Revisiting “Mr. Big” Confessions: R v Mack 

In R v Hart, 2014 SCC 52 [Hart], the Supreme Court of Canada (“SCC”) set out a new framework for the admissibility of confessions elicited during “Mr. Big” operations. (I wrote about the decision in a previous post.) In this post, I will look at the companion decision in R v Mack, 2014 SCC 58 [Mack], which provides another opportunity to consider this evolving area of the law.

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[filed: Criminal Law Criminal Procedure Evidence Law]

X(Re): A Check on CSIS Powers or a Roadmap for Expanding Them?

On July 31, 2014, the Federal Court of Appeal (“FCA”) released its judgment in X(Re), 2014 FCA 249, largely upholding a Federal Court finding that limited the scope of powers that may be exercised by the Canadian Security Intelligence Service (“CSIS”) while carrying out surveillance of Canadians abroad. The matter arose after the Federal Court became aware that CSIS had used surveillance warrants as grounds for working with foreign intelligence agencies to intercept the communications of Canadians in foreign nations. Both the Federal Court and the FCA found that CSIS failed to be candid in obtaining these surveillance warrants and undertook illegal surveillance.

While the decision declares current limits on the powers of CSIS in undertaking foreign surveillance, the FCA’s explanation of the law in this area may now serve as a means for expanding those powers. Following recent attacks on soldiers in Ottawa and St-Jean, Quebec, the Federal Government has proposed new legislation to give greater surveillance powers to CSIS. The proposed legislation applies the logic set out by the FCA in X(Re) in order to provide basis for permitting surveillance warrants of precisely the type that the FCA rejected in its decision.

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[filed: International Law Privacy]

7UP for Your Rights: Thibodeau v Air Canada

In what has been dubbed “the 7UP case,” a majority of the Supreme Court of Canada (“SCC”) has ruled in Thibodeau v Air Canada, 2014 SCC 67, that Michel and Lynda Thibodeau are not entitled to a damage award that would have required Air Canada to take steps to ensure compliance with the Official Languages Act, RSC 1985, c 31 (4th Supp). (NB: Although I admit the name of the case did influence my decision to write on it, I have no known relation to these Thibodeaus; the name “Thibodeau” is as common as “Smith” in some places.)

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[filed: Constitutional Law International Law Official Languages Statutory Interpretation]

Judge Raises Questions About the Neutrality of Expert Witnesses: Moore v Getahun

A recent Ontario Superior Court ruling has the potential to have a serious impact on evidence law. The medical malpractice suit has sparked conversations among lawyers throughout Ontario and across Canada and has prompted civil litigators to ask what meets the test of allowable communication with their expert witnesses.

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[filed: Civil Procedure Torts]

Matheson v Lewis: Farm ATVs Require Insurance

The recent Ontario Court of Appeal (“ONCA”) decision in Matheson v Lewis, 2014 ONCA 542 [Matheson], held that an unmodified all-terrain vehicle (“ATV”) owned by a farmer and used in farm operations does not fall within the Highway Traffic Act, RSO 1990, c H.8 (“HTA”) exception for “self-propelled implement of husbandry”, and must be insured while on a public roadway. In doing so, the ONCA creates narrow and somewhat unrealistic restrictions on the definition of farm vehicles.

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[filed: Agricultural Law Insurance]

Similar Fact Evidence and Unknown Third Party Suspects: Her Majesty the Queen v Mark Edward Grant

On November 14, 2014, the Supreme Court of Canada (“SCC”) will hold a hearing for the appeal of Her Majesty the Queen v Mark Edward Grant [Grant]. The main issues the SCC will address are what the test should be for admitting evidence relating to a third party suspect that is unknown and what the appropriate threshold is for admitting similar fact evidence put forward by the accused.

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[filed: Criminal Law]

Supreme Court Affirms Protection for Private Records: R v Quesnelle

This summer in R v Quesnelle, 2014 SCC 46, the Supreme Court of Canada held that police occurrence reports that relate to complainants or witnesses in sexual offence cases, and that are not directly related to charges an accused is facing, are subject to the Mills regime. As such, these records may only be released if they are “likely relevant” and disclosure is in the “interests of justice.”

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[filed: Criminal Law]

R v Conception: The Last Word Between Courts and Hospitals for Unfit Accused

Part XX.1 of Canada’s Criminal Code, RSC 1985, c C-46 [the Code], fundamentally altered the way a criminally accused person with a mental illness engages with the criminal justice system. This comprehensive new structure was a response to cases like R v Swain, 1991 1 SCR 933, in which Parliament recognized the need for a new statutory regime sensitive to the legal interests of the mentally ill accused and the safety of the public.

R v Conception, 2014 SCC 60 [Conception] brings one portion of Part XX.1 into sharp focus. When an accused is found unfit to stand trial because of mental illness (UST), Part XX.1 includes provisions for procedures designed to render the accused fit for trial. Among those provisions are sections 672.58 and 672.62(1) of the Code. The former allows a court to make a “treatment disposition”—an order that an accused undergo psychiatric treatment, with or without her consent, for a period less than 60 days. The latter section, 672.62(1), adds a caveat to the former: no treatment disposition can be made without the consent of the person in charge of the designated hospital or the person who is assigned responsibility for the accused’s treatment.

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[filed: Charter Constitutional Law Criminal Law]

Assessing Mens Rea in Cases of Child Abandonment: R v ADH

In R v ADH, [2013] 2 SCR 269, the Supreme Court of Canada (“SCC”) articulated its position on the requisite fault element for the offence of child abandonment. While the SCC unanimously held that the accused in the case should be acquitted, it was split (5:2) on whether mens rea should be assessed subjectively or objectively.

The majority determined that a subjective standard is applicable. In what follows, I will focus on several salient points of dissent, in the hopes of offering insight into judicial reasoning around the issue of mens rea as it applies to child abandonment.

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[filed: Criminal Law]

Confidentiality and the Ontario Sex Offender Registry: CSCS v IPC

In Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner), 2014 SCC 31 [CSCS v IPC], the Supreme Court of Canada (“SCC”) was asked to interpret the interaction between the Freedom of Information and Protection of Privacy Act, RSO 1990, c F31 [FIPPA] and Christopher’s Law (Sex Offender Registry), 2000, SO 2000, c 1 [Christopher’s Law]. This post will discuss two issues from the decision:

  • Whether information contained in Ontario’s Sex Offender Registry (“Registry”), created by Christopher’s Law, can be accessed through the FIPPA; and
  • The test that must be satisfied to trigger the law enforcement exemptions within the FIPPA.

In its decision, the SCC held that the Registry’s confidentiality will not be strictly protected.

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[filed: Access to Information]