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62001.03Section 10(b) of the Canadian Charter of Rights and Freedoms states that everyone has a right on arrest or detention to retain and instruct counsel without delay. This paper examines the triggering of a s 10(b) right to counsel, particularly where detentions are concerned. The author provides numerous references to case law throughout the paper, and includes a discussion on advising a detainee of his or her rights and the implementation of those rights, as well as reasons for suspending the s 10(b) right. The paper also includes a discussion of recent developments in case law in respect of s 10(b). This paper is part of a collection presented at LESA’s Criminal Law 25 program held in Calgary on June 3, 2016 and in Edmonton on June 10, 2016.
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62001.01This paper addresses the question: when is a warrantless search lawful? The first part of the paper sets out the essential steps in analysing warrantless searches. The second part describes some of the most common types of warrantless searches, including searches authorized by statute and common law, and identifies criteria that must be met if such searches are to be constitutionally compliant. This paper is part of a collection presented at LESA’s Criminal Law 25 program held in Calgary on June 3, 2016 and in Edmonton on June 10, 2016.
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62001.04Out of court statements made by an accused, when properly admitted, can be valuable pieces of evidence in reaching a proper verdict. Different rules govern the admissibility of such statements, depending on who is seeking to introduce the statement, the purpose of its introduction, and the circumstances surrounding the statement. This paper discusses the admissibility of an accused’s out of court statements in a criminal trial, including a review of the leading cases on the subject. Topics addressed include: exculpatory statements, inculpatory statements made to a civilian, the common law confessions rule, charter-based exclusionary rules, compelled statements, questioning of a young person, and editing the statement. This paper is part of a collection presented at LESA’s Criminal Law 25 program held in Calgary on June 3, 2016 and in Edmonton on June 10, 2016.
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62001.02
Recently, there has been a call for renewed vigiliance in exercising the gatekeeper role with respect tto the admission of expert evidence This paper discusses the jury control principle and sets out and describes the Mohan criteria for admissibility of expert evidence: relevance, necessity, not subject to an exclusionary rule, and given by a properly qualified expert.
This paper is part of a collection presented at LESA’s Criminal Law 25 program held in Calgary on June 3, 2016 and in Edmonton on June 10, 2016.
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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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61922.08According to the author, the purpose of this paper is to provide litigators with a solid foundation of the principles and concepts related to implied undertakings in criminal and civil litigation, to help counsel identify the scope of those undertakings, and lastly, to provide practical guidance on how to properly uphold or seek to set aside an implied undertaking when the information from one litigation may be relevant to another proceeding. This paper was presented as part of LESA’s Evidence Law Refresher in November and December 2014.
