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61990.01The use of expert opinion evidence is increasing in Canadian criminal trials, and along with it is a growing judicial disquiet regarding the impact of such evidence on the fact-finding function within the trial process. This paper, intended as an introduction to the subject matter, consists of two parts: the first part reviews the admissibility requirements for expert opinion evidence generally; the second part focuses on practical considerations for counsel arising from the revised two-part test for admissibility endorsed by the Supreme Court of Canada in White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, [2015] 2 SCR 182. The author also provides a comparative analysis to the treatment of expert evidence in the United States throughout the paper. This paper is part of a collection presented at LESA’s Criminal Advocacy – Experts program held in Calgary on May 14, 2016 and in Edmonton on May 28, 2016.
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61986.05Today, personal information is no longer kept safely hidden away in our desks and filing cabinets. Instead, in large part due to the near-ubiquity of computers and the Internet, it seems that personal information is created by almost everything and is stored almost everywhere. This paper addresses two topics related to informational privacy concerns. First, law enforcement access to third party information using Criminal Code production orders is discussed. Within this context, R v Fedossenko, 2014 ABCA 314, is used as a case study into production orders, illustrating some of the legal and constitutional issues raised by law enforcement access to third party information. Second, the new “lawful access” provisions of the Protecting Canadians from Online Crime Act, SC 2014, c 31, are summarized and discussed.This paper is part of a collection presented at LESA’s Search Warrants program in Edmonton on February 19, 2016 and in Calgary on February 26, 2016.
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61986.04This paper addresses a number of developing issues in search warrant challenges, and explores how traditional search and seizure concepts have adapted (or not) to deal with emergent social issues, with a particular emphasis on establishing a reasonable expectation of privacy and the need for a flexible approach to respond to changing social norms. Establishing a reasonable expectation of privacy to challenge any state intrusion is discussed, with practical advice for building the evidentiary foundation. As well, police reliance on illegally obtained evidence and the principles of excision and exclusion are considered. Finally, reasonable expectations of privacy in public and common areas are discussed in the context emerging and relevant judicial decisions.This paper is part of a collection presented at LESA’s Search Warrants program in Edmonton on February 19, 2016 and in Calgary on February 26, 2016.
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61986.03This paper provides an outline of the most significant privacy-related aspects in the Supreme Court of Canada decision, R v Vu, 2013 SCC 60, which expanded the notion of “privacy” with respect to computer devices and digital contents. In addition, subsequent decisions in the realm of computer privacy are identified and discussed. This paper also highlights, from a more practical perspective, some of the challenges faced by legal counsel dealing with these evolving technological issues within a criminal trial, including a brief discussion on the duty of searching officers to take detailed notes during personal computer device searches.This paper is part of a collection presented at LESA's Search Warrants program in Edmonton on February 19 2016 and in Calgary on February 26, 2016.
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61986.02This paper discusses delays in access to counsel, contrary to the s 10 Charter right to timely contact with a lawyer, during the search warrant process. The boundaries of the “exceptional circumstances” justifying delayed access to counsel are reviewed in consideration of the case law, which include the prevention of imminent harm to police or public, preservation against imminent loss of evidence, and real and present danger of jeopardizing an ongoing investigation. In addition, detailed tables summarizing case law relevant to each exceptional circumstance are included in the appendices.This paper is part of a collection presented at LESA’s Search Warrants program in Edmonton on February 19, 2016 and in Calgary on February 26, 2016.
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61986.01After a search warrant is granted, an accused may bring an application before the court for judicial review to determine whether or not the search warrant should have been issued. This type of judicial review, commonly referred to as a Garofoli hearing, is explained in detail in this paper, which discusses how the courts have approached the various procedural aspects of a Garofoli hearing. A brief background on the standard of review and types of review (e.g., whether the warrant’s facial validity or sub-facial validity is challenged) is provided, and principles and procedures related to cross-examination, excision, and amplification are discussed. This paper also considers issues relevant to assessing the affiant’s evidence, as well as the process for dealing with a heavily redacted affidavit. In addition, an alternative to the Garofoli hearing to set aside a search warrant is briefly highlighted.This paper is part of a collection presented at LESA’s Search Warrants program in Edmonton on February 19, 2016 and in Calgary on February 26, 2016.
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61944.01Sentencing is a unique and important process for the criminal law practitioner. Ensuring offenders receive a fit sentence relies heavily on the efforts of both Crown and defence counsel. These materials, prepared by counsel with Alberta Justice and the Solicitor General, delve into the issues surrounding sentencing, broken down into three parts: an overview of the purpose, principles and objectives of sentencing under the Criminal Code and other relevant legislation; a look at the interplay between judicial discretion and appellate guidance in the sentencing process; and the sentencing process itself. Attached are valuable checklists, samples and precedents.These materials were presented at LESA’s Criminal Advocacy – Summary Disposition and Sentencing Hearings program in May, 2015.
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61908.00These materials provide valuable, detailed pointers for the criminal defence lawyer on getting to trial, including strategies for using a systematic focus to improve case analysis, issue identification, and responding to the issues. The authors provide detailed, practical suggestions on many aspects of a criminal defence file including: analysis of the Crown’s case; reviewing the information/indictment; considering legal elements; dealing with co-accuseds; disclosure and production; elections; challenging the case to be made by the Crown; pre-trial preparations, including procedural considerations; jury versus non-jury trials; admissions; scheduling; preparing an opening address or summary; pretrial hearings; and running the trial itself, including details relating to issues of evidence. The role played by the bench on the way to trial is also discussed, outlining the relevant QB rules and forms and providing details on scheduling and holding pre-trial conferences and accessing case management. This paper was presented at the Criminal Advocacy – Trial Strategy program in April, 2014.
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61893.01The authors see bail as, in many ways, an art, requiring not only an understanding of the rationale of the law of bail but also an ability to creatively prepare an approach in a strategic way, with a reasonable result in mind. This paper focuses on helping lawyers conceptualize an overall approach to judicial interim release on their files. The attached “toolkit” provides standardized forms, precedents, and checklists to make analysis of judicial interim release issues more effective, and to help maximize the efficient use of time while concurrently reducing or eliminating unnecessary use of court time. This paper was presented at the Criminal Advocacy – Judicial Interim Release program in October 2013.
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61870.03After providing a brief outline of the science of forensic DNA typing, this paper goes on to discuss DNA interpretation, population databases, identification of bodily fluids, disclosure requests (relating to DNA), contamination, and unknown DNA profiles in human remains. This paper was presented at the Blood, Sweat, and Tears Seminar in March 2013. This document is an electronic product in Adobe PDF format. Shortly after your purchase, you will receive an e-mail with instructions on how to download the complete PDF. Click here to view some sample pages.
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61870.02This paper provides a brief overview of the relevant statutory provisions, together with some useful case references to provide practitioners with guidance when litigating blood sample cases. The paper discusses section 256 of the Criminal Code (“Warrant to Obtain Blood Sample”) to provide a useful backdrop against which the second 264 (3) demand and hospital seizures can be viewed. This paper was presented at the Blood, Sweat, and Tears Seminar in March 2013. This document is an electronic product in Adobe PDF format. Shortly after your purchase, you will receive an e-mail with instructions on how to download the complete PDF. Click here to view some sample pages.
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61849.04bThis paper examines section 12 of the Charter and its three conflicting elements: first, the long-standing judicial approach requires courts to assess both the actual impact of a sentence on a person before the court, and the potential for that same sentence to impose cruel and unusual punishment on an offender; second, the Conservative government’s policies have enacted minimum mandatory sentences for a wide variety of offenses; and third, a recent decision of the Supreme Court extinguishing the possibility of using the controversial constitutional exemption remedy as a “safety valve” for legislation of this type. The author outlines the nature of the conflict that has emerged and provides analysis of the various approaches that are developing, before concluding with suggestions for mediation for defence counsel. This paper was presented at the Constitutional Law Symposium in September 2012.
