2011 Year in Review: Constitutional Developments in Canadian Criminal Law

Article excerpt

I. INTRODUCTION II. PROCEDURAL RIGHTS       i. An extradition judge may stay proceedings due to conduct         of the requesting state that does not affect the fairness         of the committal hearing       ii. Protections against self-incrimination do not apply to         evidence that may be used to impeach credibility but not to         prove guilt III. PRIVACY RIGHTS AND POLICE POWERS       i. Expectations of digital privacy in child pornography cases       ii. Limitations on searches that are incidental to other         law enforcement duties IV. MINORITY RIGHTS       i. First Nations underrepresentation on jury rolls         contravenes the Charter       ii. The Youth Criminal Justice Act does not create special         constitutional guarantees for young persons       iii. Freedom of religion does not justify unreasonable         harm to children       iv. Immigration consequences are relevant to criminal sentencing         if the accused has legal status in Canada V. APPENDIX: 2011 SIGNIFICANT CASES 


In 2011, the Year in Review editors of the University of Toronto Faculty of Law Review read every decision from the Canadian appellate courts, excluding Quebec. The goal of the Year in Review project is to identify cases that are not only important for the parties involved, but also advance or refine the law in a significant way. It is perhaps unsurprising that in an era where relatively few civil cases proceed all the way to judgment at trial, criminal law was the one subject on which the most significant decisions were made in 2011. In the two years since then, those criminal cases have also received the most subsequent judicial consideration.

This article builds on the Year in Review project to examine developments in criminal and quasi-criminal law that followed from 2011 appellate court decisions. In particular, we focus on cases that engaged constitutional interests and provided a new interpretation of fundamental rights. Some of the most important popular debates in Canadian society were mirrored by battles that took place in criminal and quasi-criminal court. In this article, we review the most significant legal developments from 2011 appellate cases and follow up on those that have since received further consideration at the appellate level or the Supreme Court of Canada.

For example, a decade after the September 11, 2001 terrorist attacks, the Ontario Court of Appeal considered an extradition case arising out of the American "War on Terror." It set an expansive precedent regarding the residual branch of the abuse of process doctrine, upholding a stay of proceedings because of human rights abuses that the United States committed against the respondent in Pakistan. In 2011, the Ontario Court of Appeal also took a broad interpretation of the protection against self-incrimination, only to be reversed by the Supreme Court of Canada. In section II of this article, we review these significant procedural decisions.

Another issue the courts considered through the lens of criminal law is the extent to which the modern state can intrude on the privacy of its citizens. In the first part of section III, we review three child pornography cases that interpreted police obligations when searching digital information held by third parties. The courts found that a reasonable expectation of privacy may exist in such information, but that it is a limited expectation. Both the Saskatchewan Court of Appeal and Supreme Court of Canada set precedents for admitting evidence where the police acted reasonably to obtain it. In the second part of section III, we review three cases that found appellate courts more defensive of privacy rights in the context of incidental police searches. These cases limited police powers in principle, although the Supreme Court of Canada again demonstrated an inclination to admit improperly obtained evidence where the police acted in good faith. …