Category: Criminal Page 15 of 39

Smoke and Mirrors? With Marihuana Legalization, Parliament Proposes to Drastically Expand Police Power

On April 21, 2017

By: Dylan Finlay

PDF Version: Smoke and Mirrors? With Marihuana Legalization, Parliament Proposes to Drastically Expand Police Power

Legislation Commented On: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, 1st Session, 42^nd Parliament, 2017

Parliament is toting marihuana legalization as a necessary public safety measure. With this sentiment, Parliament is revisiting not only drug-impaired driving laws, but also alcohol-impaired driving laws. Part 2 of Bill C-46 would, if passed, allow police officers to demand that a driver provide breath samples without any suspicion that the individual had been drinking. The relevant section is reproduced below:

Mandatory alcohol screening

320.27 (2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Parliament seeks the moral high ground in selling its proposed legislation to both the public and the judiciary. To the public, the Liberals hope to sway voters who find a ‘tough-on-crime’ agenda attractive – the same segment of the population that supports stiff mandatory minimum jail sentences. To be fair, as far as politics go, this strategy is sound; the segment of the population that supports legalization of marihuana because prohibition never made much sense to begin with will likely support the Bill no matter its complexities.

The judiciary will be harder to convince. Mandatory alcohol screening (as it is proposed by Bill C-46) violates ss 7 (the right to life, liberty and security of the person), 8 (the right against unreasonable search and seizure), 9 (the right not to be arbitrarily detained), and 10 (b) (the right to counsel on arrest or detention) of the Canadian Charter of the Rights and Freedoms (the Charter). Parliament must cast mandatory alcohol screening as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society to ‘save’ it under s 1 of the Charter.

The groundwork is being laid for such an argument. On CBC’s ‘The House,’ Justice Minister Wilson-Raybould stated: “I am confident [mandatory alcohol screening] will survive a constitutional challenge. It can be justified in terms of public safety, and safety on the roads, and preventing death” (April 13, 2017).

I do not share the Justice Minister’s confidence. Mandatory alcohol screening (as it is proposed) is a flagrant affront to Charter-values and Charter jurisprudence. The Supreme Court should not find such a law constitutional.

A constitutional battle lies ahead. This post will provide a summary of police procedure and the law as it relates to alcohol screening, present arguments for and against mandatory screening’s constitutionality, and ultimately conclude that mandatory alcohol screening is unconstitutional. For the purposes of this post, the focus will be on s 10(b) of the Charter, as this is the focus of the prevailing case law on alcohol screening generally.

Order In the Skyways: A Comment on the Regulation of Drones

By Lisa Silver

On March 22, 2017

In Criminal

By: Lisa Silver

PDF Version: Order In the Skyways: A Comment on the Regulation of Drones

Case Commented On: R v Shah, 2017 ABQB 144 (CanLII)

The increasing popularity of drones is attracting the attention of the regulatory process as municipalities, such as Calgary, attempt to control the use of drones in public areas through the bylaw process (see section 24(c) of the City of Calgary Parks and Pathways Bylaw 20M2003). In fact, the issue has become so pressing that the federal government recently announced immediate action through the Interim Order Respecting the Use of Model Aircraft by amending the Aeronautics Act RSC 1985, c. A-2 to more specifically address the “significant risk” the operation of drones have “to aviation safety or the safety of the public.” However, regulation in this nascent area of recreation has not been without difficulties. The extent to which the regulatory regime can effectively and fairly maintain order in the skyways may appear a simple task but as with any statutory process, “the proof is in the pudding” or as in the recent summary conviction appeal against conviction in R v Shah, 2017 ABQB 144 the “proof,” involving the appropriate application of the standard of proof, was lacking.

The Appellant in this case, ably represented both at trial and on appeal by our very own Student Legal Assistance, was flying a recreational remote controlled drone during the evening hours of January 16, 2016 when he was charged under section 602.45 of the Canadian Aviation Regulations SOR 96/433 enacted under the Aeronautics Act. The section states that: “No person shall fly a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.”

An Update on The Right to Trial Within a Reasonable Time

By Drew Yewchuk

On March 2, 2017

In Constitutional, Criminal

By: Drew Yewchuk

PDF Version: An Update on The Right to Trial Within a Reasonable Time

Cases Commented On: R v Lam, 2016 ABQB 489 (CanLII); R v Regan, 2016 ABQB 561 (CanLII); R v Lavoie, 2017 ABQB 66 (CanLII)

It has been about 8 months since the Supreme Court released R v Jordan, 2016 SCC 27 (CanLII) and overhauled how courts deal with applications under section 11(b) of the Charter, the right “to be tried within a reasonable time”. I described the new framework in an earlier post. In short, Jordan established presumptive ceilings for unreasonable delay (minus defence delays and exceptional circumstances) between charges being laid and the end of trial. The ceilings are 18 months for charges going to trial in provincial court and 30 months for charges going to superior court, subject to a flexible transitional approach for cases that were already in the system when Jordan was decided. Since the release of Jordan there have been 11 reported decisions in Alberta posted to CanLII for applications for stays under the new framework. This post discusses three of those decisions that addressed interesting aspects of the new framework.

Criminal Negligence and the Reasonable Parent

By Erin Sheley

On February 28, 2017

In Criminal

By: Erin Sheley

PDF Version: Criminal Negligence and the Reasonable Parent

Case Commented on: R v Lovett, 2017 ABQB 46 (CanLII)

In R v Lovett the Alberta Court of Queen’s Bench added a new entry to the rapidly developing jurisprudence on criminal negligence. For much of the past 20 years, the SCC has grappled with articulating the appropriate mens rea standard required by Section 219 of the Criminal Code. Starting with R v Tutton, [1989] 1 SCR 1392 (CanLII), the Court has wavered a bit as to whether the Crown could prove that the accused committed an unlawful act or omission showing a “wanton or reckless disregard for the lives or safety of other persons” with regard to an objective standard (that of the “reasonable person”) or whether it must prove that the accused had subjective awareness of such a risk. As of 2008, with R v JF, (2008) SCC 60 (CanLII), the standard has ostensibly been settled as objective: criminal negligence requires only “a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk… or, alternatively, gave no thought to that risk” (JF, at para 9). Notably, this standard requires a higher deviation from the standard of care than that required in other objective fault offences: the departure must be marked and substantial as opposed to simply marked.

When the Courts Close One Door, They May Open Many More: Maintenance Logs and the Potential Implications of an Appeal in R v Vallentgoed

By Elliot Holzman

On December 22, 2016

In Criminal

By: Elliot Holzman

PDF Version: When the Courts Close One Door, They May Open Many More: Maintenance Logs and the Potential Implications of an Appeal in R v Vallentgoed

Case Commented On: R v Vallentgoed, 2016 ABCA 358 (CanLII)

Following the recent Alberta Court of Appeal decision in R. v. Vallentgoed, 2016 ABCA 358 (CanLII), it appears that Canada’s impaired driving laws may be before the Supreme Court of Canada (SCC) once again – this time, only four years removed from the last major case to be decided by the SCC in this area: see R. v. St-Onge Lamoureux, 2012 SCC 57, (CanLII).

Vallentgoed featured two separate cases that were tried together as “test” cases: both Mr. Vallentgoed and Mr. Gubbins were charged with impaired driving and requested various maintenance records as part of their disclosure requests from the Crown. The question before the Court on both appeals pertained to the Crown disclosure obligations of certain maintenance records for the breathalyzer instruments (also called “approved instruments”) used every day in impaired driving investigations across the country.

In a split 2-1 decision, with Justice Rowbotham dissenting, the Court of Appeal held that while time-of-test records of the approved instruments are clearly relevant and must be disclosed to an accused person, historical maintenance records of the instruments are not subject to the same disclosure obligations. Justice Rowbotham found that an instrument’s maintenance log (which is a summary of all the work/repairs done on an instrument since it was brought into use) constitutes first party disclosure and must be disclosed as part of the standard disclosure package sent by the Crown. The majority (Justices Slatter and Berger) held it was third party disclosure, and not subject to the Crown’s Stinchcombe disclosure obligations (see R. v Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)). As the Court of Appeal was split in its decision, there will be an appeal as of right to the SCC, should the appellant wish to exercise that right.