Nicholas E. Devlin

The Canadian Broadcasting Corporation sought to vary a sealing order made at trial to gain access to DVD audio recordings of an undercover operative for journalistic purposes.

The trial judge had sealed the recordings to protect the identity of the undercover agent.

The Crown opposed the motion, arguing that the circumstances justifying the original sealing order remained unchanged.

The appellate court applied the Dagenais/Mentuck test and found that the sealing order was no longer necessary because reasonable alternative measures—specifically, voice and facial alterations—could adequately protect the operative's identity while allowing media access.

The court granted the motion subject to conditions regarding alteration of the recordings.

The accused appealed convictions for firearms and drug trafficking offences, challenging production orders used to obtain historical text messages from a telecommunications provider.

The Court held the accused had standing under s. 8 of the Charter because he had a reasonable expectation of privacy in the electronic conversation records.

The majority concluded that seizure of already sent and received messages from provider storage was lawfully authorized by the production order regime and did not require a Part VI wiretap authorization.

A dissent would have treated acquisition of those messages as requiring Part VI authorization and would have excluded the evidence under s. 24(2).

The appellant was convicted of multiple counts of possession for the purpose of trafficking and possession of proceeds of crime after police discovered drugs and cash following an anonymous call reporting a break-in at his residence.

The appellant sought to exclude the evidence, alleging that police had staged the break-in and made the anonymous call in breach of his Charter rights.

The pre-trial judge dismissed the application, finding the appellant had not met the burden of proving the illegality of the warrantless entry.

The Court of Appeal allowed the appeal on two grounds: (1) the trial judge erred in finding he lacked authority to permit the defence to record testimony with a high-quality microphone for voice identification analysis; and (2) the trial judge erred in placing the burden of proof on the appellant rather than the Crown to justify the warrantless entry.

The appellant appealed his conviction and sentence for conspiracy to traffic in GHB.

He argued the trial judge erred in assessing the credibility of a police agent, in applying a previous binding decision, and in treating the nature of GHB as a date-rape drug as an aggravating factor on sentencing.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no errors in the trial judge's credibility assessment, legal analysis, or sentencing.

The Crown appealed the accused's acquittal on drug and weapons charges after the trial judge excluded evidence seized from his residence under s. 24(2) of the Charter.

The police obtained search warrants for the accused's restaurant and residence based on a confidential informant's tip.

The Court of Appeal found the information to obtain (ITO) for the restaurant was sufficient, but the ITO for the residence lacked detail and failed to indicate the informant's source of knowledge.

The Court upheld the trial judge's finding that the search of the residence violated s. 8 of the Charter and that the evidence should be excluded under s. 24(2), noting the misleading and careless drafting of the ITO.

The Crown appealed the accused's acquittal on drug and weapons charges, which followed the trial judge's exclusion of evidence seized from the accused's residence.

The police had obtained search warrants for the accused's restaurant and residence based primarily on information from a confidential informant.

The Court of Appeal found that while the warrant for the restaurant was validly issued, the information supporting the residence warrant was insufficient, as it lacked details about the informant's source of knowledge regarding drugs in the home.

The Court concluded that the search of the residence violated section 8 of the Charter.

Applying the Grant framework, the Court upheld the exclusion of the evidence under section 24(2), noting that the police conduct in drafting the Information to Obtain was careless and misleading, rendering the breach serious.

The appeal was dismissed.

The Crown appealed from a sentencing decision declining to impose a $4.7 million fine on an offender convicted of customs fraud involving the same amount.

The Supreme Court held that under s. 734(2) of the Criminal Code, a fine may be imposed only where the court is satisfied on a balance of probabilities that the offender is able to pay it.

Past receipt of illegally obtained funds may support an inference of present ability to pay, but it does not shift a formal evidentiary or persuasive burden to the offender, nor does it compel the sentencing judge to draw that inference.

On the record, the sentencing judge made no reviewable error in concluding she was not satisfied that the offender could pay the fine.

The Crown appealed a decision of the Ontario Superior Court of Justice that struck down the section 38 scheme of the Canada Evidence Act as unconstitutional.

The scheme grants the Federal Court jurisdiction to determine questions of disclosure of information pertaining to international relations, national defence, or national security.

The Supreme Court of Canada allowed the appeal, holding that the scheme does not violate section 96 of the Constitution Act, 1867 or section 7 of the Charter.

The Court found that the scheme preserves the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including entering a stay of proceedings if necessary to protect the accused's right to a fair trial.

The appellant appealed his convictions, arguing that the conduct of a police officer constituted entrapment.

The Supreme Court of Canada dismissed the appeal, agreeing with the Court of Appeal that the brief conversation between the police officer and the appellant did not ground a finding of entrapment.

The Court noted that the appellant was not induced to commit a crime but was already engaged in criminal activities when he allowed the officer to witness a drug transaction.