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Articles 1 - 30 of 33
Full-Text Articles in Law
Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin
Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin
Articles, Book Chapters, & Popular Press
Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …
Editors' Note, Robert Currie, Neil Boister, Masha Fedorova, Sabine Gless, Cecily Rose, Sara Wharton
Editors' Note, Robert Currie, Neil Boister, Masha Fedorova, Sabine Gless, Cecily Rose, Sara Wharton
Articles, Book Chapters, & Popular Press
No abstract provided.
Admissibility Of Hearsay Gathered Under Mlat: A Tempest In Canada, Robert Currie
Admissibility Of Hearsay Gathered Under Mlat: A Tempest In Canada, Robert Currie
Articles, Book Chapters, & Popular Press
One of the most pervasive and longstanding problems in the practice of mutual legal assistance in criminal matters between states has been ‘form of evidence’–specifically, can the requested state provide evidence in such form as will be useful and admissible under the criminal evidence laws of the requesting state?It tends to be common law states that have difficulties with admissibility of MLAT-sourced evidence, and these often develop ‘work-arounds’ in their laws which attempt to relax admissibility standards. Canada is one such state, but a series of recent prosecutions has revealed judicial resistance to the tools employed. This note examines these …
State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson
State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson
Articles, Book Chapters, & Popular Press
Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …
R. C. Bissonnette And The (Un)Constitutionality Of Consecutive Periods Of Parole Ineligibility For A Life Sentence: Why The Qcca Got It Right And Why Section 745.51 Should Never Be Re-Written, Adelina Iftene
Articles, Book Chapters, & Popular Press
This article reviews the constitutional arguments upheld by the QCCA in Bissonnette and weighs them against the challenges that trial judges have encountered in applying s. 745.51 since 2012. By drawing on a qualitative review of cases in which s. 745.51 has been applied, as well as Charter principles, sentencing case law, and international practices, this article posits that the QCCA was correct in its approach to s. 745.51, both in finding it unconstitutional and in finding that the provision should not be read down to render it constitutional. This article advances the central argument that, in the context of …
Private Records, Sexual Activity Evidence, And The Charter Of Rights And Freedoms, Elaine Craig
Private Records, Sexual Activity Evidence, And The Charter Of Rights And Freedoms, Elaine Craig
Articles, Book Chapters, & Popular Press
In December 2018, Parliament amended the Criminal Code to add a new regime dictating the process and admissibility criteria for private records in the possession of an accused in a sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the Ghomeshi Rules – are unconstitutional. The problem with these decisions is that, in each one, the court has failed to properly balance the competing …
Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe
Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe
Articles, Book Chapters, & Popular Press
The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …
Why De Minimis Should Not Be A Defence, Stephen Coughlan
Why De Minimis Should Not Be A Defence, Stephen Coughlan
Articles, Book Chapters, & Popular Press
De minimis non curat lex—the idea that the law does not concern itself with trifles—is originally a private law maxim whose applicability in criminal law is uncertain. The author argues that de minimis should not exist as a criminal defence. This article distinguishes the use of de minimis as an (accepted) interpretative principle in criminal law from its application as a defence. In doing so, the author critiques the potential rationales for de minimis offered by Arbour J in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). Instead, the author draws a parallel between de minimis …
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson
Articles, Book Chapters, & Popular Press
Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …
Examination Of Witnesses In Criminal Cases, Hannah Steeves
Examination Of Witnesses In Criminal Cases, Hannah Steeves
Articles, Book Chapters, & Popular Press
The newest edition of Examination of Witnesses in Criminal Cases maintains its status as a key text on the topic. Author Earl J Levy, a national leader in the area of criminal law, has worked with the Criminal Lawyers’ Association, taught criminal law courses at various Canadian law schools, and has over 50 years experience as a litigator. The book, now in its seventh edition, contains necessary updates, and improvements have been made to both format and content while maintaining a similar, logical overview as in previous editions.
The ‘Hart’ Of The (Mr.) Big Problem, Adelina Iftene
The ‘Hart’ Of The (Mr.) Big Problem, Adelina Iftene
Articles, Book Chapters, & Popular Press
In 2014, the Supreme Court of Canada in R v Hart reviewed the application and evidentiary consequences of Mr. Big operation. For the majority, Moldaver J. changed the common law confessions rule so that it applies in Mr. Big scenarios based on a two-pronged test. Immediately after Hart, the SCC rendered a new decision in R v Mack where the two pronged test was leniently applied in favour of the Crown. In this article I argue that the SCC approach in Hart and its application in Mack failed to address to the core problems that Mr. Big operations pose. It …
The Inhospitable Court, Elaine Craig
The Inhospitable Court, Elaine Craig
Articles, Book Chapters, & Popular Press
Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals …
Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie
Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie
Articles, Book Chapters, & Popular Press
Section 9 of the Charter guarantees freedom from arbitrary detention, section 10 provides certain rights on arrest, and section 11 guarantees various rights to those charged with an offence. In this chapter the authors consider the aspects of these rights which have been authoritatively determined, as well as pointing to the areas which remain unsettled and discussing the areas of lingering controversy.
Telus: Asking The Right Questions About General Warrants, Steve Coughlan
Telus: Asking The Right Questions About General Warrants, Steve Coughlan
Articles, Book Chapters, & Popular Press
The general warrant provisions in the Criminal Code have often been interpreted by lower courts in a way which threatens to make that power quite open-ended, and to make those warrants available as a way of making an "end run" around the requirements of other provisions. This note argues that the Supreme Court of Canada is correct, in Telus,to adopt a "substantive equivalence" approach to general warrants, thereby limiting the circumstances in which they can be used. Lower courts have sometimes taken the view that a general warrant is only unavailable if the proposed technique would fall squarely within some …
Imagining Success For A Restorative Approach To Justice: Implications For Measurement And Evaluation, Jennifer Llewellyn, Bruce Archibald, Donald Clairmont, Diane Crocker
Imagining Success For A Restorative Approach To Justice: Implications For Measurement And Evaluation, Jennifer Llewellyn, Bruce Archibald, Donald Clairmont, Diane Crocker
Articles, Book Chapters, & Popular Press
Whether restorative justice is “successful,” or not, is a complex question. Attempts to answer this question by practitioners, professionals, and scholars have often been bounded by common notions of success in standard criminal justice terms. The authors of this paper suggest that if restorative justice is properly understood in terms of its focus on relationship, success should be measured on new and different dimensions. This paper seeks to bring a relational imagination to the scholarly effort of capturing the essence of restorative justice and figuring out how to assess its successes and failures. The authors offer a foundation and agenda …
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.
The Evolution Of The Law Of Evidence: Plus Ça Change…?, Robert Currie
The Evolution Of The Law Of Evidence: Plus Ça Change…?, Robert Currie
Articles, Book Chapters, & Popular Press
Originally prepared as a CLE backgrounder for criminal lawyers, this article provides a brief and occasionally critical account of developments in the law of evidence over the last three or so decades. Particular attention is paid to the Supreme Court of Canada’s introduction and development of the “principled approach.” It is argued that this framework has been most successful where it has coalesced into a more traditional-looking “rules-based” stance, albeit one based in principle, and less so where looser tests of principle have been given freer rein.
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 …
Beyond The Goudge Inquiry: Is The Coroner Part Of 'The Crown' For Stinchcombe Disclosure Obligations?, Andrew Flavelle Martin
Beyond The Goudge Inquiry: Is The Coroner Part Of 'The Crown' For Stinchcombe Disclosure Obligations?, Andrew Flavelle Martin
Articles, Book Chapters, & Popular Press
Pediatric forensic pathology evidence is a critical component of the investigation and prosecution of child and infant death. Several years ago, concerns arose over the work of Dr. Charles Smith, then a renowned expert in the field. The Office of the Chief Coroner for Ontario ("The Coroner") then commissioned an external review of his work on 45 cases. For each case where his findings or conclusions were disputed and the accused had not been acquitted, the defence counsel was given the corresponding reports. In response to the review, the Government of Ontario commissioned a public inquiry led by Justice Stephen …
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 …
Reforming Homicide Law To Separate Guilt From Sentence: An International Gloss, Steve Coughlan
Reforming Homicide Law To Separate Guilt From Sentence: An International Gloss, Steve Coughlan
Articles, Book Chapters, & Popular Press
This article argues that Canadian homicide law is handicapped by trying to combine two contradictory approaches. In general, Canadian criminal law adopts the approach of setting out relatively rigid rules for determining guilt or innocence. That is, the Criminal Code sets out particular offences, and if the elements of an offence can be proven, then failing the presence of any defence (also relatively rigidly defined), any accused will be found guilty. The question of guilt or innocence is not individualized to the circumstances of the offender. On the other hand, sentencing decisions adopt exactly the opposite approach, and are made …
The End Of Constitutional Exemptions, Steve Coughlan
The End Of Constitutional Exemptions, Steve Coughlan
Articles, Book Chapters, & Popular Press
In R. v. Ferguson (reported ante p. 197) the Supreme Court decided that constitutional exemptions are not available as a remedy when a mandatory minimum sentence is said to violate section 12 of the Charter. This is a well reasoned and sensible decision. As mandatory minimum sentences are the context in which the possibility of the constitutional exemption as a Charter remedy has most frequently arisen, as a practical matter Ferguson largely disposes of the issue. Nonetheless, a further clarification at some point that constitutional exemptions are not available in any context, for other violations of section 12 or of …
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 …
Privacy Goes To The Dogs, Steve Coughlan
Privacy Goes To The Dogs, Steve Coughlan
Articles, Book Chapters, & Popular Press
It becomes increasingly clear, with the decision of the Newfoundland Court of Appeal in R. v. Taylor, ante, that the question of whether police use of sniffer dogs constitutes a search, and if so when, will need to be addressed by the Supreme Court of Canada. In particular the question of whether R. v. Tessling has changed the approach to reasonable expectation of privacy as dramatically as some courts have suggested must be settled. Other questions will also need to be addressed.
Nothing Plus Nothing Equals... Something? A Proposal For Flir Warrants On Reasonable Suspicion, Steve Coughlan, Marc Gorbet
Nothing Plus Nothing Equals... Something? A Proposal For Flir Warrants On Reasonable Suspicion, Steve Coughlan, Marc Gorbet
Articles, Book Chapters, & Popular Press
Over a series of decisions, the Court has been backing itself into a corner with its section 8 jurisprudence. Section 8 protects against unreasonable searches. Since the earliest ruling on the section in Hunter v. Southam} searches are prima facie unreasonable if they take place without a warrant. Thus, before conducting a search, police must have a warrant. Before getting a warrant, police must have information about the accused. Obtaining information about the accused probably involves conduct that qualifies as a search. Thus for example in K. v. Kokesch, R. v. Wiley, and R. v. Plant, perimeter searches, conducted in …
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 …