Category: Criminal Page 27 of 39

Deconstructing Investigative Detention

On January 14, 2015

By: Dylan Finlay

PDF Version: Deconstructing Investigative Detention

Case Commented On: R v Rowson, 2014 ABQB 79

Crime scenes are often intense and dynamic environments. This presents a challenge to investigators who – prior to making an arrest – must collect enough evidence to satisfy the standard of ‘reasonable and probable grounds.’ The recent case of R v Rowson, 2014 ABQB 79 displays this hurdle. The scene of the alleged crime – a motor vehicle collision – was attended by paramedics, firefighters, the police, and an air ambulance helicopter. Collecting enough evidence to make an arrest was not the police’s immediate priority. To mitigate the challenge that inevitably arises in situations such as this, police are armed with the common-law power of investigative detention. This post will deconstruct this power.

The common law power of investigative detention was developed incrementally and recognized by the Supreme Court of Canada in R v Mann, 2004 SCC 52. This case involved two police officers who, while responding to a break and enter, encountered an individual who matched the description of the offender. The individual, Mr. Mann, was stopped and made subject to a pat-down search during which one of the officers felt a soft object in his pocket. Upon reaching inside the pocket, the officer found 27.55 grams of marijuana and a number of small plastic baggies. Mann was subsequently arrested; prior to this he had only been under a state of detention. At trial, Connor Prov. Ct. J. held that while the police were justified in searching Mann for security reasons, reaching into the appellant’s front pocket after feeling a soft item therein was not justified in the circumstances. The conduct thus contravened s. 8 of the Charter, the right to be secure against unreasonable search or seizure. On appeal, the Manitoba Court of Appeal held that it was not unreasonable for the police to continue the search inside of the pocket. This was further appealed to the Supreme Court of Canada.

National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

By Jennifer Koshan

On December 6, 2014

In Constitutional, Criminal, State Responses to Violence

By Jennifer Koshan

PDF Version: National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

Case Commented On: Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)

Yesterday the University of Calgary marked the 25^th National Day of Remembrance and Action on Violence Against Women with two events: the annual ceremony held by the Women’s Centre, and our own ceremony in the Faculty of Law. Our event involved strong components of both remembrance and action. We recognized the 20^th anniversary of the installation of Teresa Posyniak’s beautiful and haunting sculpture “Lest We Forget” in the Faculty. The sculpture honours women who were killed by men, including Aboriginal women, sex trade workers and the 14 women of L’Ecole Polytechnique. Teresa was present to share her reflections on creating the sculpture, the progress we have made on issues of violence against women over the last 20 years, and the work we still have to do. In terms of action, we also heard from Michelle Robinson, a Yellowknife Dene woman who spoke powerfully about the ongoing colonial violence experienced by indigenous women and indigenous peoples in Canada, and of the actions that we can and must all take to respond to this violence. Dean Ian Holloway stressed the importance of hosting the sculpture in our faculty as a reminder to reflect on the meaning of justice.

That brings me to the case I wish to comment upon in this post. Three years ago, I marked the National Day of Remembrance with an ABlawg post inquiring into whether the federal government’s repeal of the long gun registry was a violation of its obligations concerning violence against women. There has now been litigation on that question, and the applicant Barbra Schlifer Commemorative Clinic was unsuccessful in arguing that the repeal violated sections 7 and 15 of the Charter (Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)).

Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

By Joshua Sealy-Harrington

On October 31, 2014

In Criminal

By: Joshua Sealy-Harrington

PDF Version: Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

The recent scandal surrounding Jian Ghomeshi’s dismissal from the CBC, and the sexual assault allegations relating to that dismissal, have had a polarizing impact on Canadian discussion about sexual assault. First, this comment outlines the legal framework surrounding the sexual assault allegations against Mr. Ghomeshi to clarify what is relevant to the adjudication of those allegations, and what is not. Second, this comment seeks to respond to the polarizing conversation on this issue and argue for a middle ground which preserves the presumption of innocence while simultaneously demanding greater support for the victims of sexual assault.

Background

On October 26, 2014, the CBC announced that its relationship with Jian Ghomeshi – host of the popular radio show “Q” – had come to an end.

The factual background underlying this controversy (AKA World War Q, AKA Ghomeshigate) is heavily contested. Mr. Ghomeshi, in a note posted on Facebook, claims to be the victim of “a campaign of false allegations pursued by a jilted ex girlfriend and freelance writer.” Shortly thereafter, an article in the Toronto Star reported that three anonymous women say that Mr. Ghomeshi “was physically violent to them without their consent during sexual encounters or in the lead-up to sexual encounters.” Moreover, following the Toronto Star piece, many other women echoed these allegations, including actress Lucy DeCoutere, who has agreed to be identified.

In the aftermath of his dismissal, Mr. Ghomeshi filed a $55 million law suit against the CBC for breach of confidence and defamation (though, some have argued that the law suit serves ulterior motives). To date, no formal complaint or police investigation relating to the allegations against Mr. Ghomeshi has taken place.

Sentencing in an Unusual Domestic Violence Case

By Jennifer Koshan

On October 3, 2014

In Criminal, State Responses to Violence

By: Jennifer Koshan

PDF Version: Sentencing in an Unusual Domestic Violence Case

Case Commented On: R v Hernandez, 2014 ABCA 311

The most recent edition of Eugene Meehan’s Supreme Advocacy newsletter lists R v Hernandez, 2014 ABCA 311, as the Court of Appeal case of the week nation-wide. The case involves a Crown sentence appeal in the domestic violence context. Sadly, domestic violence cases are not uncommon, so what is so remarkable about this case?

First, it involves a female perpetrator. As annual Statistics Canada reports on family violence show, domestic violence is a gendered crime. In the most recent Stats Can report, 80% of all domestic complaints made to police in 2011 were made by women, a number which is consistent over time. At the international level, gender-based violence has been recognized as a form of discrimination against women in documents such as General Recommendation No. 19 to the Convention on the Elimination of All Forms of Discrimination Against Women. But in this case, Luisa Amelia Hernandez was the accused, and the complainant was her former common-law husband.

R v Navales and Reasonable Suspicion

By Shaun Leochko

On September 5, 2014

In Constitutional, Criminal

By: Shaun Leochko

PDF Version: R v Navales and Reasonable Suspicion

Cases Commented On: R v Navales, 2014 ABCA 70; R v Canlas, 2014 ABCA 160; R v Ng, 2014 ABPC 62; R v Tosczak, 2014 ABQB 86

The engagement of section 8 and section 9 of the Canadian Charter of Rights and Freedoms (the Charter) in the drug sniffer dog cases has captured the interest of civil libertarians and law enforcement for what is required for a “reasonable suspicion.” The 2013 Supreme Court decisions of R v Chehil, 2013 SCC 49, and R v MacKenzie, 2013 SCC 50 effectively lowered what would be required of police officers to form the reasonable suspicion necessary to conduct a “sniff” search. This resulted from the Supreme Court allowing an officer’s training and experience, in the totality of the circumstances, to form the objective requirement necessary to the forming of reasonable suspicion. The Alberta Court of Appeal in R v Navales, 2014 ABCA 70, was tasked with applying this law in Alberta. At issue was how officers would use their training and experience, and a constellation of neutral “no win” behaviours on the part of the accused to form the objective grounds needed to find reasonable suspicion. The result has been what dissenting judges have referred to as a lowering of the standard to that of a generalized suspicion. Significantly, this line of decisions has been applied outside of the drug sniffing dog context, and even outside of the reasonable suspicion context, to other areas of criminal law in R v Canlas, 2014 ABCA 160, R v Ng, 2014 ABPC 62, and R v Tosczak, 2014 ABQB 86.