Charter Protection against Unlawful Police Action: Less Black and White Than It Seems

Pre-Charter, in principle the police had limited powers. However, in practical terms it was not possible for a private citizen to object to all police action that fell outside those powers: realistically it was only if the police action were egregious enough to rise to the level of a tort or an offence that there was a mechanism for review. That is, there was a lot of grey area in between the things the police clearly were allowed to do and those they clearly were not allowed to do. The Charter changed that. By making “lawfulness” the standard for deciding whether there was an unreasonable search or an arbitrary detention, the Supreme Court in the ory banished the grey area, making it possible to review any action falling outside the strict limits of police powers. However, experience led to the conclusion that those “strict limits” might in fact be too strict, and so paradoxically the restraint mechanism of the Charter has led in some instances to the expansion of police power. Further, the particular approach taken to expanding police powers amounts to potentially declaring all of the previous grey area to fall within the powers of the police. This paper argues that that is an undesirable strand in Charter jurisprudence, and that it could be avoided by dealing with grey area issues at the remedy stage, as section 24(2) anticipates, rather than at the stage of deciding what powers police have

Arbitrary Detention: Whither — or Wither?: Section 9

This paper points to the surprising fact that 25 years of Charter decisions have not produced a section 9 jurisprudence. The Supreme Court of Canada has said relatively little about arbitrary detention, and much of what it has said is in need of clarification. To date, no consistent framework for analyzing section 9 claims has been articulated: A quarter-century of case law on the right to be free from arbitrary detention has not yet resulted in a clear definition of either the word “arbitrary” or the word “detention”. Indeed, among the relatively few cases which have been decided, the most significant results have been to recognize the existence of new police powers. In that event, the primary effect of section 9 case law to date has been to limit personal rights rather than to protect the m. This paper considers three issues: (1) whether “arbitrary” has or should be equated with “unlawful”; (2) what “arbitrary” means, and (3) what “detention” means. The analysis proceeds in two stages: first, by considering the first 25 years of case law, and the n by considering the start of the second 25 years — or, more simply, everything up to the Supreme Court’s decision in R. v. Clayton and the n Clayton itself. The intent is to show that both prior to and after Clayton, the Court has not created a section 9 jurisprudence. Important questions were left essentially unaddressed until this most recent decision. Clayton addressed some of those issues, but it did so in a way that still does not create anything which could be called a section 9 jurisprudence. Indeed, that decision seems to reflect a retrograde approach which would be more detrimental than beneficial to the protection of Charter rights in general

Making Trial Within a Reasonable Time a Right Once More

Jordan got it right. The use of presumptive ceilings to determine whether there has been a violation of a Charter right is a blunt instrument which eliminates most of the ability of judges to consider the individual circumstances of cases and to exercise discretion. It allows no role for what might seem to be an important consideration, the seriousness of the offence. Had this been the Court’s first attempt at structuring the right, it would seem unsophisticated and simplistic. But of course Jordan is not the first attempt at outlining the contours of the right to a trial within a reasonable time: it is more like the third or fourth. And as a response to the reality which confronted the Court — a reality of the Court’s own making — Jordan made the right choice in eliminating as much discretion as possible

Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big

This article argues that the objections to the Mr. Big investigation technique have been apparent since the very first use of it over a century ago, but that the law has not had the tools to give legal form to those objections until quite recently. The article traces the development of the abuse of process doctrine (from “none at all” to “forward-looking only” to “backward-looking as well”) and of exclusion of evidence (from “none at all” to “only for Charter breaches” to “for non-Charter breaches as well”). Based on that discussion, it argues that it is only in the past couple of years that the law has reached the point of being able to address directly what it is that is problematic about Mr. Big, and therefore that it is no surprise the technique remained largely unchecked until R. v. Hart. Based on that historical analysis, it argues that the second prong of the Hart solution, a reinvigorated abuse of process doctrine, is the more promising approach for the future

Charter Protection against Unlawful Police Action: Less Black and White Than It Seems

Pre-Charter, in principle the police had limited powers. However, in practical terms it was not possible for a private citizen to object to all police action that fell outside those powers: realistically it was only if the police action were egregious enough to rise to the level of a tort or an offence that there was a mechanism for review. That is, there was a lot of grey area in between the things the police clearly were allowed to do and those they clearly were not allowed to do. The Charter changed that. By making “lawfulness” the standard for deciding whether there was an unreasonable search or an arbitrary detention, the Supreme Court in the ory banished the grey area, making it possible to review any action falling outside the strict limits of police powers. However, experience led to the conclusion that those “strict limits” might in fact be too strict, and so paradoxically the restraint mechanism of the Charter has led in some instances to the expansion of police power. Further, the particular approach taken to expanding police powers amounts to potentially declaring all of the previous grey area to fall within the powers of the police. This paper argues that that is an undesirable strand in Charter jurisprudence, and that it could be avoided by dealing with grey area issues at the remedy stage, as section 24(2) anticipates, rather than at the stage of deciding what powers police have

Social Media: The Law Simply Stated

It is a challenge to simply state the law about social media, because there is no such thing as “social media law.” Rather, the law bumps up against social media in many ways. In some cases, existing law can be seamlessly applied to new technologies and means of interaction. In other cases, entirely new paradigms will likely need to be adopted to handle new challenges. Many other cases will fall somewhere in between. Our goal in this Law Simply Stated is to provide some background on the nature of social media themselves, and then to state the basic law in a number of applicable fields. In particular we shall begin with discussion of the definition of “social media,” along with consideration of what we see as an important analytical theme: is this topic a topic? Do the challenges posed by social media have a single solution? Are they matters to which the law can simply adapt, or must new approaches be created? Can the same answer be provided in each context? Following that we will move to discuss basic principles of law in a variety of areas which are relevant to social media. These are: judicial notice; courtroom management; civil discovery; privacy; admissibility of electronic documents; criminal evidence-gathering; employment law; defamation; and finally, cyber-bullying

ArtMaps: A Technology for Looking at Tate’s Collection

This article presents ArtMaps, a crowdsourcing web-based app for desktop and mobile use that allows users to locate, move and annotate artworks in the Tate collection in relation to one or more sets of locations. Here the authors show that ArtMaps extends the ‘space’ of the museum and facilitates a new, pluriperspectival, way of looking at art

ArtMaps: interpreting the spatial footprints of artworks

Creating and utilizing simple links between items and locations in map-based systems has become a mainstream component of modern computing. In this paper, we explore support for ‘art mapping’, an activity that requires consideration of more complex interpretations of spatial relationships as users engage with identifying locations of relevance to artworks. Through a user study of the ArtMaps platform, and an exploratory study with professional artists, we identify diverse interpretations of spatial meaning in relation to art. We find that art mapping highlights potential for more active engagement with art through technology, but challenges existing systems for spatial representation. Through connecting our findings with work on designing for interpretation, and on space and place in HCI, we contribute new understanding of creating engagement through the spatial interpretation of art, and define potential characteristics and uses of holistic ‘footprints’ for artworks

Beyond El Niño: unsung climate modes drive African floods

The El Niño Southern Oscillation (ENSO) dominates the conversation about predictability of climate extremes and early warning and preparedness for floods and droughts, but in Africa other modes of climate variability are also known to influence rainfall anomalies. In this study, we compare the role of ENSO in driving flood hazard over sub-Saharan Africa with modes of climate variability in the Indian and Atlantic Oceans. This is achieved by applying flood frequency approaches to a hydrological reanalysis dataset and streamflow observations for different phases of the ENSO, Indian Ocean Dipole and Tropical South Atlantic climate modes. Our results highlight that Indian and Atlantic Ocean modes of climate variability are equally as important as ENSO for driving changes in the frequency of impactful floods across Africa. We propose that in many parts of Africa a larger consideration of these unsung climate modes could provide improved seasonal predictions of associated flood hazard and better inform adaptation to the changing climate

Effect of digital psychoeducation and peer support on the mental health of family carers supporting individuals with psychosis in England (COPe-support): a randomised clinical trial

BACKGROUND: Psychoeducation delivered face-to-face is effective in alleviating mental health morbidities in family carers of individuals with psychosis. However, research in such interventions delivered online is scarce. We evaluated the effectiveness of a digital multicomponent intervention-COPe-support-in improving carers' mental wellbeing and caregiving-related outcomes. METHODS: In this two-arm, individually randomised, superiority trial, people aged 18 years or older who provided at least weekly support in any format for a relative or close friend affected by psychosis across England were randomly assigned (1:1) to either COPe-support or a passive online information resource using an independent online system. Participants were recruited through 30 mental health UK National Health Service trusts. The study team were masked to allocation and assessment of outcomes as all data collection took place online. Participants had access to either condition for 40 weeks and were advised to spend at least half an hour per week over the initial 20 weeks to go through materials at their own pace and to allow time to integrate knowledge and skills learned into practice. It was not feasible to mask participants or the online facilitator to intervention allocation. COPe-support provided psychoeducation on psychosis-related caregiving strategies and forums with professionals and other carers, and the control intervention comprised a passive online information resource. The primary outcome at 20 weeks was mental wellbeing measured by the Warwick-Edinburgh Mental Wellbeing Scale (WEMWBS; minimally clinically important difference [MCID] 3). This trial is registered with ISRCTN, 89563420. FINDINGS: Between March 1, 2018, and Feb 14, 2020, 407 participants were randomly assigned, with 204 allocated to COPe-support and 203 allocated to control. The participants (mean age 53·1 years, SD 13·2) were mostly female (330 [81%] of 407 participants) and White (359 [88%] of 407 participants). 346 (85%) of 407 participants provided primary endpoint data, 174 (85%) of 204 participants in the COPe-support group and 172 (85%) of 203 participants in the control group. The mean WEMWBS score at 20 weeks was 44·5 (SD 8·31) for the COPe-support group and 43·3 (9·19) for the control group. We found no evidence of a difference in wellbeing between the two groups (adjusted mean difference 0·37, 95% CI -1·14 to 1·88; p=0·63). In the COPe-support group, 106 (52%) of 204 participants met the complier definition of a minimum of two logins in separate weeks. The complier average causal effect analysis increased the difference in WEMWBS scores (adjusted difference 0·83, 95% CI -1·45 to 3·11; p=0·47), but this was lower than the MCID. There were no adverse events. INTERPRETATION: Our findings did not support the use of COPe-support over a passive online information resource. However, further research to optimise digital interventions adjunctive to face-to-face support for carers remains important. FUNDING: National Institute for Health Research