Law Times

PAGE 10 FOCUS December 14, 2009 • Law Times High courts deliver key rulings on criminal justice Decisions affect everything from disclosure to detention of suspects BY DARYL-LYNN CARLSON For Law Times C anadian appellate courts have delivered some sig- nifi cant developments recently dealing with the rights an accused can assert. An educational session in early November hosted by the Ontario Bar Association's crimi- nal justice section highlighted the rulings. While the event was informative, it drew only 61 reg- istrants, 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 Gen- eral attended. Th e panel of speakers in- cluded Court of Appeal Jus- tice Marc Rosenberg, Ken- neth Campbell from the Ontario Ministry of the At- torney General's criminal di- vision, and Marie Henein, a criminal lawyer with Henein & Associates. Th e esteemed panellists dis- cussed three notable cases that stand to aff ect the prosecution of charges in light of court decisions dealing with disclo- sure obligations, detention on charges, and arguments per- taining to questions about the seriousness of an off ence un- der s. 24(2) of the Charter of Rights and Freedoms. Th ey 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 con- text 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, affi rms the cases are important. "It's going to aff ect the way we have to marshal the evidence "It's also going to aff ect 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 fully argue the admissibility of evidence in any given case." He notes that two of the Speaking of R. v. Suberu, Jody Berkes says the ruling will affect whether defence law- yers want to call their client as a witness. in any case and the way we cross-examine police offi cers as to their particular beliefs and the steps they took during their investigation," says Berkes. three cases presented for discus- sion broached legal issues deal- ing with detention and evidence collection, both of which raise important points for defence lawyers in their eff orts to defend their clients. In Suberu, for example, the crux of the case hinged on whether a police offi cer's order to "stop" rendered a suspect detained, Berkes points out. "Practically, for a defence lawyer presented with a case like Suberu, when the offi cer 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 pro- ceed to trial, put the accused on the stand to assert that they didn't believe they could legal- ly keep moving after receiving an order to stop by a police offi cer. In Grant, meanwhile, Berkes says the courts have more nar- rowly defi ned frivolous Char- ter violations by lowering the threshold for cases that could stand the test of the law. In making the ruling, the Su- Starting from $49 /month (for one year) Now the leading criminal law research service in Canada! "Criminal Spectrum is a good, very reasonably priced research tool that can save both time and money."." 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LT0601 www.lawtimesnews.com Criminal Spectrum (LT 1-2x4).indd 1 5/27/09 2:29:45 PM PDF's of the CCC's pages exactly as they appear in the law reports complete with headnotes preme Court of Canada unani- mously found that the suspect's detention wasn't suffi ciently egregious to warrant exclusion of evidence under s. 24(2), which provides recourse to people whose rights have been violated. "Th e more serious and more deliberate [the infringement], the more the courts have said they must disassociate them- selves by discounting the evi- dence," says Berkes. Yet ultimately, he acknowl- edges that "really, what the public wants is . . . to get mat- ters to trial and for people to be judged, guilty or innocent, on the basis of the evidence." Th e OBA session was, for any lawyer practising 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 Scarborough Crown attor- neys' offi ce. "It's invaluable to get this kind of feedback from such pre-eminent people in the fi eld," he says. "Th ese were signifi cant areas of law that changed the mean- ing of section 24(2), and a lot of lawyers are now working in the dark trying to fi gure 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 con- tinuing legal education sessions annually that focus on appellate decisions rendered by the courts. "Th e really important thing is [that] with both programs, there is a question-and-answer pe- riod 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 aff ected," 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 gov- ernment departments and law fi rms have had to do more work with fewer resources. LT

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