Author: Michael Ducharme

Patrick J Ducharme

In certain circumstances the accused bears the onus of establishing, upon being given a reasonable opportunity to do so, why his detention in custody is not justified.

Subsection 515(6) provides that a Justice shall order that the accused be detained in custody until he is dealt with according to law, unless he shows cause that his detention is not justified in the following circumstances:
Continue reading “Reverse Onus Bail Hearings”

Patrick J Ducharme

continued from Part 1.

In Grant the majority of the court noted that while there is no absolute exclusionary rule against statements obtained following a Charter violation, the courts have tended to exclude such statements. But the court in Grant was establishing new rules related to the exclusion of evidence. The new framework the court said would “support a presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter”
Continue reading “The Court Must Decide (Part 2)”

Patrick Ducharme

Continued from a series on Searches and Confessions…

The Court Must Decide

Basic to all of this is the concept that before a Crown may offer evidence of a statement made by the accused to a person in authority, the Crown must have the court rule on the admissibility of that statement in accordance with the common law confessions rule. If there is any issue about the status of the recipient of the statement being “a person in authority” the burden falls to the accused to at least establish that the recipient was, in fact, a person in authority. Continue reading “The Court Must Decide”

Patrick Ducharme

FLIR imaging is not the equivalent of an entry to premises that is under surveillance. Rather, it is more accurately characterized as an external surveillance of a home or place to obtain information that may be capable of supporting an inference about what actively is going on inside. Consequently, in its present form, FLIR imaging cannot permit any inferences about the precise activity occurring inside simply by measuring the heat that emanates from a home or other place. Context is important here. Everything shown in an FLIR photograph exists on the external surfaces of the building. Thus, the technology does not infringe or intrude upon a person’s reasonable expectation of privacy.

Continue reading “J. FLIR Technology”