668 THE ADVOCATE
VOL. 77 PART 5 SEPTEMBER 2019
untarily divulged an accused’s text messages to the police. Would the police
need to obtain a warrant for messages voluntarily provided to them by a
third party? Moldaver J. observed that the majority did not “provide any
solutions to these foreseeable consequences”.41
Unsurprisingly, some of the questions raised by Marakah presented
themselves to the Supreme Court of Canada in short order. In R. v. Mills,42
the court was confronted with the question of whether a child sex predator
could claim a reasonable expectation of privacy in messages he sent to a
police officer posing as a 14-year-old girl. The court took almost a year to
resolve this question, with assistance from 15 intervening counsel representing
nine different agencies and organizations. That over 23,000 words
were needed to resolve a matter that was formerly a non-issue,43 the answer
to which seems obvious from the point of view of common sense and public
policy, is hardly a ringing endorsement of the court’s recent work.
The court has also added puzzling complexity to the law relating to
hearsay,44 established likely unworkable distinctions when it comes to the
ability of a co-owner to share an item with the police45 and applied s. 8 of
the Charter (protection from unreasonable search and seizure) in the context
of a person’s appearance in a public place.46
WHERE DO WE GO FROM HERE?
Multi-stage, multi-factorial “tests” that are almost entirely reliant upon the
incantation “contextual analysis” do offer the court system certain advantages.
They are adaptable and can be tailored to the particular circumstances
and nuances of a case.
But as “context” increases, certainty and predictability decrease. As
Brown J.A. stated in Omar, referring to the multi-stage analysis pertaining
to psychological detentions, the current framework produces a lack of certainty
and practical guidance.47 Similar cases can produce completely opposite
results from the same court.48 It is true that ensuring justice in a
particular case is desirable, but the legal system also has, as a foundational
value, the provision of a degree of certainty.
Le exemplifies this trend towards a lack of certainty, with a concomitant
increase in the focus on factors peculiar to a particular accused in a particular
circumstance. It does not have to be this way. R. v. Jordan49 involved the
Supreme Court of Canada setting bright-line rules with regard to delay in
criminal cases. But it appears that Jordan is the exception that proves the
After The Fonz jumped the shark, Happy Days was able to carry on for a
further six seasons, albeit with declining ratings. No doubt the Supreme