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How far can a judge go in answering questions from a jury?

A recent Supreme Court of Canada decision, in the case of R. v. Miljevic, considers the question of whether or not a judge is required to provide specific examples of a crime, when the jury asks for them. This case is particularly interesting because the court was split. The majority judgment was written by Justice Cromwell, with Justices Abella, Charron and Rothstein concurring, while Fish wrote dissenting reasons in which Chief Justice McLachlin and Justice Deschamps concurred. A 3-4 split among judges can evolve and be applied in such a manner as to make the minority decision the majority, over time.

The facts of the case involve a man who is accused of second-degree murder, after he threw a heavy object into a crowd, causing someone’s death. At trial, he admitted he unlawfully killed someone, but contended that he was guilty of manslaughter, rather than second-degree murder. He was convicted, which conviction was upheld on appeal, and the case came to the Supreme Court of Canada.

Roadside breath tests and smoking

Breath tests and smoking

What about breath tests and smoking? When you are stopped at the roadside for an impaired driving investigation, the police will often ask you to blow into a roadside breath testing device. These are known in law as Approved Screening Devices (ASDs). But what happens if you just finished a cigarette and you are asked to blow?

The ASD is fallible. It cannot distinguish between mouth alcohol and alcohol in the body. It is the responsibility of the police to ensure that they are using the ASD properly and are not using it in circumstances where the results could be contaminated by the presence of mouth alcohol.

I have been asked by many clients about the impact that smoking can have on the reliability of the ASD result. Should we be concerned about breath tests and smoking?

The RCMP are told to delay using the ASD for a few minutes if they know a person has been smoking recently. It is said that blowing smoke into the device can damage the ASD and it will give inaccurate readings.

National police services

The RCMP is concerned that they can no longer fund the National Police Services. For those of you who don’t know, the NPS maintains not only the databases of fingerprints and criminal records for Canada, but also the Canadian Police Centre for Missing and Exploited Children and the nation’s sex offender registry.

It’s estimated that this year alone over $28 Million will be spent to maintain the database, which contains information about fingerprints, criminal records, missing children, and the sex offender registry. Federal funding has dropped by $20 Million since 2006. To make up the deficit in funding, the RCMP has been using monies from their budget surplus to maintain this program. However, a recent push for recruitment of RCMP staff and officers has resulted in an elimination of the surplus. 

Use of technology increases expectations in court

A judge in Michigan has conducted two studies to address the well-known CSI-effect. For those of you who are unfamiliar, the CSI-effect is the theory that jurors who have seen a great deal of television shows like CSI, Criminal Minds, and the like are more likely to expect sophisticated DNA and technological evidence to be presented in murder trials. This has been believed to have had devastating impacts on the administration of justice. It is believed that as jurors grow accustomed to technology that may not be available, or even exist, in certain cases, the potential for convictions and/or acquittals that are not...

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Excessive speeding and your license

excessive Speed Speeding Ticket

A man in Montreal has been given a speeding ticket and fines of $2,598 after he was clocked on radar at over 200km/hr. He is also being given 42 demerit points against his license. This is one of the most notable cases of excessive speed in Canadian history, but the insurance company in Quebec has not yet confirmed if this is the fastest. Given that Quebec Drivers’ Licenses are suspended at 15 demerit points, this gentleman should expect a driving prohibition between 3 and 12 months, depending on his driving record.

Policing in the province

Just one day after a Surrey teenager was killed by an RCMP cruiser, we learn that the Abbotsford Police are recommending a charge of assault causing bodily harm against thepolice officer who kicked a suspect in the face during an arrest.

Of course, we remember that the Abbotsford  police are themselves the target of an investigation into the use of excessive force, following a video that surfaced on popular social networking site, YouTube.

The death penalty debate

Harper recently said in an interview that there are times when he believes the death penalty is appropriate. Despite this, he claims to have no designs to reopen the debate.

Regardless, his comments have effectively done just the opposite of his purported intent. Many people are now talking about the death penalty and when it may or may not be appropriate.

History of the Death Penalty

In Canada, the death penalty was always administered by hanging, except in instances of military penalties, in which case the convicted person was shot. At the beginning of the use of the death penalty in Canada, the punishment was available for a variety of offences, including treason, rape, pedophilia, bestiality, burglary, and homosexuality. 

Canadian bail provisions

Any time a child dies is a tragedy. There is simply no getting around that. A woman in Mississauga has been charged in connection with the death of a child at a daycare she ran. The Crown has decided to proceed by laying charges of second degree murder. On Friday morning, the woman was released on bail pending her trial.

A reading of the comments on the CBC article made it clear to me that the public is not pleased with the decision of Judge Durno in this matter. Their outrage is understandable, given the seriousness of the crime the accused is alleged to have committed. However, there exists a body of law in this country relating to the release of accused persons while they await trials.

As an experienced criminal lawyer in Vancouver, I know just how long it can take to get a trial date. In my experience, it takes at least a year from the date of the arraignment to get a trial date, though it is frequently longer. The arraignment is not typically the first court appearance, so the trial date is typically not set until well after the date of the alleged offence. Some of the complications that can cause these delays include a shortage of judges, a shortage of prosecutors, and difficulty scheduling police witnesses.

Police takedown in Abbotsford finally investigated

Why has this taken so long? In October of 2009, a video surfaced on YouTube that depicted Abbotsford Police taking down suspects they believed were involved in a drug transaction. The clip depicts officers kicking a man in the head, as well as standing on his legs, despite the fact that the man was lying on the ground an appeared to be complying with the direction of the officers. Although an investigation was undertaken by the Abbotsford Police themselves, it was determined that no misconduct or excessive force was used. Now the BC Police Complaints Commissioner has ordered a public hearing in respect of...

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Provocation and murder

The Supreme Court of Canada recently released their decision in R. v. Tran, a case about a murder that occurred loosely in the context of a domestic assault. The case concerned the quasi-defence of provocation.

Provocation exists as a partial defence only to the charge of murder. Although raising and successfully establishing provocation at trial will not result in an acquittal, it can reduce a first- or second-degree murder conviction to one of manslaughter. A murder conviction carries with it the harshest sentence our criminal justice system can impose: life in prison.

The only substantive difference between a conviction for first-degree murder and second-degree murder is in sentencing. First-degree murder has a mandatory minimum sentence of life in prison with no possibility of parole for twenty five years. Second-degree murder has a mandatory minimum of life, with no possibility of parole for ten years. Manslaughter, however, has no minimum sentence. Thus, the importance of establishing provocation in some instances is quite clear.