High courts deliver key rulings on criminal justice

Decisions affect everything from disclosure to detention of suspects

BY DARYL-LYNN CARLSON
For Law Times

Canadian appellate courts have delivered some significant developments recently dealing with the rights an accused can assert.  An educational session in early November hosted by the Ontario Bar Association’s criminal justice section highlighted the rulings. While the event was informative, it drew only 61 registrants, which is a good number except for the fact that 59 of them were defence lawyers.  Few Crown prosecutors from the Ministry of the Attorney General attended.

The panel of speakers included Court of Appeal Justice Marc Rosenberg, Kenneth Campbell from the Ontario Ministry of the Attorney General’s criminal division, and Marie Henein, a criminal lawyer with Henein & Associates.

The esteemed panellists discussed three notable cases that stand to affect the prosecution of charges in light of court decisions dealing with disclosure- obligations, detention on charges, and arguments pertaining to questions about the seriousness of an offence under s. 24(2) of the Charter of Rights and Freedoms.

They addressed the practical implications of R v. Grant and R v. Suberu on the exclusion of evidence under the Charter as well as R v. McNeil in the context of disclosure obligations.

Jody Berkes, a criminal lawyer with Heller Rubel Professional Corp. and the continuing legal education liaison for the OBA’s criminal justice section, affirms the cases are important.

“It’s going to affect the way we have to marshal the evidence in any case and the way we cross-examine police officers as to their particular beliefs and the steps they took during their investigations,” says Berkes.

“It’s also going to affect the decision ultimately as to whether we’re going to call our client as a witness in any case to determine if we have to put their evidence in to make a case for a Charter breach.”

Still, Berkes expects the case law developments, while noble, will inevitably lead to longer trials.

“I think this will lengthen the trials because it will require that we frilly argue the admissibility of evidence in any given case;”‘

He notes that two of the three cases presented for discussion broached legal issues dealing with detention and evidence collection, both of which raise important points I for defence lawyers in their efforts to defend their clients.

In Suberu, for example, the crux of the case hinged on whether a police officer’s order to “stop” rendered a suspect detained, Berkes points out.

“Practically, for a defence lawyer presented. with a case like Suberu, when the officer says `stop’ to the client and takes control of his movement, to me that sounds objectively like a detention, but that would be wrong,” he says.

He suggests that a lawyer in any similar case, should it proceed to trial, put the accused on the stand to assert that they didn’t believe they could legally keep moving after receiving an order to stop by a police officer.

In Grant, meanwhile, Berkes says the courts have more narrowly defined frivolous Charter violations by lowering the threshold for cases that could stand the test of the law.

In making the ruling, the Supreme Court of Canada unanimously found that the suspects detention wasn’t sufficiently egregious to warrant exclusion of evidence under s. 24(2), which provides recourse to people whose rights have been violated.

“The more serious and more deliberate [the infringement], the more the courts have said they must disassociate themselves by discounting the evidence, ” says Berkes.

Yet  ultimately, he acknowledges that “really, what the public wants is … to get matters to trial and for people to be judged, guilty or innocent, on the basis of the evidence.”

The OBA session was, for any lawyer practicing within the Greater Toronto Area, a must-attend event, says Suhail Akhtar, who leads the criminal justice section and who works as a Crown prosecutor with the Sacrborough Crown attorney’s office.

“It’s invaluable to get this kind of feedback from such pre-eminent people in the field,” he says.

“These were significant areas of law that changed the meaning of section 24(2), and a lot of lawyers are now working in the dark trying to figure out what it means.  A panel like what we had can only help to point everyone in the right direction.”

Akhtar notes the criminal justice section hosts two continuing legal education sessions annually that focus on appellate decisions rendered by the courts.  “The really important thing is [that] with both programs, there is a question-and-answer period where defence counsel and Crown counsel can stand up and ask individual panellists their particular viewpoints or on any other areas of the law that might be affected,” he says.

For future sessions, Akhtar says he’s hoping more Crown counsel will be able to attend, along with defence lawyers, as all have been facing time constraints during the past year as both government departments and law firms have had to do more work with fewer resources.