R. v. C.K., 2021 ONCA 826: Gladue in the plea inquiry. The judge must inquire when they have reason to believe during a guilty plea that the plea's voluntariness may have been adversely affected by the accused's experiences as an Indigenous person.
Para 52: A summary of non-sentencing situations where Gladue principles apply.
Para 65: The Court cites with approval Justice Rondinelli's decision permitting an Indigenous woman to withdraw her guilty plea (R. v. Ceballo, 2019 ONCJ 612)

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More from @SewrattanLaw

23 Nov
R. v. D.Q., 2021 ONCA 827: No harm, no foul. The Crown can rely on the proviso to cure a procedural irregularity where there is no prejudice to the accused person.
Without having done any research, I'm not sure that excluding the accused person from their own trial is actually a procedural regularity. It seems like an error of law; that law is s. 650(1) of the Code. If (big If) I'm right and this really is an error of law...
this whole line of appellate case law seems like legislating from the bench. Parliament could fix this with the stroke of a pen. Judges can't touch Parliament's pen.
Read 4 tweets
17 Oct
R. v. Khill, 2021 SCC 37: The phrase “the person’s role in the incident” in Canada's self-defence law casts a wide net. It refers to all of the accused’s conduct during the course of the incident that is relevant to whether their defence was reasonable.
The victim in this case was an Indigenous man. That's not in the decision.
There is a 5-4 split on the law. Moldaver J. et al. disagree. Moldaver J. says that the factor needs the guardrail of wrongfulness because of how open ended self-defence is. The jury can assign unlimited weight to any factor.
Read 12 tweets
12 Oct
R. v. Morris, 2021 ONCA 680: How trial judges should consider evidence of anti-Black racism on sentencing. I can't add much to Reakash's analysis. Here are smaller thoughts.
Morris doesn't really say anything new. Defence lawyers should provide the sentencing judge with a detailed report on how anti-black racism impacted their client. The judge should consider whether this ⬇️ the client's blameworthiness and ⬆️the need for rehabilitation.
You wanted to become a criminal lawyer to fight institutional racism? This is your chance. Put in the work, get the report in. Of course, the client needs funding for the report and you need someone capable of writing it.
Read 9 tweets
21 May
R. v. Marshall, 2021 ONCA 344 at paras. 51-52: Summers credit deducts from the sentence. Duncan credit shapes the sentence.
Looked at in a practical way, an aggravating circumstance can reduce Duncan credit, but it cannot reduce Summers credit.
Did the Court in Marshall consider that a person under exceptionally harsh pre-trial detention conditions (like COVID protocols) gets no Downes credit against a mandatory minimum?
Read 5 tweets

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