Saturday, April 18, 2015

Decision delayed on whether to unseal evidence in case that could reveal Harper family secrets

For once I am inclining to agree with a publication ban.

I base this on the assumption the judge likely had a pretty good reason to place a ban.

Courts have authority to order publication bans where necessary to prevent a serious risk to the proper administration of justice and where reasonably alternative measures will not suffice. Courts will weigh the various rights and principles – the right to a fair and public trial, the right to freedom of expression, and the efficacy of the administration of justice – in determining whether such a ban is necessary.

Supposing the sealed information deals with "Harper family secrets" why should that be put in the public realm? After all the only reason why this information is in RCMPolice hands is because of protection issues.

Now I do agree a judge should review what it is and explain, albeit generally, why it is to be kept under wraps - contrary to the usual practice (although personal details in family and criminal law are often sealed).

If the information was, say, Mr Harper being abusive to RCMPolice Officers (and I very much doubt that ever happened) then it should be public. But if the information deals with, say, medical issues for Mr Harper's children (and again I use this merely as an example) there really is no reason for it to be public.

Friday, April 17, 2015

Crowded Friday!!

Mandatory minimum gun sentences unconstitutional

R. v. Nur, 2015 SCC 15:
                 When a mandatory minimum sentencing provision is challenged under s. 12, two questions arise. The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual before the court. If the answer is no, the second question is whether the provision's reasonably foreseeable applications would impose cruel and unusual punishment on other offenders. This approach is consistent with the long and settled jurisprudence of this Court relating to Charter  review generally and to s. 12  review in particular, is workable, and provides sufficient certainty. There is no reason to overrule this jurisprudence, especially as the effect would be to diminish Charter  protection.
                    Where mandatory minimum sentencing laws are challenged under s. 12 on the basis of their reasonably foreseeable application to others, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day‑to‑day application of the law. Only situations that are remote or far‑fetched are excluded.
                    In this case, N and C do not argue that the mandatory minimum terms of imprisonment in s. 95(2) are grossly disproportionate as applied to them. Rather, they argue that those mandatory minimum terms of imprisonment are grossly disproportionate as they apply to other offenders. 
                    Turning first to s. 95(2)(a)(i), the question is whether the three‑year minimum term of imprisonment would result in grossly disproportionate sentences in reasonably foreseeable cases. The answer to this question is yes.
                    Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At that far end stands, for example, the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. Given the minimal blameworthiness of this offender and the absence of any harm or real risk of harm flowing from the conduct, a three year sentence would be disproportionate. Similar examples can be envisaged. The bottom line is that s. 95(1) foreseeably catches licensing offences that involve little or no moral fault and little or no danger to the public. 
                    Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun‑owners from making mistakes, to be sure. But a three year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code  and legitimate expectations in a free and democratic society. As the Court of Appeal concluded, there exists a cavernous disconnect between the severity of the licensing‑type offence and the mandatory minimum three‑year term of imprisonment. Consequently, s. 95(2)(a)(i) breaches s. 12  of the Charter .
                    As for s. 95(2)(a)(ii), there is little doubt that in many cases those who commit second or subsequent offences should be sentenced to terms of imprisonment, and some for lengthy terms. The seven‑year term of imprisonment imposed on C is an example. But the five‑year mandatory minimum term of imprisonment would be grossly disproportionate for less serious offenders. For them, the five‑year term goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders, and to discourage others from engaging in such conduct. Therefore, s. 95(2)(a)(ii) violates s. 12 of the Charter .
                    These s. 12 Charter  violations are not justified under s. 1 Although the government has not established that mandatory minimum terms of imprisonment act as a deterrent, a rational connection exists between mandatory minimums and the goals of denunciation and retribution. However, the government has not met the minimal impairment requirement under s. 1 , as there are less harmful means of achieving its legislative goal. In addition, given the conclusion that the mandatory minimum terms of imprisonment in s. 95(2)  when the Crown proceeds by indictment are grossly disproportionate, the limits are not a proportionate justification under s. 1 . It follows that the mandatory minimum terms of imprisonment imposed by s. 95(2) are unconstitutional.
                    This conclusion makes it unnecessary to consider N and C's arguments that s. 95(2) violates s. 7  of the Charter .

Thursday, April 16, 2015



R. v. Aravena, 2015 ONCA 250:

[85]       The common law defence of duress has been available to persons charged as parties to murder in Ontario for at least 35 years. We would hold that the defence as strictly defined in the recent Supreme Court jurisprudence remains available to persons charged as parties to murder. In our view, that holding is consistent with the nature of the duress defence, basic criminal law policies, and the operative principles of fundamental justice.

[86]       The constitutionality of the murder exception to the duress defence in s. 17 of the Charter is not before the court. However, it follows from this analysis that, subject to any argument the Crown might advance justifying the exception as it applies to perpetrators under s. 1 of the Charter, the exception must be found unconstitutional.