Category Archives: Criminal

Informer Privilege: A Fickle Friend?

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.

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Distracted Driving and the Traffic Safety Act

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.

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Administrative Segregation and the Charter of Rights and Freedoms

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.”

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R v Jarvis, A Technologically Mindful Approach to the Meaning of Reasonable Expectation of Privacy

By: Emily Laidlaw

PDF Version: R v Jarvis, A Technologically Mindful Approach to the Meaning of Reasonable Expectation of Privacy

Case Commented On: R v Jarvis, 2019 SCC 10 (CanLII)

Last week the Supreme Court of Canada (SCC) released its long-awaited judgment R v Jarvis 2019 SCC 10 (CanLII) (Jarvis) and it is potentially a game-changer. The case focuses on a singular issue that is the core of privacy law: the meaning of the reasonable expectation of privacy (REP). What makes this case stand out from all the others is that it deals directly with frictions that have existed for a long time in how to conceptualize REP, namely the nature and extent to which we have a REP in public, how evolving technologies factor into conceptualizing REP in public, and issues of sexual integrity and privacy.

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Why Reconsider W(D)?

By: Lisa Silver

PDF Version: Why Reconsider W(D)?

Case Commented On: R v Ryon, 2019 ABCA 36 CanLII

I have written at great length on the W(D) decision, R v W(D), 1991 CanLII 93 (SCC), and the extraordinary impact that case has on our justice system. In my recent article on the issue, aptly entitled The W(D) Revolution, (2018) 41:4 Man LJ 307, I posit that the decision reflects a watershed moment in the assessment of credibility in criminal cases. The case decision, outlining the analytical approach to be taken in assessing credibility when there are “two diametrically opposed versions” of events, revolutionized such assessments by providing a template for integrating factual determinations within the burden and standard of proof (see e.g. R v Avetysan, 2000 SCC 56 (CanLII) at para 28). The W(D) state of mind was one that ensured that the principles of fundamental justice as distilled through the special criminal burden and standard of proof, would remain front and centre in the ultimate determination of guilt or innocence of an accused. This is not to say that the path towards enlightenment has not been strewn with difficulties. To the contrary, to recognize the imperfections of the decision and to experience the twists and turns of W(D) as pronounced upon in future SCC decisions, is to appreciate the W(D) ethos even more. W(D) has needed reinterpretation and reaffirmation throughout the decades since its release, but the question of whether it needed a reconsideration was at issue in the recent decision from the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (CanLII).

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