Friday, July 3, 2015


Aboriginal people and Canadian Criminal law

The Criminal Code and the Youth Criminal Justice Act have parts that consider the unique legal status of Aboriginal people in Canada.

So Section 718.2 of the Criminal Code says:

718.2 A court that imposes a sentence shall also take into consideration the following principles:
…  (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Similarly Section 38 of the Youth Criminal Justice Act says:

38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:
…  (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

These principles are often referred to as Gladue principles from a 1999 Supreme Court of Canada decision.

Gladue principles say a Court must consider:

the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the Courts (such as systemic disadvantages, discrimination and other factors) and
the effectiveness of the sentencing by looking at the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection.

The Court must consider whether imprisonment to denounce or deter "would be meaningful to the community of which the offender is a member."  The aboriginal heritage factor will play a role in all offences by offenders, no matter how serious.   However, aboriginal factors will play less of a role for the most serious offences where the emphasis must be on the protection of the public, denunciation and deterrence.  There is no need to prove a causal connection between the offence and the accused's aboriginal background.

Where imprisonment is necessary, the length may be less due to the aboriginal heritage factors, however, where the offence is "more violence and serious" it is "more likely" that the terms of imprisonment will be close to or the same length as a non-aboriginal offender.
Courts can take judicial notice of that Aboriginals have a long-standing disadvantage in Canadian society.
Every criminal court in Canada is required to take Gladue factors and principles into consideration when sentencing an Aboriginal person. Courts are also required to take a person's Aboriginal background and the Gladue principles into account at bail hearings.

Thursday, July 2, 2015

Splitting a case

R. v. Graziano, 2015 ONCA 49:

[37]       ... The proper approach would have been to consider whether permitting the Crown to call Hogan in reply offended the rule that prohibits the Crown from splitting its case. In Krause v. The Queen (1986), 29 C.C.C. (3d) 385 (S.C.C.), at pp. 390-91, McIntyre J. set out the rule against case-splitting and its rationale:

The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case, the indictment and any particulars… The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response. [Citations omitted.]

[38]       In my opinion, however, the Crown's calling Hogan in reply did not breach this rule. In Krause, at p. 391, McIntyre J. discussed the exception to the rule against case-splitting – that is, when the Crown may be entitled to call reply evidence:

The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated.

Tuesday, June 30, 2015

Risks of being a surety

Your best friend has been arrested. You know she has a drinking problem but you also know she's a good person and so when she calls and says "come to court and bail me out" you agree to. 

That makes you a surety for your friend. And that means you have to take all reasonable steps to make sure she follows all the rules imposed on her as part of her release. 

Those rules can be onerous - for example they may say your friend cannot drink. And for someone who is an alcoholic not drinking may be close to impossible. 

If you think you cannot make your friend follow the rules you should not be her surety. 

Being a surety requires you to make sure the accused attends court as required until the case is over. As mentioned you are also responsible to ensure that the accused abides by the conditions of release. As a surety you are, in a sense, the "jailer" of the accused. You must provide supervision over the accused's daily activities. It's not an easy job.

Should you become a surety and find you no longer can act -- for example you find it too hard -- you can always quit. You have an absolute right to resign as surety and you do not need to give a reason for resigning -- there is a process and you need to let the Court know you are quitting but the process is not complex. But if you do so the accused will likely go back to jail so it's really hard to quit if the accused is a close friend or family. 

But if you fail as a surety, in addition to potential criminal liability (which in truth is pretty rare) you can lose the money that you pledged or actually posted on becoming a surety. 
This procedure is called estreatment of bail. A forfeiture hearing is held where the surety has an opportunity to show why the money should not be taken. 

If you have taken all reasonable steps to make sure the accused follows the terms of release you may avoid penalty. Such steps include informing authorities immediately if the accused absconds or when the apprehension of absconding arises. If you made some, though inadequate, effort to make sure the accused followed release conditions, you may be ordered to pay an amount less than the full amount pledged or posted. 

It's a big deal being a surety and you should think about it before agreeing to act and if you act you must take your job seriously. 

Monday, June 29, 2015

Brief reasons in civil matters are not insufficient especially where urgency exists

PDM Entertainment Inc. v. Three Pines Creations Inc., 2015 ONCA 488:

 [32] I begin with an important contextual point. After the two applications were filed, they were scheduled for hearing on an urgent basis on the first available date that permitted time for responding materials, examinations and facta. In its Notice of Application, PDM said, under a separate heading titled “Urgency”: (eee) [I]t is imperative that the Application be heard on an urgent basis. PDM has funding applications that are presently being considered and, if there is uncertainty as to the ownership of the rights, the funding applications may have to be withdrawn[.]

[33] Moreover, at the conclusion of argument on January 22, 2015, PDM’s counsel advised the application judge of the urgency of the matter and requested that, if possible, a decision be issued quickly. There is no indication that the appellants took issue with that request or with PDM’s justification therefor. The application judge released his decision the next morning, on January 23, 2015. He gave the parties what he had been asked for: an early hearing and an immediate decision.

[34] In F.H. v. McDougall, at para. 98, Rothstein J. summarized the rationales underlying the duty to give adequate reasons: (1) to justify and explain the result; (2) to tell the losing party why he or she lost; (3) to provide for informed consideration of the grounds of appeal; and (4) to satisfy the public that justice has been done.

[35] In my view, the application judge’s reasons in this case meet this standard.