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Solitary Confinement – The law and practice in Canada.

Alberta Judge Rules That Keeping Inmates In Solitary Confinement Is Not Reasonable

Further pressure has been added to Canada’s prison agency to change its policy on solitary confinement.

In a recent decision, an Alberta judge released three inmates from segregation cells, concluding that prison authorities ignored factors surrounding procedural fairness, aboriginal identity and mental health history before placing them in isolation.  On July 28, 2016, staff at the maximum security Edmonton Institution placed Matthew Hamm, Shawn Keepness and Taylor Tobin in solitary confinement after a confidential informant told the staff that the individuals planned to assault a group of prison guards.

solitary confinementWhen individuals are placed in solitary confinement, staff are legally obliged to give reasons with detailed explanations behind their decision.  The inmates were denied procedural fairness and not given the right to counsel, therefore, the inmates, working without lawyers filed an application of habeas corpus.  This application led to a judicial review of the decision.

A habeas corpus is a medieval writ stating “no man shall be arrested or imprisoned except by lawful judgement of his peers or by the law of the land”.  Today this writ allows for a judicial review of prison actions that further erode an inmate’s residual liberties.  Before Mr. Hamm was able to exercise his rights and argue his transfer before a judge, he was sent to solitary confinement.

Justice Joanne Veit of the Alberta Court of Queen’s Bench states:

“Given the basis on which the inmates were sent to solitary confinement, and the individual mental health and aboriginal circumstances of each inmate, the decisions to send each of them to solitary confinement is not reasonable”.

The judge agreed with the argument of the inmates, stating that “upon reviewing all the information that the Correctional Service withheld from the inmates… In the totality of the evidence on this application, I am unable to conclude that the institution had reliable and credible information that these applicants were planning a serious assault on three identified guards”.

In further support of the inmates, she noted that the institution had never laid charges, criminal or institutional, for their alleged conspiracy of beating the jail guards.

Justice Veit, found it concerning that the reasons given by the correctional officer’s decisions did not address any aboriginal or mental health issues.  These factors should have been given considerable weight and were not even mentioned.  It is important to note that Mr. Hamm suffered from bi-polar disorder and both Mr. Keepness and Mr. Tobin are aboriginal.

Hopefully this decision will shed light on solitary confinement and inmate rights in Ontario.  There is no doubt that prison reform must take place.  Prisons are underfunded and both inmates and prison guards suffer from the consequences of poor policy and underfunding.




Password Rights? Police want your password.

Police Want Your Cell Phone Password

On August 16, 2016, the Canadian Association of Chiefs of Police passed a resolution calling for  a legal measure to unlock digital devices.  Police claim that this resolution is necessary due to high levels of criminal activity being stored and encrypted on cellular devices.  Currently, there is nothing legislated in Canadian law that forces anyone to provide their password to law enforcement for their digital device.

RCMP Assistant Commissioner, Joe Oliver, made several statements regarding the urgency to attack this policy.  Oliver states:

“From child abusers to mobsters — [they] are operating online in almost complete anonymity with the help of tools that mask identities and messages, a phenomenon police call “going dark.”

“The victims in the digital space are real… Canada’s law and policing capabilities must keep pace with the evolution of technology.”

Opposing the resolution, David Christopher, a spokesman for OpenMedia, a group that keeps the Internet surveillance free, claims that the Chiefs proposed scheme is disproportionate because unlocking someone’s laptop, unlocks “the key to [their] whole life”.

The federal government has started looking at issues of cybersecurity that will balance issues of privacy and online freedoms of Canadians.

password rights police search

Background on Canadian Privacy Law

R v Spencer was a landmark decision by the Supreme Court of Canada in 2014 that ruled that individuals have a reasonable expectation of privacy in Internet usage information.  This meant that law enforcement agencies that wish to acquire subscriber information must obtain a warrant.  Prior to this decision, law enforcement were simply able to request the information from Internet providers without a warrant.

In Spencer, the Supreme Court of Canada rejected the argument that Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) allowed Internet service providers to provide subscriber information with a a simple request.

Following the ruling of this case, Spencer was hailed by privacy law advocates as a monumental shift towards establishing meaningful protection of privacy and fundamental notions of liberty and human rights.  However, law enforcement worries and argues that this decision creates new challenges for protecting potential child victims, specifically in the realm of child pornography.

Looking Ahead

The issue of privacy and the Internet is nothing new.  Since the advent of the Internet, there has been a constant balancing act between the privacy interests of individuals and the rights of law enforcement.  If law enforcement are granted the right to access an accused’s password without consent of the individual, it will no doubt be the subject of arguments infringing under the Charter of Rights and Freedoms.

We Can Help

Have you been part of a police investigation where law enforcement has demanded the password to your electronic device?  Do you have questions regarding cellphone or computer searches? If so, trust the criminal law experts at Smordin Law.  We are available to answer all your questions regarding PIPEDA, the Charter of Rights and Freedoms and the Criminal Code.




Hearsay Evidence – Learn the facts.

What is Hearsay Evidence?

I am sure that most people have heard the term “hearsay” when it comes to evidence.  Television shows, including Suits, makes hearsay a household term, but what does it mean?

Hearsay is an out of court statement that is offered to prove the truth of its contents.  The key to this definition is that hearsay, is a statement made “outside of court”.  This includes implied statements, which can be any assertion revealed through actions instead of words.  This occurs when an action is meant to communicate a message.  An example of that may be someone making a gesture implying physical violence or threat, or someone nodding their head to signal “yes” or “no”.

Recognizing Hearsay

Hearsay is meant to be excluded as evidence due to the fundamental concern that hearsay evidence cannot be tested for the truth of its contents.  Our adversarial system rests upon calling witnesses who can give evidence under oath.  This way they can be observed to analyze their demeanour and can be subject to cross-examination.  Statements made out of court simply cannot be tested.  In R v Starr, Justice Iacobucci accepted the following explanation for hearsay evidence:

“Hearsay statements are excluded from evidence in trials because of the difficulty of testing their reliability.  If a person who actually observed a fact is not in court, but a statement he made to someone is introduced in evidence, there is no way of inquiring into a person’s perception, memory, narration or sincerity.  His statement about the fact might be false because he misperceived it or did not remember it correctly, or he may have misled the person to whom it was made because he used words not commonly used, or he may have lied about it.  These factors, which determine the reliability of his statement, can only be tested if he is in the courtroom and subject to cross examination (R v Starr).”

Consider this following example to illustrate the need for cross examination:

Say for example someone is being prosecuted for drunk driving.  Bob, a witness, states that the passenger of the car driven by the allegedly drunk driver, said that the driver was drinking and was drunk.  The problem with this statement is that Bob is giving evidence of a statement that was made out of court for the truth of its contents; therefore, resulting in a hearsay statement.

Think of the importance of cross examination: a skilled lawyer would attack the validity of this statement by asking questions such as; What did you observe the accused drinking? How did you know that it was alcohol? Over what period of time did you see the accused drinking the alcohol? Why did you conclude that the accused was drunk.  Therefore, without this witness being able to testify.

Ask the Professionals

Are you unsure about hearsay statements? Are you concerned that someone is trying to use a hearsay statement against you?  Know your rights and trust the experienced professionals at Smordin Law.  We carefully analyze and dissect every statement made against you to be sure that your rights are not violated.  If you have any questions or concerns, call Smordin Law for your free consultation.

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Medical Marijuana Users will be able to Grow their own Cannabis

medical marijuana

Changing Legislation on Medical Marijuana

This past February, Justice Michael Phelan of the Federal Court, struck down the former Conservative government’s 2013 law that required medical marijuana patients to buy their marijuana from a licensed producer rather than growing their own.  Justice Phelan ruled in Vancouver that marijuana for medical purposes regulations infringe rights under the Charter of Rights and Freedoms.  Justice Phelan said that the “rules limited a patient to a single government-approved contractor and eliminated the ability to grow one’s own marijuana or choose one’s own supplier” restricts a patient’s liberties.

The Judge made it clear that this ruling does not change other laws or make it legal for Canadians without a prescription to use marijuana recreationally.  After this ruling, Parliament was given six-months to re-write the legislation to conform with this ruling.  Justice Phelan also ruled that 28,000 patients that were allowed to keep growing their medical marijuana under a 2014 injunction could continue growing until the new legislation comes in force.  Health Canada said that the injunction will remain in place until they are confident that the government can handle thousands of new patients entering the system.

The New Legislation

On August 11, 2016, new legislation was drafted that will come into force August 24th, 2016, allowing medical marijuana patients to grow a limited amount of cannabis at home or have it grown for them.  Patients that are approved by a physician to use marijuana may submit an application to Health Canada along with an original medical document and the location that the marijuana will be grown.

Further, if a patient is not healthy enough or chooses not to grow their own marijuana, they will be entitled to have a third party grown their marijuana.  In order to be a third party grower, the individual must pass a background check and not have been convicted of a drug offence in the past ten years.  A third party will not be legally allowed to grow for more than two people.

If a medical marijuana user does not want to grow their own cannabis or have a third party grow it for them, they still have the option of purchasing their marijuana from one of thirty-four Health Canada approved producers.  Under the current laws, this is the only source available.

How much can you grow?

Once the legislation is changed to reflect the new laws, an individual that for example, is prescribed one gram per day, could legally grow two plants outdoors or five plants indoors.  Health Canada states that the discrepancy is because outdoor plants grow much larger and yield more marijuana.

Jacqueline Bogden, assistant deputy minister for cannabis legalization and regulation, stated that “Health Canada is confident that these new regulations provide reasonable access to cannabis for medical purposes and address the issues identified by the Federal Court.”  Health Canada further commented that they are opposed to illegal dispensaries, which continue to operate despite recent police raids in Toronto.

Do you have Questions?

If you have questions regarding to government’s new legislation or have been charged with a drug related offence, trust the experts at Smordin Law.  Our experienced team can advise you on all of your criminal matters and inquiries.

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