The Neuberger Rose Criminal Law Advisor, by leading defence counsel David Rose, provides expert analysis on current issues of interest to criminal practitioners across Canada. It features highlights of key legislative developments, case comments and summaries of trial level decisions covering a wide range of matters including the Charter, forensic and electronic evidence. The newsletter is published on a monthly basis.

Excerpts from Newsletter 2008-7– Read the latest newsletter 

(the full version is available to CriminalSource subscribers). 

Headlines

1. Extraditing the Canadian citizen.

 

2. Reversing the reverse onus: sentencing presumptive offences under the Youth Criminal Justice Act.

 

3. Getting disclosure from Canadian CSIS agents taking evidence in Guantanamo Bay.

 

4. Criminal harassment after a marriage breakdown. Why not to proceed with charges.

 

5. Improper use of prior consistent statements and inadequate reasons result in a new trial order.

 

6. Joining the fray. When the trial judge prevents defence counsel from doing his job.

 

7. Failure to charge on self-defence in an attempted murder charge results in a new trial.

 

8. Ontario Court of Appeal gives some strong guidance on "Over 80" cases.

 

9. Nova Scotia Court of Appeal on the definition of an assault.

 

10. Exposing the ceiling. The Supreme Court makes way for more maximum allowable sentences.

 

11. The Supreme Court again reviews the W.D. instruction.

  

Selected Case

 

Omar Khadr was in the American military base in Guantanamo Bay, Cuba, facing trial for murder, when Canadian CSIS agents questioned him regarding those allegations. The results of those interviews were provided to the U.S. authorities prosecuting Khadr, who then sought disclosure in Canada of that material. In the Federal Court the disclosure motion was denied, but this was overturned by the Federal Court of Appeal. The Supreme Court of Canada upheld that ruling, holding that Khadr was entitled to disclosure from Canadian authorities taken abroad in breach of international human rights obligations. The Guantanamo Bay prosecutions were acknowledged by the United States Supreme Court to be in violation of the Geneva Convention. The CSIS interviews, therefore, were conducted in breach of international law, which imposed an obligation on CSIS to disclosure on Stinchcombe principles. Khadr v. Canada (Minister of Justice), 2008 CarswellNat 1400 (S.C.C.).

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