On behalf of Neuberger & Partners LLP posted in Criminal Defence on Thursday January 31, 2013.

By Leora R. Shemesh

Given the prevalence of gang and gun related homicides, exclusion of illegally obtained evidence has become difficult if not impossible to achieve on a section 24(2) Charter analysis. It is submitted, however, that we should not determine rights based on moral panic respecting the issue.

Commonly, compelling Charter Applications are advanced on section 8 and/or section 9 violations, wherein officers detain young black men on city streets, in vehicles or in apartment complexes, and then subject them to an investigative detention and subsequent search of their pockets, person – and discover a firearm. Judges are often failing to exclude firearms, claiming that the public would be shocked if such evidence was excluded and those responsible would escape punishment. Judges have explicitly stated the following:

I have further considered that the exclusion of the evidence, being an unregistered firearm, would bring the administration of justice into disrepute given the known concern of the public for its safety as it relates to unregistered guns in particular.

– Regina v. Bullok, [2000] O.J. No. 796 (Ont. S.C.)

Judges have distinguished between the exclusion evidence of drugs or property from that of exclusion of evidence of a firearm. In one recent case, the Court excluded evidence of marijuana and cocaine but admitted the firearm, even though all were found during the same unreasonable search and seizure.

In weighing the three factors, I conclude that the evidence of marijuana and cocaine which resulted from the searches of Stewart, Emsley and Tomlin should be excluded and the evidence relating to the firearms and ammunition should be admitted. In reaching this conclusion, I considered the drug evidence, the firearm evidence and ammunition evidence separately in weighing the three Collins factors…. The discovery of the firearms and ammunition resulted in very serious charges. In weighing the three Collins factors, I conclude that the administration of justice would be brought into greater disrepute by excluding the firearms and ammunition evidence that it would by admitting the evidence.

– Regina v. Emsley, [2006] O.J. No. 5476 (Sup. Crt)

Often where courts find arbitrary detentions, the language chosen by the court to describe the breach may limit the remedy. Terms such as “technical” and “good faith” are used to describe the conduct, and thereby justify admitting the impugned evidence. For example:

The detention of the vehicle was brief and there was no damage. This was a lawful investigative detention involving an armed home invasion at the same address to which the vehicle was registered. The search was conducted in good faith. In my view, there were no material differences in the police recollection of events. Therefore, any breach would not have been sufficiently serious to justify the exclusion of evidence. The evidence of the firearm and the marijuana is essential to the prosecution of this case. It is reliable evidence in support of serious criminal charges involving a loaded prohibited firearm ready to be fired as well as possession of 10 ounces of marijuana for the purpose of trafficking. This weighs in favour of admission. These factors strongly suggest that the evidence should be admitted under section 24(2) of the Charter. Its exclusion would have a more serious impact on the administration of justice than its admission.

– Regina v. Van Rossum, [2005] O.J. No. 6136 (Sup. Crt.)

Justice Moldaver in Regina v. L.B. recently provided a template. Justice Moldaver rested his section 24(2) analysis on the media’s interpretation of our city streets and the level of crime which may be plaguing our youth and disregarded the true state of our streets and the over policing of certain communities. He reasoned the following:

This case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined twenty-five years ago when the Charter first came to being. Sadly, in recent times, such images have become all too common – children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief. That is the backdrop of this case and in my view, it provides the context within which the conduct of the police should be measured, for the purpose of section 24(2), in deciding whether we should be excluding completely reliable evidence (here, the gun) and freeing, potentially dangerous people without a trial on the merits.

– Regina v. L.B., [2007] O.J. No. 3290 (C.A)

Yes guns are bad, but it is submitted that the danger with this analysis is that it can be used with many crimes. Now it is being extended to drinking and driving cases. Due to the public regard for the carnage caused by impaired driving accidents, the courts are finding that breath readings must be admitted and not excluded (see Regina v. Traicheff [Unreported, 2007]). Cases like L.B. have given police officers wide latitude. We should not, it is submitted, sacrifice fundamental legal rights because of the public concern about gun crime.

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On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
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  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
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  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

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What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
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Stay safe and healthy,

Joseph Neuberger