1. Criminal and constitutional law 2015 Red Nine consider cellphone privacy, mandatory minimums and representative juries

2. R. v. Fearon, 2014 SCC 77 Supreme Court asked whether police are entitled to search cellphones on arrest The question: are cellphones more like briefcases or homes? Previous cases said police permitted to search briefcases but not homes incident to arrest...without a warrant

3. Hint Which item, house or cellphone, has a better chance of holding compromising photos of your teenager?

4. Second big hint SCOTUS said in 2014 that police need a warrant to search phones Warrantless searches not necessary for officer safety or to preserve evidence Very invasive 9:0, including Scalia Riley v California, 573 U.S. (2014)

5. Famous liberal lion

6. Never trust two obvious hints Justice Cromwell for the majority: cellphones are like tiny high tech briefcases (police can take a peek) Warrantless searches of cellphones incident to arrest are legal so long as: (1) the search is relatively cursory, (2) the investigation would otherwise be “stymied” and (3) the officer takes detailed notes of the search

7. R. v. Nur, 2015 SCC 15 Supreme Court heard a challenge to the mandatory minimum sentencing regime for gun possession offences When an accused is charged with possession of a prohibited or restricted firearm with ammunition, the Crown has discretion to proceed either summarily or by indictment If the Crown proceeded by indictment, the mandatory minimum was engaged (3 years for first offence, 5 years for subsequent offence) If the Crown proceeded summarily, no mandatory minimum

8. R. v. Nur The stated logic of mandatory minimums is: (1) Mandatory minimums are needed because we can’t trust judicial decision makers to use their discretion in individual cases (2) But don’t worry, if a mandatory minimum would be unfair in a given case, we can trust prosecutorial decision makers to use their discretion not to invoke the mandatory minimum in the first place

9. Proponents of this logic gave us dozens of mandatory minimums

10. R. v. Nur The Crown proceeded by indictment against Nur and he was sentenced to 40 months Chief Justice McLachlin for the majority said the mandatory minimum violated s. 12 because it would be unfair in foreseeable situations

11. R. v. Nur

12. Nur affirmed the reasonable hypothetical approach to assessing the constitutionality of mandatory minimums

13. R. v. Kokopenace, 2015 SCC 28 Kokopenace, an Aboriginal man, was convicted of manslaughter at his jury trial After the conviction, his counsel learned that Aboriginals were vastly underrepresented on the jury roll ONCA found a breach of his constitutional right to a trial by a jury of his peers

14. These jurors all look very similar, but I can’t quite put my finger on it…

15. R. v. Kokopenace SCC disagreed with ONCA Justice Moldaver for the majority said Ontario only has to make “reasonable efforts” to compile a representative jury roll Ontario not required to take positive steps to counteract systemic underrepresentation of Aboriginals

16. R. v. Kokopenace Justice Cromwell wrote a strong, American- style dissent, joined by Chief Justice McLachlin Compliance with Constitution not “optional or a matter of social policy” Fact that Aboriginal defendant had to select a jury from roll that excluded Aboriginals was “an affront to the administration of justice”

17. In sum Password protect your phone Pop a cork if you are a responsible gun owner Don’t get charged with anything if your people were colonized