Email Phone (905) 525-0005 LinkedIn Facebook Twitter

Smordin Law Blog

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 f...
Read More

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, Pate...
Read More

Tactical Gloves – Just Gloves or Dangerous Weapons?

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 ...
Read More

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 als...
Read More

11b Delay – Post Jordan

There was significant buzz after the decision of Supreme Court of Canada in R. v. Jordan 2016 SCC 27 (Jordan) regarding the expansion of an individual’s right to criminal trial within a reasonable time, shrined in Section 11(b) of the Canadian Charter of Rights and Freedom (Charter). Jordan was an appeal from British Columbia Court of Appeal’s decision that affirmed conviction after an 11b delay of almost 50 months, from the laying of the information up to the end of the trial.After the court’s decision in Jordan which had placed presumptive ceilings on the length of proceedings after which the 11b delay would be presumed unreasonable, many expected an Askov kind of ripple effect, during which thousands of proceedings were stayed that had already surpassed the Askov benchmark. To their surprise, not many proceedings have been stayed due to unreasonable 11b delay after Jordan.The reason is the Supreme Court’s decision in Jordan itself. The Supreme Court, at Para. 94, clearly states that the decision is not meant to result in thousands of charges being stayed, which had occurred as the result of court’s earlier decision in Askov, more than two decades ago. None the less, post-Jordan, unreasonable 11b delays have resulted in stay of proceedings for few, whereas in many other instances the Crown has been able to rely on exceptions such...
Read More

New Driving Laws in Ontario – Learn the Facts

On September 1st, 2016b new driving laws came into effect under the Making Ontario Roads Safer Act, in an effort to make driving safer.Five new traffic laws were brought into force and are described below.

Distracted Driving Laws

The current fine for distracted driving is approximately $200, but under the new laws, if you’re caught looking at your phone, talking or texting, while driving you will face larger fines.  The new laws increases the distracted driving fine to $490 and three demerit points upon conviction.  If you are a driver with only a G1 or G2, you could have your licence suspended.

Pedestrian Crossovers

The new law provides that drivers have to wait until pedestrians have completely crossed the road at pedestrian crossovers and school crossings.  According to the Ministry of Transportation, almost half of all fatal traffic accidents involving pedestrians occur at intersections.  It is important to note that this law will not take effect until January.

Passing Cyclists

Motorists that open the door of their vehicle without checking and strike a cyclist will be faced with a fine of $365 and three demerit points upon conviction.  Further, drivers are required to provide at least one meter of space between their vehicle and the cyclist wherever possible.

The “Move” Over Law

Drivers must slow down and move to the s...
Read More

Solitary Confinement – The law and practice in Canada.

Alberta Judge Rules That Keeping Inmates In Solitary Confinement Is Not Reasonable

Further pressure has been added to Canada’s prison agency to change its policy on solitary confinement.In a recent decision, an Alberta judge released three inmates from segregation cells, concluding that prison authorities ignored factors surrounding procedural fairness, aboriginal identity and mental health history before placing them in isolation.  On July 28, 2016, staff at the maximum security Edmonton Institution placed Matthew Hamm, Shawn Keepness and Taylor Tobin in solitary confinement after a confidential informant told the staff that the individuals planned to assault a group of prison guards.When individuals are placed in solitary confinement, staff are legally obliged to give reasons with detailed explanations behind their decision.  The inmates were denied procedural fairness and not given the right to counsel, therefore, the inmates, working without lawyers filed an application of habeas corpus.  This application led to a judicial review of the decision.A habeas corpus is a medieval writ stating “no man shall be arrested or imprisoned except by lawful judgement of his peers or by the law of the land”.  Today this writ allows for a judicial review of prison actions that further erode an inmate’s residual liberties.  Before Mr. Hamm was able to exercise his rights and argue...
Read More

Password Rights? Police want your password.

Police Want Your Cell Phone Password

On August 16, 2016, the Canadian Association of Chiefs of Police passed a resolution calling for  a legal measure to unlock digital devices.  Police claim that this resolution is necessary due to high levels of criminal activity being stored and encrypted on cellular devices.  Currently, there is nothing legislated in Canadian law that forces anyone to provide their password to law enforcement for their digital device.RCMP Assistant Commissioner, Joe Oliver, made several statements regarding the urgency to attack this policy.  Oliver states:“From child abusers to mobsters -- [they] are operating online in almost complete anonymity with the help of tools that mask identities and messages, a phenomenon police call "going dark.”"The victims in the digital space are real… Canada’s law and policing capabilities must keep pace with the evolution of technology.”Opposing the resolution, David Christopher, a spokesman for OpenMedia, a group that keeps the Internet surveillance free, claims that the Chiefs proposed scheme is disproportionate because unlocking someone’s laptop, unlocks “the key to [their] whole life”.The federal government has started looking at issues of cybersecurity that will balance issues of privacy and online freedoms of Canadians.

Background on Canadian Privacy Law

R v Spencer was a landmar...
Read More

Hearsay Evidence – Learn the facts.

What is Hearsay Evidence?

I am sure that most people have heard the term “hearsay” when it comes to evidence.  Television shows, including Suits, makes hearsay a household term, but what does it mean?Hearsay is an out of court statement that is offered to prove the truth of its contents.  The key to this definition is that hearsay, is a statement made “outside of court”.  This includes implied statements, which can be any assertion revealed through actions instead of words.  This occurs when an action is meant to communicate a message.  An example of that may be someone making a gesture implying physical violence or threat, or someone nodding their head to signal “yes” or “no”.

Recognizing Hearsay

Hearsay is meant to be excluded as evidence due to the fundamental concern that hearsay evidence cannot be tested for the truth of its contents.  Our adversarial system rests upon calling witnesses who can give evidence under oath.  This way they can be observed to analyze their demeanour and can be subject to cross-examination.  Statements made out of court simply cannot be tested.  In R v Starr, Justice Iacobucci accepted the following explanation for hearsay evidence:“Hearsay statements are excluded from evidence in trials because of the difficulty of testing their reliability.  If a person who actually observed a fact is not in court, but a statement he made to someone is introduced in evidence, there is no way of inquiring into a person's perception, memory, narration or sincerity....
Read More

Firearm Law in Canada – Increasing Ownership

Increased Gun Ownership and the Firearm Law in Canada

Under the firearm law there are three classes of firearms in Canada: non-restricted, restricted, and prohibited.The CBC has recently reported that the number of restricted guns in Canada has increased 9.5% in 2015 and has doubled since 2004.The same article offers three interrelated causes for the increase. It is noted that the sharpest increase occurred during Prime Minister Harper’s administration which advocated fewer restrictions on gun ownership. Secondly, it is suggested that the demand for restricted firearms in Canada originates in America where the firearm law can be described as famously lax making is easy to purchase hand guns and rifles. The last reason offered is that an increased fear of terrorism has led to a feeling that people need guns to feel safe.

What is a firearm?

Section 2 of the Criminal Code of Canada defines “firearm” as: “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.”

What of crossbows?

The RCMP advises:“Crossbows that can be aimed and fired with one hand and crossbows with an overall length of 500 mm or less are prohibited. You ca...
Read More

Most Popular Posts