CRIM 1161 A02 202135: Assignment 5: Public Law - Administrative and Criminal Law (12%)

Assignment 5 has 100 marks,is based on Units 12 and 13,and is worth twelve percent of your course grade.You should allow sufficient time to  benefit from feedback prior to your final exam.Please submit the assignment once you have completed Unit  13.

Part A. Problem Solving(40   marks)

Instruction

For Part A, you will be presented with a fact  pattern.Applying what you have  learned about administrative and criminal law,you will analyze the fact pattern by answering five questions.

Read the following scenario

Lenka Marbella and Jules Chow had been living in Canada as common law spouses for two years when Lenka becamel seriously ill and had to quit her job. Her doctor prescribed opioid drugs for pain control. At the same time, Jules was on stress leave from his job as a mortuary attendant. According to his therapist, he had seen one too many victims of serious crime and was suffering from PTSD. The couple found it difficult to survive on Jules disability pay. So, when Lenka gradually began to feel better, instead of telling her doctor, she started selling her prescription drugs on the street. A year later, one of her customers, Tyson, followed her home and, before she could open her door, grabbed the bag she used for carrying her prescriptions. When Lenka tried to pull it back, Tyson threw her against her front doorl and punched her in the stomach. All this happened in sight of an undercover police car that had been tailing Tyson who was a known drug dealer. One officer grabbed Tyson and hustled him into the car. The other, instead of helping Lenka, yelled, "You' re under arrest" and wrestled her to the ground, banging her head off the sidewalk in the process. Meanwhile Jules, alerted by the racket, raced out of the house and found Lenka lying on the ground motionless in a pool of blood. When paramedics arrived, they pronounced her dead at the scene.

No charges were ever filed against the police. All of this was so disturbing for Jules that he had to be hospitalized and sedated. His PTSD returned in full force and he was unable to return to work. When he tried to apply for criminal injuries compensation, the Chair of the Board refused to send him the application form. on the ground that no charges had been laid against the police and no crime proven.

Jules found a lawyer willing to take the case to judicial review. The court held that the Board had denied him procedural fairness by raising the application evidentiary threshold so high that it precluded a chance to be heard atl all. The court sent the case back to the Board with a direction to issue Jules with an application package. When Jules's case was eventually heard, the Chair of the Board was on the three person panel. Jules' lawyer argued that he should be eligible for compensation because, as a result of criminal acts by the police and Tyson, he was suffering from severe mental and nervous shock.

The panel in its decision, focused on the criminal acts of Lenka and reasoned that, because she was participating in crime herself, she could not be classified as a "victim" under applicable legislation. Lenka would not have been eligible for compensation had she lived. Thus, the reasoning of the panel went, Jules, in his role as her surviving spouse, could not be eligible either. And anyway, Jules must have known what was going on. The panel refused to allow Jules to testify about his illness on the ground that it was irrelevant. Nor would they allow a neighbor who saw the incident to testify as a witness on Jules' behalf. Now Jules wants to return to the court for another judicial review.

Answer the questions

Applying what you have learned about the rules of natural justice and assuming you are acting for Jules, answer the following questions.

1. Explain what breaches of natural justice may have occurred here? (10 marks)

2. Explain what error of law may have occurred with respect to Jules' status before the panel? (5 marks)

3. Find at least two court (not tribunal) cases in CanLIl that may help your arguments before the court. You may narrow your search by typing "criminal injuries compensation" as one of the terms in the document text field. Discuss how you apply these cases to Jules'judicial review. (15 marks)

4. Keeping in mind that this is a judicial review, not an appeal, if the court decides in Jules' favour, what would be the likely outcome? (5 marks)

5. Is there any information missing from the scenario that might affect the ultimate result of this case? (5 marks)

Part B. Essay Question (60 marks)

Background information for your essay

The entrenchment of the Charter of Rights and Freedoms in 1982 has had a dramatic effect on the criminal justice system. For centuries before the Charter, the right to be presumed innocent until proven guilty was a core tenet of many criminal law jurisdictions. But that right did not preclude tactics that placed overwhelming power in the hands of the state through police and prosecutors. The legal rights set out in sections 7 through 14 of the Charteremphasize individual rights of the accused. The question is how far should these individual rights go? Where should the balance lie between protection of an accused and protection of the community from criminal activities, especially those involving crimes of violence?

Section 11(b) of the Charterstates that: "Any person charged with an offence has the right to be tried within a reasonable time." This right is related to section 7:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. But what is a "reasonable time" ? What is an "unreasonable delay" ? The Supreme Court of Canada (SCC) has wrestled with this issue for over 30 years. In Chapter 2 of your text, Boyd describes three cases that deal with section 11(b):

R.v. Askoy. [19901 2 S.C.R. 1199: 1990 CanLIl 45 (SCC)-conspiracy to commit extortion and weapons charges-delay of 34 months

R.v. Morin. 199211S.C.R.771: 1992 CanLII 89 (SCC)- driving while impaired- delay of 14 2 months

R.v. Jordan. 20161 S.C.R. 631; 2016 SCC 27 (CanLII)- trafficking in hard drugs- delay of 49 months Following Askov, where Cory J, stated that a reasonable delay from committal to trial would be in the range of no more than 6 to 8 months, thousands of cases were stayed and accused walked free. Prosecutors treated these times as if they were fixed limitation periods rather than guidelines. Two years later, in the case of Morin, the Court modified their reasoning. As Sopika J stated:

The purpose of the suggested period was not therefore that it was to be treated as a limitation period and inflexible.....The Court must acknowledge that a guideline is not the result of any precise legal or scientific formula. It is the result of the exercise of a judicial discretion based on experience and taking into account the evidence of the limitations on resources......

Gradually, the application of the guidelines in Morin became more flexible, unpredictable and longer than the guidelines in Askov. Meanwhile the criminal justice systems in most provinces became bogged down and it could be months, if not years, before a trial could be scheduled.

Jordan, who had created a lucrative "dial-a-dope" business waited almost 50 months from charge to trial. When his case reached the SCC, a slim majority (5:4) of judges overruled Morin and created hard time limits - much longer than in Askov-with little room for judicial discretion (18 months for cases in provincial courts and 30 months for those inl superior courts). Despite these longer time limits, there have been hundreds of stays following Jordan, including charges of murder.

As you have learned from your readings, there have been centuries of tension between rigidity and predictability on the one hand, and flexibility and judicial discretion on the other. For example, the development of the laws of equity gave discretion to judges whereas the rigid rules of common law put them in a straight jacket. More recently, legislated mandatory minimum sentences have prevented judges from providing alternative sentences when an individual case might warrant it. It remains to be seen how much discretion may be open to judges if they think justice requires a bending of the time limits in Jordan.

Instructions

Use the general instructions for essay writing set out at the beginning of your course materials, including an introduction, discussion and conclusion.

Various academics, lawyers and columnists have written about Jordan and its consequences. For your essay, you will:

1. Read the majority judgment by Sopinka J in Morin and the additional concurring judgment by McLachlin J. Although not necessary for vour essay, you may supplement your understanding of references to the Askov case by reading its headnote (summary at the beginning of the judgment) and the complete short judgment of McLachlin J.

2. Read the headnote in Jordan. (You may wish to read the entire judgment if you feel it is necessary to fully understand the issues.)

3. Read the following two articles written after Jordan:

   1. Drew Yewchuck, "Justice in a timely manner: The new framework for trial within a reasonable time"

   2. Sean Fine, "Courts shaken by search for solutions for delays" in the Globe & Mail, March 2017

4. Carry out your own independent research for more discussion of Jordan. Your sources (no more than four) must come from reputable internet sites or academic journals; for example, CanLIl Connects, Canadian Lawyer Magazine, Canadian Criminal Law Review. You may access journal sites with the assistance of the TRU library. You must provide full citations for all your sources. For legal references, use the Canadian Guide to Uniform. Legal Citation as a guide to correctly formatting citations and references to legislation and case law.

5. Write your essay by comparing the approaches taken by the five majority judges and those taken by the four minority judges in Jordan. Based on your own research and the above readings, write your conclusion about the best way to deal with unreasonable delays in bringing cases to trial. In doing so you should consider why the majority judges chose to create ceilings. For example, see paragraph 50 of Jordan.

A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.

And why the minority favoured a modification of the approach in Morin as expressed by Cromwell J:

[147] My colleagues would define reasonableness by assigning a number of months of delay — "ceiling[s]" (para. 5)— that will be taken to be reasonable unless the accused establishes not only that the case took markedly longer that it reasonably should have, but also that he or she took meaningful steps that demonstrate a sustained effort to expedite the proceedings. As I see it, this is not an appropriate approach to interpreting and applying the s. 11(b) right for several reasons. First, reasonableness cannot be captured by a number; the ceilings substitute a right for "trial under the ceiling[s]" (para. 74) for the constitutional right to be tried within a reasonable time. Second, creating these types of ceilings is a task better left to legislation. Third, the ceilings are not supported by the record or by my colleagues' analysis of the last 10 years of s. 11(b) jurisprudence and have not been the subject of adversarial debate. Fourth, there is a serious risk that the introduction of these ceilings will put thousands of cases at. risk of being judicially stayed. Fifth, the ceilings are unlikely to achieve the simplicity that is claimed for them. Finally, setting aside 30 years of jurisprudence and striking out in this new direction is unnecessary. Address the following questions in the discussion part of your essay by turning them into sections with appropriate section headings:

1. Should there ever be a stay for people charged with extreme violence such as murder? Or for complex crimes like money laundering that involve disclosure of thousands of complicated documents?

2. Keeping in mind the doctrine of supremacy of Parliament and recent controversy about "judge made law" under the Charter, should creation of time limits be left to legislators rather than judges?

3. What remedies other than a stay might you choose when there has been unreasonable delay? For example, inl Europe it is possible to award financial compensation if the accused is acquitted or a reduction in sentence if convicted.

4. Based on your discussions of A. through C., reach a conclusion, when applying section 11(b) of the Charter, about the best way to balance the rights of an accused with the right of society to be protected from criminal activity.