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R. v. Jordan – How much delay is too much delay?

RIPPLE EFFECTS OF SUPREME COURT’s DECISION IN R. v. JORDAN (2016)

Supreme Court of Canada may not envisioned the future effects of it’s decision in R. v. Jordan when it held that trials in Provincial Courts should be held within 18 months, while trials in Superior Courts should take place with in 30 months. Although the Honourable Court made it clear that the decision was not meant to make sweeping changes and should not result in stay of thousand of charges as was the case with Supreme Court’s decision in R. v. Askov (1990), it’s decision in Jordan has resulted in uncontemplated ripple effects.

Prosecutors in Ottawa are appealing stay of charges for first degree murder after the trial judge held that a delay of 40 months to trial infringed upon an individual’s right to trial within a reasonable time, protected under Section 11 (b) of the Canadian Charter of Rights and Freedoms. Prosecutors stated that the trial judge did not consider society’s interest and reputation of justice system while making the order to stay first degree charges of Adam Picard. Court of Appeal is scheduled to hear appeal in June. Elsewhere, in Alberta and Quebec similar stay of charges for first and second degree murder are also under appeal due to Jordan ruling.

Prosecutors in Toronto are seeking a removal of one of the two defence lawyers for two brothers committed to stand trial on first degree murder, alleging that one of the accused’s right to to fair trial will be infringed due to the other accused’s lawyer’s unavailability for trial within the 30 month limit set by Supreme’s Court’s decision in R. v. Jordan last year. Curtis and Corey Murray, two brothers were charged in March 2015 and are set to be tried together for a six week trial, but Curtis’s lawyer is not available for such a lengthy trial until March 2018. Crown is alleging that Corey’s right to fair trial will be infringed and crown’s case will be harmed if brothers are tried separately. As a result, an accused’s right to trial within a reasonable time is in conflict with co-accused’s right to counsel of choice, both rights protected by the Charter. Criminal Lawyers Association has intervened and has stated “that state interference in the lawyer-client relationship should be permitted only in the most compelling circumstances”. Supreme Court in Jordan could not have thought of circumstances such as above could have arisen from their decision.

The Federal Justice Minister has called for an emergency meeting with its Provincial counterparts, at the end of April, 2017, to address the concern of delay which has led provinces such as Alberta to withdraw or stay many charges in order to accommodate serious offences. Although, provinces have channeled millions of dollars to hire more provincial court judges, prosecutors, court staff and have expanded legal aid, federal government has not kept up with pace of ensuring trials can take place within reasonable time. There are more than four dozens vacancies for judges in Superior Court and federal government does not any framework in place that can help in fulfilling these positions in a timely manner.

Ironically, provinces such as Ontario and Manitoba are also planning to scrap an accused’s choice to have a Preliminary Inquiry in order to combat delay by arguing that Preliminary Inquiries take up court’s valuable resources without providing any real benefits. The Benefits of Preliminary Inquiry were discussed in previous posts and there are plenty for both the Crown and Defense.

In conclusion, it would be suffice to say that the Court of Appeal’s ruling in Picard will be eagerly awaited. However, it may well turn out to be an opportunity for Supreme Court to reconsider its 5-4 decision in Jordan and lay further framework that equally protects an accused’s rights and freedoms under the Charter, but also balances society’s interest in combating crime and reputation of justice system.

How long has it taken for your matter to get to trial? Are you still waiting? never hesitate to contact Smordin Law to review your options.

https://beta.theglobeandmail.com/news/national/ontario-murder-case-tests-courts-time-limit-dismissals/article34648763/

https://beta.theglobeandmail.com/news/national/fears-of-delay-prompts-bid-to-remove-lawyer-from-first-degree-murder-trial/article34573253/

https://beta.theglobeandmail.com/news/national/ottawa-schedules-emergency-meeting-as-court-delays-intensify/article34662280/?ref=http://www.theglobeandmail.com&service=mobile




Warrantless Entry and Exigent Circumstances

What is Warrantless Entry and Exigent Circumstances?

A man’s home is his castle. Therefore, a person’s house is afforded much more protection of privacy than, for example, a person’s motor vehicle being driven on a public highway. In R. v. Paterson, 2017 SCC 15 (Paterson), the Supreme Court of Canada (SCC) clarified the law regarding the legality of warrantless searches of a person’s house when the police rely on exigent circumstances to justify the violation of sanctity of home. SCC held that in order to justify warrantless searches of houses, the police must demonstrate that there were: (1) exigent circumstances; and (2) those circumstances made it impracticable to obtain a warrant. The SCC held that the police cannot rely on impracticability to obtain a warrant to establish exigent circumstances. Rather, the opposite is true. The police must satisfy exigent circumstances before arguing that it was impracticable to obtain a warrant. Conversely, exigent circumstances alone cannot establish impracticability either.

Foot in the Door

In Paterson, RCMP in Langley, British Columbia (BC) receive a 911 call from a woman who is crying and is in need of help. Two police officers arrive at the apartment building and satisfy themselves that no one needs further help after the building superintendent advises them that the 911 caller, the victim, has already been taken to hospital. None the less, after being led to the unit from where the 911 is made, police knock on the Paterson’s door, Paterson opens the door, police question him about the smell of marijuana and Paterson says that he has some “roaches” or marijuana cigarette butts in the house. Police officers advise Paterson that they will confiscate the roaches but will not arrest Paterson. Paterson, before going to retrieve the roaches, tries to close the door. Police officer puts his foot in the door, and then both officers follow Paterson inside the house where he finds a gun, drugs and bullet-proof vest in plain sight.  Police arrest Paterson, get a warrant and search the house which results in seizure of multiple illegal firearms and different drugs.

Crown argues “exigent circumstances” under Controlled Drugs and Substances Act (CDSA), Section 11 (7), in order to justify the warrantless entry into Paterson’s house. The Trial Judge agrees with the Crown. Paterson appeals, appeal is dismissed by BC Court of Appeal and the case eventually reaches the SCC.

In SCC, Justice Brown, writing for the majority of five judges out of seven, held that the police, upon hearing out about the roaches, had a practicable option to arrest Paterson, obtain a warrant and then search the house. Justice Brown further held that if the circumstances were not serious enough to arrest Paterson, then they couldn’t have been serious enough to enter Paterson’s house without warrant.

In order for circumstances to be exigent, the police must need to act immediately in order to preserve evidence, protect civilians or ensure officer safety. SCC held that since the police were not going to arrest Paterson, the concern for preserving roaches as evidence did not compel urgency. Moreover, the concern for officer safety was result of officers entering the apartment, whereas officer safety needs to be the cause of exigent circumstances, not the result. Hence, there were no exigent circumstances that compelled immediate action by police to enter the apartment.

Justice Brown further stated that exigent circumstances under CDSA require urgency and not merely inconvenience to the police. Impracticability was defined by Justice Brown as “…that it be impossible in practice or unmanageable to obtain a warrant.” He cites the French equivalent which requires something less then impossibility but exceeds mere impracticality of obtaining a warrant.

Therefore, the SCC held that the evidence was seized as a result of unreasonable search and seizure under Section 8 of the Charter. Paterson was acquitted because the SCC held that the admission of evidence, firearms and drugs, will bring administration of justice into disrepute under section 24 (2) of the Canadian Charter of Rights and Freedoms (Charter).

This decision portrays SCC’s success in effectively discharging its duty to protect the fundamental rights and freedoms enshrined in the Charter. Such rights and freedoms are only meaningful if they are implemented in reality and are not rendered redundant as black letters on a white piece of paper.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16484/index.do (Paterson)

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16057/index.do (Jordan)




Tactical Gloves – Just Gloves or Dangerous Weapons?

tactical gloves

Hard Knuckle – tactical gloves, such as the one pictured above, are available in many different styles online or in-store. However, there has been minimal discussion about whether such tacticalgloves are considered or should be considered weapons. The gloves have a piece of carbon fibre in the shape of a knuckle, perfectly in alignment with shape of the hand it fits. Carbon fibre is feather light but surprisingly hard and strong, hence the reason why it is used in Formula One Cars’ frames.

The Criminal Code of Canada, in section 2, has a broad definition for weapon and it means anything used, designed to be used or intended for use:

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person.

Moreover, Brass knuckles are specifically prohibited under Part 3 of the Schedule, Prohibited Weapons, No. 8 (13) as well as Under the Ontario Prohibited Weapons Order in Ontario No.8 SOR/79-583. Brass knuckle can cause significant laceration to a victim but equally inflict pain upon the bearer or the user. Hard knuckle gloves, on the other hand, can cause equal or at least similar infliction of damage upon the recipient of force, but without any or with minimal pain to the person wearing the gloves. Therefore, the person wearing hard knuckle gloves can punch the victim repeatedly without suffering much pain themselves. It goes without mentioning that using bare hands to punch someone repeatedly usually results in the perpetrator suffering significant damage to their own hands.

pastedGraphic_1.png

A picture of Officer Montsion, shot by a witness at the scene, wearing Oakley SI Assault Glove Hard Knuckle, available online at many different websites for approximately $ 100.

Then, it should not be surprising to see that the Special Investigations Unit (SIU), on March 05, 2017, has charged an officer from Ottawa Police with Manslaughter, Aggravated Assault and an Assault with a weapon due to the result of an incident that took place on the morning of July 24, 2016. Officer Daniel Montsion, a member of Ottawa Police Direct Action Response Team (DART) was responding to a 911 call and was supposedly assisting fellow officer subdue Abdirahman Abdi, the victim with mental health issues, who had been reported for causing disturbances at a coffee shop near-by.

An eyewitness’s accounts of events suggests that while the first officer was using a baton to subdue Abdi, Montsion “….jumped into the altercation and administered a number of very heavy blows to the head and face and neck of Mr. Abdi”. Paramedics arrived at the scene after approximately 15 minutes, performed CPR and eventually transported Mr. Abdi to the hospital, but he was already dead by then.

The tactical gloves had been issued by DART and it seems that since Montsion punched Abdi several time without using any other weapons, the SIU’s decision to charge him assault with a weapon is related to the use of hard knuckle – tactical gloves. The decision seems a correct one as even without the gloves, considering the size of his bicep and forearm, Officer Montsion could have inflicted severe damage, however, with the use of a piece of carbon fibre forged in the shaped of a knuckle that sits perfectly atop the knuckle of the glove wearer cannot be anything less than a weapon. It must also be noted that such gloves are widely used by different Police Forces across Ontario, including Toronto Police. Moreover, even where such tactical gloves are not provided by the Police Force itself, officers can personally purchase and use them without any obligation to report such usage.

pastedGraphic_2.png

Further Readings:

http://www.ottawasun.com/2017/03/15/ottawa-police-to-audit-force-issued-gloves-reveals-limited-vetting

http://www.ottawasun.com/2017/03/15/hard-gloves-increase-punching-power-says-brain-doctor

http://www.cbc.ca/news/canada/ottawa/abdirahman-abdi-ottawa-police-siu-findings-1.4008142

https://www.tacticaldistributors.com/products/oakley-si-assault-glove-hard-knuckle?variant=1161107977




Does Hamilton need a supervised drug injection facility?

Hamilton and Vancouver are two colonial cities that have historically existed since 1800’s. What else is common between the two? The heroin and fentanyl epidemic that has consumed both Vancouver and Hamilton. Access to a safe and supervised drug injection site is a reality of those struggling with Opiate addiction in Vancouver.  Where does Hamilton stand?

Fentanyl is a synthetic opioid, which belongs to the same category of painkillers as morphine and heroin. However, it has been reported that fentanyl is approximately 50 times stronger than morphine and approximately 25 times more potent than heroin. It is believed that, a microgram of fentanyl can produce similar effects that may require milligrams of heroin. Surprisingly, the heroin sold illegally on the streets may be mixed with fentanyl without the user’s knowledge. The user administers the substance in an amount which may be safe to use if the substance was heroin but unknowingly, a user can administer quantity of fentanyl which can have fatal and tragic effects such as an overdose. Therefore, the inevitable result is the number of heroin/fentanyl overdoses is increasing at an alarming rate.

In Hamilton, the number of heroin/fentanyl overdoses resulting in the fatalities and hospital visits have increased significantly in the last five years reported (2008-2013). In 2013, there were 96 deaths in Hamilton related to opioid overdose, which is the highest in province. Similarly, the number of emergency hospital visits in Hamilton related to opioid overdose is also the highest in the province. Hospitals in Hamilton and Emergency Medical Services (EMS) have noted being  overwhelmed with an increase in people seeking help with heroin/fentanyl overdose. The problem does not stop there. Significant number of users are developing and spreading HIV and Hepatitis C by sharing needles/syringes and unfortunately, are not even aware of these diseases. In Vancouver, specifically Eastside Downtown, the epidemic is as bad or even worse. However Downtown Vancouver has InSite. supervised drug injection

InSite is a supervised drug injection facility where drug users can use medical equipment such as needles/syringes to administer the substance themselves. The staff at InSite, mostly nurses, do not help in administering the substance but are available to educate the user to use the substance in a safer manner. The users bring their own substance to use. The staff is also present to avoid fatalities and medical emergencies that result out of overdosage. On average, InSite serves more than 700 users a day and till date no fatalities have occurred at InSite. Furthermore, there are also counselling and rehabilitation services available for those who may want to seek help in giving up their opioid addictions.

It is clear from the data provided earlier that there is a definitive need for such a facility in Hamilton. According to a recent survey, over 84% of respondents in Hamilton supported the notion of having a supervised drug injection facility. City council is considering conducting a study to find out where and how such a facility can be accommodated. If the study takes place, the recommendations will likely be released in 2018. That also happens to be the year when the next city council elections take place. As a result, even if the study recommends a facility, it may end up being futile as the new council may not want to implement such recommendations. By 2018, there will be many more fatalities and more new cases of HIV and Hepatitis C.

There are compelling arguments supporting safe injection clinics. The cost of running a supervised drug injection facility will be far less than the cost related to hospital visits and EMS dealing with people affected by opioid overdose. There will be far less cases of HIV and Hepatitis C due to needle sharing amongst the users. It goes without saying that use of these drugs are illegal however, treatment of addictions with the use of safe injection sites is something that all cities should consider.

Further Reading:

http://www.cbc.ca/news/canada/hamilton/opioids-1.3843794

http://www.thespec.com/news-story/6974809-84-per-cent-back-safe-injection-site-hamilton-survey-finds/




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