minimum under section 151 of the Criminal Code violates section 12 and cannot be saved under section 1 rendering it unconstitutional.  

https://www.courts.gov.bc.ca/jdb-txt/ca/19/00/2019BCCA0003.htm

Objective Fault Standard for Section 145(3) Breach Offences

R. v. Zora (2019 BCCA 9)

Court of Appeal finds that the duty-based nature of s. 145(3), combined with the risk-based nature of bail provisions, support Parliament’s intention for the application of an objective fault standard.  If there is a reasonable doubt that a reasonably prudent person would not have foreseen or appreciated the risk or could have done something to prevent the breach, an acquittal must follow. 

In this case, appellant explained that he may have been sleeping to 2 police curfew checks that he did not respond to.  Appellant was a heroin addict on methadone which made him go to sleep earlier than usual.  Court found that Appellant's failure to present himself at his door for two curfew compliance checks demonstrated a marked departure from what a reasonable person would have done in the circumstances. A reasonably prudent person in the circumstances would have foreseen or appreciated the risk or could have done something to prevent the breach. 

https://www.courts.gov.bc.ca/jdb-txt/ca/19/00/2019BCCA0009.htm

Certiorari Only Available in Criminal Proceedings for Jurisdictional Rather than Legal Errors

R. v. Awashish (2018 SCC 45)

The Supreme Court of Canada provided guidance on the use of certiorari in criminal proceedings.

Disclosure of Breathalyzer Maintenance Records Subject to Rules Applicable to Third Party Records

R. v. Gubbins (2018 SCC 44)

A helpful review by the Supreme Court of Canada on disclosure of 1st party (Stinchcombe) versus 3rd party (O'Connor) records. 

Excellent Bail Decision for Secondary and Especially Tertiary Grounds

R. v. Legare (2018 BCPC 254)

Excellent bail case for secondary and especially tertiary grounds.  A reasonably informed person would be aware that bail is granted even in the most serious cases including murder. 

There is No One Formula or Approach to Determine Pre-Sentence Custody

R. v. Kizir (2018 ONCA 781)

For counsel seeking to have the court credit their client with enhanced pre-custody credit above and beyond time and a half, there is no one formula or approach to determining pre-sentence custody credit for harsh conditions. 

Section 10 Breach Where Police Did Not Advise of All Arrestable Charges

R. v. Lance (2018 BCSC 1695)

In this case, a section 10 breach was found where the accused was advised of his arrest for assault but was not advised of the accompanying uttering threats matter. 

Drug Expert Opinion Anecdotal and Inadmissible

R. v. Burnett (2018 ONCA 790)

Drug experts often go out on a limb to stretch their opinion evidence beyond what is proper and admissible.  This is a useful case where the court ruled that evidence presented by the drug expert that...

Trafficking Fentanyl is Not a Violent Offence Under YCJA

R. v. T.P. (2018 BCPC 242)

Nice try by Crown but trafficking in fentanyl does not equate to committing a violent offence as defined by the YCJA.

Autism Found to be Mitigating Factor

R. v. Hartman (2018 BCPC 240)

An important decision for counsel who deal with clients with issues concerning mental health and moral culpability. 

Section 10 Breach Despite Lack of Causal Connection

R. v. Rover (2018 ONCA 745)

Section 10(b) breach leads to exclusion of evidence obtained pursuant to search warrant despite lack of causal connection.

Exceptional Circumstances Test Does Not Apply to Non Dial-A-Dope Trafficking

R. v. Diedricksen (2018 BCCA 336)

If it doesn't walk like a duck and doesn't talk like a duck...Dial-a-dope is not aggravating and exceptional circumstances do not apply to regular old trafficking.

Supreme Court of Canada Provides Important Guidance on Withdrawal of Guilty Pleas

R. v. Wong (2018 SCC 25)

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17100/index.do

Accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea should be required to establish subjective prejudice. To that end, the accused must file an affidavit establishing a reasonable possibility that he or she would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. 

No Presumption that Accused Must Sit in Prisoner's Box

R. v. Shevalev (2018 BCSC 1609)

Rare B.C. ruling, relying on Ontario caselaw, regarding the court's discretion to allow an accused to sit outside the prisoner's box and closer to counsel. 

Police Must be Party to Conversation for 1 Party Consent to Apply

R. v. Shevalev (2018 BCSC 1608)

Hey man - no 1 party consent if you weren't invited to the party!  Undercover officer posing as a drunk in the back of a police wagon overhears and records conversation but did not participate in it. 

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