A Canadian catch-up

Now it’s time to catch up on some recent cases from the Supreme Court of Canada:

R v Prokofiew, 2012 SCC 49 (12 October 2012) concerns counsel for a co-defendant’s comments on D’s failure to testify and when the judge should direct the jury on D’s silence. It was wrong for counsel for the co-defendant to ask the jury to infer D’s guilt from his silence at trial. The exercise of a right to silence is not evidence of guilt. The jury could be invited to infer that evidence was credible and reliable if it was uncontradicted, but the judge should direct the jury that there is no requirement that uncontradicted evidence must be accepted.

R v Cole, 2012 SCC 53 (19 October 2012) discusses when there may be a reasonable expectation of privacy in relation to the contents of a computer that was provided by an employer for use at work. The circumstances had to be considered in their totality and ownership was not determinative. An expectation of privacy may be reduced but still reasonable. Here D’s reasonable expectation of privacy was breached, but applying the test of admissibility required by s 24(2) of the Charter, admission of the evidence did not bring the administration of justice into disrepute.

R v Boudreault, 2012 SCC 56 (26 October 2012) decides that the offence of having care and control of a motor vehicle while impaired requires a realistic, not merely a theoretical, risk of danger, and whether this exists is a question of fact. Here D fell asleep in a parked vehicle while sitting in the driver’s seat with the engine running so that the heater worked, while awaiting the arrival of a taxi. There was held to be no real risk of danger on these facts.

R v Nedelcu, 2012 SCC 59 (7 November 2012) focuses on when evidence is “incriminating”. It is not incriminating if it does not tend to prove guilt but merely questions D’s credibility. Here, evidence disclosed during pre-trial civil procedures was sought to be used in a criminal trial.

Dineley v R, 2012 SCC 58 (2 November 2012) concerns when retrospective legislation can be interpreted to apply to current proceedings. The key is not whether the legislation is procedural or substantive, but rather whether it changes substantive rights. Retrospective effect is only given – where this is a question of interpretation – in exceptional circumstances if it affects vested or substantive rights. Here the legislation purported to remove a defence.

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