Category Archives: Criminal

The Confidential Informant as a Creation of Law

By: Lisa A. Silver

PDF Version: The Confidential Informant as a Creation of Law

Case Commented On: Her Majesty The Queen v Named Person A, 2017 ABQB 552 (CanLII)

We are all conversant with a creation story, be it biblical or cultural. We are less apt, however, to recite a purely legal creation story, where the law is not in itself created but creates. In the decision of Her Majesty The Queen v Named Person A, Madam Justice Antonio applies the law and in doing so creates a legally constructed status, as confidential informant, for Named Person A (NPA). The effect of the law or the privilege that arises, requires that NPA’s identity be strictly protected and non-disclosable, subject to the “innocence at stake” exception. This is a status which NPA neither wanted nor asked for. Once NPA became this pronounced creation of law, NPA became nameless. The discussion we will undertake will provide us with the ultimate creation story of how certain encounters can transform a person into a creation of law. With that transformation, comes the full force of the law as legal principles must be and are rigidly applied. The preliminary issue of whether NPA was, in law, a confidential informant is incredibly important. If NPA is not such an informant then the issues flowing from this status are moot. If, however, NPA is a confidential informant, then the court must decide how the Crown can fulfill its Stinchcombe obligations requiring full disclosure of NPA’s criminal file to NPA’s counsel without violating the sacrosanct confidential informant privilege. To disclose or even to edit the disclosure would reveal NPA’s identity. To not disclose would run afoul of NPA’s right to full answer and defence. Alternatively, if NPA’s defence counsel is within NPA’s confidential “circle of privilege”, then disclosure may be made within the safety of that legal privilege. This post considers the initial decision by Justice Antonio to find that, in law, NPA is a confidential informant. It is this finding which engages the law and which matters most to NPA. Continue reading →

R v Keror: Police Duties, Accused Duties, and the Right to Counsel of Choice

By: Alexandra Heine

PDF Version: R v Keror: Police Duties, Accused Duties, and the Right to Counsel of Choice

Case Commented On: R v Keror, 2017 ABCA 273 (CanLII)

Introduction

Mr. Keror was accused of shooting and killing Philip Anny on September 30, 2012. A witness identified the accused as the shooter. He was arrested at 8:15 pm on October 1, 2012 by a member of the Calgary Police tactical team. At trial, the accused made an application to enter into a voir dire. He submitted that his s 10(b) rights under the Canadian Charter of Rights and Freedoms were violated. Justice E. A. Hughes of the Alberta Court of Queen’s Bench found no s 10(b) breach (see R v Keror, 2015 ABQB 382 (CanLII)). A jury convicted Mr. Keror of second-degree murder. The accused then appealed this decision on five grounds. This commentary will focus strictly on grounds one through three. The first ground is as follows: Did the trial judge err by failing to consider whether there was a contextual or temporal link between any delay in facilitating access to counsel and the appellant’s subsequent statement the next day? The second and third grounds of appeal are as follows: did the police violate section 10(b) when they interviewed the appellant before he spoke with his counsel of choice?

At the Alberta Court of Appeal, Justices Marina Paperny, Barbara Lea Veldhuis and Jo’Anne Strekaf held that the Calgary Police did not violate the appellant’s right to consult with counsel of choice. Effectively, the peace officers complied with their duties under section 10(b) of the Charter. The first three grounds of appeal were dismissed on that basis. This decision gives us a glimpse into the struggle that our court system faces when assessing whether or not a person’s section 10(b) rights have been violated. Continue reading →

The Creation of Community “Space” in Sentencing in R v Saretzky

By: Lisa Silver

PDF Version: The Creation of Community “Space” in Sentencing in R v Saretzky

Case Commented On: R v Saretzky, 2017 ABQB 496 (CanLII)

The Saretzky case will live in infamy as a disturbing crime that defies description and understanding. In this post, I do not intend to engage in a classic case analysis of the sentencing proceeding, which has been the primary subject of media attention and legal commentary. Certainly, the legal issues raised in this case are of concern as we struggle to make sense of a crime so devoid of humanity yet committed by a person who will now spend seventy-five years in custody, essentially to the end of his days. Is it a crushing sentence which fails to recognize the possibility, no matter how faint, of rehabilitation? Or is mere speculation about rehabilitation an inappropriate, unsafe, and frankly impossible standard to apply? Leaving aside the application of recognized principles of retribution and denunciation, are we comfortable with the reality of this decision, the warehousing of an individual who is a legitimate and continuing threat to society? Should the law be a “beacon of hope” or does “hope” go beyond legal expectations? Although we like to believe that hard cases make bad law, in fact, hard cases force us to look squarely at the worst scenario almost as a litmus indicator to test the strength and flexibility of applicable legal principles. In looking at Saretzky and Justice W. A. Tilleman’s reasons for sentencing, we can properly ask whether our sentencing principles and codified laws are up to the heavy task of assessing the worst case and the worst offender, the twin legal principles supporting the imposition of the maximum sentence. Continue reading →

R v Acera: Responding to the Call to Action in Jordan Via Detention Review Hearings

By: Amy Matychuk

PDF Version: R v Acera: Responding to the Call to Action in Jordan Via Detention Review Hearings

Case Commented On: R v Acera, 2017 ABQB 470 (CanLII)

In R v Acera, the Alberta Court of Queen’s Bench reviewed the detention of 34 accused persons in remand awaiting trial. Under s 525 of the Criminal Code, RSC 1985, c C-46, an accused detainee has the right to have their detention reviewed to determine whether they should be released pending trial when either 30 days (for a summary offence) or 90 days (for an indictable offence) have elapsed from the date they were taken into custody. The institution with custody of the accused must make a request on the accused’s behalf for a detention review hearing. At the hearing, the court shall assess the accused’s detention using the criteria in s 515(10) of the Code: whether detention is necessary to ensure the accused’s attendance in court, to protect the public, or to maintain confidence in the administration of justice. However, s 525 also provides an opportunity for a superior court to become involved in case planning to ensure matters reach trial without unreasonable delay, and that additional purpose was the focus of Justice J. B. Veit’s decision in Acera. Continue reading →

All the Pieces Matter: Organized Crime, Wiretaps and Section 8 of the Charter

By: Erin Sheley

PDF Version: All the Pieces Matter: Organized Crime, Wiretaps and Section 8 of the Charter

Case Commented On: R v Amer, 2017 ABQB 481 (CanLII)

Det. Freamon: “Non-pertinent”? How do you log that non-pertinent?

Det. Pryzbylewski: No drug talk.

Det. Freamon: They use codes that hide their pager and phone numbers. And when someone does use a phone, they don’t use names. And if someone does use a name, he’s reminded not to. All of that is valuable evidence.

Det. Pryzbylewski: Of what?

Det. Freamon: Conspiracy.

Det. Pryzbylewski: Conspiracy?

Det. Freamon: We’re building something here, detective. We’re building it from scratch. All the pieces matter.

—The Wire, Season One, Episode Six

This early scene in HBO’s The Wire, in which Detective Lester Freamon instructs his rookie colleague Ray Pryzbylewski on how to tag conversations they’ve overheard on their wiretap of Avon Barksdale’s Baltimore drug operation, dramatizes the strategy of long-term police investigations of organized criminal syndicates: “all the pieces matter.” Seemingly isolated conversations that, standing alone, reveal no evidence of criminal activity, become part of a general web of information which may eventually prove guilt beyond a reasonable doubt in a court of law. But this form of long-term wiretapping—implicating, as it does, a citizen’s right to security from unreasonable searches and seizures under section 8 of the Charter—often fits uneasily within the more exacting framework of constitutional case law. In R v Amer, the Alberta Court of Queen’s Bench had an opportunity to revisit the current state of the law on wiretaps in the wake of a spree of shootings that occurred in Calgary in the summer of 2015. Continue reading →