Neuberger Rose LLP. Toronto Criminal Defence Lawyers

A review of the recent Supreme Court of Canada’s decision in Regina v. Grant

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Although charges of impaired/over 80 have decreased in the past two decades, these driving offences currently constitute 12% of all cases on the dockets of lower courts . With approximately 15,000 impaired/over 80 cases being heard every year in the low courts, these offences represent the largest category of offence currently being tried in this court.

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For years, criminal defence lawyers across Canada have been told by their Crown Attorney counterparts that a third party record application was required in order to obtain police disciplinary records in defence of their clients. For years, criminal defence lawyers have argued, mostly unsuccessfully, that an officer's prior improper conduct was relevant to the police investigation and essential to making full answer and defence. On January 16, 2009, the Supreme Court of Canada finally released their decision in R. v. McNeil (originally argued on March 19, 2008.) This is the first significant decision out of the Supreme Court to deal with disclosure issues since R. v. Stinchcombe.

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The Ontario Court of Appeal in the recent case of Regina v. Harrison, 2008 ONCA 85, has given a license for police to trample on individual rights so long as the fruits of their conduct yields evidence of a crime. Under what appears to be a new form of analysis of s. 24(2) of the Charter, as long as the Crown can establish that the admission of the impugned evidence is necessary to continue the prosecution, the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it, and thus, the evidence goes in and the rights go out the window.

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Given the prevalence of gang and gun related homicides, exclusion of illegally obtained evidence has become difficult if not impossible to achieve on a section 24(2) Charter analysis. It is submitted, however, that we should not determine rights based on moral panic respecting the issue.

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There is no doubt that impaired driving is a serious social issue affecting Canadians across Canada. The consequences of a conviction for impaired driving can have long lasting implications for an individual.

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Defending impaired driving and over 80 cases often involves a challenge to the actions of police officers holding up their conduct to the scrutiny of the Charter. One such area is the right to remain silent and to advise from counsel. Technology has yielded digitally recorded real time evidence showing the interaction between the police and the detainee while in the police station.

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This recent decision of the Supreme Court of Canada has once again attempted to clarify how lower courts are to deal with issues of necessity and reliability in the determination of whether an out-of-court video taped statement ought to be admitted into evidence at trial.

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In a recent decision, the Ontario Court of Appeal visited the issue of police investigation powers at a private driveway. In R. v. Lotozky the respondent had been investigated and arrested by two police officers in his driveway.

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For the last several years, tax professionals have been in a state of confusion about the implications of when a tax audit has been used by the CCRA for purposes of investigating tax evasion.

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