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Brian Weingarten Defence Law
Brian Weingarten Defence Law: Creativity | Dedication | Results
Brian Weingarten Defence Law: Creativity | Dedication | Results


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Check out my new blog post. In this post I examine the controversial practice of police carding, it's relationship to s. 9 of the Charter and police power to conduct an "investigative detention."
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New blog post exploring the right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms:
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New blog post available: expert evidence in drug cases. The second installment to my "expert evidence" series.
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Check out my new Blog post: Expert Evidence in Canada, a Primer: R. v. Mohan
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Collateral immigration consequences and sentencing for criminal offences
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I am happy to announce that the website for Brian Weingarten Defence Law is now up and running:
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Criminal Law Essentials #1: Reasonable Doubt
I have decided to create a new segment entitled “Criminal Law Essentials.” The purpose of this segment will be to provide a general overview of various fundamental criminal law principles and processes. In this first installment of this new series, I will examine the concept of “reasonable doubt.”
Most people have heard of the concept of reasonable doubt, and most people can quite easily recite that in criminal proceedings the Crown (or prosecution) must prove the guilt of the accused beyond a reasonable doubt. But what does reasonable doubt really mean? What are its essential elements? Why is the standard of proof in criminal cases higher than that in civil cases where proof is to be assessed on a balance of probabilities?
For an answer to these questions, we must turn our attention to the leading Supreme Court case on the concept of reasonable doubt: R. v. Lifchus. This case was decided in 1997, and is still recognized as the leading case addressing the principles and procedure required when instructing a jury as to the meaning of “reasonable doubt.”
In Lifchus, a stockbroker was charged with fraud over $5,000. At the conclusion of the trial, the trial judge charged the jury on the meaning of “reasonable doubt” using the ordinary meaning of the words. The Supreme Court, however, explained that the term “reasonable doubt” has a very specific meaning in the legal context.
First, the Court explained that a trial judge must explain the concept of reasonable doubt to a jury. The trial judge must first explain that the term “reasonable doubt” is inextricably intertwined with the presumption of innocence that is fundamental to all criminal trials. The jury must be told that the burden of proof (the requirement to prove all of the elements of the offence) always rests on the prosecution, and never shifts to the accused.
Second, the Court went on to explain that a jury should be instructed that a reasonable doubt is not an imaginary or frivolous doubt. It is also not to be based on sympathy or prejudice.
Essentially, a reasonable doubt is a doubt based on reason and common sense, which must logically be derived from the evidence or the absence of evidence. The Supreme Court explained that more is required than proof that the accused is probably guilty. However, a reasonable doubt does not involve proof to an absolute certainty.
In Lifchus, the Court concluded by distilling these principles and suggesting a model jury charge on the meaning of reasonable doubt. These instructions are as follows:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
     What does the expression "beyond a reasonable doubt" mean?
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
More recently, the Supreme Court of Canada’s judgment in R. v. Starr, reaffirmed the principles set forth in Lifchus. However, the majority of the Court did explain: “an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.
Because of the risk of the significant loss of liberty inherent in criminal proceedings, the heightened requirement of proof of “guilt beyond a reasonable doubt” is an essential pillar of the Canadian criminal justice system.
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Testing the Defence of Provocation: R. v. Buzizi
On May 10, 2013, the Supreme Court of Canada released its judgment in the case of R. v. Buzizi. This case involved the availability of the defence of provocation. As a result of an altercation the victim was killed. At trial, the evidence showed that at the time of the altercation, the accused was under the influence of many emotions. When he acted, he was angry, upset, “out of it” and afraid. It was argued that he was trying to protect himself and reacted emotionally.
The trial judge refused to put the defence of provocation to the jury. The Appellant was convicted of second-degree murder. The conviction was affirmed on appeal to the Quebec Court of Appeal. The Supreme Court, sitting only in a panel of 5, by way of a 3-2 majority reversed the decision of the Court of Appeal.
Section 232 of the Criminal Code sets out the necessary preconditions for the defence of provocation to apply. It is important to note that provocation is not a complete defence. This means that an accused he successfully relies upon the defence will not be found not guilty of the offences. Rather, the defence of provocation only applies in homicide cases and has the effect of reducing a murder charge to manslaughter. The section provides:
    232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
Questions of fact
    (3) For the purposes of this section, the questions
  (a) whether a particular wrongful act or insult amounted to provocation, and
  (b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
 are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
Death during illegal arrest
    (4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
The defence of provocation has both an objective and a subjective component. In the 2010, case of R. v. Tran, the Supreme Court of Canada reviewed these two elements. These elements may be broken down as follows:
1) The objective element:
The Supreme Court explained, that there are two components to the objective element. First there must be a wrongful act or insult. Second, the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control. The Court further explained that in determining the standard of an “ordinary person,” the assessment must be informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality protected by the Charter. As an example, the Court held that, “it would be appropriate to ascribe to the ordinary person relevant racial characteristics if the accused were the recipient of a racial slur, but it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance.” Finally, the Court held that the particular circumstances in which the accused finds himself will be relevant in determining the appropriate standard against which to measure the accused’s conduct.
2) The subjective element:
The Supreme Court in Tran further examined the subjective element to the defence of provocation. Once it is established that the act or insult was sufficient to deprive an ordinary person of the power of self-control, the inquiry turns to the subjectivity element. First, the accused must have acted in response to the provocation. Second, the response by the accused must be sudden and occur before there was time for the accused’s passion to cool. The Court further explained that suddenness applies both to the provocation itself and to the accused’s reaction to it.
Returning to R. v. Buzizi, the Majority of the Supreme Court held that the relevant question in determining whether the defence should be put to the jury is: “whether the records contains a sufficient factual foundation for a properly instructed jury to give effect to the defence.” In considering the totality of the evidence, the majority of the Supreme Court held that the evidence did support the necessary inferences for the defence to apply. It was further held that it was open to the jury, rather than the trial judge, to resolve the question of whether the accused had acted suddenly, and before there was time for his passion to cool within the meaning of s. 232 of the Criminal Code. As such, the appeal was allowed and a new trial ordered.  
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Testing the Doctrine of Vagueness: R. v. Levkovic
On May 3rd, the Supreme Court of Canada released its judgment in the case of R. v. Levkovic. This particular case received a considerable amount of media attention due to the nature of the offence. In this case, Ms. Levkovic was charged with concealing the dead body of her child under s. 243 of the Criminal Code. This particular section states:
243. Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
While cleaning a recently vacated apartment, a building superintendent discovered a bag containing the remains of a human baby. A post-mortem examination revealed that the body was delivered “at or near full term.” Importantly, the cause of death could not be determined and it was not known whether the baby had been a live birth. Following the discovery, Ms. Levkovic was charged under s. 243 with concealing the body of a child.
At trial the defence argued that Ms. Levkovic should not be convicted under the section because it infringed her s. 7 rights under the Canadian Charter of Rights and Freedoms. Section 7 is an important legal right under the Charter, and provides that one shall not be deprived of the right to life, liberty, and security of the person except in accordance with the principles of fundamental justice. As the Supreme Court explained, vague laws violate s. 7 because citizens are entitled to fair notice of the consequences of their conduct.
At trial, it was argued that the word “before” in s. 243 was unconstitutionally vague. It was argued that the concept of a child that died before birth ws unconstitutionally vague because the moment on the gestational spectrum when a fetus becomes the body of a child, within the meaning of the section, could not be determined. The Trial judge agreed that the section was unconstitutional as drafted and severed the word “before” from the section. As a result, the section was limited in its application to children that died either during or after birth. Ms. Levkovic was therefore found not guilty.
The Ontario Court of Appeal disagreed with the trial judge’s ruling, overturned the acquittal and ordered a new trial. Subsequently, Ms. Levkovic appealed to the Supreme Court of Canada seeking to reinstate the trial judge’s acquittal.
The Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal. Justice Fish, writing for the Court, held that section 243 was not unconstitutionally vague.
While, the doctrine of vagueness was upheld as an important principle of fundamental justice, the Court reasoned that Parliament intended the section to apply to three distinct time periods: before birth, during birth, or after birth. It was further explained that the term “before,” only applies to stillbirths and not to miscarriages. Under s. 243, a fetus becomes a child when “has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.” The Court held that to support a conviction under s, 243, the Crown must show that the “remains” disposed of where the remains of a child. In cases of death before birth, the Crown must prove that the fetus would likely have been born alive. This will ultimately require medical evidence.
The Supreme Court therefore held that s. 243 meets the standard of precision in its language that is required by the Charter. As such, the appeal was dismissed and a new trial ordered.
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