Monday Blog Round Up – November 18, 2013

David Fraser - Yes, you can photograph or video police in public in Canada

Big, publicized events like the G20 protests a few years back or the Sammy Yatim shooting earlier this year tend to bring to the forefront questions about the public’s right to record the actions of police officers. In this blog post, David Fraser discusses a case that came  up more recently dealing with just what happens when a member of the public photographs an arrest.

It’s an interesting case that starts like many of its kind: police arrive to arrest someone for an unrelated offence, someone at the scene pulls out a camera  and starts taking pictures of the arrest, police see this and ask him to stop, and the person refuses to stop by claiming a right to do so. Then, unfortunately, the story takes a turn for the worse – in arresting the photographer, they used “grossly disproportionate” force and caused him serious injuries.

The officer pled guilty and in determining the appropriate sentence for him, the court discussed some of the issues at play in these sorts of situations. The court said that, absent an overarching safety concern, “telling people not to record these interactions … is not a lawful exercise of police power.”

In a link to a previous blog post, David does offer some caution with regards to this discussion. The “right” to record police is a bit more nuanced, he points out, in that it seems only to apply in public spaces (and there is some debate about that issue, as well).

Ryan Heighton - Mandatory Minimum Sentences for Firearms Possession are Unconstitutional, Says ONCA

Adam already discussed in a previous blog post some of the discussion surrounding the set of cases that came from the Ontario Court of Appeal last week. This post, however, comes from a law student at my alma mater, Osgoode Hall, so I thought  I’d throw a recommendation his way for his analysis of the leading decision from the set, R. v. Nur.

In Nur, the Court of Appeal struck down the 3-year mandatory minimum sentence because it breaches section 12 of the Charter. Justice Doherty reached this decision because of the “cavernous disconnect between the severity of the offence … and a three-year penitentiary sentence,” ultimately also finding that this breached isn’t saved by section 1 of the Charter.

Andrew Seymour & Tobi Cohen – Mandatory victims fee unconstitutional, judge says

Adam also discussed recently what developments we might expect to see in the wake of the new mandatory victim fine surcharge that came into effect on October 24. To recap, the new law now removes the discretion that judges had to not impose a victim fine surcharge, increases its amount to 30% (from 15%) of a fine imposed, or $100 for a summary conviction offence and $200 for an indictable offence if no fines were imposed.

This link isn’t so much to a blog post on the matter but to coverage of a new development: a judge in Ottawa last month ruled the new version of the surcharge unconstitutional.

The article indicates that Justice Stephen Hunter made reference to a 21-year-old Nova Scotia Court of Appeal decision in reaching this conclusion, though a cursory search through the usual channels hasn’t turned up any leads for me yet. According to the article’s analysis of the decision, Justice Hunter noted that the Court of Appeal only upheld the surcharge to be constitutional because it was not mandatory and therefore not a “tax.” Now that the surcharge is mandatory, that makes it a tax and by extension unconstitutional.

It doesn’t seem like the government is too thrilled with this interpretation of the law, so it’s likely an appeal is in the works. Once I get my hands on that previous Nova Scotia decision, I’ll put up a blog post discussing the particulars of this decision in a little more detail.

This blog post was written by Ricardo Golec.  Ricardo is an articling student working for Adam Goodman.

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