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). Continue reading →

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.

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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.

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