Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Canadian Supreme Court Finds Exceptional Privacy in Computers

Hats off to the Canadian Supreme Court in Regina v Vu, 2013 SCC 60 (2013) for recognizing what so many American courts don’t seem to get -- that computers are different. Police are now routinely seeking (and unfortunately getting permission) to search everyone’s computers when they have probable cause of any evidence of crimes. The Canadian Supreme Court said that there has to be individualized probable cause to search a computer and that the police cannot get to its contents by virtue a general search warrant to search a home.

Reid Method of Interrogation

The Reid method of interrogation remains popular despite the fact that it is roundly criticized. In fact, an early variation of the Reid method was critically referred to back in Miranda v Arizona. Innocence Projects around the country have further demonstrated its flaws. Police get confessions whether truthful or false. Recently, Psychology Today recognized that there is no science underlying the technique. They further recognized that it contains elements of “brainwashing” and “entrapment.” For an interesting Canadian decision criticizing the Reid method, click here.

Great Drunk Driving Ruling from Canadian Supreme Court

Criminal defendants are frequently charged and convicted for drunk driving for sitting behind the wheel of a parked but running car trying to keep warm. The least sympathetic case happens when the Defendant’s car is stuck in a ditch with fresh tire tracks. Courts will infer the Defendant drove the car into the ditch while being drunk. A more sympathetic situation happens when the Defendant is using the vehicle as a means of temporary shelter and has no intention to move the vehicle.In R. v. Boudreault 2012 SCC 56, there was no question that the Defendant was too drunk to drive -- he asked a friend to call a cab to take him home for precisely this reason. His friend called twice and the cab didn’t come. At that point, the Defendant had to wait outside for the cab on a bitterly cold evening. According to the trial testimony, the temperature outside was -15C (5F). Eventually, the Defendant went to his trunk, started the truck, and waited for the cab. He made no attempt to move the vehicle. He eventually either passed out or fell asleep. When the cab finally showed, the cabbie didn’t try to wake the Defendant; he called the police. When the police arrived, they woke the Defendant and arrested him for drunk driving. The Quebec trial court dismissed the charges against the Defendant (2010 QCCQ 11443 (CanLII)) and the Crown appealed. The Quebec Court of Appeals reversed the dismissal stating that the Defendant had control and dominion over the vehicle (2011 QCCA 2071 (CanLII)). The opinion is in French. Click here for a Google translation of the ruling. The trial court made an express finding of fact that the Defendant had no intent to move the vehicle and did not move the vehicle. The Quebec Court of Appeals stated an intent to move or drive the car was not required.The Canadian Supreme Court disagreed. The Court accepted the trial court’s premise that the Defendant did not have an intent to move the car and that the statute needed to be interpreted in light of the statute’s purpose -- to keep drunk driver’s off the road and to protect the public. “

Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews at p. 126, citing R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.), at p. 384. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.

Canada Gets Tough on Immigrants Whether they Need to or Not

An interesting article appeared in the Toronto Post about Canada’s new get tough on immigrant policies being pushed by the Harper government. Crime rates are way down, but it is easy to campaign on people’s fear of crime. Sounds like Prime Minister Harper is taking a cue from his neighbor to the south (or north if you are a Detroiter).

Great Computer Search Decision from Canada

Hats off to the Canadian Supreme Court for a very important ruling.. On the 19th, the Court held in R v Cole, 2012 SCC 53 that an individual has a heightened privacy interest in their computers. They spoke to the personal information we store on our machines and then found that an individual who brings his computer in for repair maintains a privacy interest in the computer’s contents. The police may not “piggyback” on the limited release of the computer to the technician for service. Canadian Supreme Court rulings may be cited by U.S. Courts for their advisory value. Trans-Tec Asia v M/V Harmony Container, 518 F3d 1120 (CA 9 2008) (Canadian ruling is “instructive”). The ruling cites to many U.S. decisions and will therefore have stronger advisory value than most foreign rulings.

Canada's CBSA Liberalizes Waiver Procedure for U.S. Visitors With a Single Drunk Driving or Other Minor Conviction

Many US citizens have been turned back for having a single drunk driving conviction. Under Canadian law, a drunk driving is consider an “hybrid offense” and can be prosecuted as a felony (“indictable”) offense. This has meant that an American with a comparable offense was deemed inadmissible to Canada (but could get waivers after jumping through hoops and paying fees). Recently, the Canadian Border Services Agency (“CBSA”) released its Operational Bulletin 389. This provides for streamlined (and free) waivers to individuals who have one criminal conviction (not a sex or child pornography offense) where no jail or prison was imposed. Read More...