As 2019 comes to a close, it’s time to reflect on the last decade and the changing landscape of criminal law in Canada. The Supreme Court has released decisions on a wide range of topics, but here are some of my picks (with some help from Twitter law nerds, of course), of the most important Supreme Court cases of the last decade.
The 2010’s involved large development in how Canadians use technologies. This changing understanding of our relationship to online information and the privacy associated informed a different analysis as to the reasonable expectation of privacy. In R v. Spencer, the Supreme Court dealt with a situation where, in a child pornography investigation, the police had received an individual’s IP address without getting a warrant to do so. The Court examined the informational privacy attached to the search, and the associated anonymity that an individual expects in using the Internet. The Court ultimately found that there was a reasonable expectation of privacy in the subscriber information. This case, along with decisions such as R v. Fearon and R v. Marakah, show the evolving understanding of searches in a digital age.
The past decade saw a number of mandatory minimum sentences struck down, including R v. Nur. This case considered the constitutionality of the three and five year mandatory minimums for possessing a prohibited or restricted firearm with ammunition (s. 95). The Court found given the wide range of potential conduct covered by the section, that the minimum sentence could be disproportionate in some reasonably foreseeable cases. The court emphasized the highly individualized process of sentencing, and the importance of proportionality. Since Nur, many mandatory minimums have been struck down by lower courts, as well as the Supreme Court. (Also struck down were the elimination of enhanced credit in pre-sentence custody in R v. Safarzadeh-Markhali and the mandatory victim fine surcharge in R v. Boudreault.)
In perhaps the most famous case of the 2010’s, R v. Jordan created a new framework for how our courts deal with delay. The case created a presumptive ceiling beyond which any delay was presumed to be unreasonable, and chastised the lower courts for a culture of complacency with respect to delay. The new ceilings of 18 and 30 months were somewhat arbitrarily chosen by the court, and now have a huge impact on how lower courts must manage their own trial coordination. And while the decision called for broader structural and procedural changes to ensure speedier trials, it is yet to be seen in lower courts.
While these three cases made headlines and dealt with broader themes over the past decade, there are a number of less exciting cases that are nonetheless important. So, I’ve included two of my own favourite significant but not flashy cases as well.
Wood v. Schaeffer is about the police’s obligation to take notes under the Police Services Act following an SIU investigation. The case goes through the obligation of a police officer to take notes that are accurate, detailed and comprehensive, and provides an excellent starting point for the cross-examination of police officers when it comes to what is recorded in their notes.
R v. Anthony-Cook sets out the procedure when a sentencing judge has a concern with respect to a joint position on sentence. The case lays out a framework that allows the judge to get more insight into the reasons behind the joint submission, also allowing them to excuse themselves or allow the accused to withdraw their plea. While not particularly exciting, the case is important to the routine functioning of plea courts where joint submissions help to provide certainty to accused persons and encourage appropriate resolutions.
Thank you for following along with the blog over the last half of this decade! Looking forward to seeing what new cases come in 2020 and beyond.