The Jury Vetting Cases: New Insights on Jury Trials in Criminal Cases?

In this paper the author discusses the Supreme Court of Canada’s decisions in the jury vetting cases of R. v. Yumnu, R. v. Emms and R. v. Davey. The author suggests that while the Supreme Court’s ruling goes a long way toward eliminating the concerns associated with jury vetting, there is a disconnect between the Court’s description of the jury selection process and how counsel tend to think about jury selection in criminal trials. While counsel are limited in their ability to influence the jury selection process, the Court might nevertheless have considered whether a full ban on jury vetting was needed to combat the risk — both real and perceived — that the Crown might act unethically during the jury selection process. The paper also examines whether the Court’s comments about the essential and inalienable features of the jury contribute to our understanding of the right to trial by jury enshrined in section 11(f) of the Canadian Charter of Rights and Freedoms

Assessing the Impact of the Ancillary Powers Doctrine on Three Decades of Charter Jurisprudence

This paper seeks to better understand the factors that may have led the Supreme Court of Canada to assume a role in articulating new police powers since the advent of the Charter in 1982. It also attempts to situate the Court’s ancillary powers cases within the context of a larger jurisprudential trend of balancing individual rights against “societal interests” outside of section 1 that has emerged in the Charter case law. The paper suggests that courts may be disposed to create new common law police powers because in some cases, the police have infringed the Charter rights of suspects in a manner that the court finds reasonable or justifiable, but the constitutional machinery upon which it normally relies to give effect to such arguments — that is, section 1 — is functionally unavailable, since the police conduct is not prescribed by law. The court is the refore unable to consider arguments that go to justification unless it identifies a common law source of authority for the police’s actions and/or considers such arguments at some other stage of the analysis. The articulation of new common law police powers has thus emerged as one option for solving the “problem” created by the functional unavailability of section 1. This explanation for the amplification of police powers since the entrenchment of the Charter is tested by examining some of the Supreme Court’s leading police powers decisions

Book Review: Juries in the 21st Century, by Jacqueline Horan

In Juries in the 21st Century, Jacqueline Horan immerses the reader in a discussion of how jury trials operate, how they could be more effective, and how they should adapt to emerging technologies. The book makes three contributions to the existing legal literature. First, it challenges basic assumptions about how juries operate. Horan demonstrates that not all features of modern jury trials are essential or even useful. She argues convincingly that the existing features of the jury system should only be retained if they contribute positively to the process by which the jury arrives at a verdict. This leads Horan to some interesting conclusions about which features of the modern jury system should be discarded and which could easily be improved upon

The Jury Vetting Cases: New Insights on Jury Trials in Criminal Cases?

In this paper the author discusses the Supreme Court of Canada’s decisions in the jury vetting cases of R. v. Yumnu, R. v. Emms and R. v. Davey. The author suggests that while the Supreme Court’s ruling goes a long way toward eliminating the concerns associated with jury vetting, there is a disconnect between the Court’s description of the jury selection process and how counsel tend to think about jury selection in criminal trials. While counsel are limited in their ability to influence the jury selection process, the Court might nevertheless have considered whether a full ban on jury vetting was needed to combat the risk — both real and perceived — that the Crown might act unethically during the jury selection process. The paper also examines whether the Court’s comments about the essential and inalienable features of the jury contribute to our understanding of the right to trial by jury enshrined in section 11(f) of the Canadian Charter of Rights and Freedoms

Assessing the Impact of the Ancillary Powers Doctrine on Three Decades of Charter Jurisprudence

This paper seeks to better understand the factors that may have led the Supreme Court of Canada to assume a role in articulating new police powers since the advent of the Charter in 1982. It also attempts to situate the Court’s ancillary powers cases within the context of a larger jurisprudential trend of balancing individual rights against “societal interests” outside of section 1 that has emerged in the Charter case law. The paper suggests that courts may be disposed to create new common law police powers because in some cases, the police have infringed the Charter rights of suspects in a manner that the court finds reasonable or justifiable, but the constitutional machinery upon which it normally relies to give effect to such arguments — that is, section 1 — is functionally unavailable, since the police conduct is not prescribed by law. The court is the refore unable to consider arguments that go to justification unless it identifies a common law source of authority for the police’s actions and/or considers such arguments at some other stage of the analysis. The articulation of new common law police powers has thus emerged as one option for solving the “problem” created by the functional unavailability of section 1. This explanation for the amplification of police powers since the entrenchment of the Charter is tested by examining some of the Supreme Court’s leading police powers decisions

A Theory of Quasi-Constitutional Legislation

Since the 1970s, the Supreme Court of Canada has treated a small number of statutes as quasi-constitutional. Despite the longstanding presence of quasi-constitutional statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-consitutional. In this article, I argue that quasi-constitutional legislation or more accurately, some provisions in quasi-constitutional legislation should be understood as implementing constitutional imperatives. I use the term constitutional imperatives to refer to constitutional obligations of varying degrees of specificity that emanate from the rights-conferring aspects of the Constitution, as well as from those aspects of the Constitution that establish the institutions and procedures of government. Understanding quasi-constitutional legislation as implementing constitutional imperatives has several implications. First, it suggests that quasi-constitutional legislation is a much larger category than the existing case law implies. Second, it emphasizes the importance of politicians as constitutional actors. And third, it helps us understand that the Constitution influences non-constitutional law in ways that go beyond establishing the boundaries of permissible lawmaking. I conclude by showing that quasi-constitutional legislation in Canada is different in kind than the now much-discussed constitutional statute in the United Kingdom

The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law

In the First and Second Abortion decisions, the German Constitutional Court drew on earlier jurisprudence to hold that the state was under a constitutional duty to protect the fetus from deprivations of its interest in life by the pregnant woman. In this article, we suggest that Canadian constitutional law scholars and reproductive rights advocates would benefit from examining the German abortion decisions despite their highly controversial nature. In our view, the benefits are twofold. First, the German cases demonstrate that recognizing the protective function can help clarify constitutional doctrine by revealing the tensions that underlie many difficult constitutional cases. Second, a synthetic reading of the German and Canadian Courts’ abortion jurisprudence generates a more fulsome and nuanced analysis of the issues raised in the those cases, as well as additional critical commentary on the Courts’ analyses and conclusions

Policing Arbitrariness: Fleming v. Ontario and the Ancillary Powers Doctrine

In 2019, the Supreme Court of Canada released its decision in Fleming v. Ontario. The case is significant because it is one of the very few police powers cases in the past three decades in which the Supreme Court has declined to recognize a new power. Since the pivotal case of Dedman, police powers jurisprudence has been characterized by the recognition of increasingly more intrusive common law powers to detain, investigate and search. This trend seemed to reach its zenith in Saeed, in which a majority of the Court recognized a common law power to conduct a warrantless penile swab incident to arrest — by force if necessary — to preserve evidence of a possible sexual assault

The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law

In the First and Second Abortion decisions, the German Constitutional Court drew on earlier jurisprudence to hold that the state was under a constitutional duty to protect the fetus from deprivations of its interest in life by the pregnant woman. In this article, we suggest that Canadian constitutional law scholars and reproductive rights advocates would benefit from examining the German abortion decisions despite their highly controversial nature. In our view, the benefits are twofold. First, the German cases demonstrate that recognizing the protective function can help clarify constitutional doctrine by revealing the tensions that underlie many difficult constitutional cases. Second, a synthetic reading of the German and Canadian Courts’ abortion jurisprudence generates a more fulsome and nuanced analysis of the issues raised in the those cases, as well as additional critical commentary on the Courts’ analyses and conclusions

Book Review: Juries in the 21st Century, by Jacqueline Horan

In Juries in the 21st Century, Jacqueline Horan immerses the reader in a discussion of how jury trials operate, how they could be more effective, and how they should adapt to emerging technologies. The book makes three contributions to the existing legal literature. First, it challenges basic assumptions about how juries operate. Horan demonstrates that not all features of modern jury trials are essential or even useful. She argues convincingly that the existing features of the jury system should only be retained if they contribute positively to the process by which the jury arrives at a verdict. This leads Horan to some interesting conclusions about which features of the modern jury system should be discarded and which could easily be improved upon