Canadian Lawyer

40 A U G U S T 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m Media have played a significant role in creating a false impression about the court, suggests Michael Dineen, a Toronto lawyer who specializes in criminal appeals. "They often report the losses in criminal law cases as though they reflect a shift in the Supreme Court's ideology or willingness to challenge the government's agenda. Most lawyers believe that the court has become increasingly conservative," adds Dineen, who has appeared before the SCC in a number of significant criminal cases in recent years. "The government losses are actually a result of the passing of more legislation that falls outside of the mainstream of opinion in the justice system of what is accept- able. The government has been pushing the boundaries not the court," Dineen suggests. Even with the boundary pushing of the federal govern- ment, the SCC's "overall criminal law jurisprudence has been, if anything, increasingly favourable to the Crown," says Dineen. Lee Stuesser, who retired at the end of June as dean of the law school at Lakehead University in Thunder Bay, says if there are patterns, it depends on the type of offence that is before the court. "For violent crimes, the court is more law-and-order and responsibility driven. For what I will call "social crimes — for example — prostitution or doctor-assisted suicide, the court is far more progressive," says Stuesser. Any attempt to develop a narrative about its criminal law decisions in recent years is difficult, says Vanessa MacDonnell, a law professor at the University of Ottawa, who began her career as a clerk at the Supreme Court. "Ultimately, the story is a mixed one," says MacDonnell. She agrees the government has lost a number of cases that had "social and moral dimensions" such as assisted suicide and safe injection sites. It is a very different picture though, in the bread-and-butter area of criminal law, where issues of admissibility of evidence and police conduct are argued in the courts each day, she notes. "There has been a tendency to carve out new police powers," in these areas, MacDonnell suggests, adding that there has not been any recent expansion of the Charter rights of criminal defendants. The past decade has also been marked by a steady stream of legislation with bumper sticker-style titles such as the "Serious Time for the Most Serious Crime Act," even during a period when the crime rate continues to drop steadily and municipali- ties struggle with the costs of rising police salaries. There were 505 homicides in the country in 2013, the lowest per-capita rate in nearly 50 years, according to Statistics Canada. The same year, there were more than 1,900 people killed in motor vehicle accidents. Of those fatalities, 300 were pedestrians. The public discourse however, is still disproportionately dominated by crime issues and whether our laws and our courts are tough enough on offenders. The per-capita incarceration rate in Canada is one-sixth of the United States, which is 716 people per 100,000 population. Compared to western European countries, Canada is slightly below the rates in the United King- dom and higher than the rest, including Germany and France. The crime rhetoric is not just coming from politicians, police, and media. There are numerous examples from the Supreme Court in the past decade. "Every day, throughout R. v. Clayton (2007) An anonymous caller near a Toronto-area strip club told police he saw a number of "black" guys with guns in the parking lot and described four vehicles. Police set up a roadblock and searched a car that did not meet the description and found a gun on one of the occupants. The Ontario Court of Appeal found the roadblock to be unlawful. In writing for the majority, Justice Rosalie Abella overturned that decision. The common law powers of police extend to enacting roadblocks of an area when there are potentially serious risks to public safety, she wrote. R. v. Singh (2007) The scope of a detainee's pre-trial right to silence was again before the court in a British Columbia murder case. After his arrest, the accused told police 18 times he did not want to say anything. Eventually, he made incriminating statements. Writing for the majority in a 5-4 decision, Justice Louise Charron explained that an accused can always assert the right to remain silent. "This does not mean, however, that a person has the right not to be spoken to by state authorities," wrote Charron, in upholding the conviction. R. v. Sinclair (2010) During a five-hour police interrogation, the accused indicated a number of times he wanted follow up conversations with his lawyer. Police denied the request. Chief Justice Beverley McLachlin and Charron, for the majority, stated that there is no Miranda equivalent in Canada and no right to have a lawyer present during a police interview. A second consultation with a lawyer is only permitted if there has been a material change in the accused's circumstances. R. v. Cornell (2010) Nine members of the Calgary police, wearing body armour and balaclavas, broke down the door of a local residence where they suspected cocaine was being stashed. They forgot to bring the search warrant. The suspect was not located and only his mentally challenged brother was present, handcuffed at gunpoint. Justice Thomas Cromwell stated that there were no Charter breaches by the officers and police should be given broad leeway on when to depart from the standard "knock and announce" principles. Courts should not be a "Monday morning quarter- back" when balancing the rights of accused with law enforcement requirements, wrote Cromwell for the majority in the 6-3 decision. R. v. Aucoin (2012) The accused was stopped for a highway traffic offence and asked by an officer to sit in the back of the cruiser because there were people milling about. Before he was to enter the car, the officer did a pat down search and found cocaine in his right front pocket. Justice Michael Moldaver concluded the search was in breach of the Charter. However, the evidence should be admitted under s. 24 (2) as long as police act in good faith and there is no deliberate disregard for Charter rights, said Moldaver for the majority in the 5-2 ruling. R. v. Yumnu (2012) The Supreme Court was asked to decide whether a new trial should be granted for multiple defendants because secret records checks of potential jurors were conducted for the Crown by police in Barrie, Ont., before jury selection. Mol- daver stated that limited background checks of potential jurors are permissible for eligibility purposes and as long as any relevant information is disclosed to the defence. The honour system is not sufficient to prevent ineligible people from serving as jurors he wrote. "Self-reporting can result in relevant criminal back- ground information slipping through the cracks," Moldaver wrote for the court. R. v. MacDonald (2014) A case about the scope of police powers when interacting with individuals on the doorstep of their homes. Halifax police arrived at Erin Lee MacDonald's home because of a noise complaint. MacDonald opened the door only slightly, police said they saw something shiny, forced their way in, and found a registered hand- gun. Police can force open doors to do a "safety search" if they have reasonable grounds to believe that it is necessary, wrote Justice Louis LeBel for the majority. In a concurring decision written by Moldaver, on behalf of justices Richard Wag- ner and Marshall Rothstein, the judges said the safety search was appropriate and argued the standard should be reasonable grounds to "suspect" there is a safety threat. "Every day, throughout this country, police put their lives and safety at risk," wrote Moldaver. R. v. St-Cloud (2015) Wagner wrote the decision for the court in setting out a framework for when it is necessary to deny bail to maintain public confidence in the administration of justice. This ground has been "unduly restricted" by lower courts, wrote Wagner and should not be used only in "exceptional circumstances" to deny bail. — SK snapshot of SCC criminal law cases

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