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Supreme Court of Canada Clarifies Use of Prior Sexual Activity and Re-defines Consent in Honest but Mistaken Belief in Consent Defences in Sexual Assault Cases Category: Criminal Defence

Category: Criminal Defence

Supreme Court of Canada Clarifies Use of Prior Sexual Activity and Re-defines Consent in Honest but Mistaken Belief in Consent Defences in Sexual Assault Cases

Joseph A. Neuberger, LL.B., LL.M., C.S. Neuberger & Partners LLP www.nrlawyers.com In a recent precedent setting case out of Alberta, the Supreme Court of Canada overturned Bradley Barton’s manslaughter acquittal and ordered a new trial due to the Crown’s failure to be alert to the issue of the victim’s privacy regarding her sexual history. Mr. Barton was on trial for first degree murder in the death of an Indigenous woman and sex worker, who was found dead in the bathroom of the accused hotel room. The cause of death was determined to be an 11cm wound in the vaginal wall.…

New (and Arguably Absurd) Drinking and Driving Offences

By Christopher K. Assié & Joseph Neuberger Neuberger & Partners LLP The new amendments to the Criminal Code have changed the drinking and driving landscape significantly. Two changes are attracting particular attention due to their impacts on protected Charter rights and a serious potential for wrongful convictions. Arguably the most concerning amendment is the creation of a new offence – consuming too much alcohol or drugs after driving. Under s. 320.14(a) and (b), anyone with a blood alcohol concentration or blood drug concentration above the prescribed limits two hours after they have ceased driving is guilty of an offence. The…

What You Need to Know About Impaired Driving Charges in 2019

Recent changes to the impaired driving laws by the Federal Government developed to combat drinking and driving offences and the impact of legalizing cannabis, the laws surrounding impaired driving in Canada changed on Tuesday, December 18, 2018. These changes come as part of Bill C-46 which was enacted to ensure deterrence from impaired driving by making the penalties some of the most severe in the world. What Hasn't Changed The amount of alcohol allowed in your system, or the blood-alcohol concentration (BAC) has not changed for drivers. For fully licensed “G” class drivers over the age of 21, that is…

Bill C-51 and its Implications.

What is Bill C-51?   According to the Government of Canada’s website it is, “Legislation introduced by the Minister of Justice and Attorney General of Canada on June 6, 2017 [that] reflects the Government of Canada’s ongoing commitment to ensure that Canada’s criminal justice system protects Canadians, holds offenders to account, shows compassion to victims, and upholds the Canadian Charter of Rights and Freedoms.” Advocates for those falsely accused of sex crimes have a different interpretation. While the Bill is meant to “ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect”, it…

New (and arguably absurd) drinking and driving offences.

By Joseph Neuberger and Christopher Assié Originally published by Lexus Nexis. (www.thelawyersdaily.ca)       The new amendments to the Criminal Code have changed the drinking and driving landscape significantly. Two changes are attracting particular attention due to their impacts on protected Charter rights and a serious potential for wrongful convictions. Arguably the most concerning amendment is the creation of a new offence — consuming too much alcohol or drugs after driving. Under s. 320.14(a) and (b), anyone with a blood alcohol concentration or blood drug concentration above the prescribed limits two hours after they have ceased driving is guilty…

Recreational cannabis will pose new challenges for law enforcement

The legalization of recreational cannabis in Canada has raised various questions about how law enforcement will deal with a likely increase in impaired driving charges. If we want to know what the future might have in store,, we can look at the State of Colorado which legalized recreational marijuana approximately four years ago. In Colorado, the rate of impaired driving under the influence of cannabis has dramatically increased. In fact, since legalization more than 20% of drivers involved in fatal traffic accidents tested positive for cannabis. [i] When more than 150,000 cannabis users in Colorado were surveyed, almost 70% admitted…

Police charge Whitby driver after seizing over 40 kg of marijuana

Marijuana possession and use will be legal in Canada after October 17, 2018. But a Whitby driver greatly exceeded the new 30-gram limit and is facing charges after police seized 44 kilograms of marijuana from his car. The Ontario Provincial Police (OPP) allege that the driver was speeding on Highway 401 near Napanee. When police pulled the driver over, they saw large garbage bags in the back of his vehicle. They searched the vehicle. The police found 44 kilograms of cannabis in several garbage bags in the vehicle’s back seat and its trunk. The police arrested and charged the driver with speeding…

Text messages are protected against illegal search-and-seizure

Most text messages you send to another person are safe from unreasonable search or seizure by the police. The Supreme Court of Canada ruled that people have a ‘reasonable expectation of privacy’ when they send messages to someone else’s smartphone. This is not automatic. Courts will decide if the expectation of privacy applies based on the facts of a case. Consult an lawyer to determine if texts you sent are safe from police search and seizure. Nour Marakah was convicted of trafficking handguns in 2014. Police obtained text messages Marakah sent to his accomplice Winchester for Winchester’s iPhone. The trial judge held…

Grandmother charged with impaired driving and failure to remain

A 54-year-old Whitby grandmother who crashed her SUV, sending her baby grandson to hospital, is facing impaired driving charges. The woman couldn’t control her vehicle and drove it through a fence. After entering an intersection, she could not drive away because the damage to the SUV was so extensive. The police took the grandmother and her grandson to hospital after finding them in their SUV. The boy was treated for minor cuts and scrapes and then released. The police then charged the woman with impaired driving and with failing to remain at the scene of an accident. Both impaired driving…

Will cannabis criminal records be expunged after legalization?

Before October 16, 2018, an adult possessing 30 grams of cannabis is breaking the law. If convicted of possession, that person will have a criminal record. On and after October 17, 2018, possessing that cannabis will be perfectly legal. But a person’s criminal record for possessing cannabis will remain. This record can only be expunged under certain conditions and with the help of a criminal lawyer. Why a person’s criminal record for cannabis remains The federal government still strictly enforces the existing law. The law of the land will be upheld until it is changed in October. Amnesty for anyone convicted…

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