Mandatory Victim Surcharge Struck down as Cruel and Unusual Punishment
As per the Supreme Court of Canada in: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17416/index.do The mandatory victim surcharge constitutes punishment, engaging s. 12 of the Charter , and its imposition and enforcement on several of the offenders, as well as the reasonable hypothetical offender, result in cruel and unusual punishment. The surcharge cannot be saved under s. 1 of the Charter . It is not necessary to consider whether s. 7 of the Charter is infringed.
Read MoreCertain Privacy for Text Messages – Law Catching up with Technology
Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter . Whether a claimant had a reasonable expectation of privacy must be assessed in the totality of the circumstances. To claim s. 8 protection, claimants must establish that they had
Read MoreMaking a Threat? Don’t say it seriously!
While the accused was incarcerated, he had a telephone conversation with his ex‑girlfriend during which he repeatedly told her that he would kill her upon his release if she proceeded with her planned abortion of their child. The accused was charged with uttering threats. At trial, the ex‑girlfriend testified that the words uttered by the
Read MoreProbation Orders
The probation orders imposed on the appellants were valid when made and no prior or subsequent sentences invalidated them, either prospectively or retrospectively. The phrase “imprisonment for a term not exceeding two years” relates only to the actual term of imprisonment imposed by a sentencing court at a single sitting. It does not refer to
Read MoreStay of Proceedings
Section 24(1) of the Charter vests in trial judges broad discretion in granting “such remedy as the court considers appropriate and just in the circumstances”. It is well established that remedies granted by trial judges under s. 24(1) should be disturbed on appeal only where trial judges misdirect themselves or their decision is so clearly
Read MoreThe Defence of Provocation
The defence of provocation requires that there be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self‑control and that the accused act on that insult before there was time for her passion to cool. In order to satisfy the objective element
Read MoreSimilar Fact Evidence – Using Your Past Against You
- By: Aswani Datt
- similar fact evidence
- June 23, 2012
- Comments (0)
The prior conviction was admissible as “some evidence” linking the appellant to the assault on J.S. In the context of a similar fact application, a prior conviction may be tendered to establish an essential element of the prior offence where that element has been placed in issue. The admissibility of a prior conviction does not depend
Read MoreReasonable Forseability – What is an intervening Act?
- By: Aswani Datt
- reasonable foreseability
- June 23, 2012
- Comments (0)
Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility for manslaughter. For example, both the “reasonable foreseeability” and the “intentional, independent act” approach may be useful in assessing legal causation depending on the specific factual matrix. These approaches grapple with the issue of the
Read MoreDangerous Driving Causing Death
- By: Aswani Datt
- dangerous driving causing death
- June 23, 2012
- Comments (0)
Dangerous driving causing death, a serious criminal offence punishable by up to 14 years in prison, consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would
Read MoreWhat constitutes Contempt of Court?
- By: Aswani Datt
- contempt of court
- June 23, 2012
- Comments (0)
The exception in s. 127 of the Criminal Code will be triggered where Parliament or a legislature has provided a legal foundation for the court’s power to issue contempt orders, defined the circumstances in which a person will be found in contempt, and provided a specific punishment or mode of proceeding. On the basis of R. v. Clement,
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