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Criminal Law: Fine in Lieu of Forfeiture

Abdelrazzaq v. R.2023 ONCA 231 (40704)
Following a plea of guilty to trafficking cocaine and possession of the proceeds of crime, the Applicant was sentenced to four years. The Applicant challenged the constitutionality of the Crown’s request for a fine in lieu of forfeiture in the amount of $74,560 (the payment the Applicant received for the sale of cocaine to a police agent), on the basis ss. 462.37(3) and (4) of the Criminal Code violated his rights under the Charter. The trial judge held the fine in lieu of forfeiture provisions constituted cruel and unusual treatment in violation of s. 12 of the Charter. The Ont. C.A. allowed the appeal and overturned the trial judge’s finding of unconstitutionality. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Intentional Discharge of Firearm

R. v. P.R., 2023 SKCA 2 (40635)
There is a publication ban this in case, in the context of intentionally discharging a firearm and other charges. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Delay

Shaheen v. R., 2022 ONCA 734 (40416)
Mr. Shaheen was charged with trafficking fentanyl, fraud and mischief. The trial judge dismissed a pre-trial motion to stay charges for breach of the right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter. Mr. Shaheen was convicted for trafficking in fentanyl, fraud and public mischief. The Ont. C.A. dismissed an appeal from the convictions. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
 

Criminal Law: Driving Offences

Tweedie v. R., 2023 NSCA 11 (40690)
Mr. Tweedie was driving a vehicle that struck and killed a young girl on a bicycle at dusk. He did not stop and later told police he thought he had hit a deer. After Mr. Tweedie’s arrest, breath samples were taken and analyzed for blood alcohol concentration (BAC). Mr. Tweedie was taken into custody and ultimately charged with four offences: dangerous driving causing death; having a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a vehicle and thereby causing death; failure to stop, without reasonable excuse, after knowing or being reckless as to whether his vehicle had been involved in an accident resulting in death of a person; and obstruction of justice. On the second day of trial, Mr. Tweedie changed his plea to guilty for the obstruction of justice charge. He admitted to lying to the police about who was driving. The N.S. S.C. acquitted Mr. Tweedie of the remaining charges. The N.S. C.A. allowed the appeal, set aside the acquittals, and ordered a new trial. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
 

Criminal Law: Jury Instructions

R. v. Merritt2023 ONCA 3 (40634)
Respondent Melissa Merritt’s former spouse was fatally attacked in Ontario on August 23, 2013. Ms. Merritt was interviewed by police that day. During the interview she recounted her movements from the evening before, including a visit to a shopping mall. However, Ms. Merritt did not tell police that while at the mall, her common law spouse had purchased shoes. Those shoes were later forensically linked to the killing of Ms. Merritt’s former spouse. Shortly after the killing, Ms. Merritt moved to Nova Scotia. Several months later, Ms. Merritt and her common law spouse were arrested, charged with murder, and transported back to Ontario. While at the airport awaiting transport, police intercepted and recorded a conversation between them. Following a trial before a jury, Ms. Merritt was convicted of first degree murder. Ms. Merritt appealed from her conviction, arguing the trial judge committed significant errors in his jury instruction concerning: (1) her failure to mention the shoe purchase to police; and (2) the intelligibility of a statement she made in the recorded conversation from the airport. The Ont. C.A. allowed Ms. Merritt’s appeal, set aside her conviction, and ordered a new trial. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Post-Offence Conduct

McCullough v. R., 2021 ONCA 71 (40730)
The Applicant admitted to stabbing the victim and dismembering the victim’s body. The Applicant testified the stabbing was a reaction to an unexpected sexual advance and it was not planned or deliberate. The trial judge admitted evidence of rap lyrics by the Applicant and statements to a psychiatric nurse suggesting a desire to commit cannibalism. The Crown referred to the Applicant’s post-offence conduct of dismembering the victim, cleaning the hotel room, attempting to dispose of the body, lying to the police and remaining calm the day after. After a trial by judge and jury, the Applicant was convicted of first-degree murder and committing an indignity to a human body. The conviction appeal was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”
 

Criminal Law: Sexual Offences

R.G.S. v. R., 2023 BCCA 52 (40607)
There is a publication ban in this case, in the context of sexual assault and interference of a child under 16. “The application for leave to appeal…is dismissed.”

Criminal Law: Child Porn; Trafficking

S.V. v. R., 2022 QCCA 1574 (40538)
There is a publication ban in this case, and a publication ban on party, in the context of child porn and trafficking in persons. “The motion for an extension of time to serve and file the application for leave to appeal (2022 QCCA 1574) is granted. The applications for leave to appeal…are dismissed.”
 

Criminal Law: Contempt

R. v. Henderson2023 BCSC 201 (40682)
The Respondent Mr. Henderson was protesting the harvest of timber in an area of Vancouver Island known as Fairy Creek. They did so by positioning themselves in a roadway in such a way as to make the road impassable. The Respondent’s activities were prohibited by an injunction issued by the B.C.S.C. Police approached the Respondent and, in accordance with their practice, read a short-form script intended to summarize the material terms of the injunction (“Script”). Police asked the Respondent if they would leave the roadway; the Respondent declined. Police arrested them and the Crown assumed carriage of the criminal contempt prosecution. The trial judge held while the Injunction itself was not ambiguous, the Script did not convey sufficient information to fix the Respondent with actual knowledge of its material terms, and there was insufficient evidence to establish the Respondent was wilfully blind to those terms. In acquitting the Respondent, the trial judge noted an earlier case in which he held the Script was sufficient to fix an accused with actual knowledge was distinguishable because the accused in the earlier case did not argue the Script was deficient. “The motion to expedite the application for leave to appeal and the appeal is dismissed. The application for leave to appeal…is dismissed with costs.”

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