News: LAO Launches new and impressive website!

A couple of weeks ago I blogged about a new column in the Ottawa Citizen to be authored by members of a local defence firm: Lack of Knowledge is Bad, Imperfect Knowledge may be Worse.  While I applauded the idea - to educate people on their right and obligations under the law - I queried whether that goal could actually be achieved in that form and with that perspective (and perhaps I pointed out how it might not have been achieved).
I recently became aware, thanks to one of my readers, of a new site launched by Legal Aid Ontario:  The site indicates that it "provides information, written in plain language, on bail, guilty pleas, peace bonds, types of sentences and more.  It also provides examples of commonly-used forms, checklists to prepare for going to court and contacting LAO...".
I have visited the website.  It has succeeded in its goal.  The site is user friendly.  It is informative.  It is refreshing to see people working toward the goal of educating the public and making information about the criminal justice system accessible and easy to understand.  While the site is aimed at assisting those charged with criminal offences, as anyone who works in the criminal justice system will appreciate, this site will go a long way in helping all of us who are involved in the criminal justice system. 
As reported in a press release, the Legal Aid Ontario webiste received more than 770,000 last year.  Undoubtedly that number will drastically increase with the launch of this new and very informative website.  Great work!
DG Mack

News: Special Offer on Mack's Criminal Law Bulletin

There is one thing that all prosecutors, defense counsel, and judges have in common – the need to be up-to-date in the face of a rapidly changing legal landscape. That is why I have partnered with Carswell in producing a new criminal law service offering commentary on current issues in the criminal law. Mack’s Criminal Law Bulletin, published bi-weekly, will help readers track important developments in this area of law in a timely manner.


Mack’s Criminal Law Bulletin features: 
  • Insightful commentary on current criminal law topics
  • Each issue focuses on a specific criminal law topic - to date, the topics covered include the curative proviso, filing notices of increased penalty, the tertiary ground for detention, and the probative value of post-offence conduct

As a follower of my blog, I would like to offer you a 4 month free subscription to my new Criminal Law Bulletin. To receive your free subscription, please complete the information in this form.

For more information check out Bulletin Special Offer

DG Mack

News: MCLBulletin, Issue 10 now online!

Issue 2011-10 of Mack's Criminal Law Bulletin is now online.  In this issue, Common Law Police Powers: Search Incident to Arrest (cell phone), I discuss whether the police are permitted to search a cell phone incident to arrest under the traditional common power.   
…the question is simple: Does the scope and nature of the biographical core of information on a cell phone require prior judicial authorization before it may be searched, or can the police rely upon a modified common law power of search incident to arrest?
The issue is admittedly complex….

News: New Issues of Mack's Criminal Law Bulletin

Two new - and exciting - issues of Mack's Criminal Law Bulletin are online.  In Issue 8 I discuss the recent Ontario Court of Appeal ruling in R v Woodward, 2011 CarswellOnt 9823 (C.A.) and the issue of sentencing in internet luring cases.  In Issue 9 I discuss the interesting case of R v Jaycox, 2011 CarswellBC 1237 (SC) which found section 254(2) to be unconstitutional but saved it by reading in. 

DG Mack

Comment: Lack of Knowledge is Bad, Imperfect Knowledge may be Worse

Knowledge can be antithetical. As Francis Bacon Sr onced noted, knowledge is power. Yet, a little knowledge is a dangerous thing; imperfect "knowledge" can be disasterous.
There can be no doubt that a lack of knowledge about one's fundamental legal rights is problematic; educating and providing such knowledge is a laudible pursuit and should be applauded. This pursuit, however, is one frought with danger as providing imperfect or incomplete knowledge can be dangerous.
It is with this in mind that I read with great interest a new column in the Ottawa Citizen: "Law, justice, lack of knowledge a bad mixture" by Michael Edelson.  In his introductory column Mr Edelson, a prominent local defence lawyer, explains that the column (which will be authored by him and members of his firm) is intended, at least in part, at educating people "on their rights and obligations...under the law".  This is a laudable goal.  Yet, one must wonder, perhaps be concerned, whether this can so easily be achieved in this context; the law is dynamic and its application is dependant on an infinite set of possible factual circumstances.  More importantly, however, often lawyers and judges do not agree on what the law actually is on any given point. 
With this in mind, I waited with great interest for the first installment of this column.   
The first issue of this new column came out on Friday: "Right to Know: Meeting the police: An informed citizen won't be intimidated" by Solomon Friedman.  These concerns about the potential pitfalls of purporting to educate the public on the law are borne out in this first article.
In this first column Mr Friedman discusses the "casual" interaction with the police which he suggests is a "regular feature of our lives". Regular, perhaps, is a bit of an overstatement but this type of interaction indeed is one that people should understand and be informed about.  Unfortunately, with respect, I am not sure that is what Mr Friedman has achieved.  Two examples will illustrate this point. 
First, in discussing "investigative detention" Mr Friedman advises readers that "while the police may be able to perform a 'pat-down' for weapons, an investigative detention does not give the police the right to search you or your belongings" [emphasis added].  There are, in my view, some problems or ambiguities with this statement of the law. 
First, a "pat-down" will be permitted where officers have "reasonable grounds to believe that his or her safety or that of others is at risk": see R v Mann, 2004 SCC 52 at para 45. 
Second, a "pat-down" is a search. The suggestion that the police cannot "search you" seems to imply that the "pat-down" is not a search.  It is.  The purpose of it, where it is permitted, is to determine if their are weapons.  If the police feel what they believe is a weapon a more intrusive search will be permitted.   
Third, and most importantly, the suggestion that the police are not permitted to "search you or your belongings" seems to be in error.  In R v Plummer, 2011 ONCA 350, for example, the Ontario Court of Appeal commented on the search of Plummer, while under investigative detention, and a bag in the car in which he was seated.  In finding that both were permissible the court noted the following:
there is nothing in Mann confining a search incidental to an investigative detention to only the person detained... 
If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity [paras 53 and 58]; [emphasis added].
A similar outcome was reached in R v Peters, 2007 ABCA 181 where the Alberta Court of Appeal found that the search of the accused's backpack by an officer was a justifiable search incident to investigative detention. 
Mr Friedman's advice to the reader of his column that the police are not permitted to search "you or your belongings" may lead some to resist such efforts by the police.  Based on Plummer and Peters, such resistance would be ill-advised and potentially criminal.
Second, the suggestion that "the longer the detention, the more likely it is that you are constitutionally entitled to consult a lawyer and seek legal advice" is ambiguous and not entirely accurate.  In R v Suberu, 2009 SCC 33 the Supreme Court reviewed the right to counsel (section 10(b) of the Charter) and its application in the context of investigative detention.  The majority offered the following:
Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention [para 42]; [emphasis added].
The length of the detention is not determinative.  According to Suberu, if there is an investigative detention then officers are obliged, subject to safety concerns, to immediately inform and implement rights to counsel.
Educating the public about their fundamental legal rights is a laudable pursuit.  Perahps, however, this pursuit must be undertaken with caution and a warning: the law is not static, it is fact specific and sometimes, it is not settled. 
Knowledge can be power so long as it is fully informed knowledge.
DG Mack

News: The Ever Changing Face of the Supreme Court

Prime Minister Stephen Harper announced this week the appointment of Mr Justice Michael J Moldaver and Madam Justice Andromache Karakatsanis to the Supreme Court of Canada.  In doing so he offered the following praise of the new appointees:
Justice Moldaver and Justice Karakatsanis are both highly intelligent, greatly experienced and eminently qualified for their new roles as Supreme Court justices...I have every confidence both justices will serve all Canadians faithfully and with distinction.
These appointments also mark the loss of Madam Justice Louise Charron and Mr Justice Ian Binnie. 
Any change to the Supreme Court is a significant one, but this change is particularly notable as it marks the loss of one criminal law luminary and the gain of another. 
The Loss:
Justice Charron has been a powerful force on the Court for the last several years.  She has authored some of the most significant decisions of the past decade and drafted reasons that will be cited for decades to come.  Her writing style is clear and her legal analysis is second to none.  A short list of some of the most notable decisions make the point: R v Nixon, 2011 SCC 34; R v Sinclair, 2010 SCC 35; R v Pickton, 2010 SCC 32; R v Suberu, 2009 SCC 33 (see my article on Suberu: A Death on the Way to Rome); R v Grant, 2009 SCC 32; and R v Dinardo, 2008 SCC 24.
The Gain:
Justice Moldaver has similarly been a powerful force at the Ontario Court of Appeal.  His decisions are legally sound and logical and he is certain not afraid to disagree with his colleagues and stand by his decisions.  A shot list of some of his recent rulings illustrate this point: R v Woodward, 2011 ONCA 610 (see my Bulletin comment on this case in MCLB Issue 8: Sentencing: Internet Luring); R v Sarrazin, 2010 ONCA 577 (in which he wrote a brilliant dissent, now being considered by the Supreme Court; see my Bulletin comment on Sarrazin Issue 1: The Curative Proviso); R v Phillion, 2009 ONCA 202; and Re Truscott, 2007 ONCA 575 [Moldaver J was part of the panel for the per curiam decision].
DG Mack

News: Interesting and Unique Read at Criminal Justice Blog

I recently did a lecture on wrongful convictions in the context of forensic sciences.  Coincidentally, I was just referred to another blog that has a list of "10 Infamous Inmates Who Were Wrongly Convicted".  I checked out the site and there are a few other very interesting blogs too.  Most recently there is one on "10 Teachers Who Turned Into Infamous Criminals"; check out the story on Albert Fentress, #2 on the list. 
Check out other posts including "10 Incredible Facts About the Criminal Brain" and the lighter post on "How to Survive Prison".  I have included a link to the blog post in my links page: "Criminal Justice Degrees Guide Blog".

DG Mack