Australia proposes new anti-terror laws

This past week, the administration of Prime Minister Tony Abbott has proposed new anti-terror legislation which will

require Australians returning from certain conflict zones to prove they hadn’t joined militant groups; expand police powers to arrest and detain suspects, secretly seize passports and search properties without advance warning; and allow intelligence agencies greater scope to access online communications.

These proposals follow a supposed plot by IS sympathizers to behead a randomly-selected Australian and a knife attack on police officers by an alleged Islamic State sympathizer. In response, Prime Minister Tony Abbott has said that the “delicate balance” between freedom and security at home “may have to shift” in light of a heightened terror risk.

Read more here.

SCC Kicks Off Fall Session with Kokopenance Case

The Supreme Court of Canada’s Fall session begins this upcoming Monday, October 6th. The Court’s first case will be Her Majesty the Queen v. Clifford Kokopenance.

The case considers the role of jury selection, and whether the representativeness of a jury can be challenged under the Charter. Mr. Kokopenance, an Aboriginal person from Kenora, Ontario, was charged with second-degree murder in a stabbing death. His trial’s jury was composed from a 2008 jury roll from Kenora, which consisted of 699 potential jurors, of whom, 29 were First Nation on-reserve residents (4.1% of the jury roll). At that time, between 30.2-36.8% of Kenora’s population was First Nation on reserve persons, with 21.5%-31.8% being adults. The jury was ultimately selected from a panel list of 175 jurors, only 8 of whom were on-reserve First Nation residents (4.5%). The jury selected ultimately did not include any on-reserve First Nation residents.

Mr. Kokopenance was convicted of manslaughter by the jury. Prior to sentencing, Mr. Kokopenance’s counsel became aware of the irregularities in the composition of the Kenora jury roll regarding representativeness. However, the trial judge declined to adjourn sentencing in order to hear a mistrial application. On appeal, Mr. Kokopenace argued that the jury was selected from a jury roll that, because of the process used to prepare it, inadequately ensured representative inclusion of Aboriginal on-reserve persons. As a result, he argued that his section 11(d), 11(f) and 15 Charter rights were denied. He also argued that according to the Juries Act, his jury was improperly composed, and that he was accordingly entitled to a new trial. The Ontario Court of Appeal allowed the appeal, which the Crown has appealed to the Supreme Court.

The case will no doubt render an interesting decision, which will kick off the Fall Session of the SCC. Other interesting upcoming cases include: Taypotat (October 9, equality rights), City of Saguenay (October 14, freedom of religion/ religious neutrality of the state), Carter (October 15, assisted suicide), and Nur (November 7, mandatory minimum sentences). A full list of upcoming Fall 2014 Supreme Court cases can be found HERE.

Supreme Court Allows “Mr. Big” Evidence in R. v. Mack

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If notions of hunger-satisfying, peanutty-chocolate candy bars jump into your head when “Mr. Big” is mentioned, sadly, you will continue to go hungry. You may even lose your appetite. In the legal world, “Mr. Big” operations are undercover police stings that involve police posing as criminals in an attempt to gain trust from a suspect and ultimately extract a confession. This is commonly done by escalating a series of fictitious crimes or scenarios with the suspect, and then enticing the suspect to describe information that they may have about the real crime. Yes, “Mr. Big” stings often result in a lead that produces evidence that can result in charges and in most cases (over 95%), a conviction. But, at what cost? Several studies, inquiries, and reports cite these operations as unsavoury, involving dangerous police tactics that often can lead to false confessions and ultimately wrongful convictions (see the watershed 2011 Report of the Federal/ Provincial/ Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions, entitled The Path to Justice: Preventing Wrongful Convictions).

On Friday, September 26, 2014, the Supreme Court of Canada gave its ruling in R. v. Mack, 2014 SCC 58. This was the first “Mr. Big” case ruled upon by the SCC since R. v. Hart, 2014 SCC 52, from earlier this past summer, where the Court held that confessions obtained through “Mr. Big” investigations are presumptively inadmissible as evidence. Mack concerned a confession made by Dax Richard Mack, who admitted to undercover officers working a “Mr. Big” operation that he murdered his roommate and burned the body. That information led police to a firepit, where they located bone and teeth fragments that were later identified as belonging to the victim. As a result, Mack was arrested and charged with first degree murder. He was found guilty at trial, appealed, and had that appeal dismissed by the Alberta Court of Appeal.  Read the rest of this entry »

Saskatchewan Judges Failing to Implement Gladue

Retired British Columbia Judge Cunliffe Barnett, said that judges in Saskatchewan have been reluctant to implement Gladue principled sentencing, reports the Star Phoenix. In both Gladue and Ipeelee, the Supreme Court of Canada mandated that Aboriginal circumstances be taken into account during sentencing. Section 718.2(e) of the Criminal Code provides that “all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered…with particular attention to the circumstances of Aboriginal offenders.” Gladue reports provide a judge with details about the unique life circumstances of First Nation, Métis and Inuit people and offer recommendations for sentencing. In Saskatchewan, Gladue factors are taken into account in sentencing, but Gladue reports have been underutilized.

Barnett drew attention to Trevor Machiskinic’s recent twelve month sentence for aggravated assault. Machiskinic, a young Aboriginal man, spent time in a residential school and in foster homes during his youth, and was found to have limited intellectual abilities. His case was one of the first in the province where a full Gladue report was prepared. Barnett argued Justice Mona Dovell appeared to pay “only scant attention to it.” Mr. Machiskinic’s case is currently on appeal.

Deferring away Liberty: Prisoner’s rights and the difficulty in using the Charter

Case law focusing on prisoner’s rights has created substantive rights for inmates while they remain behind bars.  The advent of the Charter undoubtedly impacted prisoner’s rights jurisprudence, but to what extent? One could probably create a list of the rights that prisoner’s have gained post-Charter, but there remains a reliance on pre-Charter jurisprudence to establish the necessity of including the protection of the civil and human rights of prisoner’s.

It is my hope that bringing old case law into contemporary discussions on prisoner’s rights works to establish the rigidity of the Court’s position on it’s dedication to protecting rights for prisoners but also to contextualize the development of deference to correctional authorities which stems from a pre-Charter era.  This is significant because the Charter, if given the weight it deserves, should be a match against deference. Read the rest of this entry »

Supreme Court Rules “Mr. Big” Confessions Presumptively Inadmissible

Thursday’s Supreme Court decision on the admissibility of confessions from “Mr. Big” operations could prompt the review of dozens of convictions, the CBC reports.

The Supreme Court’s decision in R v Hart examined the use of “Mr. Big” sting operations, in which undercover police officers pose as criminals in order to elicit a confession from a suspect. The Court expressed concerns about the credibility of these types of confessions, and ruled that these confessions should be treated as “presumptively inadmissible”, with the onus now falling on the Crown to prove that they are reliable and should be admitted.

The CBC reports that Phillip Campbell, a lawyer for the Criminal Lawyers’ Association of Ontario believes that a number of people who have been convicted based on these confessions will have a good chance at appealing their convictions.

Read the CCLA’s statement on the decision here.

Read the CCLA’s factum in R v Hart here.

Report on Toronto Police Use of Lethal Force calls for ‘zero deaths’ police culture

On July 24th, a comprehensive report carried out by former Supreme Court justice Frank Iacobucci on how Toronto police should deal with people in crisis was released, reports the Globe and Mail . The report proposes 84 in-depth recommendations for the Toronto Police use-of-force model. Police Chief Bill Blair ordered the report last August after the killing of 18-year-old Sammy Yatim, who was shot by a police officer on an empty streetcar. The chief described it as a hugely important document and said it will be implemented. The National Post’s Jennifer Hough provides six things you should know about the Iacobucci report’s recommendations.

The Canadian Civil Liberties Association (CCLA) welcomes Justice Iacobucci’s Report, and commends Chief Bill Blair for calling for this independent Review and for the renewed commitment he made today to implement the Report’s recommendations. The CCLA will be monitoring follow-up to ensure the recommendations are implemented. To read a full copy of CCLA’s March 29th recommendations to the Independent Review of the Use of Lethal Force by the Toronto Police Service, visit http://ccla.org/2014/07/24/iacobuccisubmissions/.

P.E.I. rate of jailing before trial Canada’s lowest

The Canadian Civil Liberties Association released a report last week titled “Set up to Fail: Bail and the Revolving Door of Pre-trial Detention,” which questions the extensive rise in pre-trial custody populations and identifies the extreme personal and financial costs of current practices in Canadian bail courts. The report reveals that more than half of the inmates in provincial jails across the country are simply awaiting trial or a determination of their bail, and have not been convicted of anything. However, the study shows that P.E.I., with fewer than 20 per cent of inmates awaiting trial, has the lowest remand rate in the country.

Charles Thompson, a justice of the peace who conducts bail hearings in Charlottetown, believes the rest of Canada can take some lessons from P.E.I.’s justice system, the CBC reports.

Download the CCLA’s full report, Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention.

Read the CCLA’s quick bail and pre-trial detention fact sheets:

 

Wheelchair user says basic human rights are being ignored in N.S.

After suffering from Encephalitis, Halifax-resident Denise Fitzgerald became wheelchair-bound and was released from the hospital this past January, writes Global News . It was this experience that caused her to notice the accessibility issues in Halifax. Finding accessible apartments, medical offices, stores, restaurants in Halifax is a challenge, according to Fitzgerald.

Nova Scotia has the highest per capita percentage of self-identifying persons with disabilities, writes Global News. The Minister of Community Services, Joanne Bernard, who responsible for the Disabled Persons Commission, said that last month an advisory panel was created to look at accessibility legislation. The goal of the advisory panel is to design accessibility legislation what will be introduced in 2016.

 

Human Rights Tribunal awards couple $30,000 after harassment by neighbour

The Montreal Gazette reports that a Quebec woman was ordered by the Quebec Human Rights Tribunal to pay $30,000 for hateful racial harassment toward her next-door neighbours. The couple may unfortunately never receive any of the award, as the respondent has disappeared, making it a judgment by default.

Through the judgment, the Quebec Human Rights tribunal wants to send a clear message about racial discrimination and its harmful effect to victims and society. The couple that brought the claim say the neighbour constantly yelled racial slurs at them, even in front of their young daughter. The accused neighbour was seen to own a gun and also made death threats against them. The couple also filed a criminal complaint, in which their neighbour was sentenced to six months of community service. They were ultimately forced to move because of the threats and harassment. According to the executive director of the Centre for Research-Action on Race relations, who helped bring the claim to the Tribunal, this decision sets an important precedent that demonstrates “this kind of hateful, violent, racial harassment will … be treated harshly.”

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