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Yet another firearms offence declared unconstitutional

Tali Folkins - Monday, August 31, 2015

An Ontario court has struck down yet another mandatory minimum sentence for a firearms offence as unconstitutional using the hypothetical approach used by the Supreme Court of Canada in R. v. Nur.
“It is in a way an illustration of the sad state of affairs which exists in criminal law now because of the imposition on judges of mandatory minimum sentences,” says Toronto defence lawyer Aaron Harnett of the judge’s use of a reasonable hypothetical analysis in R. v. Shobway to find a mandatory minimum sentence unconstitutional despite his conclusions on the specific circumstances of the offender.

“It now is causing jurists to have to engag...

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Youth report: Ontario at ‘crossroads’

Despite critics’ insistence that a report on the roots of youth violence in Ontario will simply gather dust, a criminal defence lawyer says the review by former Ontario chief justice Roy McMurtry and ex-diplomat Alvin Curling is exactly what’s needed to spur government action.

Joseph Neuberger says reviews are important because it ‘forces people’ to look at the legislation.
Joseph Neuberger says reviews are important because it ‘forces people’ to look at the legislation.
“Reviews like this are important, because it forces people to look at the legislation, to look at reality in what is going on in our courts, and sometimes to come up with very meaningful recommendations, which I think are listened to by the government,” says Joseph Neuberger, who is acting as counsel for the province in the Cornwall inquiry into sexual abuse allegations.

McMurtry and Curling’s Review of the Roots of Youth Violence offered the province 30 major recommendations, and found that youths often turn to violence due to a combination of factors such as poverty, racism, a lack of cultural sensitivity in schools, alienation, and low self-esteem.

Cited as key recommendations were a call for $200 million for youth mental health services, the collection of race-based statistics, the creation of community hubs, and the creation of a cabinet committee.
The review was set up in June 2007 following the school-shooting death of 15-year-old Jordan Manners in Toronto.

“We strongly believe Ontario is at a crossroads in dealing with the roots of violence involving youth,” said McMurtry in a prepared statement.
 “Our report presents the government with a comprehensive framework to address the serious trends we have identified, and that will have serious consequences if allowed to continue unchecked,” he said.

While the report didn’t focus specifically on the justice system’s role in youth violence issues, Neuberger suggested the province’s cash-starved legal aid system makes it difficult for lawyers to do more for young clients caught up in patterns of violence.

“For the majority of young offenders, their cases are defended on legal aid, and legal aid is a chronically underfunded, underappreciated system,” he says, adding the system does the best it can with available resources. “On legal aid you’re limited in terms of how much you can help an individual.”

Neuberger points out that lawyers can refer private clients with adequate resources to various forms of counselling, such as a forensic workup by a child psychologist, or get the client into a treatment program, which makes it easier to resolve cases with the Crown.

“You just don’t have that necessarily available when you’re dealing with clients who are legally aided,” he says. “There needs to be a broader approach to ensuring that the resources are there to properly defend these clients, and defend them is not just going to court and asking questions.”

Neuberger says the use of race-based statistics is a “touchy subject,” and can “lead to stereotypes and misleading information.” Further, he says, there are other, more sociologically relevant issues, such as socioeconomic status, living standards, family situations, and so on.

“There are so many other factors to look at that can be more beneficial to us than just simply breaking it down to race-based statistics,” says Neuberger. “And as a criminal lawyer, crime doesn’t really know, in my practice, a racial boundary.”

Natasha Gibbs-Watson, director of the African Canadian Youth Justice Program, says she expects the government to shy away from the collection of race-based statistics.

“At the end of the day, it will actually highlight that there’s a problem, and once you actually highlight that there’s a problem you have to name that problem and then you’ll have to address that problem,” she says. “It would be in their best interest to shy away from something of that magnitude.”

But Gibbs-Watson says such statistics need to come out to help organizations like hers better serve youths, based on what that data shows.
“It’s what you do with the statistics,” she says. “You can use it to highlight in a positive way or use it to highlight in a negative way.”

Gibbs-Watson adds that the criminal justice system needs to do a better job identifying factors that lead youths to violence, rather than focusing too heavily on the specific act they committed.

“Governments are always pushing for harsher sentences, but at the end of the day, you’re sending this youth into a closed-custody facility where we all know it’s a breeding ground for a youth to come out more hardened or more criminalized than when he first entered into the system,” she says. “We need to really look at individualized sentencing for youth. Base it on the youth and their circumstances.”

Progressive Conservative MPP Julia Munro, the party’s critic for children and youth services issues, says she would have liked the review to better address the role family plays in the root causes of youth violence.

“There’s so much research that supports the notion of infant development and early childhood development that lays the ground for children, that nurturing background, that are then able to cope with stress better,” says Munro. “I was really surprised that there wasn’t more attention paid to that particular area.”

Inside Story

Monday, August 31, 2015

The provincial government has appointed lawyer Melanie Sager to the bench of the Ontario Court of Justice.

Sager, a lawyer called to the bar in 1995, has been a sole practitioner of family law for the past 20 years.
Her work has included acting as duty counsel and representing children as an agent for the Office of the Children’s Lawyer.

Outside of court, Sager serves on the board of directors of the Scarborough Women’s Centre and has been on the board of the Family Lawyers Association. Her appointment to preside in Toronto is effective Sept. 8.

The Ontario Superior Court has upheld a decision allowing Crown attorney Roger Shallow to amend his civil claim against his former lawyer.

The case, Shallow v. Adair, relates to Shallow’s 2007 arrest by Toronto police, who charged him with causing a disturbance and obstruction. With...

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The Law Times Daily is out! Stories via @BlakesLaw @Osler_Law @BennettJonesLaw
Another ruling over a hockey-related injury; court dismisses claim, finds plaintiff was aware of the risks
RT @LegalFeedsblog: New blog post: What would you do if you weren’t a lawyer?
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