Cell phones have become an ever present reality of life, as we constantly carry around devices containing a signficant amounts of personal data. The information on these devices can often be used as part of police investigations. For example, we often see police using cell phone tower data to triangulate a person's location based on their phone. Text messages have become an increasingly common piece of evidence in trials, which leads to the question: can the police search my phone?
The federal government announced two pieces of legislation around the legalization of marijuana. The proposed Cannabis Bill would allow for the possession of small amounts of marijuana for personal use, while downloading the sale and regulation of the drug to the provinces. The Liberals also introduced a bill about Impaired Driving, which deals not only with impairment but also of alcohol, and has raised questions as to whether the changes would survive a constitutional challenge. (See also BC lawyer Sarah Leamon's thoughts on Power and Politics. The bills have raised some important discussions about the criminalization of racialized communities and the prospect of amnesty for past convictions.
As March roared both in and out like a lion, the world of criminal law in Canada saw some important legislative changes and Supreme Court decisions, among other news-worthy cases.
For those with even a passing interest in the news or the criminal justice system, it would seem that the Canadian courts are now overrun with problematic sexual assault cases and judges. We recently saw Robin Camp resign as a federal court judge, after infamously asking why a complainant failed to 'keep her knees' together. A case in Halifax has the public outraged as a judge asserted that even drunks can consent. As public confidence in our court system seems to be shaken, the federal government has cast its gaze on judicial education as a response.
This past weekend, the Criminal Lawyer's Association hosted a conference in Toronto for women defence counsel. The well-attended event provided female defence lawyers, and some students, lots of practical tips and food for thought of our role in the criminal justice system. The conference, now in its third year, grew out of a need for a space for female defence lawyers to talk about specific issues that affect women in private practice. In 2016, the CLA released a report with respect to the Retention of Women in Private Practice, which illustrated the various challenges facing women defence lawyers, from the financial logistics of taking time off to have a child, to the gendered difference of treatment by those in the court system. The conference was one way for defence lawyers to connect and talk about these challenges, while providing space for women to share and celebrate some of their successes.
espite the overwhelming barrage of news coming from the U.S., there have been plenty of important cases and stories in criminal law here in Canada.
Toronto citizen Waseed Khan filmed the arrest and tasing of a man by the Toronto Police and was told by police that they would seize his phone and that he was going to get HIV from the arrestee spitting in his face. Mr. Khan has filed a complaint with the Ontario Independent Police Review Director to investigate the officer's behaviour. The case has also raised questions of a citizen's right to film police (spoiler: as long as you aren't inferring, you're permitted) and maybe, as argued by Shantal Otchere, it's your civic duty.
It has now been just over six months since one of the most important cases of 2016, R v. Jordan, was released. In it, the Supreme Court of Canada established a presumptive ceiling of 18 months delay in getting a case to trial at the provincial court level. If a case takes longer, then the Crown must prove that the delay is not unreasonable given the circumstances of the case. Otherwise, an accused person's right to a trial in a reasonable time under s. 11(b) are breached, and the case should be stayed.
As more s. 11(b) applications are making their way through the system, we are starting to get a better sense of how lower courts judges are interpreting and applying the case. And so far, some cases have resulted in stays of proceedings. Of course, defence lawyers are only cautiously optimistic about this, knowing that many of these decisions are being appealed and that successes at lower levels of court still stand to be overturned.
As the final hours of 2016 tick away, I am delighted to announce that McElroy Law blog received a 'Clawbie' Canadian Law Blog Award for Best Practitioner Blog. Thanks to everyone who read, shared and provided feedback over the last year. Looking forward to 2017!