New & Notable: Recognizing the need for a real world Charter...

Tiffany MacMillan was drunk. She was driving a boat. She killed someone. The events that ensued thereafter and the actions of the police resulted in a violation of her rights under section 10(b) of the Charter. The trial judge thought there were also breaches of sections 8 and 9 as well. The trial judge also thought the breaches were so serious that the evidence should be excluded. The trial judge was wrong on both accounts: 2013 ONCA 109.

 

MacMillan was driving a boat. She had a significant amount of alcohol in her system when she was doing so – her BAC some 3 hours later was 170 mg of alcohol/100 ml of blood.

As a result of the incident the OPP were called. Cst Ariss arrived on scene around 5:30 pm. Upon arrival Ariss noted paramedics on scene and a body covered with a sheet on the shore. There was also a young woman, MacMillan, siting at the end of the dock; she was crying and appeared distraught.

Read More

Pending & Prominent: SCC to consider ISP privacy

The Supreme Court of Canada has granted leave to appeal from the decision of the Saskatchewan Court of Appeal in Spencer: 2011 SKCA 144. The appeal will provide the Supreme Court with the opportunity to clarify whether there exists a reasonable expectation of privacy in certain basic information held by Internet service providers (ISPs). Spencer was released concurrently with Trapp: 2011 SKCA 143. Together, they are the leading appellate authorities in this area of the law.

 

Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

Read More

Current & Curious: Is the merit of a prosecution a factor in determining unreasonable delay?

Viktor Sokolovski operated a martial arts club aimed at young people. It was alleged that he assaulted five of his students during the years that he trained them. Specifically, he was charged with eight counts of assault with a weapon, five counts of assault and a single count of uttering a death threat. The defence brought an application seeking a stay of proceedings based on unreasonable delay. Blouin J. of the Ontario Court of Justice applied the factors set out by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and granted the stay of proceedings: 2012 ONCJ 759.
Read More

New & Notable: Respecting and protecting 911

Michael Purcell was charged with various drug offences including production and possession for the purpose of trafficking.  At trial Purcell brought an application to have evidence discovered by a police search of his home excluded due to a breach of section 8.

 

The search was conducted in response to a 911 call. Murray J dismissed the application: 2012 CarswellOnt 7187 (SCJ).

 

On December 26, 2009 a 911 call was placed from Purcell's residence. It was 2:04 am; the dispatcher could hear a male and female voice arguing in the background. There was yelling and swearing.

 

Read More

New & Notable: Successful, albeit unconstitutional reliance on a "hunch"

Nicolaas Bruyere was driving in his car with a passenger. They had some cocaine in the car. The police stop him. The police thought that another fella, Hyatt, was in the car. The police believed that Hyatt had just been involved in a drug deal at a nearby hotel. Hyatt was not in the car. The trial judge found that the stop was a section 9 violation but admitted the evidence under section 24(2). Bruyere appealed; the Ontario court of appeal allowed the appeal and ordered a new trial: 2012 ONCA 329.
Read More

New & Notable: Prejudiced? Prove it.

On July 25, 2002 Ching “Billy” Law was attacked at an internet café called Virtual Domain. The main perpetrator was a young offender, SE. SE had a machete and in his attack almost severed Law’s hand. The attack involved several other men. Lau and Li were alleged to be two of them. Prior to trial the accused brought a motion for a stay of proceedings based on unreasonable delay. The motion was dismissed. They appealed. That ground of appeal was dismissed (although the appeal against conviction was allowed on other grounds): 2012 ONCA 291.
Read More