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This week at the SCC

|Written By Elizabeth Raymer

The Supreme Court of Canada will hear three appeals this week, all relating to constitutional law, the Canadian charter, and two with production of evidence. In the first, most high-profile case, Vice Media will make a case for press freedom in refusing to share information on a story source, who was an ISIS fighter. The second two appeals relate to child luring via the internet.

May 23 – Ontario – Vice Media Canada v. R.

Constitutional law: In 2014, journalist Ben Makuch wrote and Vice Media published three articles about Islamic State of Iraq and Syria fighter Farah Shirdon. The articles were largely based on communications between Makuch and Shirdon through a text-messaging service. The RCMP obtained a production order directing Vice Media and Makuch to produce documents and data relating to their communications with Shirdon. The issuing judge also directed that all information relating to the application for production should be held under seal pending further court order. Vice and Makuch brought an application to quash or set aside the production order and an application to unseal the record relied on to obtain the order. The motion to quash was dismissed, and the sealing order was varied. Vice and Makuch appealed, but the Court of Appeal dismissed their appeal as it relates to the production order and varied in part the sealing/redaction order. With respect to the non-publication order, and subject to the parties agreeing on a variation of that order, it also dismissed that appeal.

Related news story:
Vice journalist 'eager' on eve of his press-freedom hearing at Supreme Court; CBC News

Read the appellate court decision here.

May 24 – Ontario – R. v. Morrison

Canadian charter (Criminal): The respondent posted a personal advertisement in Craigslist’s “casual encounters” section. An undercover police officer responded to the ad, writing that she was 14 years old. The respondent testified that he thought he was participating in a sexual role-playing exchange with an adult female. The trial judge held that the “presumption of belief” subsection of the Criminal Code infringed the respondent’s Charter rights under s.11(d), but held that the reasonable steps requirement in subsection 172.1 (4) of the Code is constitutionally valid. The trial judge concluded, however, that the Crown had proven the elements of the child luring offence even without the benefit of the presumption of belief.

The respondent was convicted of child luring by means of a computer. The Court of Appeal agreed with the trial judge’s conclusions regarding the constitutionality of each of the Code provisions, and held that the mandatory minimum sentence of one year of is therefore of no force or effect pursuant to s.52(1) of the Constitution Act, 1982.

Read the appellate court decision here.

Related news stories:
High court to hear appeal of mandatory sentence for internet luring; CBC News

Tories’ Mandatory Minimum For Internet Child Luring Axed By Ontario Appeal Court; Huffington Post Canada

May 25 – Newfoundland and Labrador – Mills v. R.

Canadian charter (Criminal): The respondent was charged with four counts of internet luring. Undercover police officers created two fictitious online identities of 14-year-old females. The Crown’s evidence included emails sent to the online identities and fragments of emails found on the respondent’s computer; some of the emails included sexual content and some made arrangements with one of the identities to meet at a park. Mills arrived at the park in circumstances matching the arrangements. Police linked some of the emails to Mills’s social media, and used a screen-shot program that captured the video display of personal computers to capture the email communications. The respondent sought to exclude the screen shots and the emails from evidence.

Read the appellate court decision here.

Related news stories:
Man who tried to lure teen via Internet gets one-year jail term; The Southern Gazette

Man guilty on one count of trying to lure a teen for sex; The Beacon


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