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    Four of the Most Important Criminal Law Decisions from the Supreme Court of Canada in Review

    Each year, the Supreme Court hears but a handful of criminal cases. These cases are critical to our interpretation and application of the law. They also have great implications for individual rights and liberties. 

    While this is certainly not an exhaustive list, some of these cases that I have chosen to feature highlight the importance of the Canadian Charter of Rights and Freedoms and the court’s continued commitment to individual rights and liberties, while others give us some insight as to how the law will adapt to respond to new technology as we move into an increasingly digital future. 

    So, as 2019 draws to a close, let’s take a moment to reflect on some of the most important—and most interesting—criminal law decisions from the Supreme Court of Canada this year. 

    1. R. V. LE

    This decision was handed down on May, 31, 2019. On appeal from the Court of Appeal for Ontario, the Supreme Court was tasked with determining what evidence—if any—could be used against an individual detained by police without any reasonable suspicion for doing so.

    The facts involved three police officers, who were walking by what had been known to them as a “problem address”. They observed three friends in the backyard talking. The officers had not been called to the address, nor did they have a warrant to enter the property or conduct any searches. In spite of these facts, the officers took it upon themselves to enter the backyard and to question the men. 

    After a brief interaction, Tom Le, a visible minority, was ordered to open a bag that he was carrying and to produce the contents of it for the officers’ immediate inspection. In response, Le ran away. 

    After a brief chase, he was arrested and his bag was searched. Officers found a gun, drugs, and cash. Le was charged with 10 offences relating to this incident and the contents of the bag.

    The majority for the Supreme Court of Canada held that the officers’ conduct in this case was illegal. 

    They described the police actions as “shocking” and said that their conduct in this case is exactly what the charter was designed to protect against.

    The court also provided some clarity around the concept of police detention, with the majority writing that detention occurs when an ordinary person in the same situation would believe that they were not free to leave and were required to comply with police demands. The Le decision confirmed the continued importance of the charter and further enshrined it as an important tool in protecting against over-reaching state agents.  

    2. R. V. K.J.M.

    This case involved a youth, who was 15 years old at the time of the offence. The court was asked to decide whether or not rules about access to justice should apply to young people, as they do to adults. 

    The facts of this case where somewhat troubling. It involved a young person who got into a fight and ended up stabbing another person in the face and head with a box cutter. The youth pled not guilty and set out that he acted out of self-defence. 

    The offence happened in April, 2015, and the trial was set to take place in  September, 2015. Before the trial commenced, however, there was a problem with the evidence. This caused the trial to be delayed by six months. 

    When the trial went ahead, in March, 2016, it could not finish due to a lack of court time. This delayed the matter another four months. The accused was ultimately found guilty of the offences as alleged. 

    However, while all of this was going on, the Supreme Court released an important decision called R. v. Jordan. This decision set out new rules with respect to criminal trials, by limiting the state from dragging  these types of proceedings out for too long. It interpreted the right to be tried within a reasonable time, protected under the Charter, to either 18 or 30 months after a person is charged, depending on what type of charge it is. 

    In K.J.M., the majority held that the time limits in Jordan should apply to youth matters just as they apply to adult matters. 

    The ruling also reenforced the importance of expedient trials. After all, the time limits established have not been established solely to the benefit of the accused, but also to the benefit of victims, witnesses, and the community through ensuring access to justice.   

    It should be noted that the time limit did not actually extend to the individual in this case, though, and the court ruled that K.J.M.’s convictions in the lower court should stand.

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    3. R. V. JARVIS

    The Jarvis case is one that dealt with voyeurism and video recordings. Although voyeurism became a criminal offence in 2005, this case presented a new challenge for the court in terms of interpreting the various elements of the offence. 

    Jarvis was a high school teacher who decided to use a tiny hidden camera, which he had concealed inside a pen, to record female students in the classrooms, hallways, and other common areas of the school. The students were doing ordinary things, and the recordings mostly focused on their faces and upper bodies. The students were unaware of the recordings. 

    When Jarvis’s secret was discovered, though, he was charged with voyeurism. 

    According to the Criminal Code, there are three elements to the crime of voyeurism. There must be (1) a secret watching or recording; (2) a reasonable expectation of privacy on the part of the person being watched or recorded; and (3) a specific situation or sexual purpose. 

    At trial, Jarvis was found not guilty of voyeurism. Although he made secret recordings of students who enjoyed a reasonable expectation of privacy, the judge was unconvinced that he had done so for a sexual purpose. 

    When this matter was brought to the Ontario Court of Appeal, it upheld Jarvis’s acquittal, but did so for slightly different reasons, saying that although the videos were made for a sexual purpose, the students had no reasonable expectation of privacy as they were in a public place. 

    The Supreme Court was left with one question to decide—whether students could have a reasonable expectation of privacy or not in common areas of a school. 

    The decision was unanimous. The court held that Mr. Jarvis should have been convicted and that the students could reasonably expect not to be recorded using a tiny, hidden camera while at school. 

    The court considered the fact that technology has advanced, and that it is much easier to access the type of technology that, a mere decade ago, would have been the stuff of science fiction. It said that although technology may make it far easier to violate a person’s right to privacy, we still do not have to accept it.  

    This decision affirms that even in a technological age, privacy rights cannot be so easily erased.

    4. R. V. MILLS

    Another case dealing with new(ish) technology, R. v. Mills, asked the Supreme Court to consider whether or not a person can expect their online messages and text messages to stay private, in particular circumstances.

    The facts here involved a fake online profile, which was created by police, to reflect a 14-year old girl named “Leann”. Sean Patrick Mills, age 32, contacted Leann and sent her several emails and text messages over the course of a few months. When Mills suggested that he and “Leann” meet in a park, police arrived and he was arrested for child luring. 

    At trial, the Crown produced evidence collected by police, including screenshots of all online and mobile communication between Mills and “Leann”. Mills argued that the evidence should be excluded, as it was obtained in breach of his charter rights and he had a reasonable expectation of privacy in messaging. In spite of his argument, however, he was found guilty. 

    The Court of Appeal for Newfoundland and Labrador upheld his conviction. 

    In another unanimous decision, the Supreme Court agreed that Mills should be found guilty. The judges declared that Mills should not—and did not—enjoy a reasonable expectation of privacy while messaging with a child he did not know. 

    In rendering their decision, the judges agreed that the test for determining a reasonable expectation of privacy is not just looking at whether something is actually private or not. Instead, we should consider what a person ought to be able to expect to be private in our society, given the context. 

    If, for example, the messages had been between adults, the expectation of privacy may have existed. It may also have existed if the messages were exchanged between an adult and a child they know, such as their niece or nephew. 

    In any event, this case cleared up some ongoing questions about privacy when it comes to text messaging and online communication. 

    You can also read this article as it appears in The Georgia Straight.

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