A tentative hearing date of May 19, 2015 has been set for the Supreme Court of Canada to hear the case of Goodwin et al. vs. British Columbia (Superintendent of Motor Vehicles).

This high profile case will decide whether the BC Supreme Court and the BC Court of Appeal got it right when they ruled that it was indeed constitutional for the BC Government to pass Motor Vehicle Act legislation that permits police to regulate impaired driving not through the traditional criminal law process but, rather, through an administrative process that effectively grants police the power to immediately issue 90 day driving prohibitions to drivers who fail a roadside breath screening test (“IRP”). Any challenge to the sanctions are not broght before a judge, but must be made to an adjudicator delegated by the Office of the Superintendent of Motor Vehicles

In the lower court cases, the consitutional challenges made by drivers focussed on four areas:

(a) The British Columbia legislation is unconstitutional because the IRP regime is actually criminal law. Under the “division of powers” as set out in the Constitution, only the federal government can pass laws that are designed to curb criminal behaviour. In essence, the argument is that the IRP regime is civil rights law (which is within the jurisdiction of the Provinces); it is not criminal law (which is within the jurisdiction of only the federal government).

(b) The IRP regime violates Section 8 of the Charter of Rights and Freedoms, which prohibits unreasonable search and seizure. In the criminal law context, a search and seizure can only legally occur if the police have reasonable and probable grounds. Under the IRP regime, police need have only a reasonable suspicion that the driver has “some alcohol in their body”.

(c) The IRP regime violates Section 11 of the Charter of Rights and Freedoms, which guarantees that individules will be presumed innocent until proven guilty beyond a reasoble doubt by an independent and impartial tribunal. 

(d) The IRP regime violates Section 10 of the Charter of rights and Freedoms which guarantees that everyone whom is arrested or detained be provided with their right to obtain legal advice from counsel.   

As litigating lawyer Howard Mickelson QC points out, the Goodwin case is about more than impaired driving. It is about the extent to which provincial legislation can impinge upon the criminal law powers of Parliament. It is about the extent to which provincial legislation can trench upon a driver’s Charter rights in order to create improved efficiencies for the administration of justice, including cost savings for police, Crown counsel and the courts. The supreme Court of Canada will be asked whether the provinces can replace the federal criminal law with civil, administrative regimes that target wrongful behaviour.

We believe that this case is hugely important for all Candians. Provinces across the land are increasingly creating legislation that deals with criminal behaviour. The BC Civil Forfeiture Act certainly comes to mind as another regime which impinges on the federal criminal law power. Under Civil Forfeture provisions, the Government of BC can seize “offence related property”, even where the owner of that property has not been charged with a Criminal Code or Controlled Drug and Substances Act offence, or even where they have been charged, tried and found not guilty. The reasons provinces are ennacting these regimes are varios, but include improved deterrence, improved efficiency and a chance to recover administrative costs from those alleged to have violated the law.

In our view, any efficiencies and cost savings gained by these provincial regimes are outweighed by the loss of protections afforded by the criminal law and the rights and freedoms guaranteed under the Charter. Under the IRP regime for example, a driver who blows a “fail” is immediately prohibited from driving for 90 days. This often results in the person losing his or her job and can impact severely upon the person’s family. While the driver has the right to challenge the prohibition, the legislation sets out that the hearing will be conducted by a delegate of the superintendent of Motor Vehicles, not a judge. The police officer needs only to submit a one page Report to Superintendent, in which ceratin boxes need to be checked and certain blanks filled out. Essentially this report “deems” that the breathalyzer machine was in working order and that it produced the stated result.There is no ability to cross examine the invetigating officer at all. We believe that the vast majority of drivers who have been prohibited by this regime face an extremely tough uphill battle in an effort to have the adjudicator revoke their driving prohibition. 

These provincial regimes, as exemplified by the IRP law, represent a fundamental shift in Canadian criminal law. The Goodwin case is a hugely important case that addresses this shift in the provincial governments’ policy toward criminal law. Ultimately, the Supreme Court of Canada decision will determine the scope of a province’s power to ennact legislation that has traditionally been only within the federal government’s jurisdiction to enact criminal law. We hope that the Supreme Court of Canada will rule in Mr. Goodwin’s favour and strike down the IRP regime.

Recently the Supreme Court of Canada released its long awaited, much debated and surely controversial judgement on physician assisted suicide (Carter v. Attorney General of Canada, 2015 SCC 5 (“Carter”). In the decision, a unanimous Court overruled their 1993 decision in Rodriguez v. British Columbia (Attorney General) ([1993] 3 S.C.R. 519) and ruled that the Canadian Criminal Code provisions that make physician assisted suicide a criminal act are unconstitutional, and struck them down.

In relation to physician assisted suicide, in a nutshell what the Court ruled was that an adult who “clearly consents to the termination of life” and” has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” has a right to have a physician’s assistance in ending their life. The Court also ruled that no particular physician would be required to assist in such a procedure.

Early criticism of this portion of the decision has tended to focus on the fact that the court did not narrow the application of this assistance to people with terminal illness, but rather specifically included those with disabilities as qualifying. The concern of many opponents of this decision is that with a wide definition of medical conditions fitting into this category, people with these types of illnesses may choose to take their own life in situations where their condition is not actually life threatening, or that they may feel pressured by family members or medical professionals to take their own lives in situations where they themselves do not want to.

In Carter, although the Court did strike down the provisions, they suspended their judgment from coming into force for a year, in order for the government to have time to craft legislation in line with their decision. In theory, this gives the government a year to get legislation in place to regulate this activity, and the medical systems a year to get adjusted before the practice actually starts occurring legally.

The Court did a similar thing with some of the Canada’s Criminal Code provisions relating to prostitution in 2013 in the case of Canada (Attorney General) v. Bedford (2013 SCC 72) (“Bedford”). In Bedford, a unanimous Court struck down several of the provisions relating to prostitution, but again allowed a year before their decision came into force, in order for the government to put legislation in place that was in line with their ruling. In that case the Stephen Harper-led Conservative government’s response to the Court’s decision was Bill C-36, which came into effect in late 2014. The government’s response in that bill has been widely criticized for being an attempt to comply with the Court’s decision on the surface, but in effect, to almost completely circumvent the Court’s decision, and in fact to make Canada’s prostitution laws more archaic and less protective of Canada’s sex trade workers.

The current Conservative government has been clear that their position on physician assisted suicide is that they would not support a change to Canadian law that would make it legal. Early speculation has been that they are likely to take the full year allowed to come up with legislation in response to the Carter decision. Only time will tell if their response to the Carter decision creates the same type of response as their response to the decision in Bedford. 

Recently, the Supreme Court of Canada in R. v. Fearon solidified the law in Canada regarding police searching suspect’s cell phones, without a warrant, when they are arrested. In this article we will not be reviewing the law as set out in the majority judgment. It is indexed as 2014 SCC 77. The bulk of the judgment relating to the substantive changes in the law is found between paragraphs 74 to 84. What we will attempt to do in this article is point out some take away points, from a defence lawyer’s perspective, about the implications of this judgement to Canadian’s privacy rights.

Take Away #1 – Lock Your Phone

The elephant in the room in this judgment is that people who want to protect their privacy rights should lock their phones. People who do, will be almost certain that a police officer cannot search their phone at the time of their arrest without a warrant. The right to remain silent on arrest and not to be obligated to give evidence against yourself, allows people who are arrested to refuse to divulge their cell phone password. The Court addresses this issue in only one paragraph in Fearon, where they state that cell phones, whether they are locked or unlocked, should afford their owners the same privacy protections. Regardless of the legal implications of that statement, practically, when a phone is unlocked it will not afford the owner any privacy protection if a police officer decides to look through it upon arrest.

Take Away #2 – Cell Phones Searched on Drug Arrests are Automatically Fair Game

It is not common in recent years to have the majority SCC judgment use language that seems to give carte blanche police powers, but they seem to have done so with cell phone searches incident to arrest in Fearon. The majority quotes with affirmation the statement that cell phones “are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street” (para 48). Whether an arrest is for an allegation of drug trafficking or drug smuggling, the SCC seems to say that a review of the suspect’s cell phone by officers should be pretty much routine, and will now be legitimized by the SCC. Despite this already being a common practice, and despite the protections the majority writes about later in the judgment, this seems to expand police powers in drug investigations by implying that a “valid law enforcement objective” in a cell phone search will always exist in a drug arrest.

Take Away #3 – The Added Protections in Fearon Will Only Apply “Generally”

As mentioned above, paragraphs 74 to 84 of the judgment set out the measures the SCC says will limit the invasion of privacy that may occur from a search of a cell phone upon arrest. Some of those commenting on this case have suggested that this strikes a good balance between privacy rights and the need to give police power to investigate. I would point out that in this portion of the judgment, the word “generally” is used so frequently, and in such places, so as to potentially devoid these protections of any real teeth in practice.

The majority writes:

“(G)enerally, only recently sent or drafted emails, texts, photos and the call log may be examined… But these are not rules, and other searches may in some circumstances be justified” (para.76)

“(G)enerally, the search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest.” (para 78)

“(A) search of a cell phone incident to arrest will generally not be justified in relation to minor offences.” (para. 79)

(Emphasis added)

The majority judgment also states that police officers who search cell phones incident to arrest “must make detailed notes of what they have examined on the cell phone.” (para.82) This requirement is not qualified with the word “generally”, but it does not mandate that police officers keep notes of the reason for the search. Keeping notes of the reason for the search is only “generally” required. In my opinion this is a big problem for privacy rights, it leaves the door wide open for police officers to circumvent the safe guards in this judgment by making up reasons for the search after the fact, using information that was not known to them at the time of the search.  

The true implications of Fearon will only be known as courts deal with facts arising out of cases and attempt to interpret the requirements of Fearon to those facts. We hope that courts will apply the protections in more than a “general” sense and will give great consideration to the far-reaching privacy interests citizens have in the information in their phones.  

On December 2, 2014, a judge in an Alberta courtroom allowed a specially trained type of therapy dog, known as a trauma dog, to assist a young girl while she gave evidence at a sexual assault trial. This was a first in Canada. Later that week it is expected that her brother will take the stand to give evidence at the trial and the dog will be sitting next to him for comfort as well.The prosecutor in the case made the application to allow the dog to assist the child witnesses, and the accused’s lawyer did not oppose it.

As we have written about in recent weeks, Canadian courts and lawmakers have been moving towards making things easier on those who have come forward with allegations of a sensitive and/or sexual nature.

There are a few other court procedure exceptions  potentially available to children and vulnerable witnesses in trials where the allegations are of a sexual nature, and they have been in existence in the Criminal Code of Canada for some time. These include allowing the witness to give their evidence from behind a screen, or by video from another courtroom, so that the witness does not have to see the accused while they are giving evidence. Also, for a child witness, a video recorded statement taken from them shortly after the incident may be entered as evidence, if a judge is satisfied of certain conditions. This exception to the normal process, is especially helpful for very young witnesses who may have forgotten the incident in the intervening time. Another exception is that although normally an accused has a right to face his accuser by personally cross examining him or her, when the allegations are of a sexual nature a judge will likely order that the accused cannot personally cross examine the complainant.      

Previously, under sections in the Criminal Code, Canadian courts have allowed children and vulnerable witnesses to have a support person to be present and close to a witness while the witness gives evidence. Proponents of therapy dogs argue that children have an inherent trust of animals and animals make the experience even easier on them than the presence of a counselor or other assistance person. While even the dog’s handler, Sgt. Brett Hutt, agrees that there is “no science to it”, it seems intuitive that the presence of a dog may make the experience of giving evidence easier for some. As a lawyer, it seems that the interests of justice possibly may be better served by the presence of a therapy dog as opposed to a support person. A child or vulnerable witness may look at a support person for assistance with their evidence, or alter their evidence (even inadvertently or subconsciously) due to the close presence and perceived expectations of a support person with whom they have a relationship. A therapy dog allows a vulnerable witness to be comforted without attaching any of the baggage that may come along with a human support person.  

There are some potential trial fairness concerns with allowing therapy dogs to be involved in trials. In a jury trial, emotions and sympathies of members of the jury towards child witnesses are already high. A child witness giving evidence with a dog may make it nearly impossible for jurors to separate their emotions from the situation and give the evidence a dispassionate evaluation. In the Alberta case there were reports that the girl was actually hugging the dog at one point during her evidence. That is a powerful emotionally charged image. There is a reason why animal videos go viral, and why we would be smart to post a picture of a dog with blog. People love animals and they elicit emotional response. Even in a case being heard by judge alone without a jury, this imagery and its associated response may be too difficult for even judges to set aside.

Another potential concern is that at the end of the day, the therapy dog in this case is a police dog. It has a uniformed police handler. The use of a police dog in a courtroom to assist a witness may give jurors the message that the police support the evidence being given by the witness, and that it is therefore more worthy of belief.

For better or worse, it seems that, at least for the time being, therapy dogs are a part of the Canadian courtroom landscape. I just hope when they are involved in trials the dogs can take their bathroom breaks on the same schedule that is already set for the human participants.      

This whole Jian Ghomeshi debacle has been a cultural and media firestorm. There are countless articles, commentaries, conversations and opinions swirling throughout Canada. There has certainly been a positive outcome, that being, that the issue of unreported violence against women is at the forefront of public discourse, and we are seeing that it is a problem more widespread than most of us realized. 

When this story first broke there were an awful lot of people, myself included, who were asking “If this is true, why won’t any of these women report it to the police?” People familiar with the phenomena wrote articles and blogs in an attempt to help us understand why women may not want to go to the police. The most widely-read of these articles amongst my social circle was written by Sandy Garrosino for the Huffington Post: http://www.huffingtonpost.ca/sandy-garossino/jian-ghomeshi-women-report-sex-assault_b_6059124.html .

Ms. Garrosino is a “Former Crown Prosecutor” and in her article Ms. Garrosino shared some very helpful insights into this troubling trend. As a criminal defence lawyer and a former Crown prosecutor myself, I feel the need to weigh in on the issue and clarify some misconceptions. If people are going to make a decision about reporting alleged criminal activity to the police they should have an accurate understanding of what they can expect.

Don’t misunderstand me. Reporting allegations of a sexual nature, or that arise from situations of intimate relationships, is a taxing endeavour at best. As a criminal defence lawyer it is my job to test every witness’ evidence and diligently put forward every defence available to my clients. The system is set up so that innocent people aren’t convicted, and yet they still are. The Crown needs to prove all allegations beyond a reasonable doubt, because innocent people are accused of crimes, and despite what you may read elsewhere, people are falsely accused of crimes of a sexual nature. That is a fact I can guarantee.  

Because it has traditionally been so hard on people who are reporting allegations of a sexual or intimate nature, for quite some time the trend amongst Canadian Parliament and courts has been to make it easier at trial for people (routinely women) who report these types of incidents. The protections and changes have been varied and numerous. I will review a few of the more major ones.

The biggest protection offered to complainants is the publication ban. These are routine in cases with an allegation of a sexual or intimate nature. These bans prevent the publication, in any form, including social media, of the name or image of the complainant or any other information that may identify them. Often this includes the ban on publication of the identity of other witnesses in the proceedings or even of the accused, if releasing the accused’s identity would make it obvious who the complainant was.

I would say that the second most important protection offered to complainants is that evidence that the “complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible” to support a theory that the complainant “is more likely to have consented to the sexual activity that forms the subject matter of the charge” or that the “complainant is less worthy of belief.” (s.276 Criminal Code of Canada) There is a process available to apply to a judge for an exception to this, where the defence would be allowed to lead evidence of a complainant’s sexual prior sexual activity, but it is onerous, and even if defence counsel is successful, the evidence can still never be offered for the purpose of suggesting that the complainant is less worthy of belief or more likely to have consented to the alleged criminal sexual activity.

The other biggest change in the law has been the removal of the need for corroboration of an allegation of a sexual nature. Previously, under Canadian criminal statute and common law, corroboration was required in order to convict an accused of a sexual offence. That is, that someone other than the complainant had to give evidence to back up the complainant’s allegation, or there simply could be no conviction. This has been specifically removed from Canadian law for decades, yet some observers (it would seem Ms. Garrosino included) still believe that although not required by law, corroboration is a necessity for a conviction. That is simply not true. In my work with the Prosecution Service of BC, I was junior counsel on several trials where we convicted accuseds of sexual crimes where it was he-said she-said with no corroboration by third parties, including cases where the sexual activity between the parties began as consensual. 

Again, I will reiterate that I am not saying that bringing these allegations forward is a picnic, by any stretch. I am also not saying that we should judge or demean a person’s choice to bring such allegations forward, or to deal with them in whatever manner they see fit. What I am advocating is that people make these decisions, do so based on an accurate understanding of the situation they are getting into, or choosing to forgo.