Category: Criminal Page 24 of 39

By: Brett Code, Q.C.

PDF Version: R v Porter: Self-incrimination – Judicial Restraint of State Coercion

Case Commented On: R v Porter, 2015 ABCA 279

It should not have been necessary, because the applicable law on the matter has been settled since 1999, but for those police officers and prosecutors who might have forgotten, the Court of Appeal in R v Porter has once again forcefully stated that statutorily compelled statements are inadmissible in criminal trials because they violate the principle against self-incrimination and section 7 of the Canadian Charter of Rights and Freedoms. Insistent upon guarding against the admissibility of potentially unreliable confessions, against potential abuse of state power, and against the improper use by the Crown of otherwise properly-collected, statutorily required information, the Court confirmed the principle of fundamental justice that the state may not conscript the accused against himself or herself but must build any case to meet without compelled evidence from the suspect.

At issue was the use, if any, that could be made of information contained in compulsory accident reports made to police under section 71 of the Traffic Safety Act, RSA 2000, c T-6 (TSA) and in compulsory statements made to insurers for insurance purposes following an accident. The Court’s decisive conclusions were that:

such statements or the information contained in them are inadmissible in criminal proceedings arising out of a car accident; and
the information obtained through those statements cannot be used as part of the reasonable and probable grounds of an informant in an Information to Obtain a Search Warrant or Production Order.

R v Borowiec On Infanticide: Does the Crime Fit the Times?

By Lisa Silver

On August 10, 2015

In Criminal

By: Lisa Silver

PDF Version: R v Borowiec On Infanticide: Does the Crime Fit the Times?

Case Commented On: R v Borowiec, 2015 ABCA 232

In a few weeks the law school will be humming with activity as the newly admitted 1L students start learning the Law both in doctrine and in practice. One of the core first year courses is criminal law, which provides the future lawyer a realistic snapshot of the complexities of both areas. Here, in criminal law, they will not only gain knowledge of the prohibitions, rules, and procedures as found in the Criminal Code but also the interpretations and practices as found in Common Law. They will discover that criminal law is not about cut and dry legalese but is, at its core, about how we as a nation see ourselves and the kind of society we want to live in. It is also about ordinary people who are impacted by the decisions made by courts every day.

The Law on Mr. Big Confessions

By Caroline Law

On July 23, 2015

In Criminal

By: Caroline Law

PDF Version: The Law on Mr. Big Confessions

Cases Commented On: R v Magoon, 2015 ABQB 351; R v Campeau, 2015 ABCA 210

A Big operation is a common police sting tactic used to obtain confessions from suspects. It usually involves undercover police officers posing as members of a criminal organization and developing a friendly relationship with the suspect. The suspect is then asked to perform a series of seemingly illegal tasks, and is told those are tests to gain trust from the head of the criminal organization, Mr. Big. In the process, the police officers involved try to obtain evidence or a confession from the suspect in relation to an alleged crime. The operation culminates with a “job interview” between the suspect and the crime boss Mr. Big, which entails Mr. Big interrogating the suspect into his past criminal activities. Once the suspect admits to committing the crime, he or she is arrested. In this post I look at recent decisions in Alberta that have applied the law concerning the admissibility of Mr. Big confessions.

Prosecutors as Ministers of Justice?

By Alice Woolley

On June 29, 2015

In Criminal, Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Prosecutors as Ministers of Justice?

Three recent cases have brought to light bad behaviour by criminal prosecutors.

In R v Suarez-Noa, 2015 ONSC 3823 Justice Reid ordered a mistrial after the prosecutor suggested “to the jury that the accused had behaved like an animal rather than a human being,” calling the characterization “highly improper” and incapable of being “erased from the minds of the jurors” (at paras 10-11).

According to the CBC, in the Nuttall/Korody bombing trial British Columbia Supreme Court Justice Catherine Bruce said the prosecutors “took my breath away” with the “impropriety” of their decision to show a video to the jury that contained “footage of an actual pressure-cooker explosion.” She further described the prosecutor’s decision to ignore her express instruction not to refer to defences of duress and entrapment as “unspeakable” and as something she had “never experienced… before. Ever.” The CBC reported that Justice Bruce “said she would have called a mistrial had the proceedings not been so protracted and difficult”.

Keep It To Yourself: The Private Use Exception for Child Pornography Offences

By Joshua Sealy-Harrington

On June 23, 2015

In Criminal

By: Joshua Sealy-Harrington and Ashton Menuz

PDF Version: Keep It To Yourself: The Private Use Exception for Child Pornography Offences

Case Commented On: R v Barabash, 2015 SCC 29

Last month, the Supreme Court of Canada revisited the Private Use Exception – a defence to the possession and creation of child pornography – in R v Barabash, 2015 SCC 29. The unanimous judgment, authored by Karakatsanis J, clarified the analytical framework relating to the Private Use Exception and elaborated on how courts should assess exploitative relationships in which child pornography may be made. This post explains the Private Use Exception, describes its evolution in the jurisprudence, and explores questions left unanswered by the Court’s decision in Barabash.