R v. Alex. is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine whether the Crown needed to prove that a police officer’s request that an individual blow into an approved screening device was reasonable before it could admit the results of the breathalyzer without having to call a toxicologist and a technician as a witness.

Kyla Lee is an Associate at Acumen Law Corporation, She is the host of Driving Law, a podcast which focuses on Canadian DUI law. She can be found at @IRPLawyer online.

1:20 – An overview of the facts of the case in R v. Alex. A person is pulled over during a seatbelt check in Penticton, British Columbia.  A police officer notices that he smelled an odour of liquor as he approached the vehicle and there was an open beer can on the floor near the passenger side. The driver, Mr. Alex, had “red cheeks” and “watery eyes.” There was nothing else to suggest that the person was impaired.  The driver had no difficulty parking the car and no difficulty exiting the vehicle. The police officer did not take any notes about why he thought Mr. Alex was drunk, but says that he wouldn’t have pulled him over if he did not think he had a reasonable suspicion.  The police officer requires that Mr. Alex use an approved screening device which he fails, which is almost double the legal limit of 0.08. He then takes him to a police station where his breath samples registered .140 and .130 mg of alcohol, which is almost double the legal limit.

1:34 – Introduction to who Kyla Lee is. Kyla is a criminal defense attorney in Vancouver.

 » Read more about: Law Cans Episode 3 – R v. Alex (Challenging Breathalyzer Results) with Kyla Lee  »

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Anyone who presents themselves at a Canadian port of entry is making an application to enter Canada.  As such, that person is subject to an examination by an officer.  The purpose of such an examination is to determine whether or not the person can enter Canada as a visitor, student or foreign worker, and also to determine whether the individual is inadmissible to Canada.

Canadian immigration legislation requires that a person who is under examination must answer truthfully all questions put to them and also produce all relevant documents and information that an officer requires.

An officer during an examination can also compel a person to appear at a later date for further questioning.

When an Examination Ends

The examination of a person who seeks to enter Canada ends only when:

  • a determination is made that the person has a right to enter Canada, or is authorized to enter Canada as a temporary resident or permanent resident, the person is authorized to leave the port of entry at which the examination takes place and the person actually leaves the port of entry;
  • if the person is an in-transit passenger, the person departs from Canada;
  • the person is authorized to withdraw their application to enter Canada and an officer verifies their departure from Canada; or
  • an officer determines that someone is inadmissible to Canada and the person leaves the port of entry.

Refugee Claimants

There are special rules for when examination ends for refugee claimants.  In order to understand these rules, it is important to understand the process that a refugee claimant goes through when they file their initial claim.

When an individual makes a refugee claim when they are entering Canada,

 » Read more about: Examinations  »

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Amanda Lord is a lawyer in the Criminal Law and International Assistance group at the Department of Justice of Canada. Her work involves court proceedings regarding Extradition and Mutual Legal Assistance requests from foreign states and civil litigation on behalf of government agencies.

In this episode we discuss the Extradition and the State of Law.

2:30 Amanda Lord clarifies the distinction between extradition and immigration deporting proceedings. It is a different process with a different set of principles that apply, so it is important that people understand what extradition entails.

6:30 She explains the conditions for which a country will extradite an individual, the international treaties that must have been ratified by the Parties as well as the concept of double criminality.

8:50 Amanda explains the second criteria for extradition which is that it be an indictable offence with a minimum prison sentence of two years.

13:00 We ask about the process of extradition from foreign countries to Canada. Amanda explains that her department is not responsible for these, and she describes the procedures to be followed in such scenarios.

14:45 Amanda explains the extradition treaties to which Canada abides to and the differences between them.

18:45 An overview of the committal process and Charter protections.

25:45 The question of where an individual can be prosecuted is one that is commonly misunderstood. Amanda explains that certain offences such as child pornography or terrorism are to be prosecuted in Canada even if the offence took place in a foreign country.

36:13 An overview of how to challenge the prosecutor’s evidence.

43:00 Amanda provides examples of cases that resolve by way of a voluntary agreement at the Committal stage.

 » Read more about: Borderlines Episode 18 – An Introduction to Canadian Extradition Law, with Amanda Lord  »

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Section 115 of Canada’s Immigration and Refugee Protection Act provides that Canada shall not deport a protected person or a refugee to a country where they would be at risk of persecution of reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

There are exceptions, however, for people who are:

    • inadmissible to Canada for serious criminality and the government believes that the person is a danger to the public in Canada; or
    • inadmissible to Canada on grounds of security, violating human or international rights or organized criminality and the government believes that the person should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of danger to the security of Canada.

Determining Whether to Issue a Danger Opinion

In considering whether to issue a Danger Opinion for criminality, officers will go beyond looking at just the conviction and the sentence, and will also analyze a person’s past and current offences and activities to determine whether a person is a danger to the public.

The following are some of the factors that are considered:

    • criminal history and established patterns of violent criminal behaviour or threats of violent behaviour that suggest present and future danger to the public, and evidence to support the person’s pattern of behaviour;
    • convictions for serious offences involving but not limited to violence, weapons, drug trafficking, human smuggling and trafficking, sexual offences and economic crimes;
    • documents illustrating an escalation of violence or of gravity in the convictions;

 » Read more about: Danger Opinions  »

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Google Inc. v. Equustek Solutions Inc. is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine whether a British Columbia company could seek a worldwide injunction to to enjoin Google from displaying any part of another company’s websites on any of Google’s search results worldwide.

Daniel Cowper is an Associate at Robert Fleming Lawyers, the law firm which represented Equutsek Solutions Inc. He can be found at @DanielCowper online.

0:56 – An overview of the facts of the case. Equustek, a small technology company in British Columbia launched an action against Datalink, a former distributor who allegedly copied and sold their product.  Datalink left British Columbia and continued to carry on its business from an unknown location. Equustek sought a worldwide interlocutory injunction to enjoin Google from displaying any part of Datalink’s websites on any of its search results worldwide.

6:30 – An overview of the test for an interlocutory injunction. There needs to be (1) a serious issue to be tried, (2) irreparable harm, and (3) the balance of convenience must favour the party seeking the injunction.

7:40 – Can someone seek an injunction against a non-party?

9:40 – Can a British Columbia court issue a world wide injunction against a company? In this case, it is appropriate for a British Columbia court to order Google to de-index a website from its search engines globally rather than just in British Columbia or Canada?

14:40 – Would requiring that Google de-index websites breach Google’s freedom of expression?

16:45 – Is there a risk of inconsistent judgements where courts start making global declarations as to what a company should do which render it impossible for the company to do both?

 » Read more about: Law Cans Episode 2 – Google Inc. v. Equustek Solutions Inc. (Global Injunctions) with Daniel Cowper  »

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Doez v. Facebook is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine the enforceability of a forum selection clause.  The case involved a class action lawsuit brought in British Columbia alleging that Facebook’s Sponsored Stories breached their privacy.  Facebook argued that because its Terms of Use stated that users had to litigate any claims in California that the British Columbia courts lacked jurisdiction.

Christopher Rhone is a Partner at Branch MacMaster LLP Barristers & Solicitors. He represented Ms. Doez, the plaintiff, at the Supreme Court.

0:30 – The distinction between civil and commercial litigation.

1:50 – Could Ms. Douez sue Facebook in British Columbia despite its Terms of Service specifying that people would have to litigate disputes in California?

3:30 – Why is Ms. Douez arguing that Facebook breached her privacy rights under British Columbia law? What was Facebook’s Sponsored Stories product?

9:40 – An overview of the Pompey test for determining forum selection clauses, which consists of the following two steps.  First, the party must show that a form selection clause is clear and enforceable and that it applies to the cause of action before a court. If this is the case, then second, the other party must show strong cause for why a court should not follow the forum selection clause Reasons to not can include public policy, fairness, convenience, etc.

16:00 – What impact did the size of Facebook have on the Supreme Court’s decision? What is the scope of the ruling? Should people assume that they can sue large, multinational e-technology companies in British Columbia?

23:30 – Chris discusses other times that he has argued before the Supreme Court of Canada.

 » Read more about: Law Cans Episode 1 – Douez v. Facebook (Forum Selection Clauses) with Chris Rhone  »

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