Category: Criminal Page 8 of 39

Case Commented On: R v Mills, 2019 SCC 22

Perhaps we, in the legal world, should not have been surprised by R v Mills, 2019 SCC 22, the most recent decision on privacy and the application of that concept in the s. 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Mills may be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word.

Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

By Amy Matychuk

On May 3, 2019

In Aboriginal, Constitutional, Criminal

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v Newborn, 2019 ABCA 123 (CanLII)

In R v Newborn, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Court of Appeal (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (Newborn ABCA, at para 1). It also dismissed his argument that inadmissible expert evidence was allowed at the trial. However, this post will focus on the right to a representative jury as defined in the Supreme Court’s decision in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s application of Kokopenace, and the appropriate scope of the state’s obligations under Charter s 11.

Informer Privilege: A Fickle Friend?

By KMizutani

On April 16, 2019

In Criminal

By: Kenryo Mizutani

PDF Version:Informer Privilege: A Fickle Friend?

Case Commented On: R v Named Person X, 2018 ABQB 827 (CanLII)

In the series “Mission: Impossible” the protagonist Ethan Hunt knows what is at stake. Before every new assignment, a self-destructing tape informs him of his new mission. The message ends with a disclaimer: “as always, should any member of your team be caught or killed, the Secretary will disavow all knowledge of your actions.” In serving his state, he knows that the state is a fickle friend: if he is compromised, he cannot expect any assistance. At least Ethan Hunt is fully aware of this before he sets off.

The situation of Named Person X (NPX) in the recent Alberta Court of Queen’s Bench decision, R v Named Person X, 2018 ABQB 827 (CanLII) is similar to Ethan Hunt’s. NPX is allegedly a police informer, and leaked information that resulted in successful arrests of several people. However, there is a twist: NPX was among those arrested. Just like the Secretary in “Mission: Impossible”, the Crown would “neither confirm nor deny that any informer privilege exists in relation to the Accused [NPX]” (at para 16). NPX filed an application for an order directing the Crown to disclose source handler notes related to NPX’s activity as an informer, and the central issue in Named Person X was whether this application should be granted or whether the notes were protected by informer privilege.

Distracted Driving and the Traffic Safety Act

By Shaun Fluker

On April 2, 2019

In Criminal, Statutory Interpretation

By: Shaun Fluker

PDF Version: Distracted Driving and the Traffic Safety Act

Case Commented On: R v Ahmed, 2019 ABQB 13 (CanLII)

Alberta added distracted driving offences to the Traffic Safety Act, RSA 2000 c T-6 in 2011, and two of these provisions are the subject of this decision by Justice John T. Henderson. The accused was charged under section 115.1(1)(b) for operating a vehicle while looking at his mobile phone. This particular section prohibits driving while holding, viewing or manipulating a hand-held electronic device or a wireless electronic device. The facts were not in dispute at trial, but the traffic commissioner ruled that a mobile phone is not an “electronic device” and thus acquitted the accused. The Crown appealed this decision to the Court of Queen’s Bench. A literal or plain reading of section 115.1(1)(b) does lead one to question the view that a mobile device is not an electronic device, but statutory interpretation is not always a literal exercise – particularly when the provisions themselves are written in a complicated or “inelegant” manner as is noted by the court here. This case is perhaps more about distracted drafting than it is distracted driving.

Administrative Segregation and the Charter of Rights and Freedoms

By Myrna Tuttle

On March 4, 2019

In Constitutional, Criminal

By: Myrna El Fakhry Tuttle

PDF Version: Administrative Segregation and the Charter of Rights and Freedoms

Case Commented On: R v Prystay, 2019 ABQB 8 (CanLII)

On January 4, 2019, Madam Justice Dawn Pentelechuk found that Mr. Ryan Prystay’s lengthy stay in administrative segregation at the Edmonton Remand Centre breached section 12 of the Charter. Consequently, she granted him enhanced credit of 3.75 days for each day spent in administrative segregation.

Administrative segregation is used in remand centres to keep an inmate away from the general population for safety or security reasons. It is not intended to be used as a punishment and can be indefinite, while disciplinary segregation is imposed as a penalty and has to be for a specified period of time.

Unlike in disciplinary segregation, inmates in administrative segregation have the same rights and privileges as other inmates, however, the operational reality is that one’s experience in either form of segregation is drastically different from that of inmates in the general population (at para 27). Inmates in either form of segregation are kept in a cell alone for 23 hours a day. They have two half-hour blocks outside of their cell during each 24 hour period where they can shower, exercise, watch television or use the phone in the “fresh air” room. Inmates stay alone during those activities. Administrative segregation inmates may have visits via CCTV (closed circuit television) (at paras 28-29).

On October 16, 2018, the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, introduced in the House of Commons Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. The purpose of the bill is to strengthen the federal correctional system in a number of ways including ending administrative segregation and disciplinary segregation and creating “structured intervention units.”

Category: Criminal Page 8 of 39

A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Informer Privilege: A Fickle Friend?

Distracted Driving and the Traffic Safety Act

Administrative Segregation and the Charter of Rights and Freedoms