Author: Erin Sheley Page 2 of 3

Ph.D. (George Washington University), J.D. (Harvard), B.A. (Harvard).
Assistant Professor.
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Rights, Camera, Action

By Erin Sheley

On June 20, 2016

In Constitutional, Criminal

By: Erin Sheley

PDF Version: Rights, Camera, Action

Case Commented on: R v McCoy, 2016 ABQB 240 (CanLII)

The series of police encounters that triggered the Black Lives Matter movement have raised many bitter and potentially unanswerable social questions about the relationship between law enforcement and the citizen. From the perspective of criminal procedure, however, they have also demonstrated the importance of video evidence in establishing the “true” story behind the inherently fraught, often violent, almost-always subjective situation of an arrest. In a context where a few words or gestures can make the difference between a colourable case of resisting arrest and an unwarranted exercise of police force, we have seen how eyewitness accounts can be flatly contradictory. As Justice Iaccobucci pointed out in R v Oickle, 2000 SCC 38, referring to video-recorded confessions, police notes may accurately record the content of what is said, but cannot capture tone or body language in a way that recording can (at para 46, citing J.J. Furedy and J. Liss, “Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim LQ 91, at 104). In light of this potentially important evidentiary function, the in-car digital video system (ICDVS, or “dash cam”) has become an increasingly widely-used piece of police technology. RCMP officers are required to make use of dash cams in all cars equipped with them (see K Division Operational Manual at s 1.1).

When Three Rights Make a Wrong?

By Erin Sheley

On May 13, 2016

In Criminal

By: Erin Sheley

PDF Version: When Three Rights Make a Wrong?

Case commented on: R v Oakes, 2016 ABCA 90

R v Oakes raised the specter always haunting the edges of criminal procedure: what happens when a procedurally fair trial turns out, after the fact, to have produced an unfair conviction?

Connie Oakes was convicted of the second-degree murder of Casey Armstrong, primarily based on the testimony of her alleged co-conspirator Wendy Scott. Scott, who is cognitively delayed and has an IQ of 50, told police that she had seen Oakes kill Armstrong with a knife in the bathroom of his trailer. Scott herself pled guilty to second-degree murder for her own involvement in the crime, after confessing during the course of numerous uncounseled interrogations between June 2011 and January 2012 (at para 4). Prior to implicating Oakes, Scott had accused three other individuals of the act, testifying at trial that she had lied on those three occasions (at para 16). Scott’s testimony was the centerpiece of the Crown’s case against Oakes in the absence of physical evidence linking her to the crime scene and given that a neighbor’s description of a suspect leaving the scene more closely resembled one of the other individuals Scott had originally implicated (at paras 15-18).

When Should Judicial Discretion Trump Expert Testimony?

By Erin Sheley

On April 7, 2016

In Criminal, Evidence

By: Erin Sheley

PDF Version: When Should Judicial Discretion Trump Expert Testimony?

Case Commented On: R v Clark, 2016 ABCA 72 (CanLII)

In Regina v Clark the Alberta Court of Appeal reinforced the principle that trial courts should enjoy broad discretion in making evidentiary decisions. On the other side of the scale in this particular case was the great problem of ensuring the accuracy of witness identifications when they are the primary basis for conviction. In the United States at least, 70% of exonerations obtained through DNA evidence occurred in cases involving eyewitness misidentifications (see data collected by the Innocence Project, available here).

Clark involved a trial by judge of a bank robbery case. During the crime the suspect had partially obscured his face with a hood and a hat pulled down over most of his features (at paras 3-4). At trial, the Crown relied on the testimony of three eyewitnesses, and in particular that of one woman who had stood about 5-6 feet away from him at the bank counter and glanced at him several times during the robbery at para 54). Several other witnesses identified a photograph of the robber taken from the security camera as an individual who went by the street name “Lips,” a name by which the accused had identified himself to a police officer prior to the robbery (at para 51).

The Tension Between Process and Outcome in Creating Representative Juries

By Erin Sheley

On February 5, 2016

In Constitutional, Criminal

By: Erin Sheley

PDF Version: The Tension Between Process and Outcome in Creating Representative Juries

Case Commented On: R v Newborn, 2016 ABQB 13

The Court of Queen’s Bench has upheld the Alberta Jury Act’s exclusion from jury service of those criminally convicted or charged, in reasons that emphasize the conflict between the important goals of securing impartiality on individual juries and promoting racial representativeness in jury selection at the systemic level.

Jeremy Newborn, an aboriginal man charged with second degree murder in Edmonton, was granted an adjournment of jury selection after his counsel reported to the judge that none of the members of the jury array appeared to be of aboriginal descent. Mr. Newborn moved for a declaration invalidating s. 4(h) of the Jury Act, RSA 2000, c J-3, which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors. His argument turns on the fact that Aboriginal persons form a disproportionate percentage of the criminally accused, relative to their representation in the general population, and that the s. 4(h) exclusions therefore violate his right to a representative jury under ss. 7, 11(d) and 11(f) of the Charter.

The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences

By Erin Sheley

On December 10, 2015

In Constitutional, Criminal

By: Erin Sheley

PDF Version: The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences

Case Commented On: R v Friesen, 2015 ABQB 717

The Court of Queen’s Bench has found a new constitutional limitation on Parliament’s attempt to impose mandatory minimum sentences for firearms offences. Just on the heels of R v Nur, 2015 SCC 15, where the Supreme Court struck down three- and five-year mandatory minimums for possession offences under section 95 of the Criminal Code, Mr. Justice Vital O. Ouellette has, in R v Friesen, 2015 ABQB 717, held an identical sentencing provision to be likewise unconstitutional for trafficking offences under section 99. This case suggests that Nur could have marked the beginning of widespread dismantling of the Criminal Code’s policy of gun-related mandatory minimums. In both Friesen and Nur the courts’ concerns are the same: the risk of discrepancy between the prototypical violent offenders targeted by the minimums and the potentially far less culpable parties who might be swept along by them.