It’s rare that lawyers go to the Supreme Court of Canada. So it is with great excitement that our firm just won a major victory—we were granted leave to appeal to our highest court. Even just being told that we can argue our case at the SCC is a cause for celebration, although we still have a long road ahead of us.
Here’s a very brief, Coles Notes version of events. An accused person can appeal a conviction or sentence handed down at trial. The Crown can appeal an acquittal or sentence. Summary conviction appeals can go to either the B.C. Supreme Court or the Court of Appeal; indictable offences are appealed directly to the Court of Appeal. The appellate court can either grant or dismiss the appeal. If there’s a dissent (meaning not all the judges at the Court of Appeal agree on the outcome), the losing side automatically gets leave to appeal to the SCC. Otherwise, you have to ask for it and the stats aren’t in your favour.
As per the Supreme Court of Canada website, in 2008, 499 applications for leave to appeal were received, 448 were dismissed, and only 51 granted. In 2009, 503 applications were received, 444 were dismissed, and 59 were granted. In 2010, 442 applications were received, 388 were dismissed, and 54 were granted. For 2011, 523 applications were received, 398 were dismissed, 62 were granted, and 63 were pending as of December 31.
If your case doesn’t raise an issue of national importance, the SCC will most likely dismiss your application. For example, there needs to be a law that the courts are unsure of interpreting or it’s being interpreted in a different way across the country.
Let me use our case as an illustration. Our client was charged with a marijuana grow operation. The issue at trial was whether a search warrant authorizing police to search for documents also authorized them to search any computer or electronic device (like a cellphone) found in the residence. We argued that it didn’t, since the police’s ability to search our homes can only be given under the strictest of circumstances. We argued that this was a breach of our client’s Section 8 charter right against unreasonable search and seizure. The trial judge agreed and excluded evidence tying our client to the residence.
The Crown appealed the decision and the B.C. Court of Appeal found that the trial judge made a mistake in her judgment. The acquittal was overturned and a new trial was ordered. We then filed our application for leave to appeal to the SCC (which must be done within 60 days of the Court of Appeal’s judgment). The leave application includes a written argument, where we’re basically explaining to the SCC what our legal issues are and why our case is a matter of national importance.
Many people think that when judges find charter breaches and throw out evidence that Mr. Bad Guy is getting off scot-free based on a “technicality”. I’ve been asked whether it bothers me when a murderer walks free because the Crown couldn’t use the smoking gun or the full confession. My answer is always “not in the least”. It’s the Crown’s job to prove its case, not defence’s job to prove their client’s innocence. We’re all working in a system that has a set of rules and laws for a reason. The charter has existed now for 30 years and the police must be vigilant in upholding the law while investigating crime.
There have also been many cases where, even after incriminating evidence has been excluded on the basis of charter breaches, the accused has been convicted after the continuation of the trial or at a new trial of the matter. One recent and prominent example is the Michael Rafferty case in Ontario, where the evidence of Rafferty’s child pornography Internet searches was excluded from his trial yet he was still ultimately convicted on the admissible evidence. That’s why the argument that lawyers and judges thwart real justice by using the charter couldn’t be further from the truth.
Our case is about when and how the police are authorized to search through computers and cellphones when they’re searching a residence since these devices now hold staggering amounts of highly private, personal information. Our position is that the police need to explicitly ask for permission to search computers and prove why they believe those items will be found and what evidence they’ll afford. To me, this is an extremely important issue and an area where our privacy rights must be protected. We’ll have to wait and see how our highest court decides.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at email@example.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.