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Full-Text Articles in Law
Electronic Evidence In Canada, Robert Currie, Steve Coughlan
Electronic Evidence In Canada, Robert Currie, Steve Coughlan
Articles, Book Chapters, & Popular Press
This chapter discusses the issues surrounding electronic evidence in Canada. Topics discussed include the best evidence rule, electronic signatures, web-based evidence, and video-tape and security camera evidence. In addition rules around protection of privacy, discovery, and confidentiality are pursued. Finally the chapter also considers the many issues which arise around gathering electronic evidence in the criminal context, including wiretaps, general warrants, and searches of computers and cell phones.
Good Faith, Bad Faith And The Gulf Between: A Proposal For Consistent Terminology, Steve Coughlan
Good Faith, Bad Faith And The Gulf Between: A Proposal For Consistent Terminology, Steve Coughlan
Articles, Book Chapters, & Popular Press
Since the earliest days of section 24(2) jurisprudence, the phrase “good faith” has been used. For nearly as long, it has been used inconsistently. The same is true, to a lesser extent, of the phrase “bad faith.” This article traces the confusion which arises in understanding and in reasoning from the failure to restrict these phrases to single meanings. The article then proposes particular meanings for each, which would limit their applicability to extreme situations at either end of the spectrum. It is proposed that the term “good faith” should only be used in circumstances where it settles that the …
Keeping 'Reasonable Grounds' Meaningful, Steve Coughlan
Keeping 'Reasonable Grounds' Meaningful, Steve Coughlan
Articles, Book Chapters, & Popular Press
Two recent Court of Appeal cases (R. v. Jir and R. v. Bush, both reported ante, pp. 53 and 29) are examples of tendencies in some recent decisions to weaken the "reasonable grounds" standard for arrest. That the reasonable grounds standard for arrest is important is beyond question. As the Supreme Court of Canada has said, Without such an important standard, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In subtle and sometimes unintentional ways, however, the reasonable ground standard is being undermined. This short article will examine …
Using Protection Of Privacy Legislation To Erode Privacy: R. V. Chehil, Steve Coughlan
Using Protection Of Privacy Legislation To Erode Privacy: R. V. Chehil, Steve Coughlan
Articles, Book Chapters, & Popular Press
The Nova Scotia Court of Appeal here in R. v. Chehil overturns the trial judge's conclusion that the accused had a reasonable expectation of privacy in the information the police obtained from the computer manifest. With respect, their application of the totality of the circumstances test is subject to question at several important points. For example, in assessing the objective reasonableness of an expectation of privacy, the Court of Appeal relies on the fact that the Westjet website informs customers that "information will be disclosed to the authorities without your knowledge and consent as required by law." The court then …
Great Strides In Section 9 Jurisprudence, Steve Coughlan
Great Strides In Section 9 Jurisprudence, Steve Coughlan
Articles, Book Chapters, & Popular Press
The perfect is the enemy of the good. Could the approach to section 9 laid out in Grant have been constructed differently? Yes. But are we, because of that decision, magnitudes of order clearer on how to approach section 9? Also yes. The Supreme Court's decision in Grant, seemingly the product of careful negotiation given the time it has taken for the judgment to be handed down in a fashion having a clear majority, has created what has for over 25 years been lacking with regard to arbitrary detention. Where before we had very few decisions, those decisions not easily …
Improving Privacy Protection, But By How Much?, Steve Coughlan
Improving Privacy Protection, But By How Much?, Steve Coughlan
Articles, Book Chapters, & Popular Press
The discussion of reasonable expectation of privacy in R. v. M. (A.) is extremely useful. In the wake of Tessling, many courts had effectively reduced the protection offered by s. 8 based on two arguments: that what was detected was an emanation in the public domain similar to heat coming from a house, and that what was discovered merely related to informational privacy and was not part of the biographical core of such data. Justice Binnie's decision puts paid the notion that either of these arguments is a trump card. He suggests that generalizing about "emanations" is not a useful …
Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan
Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan
Articles, Book Chapters, & Popular Press
It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …
The Principled Exception And The Forgotten Criterion, Steve Coughlan
The Principled Exception And The Forgotten Criterion, Steve Coughlan
Articles, Book Chapters, & Popular Press
The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …
Common Law Police Powers And Exclusion Of Evidence: The Renaissance Of Good Faith, Steve Coughlan
Common Law Police Powers And Exclusion Of Evidence: The Renaissance Of Good Faith, Steve Coughlan
Articles, Book Chapters, & Popular Press
Canadian courts have become far more willing in recent years to rely on the common law as a source of new police powers. Where once the test from R. v. Waterfield was an exception and an afterthought to what was otherwise the general rule of insistence upon statutory sources for police powers, more recently that test seems to be in the forefront of judges' minds as they decide cases. That 1963 British decision has been cited by Canadian courts roughly as often in the last eight years as in the first 35 years after it was decided. Since 1999 the …
Conflicting Stories And Reasonable Doubt: Variations On W. (D.)'S Theme, Steve Coughlan
Conflicting Stories And Reasonable Doubt: Variations On W. (D.)'S Theme, Steve Coughlan
Articles, Book Chapters, & Popular Press
Whether the guilt of an accused has been proven beyond a reasonable doubt is always a difficult issue, particularly so when the accused has testified. There is little difficulty when an accused's exculpatory testimony is accepted by the trial judge, since that of course leads unambiguously to an acquittal. More complex is the situation where a trial judge does not simply accept the accused's version of events — that is, most of the time. In those circumstances, trial judge must embark down the twisty road of deciding whether disbelieved testimony can nonetheless result in an acquittal, or alternatively whether an …