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Group and Test Case Certificates

Possible Test Cases - Criminal Law

A group of staff lawyers at LAO LAW put together a list of possible test case scenarios in the area of criminal law, based on ideas put forward by the Criminal Law Advisory Committee. Advisory Committee members have suggested that litigation supported by test case funding could be an appropriate response to a number of practice areas/issues that affect criminal law clients. The various scenarios are set out below with some of the potential avenues for litigation.

LAO would like to remind the bar that funding for test cases is available and that applications for test case funding can be made to the LAO Group Applications and Test Cases Committee.

Bail - Inability to Receive a Timely Bail Hearing - Multiple Remands Arising from Insufficient Court Resources and Unjustified Administrative Procedures such as Unnecessary Video Remands

  • Charter claim in the criminal proceedings under ss.7 (right to liberty), 9 (arbitrary detention), 11(b) (trial within a reasonable time) and 11(e) (reasonable bail) for relief in the form of a stay / costs / reduction in sentence, per Villota (2002), 163 C.C.C.(3d) 507 at paras. 64-68 (Ont.S.C.J.)
  • Civil action for damages and declaratory relief based on an infringement of ss.7, 9, 11(b) and (e) of the Charter
  • Constitutional challenge to Criminal Code provision (s.516(1)) that permits a three day adjournment of a bail hearing without accused's consent
  • Application for a writ of habeas corpus

Bail - Challenge to Police Failure to Release Accused without a Bail Hearing as Allowed for by the Criminal Code

  • Charter claim under ss.7, 9 and 11(e) for relief in the form of a stay of criminal proceedings, per Brooks (2001), 153 C.C.C.(3d) 533 at para. 21 (Ont.S.C.J.)
  • Civil action for damages and declaratory relief based on an infringement of Charter ss.7, 9 and 11(e)

Bail - Challenge to Crown Policy-Driven Positions to Oppose Bail (i.e., domestic assault charges, complainant opposed to bail)

  • Charter claim under ss.7, 9 and s.11(e) for relief in the form of a stay of the criminal proceedings and costs, per Brooks, above, at paras. 22-23 and Villota, above, at para. 70
  • Civil action for damages and declaratory relief based on an infringement of Charter ss.7, 9, 11(e)
  • Application for bail review under s.520 of the Criminal Code

Bail - Challenge to Judicial Predisposition to make Detention Orders in Particular Cases

  • Bail review application / extraordinary remedy, per Villota, above, at para. 71, 97-108 and 127-133

Bail - Challenge to Judicial Denial of Bail Hearing or Non-Acceptance of Sureties if Sureties do not Attend at Bail Hearing where Consent Release Proposed

  • Bail review application / extraordinary remedy, per Brooks, above, at paras. 33-39 and Villota, above, at para. 81

Bail - Unreasonable Conditions Imposed on Young Persons Including Conditions thatPrevent Young Persons from Attending School and Conditions Tantamount to House Arrest

  • Charter claim under ss.7 and s.11(e) for relief in the form of a stay of criminal proceedings, a lesser sentence, costs or another remedy under s.24(1)
  • Application for bail review under s.520 of the Criminal Code

Bail - Unacceptable Jail Conditions for Persons Waiting for a Bail Hearing or Subject to a Detention Order

  • Charter claim under ss.7, s.11(e) and 12 (cruel and unusual treatment or punishment) for relief in the form of a stay of criminal proceedings, a lesser sentence, costs or another remedy under s.24(1)
  • Application for bail review under s.520 of the Criminal Code
  • Application for a writ of habeas corpus

Outstanding Criminal Charges - Effect on Immigration Hold - Policy of Immigration Canada is to place people facing immigration holds in jail if there are any outstanding criminal charges, regardless of whether the person has been granted bail on those criminal charges

  • Application for stay under ss. 7 and 11(e) of the Charter, on the basis that persons who have been granted bail should not be held in jail

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Possible Test Cases

For information on possible test cases please refer to the following:
  - Correctional Law
  - Mental Health Law
  - Criminal Law

Click here for How To Apply for Group and Test Case Certificates