Sunday, November 17, 2013

A diligent and simple people

Two recent cases from the Supreme Court of Canada:

Diligence and freshness

In R v Hay, 2013 SCC 61 (8 November 2013) on the issue of the admissibility of fresh evidence [63], the Court held that lack of diligence by counsel in looking into the availability of the evidence for trial would not determine whether the interests of justice required that the evidence be adduced. That the evidence was credible on an important issue at trial, and that its absence could reasonably be expected to have affected the result, were sufficient to meet the interests of justice criterion in a serious criminal case. It has long been recognised that the diligence requirement is not applied as strictly in criminal cases as it is in civil cases [64].

In this case the lack of diligence was not something for which counsel could be criticised. It simply hadn't occurred to any of the experienced counsel, either in the trial or on the appeal to the Court of Appeal, that testing of the relevant kind could have been carried out [66].
I suppose that in determining what is due diligence, the standards of diligence used in practice by experienced lawyers must be the criterion. Failing to explore an avenue of inquiry that wouldn't reasonably have been explored is not lack of due diligence. So is this case really an example of the diligence requirement not being applied as strictly in this criminal case as it would have been in a civil case?


Computer privacy: different strokes for similar folks

We in New Zealand think of Canadians as a decent, simple people, nurtured on seal meat and loyal to the Queen. But if our laws are any indication, we can have contrasting values.
In R v Vu, 2013 SCC 60 (7 November 2013) privacy interests in the contents of a computer were such that without specific authorisation in a warrant a search and seizure of the computer was illegal. On balance, however, the challenged evidence was admissible.

Different law on computer searches may well apply in other jurisdictions, depending on legislation. For example, in New Zealand a rather relaxed approach is taken: s 110(h) of the Search and Surveillance Act 2012 allows access of a computer system in the course of execution of a search warrant if any relevant material "may" be found therein.

Information doesn't have a special privacy value just because it is stored electronically, as opposed to being written on paper. At least, that is the assumption behind laws such as that in s 110. The Supreme Court of Canada takes a different view of electronic information, [24] per Cromwell J for the Court:

"The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search. These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization in my view."

The reasons for this conclusion are elaborated at [40]-[45].

One might compare the Canadian analysis of the privacy values attaching to information in computers with that of the New Zealand Law Commission whose Report, "Search and Surveillance Powers" NZLC R 97 (June 2007), was the basis for the current legislation. The Commission placed emphasis on "functional equivalence" [7.12], which permitted this conclusion [7.16]:

"We have therefore considered whether it is desirable to create a more stringent search and seizure regime for intangible material. However, we have concluded that this would introduce additional hurdles for law enforcement agencies when collecting a significant proportion of evidential material that is created in intangible form. If it is harder for agencies to access intangible material than tangible information, this will also create an incentive for criminal organisations to use an electronic medium to conduct or record criminal activity wherever possible. The net effect would make it more difficult to investigate criminal activity."

No special form of search warrant is required [7.18] because enforcement agencies may not know in advance of a search whether information is in a tangible or an intangible form.