“Top Supreme Court Cases 2009/2010” - Diana Cameron

This paper summarizes a selection of 2009-2010 Supreme Court decisions which affect the practice of criminal law. The cases are divided among the categories of issues involving legal counsel, Charter decisions, and substantive criminal law.

2010 Mid-Winter CPD - Detention and Section 24(2) of the Charter: Where do we go from here?

Welcome Flexibility and Better Criteria From the Supreme Court of Canada for Exclusion of Evidence Obtained in Violation of the Canadian Charter of Rights and Freedoms – Professor Don Stuart  - MidWinter 2010

This paper examines the Grant and Harrison decisions, assessing changes of directions including discoverability, abandoning of conscripted and non-conscripted distinction, and the police “good faith” mitigating the seriousness of the breach. The R. v. Grant decision and its companion ruling of R. v. Harrison looked at section 24(2) of the Charter of Rights and Freedoms. The rulings expand the test of section 24(2) to examine the conduct of the police or the seriousness of the breach of rights, and the interest of the accused as well as, the seriousness of the offence. The authors also contrast between the United States approach and the recent Canadian rulings. The author sees the test focusing on the seriousness of the violation rather than the seriousness of the offence as a large and much needed change within the Canadian law.

Detention and the Charter – The Decisions in Mann, Grant and Suberu – by Eugene Szach - MidWinter 2010

In this paper, Eugene Szach discusses the use of the Charter, s. 10(b) as an expression of the principle against self incrimination. The author draws a distinction between questioning and detention and how the Charter jurisprudence does not protect through the confessions rule when the suspect is not in fact being detained. The paper also examines the power imbalance and psychological state of detention that an individual feels when confronted by the police for what is, according to the police, only questioning. This paper also flags a number of potential issues arising from the psychological detention as recognized in the cases of Grant and Suberu.

 
Beyond Marriage: Current Issues in Gay and Lesbian Rights Litigation – Associate Professor Debra Parkes

This article was presented as a CLE at the 2008 Mid-Winter meeting.  In the article, Professor Parkes briefly summarizes important cases that have dealt with gay and lesbian rights.  She then proceeds to a discussion of issues that have emerged as a result of these rulings, especially in the areas of health law and remaining criminal prohibitions that may have a disproportionate impact on members of the gay and lesbian community.  Professor Parkes finishes with a brief discussion of the controversy about how to balance religious rights with those of gay and lesbian individuals when it comes to same-sex marriage, with a focus on the cases involving marriage commissioners. 

Sex and the Supreme Court – Obscenity and Indecency from Butler to Labaye – Professor Brenda Cossman

This article was presented as a CLE at the 2008 Mid-Winter meeting.  Professor Cossman starts with a brief overview of the Supreme Court of Canada’s decision in R. v. Labaye and the community standards test that arose from this decision.   She then proceeds to give her personal view that rather than being a decision about indecency, as it appears on the surface, this decision was based on “sexual morality and the legal repression of sexual representation.”  Professor Cossman then proceeds through a very brief summary of some decisions based on the community standards test.  Finally, Professor Cossman explains the decision of the court in R. v. Labaye and how the two-part harm test that arose from this decision is a much better test than the community standards test.  She explains the process of applying the two-step test, and finishes by questioning public reaction to the decision.

Prosecuting and Defending the “Sexy” Cases Post Labaye and Kouri – Sarah Inness

This article was presented as a CLE at the 2008 Mid-winter meeting.  Ms. Inness explains the test that arose out of the companion decision of R. v. Labaye and R. v. Kouri.  She argues that while a theoretical analysis and understanding of the Supreme Court’s shift to a pure harm based test is important and will invariably be relevant to prosecuting or defending these types of cases.  The paper then summarizes the law and sets out the basic “nuts and bolts” of proving/defending such cases. Ms. Inness argues that it is important for both sides to appreciate the test, and explains the standard of proof and the evidentiary requirements now held by the Supreme Court of Canada to be mandatory, at least insofar as the prosecution of indecency is concerned.

2006 Mid-Winter CLE - Sentencing Aboriginal Offenders: The Gladue Panel

The Crown Perspective, by Anthony Kavanagh

This short article, discusses the Manitoba Court of Appeal case, R. v. Flett in which Chief Justice Scott suggested that Gladue Briefs should be used more frequently in Manitoba. Mr. Kavanagh urges that everyone involved in the process of sentencing aboriginal offenders needs stay alive to these important issues and to work a little more at raising them during sentencing. He also questions what the Crown’s duty is in a situation which might call for a Gladue brief but where none is made by the defense.

Transmogrifying and Smudging Gladue, by Lionel Chartrand

This discussion document, prepared by Lionel Chartrand for the MBA 2006 Mid-Winter, examines s. 718.2(e) of the Canadian Criminal Code and the recent Court of Appeal decision of R. v. Flett. Mr. Chartrand begins by highlighting the disproportionate rate of incarceration of Aboriginal peoples and the social problems which lead to this. He has concerns about Flett decision and its call for more Gladue reports, and cites some very persuasive arguments why the defence may not wish to have a report prepared. The crux of his arguments is that s. 718.2(e) does not solve the problems it was designed to alleviate, but rather reinforces the view of non-Aboriginal society that Aboriginal offenders get lighter sentences, even though this is not usually true. Some suggestions for improvements are made, particularly in regards to improving Aboriginal participation the justice system, including in the preparation of sentencing reports.

The Use of Gladue Reports, by Gerry McNeilly

Written for the MBA 2006 Mid-Winter by Mr. Gerry McNeilly, this short presentation paper discusses the challenges of making Gladue briefs, especially from a Legal Aid perspective. He recommends the creation of a committee made up of members of the legal and aboriginal communities. This committee would research and plan for a specialized program to provide “effective and comprehensive” sentencing reports with background information on the aboriginal offender. Mr. McNeilly also advocates using these Gladue reports more often. The paper ends on a positive note by observing that a specialized Gladue court has been established in Ontario and that Manitoba has an opportunity to follow suit.