Canada Case Law

R. v. Boily

Court

Court of Appeal for Ontario

Section 320.24(4) does not authorize imposition of a driving prohibition following a conviction for criminal negligence causing death committed by means of a conveyance because ss.220,221 and 236 are not enumerated; fixing that omission would amount to judicial amendment of the Criminal Code and exceed judicial function, so the driving prohibition must be set aside and Parliament must correct any legislative gap.

Source excerpt

• Driving prohibition
• Criminal negligence causing death
• Bill c-46 amendments
• Included offence doctrine
• Charter s.11(i)

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R. v. Liu

Court

Court of Appeal for Ontario

Applying the 2011 amendments that raised the judicial screening threshold from "reasonable prospect" to "substantial likelihood" to offenders who committed murder between Jan 9, 1997 and Dec 2, 2011 retrospectively increased their punishment in violation of s.11(i) of the Charter; the violation is not justified under s.1, and the appropriate remedy is to apply the pre-2011 "reasonable prospect" threshold and remit the matter for a new screening hearing.

Source excerpt

• Parole ineligibility
• Faint hope clause
• Retroactivity
• Charter s.11(i)

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R. v. J.D.

Court

Court of Appeal for Ontario

The Court dismissed the conviction appeal and refused fresh evidence: the W.(D.) charge error was not prejudicial and the fresh evidence failed both due diligence and cogency tests; however the Court allowed the sentence appeal and set aside lifetime prohibitions under ss.161(1)(a) and (b) because their retroactive application to offences committed before 1993 infringed s.11(i) of the Charter and that infringement was not justified under s.1 given the absence of a temporal justification sufficient to outweigh the deleterious effects on offenders.

Source excerpt

• Sexual offences against a child
• Retroactivity of sentencing law
• Charter s.11(i)
• S.1 justification (oakes)
• Fresh evidence (palmer)
• W.(d.) jury instruction

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R. v. Dell

Court

Court of Appeal for Ontario

The retrospective application of the 2011 judicial screening mechanism (requiring demonstration, on written record, of a "substantial likelihood" of jury success) increased the punishment compared to the faint hope regime in place at the time of the offence and therefore violated s.11(i); the Crown failed to justify that retrospective application under s.1, so the provision as applied to offences committed before January 9, 1997 is of no force and effect and the appellant is entitled to have her faint hope application heard by a jury.

Source excerpt

• Parole ineligibility
• Faint hope clause
• Charter s.11(i)
• Charter s.11(h)
• Retrospective legislation
• Sentencing

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R. v. Prince

Court

Supreme Court of British Columbia

Sentencing for child-pornography offences in which the accused received concurrent custodial terms, enhanced pretrial credit, a conditional stay on one count, and multiple ancillary orders.

• Possession of child pornography
• Possession for purpose of distribution
• Distribution/making available child pornography
• Accessing child pornography
• Pretrial custody credit
• Ancillary orders (dna, soira, forfeiture)

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Tran v. Canada (Public Safety and Emergency Preparedness)

Court

Supreme Court of Canada

The Supreme Court held that a conditional sentence is not a “term of imprisonment” under IRPA s. 36(1)(a), and the relevant maximum is the one in force when the offence was committed.

• Inadmissibility
• Serious criminality
• Conditional sentence
• Statutory interpretation
• Retrospectivity
• Charter s.11(i)

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R. v. K.R.J.

Court

British Columbia Court of Appeal

The Court upheld a nine-year global sentence for incest and child pornography, increased pre-sentence custody credit, and held amended s. 161(1) applies retrospectively.

• Sentencing
• Totality principle
• Retrospectivity of statutes
• Charter s.11(i)
• Post-release restrictions s.161(1)
• Child sexual offences

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R. v. Dreger

Court

British Columbia Court of Appeal

The British Columbia Court of Appeal reduced Corrina Dreger’s fraud sentence from five years to four, holding that lack of remorse was not an aggravating factor.

• Breach of trust
• Lack of remorse as sentencing factor
• Aggravating and mitigating factors
• Sentencing range
• Restitution order
• Charter s.11(i)

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Liang v. Canada (Attorney General)

Court

Supreme Court of British Columbia

The court adjourned constitutional petitions challenging the AEPA, but only briefly, to allow more hearing time and a sworn affidavit. It declined to wait for Whaling.

• Abolition of early parole act
• Accelerated parole review (apr)
• Retroactivity of penal legislation
• Charter s.7
• Charter s.11(i)
• Adjournment pending appellate decision

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R. v. Simoes

Court

Court of Appeal for Ontario

The appeal was dismissed because the agreed additional credit of 315 days produced an effective 2:1 credit for part of the pre-sentence custody and the resulting sentence was fit and at the low end of the appropriate range given significant aggravating factors.

Source excerpt

• Pre-sentence custody credit
• Sentencing
• Truth in sentencing act
• Charter s.11(i)

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