2011 year in review: constitutional developments in Canadian criminal law.

Author:Gibson, Marc
 
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  1. INTRODUCTION II. PROCEDURAL RIGHTS i. An extradition judge may stay proceedings due to conduct of the requesting state that does not affect the fairness of the committal hearing ii. Protections against self-incrimination do not apply to evidence that may be used to impeach credibility but not to prove guilt III. PRIVACY RIGHTS AND POLICE POWERS i. Expectations of digital privacy in child pornography cases ii. Limitations on searches that are incidental to other law enforcement duties IV. MINORITY RIGHTS i. First Nations underrepresentation on jury rolls contravenes the Charter ii. The Youth Criminal Justice Act does not create special constitutional guarantees for young persons iii. Freedom of religion does not justify unreasonable harm to children iv. Immigration consequences are relevant to criminal sentencing if the accused has legal status in Canada V. APPENDIX: 2011 SIGNIFICANT CASES I. INTRODUCTION

    In 2011, the Year in Review editors of the University of Toronto Faculty of Law Review read every decision from the Canadian appellate courts, excluding Quebec. The goal of the Year in Review project is to identify cases that are not only important for the parties involved, but also advance or refine the law in a significant way. It is perhaps unsurprising that in an era where relatively few civil cases proceed all the way to judgment at trial, criminal law was the one subject on which the most significant decisions were made in 2011. In the two years since then, those criminal cases have also received the most subsequent judicial consideration.

    This article builds on the Year in Review project to examine developments in criminal and quasi-criminal law that followed from 2011 appellate court decisions. In particular, we focus on cases that engaged constitutional interests and provided a new interpretation of fundamental rights. Some of the most important popular debates in Canadian society were mirrored by battles that took place in criminal and quasi-criminal court. In this article, we review the most significant legal developments from 2011 appellate cases and follow up on those that have since received further consideration at the appellate level or the Supreme Court of Canada.

    For example, a decade after the September 11, 2001 terrorist attacks, the Ontario Court of Appeal considered an extradition case arising out of the American "War on Terror." It set an expansive precedent regarding the residual branch of the abuse of process doctrine, upholding a stay of proceedings because of human rights abuses that the United States committed against the respondent in Pakistan. In 2011, the Ontario Court of Appeal also took a broad interpretation of the protection against self-incrimination, only to be reversed by the Supreme Court of Canada. In section II of this article, we review these significant procedural decisions.

    Another issue the courts considered through the lens of criminal law is the extent to which the modern state can intrude on the privacy of its citizens. In the first part of section III, we review three child pornography cases that interpreted police obligations when searching digital information held by third parties. The courts found that a reasonable expectation of privacy may exist in such information, but that it is a limited expectation. Both the Saskatchewan Court of Appeal and Supreme Court of Canada set precedents for admitting evidence where the police acted reasonably to obtain it. In the second part of section III, we review three cases that found appellate courts more defensive of privacy rights in the context of incidental police searches. These cases limited police powers in principle, although the Supreme Court of Canada again demonstrated an inclination to admit improperly obtained evidence where the police acted in good faith.

    Finally, in section IV of this article we review several cases where the appellate courts considered the rights of minority groups, including First Nations, children, and immigrants, under criminal law. In one major development, the Ontario Court of Appeal considered the right to a representative jury. It held that coroners have the jurisdiction and the duty to inquire into the representativeness of jury rolls at an inquest, and that First Nations underrepresentation is a significant constitutional violation. These 2011 findings triggered a scathing independent report by the Honourable Frank Iacobucci and led the Ontario Court of Appeal to overturn a homicide conviction. On the topic of children's rights, two cases rejected the notion of special constitutional guarantees for young persons. A third case was more protective, denying a criminal defence that would have seen children's rights subsumed by a parent's freedom of religion. Meanwhile, certain immigrants were given special status in the context of criminal sentencing. Two cases held that immigration consequences are a vital consideration in determining a fit sentence, although a third decision distinguished the case of an accused with no legal status in Canada and thus no rights for a judge to consider.

    This article concludes with an appendix of all the significant cases analyzed by our editors in 2011.

  2. PROCEDURAL RIGHTS

    i. An extradition judge may stay proceedings due to conduct of the requesting state that does not affect the fairness of the committal hearing

    In United States of America v Khadr, (1) the Ontario Court of Appeal held that a judge has residual discretion to stay extradition proceedings where the requesting state contributed to violations of the respondent's human rights. (2) The Court held that judges retain that discretion even if the violations occurred in a third country, prior to the extradition proceedings, and did not directly affect the fairness of the hearing. (3) Writing for the Court, Sharpe JA held that the determination requires only a nexus between the state's misconduct and the committal hearing, rather than a direct relationship. (4)

    The proceedings began when the United States of America sought to have a Canadian citizen extradited on terrorism charges after he was repatriated from detention in Pakistan. (5) In the Ontario Superior Court of Justice, Speyer J granted a stay of proceedings after finding that the United States collaborated in the respondent's extended detention and that the respondent suffered "shocking and unjustifiable" human rights violations while detained. (6)

    On appeal by the United States, Sharpe JA rejected the argument that section 44(1)(a) of the Extradition Act (7) deprives a court of its power to stay proceedings for abuse of process. (8) Although Canadian Charter of Rights and Freedoms ("Charter") (9) issues generally fall within the jurisdiction of the Minister at the committal stage of extradition proceedings, Sharpe JA held that a court retains the common law power to protect its own integrity. (10) He also disagreed with a narrow interpretation of the Supreme Court of Canada decision in United States of America v Cobb. (11) Sharpe JA found that under the residual branch of the abuse of process doctrine, there is no requirement that the requesting state's misconduct affect the fairness of the actual extradition process. (12) Finding that there was a nexus between the American government's role in the respondent's detention and the committal hearing, Sharpe JA dismissed the appeal. (13)

    ii. Protections against self-incrimination do not apply to evidence that may be used to impeach credibility but not to prove guilt

    In R v Nedelcu, (14) the Ontario Court of Appeal considered the scope of the legal protections against self-incrimination. In a decision that the Supreme Court of Canada subsequently reversed, Armstrong JA held that both section 13 of the Charter and section 5(2) of the Canada Evidence Act (15) prohibit using evidence given by an individual in civil court to impeach that person's credibility during cross-examination at a criminal trial. (16) In its reversal of the Ontario Court of Appeal's decision, the Supreme Court of Canada clarified that the protection from self-incrimination is not directed against "any" evidence, but rather only to "incriminating" evidence. (17)

    The issue arose after the defendant in a civil action indicated that he had no memory of a motorcycle accident that caused serious injury to a coworker. (18) The defendant then gave detailed testimony about the accident at the subsequent criminal trial. (19) The trial judge admitted that evidence for the purpose of impeaching credibility and the defendant was convicted of dangerous driving causing bodily harm. (20) On appeal, Armstrong JA overturned the trial decision based on the Supreme Court of Canada ruling in R v Henry (21) that prior compelled testimony was inadmissible against the accused in further proceedings, even for the limited purpose of challenging credibility. (22) However, the Supreme Court of Canada restored the conviction, finding that the protection from self-incrimination only applies to evidence that could be used to prove guilt. (23) Prior testimony that could be used to impeach credibility but not to independently prove guilt does not meet this condition. (24)

  3. PRIVACY RIGHTS AND POLICE POWERS

    i. Expectations of digital privacy in child pornography cases

    Canada's appellate courts had multiple occasions in 2011 to consider the degree to which privacy rights at common law and under section 8 the Charter place limitations upon police powers of search and seizure. Three child pornography cases in particular have broad implications in the information age. In Ontario, the Ontario Court of Appeal considered an employee's reasonable expectation of privacy in relation to computer files, while the Saskatchewan Court of Appeal considered privacy rights in information held by internet service providers.

    R v Cole (25) was a major development in the area of workplace privacy. The Ontario Court of Appeal held that employees have a...

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