Appeal of sentence and return to custody
The Court of Appeal has the power to intervene to modify a sentence imposed in first instance when it is demonstrated that the sentence is demonstrably inappropriate or that the judge made an error in principle affecting the sentence. At this point, the Court must analyze all the relevant elements in order to substitute the initial sentence with the appropriate sentence. In addition, when a sentence is increased, but the accused has already served it and has been released, the Court must assess the impact of ordering the accused’s return to custody and determine whether it would cause injustice.
The limited jurisdiction of the Court of Appeal
The prosecution seeks leave to appeal a judgment of the Superior Court, which acted in its capacity as a court of appeal. The right of appeal being sinuous, the Court of Appeal of Quebec had to clarify the question of its own jurisdiction.
The Right to Retain and Instruct Counsel of Your Choice
The right to retain and instruct counsel, protected by section 10 (2) of the Canadian Charter of Rights and Freedoms, includes the right to chose one’s counsel. Its violation cannot be trivialized even if the person has been able to obtain the assistance of duty counsel. Where this right is infringed upon, its assessment and its impact on the justice will depend on the circumstances of the case.
The limits to the inviolability of the home
One of the oldest tenets of Canadian Law is the principle that a person’s home is inviolable. Canadian case law recognizes, however, particularly since R. v. Evans of the Supreme Court of Canada, the principle of “implied invitation”. In this case, the operation consists of sending an undercover agent to knock on the door of the residence and inform the occupant that “everyone has just been arrested” and that “the boss is saying to get rid the stock ”. He therefore urges the occupier to “hand over the stock” to him so that he can deal with it.
Unreasonable delays per Jordan, but justifiable
With this decision, the Court of Appeal adopts the lessons of R. v. J.F. in order to establish whether an unreasonable delay in Jordan’s view can be justified by the exceptional transitional measure. This in itself recognizes that all delays that were considered reasonable the day before Jordan must not automatically become unreasonable the next day.
When “Criminal lawyer” becomes “Criminal, lawyer”
Criminal law is a mixed bag area of practice. Sometimes certain cases are particularly fascinating, both in law and in fact. Here is an example of a rather unusual case.
The Court’s Power to Make Ancillary Orders
When a judge has to impose a sentence, the Criminal Code offers him several ancillary orders that can be added to a more traditional sentence such as imprisonment. These orders include the possibility of making a long-term offender declaration and making ancillary orders. What rules are these orders subject to?
Jury trials: the importance of jury instructions
Jury trials were established several centuries ago and remain an institution in countries of English tradition, particularly in Canada and the United States. However, the juror is by definition a “peer” who is not educated in the field of law. This is why a judge also presides in any jury trial. At the end of a jury trial, it is the judge’s duty to explain to jurors the applicable legal principles and to guide them before they can deliberate and render a verdict.
Properly instruct jury members
When a trial is before a judge and jury, it is the judge’s responsibility to instruct the jurors. He must provide explanations concerning the significant elements of the offences, as well as the rules of law. In addition, the judge must ensure that all other questions concerning the case may be adequately answered. This responsibility is essential because the trial equity depends on a properly instructed jury. When the victim saw him with the gun in his hand, he suddenly moved in his direction. The appellant, while backing up, bumped into the couch and accidentally fired the gun. He latter testified that he did not want to pull the trigger or shoot the victim. He added that he want aware that the gun was loaded and add that the gun did not have a trigger guard.
The Reconciliation of incompatible verdicts pronounced by a jury
In R v RV, the Supreme Court ruled for the first time on the issue of inconsistent verdicts following jury instructions containing a legal error.
Criminal intent in cases of drug possession
When the Crown alleges importation or possession of a specific illegal drug, it only needs to show that the accused knew she was in possession of an illegal drug in a generic sense to meet the mens rea criteria. It does not have the burden of demonstrating knowledge of the particular drug named in the accusation.
The acceptable waiting time for the approved screening device
When the police suspect that a motor vehicle driver’s ability to drive is impaired by alcohol, they can order him to blow into an approved screening device to determine if there are traces of alcohol in his blood. However, what occurs when the police possess such a suspicion where a screening device is not “immediately” available?
The Crown’s heavy burden on appeal of an acquittal
When the suspect of a crime is a stranger to the victim, a common police technique is to conduct a photo line-up, in which the complainant attempts to identify his attacker among a series of individuals who may match the suspect’s description given to the police.
Appreciating contradicting testimony: « He said, she said »
Since memory is not infallible, there are situations where the judge must evaluate the credibility of two witnesses providing opposing versions. What rules must the judge abide by in such circumstances?
The pros of hiring an attorney: sentence negotiation
An undeniable advantage to retain the services of an attorney is the possibility that he may negotiate with the prosecution in order to obtain a sentence that is reasonable and acceptable for the accused. Moreover, when such a negotiation leads to a joint submission on sentence, the judge must generally abide by the suggestion.