Law Times

lAw times • July 27/August 3, 2009 NEWS Grant decision a 'real wake-up call' Continued from page 1 acquittal in these circumstances is outweighed by the importance of maintaining Charter standards." While the court threw out the chargers in Harrison, it upheld convictions in Grant and the two other companion cases, R. v. Shepherd and R. v. Suberu. In Grant, the court upheld convictions against Donnohue Grant. He was intercepted by police in 2003 while walking on a sidewalk in Toronto, and ended up admitting to pos- sessing marijuana and a gun. Grant's charge of possession of a fi rearm for the purposes of traffi cking was overturned by the top court, but other fi re- arms off ences were upheld. "Unlike the situation in R. v. Harrison, the police offi cers here were operating in circum- stances of considerable legal un- certainty," wrote McLachlin. "In our view, this tips the balance in favour of admission, suggest- ing that the repute of the justice system would not suff er from al- lowing the gun to be admitted in evidence against the appellant." In Shepherd, the court dis- missed an appeal on an impaired driving charge from Curtis Shep- herd. It determined that a police offi cer had enough evidence to believe Shepherd's ability to drive had been impaired by alcohol. In Suberu, Musibau Sub- eru's conviction for possessing stolen property under $5,000 was upheld. Th e court deter- mined that Suberu's s. 10(b) Charter right was not infringed by police questioning during an investigation into an alleged credit-card fraud operation. Stuart says the new framework AG statement is unlikely Continued from page 1 attorney general is leaving it up to Cavoukian to release any in- formation about jury vetting that is discovered through a questionnaire Bentley and Ca- voukian sent to the 54 provin- cial Crown jurisdictions across the province. Crawley said the Offi ce of the Information and Privacy Commissioner is an indepen- dent body that is arms-length from the government. "Th e ministry of the attor- ney general will not report sep- arately on this information as to do so would be in contempt of a legislative offi cer," he says. Crucially, Crawley also dis- closed Bentley is unlikely to make a public statement about the re- sults of an internal review being conducted by the province's chief prosecutor, John Ayre. "Disclosure will be made to aff ected parties when the review is complete," says Crawley. Goulin says he is disap- pointed no one appears to be interviewing the prospective jurors whose privacy rights may have been violated. LT Frater_Prosecutorial Misconduct (LT 1-3x4).indd 1 will lead to plenty of work for lawyers and judges. "Pretty well all of the previous law is irrelevant now, so we've got to start afresh," he says. While there has already been much debate over wheth- er the new framework will lead to an increase or reduction in excluded evidence, it will take "several years" for the dust to settle, says Stuart. "By far the most important thing for me is that the court decided that on the decision whether to exclude evidence, the most important thing is not the category of evidence, but how se- rious was the violation," he says. "Th ey've said the seriousness of the violation is a much more im- portant consideration than the seriousness of the off ence." Stuart suggests the Grant decision is a "real wake-up call" for police forces. "If law enforcement people and Crowns, for example, are con- cerned about the dramatic eff ect of excluding 32 kilos of cocaine, I think then there's an impetus on the police to train themselves to respect the Charter," he says. Dawe, who also represent- ed Grant, has some concerns about the court's new approach to s. 24.2. Th e judgment does not identify the reason for "such a radical rewriting" of the law in this area, he says. "Th is is an area that over the last 20 years a principled posi- tion had emerged, and in fact 10 years ago [in R. v. Stillman] the court had actually called for a rehearing in order to canvass all the views," says Dawe. "Th e majority of the court decided to adopt a certain set Untitled-2 1 Product Code: 72650026 Philips Digital Voice Tracer with Dragon NaturallySpeaking 10 *Stereo lapel microphone and earphones included of principles, which gave pri- macy to the principle of self- incrimination, and they did it in quite strong language." Th e court went so far to say it would be "unthinkable" for an individual to be convicted at trial based on compelled self-incriminatory evidence, he says. But the court has shifted its stance on that issue, says Dawe. "Now, in essence, we have the court saying it wouldn't really be unthinkable after all; it's actually OK sometimes," he says. Criminal Lawyers' Association president Frank Addario issued a statement following the decisions, and said the new test should put to rest any fears from the judiciary that the public does not compre- hend why tainted evidence must at times be excluded. 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Essential knowledge for all criminal practitioners This comprehensive and thought-provoking treatise covers prosecutorial misconduct at every stage of the criminal process and impartially and objectively identifies its elements with specific reference to case law. In addition, Prosecutorial Misconduct provides expert commentary on the tort of malicious prosecution and related civil actions against prosecutors. Includes a CD-ROM with relevant Canadian case law to facilitate research. Order your copy today! Hardbound with CD-ROM • 342 pp • July 2009 • $110 P/C 0171010000 • ISBN 978-0-88804-487-7 For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com 7/22/09 2:50:29 PM LT0727 "Truly, no one contemplating acting as a prosecutor should either leave home or prosecute anyone without reading this book. 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