Fall is finally in the air, and it has been a busy month in the world of criminal law.
News:
It hasn’t been an easy month for judges, particularly in Alberta (see the Vader decision below…). Justice Robin Camp, a judge from Alberta who now sits on the Federal Court, faced a disciplinary hearing following his comments in a sexual assault trial to a complainant, asking why she didn’t just keep her knees together. The story has raised questions about the pervasive myths surrounding sexual assault, and, as seen in this article from Macleans’, the value of the current judicial disciplinary process.
Meanwhile, two other Alberta judges are having their decisions reviewed in sexual assault cases.
Ontario’s provincial jails have again come under scrutiny, after an assault in the Brockville jail. Justice Peter Wright made a call for a public inquiry into the jail, and the victim in the assault has brought a lawsuit against the province for failing to keep in safe while he was in custody.
If you’re looking for a longer read, this CBC interactive story tells the unusual case of a conviction overturned before sentencing in a domestic and sexual assault case in Renfrew.
Cases:
Justice Thomas, who presided over the murder trial of Travis Vader, broke ground in allowing cameras into his courtroom for the decision. However, this move was quickly overshadowed by the glaring error in his judgment (R v. Vader), where he used a section of the Criminal Code to find Mr. Vader of second degree murder that has been struck down by the Supreme Court. Peter Sankoff, a professor at the University of Alberta, wrote this article for the National Post outlining how the decision uncovers the dangers of these ‘zombie clauses’ in the Criminal Code. Also, see Michael Spratt’s critique of cameras in court.
A judge in Ontario’s Superior Court found the mandatory minimum sentence for production of marijuana unconstitutional. In R v. Pham, a Toronto woman was convicted of producing 1100 marijuana plants in her apartment. Justice Code agreed with her lawyer that the mandatory minimum sentence of 3 years would be grossly disproportionate and sentenced her to 10 months jail and 18 months probation. Read an overview of the case here.
A Crown attorney also came under fire this month for inappropriate conduct during a trial. In R v. Dhaliwal, the Ontario Court of Appeal found that Crown had engaged in improper cross-examination of a witness and then made a call (on speaker) to another witness in court, while people were still in the courtroom. The Court found that this call was a deliberate ploy to influence the testimony of the witness and that the Crown had deprived the accused of a fair trial. This case, along with another recent case where the Crown was found to have given an improper jury closing, has brought up questions of the ways in which misconduct by Crowns is handled by the Attorney General’s Office.