by Jason Tarnow | Jun 1, 2026 | Media, Wheels Of Justice
As a Vancouver criminal defence lawyer with years of experience navigating the British Columbia courts, I’ve seen firsthand how trial delays can make or break a case. Last Friday, May 29, 2026, the Supreme Court of Canada released a significant decision in R. v. Jacques-Taylor, 2026 SCC 20, that refines the application of the Jordan framework to joint trials and particularly complex prosecutions. This ruling comes at a critical time for Canadian criminal law, especially in busy jurisdictions like Vancouver and the Lower Mainland, where multi-accused firearms, drug, and organized crime cases are common.
The Jordan Framework: A Quick Refresher
In 2016, the Supreme Court’s landmark decision in R. v. Jordan, 2016 SCC 27, established presumptive ceilings for trial delays under section 11(b) of the Canadian Charter of Rights and Freedoms: 18 months in provincial court and 30 months in superior court from the date charges are laid to the end of trial. Exceeding these ceilings presumptively violates the right to be tried within a reasonable time, often resulting in a stay of proceedings.
The framework categorizes delay into three types: defence delay, Crown delay, and discrete exceptional circumstances (like unforeseen events the Crown couldn’t reasonably avoid). Over the past decade, Jordan has led to thousands of cases being stayed, prompting ongoing debate about its impact on public safety, victim rights, and the administration of justice—particularly in complex cases involving multiple accused, voluminous disclosure, or expert evidence.
What Happened in R. v. Jacques-Taylor?
Elijah Jacques-Taylor and a co-accused faced firearms and drug-related charges. When scheduling the joint trial, counsel availability created a roughly two-month scheduling conflict. The trial ultimately exceeded the Jordan ceiling, leading to a stay at the trial level that was upheld on appeal. The Supreme Court allowed the Crown’s appeal, set aside the stay, and remitted the matter for trial.
Writing for the majority (Justice Suzanne Côté, with Chief Justice Wagner and others concurring), the Court held that delays caused by scheduling conflicts in a joint trial can constitute a discrete exceptional circumstance. Joint trials promote efficiency, consistency in verdicts, and fairness by avoiding inconsistent outcomes or one accused testifying against another in separate proceedings. The Court emphasized that the Jordan framework already provides sufficient flexibility for increasingly complex modern prosecutions without needing a wholesale overhaul.
In a companion analysis, the Court addressed “particularly complex” cases—those with massive disclosure, numerous witnesses, or novel legal issues—reaffirming that the framework can accommodate them where justified.
Implications for Practitioners in British Columbia
This decision is highly relevant for Vancouver criminal defence lawyers and those practicing across BC. The Lower Mainland sees frequent joint prosecutions in cases involving alleged gang activity, drug trafficking, and firearms offences under the Criminal Code. Defence counsel must now carefully strategize around joint trial scheduling.
Key Takeaways for the Defence Bar:
- Scheduling Matters: Defence lawyers should document efforts to secure earlier dates and consider severance applications under section 591(1) of the Criminal Code where a co-accused’s unavailability prejudices their client’s Jordan rights. However, courts will presume joint trials are in the interests of justice.
- Complexity Arguments: In multi-count indictments or cases with extensive wiretap evidence, proactively build a record showing why additional time is necessary. This ruling reinforces that legitimate complexity can justify exceeding ceilings without automatically triggering a stay.
- Charter Strategy: While the decision tilts toward flexibility for the Crown in joint matters, it does not dilute the core Jordan protections. Accused persons still benefit from the presumptive ceilings. In Vancouver Supreme Court or Provincial Court, we must remain vigilant in bringing Jordan applications with strong evidence of prejudice.
For clients, this means greater predictability in some cases but potentially longer waits in complex or multi-party matters. As defence counsel, our role is to mitigate unnecessary delay while protecting Charter rights.
Broader Context: Bail Reform, Sentencing Trends, and BC Practice
R. v. Jacques-Taylor arrives amid other recent shifts in Canadian criminal law. Parliament continues to debate Bill C-14 (bail and sentencing reforms) and Bill C-16 (victim protections and intimate partner violence measures), which could further impact how cases proceed through the system. In BC, we’re also seeing the new Criminal Rule 7 effective today, June 1, 2026, governing applications for reduction in parole ineligibility periods—another procedural update practitioners must master.
These developments reflect a balancing act: protecting speedy trial rights while ensuring serious cases—especially those involving violence or organized crime—receive full hearings. In Vancouver, where court backlogs persist despite post-pandemic recovery, this SCC guidance provides welcome clarity without undermining Jordan’s intent.
Practical Advice for Accused Persons and Lawyers
If you or a loved one faces criminal charges in Vancouver or elsewhere in BC:
- Act Early: Engage experienced counsel immediately to assess Jordan risks and push for efficient resolution or severance where appropriate.
- Document Everything: Maintain detailed records of communications with Crown and court staff regarding scheduling.
- Consider All Options: From plea negotiations to Charter challenges, a strategic defence can leverage the flexibility confirmed in Jacques-Taylor while holding the system accountable.
- Stay Informed: Follow developments in Supreme Court jurisprudence and local rules, as procedural nuances often determine outcomes.
For law students and junior lawyers, this case illustrates how the SCC evolves its own precedents to meet real-world demands without sacrificing constitutional principles.
Conclusion: Strengthening Justice Through Balanced Reform
The Supreme Court’s decision in R. v. Jacques-Taylor reinforces that the Jordan framework remains robust and adaptable. It acknowledges the practical realities of joint trials and complex litigation while upholding the fundamental right to timely justice. For Vancouver criminal defence lawyers, it serves as both a caution and an opportunity—to advocate zealously for clients in an evolving landscape.
As someone dedicated to defending the rights of the accused in British Columbia courts, I view this ruling as a positive step toward a more nuanced administration of justice. It reminds us that while efficiency matters, fairness and Charter protections must remain paramount.
This blog post is for educational purposes only and does not constitute legal advice. Every case is unique. If you face criminal charges or have questions about your rights under Canadian criminal law, contact a qualified Vancouver criminal defence lawyer for personalized guidance.
by Jason Tarnow | May 15, 2026 | Crime, Police, Wheels Of Justice
If a police officer walks up your driveway at midnight, knocks on your truck window, and opens the door without a warrant, has your Charter right to be secure from unreasonable search and seizure been violated? As a criminal lawyer in Vancouver, I get versions of this question all the time — from clients facing impaired driving charges, from homeowners who feel their privacy was invaded, and from people who simply want to know where the constitutional line sits between policing and private life.
On March 20, 2026, the Supreme Court of Canada answered that question with more clarity than we have had in nearly thirty years. The decision is R. v. Singer, 2026 SCC 8, and every driver, homeowner, and impaired driving client in British Columbia and the Yukon should understand what it changed — and what it did not.
This post breaks down the facts, the legal doctrine, the result, and the practical takeaways for accused persons and the lawyers who defend them. It is written from the perspective of counsel who runs Charter applications in BC courtrooms regularly. None of it is legal advice; if you are charged with an offence, retain counsel.
Key Takeaways
- The Supreme Court of Canada confirmed in R. v. Singer, 2026 SCC 8 that police have an implied licence to enter a residential driveway and approach a vehicle to knock on the window when investigating an impaired driving complaint.
- That implied licence ends at the vehicle door. Opening the door without a warrant, exigent circumstances, or another lawful authority is a search under section 8 of the Charter.
- The Court still admitted the evidence under section 24(2), citing the seriousness of impaired driving offences — but the breach finding is the part that matters for future cases.
- For drivers in British Columbia and the Yukon, Singer sharpens the boundary between lawful investigative steps and constitutionally significant intrusion.
- If you have been charged after a roadside or driveway investigation, a careful Charter review is essential before any plea is entered.
The Facts: A Driveway, a Truck, and a 911 Call
The accused in Singer was the subject of a third-party complaint about a possibly impaired driver. Two RCMP officers attended his residence and found his pickup truck running in the driveway. He was inside the cab. Without a warrant, the officers walked up the driveway, approached the truck, and knocked on the driver’s window. When that did not produce the response they wanted, they opened the door. What followed — observations, a roadside demand under section 320.27 of the Criminal Code, and ultimately a charge under section 320.14 — flowed directly from that initial driveway encounter.
The defence position at trial, on appeal, and at the Supreme Court was straightforward: the entire investigative sequence was tainted by an unreasonable search of a private residential property, contrary to section 8 of the Canadian Charter of Rights and Freedoms. The Crown’s position was equally clear: police were doing the very kind of front-line community work that the implied licence doctrine has long permitted.
The Implied Licence Doctrine — A Centuries-Old Rule, Newly Tested
The implied licence doctrine is not new. It was articulated in modern form in R. v. Evans, [1996] 1 S.C.R. 8, where Justice Sopinka explained that the common law treats every member of the public — including police — as having an implied invitation to walk up to the door of a dwelling and knock for a legitimate purpose. The reasoning is grounded in social custom: occupiers know that mail carriers, neighbours, and door-to-door visitors will approach their door, and they have implicitly waived the privacy interest in that limited approach.
Three points have always been understood to follow from Evans:
- The licence is limited to the purpose of communicating with the occupant. If the actual purpose is to gather evidence, the licence does not authorize the entry.
- The licence is limited to the route ordinarily used by visitors, typically a walkway or driveway leading to the door.
- The licence ends at the door of the dwelling. Anything beyond — opening a door, peering through a window, lingering — can constitute a search.
What Singer contributes is a clear application of those principles to a vehicle parked in a driveway, which had been a recurring point of confusion in lower courts across the country, including in impaired driving prosecutions here in BC.
Where the Police Crossed the Line
A majority of the Court (Wagner C.J., Côté, Rowe, Kasirer and Jamal JJ.) drew the line in two parts.
Step one was permissible. Walking up the driveway and approaching the truck to knock on the window was within the implied licence. The officers had a legitimate investigative purpose — a recent third-party report of impaired driving — and they used the ordinary route a visitor would use to communicate with the occupant. The Court held this conduct was not a “search” within the meaning of section 8.
Step two was not. When the officers opened the truck door without consent, a warrant, exigent circumstances, or another lawful authority, they intruded upon a reasonable expectation of privacy that the accused continued to hold in the interior of his vehicle. That was a search, and it was unreasonable. The Charter breach was made out.
This bifurcated analysis is significant. It tells defence counsel and trial judges to look at each step of the investigative sequence separately, rather than treating the entire driveway encounter as either lawful or unlawful in one breath.
The Section 24(2) Result — Why the Evidence Got In Anyway
Despite finding the breach, the Court declined to exclude the evidence under section 24(2) of the Charter. Applying the framework from R. v. Grant, 2009 SCC 32 — seriousness of the breach, impact on the accused’s Charter-protected interests, and society’s interest in adjudication on the merits — the majority concluded that admission would not bring the administration of justice into disrepute.
The Court emphasized society’s strong interest in prosecuting impaired driving, an offence that kills and injures Canadians at staggering rates. That weighting is consistent with the recent trajectory of Charter jurisprudence in driving cases, where courts have generally been reluctant to exclude reliable physical evidence of impairment.
For defence counsel, the lesson is sobering but realistic: a Charter breach is not a guaranteed exclusion. Counsel must build a record at trial that addresses each Grant factor with care.
What Singer Means for Drivers and Homeowners in British Columbia
BC and the Yukon have some of the most active impaired driving enforcement programs in Canada. Between RoadSafetyBC’s Immediate Roadside Prohibition regime, mandatory alcohol screening at lawful traffic stops, and a steady stream of third-party 911 calls reporting suspected impaired drivers, the driveway scenario in Singer is not unusual — it is a Friday night.
Three practical points stand out for clients in this jurisdiction:
First, your driveway is not your living room, but it is not the highway either. Police can walk up to investigate or to knock, but they cannot use the driveway as a launchpad for a wider warrantless search of your vehicle or your person. If officers reached into the cab, opened a door, or directed you out of the vehicle without lawful authority, that is a fact pattern worth scrutinizing.
Second, the moment of intrusion matters. Counsel will want to know when the door was opened, what was said immediately before, whether any demand under section 320.27 or 320.28 of the Criminal Code had been made, whether the officer formed reasonable grounds before or after the door opened, and whether the accused was detained at that point for the purposes of section 10 of the Charter.
Third, the Yukon dimension matters too. Many of my files involve clients charged in remote communities where RCMP detachments are small and dwellings are spread over large rural lots. The implied licence doctrine applies the same way, but the factual question of “ordinary route to the door” can look very different on a five-acre Yukon property than on a Vancouver cul-de-sac. Local context drives the analysis.
Defence Strategies After Singer — What Your Lawyer Will Examine
If you are facing an impaired driving charge in British Columbia or the Yukon arising out of a driveway or property entry, a careful defence lawyer will canvass the following:
- The basis for the entry. Was there a 911 call? A welfare check? An anonymous tip? The legitimacy and specificity of the investigative purpose anchors the implied licence analysis.
- The route taken. Did officers follow a normal pedestrian path, or did they cut across a fenced yard, peer through windows, or approach a vehicle parked behind the dwelling out of public view?
- The point of intrusion. Was the door of the vehicle opened, was the trunk opened, was the accused commanded out, was a flashlight directed into a closed cab? Each is a discrete question.
- The grounds for any demand. Were the grounds for an approved screening device demand formed lawfully and before the demand was articulated?
- The Charter caution and right to counsel. Was section 10(b) complied with promptly upon detention?
- The Grant analysis. Even where a breach is established, the section 24(2) record must be built deliberately at trial.
None of this is theoretical. These are the questions I work through with clients in initial consultations, and they are the questions Crown counsel anticipate when they assess a file for resolution or trial.
How Singer Connects to Broader Section 8 Jurisprudence
It is worth situating Singer within the modern Charter landscape. The Supreme Court has been steadily clarifying the contours of reasonable expectation of privacy in cases like R. v. Tessling, 2004 SCC 67 (FLIR overflights), R. v. Patrick, 2009 SCC 17 (curbside garbage), R. v. Marakah, 2017 SCC 59 (text messages), and R. v. Bykovets, 2024 SCC 6 (IP addresses). Singer fits in the line that addresses the home and its immediate surroundings — the so-called “curtilage” — and reaffirms that the constitutional protection of the home extends, in attenuated form, to the spaces that surround it.
Defence lawyers should expect Singer to be cited well beyond impaired driving cases. Anywhere the police step onto private residential property to gather information — drug investigations, weapons calls, even welfare checks that turn evidentiary — the bifurcated Singer analysis will travel.
Frequently Asked Questions
Can the police walk up my driveway in British Columbia without a warrant?
Yes, in most circumstances. Under the implied licence doctrine reaffirmed in R. v. Singer, 2026 SCC 8, police may walk up a residential driveway and approach the door — or, in Singer, a vehicle in the driveway — for a legitimate investigative purpose such as knocking to communicate with the occupant. That implied licence ends at the door.
Can the police open my car door if it is parked in my driveway?
Generally, no — not without a warrant, consent, exigent circumstances, or another lawful authority. Singer confirms that opening the door of a vehicle in a residential driveway is a search under section 8 of the Charter. If your charge stems from such an entry, raise it with counsel immediately.
Does R. v. Singer mean my impaired driving charge will be dismissed?
Not automatically. The Supreme Court found a Charter breach in Singer but admitted the evidence anyway under section 24(2). Whether evidence is excluded in your case depends on the seriousness of the breach, its impact on you, and society’s interest in adjudication on the merits — the framework set out in R. v. Grant, 2009 SCC 32. A careful trial record is essential.
Do I have to answer the door if police knock?
No. The implied licence permits police to approach and knock; it does not compel you to answer or to consent to anything. You are entitled to remain silent and to speak to counsel without delay if you are detained or arrested.
I was charged in the Yukon, not BC. Does Singer apply?
Yes. R. v. Singer, 2026 SCC 8 is a decision of the Supreme Court of Canada and binds courts in every province and territory, including the Yukon Territorial Court and the Supreme Court of Yukon. The factual application may look different in remote or rural settings, but the legal framework is the same.
A Note on Authority and Disclaimer
This post is general legal commentary, not legal advice. Every case turns on its facts, and the impaired driving and Charter framework is technical. If you have been charged with an offence in British Columbia or the Yukon — or if police have entered your property in circumstances that concern you — speak with a criminal defence lawyer before making any statement, entering any plea, or accepting any roadside or administrative penalty.
About the author — Jason Tarnow is a criminal defence lawyer based in Vancouver, British Columbia. He represents clients facing charges across BC and the Yukon, with particular focus on impaired driving, Charter applications, and serious indictable matters. He regularly argues section 8, 9 and 10 motions in trial and appellate courts.
Charged with an offence in BC or the Yukon?
If you have been arrested, detained, or charged — or if you believe police entered your property unlawfully — do not wait. Early advice often makes the difference between a manageable resolution and a lasting record. Contact Jason Tarnow for a confidential consultation. Serving Vancouver, the Lower Mainland, and clients across British Columbia and the Yukon.
by Jason Tarnow | Jan 19, 2024 | Crime, Legal Rights, Media, Police, Wheels Of Justice
How would you feel if your DNA was used to convict a family member?
Last week, news consumers were divided on the use of this tactic to identify and arrest Ibrahim Ali who was recently convicted of the murder and sexual assault of a 13 year old victim in 2017 in Burnaby.
Investigators went undercover at a 2018 Kurdish New Year Celebration handing out samples of tea in hopes of collecting DNA from their suspect – and it worked. Police were able to obtain a sample from a relative of the suspect. The sample was analyzed and compared against the DNA sample collected from semen found inside the victim, and the results were conclusive: the sample collected at the Kurdish New Year Celebration belonged to the brother of the whomever’s DNA was found inside the victim. This critical development resulted in the positive identification of Ibrahim Ali, his subsequent arrest and ultimately, his conviction.
However, certain civil liberties advocates have decried this investigative strategy, claiming it infringes on the privacy rights of people who have their DNA seized when they themselves are not suspected of any wrongdoing. Further, genealogical DNA testing is not frequently accessed or available technology in Canada. As a result, the analysis is often done in the United States, further stoking concerns from privacy experts. Police are required to maintain a “chain of custody” for all exhibits in a case. When the exhibits are forensic material, it is especially important that the chain of custody be meticulously maintained. This becomes increasingly difficult when exhibits leave the custody of Canadian agencies. Further, labs in the United States (and beyond) may not be accredited to the same standard as a Canadian lab. And of course, when private and sensitive material exists in the database of outside agencies, there is always a security risk.
Genealogical DNA testing and its use in criminal law is still very much in its infancy – in Canada, anyways.
This investigational technique gained notoriety in 2018 when it was used to identify and convict the Golden State killer in California, and made headlines again in December 2022 when it was used to identify Bryan Kohberger, currently awaiting trial for the murder of four college students at the University of Idaho.
Canadian Courts and legislators are no doubt paying close attention to developments in the field of Genealogical DNA testing. It is more important now than ever – in the age of ever-advancing scientific exploration and sophisticated tools like AI – that the Courts, and the law, can maintain pace.
by Jason Tarnow | Feb 23, 2021 | Crime, Legal Rights, Police, Politics, Wheels Of Justice
On May 1, 2020, Prime Minister Justin Trudeau issued an Order in Council immediately banning the use, sale and transport of approximately 1,500 “assault” style firearms. This action was met with criticism from firearm owners, retailers and pro-gun advocates from across the country. A two-year amnesty period for restricted firearm owners will expire on April 30, 2022, which is around the time when Bill C-21 could come into effect.
At its first reading in the House of Commons on February 16, 2021, details about Bill C-21 emerged that created further frustration and confusion among Canadian firearm owners and retailers. Described as “an Act to amend certain Acts and to make consequential amendments (firearms)”, Bill C-21 will make substantive changes to both the Criminal Code and the Firearms Act, both of which are Federal legislation, thus impacting Canadians from coast to coast. It will also amend the Immigration and Refugee Act and the Nuclear Safety and Control Act.
Proposed amendments to the Criminal Code include:
- Increasing the maximum penalty of imprisonment for offences under Sections 95, 96, 99, 100 and 103 of the Criminal Code from 10 years to 14 years;
- Establishing a procedure that would allow any person to apply for an emergency prohibition order, or an emergency limitations on access order;
- Deem certain firearms to be prohibited devices for certain provisions;
- Create a new offence for altering a cartridge magazine to exceed its lawful capacity;
- Authorize employees of certain federal entities who are responsible for security to be considered as public officers for the purpose of section 117.07
One of the most concerning amendments, and the focus of today’s blog, involves establishing a procedure that would allow for any person to apply for an emergency prohibition order, or an emergency limitations on access order. The proposed amendment reads as follows:
Application for emergency prohibition order
110.1 (1) Any person may make an ex parte application to a provincial court judge for an order prohibiting another person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, if the person believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.
An ex parte application does not require notice to be given to the adverse party. This means that any person can make an application to a judge seeking the immediate prohibition (and subsequent seizure) of any of the items described in section 110.1(1). Success on the application is discussed next:
Emergency prohibition order
(2) If, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist and that an order should be made without delay to ensure the immediate protection of any person, the judge shall make an order prohibiting the person against whom the order is sought from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for a period not exceeding 30 days, as is specified in the order, beginning on the day on which the order is made.
The seizure process will unfold one of two ways:
Warrant to search and seize
(4) If a provincial court judge is satisfied by information on oath that there are reasonable grounds to believe that a person who is subject to an order made under subsection (2) possesses, in a building, receptacle or place, any thing the possession of which is prohibited by the order, and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the thing, the judge may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and every authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
OR:
Search and seizure without warrant
(5) If, in respect of a person who is subject to an order made under subsection (2), a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person, or of any other person, for the person to possess any thing the possession of which is prohibited by the order, the peace officer may, where the grounds for obtaining a warrant under subsection (4) exist but, by reason of a possible danger to the safety of the person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
The seized items will remain in police custody for 30 days. When the Order expires, the seizing agency (police) must make an application for a Prohibition Order under Section 111(1) of the Criminal Code. This Application requires that the subject of the Order (the firearms/weapons owner) be given notice of the application, and the opportunity to respond in court. At this juncture, there are three ways the seized items can be returned to their owner:
- No application is made for a Prohibition Order under Section 111(1);
- If the hearing does not result in a Prohibition Order being made under Section 111(5);
- If the Order issued at the ex parte application is revoked
While this legislation seeks to establish an alternative procedure that gives the public power to seek protection from violence involving firearms and other weapons, it fails to address the possibility that this power could be abused. Currently, the law requires that an individual report their concerns to the police, who would then engage in an investigation to determine whether a seizure is necessary. When citizens assume this authority, there are a myriad of complications that could pose negative consequences not only to the potential subject of the Order, but to whomever makes the ex parte application. It requires that they take the law into their own hands – something that law enforcement regularly counsels against.
Bill C-21 is still in the early stages of the legislative process, but has garnered both support and criticism from those it will protect, and those it will harm.
by Jason Tarnow | Jan 20, 2021 | Crime, Legal Rights, Police, Social Media, Wheels Of Justice
The internet is a precarious place. We buy, we sell, we talk – and we post. And while that’s all fine and good, it isn’t without consequence. Facebook launched in 2004, and since that time Canadian Courts have addressed and analyzed evidence obtained through Facebook and other social media platforms.
Recently, in a 2-1 decision, in R. v. Martin, 2021 NLCA 1, the Newfoundland and Labrador Court of Appeal overturned a lower court’s decision deeming Facebook screenshots as inadmissible. In a 30 page decision, the Court of Appeal explained how the Provincial Court Judge (“PCJ”) had erred in their analysis of the rules of authentication in relation to the proposed electronic evidence.
The case involves allegations that the Accused, Mr. E. Martin, made threats against the Royal Newfoundland Constabulary (police), via pictures and written communication on Facebook. He was charged with being in possession of a knife for a purpose dangerous to the public peace, being in possession of a rifle for a purpose dangerous to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary.
The police had attended Mr. Martin’s residence one evening to follow up on a domestic disturbance complaint. The investigation went no further than a brief attendance at the Accused’s residence, which resulted in no further action being taken.
The investigation with respect to the charges in this case began when the police received an anonymous tip that the Accused had posted several pictures on Facebook indicating he planned to harm police.
It was the evening following their first visit to Mr. Martin’s residence that the police received the anonymous tip that indicated he had posted a menacing caption, directed at police, combined with photos that included firearms. The police again attended Mr. Martin’s residence, but were clearly not welcomed. They returned to the detachment and tried to view Mr. Martin’s Facebook page, but were unable to view any content. The police then contacted the anonymous tipster to ask if they would email pictures of the postings, which they did. In total, six screen shots were forwarded. The “screenshots” depicted an individual in various poses, kneeling with and holding various firearms that included a rifle and a long gun. The words “Ed’s Post” and “Ed Martin added 4 new photos” appeared as “banners” over the photos, in the typical Facebook font and symbolism.
These screenshots were at the centre of the Crown’s firearms and threats charges against the Accused. A Voir Dire was held to determine the admissibility of the screen shots. Ultimately, the PCJ declined to admit the photos as evidence, reasoning that these items had failed to be authenticated. The PCJ opined that since the anonymous tipster had not been called to give evidence, no one could testify that the screenshots were not altered or changed in anyway. The Court went further to say that there had been nothing to substantiate that the Accused even had a Facebook account, and even if they did, there was no way to determine conclusively that the Accused had been the one to author the posts depicted in the screenshots.
The Accused was convicted of being in possession of a knife for a dangerous purpose (which was found on him at the time of his arrest) but was acquitted on the charges of being in possession of a rifle for a dangerous purpose to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary. The Crown appealed the PCJ’s decision to rule the screenshots inadmissible – which brings us to the Court of Appeal’s analysis of the issue.
The Court of Appeal was thorough and careful to reiterate its explanation of a key component in their analysis: the threshold for admissibility of authenticated electronic documents under the Canada Evidence Act is low, and can be established by both direct and secondary evidence. The proposed electronic evidence must be capable of supporting a finding that the evidence sought to be admitted is what it purports to be.
The Crown submitted that the PCJ had been erroneous in ruling that the screenshots were not authenticated by the evidence adduced at Trial. At the Voir Dire, 10 witnesses, all police officers, were called including the officer who began the investigation and obtained the screenshots. This police officer testified that he was very familiar with the layout of Facebook, and the screenshots were consistent with what he knows of Facebook. While not accepted by the PCJ as an acceptable form of authentication, the Court of Appeal disagreed and suggested that the officer’s testimony was evidence that the screenshots were authentic. Further, the police officer testified about identifying striking similarities between what they saw when they were in attendance at the Accused’s home – clothing, personal items, layout of the residence – that mirrored what they had seen in two of the screenshots. The Court of Appeal found that this information aided in the authentication of the screenshots, and determined that it was not necessary to have the anonymous tipster’s testimony verifying their authenticity. No evidence to the contrary was introduced by the Defence.
The Court of Appeal stressed that authenticity does not determine authorship – meaning that although the evidence is admissible, it is not determinative of who actually authored the post. As a result of their analysis, the Crown’s appeal was allowed and the case was returned back to Provincial Court for further proceedings. As is standard practice, the Court of Appeal did not comment on what probative value the evidence may have.
The introduction of digital evidence in criminal proceedings will continue to create a myriad of issues for the courts to determine. The Charter was not written with these intricacies in mind – and the responsibility lays not only with the courts, but in the hands of criminal lawyers across the country. If your case involves digital evidence (social media postings, text messages, etc.) it is imperative that you contact experienced and seasoned counsel without delay. We are licensed to practice in British Columbia, the Yukon Territory and the Northwest Territories.
by Jason Tarnow | Oct 2, 2020 | Crime, Legal Rights, Media, Police, Politics, Wheels Of Justice
Whenever incidents relating to terrorism in Canada hit the news, the eyes of Canadians widen with revolt. Recent headlines elicited a similar response, with a healthy dose of confusion and curiosity added to the mix.
On September 21, 2020, criminal charges were announced against 25 year old Ontario resident Shehroze Chaudhry – but not due to allegations of committing acts of terrorism. Rather, Chaudhry has been charged under Section 83.231(1) of the Criminal Code – perpetrating a hoax regarding terrorist activity:
83.231 (1) Every one commits an offence who, without lawful excuse and with intent to cause any person to fear death, bodily harm, substantial damage to property or serious interference with the lawful use or operation of property:
(a) conveys or causes or procures to be conveyed information that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing the information to be true; or
(b) commits an act that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing that such activity is occurring or will occur.
Chaudhry was a frequent guest on an award winning New York Times podcast known as “Caliphate”. He spoke, in gruesome detail, of his time as an ISIS executioner in Syria, among other things. But the charges levelled against him assert that his personal experiences as an ISIS soldier are fabricated.
While the NYT claimed to have verified his role in ISIS, he gave conflicting accounts to CBC, even going so far as to say he would take a polygraph to prove he had never killed anyone. He likely thought this would absolve him any criminal liability relating to terrorism offences in Canada, but the charges against him refute this misconception.
The details released from the police don’t specify if any other person was harmed or killed due to the alleged yarn by Chaudhry, but they will play a determinative role if he is convicted. The sentences range from a fine and imprisonment in a provincial correctional institution if prosecuted summarily, to life imprisonment should Crown proceed by indictment.
Chaudhry’s case demonstrates that Canadian jurisprudence condemns all activity relating to terrorism – whether it’s the real deal or not.
