Well, it’s the most wonderful time of the year. The time to reflect and look back on the year that was. It was an eventful year for criminal law in Canada, with a number of significant cases being released by the Supreme Court of Canada. Many of these cases will have far reaching impacts on criminal and constitutional law. Here are the highlights:
The decision of R v. Ndhlovu removed the mandatory imposition of orders under the Sexual Offender Information Registry Act (SOIRA). The law under s. 490.012 required anyone convicted of certain designated sexual offences to register and comply with a number of reporting conditions. The court found that s. 490.012 of the Criminal Code, which removed prosecutorial and Crown discretion from the imposition of these orders was not constitutional, violating s. 7 of the Charter, which guarantees life, liberty and security of the person. The Court found that the burdens associated with remaining in compliance with the requirements and the potential of jail for non-compliance amounted to a deprivation of liberty. And since the regime was imposed on those who were of little to no risk of re-offending, the provisions were overbroad.
One of the most anticipated cases of the year was R v. Sharma, which considered the availability of conditional sentences in the context of Indigenous accused persons. The defendant had brought a Charter challenge claiming that s. 742, which limits the availability of conditional sentences, violated her rights under s. 7 and her equality rights under s. 15. The Court found that, despite the undeniable crisis of Indigenous incarceration, the provisions did not create or contribute to a disproportionate impact on Indigenous people. It also found no breach of the defendant’s s. 7 rights, rejecting the argument that the provision is overbroad or arbitrary. According to the court, the purpose of the provisions is to enhance consistency in the conditional sentence regime by making imprisonment the typical punishment for certain offences. So, while s. 742.1 limits liberty interests, it does so in an manner that accords with the principles of fundamental justice. Shortly after the decision was rendered, the legislature passed Bill C-5, which re-instates the availability of conditional sentences for a vast number of offences, reducing the practical impacts of the decision with respect to individual sentencing.
The impact of Indigenous people in the criminal courts was considered in the Ontario Court of Appeal decision of R v. King. In this case, the accused in a murder trial brought a Corbett application, seeking to exclude convictions from his criminal record, and relying on the Gladue principles. The Court acknowledged that Gladue principles are properly applicable to circumstances outside of sentencing, such as bail, publication bans, not criminal responsible findings, etc. The purpose of Gladue is to advance trial fairness by permitting judges to take all relevant factors into account when exercising discretion to exclude evidence that is more prejudicial than probative. The Court found that an accused’s Indigeneity is a relevant, although not dispositive factor to take into account in a Corbett application, and that there need not be a causal link between a conviction and the overt systemic racism experienced. Ultimately, the trial judge must consider whether, in the context before them, the accused is at an elevated risk of prejudice because of racist stereotypes.
Perhaps the most highly anticipated decisions of the year was R v. J.J. which considered on the constitutionality of the regime governing the use of private records in sexual assault trials. The Supreme Court found that ss. 278.92 and 278.94, brought in under bill C-51, which make private records in the possession of the accused presumptively inadmissible, are constitutional. The Court clarified some of the procedural aspects of the applications, as well as the complainant’s right to participate, finding that the regime properly balances the accused’s rights with the privacy and dignity of the complainant. It ultimately held that the accused’s rights to a fair trial are not impaired, as the sections reflect the basic rules of evidence that only relevant evidence can be considered at trial. In a scathing dissent, Justice Brown wrote that the regime eviscerates the effectiveness of cross-examination by allowing the complainant to view records and reconcile inconsistencies, possibly altering their evidence. According to Justice Brown, this infringement on the legitimate and valuable defence tactic of impeachment is sure to result in wrongful convictions. This case is definitely required reading for any lawyers doing sexual assault files.
Last but not least, is the case of R v. Beaver from the Supreme Court. This case involved a murder where two individuals were arrested and ‘investigatively detained’ by police under the fictional Medical Examiners Act. Once the homicide detectives realized this, they made a ‘fresh start’ by providing the suspects with their rights to counsel. After twelve hours of questioning, they both confessed. The Court found that while the police had initially breached their rights under sections 9, 10(a) and 10(b) of the Charter (to be free from arbitrary detention and rights to counsel), that once they were arrested for murder, that the police had rectified the breach through starting over with the rights to counsel. Therefore, there was insufficient temporal, contextual or causal connection between any Charter breach and the confessions. So even though the evidence was obtained in a manner that violated the accused’s rights, the breaches did not undermine the legality of the confessions.
Wishing you a restful holiday season and all the best (including more blog posts) in 2023.