James C Morton
Prostitution
Criminal lawyers, like almost everyone else nowadays, have an internet listserve. On reading the new proposed prostitution legislation (which criminalizes the buying of sex) one wag commented, "lots more work…
A judge should not figuratively step down from the bench and assume the role of counsel
Gahan v. R., 2014 NBCA 18: Relying on Lord Denning’s decision in Jones v. National Coal Board, 2 All E.R. 155, 2 K.B. 55 (C.A.), Mr. Gahan recognizes that a…
Statutory Interpretation
R. v. Montague, 2014 ONCA 439: The Supreme Court of Canada most recently re-stated the modern approach to statutory interpretation in Marine Services International Ltd. v. Ryan Estate, 2013 SCC…
Admission of consumption of alcohol alone is usually sufficient to objectively ground a reasonable suspicion
R v Flight, 2014 ABCA 185: The Manitoba Court of Appeal recently considered these divergent approaches in R v Mitchell, 2013 MBCA 44 (CanLII), 2013 MBCA 44, 291 Man R…
Non est factum
Justice Cartwright described non est factum in Marvco Colour Research Ltd. v. Harris 2 SCR 774: "(W)here a document was executed as a result of a misrepresentation as to its…
Extending time to move in Court of Appeal
D.G. v. A.F., 2014 ONCA 436: In my view, the test to apply to the applicant’s request for an extension of time should be the same as the test on…
Sentence appeals
R. v. McLean, 2014 PECA 10: Section 687(1) of the Criminal Code directs that on an appeal against sentence, an appellant court is to consider the fitness of the sentence.…
The Language of Newspapers
So I wrote a letter to a national newspaper noting that a group was pro-choice. I used gender neutral language. The letter was printed but the group was called, after…
Exercise of right to silence on arrest cannot be led against credibility of accused
R. v. Duong, 2014 ONCA 375: I agree. It was open to the trial judge to reject the appellant’s explanation given at trial because it was not believable and to…
Reasonableness of verdict
R v Jacobs, 2014 ABCA 172: A reviewing court considering the reasonableness of a trial judge’s verdict must determine whether a properly instructed trier of fact could have, on the…
Why we have political parties and what that means
Parliamentary democracy works on the basis that voters choose the type of government they want through proxies. Specifically, a conservative voter might like Stephen Harper as Prime Minister but that…
Malicious prosecution
Upchurch v. Oshawa (City), 2014 ONCA 425: The elements of the tort of malicious prosecution require a plaintiff to prove: 1. The prosecution was initiated by the defendant2. The prosecution…
A judge need not hear a Charter motion if it is hopeless on its face
R. v. Kutynec, 1992 CanLII 7751: In other words, if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement,…
Discovery not primary purpose of preliminary inquiry
R. v. Girimonte, O.J. No. 4961 (O.C.A.): 38. The fact that the preliminary inquiry may serve the discovery interests of the defence does not alter the purpose of the preliminary…