Author: Sara Hanson

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Disclosing the Truth of Jury Selection in R v Davey

Trial by jury is a fundamental aspect of the criminal justice system and a protected right under section 11(f) of the Canadian Charter of Rights and Freedoms for crimes carrying a maximum punishment of five years or more. In a jury trial, the jury acts as the finder of fact and is required to weigh the evidence to determine whether the Crown has met its persuasive burden of proving each element of the offence. That is, whether it has met the threshold of proof beyond reasonable doubt. While the judge decides on the admissibility of evidence and provides instructions to...

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R v Nedelcu: The Right Against Self-Incrimination and the Return to the Unworkable Distinction

Protection against self-incrimination is one of the fundamental principles of the criminal justice system. You are probably familiar with the phrase, “pleading the fifth,” which refers to the Fifth Amendment in the American Constitution and provides testimonial immunity for an accused individual. There is no equivalent to the Fifth Amendment in Canada; however, a witness who is compelled to testify is protected under s. 13 of the Charter from having any incriminating statements “used to incriminate that witness in any other proceedings.” R v Henry, [2005] 3 SCR 609 [Henry], acknowledged that the history of this right is linked to “the...

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Intercepting Text Messages in R v Doroslovac: An Unreasonable Search or Seizure?

Does an authorization to intercept an individual’s private communications include the ability to intercept text messages? The Ontario Court of Appeal recently considered this question in the case of R v Doroslovac, 2012 ONCA 680 [Doroslovac], which arose from an authorization to intercept the telephone calls of Doroslovac’s acquaintance, Ilic. After intercepting several text messages between the two men, the police arrested them for possession of cocaine for the purposes of trafficking. The interception of private communications is considered to be a search or seizure. As a result, this matter is governed by s. 8 of the Charter, which protects individuals...

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Hedges v Obama Part II: Freedom of Speech in the Age of Terror

The concept of freedom is one of the most perplexing issues that modern courts are forced to grapple with. Freedom is the glue that holds liberal democracies together; yet, in the age of terror, restrictions on freedom have become more commonplace as a means to preserve that very concept. The idea that we, as a society, choose to renounce an element of our freedom in order to remain free reflects the philosopher Thomas Hobbe’s theory of social contract. In a Hobbesian world, our freedom is exchanged for the protection of a sovereign that protects humanity from returning to its natural...

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Hedges v Obama Part I: Comparing the American and Canadian Approaches to Standing

In the years following the September 11, 2001 terrorist attacks, both Canada and the United States have passed sweeping legislative changes in the name of national security. In Canada, such changes appeared in the form of the Anti Terrorism Act, which amended the Criminal Code to include a definition of “terrorist activity” and broadened the investigative powers of the police. While the changes to Canadian legislation have been significant, the broadening of police powers in the United States is far more concerning. It is difficult to deny that the expanding power of the police to conduct surveillance of its own...

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Moving Towards a More Just Society: Applying a Purposive & Flexible Approach to the Test for Public Interest Standing in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society

I arrived at law school with a slightly naïve and romantic notion of justice. I was determined to learn how the law could be used to achieve social justice, empower individuals from marginalized groups and move us closer to a collective vision of the good. However, within a few weeks, I quickly learned that there is no such thing as universal justice. Rather, the legal system is a forum for choosing among competing visions of justice, which are dependent upon who has access to the system in the first place. Instead of reading about systemic change, I was forced to...

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Tweeting the Evidence in R v Sonne

The trial of Byron Sonne is an intriguing case that has baffled the media since he was arrested aboard a bus in the lead up to the Toronto G20 summit in June 2010. Following his arrest, Mr. Sonne was detained and questioned for 14 hours. He was denied the opportunity to speak with a lawyer until nearly 12 hours after his arrest, and then charged with six offences, including possession of a weapon and an explosive substance, mischief and intimidating the police. While the verdict in Mr. Sonne’s trial has yet to be decided (according to his supporters’ website, a decision will...

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Delineating the Charter’s Scope in Pridgen v University of Calgary

Section 32 of the Canadian Charter of Rights and Freedoms limits the Charter’s application to the activities of the Federal government and Parliament, and the government’s of each province. While the purpose of this provision is to clearly limit the scope of the Charter’s application, as in many areas of law, what initially appears to be clear is a matter left open to judicial interpretation. The question as to whether the Charter applies to a university was considered in Pridgen v University of Calgary, 2010 ABQB 644 [Pridgen], which was heard at the Alberta Court of Appeal in late 2011. The case...

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Interpreting the Message in Reference re Broadcasting Act

In a recent reference, the Supreme Court of Canada confirmed that when Internet Service Providers (ISPs) provide consumers with access to “broadcasting” programs through the Internet, they do not carry on “broadcasting undertakings” and are thus not subject to the Broadcasting Act (the “Act”). The Reference re Broadcasting Act, 2012 SCC 4, came about in 2008 when the Canadian Radio-television and Telecommunications Commission (CRTC) was reviewing a policy decision from 1999 that had exempted all “new media broadcasting undertakings” from Part II of the Broadcasting Act. Cultural groups that had proposed a levy on ISPs to fund the creation and...