The evolution of the Internet has challenged courts and governments to apply existing legislation to the previously neglected digital domain. In many cases, courts must apply centuries-old principles of contract or property law to the virtual world. Issues about squatting, trademark infringement, and piracy have taken on a new form, placing a burden on legislators to ensure that the law evolves alongside technology. While the Internet undoubtedly provides immense benefits to society, it has also given rise to a new vehicle for crime and trademark infringement. Many websites allow for downloading or viewing copyrighted, obscene, or otherwise illegal material. In response, the United States Federal Bureau of Investigation (FBI) has seized many domain names that link to these sites. This paper is an in-depth discussion of Canada’s ability to do the same through a comparative analysis of the legal framework in these two countries. It will conclude that through the courts, the Canadian government can seize domain names ending in “.CA” provided that the alleged offences allow for the seizure of property through legislation.

Josh Marcus, “Domain Name Seizure in Action: A Canadian-American Comparison” (PDF) 

Delay is a clear enemy to the fair trial of an accused in Canada. When many months or years elapse between an accused’s arrest and the date they stand trial, numerous undesirable consequences follow; memories fade and witnesses move away, die, or become otherwise unavailable. As a result, an accused may suffer an intolerable custodial environment without having ever been convicted of a crime. Section 11(b) of the Canadian Charter of Rights and Freedoms codifies the right of any person charged with an offence to be tried within a reasonable time. In the years following the proclamation of the Charter in 1982, considerable litigation has examined the meaning of the right in practical terms and prescribed a remedy to be applied in cases of a breach. This remedy is the stay of proceedings. The Supreme Court of Canada has ruled that the stay is the minimal remedy available where an accused’s section 11(b) right has been breached.

Where a breach of section 11(b) is established following an application of the test in R v Morin, a trial judge must balance the public interest on the merits against the accused’s right to be tried within a reasonable time. Despite the Supreme Court of Canada’s pronouncement that a breach of this right should be remedied minimally by a stay, this balancing exercise nevertheless allows a trial judge to direct a trial if it serves the public or societal interest. In such a case, other remedies for the breach are theoretically unavailable to the accused, as the stay is the required minimal remedy. This is an unsatisfactory and unnecessary status quo. While the author does not propose a change in the current application of the stay where a fair trial is no longer possible and the only appropriate remedy is a stay of the proceedings, an accused should not be left without any recourse where a breach has occurred and the trial nevertheless proceeds. An accused should be entitled to an alternative section 24(1) remedy in such circumstances. Several alternative remedies are suggested in this paper, including sentence reduction, enhanced credit for pre-sentence custody, damages, and the exclusion of evidence. The Supreme Court of Canada pronouncement of the stay as a minimal remedy should be revisited, while alternative remedies should be examined for their application in unreasonable delay cases.

Colin Wood, “The Inflexible Stay of Proceedings: Alternative Remedies for Charter  Section 11(b) Breaches” (PDF)

Since the advent of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada has frequently considered what investigative techniques employed by police are disreputable to the justice system at large. The technique of most importance is the constitutional provision that allows the judiciary to exclude evidence based on such considerations—section 24(2) of the Charter. Since establishing the system’s repute is part of the formal legal test for admissibility of improperly obtained evidence, judges typically perform a mental exercise, imagining what the “reasonable person” would find acceptable.

The aim of this study is to compare the outcomes of five of the Supreme Court of Canada’s landmark section 24(2) analyses with public opinion as to when evidence is justly excluded from criminal trials. Accordingly, this study includes a survey conducted in 2011 to more fully understand what evidence-gathering measures are truly disreputable in the eyes of the Canadian citizenry. The survey was designed and administered for a graduate research paper in Criminology and Criminal Justice Policy at the University of Guelph. The survey is intended to capture any variance or overlap between the views of a sample of ordinary citizens and the Supreme Court of Canada’s judgments on evidence exclusion.

Matthew Wolfson, “Public Opinion and Excluding Evidence Under Section 24(2) of the Charter: A Recent Poll” (PDF)