New & Notable: If at first you don't succeed...

MM was serving an intermittent sentence.  MM, undeterred by this sentence, re-offended in relation to the same victim.  At sentencing the judge held that "specific deterrence was an overwhelming consideration".  Due to this consideration, De Filippis J jumped a joint position and rejected the apparent reliance on the guilty plea as sufficient mitigation to support the joint position. 

The Court of Appeal agreed - 2012 ONCA 247: "Saving the victim from having to testify was an important consideration but it could not justify the sentence that was proposed in this case" [para 1].

So you got a tip, now what do you do?

Francis Caravaggio was a drug trafficker.  Apparently someone he knew didn't like him that much and decided to tip off the police.  The tip led to his arrest.  At trial he challenged the arrest on the basis that the officer did not have sufficient grounds and accordingly his arrest was contrary to section 9 of the Charter.  The trial judge dismissed the motion.  Caravaggio appealed. The Court of Appeal dismissed the appeal: 2012 ONCA 248.

In dismissing the motion the court offered the following analysis of the officer's grounds:

The officer had information from an unnamed informant that the appellant was selling drugs from his vehicle.  The informant had been used by the officer on prior occasions and had provided reliable information.  The informant was known to be involved in the drug subculture.  He provided details as to the description of the appellant, the colour and specific make of the appellant's car and the appellant's residence.  The police officer corroborated that information by running a CPIC check to determine the appellant's identification and address and by going to a location near the appellant's residence where he observed a man whose appearance corresponded to the information he had been given in the car described by the informant.  The car was parked in an alley near a cafe known for drug-dealing.  The motor of the car was running and a male person was leaning through the window of the car speaking to the appellant [para 4].

The court held that this was a "sufficient basis for the trial judge to find that the officer had reasonable and probable grounds to arrest the appellant" [para 5].

Current & Curious: Chewing on joint positions

Tina DeSousa imported "khat" (Catha edulis Forsk) into Canada.  She had a suitcase full of it - 34 kilos worth about $17,000 on the street.  She was charged and pleaded guilty to importing it contrary to section 6 of the CDSA.  There was a joint position of a conditional jail sentence.  The judge imposed an absolute discharge.  The Crown appealed.  The Ontario Court of Appeal dismissed the appeal: 2012 ONCA 254.

Interesting - although not really the subject of this post - the judge became fixated on two things.  First, the judge offered his "wisdom" on the legislation commenting that he found it "very difficult to understand why this stuff's against the law" [para 6]. 

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New & Notable: Gladue Reloaded!

Sentencing is a difficult if not enigmatic beast. Perhaps not surprisingly given the myriad of considerations together with the uniqueness of every offence and every offender. The recent cases of Ipeelee and Ladue illustrate this point: R v Ipeelee, 2012 SCC 13. Both were aboriginal offenders; both were sentenced for breach LTSOs; both received 3 year sentences at first instance; Ipeelee appealed to the Ontario Court of Appeal unsuccessfully; Ladue successfully appealed to the British Columbia Court of Appeal (reducing his sentence to 1 year). The Supreme Court held that one year sentences were appropriate for both.
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New & Notable: Emergency! Emergency wiretaps are unconstitutional

Section 184.4 of the Code permits a peace officer to intercept private communications, without prior judicial authorization, if there are reasonable grounds to believe it is necessary to prevent an unlawful act which would cause serious harm and authorization could not be obtained with reasonable diligence.  In 12 months, absent actions by Parliament, that section will no longer exist.  The Supreme Court has found it to be unconsitutional in R v Tse, 2012 SCC 16.
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So now what do you do with your local bawdy house?

Three sections of the Code which deal with prostitution related offences were recently considered by the Ontario Court of Appeal in R v Bedford, 2012 ONCA 186.  The consequences of that section will have some direct impact on policing in this context.  

First, section 213(1)(c) - which criminalizes communicating for the purpose of prostitution - was held to be constitutionally valid.  That offence, therefore, remains unchanged.  Policing and prosecution of the offence should continue as it has in the past.

Second, section 212(1)(j) - which criminalizes living on the avails of prostitution - was held to be constitutionally valid with a modification.  The section will now read as follows (underlined portion new):

Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence...

The thrust of this change appears to be aimed at not criminalizing those who, in a business, fair and transparent manner, lives off the avails of prostitution.  Assuming this is possible, it creates some difficult questions for policing and prosecution of this type of offence.  Clearly traditional "pimps" will be seen as being exploitive, but what about those who run bawdy houses and pay the prostitutes.  Will it depend on what percentage they pay, will it depend on what rules or regulations there are, will it depend on other "contractual" aspects between the prostitute and the employer?  

Third, section 210 - which criminalized keeping a common bawdy house - has been struck down. Further, the term "prostitution" has been struck out of the definition of bawdy-house in section 197.  This ruling, however, has been stayed for a period of 12 months.