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Toronto Criminal Law Blog


Auditors meet Investigators at the Point of Predominant Purpose For the last several years, tax professionals have been in a state of confusion about the implications of when a tax audit has been used by the CCRA for purposes of investigating tax evasion. Recently, the Supreme Court of Canada has provided guidance on this issue, but has also left the tax professional and the taxpayer with lingering questions. In Regina v. Jarvis, CCRA had commenced an audit into sales by the taxpayer of his art collection. Audit branch conducted an independent investigation and determined that the taxpayer had significantly underreported…

Impaired Driving Investigations – Right in Your Own Driveway

In a recent decision, the Ontario Court of Appeal visited the issue of police investigation powers at a private driveway. In R. v. Lotozky the respondent had been investigated and arrested by two police officers in his driveway. Their interest had been generated by a radio call that an impaired driver had been attempting to use the drive-through window of a local restaurant. The police matched the licence plate to an address and watched as the driver approached that address oddly. The driver parked in the driveway, at which time he was approached by the two police officers, investigated for…

R. v. Khelawon, 2006 SCC 57 – Clarifying Hearsay, Again

This recent decision of the Supreme Court of Canada has once again attempted to clarify how lower courts are to deal with issues of necessity and reliability in the determination of whether an out-of-court video taped statement ought to be admitted into evidence at trial. The issue often arises in domestic violence cases where a complainant does not wish to attend court or proceed to trial after having given the police a video statement under oath. When the complainant fails to attend court or is otherwise unavailable, the Crown can bring an Application to admit the statement for the truth…

WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

Defending impaired driving and over 80 cases often involves a challenge to the actions of police officers holding up their conduct to the scrutiny of the Charter. One such area is the right to remain silent and to advise from counsel. Technology has yielded digitally recorded real time evidence showing the interaction between the police and the detainee while in the police station. This has a dual affect. All actions of the detainee are captured for all to see at a trial but similarly the officers are constrained in their actions, thereby resisting making any threats or promises to induce…

Keep it in – Minor Breaches of the Charter are Okay with the Court

There is no doubt that impaired driving is a serious social issue affecting Canadians across Canada. The consequences of a conviction for impaired driving can have long lasting implications for an individual. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel of choice, or an unreasonable seizure of breath have traditionally resulted in exclusion of the breath readings with little analysis of s. 24(2). A recent decision of Mr. Justice Ducharme…


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,…

Who Polices the Police? Not the Court of Appeal!

The Ontario Court of Appeal in the recent case of Regina v. Harrison, 2008 ONCA 85, has given a license for police to trample on individual rights so long as the fruits of their conduct yields evidence of a crime. Under what appears to be a new form of analysis of s. 24(2) of the Charter, as long as the Crown can establish that the admission of the impugned evidence is necessary to continue the prosecution, the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it, and thus,…

BAD BOYS, BAD BOYS, What you going to do – Police Disciplinary Reports and Disclosure

For years, criminal defence lawyers across Canada have been told by their Crown Attorney counterparts that a third party record application was required in order to obtain police disciplinary records in defence of their clients. For years, criminal defence lawyers have argued, mostly unsuccessfully, that an officer's prior improper conduct was relevant to the police investigation and essential to making full answer and defence. On January 16, 2009, the Supreme Court of Canada finally released their decision in R. v. McNeil (originally argued on March 19, 2008.) This is the first significant decision out of the Supreme Court to deal…

The Rise and Fall of Evidence to the Contrary: A Brief History

Introduction Although charges of impaired/over 80 have decreased in the past two decades, these driving offences currently constitute 12% of all cases on the dockets of lower courts. With approximately 15,000 impaired/over 80 cases being heard every year in the low courts, these offences represent the largest category of offence currently being tried in this court. Parliament first introduced the offence of "driving while intoxicated" in 1921 but it was not until the late 1950's that law enforcement officials began to use breath testing devices as an evidentiary tool for the prosecution of impaired driving. Provision of breath samples were…


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