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January 2013 Archives

When Paths Cross: A look at the interplay between Foreign Law and Domestic Law in Extradition Cases

Within Canadian criminal law the most significant intersection of domestic and foreign law is in the areas of extradition and the extra-territorial application of the Canadian Charter of Rights and Freedoms2 to investigations and proceedings regarding Canadian nationals. Extradition proceedings and investigations that extend beyond the Canadian border involve unique issues and demand experienced counsel to help guide and effectively represent clients who are subject of these proceedings. This paper will review in brief detail some the of unique evidentiary issues and the interplay of both Canadian and foreign law. Read More

Conscriptive Evidence, Real Evidence, Good Faith, Bad Faith - What does it all mean?

On July 17, 2009, the Supreme Court released R. v. Grant and three other companion cases, reformulating how courts ought to deal with evidence obtained in breach of the Charter. A fulsome reconsideration of this important issue has been long overdue in the wake of confusion arising from the Court's last major treatise on the subject in1997, R. v. Stillman. As the Chief Justice and Justice Charron noted in Grant, "existing jurisprudence on the...exclusion of evidence is difficult to apply and may lead to unsatisfactory results." [ 1]

The Rise and Fall of Evidence to the Contrary: A Brief History

Introduction

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.

Who Polices the Police? Not the Court of Appeal!

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.

Keep it in - Minor Breaches of the Charter are Okay with the Court

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. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel of choice, or an unreasonable seizure of breath have traditionally resulted in exclusion of the breath readings with little analysis of s. 24(2).

WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

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. This has a dual affect. All actions of the detainee are captured for all to see at a trial but similarly the officers are constrained in their actions, thereby resisting making any threats or promises to induce statements. When a person enters the "breath room", the intoxilyzer technician will routinely advise of the right to speak to counsel without delay and will delay the tests if a request is made by an accused to speak to either private or duty counsel. As well, the primary and secondary caution will be given prior to any tests being administered. In the past any conversation between two tests had been regarded as admissible evidence since the detainee has been given the rights and caution and voluntarily chosen to answer the questions. A recent decision of Regina v. Duong , the Honourable Mr. Justice H. Chisvin ruled that the answers provided between the two tests were not voluntarily as Mr. Duong was not re-cautioned after the 1st sample was obtained.

R. v. Khelawon, 2006 SCC 57 - Clarifying Hearsay, Again

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. The issue often arises in domestic violence cases where a complainant does not wish to attend court or proceed to trial after having given the police a video statement under oath. When the complainant fails to attend court or is otherwise unavailable, the Crown can bring an Application to admit the statement for the truth of its contents provided two conditions are satisfied - necessity and reliability. It is the later condition that has been the subject of considerable debate since the Supreme Court's decision in Regina v. Starr, [2000] 2 S.C.R. 144. That decision has generated much judicial commentary and academic criticism on various grounds, but most significantly on defining what constitutes "extrinsic" circumstances. In Khelawon, the Supreme Court did not expand the legal test developed from the line of cases of Regina v. Khan,[1990] 2 S.C.R. 531, Regina v. Smith, [1992] 2 S.C.R. 915, Regina v. B.(K.G., [1993] 1 S.C.R., 740, but sought to clarify whether "extrinsic" circumstances to the taking of the statement can be considered in determining threshold reliability.

Impaired Driving Investigations - Right in Your Own Driveway

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. Their interest had been generated by a radio call that an impaired driver had been attempting to use the drive-through window of a local restaurant. The police matched the licence plate to an address and watched as the driver approached that address oddly. The driver parked in the driveway, at which time he was approached by the two police officers, investigated for impaired driving, and arrested. At trial Lotozky was acquitted of the charge due to a Charter infringement, i.e., the police had breached his s.8 charter rights by investigating the driver in his driveway. This was upheld in Superior Court.

GUIDANCE TO THE TAX PROFESSIONAL

Auditors meet Investigators at the Point of Predominant Purpose

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. Recently, the Supreme Court of Canada has provided guidance on this issue, but has also left the tax professional and the taxpayer with lingering questions.

In the ever increasing complexity of Criminal Law, the statutory provisions for Over 80 prosecutions deserve special mention. R. v. St. Onge 2012 SCC 57

In the ever increasing complexity of Criminal Law, the statutory provisions for Over 80 prosecutions deserve special mention. There are fewer areas of the Criminal Code which govern more cases[1], and the Criminal Code has had ongoing revisions to allow for the breath test results to be admissible in Court without the Crown having to call expert evidence. The latest such amendment, and a substantial one at that, was Bill C-2, which on July 2, 2008 significantly altered the manner in which an accused could raise a reasonable doubt about his blood alcohol content (BAC) as evidence by the Breathalyzer readings. Prior to that date it was open to an accused to lead 'evidence to the contrary'[2] about his or her alcohol consumption in the relevant time period, and call a defence expert witness to give an opinion on the accused's BAC at the time of the incident. If the cumulative effect of that defence raised a reasonable doubt, then Over 80 charge was dismissed. This was known as the "Carter" [3]defence, although one Brampton judge, perhaps wryly, referred to this as the "two beer defence"[4]. Bill C-2 amended the evidence to the contrary provisions [5] by providing that evidence to the contrary, and therefore a reasonable doubt about the breath readings, would be raised if the accused showed three things: i) that the approved instrument was malfunctioning or operated improperly; ii) that the malfunction or improper operations resulted in an Over 80 reading from the accused; and iii) that the accused's BAC at the time of the offence was under 80. Whereas the Carter defence was relatively straightforward and relatively simple, C-2 added two statutory components; attack on the machine or its operation, and real effect arising from that.

Ontario Court of Appeal Ruling Affects Domestic Assault Cases

The Ontario Court of Appeal released it decision in J.N. v. The Durham Regional Police Service (2012 ONCA 428) on June 21, 2012. That decision overturned a lower court ruling (2011 ONSC 2892) which had ordered the Durham Police to expunge its records of information which affected JN's employment prospects.

No Ecstasy for Ecstasy Induced Psychosis

Has the Supreme Court Tightened the NCRMD Defense or further Muddied the Waters?

Mr. Joseph Neuberger LL.B., LL.M., and Dr. Julian Gojer M.B.B.S., F.R.C.P.C., J.D.

The Supreme Court of Canada recently ruled in Bouchard-Lebrun[1] that a drug induced psychosis or a toxic psychotic state is not a Mental Disorder. The appellant in this case had brutally assaulted two individuals while he was in a psychotic condition purportedly caused by ecstasy consumed a few hours earlier causing serious and permanent harm to a victim. He was convicted by the Court[2] on two counts of aggravated assault and assault and tried unsuccessfully on appeal to obtain a verdict of not criminally responsible on account of mental disorder[3]. The argument that a toxic psychosis resulting from the voluntary consumption of drugs is a "mental disorder" within the meaning of s. 16 of the Criminal Code of Canada[4] was rejected on appeal and was unanimously upheld by the Supreme Court of Canada. On the surface, it appears that the perennial problem of deciding on whether a drug related or toxic psychosis is a mental disorder or not, has been answered[5] [6]. This decision however, will have a much broader impact on other cases involving mental health issues.

A Serious Blow to the Conservative Government's Mandatory Minimum Sentencing Policies

In a bold and admirable ruling, Justice Anne Molloy of the Ontario Superior Court of Justice struck down the mandatory three year jail term that was a result of the Conservative government's 2008 Tackling Violent Crime Act, declaring that to impose a three-year jail sentence for Mr. Leroy Smickle would be "fundamentally unfair, outrageous, abhorrent, and intolerable."[i]

When Paths Cross: A look at the interplay between Foreign Law and Domestic Law in Extradition Cases

Within Canadian criminal law the most significant intersection of domestic and foreign law is in the areas of extradition and the extra-territorial application of the Canadian Charter of Rights and Freedoms2 to investigations and proceedings regarding Canadian nationals. Read More

Conscriptive Evidence, Real Evidence, Good Faith, Bad Faith - What does it all mean?

On July 17, 2009, the Supreme Court released R. v. Grant and three other companion cases, reformulating how courts ought to deal with evidence obtained in breach of the Charter. A fulsome reconsideration of this important issue has been long overdue in the wake of confusion arising from the Court's last major treatise on the subject in1997, R. v. Stillman. As the Chief Justice and Justice Charron noted in Grant, "existing jurisprudence on the...exclusion of evidence is difficult to apply and may lead to unsatisfactory results." [ 1]

The Rise and Fall of Evidence to the Contrary: A Brief History

Introduction

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.

Who Polices the Police? Not the Court of Appeal!

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.

Keep it in - Minor Breaches of the Charter are Okay with the Court

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. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel of choice, or an unreasonable seizure of breath have traditionally resulted in exclusion of the breath readings with little analysis of s. 24(2).

WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

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. This has a dual affect. All actions of the detainee are captured for all to see at a trial but similarly the officers are constrained in their actions, thereby resisting making any threats or promises to induce statements. When a person enters the "breath room", the intoxilyzer technician will routinely advise of the right to speak to counsel without delay and will delay the tests if a request is made by an accused to speak to either private or duty counsel. As well, the primary and secondary caution will be given prior to any tests being administered. In the past any conversation between two tests had been regarded as admissible evidence since the detainee has been given the rights and caution and voluntarily chosen to answer the questions. A recent decision of Regina v. Duong , the Honourable Mr. Justice H. Chisvin ruled that the answers provided between the two tests were not voluntarily as Mr. Duong was not re-cautioned after the 1st sample was obtained.

R. v. Khelawon, 2006 SCC 57 - Clarifying Hearsay, Again

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. The issue often arises in domestic violence cases where a complainant does not wish to attend court or proceed to trial after having given the police a video statement under oath. When the complainant fails to attend court or is otherwise unavailable, the Crown can bring an Application to admit the statement for the truth of its contents provided two conditions are satisfied - necessity and reliability. It is the later condition that has been the subject of considerable debate since the Supreme Court's decision in Regina v. Starr, [2000] 2 S.C.R. 144. That decision has generated much judicial commentary and academic criticism on various grounds, but most significantly on defining what constitutes "extrinsic" circumstances. In Khelawon, the Supreme Court did not expand the legal test developed from the line of cases of Regina v. Khan,[1990] 2 S.C.R. 531, Regina v. Smith, [1992] 2 S.C.R. 915, Regina v. B.(K.G., [1993] 1 S.C.R., 740, but sought to clarify whether "extrinsic" circumstances to the taking of the statement can be considered in determining threshold reliability.

Impaired Driving Investigations - Right in Your Own Driveway

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. Their interest had been generated by a radio call that an impaired driver had been attempting to use the drive-through window of a local restaurant. The police matched the licence plate to an address and watched as the driver approached that address oddly. The driver parked in the driveway, at which time he was approached by the two police officers, investigated for impaired driving, and arrested. At trial Lotozky was acquitted of the charge due to a Charter infringement, i.e., the police had breached his s.8 charter rights by investigating the driver in his driveway. This was upheld in Superior Court.

GUIDANCE TO THE TAX PROFESSIONAL

Auditors meet Investigators at the Point of Predominant Purpose

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. Recently, the Supreme Court of Canada has provided guidance on this issue, but has also left the tax professional and the taxpayer with lingering questions.