Prof. Leiper, fall 2008
R. v. Buhay ............................................................................. 13
PRE-ARREST INVESTIGATION ...................................................3
SURRENDER & ARREST ..........................................................15
Investigative detention ......................................................... 3
R. v. Therens ............................................................................ 3 Charge screening ................................................................ 15
Principle of legality re: Dickson C.J., R. v. Dedman (1985) ....... 3 R. v. Boucher (1955): Crown’s "public duty" role excludes
Power to Arrest ........................................................................... 3 notion of winning or losing.................................................... 15
“Targeted Investigative Detentions” Short of Arrest ................... 3 Royal Commission on the Donald Marshall Jr. Prosecution
Simpson ................................................................................... 3 (1989) .................................................................................... 15
Mann (S.C.C.) ........................................................................... 3 R. v. O'Connor (1995) ............................................................ 15
R. v. Clayton (2007) .................................................................. 4 Blencoe v. BC (Human Rights Commission) (2000) ............... 15
Koechlin ................................................................................... 4 R. v. Regan (2002).................................................................. 15
Grant ........................................................................................ 4 Arrest powers ..................................................................... 16
Suberu ...................................................................................... 4 R. v. Storrey (1990) ................................................................ 16
The Waterfield test for validity of police conduct ................. 4 Charter limits: s. 9, unlawful detention/arrest ................... 16
R. v. Waterfield (1963) ............................................................. 4 R. v. Duguay, Murphy and Sevigny (1985) ............................. 16
R. v. Mickey (1988)................................................................... 5 Charter limits (ctd): s. 8, unreasonable search or seizure ... 17
Motor vehicle stops .............................................................. 5 R. v. Feeney (1997) ................................................................ 17
R. v. Hufsky (1988) ................................................................... 5 Charter limits (ctd): s. 10(a), right to be informed of reasons
R. v. Ladouceur (1990) ............................................................. 5 for arrest ............................................................................. 17
R. v. Mellenthin (1992) ............................................................ 6 R. v. Borden (1994) ................................................................ 17
Shawna Richer, "Boxer Wants Halifax Police on the Ropes."
Charter limits (ctd): s. 10(b), right to counsel ..................... 17
The Globe and Mail, September 10, 2003. .............................. 6
R. v. Strachan (1988) ............................................................. 17
Jim Rankin, Jennifer Quinn, Michelle Shephard, John
R. v. Bartle (1994) .................................................................. 17
Duncanson, Scott Simmie, "Police Target Black Drivers."
Police informational duties ....................................................... 18
Toronto Star, October 20, 2002. .............................................. 6
R. v. Brydges (1990) ............................................................... 18
Thomsen v. The Queen (1988) ................................................. 6
R. v. Bartle (1994) .................................................................. 18
‘KGB’ statements: ‘principled exception’ to hearsay rule ..... 7 R. v. Manninen (1987) ........................................................... 18
R. v. K.G.(B.) ............................................................................. 7 R. v. Burlingham (1995) ......................................................... 19
SEARCH AND SEIZURE..............................................................8 Waiver of s. 10(b) by accused ............................................. 19
R. v. Baig (1987) ..................................................................... 19
Introduction: search and seizure........................................... 8 R. v. Ross (1989) .................................................................... 19
R. v. Colet (1981) ...................................................................... 8 R. v. Smith (1989) .................................................................. 20
Expectation of privacy .......................................................... 8 R. v. Clarkson (1986) .............................................................. 20
Hunter v. Southam Inc. (1984) ................................................. 8 R. v. Whittle (1994) ............................................................... 20
Re Laporte and The Queen (1972) ........................................... 9 Charter limits (ctd): s. 7 & 10(b), right to silence ................ 21
Statutory search: warrants & surveillance............................ 9 R. v. Hebert (1990) ................................................................ 21
Reasonable Expectation of Privacy .............................................. 9 R. v. Broyles (1991) ................................................................ 21
R. v. Duarte (1990) ................................................................... 9 R. v. Moran (1987) ................................................................. 22
R. v. Wong (1990)..................................................................... 9 R. v. Mickey (1988) ................................................................ 22
R. v. Wise (1992) .................................................................... 10 Admissibility of statements re: s. 24(2). ............................. 22
Warrantless search ............................................................. 10 R. v. Elshaw (1991) ................................................................ 22
R. v. Dyment (1988) ............................................................... 10 The common-law confessions rule ..................................... 22
Evans v. The Queen (1996) .................................................... 10 R. v. Singh (2007) ................................................................... 22
R. v. Kang-Brown (2008) ........................................................ 11 Intake procedures ............................................................... 22
Search incident to arrest ..................................................... 11 R. v. Pilcher and Broadberry (1981)....................................... 23
R. v. Stillman (1997) ............................................................... 11 Problems w/ Pilcher .................................................................. 23
R. v. Cloutier ........................................................................... 11 R. v. Jeffrey (1976) ................................................................. 23
R. v. Caslake (1998) ................................................................ 11 Bail ...................................................................................... 24
Strip searches ...................................................................... 12 R. v. Pearson (1992)............................................................... 24
R. v. Flintoff (1998)................................................................. 12 Grounds for ordering detention (opposing release) ........... 25
R. v. Golden (2001) ................................................................ 12 Morales (1992) ...................................................................... 25
Plain-view seizure ............................................................... 13 R. v. Hall (2002) ..................................................................... 25
PRE-TRIAL .............................................................................. 26 R. v. Strachan (1988) ............................................................. 34
R. v. Goldhart......................................................................... 34
Disclosure: R. v. Stinchcombe ............................................. 26 Exclusion under s. 24(2)—stage II (the Collins test) ............ 34
R. v. Stinchcombe (1991) ....................................................... 26 R. v. Collins (1987) ................................................................. 35
Disclosure by the evidence .................................................. 26 R. v. Stillman (1997)............................................................... 35
Lost or destroyed disclosure ............................................... 27 R. v. Feeney (1997) ................................................................ 36
R. v. La (1997)......................................................................... 27 R. v. Mann (2004) .................................................................. 36
Disclosure of third-party records ........................................ 27 "New police strategy designed to blanket high-violence
R. v. O'Connor (1995) ............................................................. 27 areas." The Globe and Mail, 13 February 2006. .................... 37
Code amendment post-O’Connor re: sexual offences ......... 28 Pre-trial conference (plea bargaining)................................ 37
R. v. Mills (1999) .................................................................... 28 Joseph Di Luca, "Expedient McJustice or Principled Alternative
R. v. Carosella (1997) ............................................................. 29 Dispute Resolution? A Review of Plea Bargaining in Canada."
Elections (review) ................................................................ 29 50 Criminal Law Quarterly 14 (2005)..................................... 37
Preliminary inquiries ........................................................... 29 Plea ..................................................................................... 39
Motion for directed verdict ....................................................... 29 Adgey v. The Queen (1975) ................................................... 39
R. v. Arcuri (2001) .................................................................. 29 R. v. Rubenstein (1987) ......................................................... 40
Preferring indictment .......................................................... 30 Jury selection ...................................................................... 40
Where Crown prefers direct indictment ................................... 30 R. v. Sherratt (1991) .............................................................. 40
Mental disorder .................................................................. 30 R. v. Crosby (1979)................................................................. 41
R. v. Swain (1991)................................................................... 30 R. v. Parks (1993) ................................................................... 41
CC Part XX.1 ............................................................................... 30 R. v. Williams (1998) .............................................................. 41
Winko v. British Columbia (Forensic Psychiatric Institute) R. v. Find (2001) ..................................................................... 43
(1999) ..................................................................................... 30
R. v. Hussein (2004) ............................................................... 31
Constitutional remedies ...................................................... 31 The trial process ................................................................. 45
Timing and forum ............................................................... 31 Right to counsel: s. 10(b) .................................................... 45
Stay of proceedings re: Charter s. 24(1).............................. 32 R. v. Rowbotham (1988) ........................................................ 45
Abuse of process ....................................................................... 32 New Brunswick (Minister of Health and Community Services)
R. v. Jewitt (1985) .................................................................. 32 v. G. (J.) (1999) ...................................................................... 45
R. v. Keyowski (1988) ............................................................. 32 Right to silence: s. 11(c) ...................................................... 45
R. v. O'Connor (1995) ............................................................. 32 R. v. Noble (1997) .................................................................. 46
Regan v. The Queen (2002) .................................................... 33 Reasonable doubt standard: R. v. Lifchus ........................... 46
Exclusion of evidence re: s. 24(2)—stage I .......................... 33 R. v. Lifchus (1997) ................................................................ 46
Stribopoulos, "Lessons from the Pupil: A Canadian Solution to
the American Exclusionary Rule Debate" (ctd) ...................... 33
Police stops: reactive (police already have information re: particular crime/individual), proactive (police investigating suspicious circumstances).
R. v. Therens Detention not necessarily physical restraint—‘psychological compulsion’
Compliance w/ a demand/direction of a police officer by a person who reasonably believes that he has no choice to do otherwise constitutes detention. “The
element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty
“It is not realistic … to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the
choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal
liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority.”
Principle of legality re: Dickson C.J., R. v. Dedman (1985)
Police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or
property of the citizen to the extent authorized by law.
Common law duties of police
Preservation of peace
Prevention of crime
Protection of life and property
Power to Arrest
Origin in common law, now in Criminal Code.
CC s. 495.1(1) Belief on reasonable grounds that the person has committed an indictable offence, or has committed or
is about to commit an indictable offence.
Subjective test (officer believes), objective test (reasonable person in officer's position could conclude
reasonable grounds for the arrest)
“R.I.D.E.” Detentions (random sobriety check stops of motorists)
Dedman (S.C.C.), common law authority by adopting Waterfield
Well publicized programs to deter and prevent impaired driving found to fall within general scope of police duties
Justifiable at common law b/c brief, of slight inconvenience
Application of principle of legality
“Targeted Investigative Detentions” Short of Arrest
Right to be free from arbitrary detention: Section 9 of the Charter
Evidence collected pursuant to such arbitrary detention is subject to s. 24(2) analysis.
Threshold for detention: "articulable cause" i.e. “an objectively discernible constellation of facts” to support the stop and where the stop is otherwise justifiable
Relies on line of common law authority from Dedman and Waterfield to justify this kind of detention
Section 10(a): Everyone has the right on arrest or detention to be informed promptly of the reasons therefore; and any protective search done for officer safety is
subject to s. 8 considerations (consider totality of circumstances, acting on reasonable inferences, confine search to what is reasonably designed to locate
weapons, in this case, a pat down, lasting a few seconds found reasonable)
Replaces “articulable cause” w/ “Reasonable Grounds to Detain”
Continues application of Waterfield (ancillary powers) doctrine as part of the “measured development of police power to detain for investigative purposes"
Limited power to search to ensure officer safety, based on the two prong Waterfield test: does it fall within a duty imposed by statute or recognized at common
law? Is it a justified use of police power (“reasonably necessary”)
Reasonable grounds to believe in a threat to officer safety may justify detention, even search.
Obiter: not every “delay” is necessarily a “detention”
R. v. Clayton (2007)
o 911 call reported 4 vehicles w/ "black guys" carrying guns in strip club parking lot. Police stopped, searched a vehicle leaving the parking lot. Vehicle was not listed
in the 911 call.
o One occupant attempted to flee, was subdued. Carried loaded prohibited handgun in his pocket.
o OCA found s. 9 violation---police stopped car not mentioned in 911 call.
o SCC overturned:
"[T]he initial detention [of car not mentioned in prior 911 call] was reasonably necessary to respond to the seriousness of the offence and the threat to
the police's and public's safety … and was temporally, geographically and logistically responsive to the circumstances … . *It was+ a justifiable use of police
powers … and did not represent an arbitrary detention contrary to s. 9 of the Charter."
o Continued detention also justified: police knew people leaving parking lot would have guns, suspects were black males.
o Officers' safety concerns justified the searches.
Parallel rise in consideration of the Procedural Protections for Investigative Detentions
Koechlin No general duty on citizens to answer police questions where not under arrest
Grant "Detention for investigation". Ct finds detention re: Therens (‘psychological compulsion’). facts- and context-specific
Suberu When does a series of qstns become detention? When should the officer have informed the accused of his 10(b) rights?
Section 10(b): Right to counsel in some circumstances.
Koechlin Arrest No RPG
CCC; statutory power. No arrest
No compulsion to talk
Dedman R.I.D.E. stop Time
Waterfield test; common law. Relationship to duty
Simpson Targeted stops for investigative purposes; common law. Charter s. 9
Articulable cause -> reasonable
10(a), 10(b): circumstances,
Mann Targeted stops for investigative purposes; common law. Charter s. 9
Warrantless Articulable cause -> reasonable
Incident to arrest grounds
Dog-sniff 10(a), 10(b): circumstances,
"exigent circumstances" context.
Suberu Targeted stops for investigative purposes; common law. Charter s. 9
Articulable cause -> reasonable
10(a), 10(b): circumstances,
The Waterfield test for validity of police conduct
R. v. Waterfield (1963)
Officers investigating report of a car which had rammed into a wall. Knew owner of car; HVR, no additional evidence.
Officers approached car, asked to search it. Driver refused, threatened to drive away. One officer said he would stop him; stood in front of the car.
Driver proceeded. Officer had to jump out of the way. Driver charged w/ assaulting constable.
Valid charge? Yes, re: Ashworth J.
In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima
facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether
a. such conduct falls within the general scope of any duty imposed by statute or recognized at common law and
b. whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring
the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or
property of a private person, the powers of constables are not unlimited.
a.k.a. “The Ancillary Powers Doctrine"
For a search incidental to detention to be justified,
a. The police conduct must fall within the general scope of police officers' (statute- or common law-imposed) duty [e.g. duty to prevent crime, duty to bring
offenders to justice], and
b. The police conduct is a justifiable use of the powers associated with the duty [i.e. officer's power is not unlimited].
o Nature of the duty (Dedman)
o Extent of the interference (Dedman)
o Nature of the interference (Dedman)
o Importance of the duty to the public good (Dedman)
o “Reasonable grounds to detain”: i.e. a constellation of objectively discernible facts to give reasonable cause to suspect the detainee is involved in criminal
activity (Simpson and Mann)
R. v. Mickey (1988)
Accused came to scene of murder, made remarks about the body’s state that the Crown alleged only an assailant could know. Also made incorrect statements.
Claimed he saw the murder from a window.
Police took him to the station for questioning, as a witness.
Court: he was detained as of this point. No longer free to leave. Statement recorded.
Blatant violation of ss. 10(a) and (b) rights; admission would bring administration of justice into disrepute
Motor vehicle stops
Reasons for lower expectation of privacy in cars:
1. Very regulated nature of driving
2. Very public nature of driving
R. v. Hufsky (1988)
Appeal of CC s. 234.1(1) conviction: failing/refusing to comply w/ demand for breath sample
Police pulled over vehicle for "spot check" w/out any suspicion.
Vehicle stop infringed Charter s. 9?
s. 9: Everyone has the right not to be arbitrarily detained or imprisoned.
Issue 1: whether random stop constituted s. 9 detention
Although of brief duration, random stop fell w/in detention concept applied in Therens
Officer assumed control over the appellant's movement by a demand or direction that might have significant legal consequence
Penal liability for refusal to comply w/ the demand or direction
Further restraint of liberty after CC s. 234.1(1) demand, but formed on reasonable suspicion
Issue 2: whether the detention was arbitrary w/in s. 9
Highway Traffic Act s. 189a(1) empowers police to require driver to stop, w/out grounds
No criteria for selection of drivers to be stopped
Issue 3: Arbitrary HTA s. 189a(1) stop a reasonable limit on Charter rights, demonstrably justified in a free and democratic society w/in meaning of Charter s. 1?
Oakes: two requirements to establish s. 1 limit
1. Legislative object which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must
bear on a "pressing and substantial concern".
2. Means chosen to attain those objectives must be proportional or appropriate to its ends. Three aspects:
a. Limited measures must be carefully designed, or rationally connected, to the objective;
b. They must impair the right as little as possible; and
c. Their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless
outweighed by the abridgment of rights.
Accidents, deaths caused by impaired and/or unlicensed driving of sufficient importance to warrant overriding constitutional right.
HTA s. 189a(1) is a reasonable limit, demonstrably justified in a free and democratic society, on Charter s. 9 right not to be arbitrarily detained.
Demand for driver's licence, insurance infringed Charter s. 8?
s. 8: Everyone has the right to be secure against unreasonable search or seizure.
Demand for licence, insurance didn't constitute an intrusion on the reasonable expectation of privacy.
There is no intrusion where a person is required to produce a licence/permit/etc. of a status or compliance w/ some legal requirement that is a
lawful condition of the exercise of a right or privilege.
No infringement of s. 8 right.
R. v. Ladouceur (1990)
Hufsky (above) justifies random HTA checks at stationary, predetermined locations. The Crown in this case would seek to justify roving arbitrary stops.
Roving stops "could be treated as constitutionally more suspect" than stationary checkpoints. "Nonetheless, so long as the police officer making the stop is acting
lawfully within the scope of a statute, the random stops can, in my view, be justifiably conducted in accordance with the Charter." Passes the Oakes test for
"In order to provide the proper control, society must be able to require that random stops be made without articulable cause and outside of any formal programs."
o At Hufsky checkpoints, officers' behaviour would be observed by other officers.
o Here, stops would be at the whim of the patrolling officer (coloured by age, race, etc.)
o Fails the Oakes test.
R. v. Mellenthin (1992)
Can the police, conducting a random roadside check stop, in the absence of any reasonable grounds for doing so
o interrogate a driver about matters other than those related to the vehicle and its operation, and
o search the driver and the vehicle?
At random check stop, police asked driver about contents of his gym bag. Driver pulled out paper lunch bag. Officer saw glass, suspected drugs inside. Glass vials
of a type used for cannabis resin. Officer arrested driver, searched vehicle. Found vials of hash, some cannabis resin cigarettes.
1. Was the appellant detained in the check stop?
The appellant could reasonably be expected to feel compelled to respond to questions from the police—as such, he was detained.
2. Was there an unreasonable search conducted by police?
Upon detention, the appellant was not informed of his rights.
He did not consent to questions re: his bag or the physical search.
The officer had no grounds of suspicion whatsoever upon posing questions.
The search was made without foundation of reasonable and probable grounds.
The search was unreasonable, in contravention of Charter s. 8.
3. If the search was unreasonable, would the admission of the evidence bring the administration of justice into disrepute?
Serious violation on the part of the accused.
No bad faith on the part of the police.
Nonetheless, the violation was serious:
"It was conducted as an adjunct to the check stop and was not grounded on any suspicion, let alone a reasonable and probable cause. It
is the attempt to extend the random stop programs to include a right to search without warrant or without reasonable grounds that
constitutes the serious Charter violation."
Shawna Richer, "Boxer Wants Halifax Police on the Ropes." The Globe and Mail, September 10, 2003.
o Police seize vehicle of 31 y/o Olympic boxer Kirk Johnson for "driving while black", according to him.
o Stopped 28 times in 60-90 days.
o Police conducted random check b/c they suspected the vehicle was stolen. "After two hours and detainment by at least seven officers in five vehicles, the fighter's
car was impounded and [Mr. Johnson and his cousin] handed nearly $1000 in motor vehicle fines."
o Nova Scotia Human Rights Commission found Mr. Johnson the victim of discriminatory treatment by police. Awarded $15,000 damages w/ costs.
Jim Rankin, Jennifer Quinn, Michelle Shephard, John Duncanson, Scott Simmie, "Police Target Black Drivers." Toronto Star, October 20, 2002.
o 34% of all drivers charged w/ out-of-sight violations (e.g. driving w/out updated change of address, driving w/out licence, driving w/out insurance, driving under
suspension) were black. 39.3% of tickets for out-of-sight violations were issued to black men btw 25 and 34.
o 8.1% of Torontonians are black.
Thomsen v. The Queen (1988)
Should a police officer administering a CC s. 234.1(1) demand [breathalyser] have to inform an individual of his/her right to counsel ?
a. Does the demand result in a detention under s. 9?
Yes. The person is forbidden from leaving.
Persons detained have the right to retain and instruct counsel without delay and to be informed of that right, according to s. 9 of the Charter.
There is an infringement of s. 9.
b. If so, is the s. 10(b) right to retain and instruct counsel w/out delay and to be informed of that right subject to a reasonable limit prescribed by law that is
demonstrably justified in a free and democratic society?
Incidents of impairment occur late evening/early morning, when probability of contacting a knowledgeable lawyer is lowest.
Urgency in taking of breath sample: the longer delayed, the lower the blood-alcohol content.
"*T+he need for, and purpose of, the roadside screening device … does not permit a detained person … to retain and instruct counsel … . The right to
retain counsel is incompatible with the effective use of this device."
c. Is the limit imposed on the right to retain and instruct counsel by CC s. 234.1(1) a reasonable one, demonstrably justified in a free and democratic society,
within the meaning of s. 1 of the Charter?
Drunk driving a serious problem, ill-controlled.
Severity of accidents increases almost in direct ratio to quantity of alcohol consumed.
Detection of impaired drivers at moderate level of impairment through observation by trained police officers is ineffective.
Increased penalties have not been an effective deterrent. The most effective deterrent is the strong possibility of detection.
Importance of (1) detection of impaired driving and (2) effective deterrence of impaired driving make the limitation of the s. 10 right a reasonable
‘KGB’ statements: ‘principled exception’ to hearsay rule
R. v. K.G.(B.)
Four guys jump another guy, stab and kill him. 3 of them are prepared to rat on the fourth, but then they all recant on the stand and claim they were lying before.
Crown moves to cross-examine its own witness (per Canada Evidence Act s. 9)
2 part test for "Principled Exception" to the hearsay rule
Search and seizure
Introduction: search and seizure
"the house of everyone is to him as his castle and fortress" -- Lord Coke, Semayne's Case, 1604
In the past, the only basis for a warrant to enter and search was the investigation of stolen property where there were good grounds to believe that stolen goods were
secreted in a particular place. If the goods were not found there, the searchers were trespassing.
The roots of the right [to be secure against unreasonable search and seizure] are embedded in the common law and the safeguards according that right are found in
common law, in statutes subsequently enacted, and in [evolving court decisions]. The expression of the right in a constitutional document reminds us of those roots and
the tradition associated with the right. One would be presumptuous to assume that we have attained the zenith of our development as a civilization and that the right
accorded an individual is frozen for eternity. Section 8, however, requires us to be ever mindful of some of the criteria that have been applied in the past in securing the
right. Such criteria must be considered in determining whether a particular enactment meets our reasonable expectation of privacy in the light of the stage of
development of our society at the time the right is being considered. (Prowse J.A., Hunter v. Southam)
R. v. Colet (1981)
City Council of Prince Rupert, BC instructed Public Works dept. to remove appellant Colet's "rudimentary shelter" home from his property. Appellant threatened to
defend his property w/ force.
RCMP obtained a warrant under CC s. 105:
Where … the court is satisfied that there are reasonable grounds for believing that it is not desirable, in the interests of the safety of [an accused
person] or of other persons, that person should own or have in his possession, custody or control a firearm or other offensive weapon or any
ammunition or explosive substance, the court may issue a warrant authorizing the seizure of [those weapons or substances] owned by or in the
possession, custody or control of that person.
Colet thought the RCMP were without authority to search his home; mounted the roof, threw gasoline at the police.
"Police are not justified in making an entry unless they have first announced their presence and demonstrated their authority by stating a lawful reason for their
"In the present case it is to be observed that although the police officers waved the warrant at the appellant from a distance, it was not a warrant "to search the
premises" nor in my view did the authority to seize specified in that warrant carry with it the right to enter and search."
"[I]f Parliament intended to include the power 'to search' in the [warrant provision], the failure to do so was a clear case of legislative oversight, but that power
which has not been expressly conferred cannot be supplied by invoking the provisions of the Interpretation Act."
Police were w/out authority in attempting to enter, search the appellant's property. Appeal of assault charges allowed.
Former Narcotic Control Act s. 10 authorized police to enter and search any place (other than a dwelling) they believed contained drugs; boundless potential for abuse.
Changed with Charter s. 8.
Expectation of privacy
Hunter v. Southam Inc. (1984)
Whether Combines Investigation Act (CIA) s. 10(3) violates Charter s. 8.
S. 10(1) authorizes the Director of the Combines Investigation Branch to enter any premises in which he believes there to be evidence, and to examine anything
S. 10(3) requires the director to make an ex parte application to obtain a certificate from a member of the Restrictive Trade Practices Commission (RTPC).
Police raided Southam Inc., publisher of the Edmonton Journal, on the authority of the above provisions, a month before the Charter came into force.
How is the assessment of 'unreasonable search'/'reasonable expectation of privacy' to be made?
a. When is the balance of interests to be assessed?
Purpose of s. 8 is to protect individuals from unjustified state intrusions upon their privacy. Requires means of preventing unjustified
searches before they happen, not determining after the fact whether they ought to have occurred. Requires system of prior authorization
(where feasible), not subsequent validation.
In the absence of a valid procedure for prior authorization, searches conducted under the Act would be unreasonable.
Party seeking to justify a warrantless search must rebut s. 8 presumption of unreasonableness.
b. Who must grant authorization?
RTPC's "administrative nature … ill-accords with the neutrality and detachment necessary to assess whether the evidence reveals that the
point has been reached where the interests of the individual must constitutionally give way to those of the state." Searches carried under CIA
ss. 10(1) and 10(3) are unreasonable.
c. On what basis must the balance of interests be assessed?
"The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point
where credibly-based probability replaces suspicion."
"[R]easonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to
be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure."
d. Reading in and reading down
CIA ss. 10(1) and 10(3) overtly inconsistent w/ Charter s. 8 such that they should be read down, found of no force or effect.
Limits not demonstrably justified in a free and democratic society.
Appeal dismissed w/ costs.
Re Laporte and The Queen (1972) Pre-Charter 'principle of legality' at work
Writ of certiorari to quash warrant for an operation to have bullets removed from a robbery suspect's body. Suspect opposes the operation.
Does a justice have jurisdiction (CC or otherwise) to issue a warrant to search the interior of a living human body?
CC s. 103(1): peace officer w/ reasonable grounds to believe that a weapons offence has been committed, "may search, without warrant, a person or vehicle,
or premises other than a dwelling house"
Narcotic Control Act s. 10(1)(b): peace officer may search a person found in a place in which such peace officer reasonably believes that there is a narcotic
which is the subject-matter of an offence
Customs Act s. 143: customs officer may search a person if he "has reasonable cause to suppose that the person searched has goods subject to entry at the
customs, or prohibited goods, secreted about his person"
Parliament meant the word "place" to be a geographic, not an anatomical, location.
"I am not the first Judge, and I trust that I shall not be the last, to decide that the possibility that some guilty persons may escape the net of justice is not too
high a price to pay for the right to live in freedom. If the Crown cannot prove its case against Laporte without doing physical violence to his person then it is
better that the case not be proved."
Hunter v. Southam Statute | warrant
Collins Statute | warrantless
Mann Common law | warrantless
o Incident to arrest
o Dog sniff
Certiorari: Extraordinary remedy—intermediate step where no right of appeal.
Statutory search: warrants & surveillance
Reasonable Expectation of Privacy
R. v. Duarte (1990)
Appeal re: Charter s. 8 protection against electronic recording of conversations of individuals w/ police and informers in the absence of judicial authorization.
Police rented, bugged Mississauga apartment. U/C police, informer moved in, consented to interception of their conversations, re: CC s. 178.11(2)(a)
Does one-party consent to surveillance violate Charter s. 8? If so, is this justifiable under s. 1?
[Canadian law enforcement authorities request twenty times more authorizations to conduct electronic surveillance than their American counterparts.]
CC s. 178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a
private communication is guilty of an indictable offence and liable for imprisonment for five years.
178.11 (2) Subsection (1) does not apply to (a) a person who has the consent to intercept, express or implied, of the
originator of the private communication or of the person intended by the originator thereof to receive it
Police generally may only conduct electronic surveillance once in possession of an authorization issued by a superior court judge and are bound to conduct such
surveillance in strict accordance with the terms and conditions of the authorization.
HVR, participant surveillance is left entirely to police discretion.
Hunter v. Southam: the primary value served by s. 8 is privacy; its spirit must not be constrained by narrow legalistic classifications
Applying Hunter v. Southam standard, one-party surveillance is "clearly unconstitutional"
Court of Appeal fails to give due weight to the policy implications of allowing the police to conduct warrantless surveillance when *it+ states … "it is only
those whose conversations are concerned with various illegal activities who will be seriously concerned about the possibility of their remarks being
recorded". On the contrary, the decision whether to allow or disallow this practice is fraught with the gravest of implications. To countenance this
practice would not strike only at the expectations of privacy of criminals and those concerned with wrongdoing. Rather, it would undermine the
expectations of privacy of all those who set store on the right to live in reasonable security and freedom from surveillance, be it electronic or otherwise.
[Good faith of police emphasized. Evidence admitted under s. 24(2)]
R. v. Wong (1990)
Accused operated a gambling house in his hotel room. Police used video surveillance. No CC mechanism at the time for issuance of a warrant authorizing video
"[I]t follows logically from what was held in R. V. Duarte that it would be an error to suppose that the question that must be asked in these circumstances is
whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be
framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a
reasonable expectation of privacy."
"… I can see no conceivable reason why we should be shorn of our right to be secure from unreasonable searches in these locations which may be aptly
considered to be our homes away from home."
[Good faith of police emphasized again. Evidence admitted under s. 24(2), again.]
R. v. Wise (1992)
Police put tracking device on suspect's car. Monitored vehicle's location from a distance.
The police could have used basic surveillance techniques (i.e. cars, binoculars) to monitor the car, w/out violating suspect's s. 8 rights.
Monitoring a vehicle operating on public roads is not a s. 8 violation.
Profound difference btw "the threat to privacy inherent in courting the ordinary observations of other members of society [and] the threat to privacy
posed by allowing the state to electronically monitor our every movement." Such state activity intrudes upon a reasonable expectation of privacy.
These police tactics are not always a violation; HVR, b/c of the privacy interests at stake such investigative measures should only be undertaken under lawful authority
that meets minimum s. 8 standards. Where police demonstrate to a judge
o That there are reasonable and probable grounds to believe a crime has been or will be committed, and
o That the measure to be employed will furnish evidence of this.
See CC s. 184.1, 184.2 (responding to Duarte), 487.01 (responding to Wong), 492.1(1) (responding to Wise)
R. v. Dyment (1988)
Privacy is generally implicated by an intrusion on three zones or realms:
i.Privacy in one's person
ii.Privacy of a territorial or spatial nature
iii.Privacy of an informational nature
"Disjunctive language" of s. 8 ("search or seizure") also regulates seizures that take place w/out any preceding search.
"The essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person's consent" provided that the individual has "a
privacy interest in the subject-matter allegedly seized."
Evans v. The Queen (1996)
P4P marihuana. Police informed that accused had a grow op in their home. No spike in electricity consumption, no external indicators. Police went to the door to
sniff for pot. Smelled it immediately, arrested the occupants.
1. Whether or not "sniffing" for pot was a "search" w/in the meaning of s. 8
2. If so, whether the search was reasonable w/in the meaning of s. 8
3. Whether the second search (after warrant obtained) violated s. 8
4. Where the evidence must be excluded pursuant to s. 24(2)
1. Was the police conduct a 'search'?
Purpose of s. 8 is to preserve privacy interests of individuals, to "protect individuals from unjustified State intrusions upon their privacy" (Hunter
Common law implied licence for all members of the public, including the police, to approach the door of a residence and knock.
Invitation "extends no further than is required to permit convenient communication" w/ occupant
Police approached door w/ intention to "get a whiff", not merely to communicate but also to secure evidence against the occupants.
If this were not to be construed as a search, police could do "spot checks" of suspects' homes, door-to-door. It's a motherfucking search.
2. Was the search reasonable?
Warrantless search is prima facie unreasonable. To rebut “presumption of unreasonableness" (Hunter v. Southam), Crown must establish (re:
i. The search was authorized be law,
ii. The law authorizing the search was reasonable, and
iii. The manner in which the search was carried out was reasonable
Despite reasonableness of police conduct, search had no prior authorization. Fails first arm of Collins test.
3. Was the second (warrant) search reasonable?
R. v. Grant (1993): "the warrant and search conducted thereunder … will be considered constitutionally sound if the warrant would have issued
had the observations gleaned through the unconstitutional … searches been excised from the information."
Only untainted evidence prior to "sniffing" search was a Crimestoppers tip. Officers conceded this was insufficient to justify a warrant. Warrant is
4. Is the evidence NTL admissible under s. 24(2)?
Yes; there's just so much dope!
R. v. Kang-Brown (2008)
RCMP officer monitoring bus station as part of an operation to identify, arrest drug couriers.
Officer noticed appellant getting off bus; noted 'suspicious behaviour'. Started a conversation w/ the appellant and identified himself as a cop. Appellant seemed
Officer called to police dog. Dog indicated presence of drugs. Appellant charged w/ P4P cocaine, heroin.
Appellant: sniffer dog breached Charter s. 8 rights to be free of unreasonable search.
Trial judge: odour a "voluntary exposure of information"; no person could have a reasonable expectation of privacy in what they knowingly expose to the public.
Charter not engaged. Court of Appeal upheld conviction.
SCC: Appeal allowed.
Dog sniff amounted to search under Charter s. 8.
Failed Waterfield test:
No authority in statute or common law for the sniffer dog search.
Police had no RPG to believe appellant had drugs or had committed any other offence at the time he was accosted and the search by sniffer dog
Absent justified authority for such a search in a statute or at common law, s. 8 was breached.
Role of courts re: common law police powers?
Gaps in law best left to Parliament.
Protection of privacy interests rests on the constraints, like the requirements of prior authorization and reasonableness, imposed on those conducting
searches and seizures by the wording of s. 8 and by the courts in applying that section.
Downgrading of the standard of reasonable and probable cause to a standard of reasonable suspicion might lead to an even looser test of generalized
suspicion, and would impair important safeguards found in s. 8 against unjustified state intrusion. The evidence should be excluded pursuant to s. 24(2)
of the Charter.
Search incident to arrest
R. v. Stillman (1997)
"No search, no matter how reasonable, may be upheld under [the common law power of search incident to arrest] where the arrest which gave rise to it was arbitrary or
R. v. Cloutier
3 limits on power to search incident to arrest
1. Power does not impose a duty (police have some discretion in conducting search)
2. Search must be for a valid objective in pursuit of the ends of criminal justice, i.e.
(b) Discovery of evidence
(c) Preservation of evidence
3. Search must not be conducted in an abusive fashion; use of physical/psychological constraint must be proportionate to objectives sought,
4. [Search is reasonably contemporaneous with arrest—R. v. Caslake, below]
R. v. Caslake (1998)
Officer found dope where a driver had been pulled over peeing. Arrested him, impounded his vehicle.
Officer went to garage, unlocked guy's vehicle, searched it. Found cocaine.
No warrant for search—prima facie unreasonable. Operating on RCMP policy requiring inventory of vehicle, recording of condition of vehicle at impound.
Search of car consistent w/ Charter s. 8 (right to be secure against unreasonable search and seizure)?
Hunter v. Southam (1984): s. 8 protects individual's reasonable expectation of privacy; reasonableness is to be evaluated by balancing the privacy
interest against the state's interest in law enforcement.
R. v. Collins (1987): for search to be reasonable,
1. The search must be authorized by law,
i. State authority conducting search must be able to point to a specific statute or c.l. rule authorizing the search
ii. Search must be carried out in accordance w/ the procedural and substantive requirements the law provides
iii. Scope of search is limited to the area and to those items for which the law has granted the authority to search
2. The law itself must be reasonable, and
3. The search must be carried out in a reasonable manner.
RCMP's search fails at third arm of Collins test. Crown failed to demonstrate the search was reasonably carried out, according to procedure, on balance
of probabilities. Problem here is not the lawfulness of the search incident to arrest. Problem is scope.
Scope of search incident to arrest
Appellant: 6 hr delay btw arrest, search was too long to make the search 'incident' to arrest—unreasonable.
"The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a
need for the law enforcement authorities to gain control of things or information which outweighs the individual's interest in privacy. … *T+he
search is only justifiable if the purpose of the search is related to the purpose of the arrest."
Not RPG standard; "the only requirement is that there be some reasonable basis for doing what the police officer did. … *Under this standard+,
the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the
person might be armed."
Contrary to spirit of s. 8 to allow searches incident to arrest which do not meet both subjective and objective criteria
Officer must be acting [searching] for purposes related to arrest (subjective)
Officer must have reasonable belief that he/she has a legitimate reason to search (objective)
Was the search 'incidental to arrest'?
"Had [the officer] searched the car, even hours later, for the purpose of finding evidence which could be used at the appellant's trial on the charge of
possessing marihuana for purpose of trafficking, this would have been well within the scope of the search incident to arrest power, as there was
clearly sufficient circumstantial evidence to justify a search of the vehicle. However, by his own testimony, this is not why he searched. Rather, the sole
reason for the search was to comply with an RCMP policy requiring that the contents of an impounded car can be inventoried. This is not within the
bounds of the legitimate purposes of search incident to arrest."
Though search incident to arrest was justified, this search was not incidental to arrest. Appeal dismissed.
No need for officer to subjectively turn his mind to whether he was properly exercising his power to search incidental to arrest. Search was related to
proper administration of justice. Arrest was legal, as was impounding the vehicle. Vehicle was probable instrument in perpetration of crime. Inventory
search justified: purpose related to arrest and consequential impounding of the vehicle.
R. v. Flintoff (1998)
Accused was in an auto accident. Witness said he had run red lights, sped. Police detected slurring, booze smell.
Accused was booked, strip searched w/ the door open in view of passersby.
Court: search was not incidental to arrest, not justified in law; unreasonable; violation of s. 8; excluded re: s. 24(2)
R. v. Golden (2001)
Police saw a crack deal going down at a Subway restaurant. Arrested traffickers, asked other patrons to leave. Strip-searched accused in a private booth.
10 grams of crack lodged in ass cheeks of accused, who refused to "relax". Police removed the drugs w/ aid of rubber gloves used to clean the restaurant
Search conducted in a reasonable manner (re: Cloutier's third limit on power to search incident to arrest)?
Preconditions of a lawful strip search incident to arrest at common law
1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individual's engaged in the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the
option of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
Strip searches are prima facie unreasonable. Crown bears onus of proving on balance of probabilities that either:
1. Reasonable and probable grounds, as well as exigent circumstances existed, and therefore, a strip search 'in the field' was warranted and was
conducted in a reasonable manner; or
2. Reasonable grounds existed, and the strip search was carried out at a police station and was conducted in a reasonable manner.
Strip search was unreasonable. Crown failed to prove that "a situation of exigency existed so as to warrant a strip search outside the police station."
Strip search shouldn't be held to higher RPG standard; "[t]he existing common law rule that police demonstrate an objectively valid reason for the arrest
rather than for the search is consistent with s. 8 of the Charter, provided that the strip search is for a valid objective and is not conducted in an abusive
R. v. Buhay
Security guards at Winnipeg bus depot smelled pot coming from a locker. Opened it, found duffel bag of marijuana. Guards placed the items back in the locker,
locked it, contacted police.
Officers smelled marijuana. Seized bag. No search warrant. One officer didn't think of it. Other thought accused didn't have a reasonable expectation of privacy in
locker; HVR, didn't think he had sufficient grounds to obtain a warrant.
Next day, accused arrested trying to retrieve bag. Charged w/ P4P marijuana.
Trial judge: violation of Charter s. 8. Granted motion to exclude under s. 24(2). Accused acquitted.
Court of Appeal found no search-and-seizure on part of police. Entered a conviction.
SCC: appeal should be allowed, acquittal restored.
Accused had a reasonable expectation of privacy in the contents of the locker he rented.
Had control and possession of locker's contents (possession of key
Signs on lockers made no mention of possibility they might be searched.
Reasonable person would expect that his or her private belongings, when secured in a locker that he or she has paid money to rent, will be left
alone, unless the contents appear to pose a threat to the security of the bus depot.
Existence of a master key does not destroy expectation of privacy.
Not as high as privacy afforded to one's own body, home or office; HVR, a reasonable expectation of privacy existed sufficient to engage s. 8 Charter
Initial search by the security guards did not trigger Charter application
Guards not acting as agents of the state, nor could their activities be assimilated or ascribed to the government.
HVR, police required to obtain warrant to search locker.
Warrantless search and seizure was an impermissible intrusion of the state on a legitimate and reasonable expectation of privacy and therefore
constitutes a violation of s. 8 of the Charter.
Court of Appeal erred in finding no search and seizure.
A person's reasonable expectation of privacy as to the contents of a rented and locked bus depot locker is not destroyed merely because a private
individual invades that privacy by investigating the contents of the locker. The accused's reasonable expectation of privacy was continuous. The
intervention of the security guards does not relieve the police from the requirement of prior judicial authorization before seizing contraband
uncovered by security guards.
Exclusion under s. 24(2):
1. Re: trial fairness, evidence in this case is non-conscriptive, "discoverable" evidence; its admission would not render the trial unfair.
2. Re: seriousness of the breach,
Trial judge entitled to considerable deference
Officers' attitudes suggest "blatant disregard" for accused's s. 8 rights.
3. Re: urgency/necessity,
no immediate danger that the evidence would be lost, removed or destroyed
No imminent threat posed by the marijuana in the locker
Situation did not require immediate action to secure the evidence: locking mechanism still engaged, 24-hr limit not expired.
Police could have obtained evidence w/out infringing accused's rights.
Failure of police officers to explore other investigative techniques available shows absence of sincere effort to comply w/ Charter.
While some other elements militate in favour of admission of the evidence, the evidence considered as a whole supports a conclusion that the
violation was serious. Trial judge's assessment of seriousness of interference w/ accused's privacy interests reveals no misapprehension of the
evidence, or failure to consider relevant factors, and is not unreasonable.
Administration of justice does not have to be brought into disrepute on a national scale. While s. 24(2) is not an automatic exclusionary rule, neither should it become an
automatic inclusionary rule when the evidence is non-conscriptive and essential to the Crown's case. An appellate court must determine if, all factors considered, the trial
judge's conclusion to exclude the evidence, based on her or his finding that its admission would bring the administration of justice into disrepute, was reasonable.
In light of the trial judge's concern as to the long-term effect of the law enforcement officers' attitude in this case, it was well within his judicial discretionary power to
conclude that the admission of the marijuana would cause greater disrepute to the justice system than would its exclusion. Such decision is very well within the limits of
Surrender & arrest
In deciding to prosecute, Crowns apply relatively uniform standard across Canada: charges are not to be pursued if there is no reasonable "chance", "prospect", or
"likelihood of conviction”.
Objective; standard higher than prima facie. OTOH, doesn't require "probability" of conviction.
Public interest: if there is a reasonable prospect of Conviction, Crown considers whether it is in the public interest to discontinue
Charges are only reviewed after criminal proceedings are formally initiated.
Fatigue, fragmentation of work done by prosecutors may undermine utility of charge screening procedures:
o The "balkanization" of Crown responsibility perpetuates original errors caused by inadequate screening of charges and evidence.
o No one prosecutor is given, or assumes, responsibility for the conduct of a case.
Great confidence placed by Crown in competency of the police; decision to arrest is adopted as decision to prosecute.
Some unjustified charges simply go undetected.
Some prosecutors may prefer to avoid the burden of justifying a withdrawal to superiors, colleagues, police and victims.
R. v. Boucher (1955): Crown’s "public duty" role excludes notion of winning or losing
122,676 cases (33%) result in "stays or withdrawals".
Minor cases are diverted out of the criminal justice system through alternative measures programs
Cases fall apart b/c witnesses fail to attend court
Prosecutors withdraw if no reasonable prospect of conviction, though initial decision to arrest was entirely justified.
Prosecutors regularly disagree with police as to adequacy of evidence to support arrest and charge(s).
Royal Commission on the Donald Marshall Jr. Prosecution (1989)
Crown must ensure system is scrupulously fair. "Criminal justice system" not "criminal conviction system" -- strict adherence to principles of fairness and impartiality.
"Anything less than complete disclosure by the Crown falls short of decency and fair play."
Crown's failure to provide adequate disclosure may impair/prevent accused from making full answer & defence.
Violations s. 7 right to fundamental justice and s. 11(d) right to a fair hearing.
Crown is more than an advocate, "he is a police officer engaged in the administration of justice"
To expect any prosecutor to objectively evaluate whether certain evidence will be of use to the accused may be too much to expect. "If in doubt, give it out."
2 steps in disclosure process:
1. Police required to place all evidence before the prosecutor, so that he/she may evaluate it in order to determine whether the prosecution should be
2. Crown must make full disclosure to accused or his/her counsel.
Law exists to protect society against lawbreakers, safeguard liberty and freedom of the individual against the power of the State. Improving the efficiency of
procedures will not impair that balance.
R. v. O'Connor (1995)
"[Conducting] a prosecution in a manner that contravenes the community's basic sense of decency and fair play and thereby calls into question the integrity of the
system is also an affront of constitutional magnitude to the rights of the individual deceased."
Residual category of abuse of process in which individual's right to fair trial is not implicated; relied upon where prosecution conducted "in such a manner as to
connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process"
Blencoe v. BC (Human Rights Commission) (2000)
Quoted in Regan (below)
Abuse of process has a necessary causal element: the abuse "must have caused actual prejudice of such magnitude that the public's sense of decency and fairness is
R. v. Regan (2002)
Allegations of Crown misdeeds re: prosecution of Nova Scotia's former Premier, Gerald Regan. Charged w/ 18 counts of rape, attempted rape, indecent assault
and unlawful confinement involving 13 women.
Issues: Whether the Crown and the police overstepped their authority by
Releasing suspect’s name,
Conducting pre-charge interviews;
Whether these infractions constituted abuse of process such that stay of proceedings was the only recourse.
Abuse of process?
NO: Infractions do not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community's sense of
decency and fair play.
Conduct, even if it did amount to an abuse,
was not done in bad faith and
did not have an ongoing effect on the accused, which would jeopardize the fairness of his trial.
Pre-charge interviews are not improper, don’t fatally undermine Crown objectivity. Bright line btw pre- and post-charge interviews suggests
subjectivity is inevitable w/ contact btw Crown and complainant -- but then even post-charge interviews would undermine Crown objectivity.
Interviews done in accordance w/ common practice of many other provinces. Common w/ sexual assaults to assess victims' credibility, demeanour
Arrest "the final and most formalized step in *progression of interactions btw individuals and police+ … at the upper end of a
graduated continuum of increasingly coercive measures that the police make recourse to in fulfilling their law enforcement and
order maintenance functions."
Seizure (physical, verbal) of body w/ intent to detain.
RPG for officer to believe an (indictable) offence was committed or (a summary offence) was being committed --- CC s.
CC s. 495(1)(a) Officer may arrest without warrant a person whom, "on reasonable grounds, he believes has committed or is about to
commit an indictable offence."
CC s. 495(1)(b) Officer may arrest without warrant "a person whom he finds committing a criminal offence". Applies to summary offences
(redundant for indictable offences; see s. 495(1)(a) above.)
CC s. 495(1)(c) Officer is authorized to arrest if he or she has "reasonable grounds to believe that a warrant of arrest or committal" is
outstanding within the "territorial jurisdiction in which the person is found." Officer doesn't need actual possession of the
warrant or knowledge of its contents; "the duty of the arresting officer is fully discharged by telling the arrested person that
the reason for his arrest is the existence of an outstanding warrant".
R. v. Storrey (1990)
Three men were stabbed in their car while crossing the Ambassador Bridge in Windsor. They misidentified their assailant but police determined that another man
with very similar features was the likely suspect.
Victims identified the accused in a police line-up.
Re: CC s. 495(1), police needed [subjective] reasonable and probable grounds that the appellant had committed the aggravated assault before they could arrest him
… but also "justifiable from an objective point of view *i.e. reasonable person would conclude RPG+"
Grounds for arrest:
a. Ownership by accused of a "relatively unusual and uncommon car" of a type used in the attack;
b. Accused had been stopped by the police on several occasions driving the car;
c. Accused had a violent record; and
d. Two victims picked out a picture of a man who looked remarkably like the accused.
Defence: improper to arrest for the purpose of putting the accused in a lineup.
"On the contrary, it has long been the rule in Canada and the United Kingdom that the police can continue their investigation subsequent to an arrest. The
essential role of the police is to investigate crimes. That role and function can and should continue after they have made a lawful arrest. The continued
investigation will benefit society as a whole and not infrequently the arrested person. It is in the interest of the innocent arrested person that the
investigation continue so that he or she may be cleared of the charges as quickly as possible."
Appeal dismissed; Court of Appeal order for new trial confirmed.
Charter limits: s. 9, unlawful detention/arrest
R. v. Duguay, Murphy and Sevigny (1985)
B&E. Three 17 y/o males seen next door the previous day. One was a neighbour. Police arrested them to obtain inculpatory statements and fingerprints, "to
determine whether they actually did it or not".
Respondents unlawfully arrested re: CC s. 495(1), in violation of Charter s. 9 (right to be secure from arbitrary detention or imprisonment). Evidence excluded
under Charter s. 24(2) lest its admission bring the administration of justice into disrepute. Respondents acquitted. Crown appeals.
Issue of whether accused was arbitrarily detained depends on
1. The particular facts of the case,
2. The extent of departure from the RPG standard , and
3. The honesty of the belief and basis for the arresting officer's belief in the existence of RPG.
CC s. 495(2) -- suffers from "bewildering complexity"
Police should not arrest for less serious offences if there are reasonable grounds to believe an arrest unnecessary in the "public interest".
In assessing "public interest", officer is directed to consider all circumstances, including need to
Secure or preserve evidence, or
Prevent the continuation of the offence or the commission of some other crime.
Charter limits (ctd): s. 8, unreasonable search or seizure
R. v. Feeney (1997)
Appeal re: Charter violations during police investigation into beating death of Frank Boyle.
Neighbours told police they had seen accused walking near scene.
Officer entered suspect's trailer (w/out warrant), read him his rights, asked him questions. Blood on his clothes. Same cigarettes found at scene. Tee shirt was seized,
accused was arrested.
Accused was interrogated for hours w/out being granted a lawyer despite having requested one. Ultimately admitted to striking the victim, stealing some shit from
his house. Convicted of 2nd degree murder.
Lawful entry/arrest? NO
Re: Landry, officer should have announced his presence before entry. No exigent circumstances.
Also, no warrant; warrantless searches are prima facie unreasonable. Fails 3-part Collins test for reasonable search. Violation of Charter s. 8.
R. v. Kokesch (1990): "[i]t should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards
were designed to prevent".
Evidence excluded under 24(2).
Dissent: trial judge justified in finding objective RPG to arrest appellant -- small town, early morning, accused was near the scene.
Charter limits (ctd): s. 10(a), right to be informed of reasons for arrest
R. v. Borden (1994) Police must inform those detained/arrested of all reason(s) for detention/arrest
Officers took sample of accused's blood to investigate assault of elderly woman. Compared DNA w/ semen found on victim's blanket.
Later used DNA to investigate a second, unrelated offence.
Non-disclosure of dual purpose in seizing respondent's blood infringes ss. 10(a), (b).
Predominant intention: investigation of assault on elderly woman.
"Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right
to be informed."
Accused has a right to be informed of "dual investigative intention"; violation of Charter s. 10(b): right to counsel. [Prohibits partial disclosure to insulate an ulterior
investigative purpose.] Police must inform the person detained or arrested of the true reason(s) for their arrest.
Charter limits (ctd): s. 10(b), right to counsel
R. v. Strachan (1988)
Phrase "without delay" read flexibly in context of investigative detention (Suberu). HVR, in the case of arrest, the only justifiable delay is where the police are
facing a potentially volatile and dangerous situation.
R. v. Bartle (1994)
Purpose of s. 10(b) is to "provide detainees with an opportunity to be informed of their rights and obligations under the law … to obtain advice on how to
exercise those rights and fulfil those obligations".
Do the circumstances of the cases confirm or refute the notion of disadvantage?
If yes, how well does the Court's jurisprudence redress the disparity?
i. Informational duties
ii. Implementation obligations
iii. How the s. 10(b) right can be waived
Police informational duties
R. v. Brydges (1990) S. 10(b) includes positive duty to inform accused of duty counsel, Legal Aid.
o Accused arrested in connection w/ a murder. Detective asked if accused wanted to contact a lawyer. Accused said no; didn't think he could afford a
o Officer was from out-of-province, didn't know Manitoba's Legal Aid procedure. Didn't inform the accused of availability of Legal Aid, duty counsel.
Charter s. 10(b) imposes duties on police to
o Give detained person a reasonable opportunity to exercise the right to retain and instruct counsel
o Refrain from questioning or attempting to elicit evidence until the detainee has had the reasonable opportunity (R. v. Manninen, 1987; R. v. Ross,
o Inform accused of the existence of duty counsel and the ability to apply for Legal Aid
"[An important reason] for retaining legal advice without delay upon being detained is linked to the protection of the right against self-incrimination."
Failure of police to inform accused of existence of Legal Aid and duty counsel was a restriction on 10(b) right to counsel.
Accused persons should be told "as a matter of routine" of the existence and availability of duty counsel and Legal Aid.
"[T]here may be cases where a detainee says nothing about his inability to afford counsel because he believes it is a foregone conclusion that unless he
can afford a lawyer, there is no other way to exercise the right to retain and instruct counsel."
New duty may affect consideration of what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel. How long must police wait
for counsel of the detainee's choice to become available? Waiting 8-10 hrs not justified.
Court orders 30-day transition pd to enable police to properly discharge new burden, update their caution cards.
R. v. Bartle (1994) State's obligations re: disclosure of existing and available duty counsel services
Purpose of s. 10(b) is to "provide detainees with an opportunity to be informed of their rights and obligations under the law and … to obtain advice on how to
exercise those rights and fulfill those obligations."
o Accused pulled over for DUI. Declined to call a lawyer. Agreed to 2 breathalyser tests; failed both.
o Caution failed to convey sense of immediacy, universal availability of legal assistance. Accused thought the caution he received meant he could
contact a lawyer "when one would be available like Monday morning". Told officer, "I can't think of anybody to call, it's too late."
o Officer didn't inform him of 24-hr 800 number for Brydges-style telephone duty counsel.
o Accused made incriminating statements en route to police station.
Evans: a "person who does not understand his or her right cannot be expected to assert it"; where circumstances suggest detainee doesn't understand
the information, mere recitation of s. 10(b) is insufficient.
Brydges: before accused can be said to have waived right to counsel, he/she must have sufficient information to make an informed choice.
Detainee is entitled "to be advised of whatever system for free, preliminary legal advice exists in the jurisdiction and of how such advice can be accessed."
o Appellant wasn't properly informed of s. 10(b) rights. May have been misled re: nature, extent of his right to counsel.
o "The caution he received failed to communicate the fact that, at the pre-charge stage, a detainee has the opportunity by virtue of the scheme for immediate legal
assistance set up by Ontario to speak to duty counsel and to obtain preliminary legal advice before incriminating him- or herself."
o "The fact that a detainee merely indicates that he knows his rights will not, by itself, provide a reasonable basis for believing that the detainee in fact understands
their full extent or the means by which they can be implemented."
o Where reasonable basis for believing detainee is already aware of his/her rights, omitting information from the standard caution may not be a s. 10(b) violation.
HVR, standard is high.
Appellant didn't waive his right to receive a caution that fully informed him of his right to counsel.
Authorities' failure to properly inform accused of duty counsel resulted in s. 10(b) violation. Evidence excluded.
R. v. Manninen (1987) S. 10(b) includes positive duties to
(1) inform accused of duty counsel, Legal Aid [R. v. Brydges];
(2) provide reasonable opportunity to retain counsel; and
(3) cease attempting to elicit information until thereafter
o Accused robbed a Mac's Milk w/ a gun and a knife. Police tracked him down, found the gun. Arrested accused.
o Accused was informed of his right to retain and instruct counsel w/out delay. Demanded his lawyer. Police persisted in asking questions. Accused
responded, "When I was in the store I only had the gun. The knife was in the tool box in the car." Incriminated himself like a complete fucking moron.
Charter s. 10(b) imposes 3 duties:
(1) Inform accused of duty counsel, Legal Aid [Brydges];
(2) provide detainee w/ reasonable opportunity to retain, instruct counsel; and
(3) cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel
"For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence."
R. v. Esposito (1985):
"If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel".
"[T]here may be circumstances in which it is particularly urgent that the police proceed with their questioning of the detainee before providing him with a
reasonable opportunity to retain and instruct counsel, but there was no such urgency in this case."
[Re: Crown's claim that respondent waived right by answering questions,] "While a person may implicitly waive his rights under s. 10(b), the standard will
be very high (Clarkson). … *The accused+ did not intend to waive his right, as he clearly asserted it".
Evidence should have been excluded. Appeal dismissed.
R. v. Burlingham (1995) Denigrating counsel infringes s. 10(b); Crown must act "honourably and forthrightly" in plea bargaining, esp.
when counsel not present
o Appellant accused of two separate sexual assaults/murders.
o Police systematically questioned him despite repeated demand to consult lawyer.
o Police "constantly denigrated the integrity of defence counsel", suggested he was untrustworthy.
o Offered accused a "one-time chance" deal: only available during w/e, while counsel was away.
o Appellant acquiesced despite having phoned another lawyer who advised him not to talk to cops.
o Crown only authorized officers to say a plea of guilty to 2nd degree murder would be accepted, not that the appellant would be charged w/ 2nd
o Content of accused's right to counsel during plea bargaining
o Appropriate remedy for infringement of s. 10(b)
Re: Brydges (1990), section 10(b) requires, barring urgent circumstances, that police refrain from attempting to elicit incriminatory evidence once a
detainee has asserted his/her right to counsel.
s. 10(b) specifically prohibits police from belittling accused's lawyer w/ express goal/effect of undermining the accused's confidence in and
relationship w/ defence counsel.
Improper conduct re: plea bargain also infringes s. 10(b).
Re: Evans (1991), "When it is evident that [the accused does not understand the full content of his right to counsel], the police cannot rely on a
mechanical recitation of the right to counsel in order to discharge their responsibilities under s. 10(b) … . They must take positive steps to facilitate that
"[Section] 10(b) mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to accused's counsel or to the accused
while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel."
"[Police] should have negotiated the 'deal' with the appellant's counsel or, at a minimum, with the appellant while accompanied by his lawyer."
There was no urgency.
"[To] the extent that the plea bargain is an integral element of the Canadian criminal process, the Crown and its offers engaged in the plea
bargaining process must act honourably and forthrightly."
Re: s. 24(2), admission of statements would bring administration of justice into disrepute.
Dissent: L'Heureux-Dube J. disagreed that admission would bring admin of justice into disrepute.
NOTE: for right to counsel to be meaningful, s. 10(b) imposes obligation to allow accused opportunity to consult w/ counsel in private.
Waiver of s. 10(b) by accused
R. v. Baig (1987) Onus on accused to prove s. 10(b) rights violated.
Accused arrested, read counsel & caution. Confirmed he understood. Signed form confirming he understood.
THF no need to determine whether accused's conduct amounted to a waiver of his right to counsel.
Re: R. v. Anderson (1984),
"[Absent] proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to
be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it."
"*Once+ the police have complied with s. 10(b), … there are no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated
his desire to exercise his right to counsel." Appeal dismissed. New trial ordered.
R. v. Ross (1989) Onus on Crown to prove “unequivocal waiver” of s. 10(b).
o Witnesses reported a B&E. Some hours later, police pulled over, arrested 3 boys.
o Advised of right to counsel. Each tried to phone counsel, around 2:00 a.m.; no answer.
o Police put the accused in a line-up; witnesses identified them.
o (1) Police must give reasonable opportunity to retrain, instruct counsel w/out delay; (2) police must refrain from attempting to elicit evidence. Police
fulfilled neither duty.
o [One accused] had clearly indicated that he wished to contact his lawyer. The mere fact that he did not want to call another lawyer cannot fairly be
viewed as a waiver of his right to retain counsel. Quite the contrary, he merely asserted his right to counsel and to counsel of his choice.
R. v. Tremblay (1987)
A detainee must be reasonably diligent in the exercise of these rights; if not, the correlative duties imposed on the police (and set out in Manninen) are
o Reasonable diligence depends on context.
o Burden of establishing "unequivocal waiver" is on Crown. Once the accused asserted his right to instruct counsel, unreasonable for police to proceed as if he
had waived his right to counsel.
o No urgency to justify bypassing s. 10(b). Line-up was held "with utmost, indeed highly unusual dispatch".
o Had the accused seen lawyers, they could have been advised that they were under no statutory obligation to participate in the line-up, although failure to do so
might have prejudicial consequences.
o That they didn't refuse to participate in the line-up doesn't amount to a waiver of right to counsel
Appellants couldn't make an informed decision about participating, b/c they were ignorant of legal position.
Police didn't give them a choice whether to participate.
Evidence excluded. Appeal allowed.
R. v. Smith (1989) Accused must be “reasonably diligent” in exercising s. 10(b) rights.
o Accused arrested for robbery 5 months before. Informed of right to counsel. Taken to station around 9:00 p.m.
o Wanted to call lawyer at home. Declined to call office phone number. Said he would call the lawyer in the morning.
o Taken to interrogation room. Believing himself to be "off the record", he confessed.
Issue: whether the police gave the accused a reasonable opportunity to exercise his right to retain, instruct counsel w/out delay.
Upon arrival at police stn, accused indicated intention to call lawyer. Decided against it. Police suggested he try. Accused refused, decided to wait
Police justified in continuing questioning.
R. v. Tremblay (1987): Duties on the police suspended when detained person not reasonably diligent in exercise of his/her rights.
Limit essential; w/out it, possible to delay investigation needlessly, maybe destroy evidence
Most criminal lawyers are available outside normal office hrs.
"The situation would be very different if … the appellant had tried to contact his lawyer but had failed" (e.g. Ross). Appellant was "most casual" in
asserting his right to counsel. Refused to place call.
[Ruling is "close to the line"]
Accused positively and repeatedly asserted his desire to exercise his right to counsel"
Answers were given after he had asserted his desire to speak w/ his lawyer; accused believed they were "off the record"
R. v. Clarkson (1986) Drunken confession Waiver of s. 10(b)
Admissibility of confession while intoxicated?
o Accused called her sister while intoxicated, said she shot her husband. Found next to her dead spouse, crying hysterically. Charged w/ murder. No
fingerprints on nearby rifle.
o Police heard accused making admissions of guilt to her aunt.
o Accused was instructed of s. 10(b) right to counsel; nodded when asked if she understood; nodded when asked if interview could be recorded.
o Accused's aunt asked whether it was proper for accused to be questioned w/out a lawyer. Police said she had been read her rights, proceeded w/
o Accused's aunt tried to convince the accused to stop answering questions until lawyer was present. Accused waived off suggestion. Made highly
Re: Therens, aim of s. 10(b) is "'to ensure that in certain situations a person is made aware of the right to counsel' where he or she is detained by the police in a
situation which may give rise to a 'significant legal ocnsequence'."
Test: accused's awareness of consequences of waiver of s. 10(b) rights
Confession failed 'awareness of consequences' test; likewise fails test for waiver of s. 10(b).
"incumbent upon the police to delay their questioning and the taking of the appellant's statement" until sober, able to properly exercise rights
Confession improperly obtained
R. v. Whittle (1994) Test for waiver where accused is mentally ill
Accused must possess the limited cognitive capacity that is required for fitness to stand trial.
i.e. capable of communicating w/ counsel, instructing counsel, understanding function of counsel, dispensing w/ counsel (even if this is not in
his/her best interests).
Not necessary that the accused possess analytical ability; mental capacity of an operating mind
Re: young persons (those who are or appear to be twelve years of age or older but under eighteen)
o YCJA s. 146(4): youths wishing to waive s. 10(b) rights must put this intention in writing/recording
o YCJA s. 146(5): where "technical error" w/ step above, youth court justice's discretion whether s. 10(b) rights were waived
Charter limits (ctd): s. 7 & 10(b), right to silence
R. v. Hebert (1990) Statement to state agent [undercover cop] post-detention admissible where not elicited by agent
o Accused stated his right to remain silent. Was placed in cell w/ undercover agent. Made incriminating statements.
o Court: distinction btw statements to an ordinary cellmate, statements to a state agent
In the former, the right to silence is not engaged; in the latter, it is.
"A person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police."
Scope of the right to silence in pre-trial detention period based on
1. (common law) right to choose whether to speak to the authorities or to remain silent
2. Charter rights related to freedom from tyranny of the state
s. 7 right to silence
s. 10(b) right to retain counsel
s. 11(c) right not to be compelled to testify against oneself
s. 13 not to have incriminating evidence used against oneself in subsequent proceedings
3. Charter's approach to improperly obtained evidence (s. 24(2))
4. Fundamental purpose of the right to silence
o Doesn't prohibit police from questioning the accused in the absence of counsel after the accused has retained counsel; counsel should have informed the accused of
his right to remain silent. "Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to
o Applies only after detention: in an undercover operation prior to detention, suspect is not under state control; no need to protect him from state tyranny.
o Right to silence does not affect voluntary statements made to fellow cell mates. Violation only when Crown acts to subvert the suspect's constitutional right to
choose not to make a statement.
o Distinction btw state agent observing suspect, actively eliciting information from suspect.
"[The] accused exercised his choice not to speak to the police when he advised them that he did not wish to make a statement. When he later spoke to the
undercover policeman, he was not reversing that decision and choosing to speak to the police. He was choosing to speak to a fellow prisoner, which is quite a
different matter. The Crown, in using a trick to negate his decision not to speak, violated his rights." [Not a limit prescribed by law under s. 1; excluded under s.
R. v. Broyles (1991) Test for admissibility of statements to an informer for the state
Police arranged for a friend to visit the accused in jail; put a wire on the friend.
"Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what
it would have been had there been no such relationship should the informer be considered a state agent".
Test: "would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of
the state or its agents?
Factors re: what kind of conversation constitutes "elicitation":
1. Exchange btw accused and state agent
Did the state agent [i.e. informer] actively seek out information (i.e. interrogate), or did he conduct his part of the conservation as someone
would ordinarily have done?
2. Relationship btw accused and state agent
Did the state agent exploit special characteristics of the relationship?
Was there a relationship of trust?
Was the accused obligated/vulnerable to the state agent?
Did the state agent manipulate the accused?
Instructions given to the state agent by the state may also be important.
Evidence that the agent was instructed not to initiate the conversation nor to ask leading questions will tend to refute the allegation that the resulting
statement was obtained in violation of s. 7.
HVR, this will not end the inquiry
Corollary to right to pre-trial sentence: rule precluding its use at any subsequent trial
o Prosecution can't ask investigating officer whether the accused gave a statement, in order to elicit response that he/she did not.
o Accused cannot be cross-examined about failure to provide an exculpatory explanation.
R. v. Moran (1987)
Accused voluntarily spoke to police during investigation of his mistress’ death. Only later became a suspect. Claimed he had believed the first interview was “off
the record”. Claimed police said he didn’t need a lawyer.
Issue: was the accused detained during the interview such that s. 10(b) is activated?
Relevant when determining if someone subsequently accused was detained at time of questioning:
(1) Language used by police (i.e. whether accused given a choice to participate)
(2) Whether accused escorted to station or came himself in response to request
(3) Whether accused left at conclusion of interview or was arrested
(4) Stage of investigation (i.e. whether questioning designed to elicit incriminating statements)
(5) Whether police had reasonable and probable grounds to believe accused had committed crime
(6) Nature of questions (whether of a general nature or designed to obtain information or confront accused w/ his guilt)
(7) Subjective belief by accused that he is detained—relevant but not decisive (issue is whether that belief was reasonable)
No detention: officer asked if appellant would prefer to come to station or police come to him. Suicide not yet ruled out. Accused not yet a suspect.
Officers asked victim’s family to take a polygraph too.
R. v. Mickey (1988)
Accused came to scene of murder, made remarks about the body’s state that the Crown alleged only an assailant could know. Also made incorrect statements.
Claimed he saw the murder from a window.
Police took him to the station for questioning, as a witness.
Court: he was detained as of this point. No longer free to leave. Statement recorded.
Blatant violation of ss. 10(a) and (b) rights; admission would bring administration of justice into disrepute.
Admissibility of statements re: s. 24(2).
R. v. Elshaw (1991)
Observer called police when accused led two 6 y/o boys into the bushes, told them to keep “our little secret”.
Police put accused in a van for 5 min. Questioned the witness and the boys.
Police asked accused “What would have happened if we had not come along?” Accused replied, “I just can’t help myself. Sometimes I have these urges, not so
much with little boys, but more with little girls.”
Charged w/ vagrancy. Charges of assault, attempted sexual assault later added.
Crown conceded s. 10(b) violation. Serious violation; admission of evidence would severely prejudice accused’s case; admission would bring administration of
justice into disrepute. Evidence excluded under s. 24(2).
o No s. 10(b) violation: accused was not detained [even though he was put in the van for 5 min; WTF?]
o Cops shouldn’t have to inform people of s. 10(b) rights every time they feel psychologically constrained
The common-law confessions rule
Common law Crown cannot enter into evidence a statement made by an accused to an authority unless it establishes beyond a reasonable doubt
confessions rule that the statement was voluntary.
Some difficulty w/ crossing line btw interview and interrogation (i.e. detention) where a witness becomes a suspect.
R. v. Singh (2007)
Individual accused's interests vs. public interest
Witnesses pointed to accused as gunman in a shooting. Accused was arrested, advised of s. 10(b) rights. Police interviewed accused twice, first 80 min, second the
next morning, 47 min. Several times he told them he did not want to talk about the incident. Asked to return to his cell. Police persisted. Ultimately, accused made
Were the statements voluntary?
Modern confessions rule includes right to make a meaningful choice whether or not to speak to authorities
After detention, state authorities are in control; detainee, who can't walk away, is vulnerable. Risk of abuse.
R. v. Herbert (1990): scope of s. 7 right to silence might go beyond confessions rule to give suspect a free and meaningful choice whether or not to
speak to authorities. Objective test: violation of s. 7 where means of persuasion create a reasonable doubt as to the accused's right to choose to make
HVR, R. v. Oickle (2000): absent a finding of “harsh, aggressive or overbearing interrogation” and without being deprived of “food, sleep or drink,”
there is no reason to question the reliability of a suspect’s statements.
State interest in effective investigation of crime.
Dissent: interrogator encouraged accused to ignore counsel's advice; deprived of s. 7 right to silence, 10(b) right to counsel.
R. v. Pilcher and Broadberry (1981) Swearing an information where uninformed
Informant swore information w/out being familiar w/ it, on orders from superiors. Motion to quash information.
Accused: informant [swearing officer] didn't have reasonable & probable grounds to believe allegations; "latent defect in information”
i.e. failure to observe CC s. 455; amounts to a jurisdictional defect, voiding the information
CC s. 455: Any one who, on reasonable and probable grounds, believes that a person has committed an indictable offence may lay an information in writing and
under oath before a justice.
CC s. 455.2: An information laid under section 455 or 455.1 may be in Form 2.
Form 2: The informant says that [or has reasonable and probable grounds to believe and does believe] the accused (state the offence).
Issue: whether informant had reasonable & probable grounds to believe and did believe that the accused committed the offences charged.
Henry J., Peavoy (1974):
"A person swearing an information … is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the
truth of his assertion. To do so is clearly an affront to the Courts and … the right of the citizen to be left alone by the authorities unless there is reasonable
and probable grounds for invading his liberty".
"[The informant] need not … have personal knowledge of all the facts or even most of the facts that support the allegation; *he+ must however, be
that there is some evidence to support the charge
that that evidence in fact constitutes reasonable and probable grounds for believing that the accused committed the offence and
that he believes that the accused did so."
NTL, CC s. 455 "contemplates a situation where an informant acting in a prudent and cautious manner, apprises himself of the relevant circumstances surrounding
the case which he reasonably and in good faith believes to be true and concludes with a genuine conviction that the person to be charged is probably guilty of the
Problems w/ Pilcher
o Other cases (e.g. Peavoy): informant's knowledge can simply come from reading the arresting officer's arrest report or synopsis.
o Whitmore: complete absence of knowledge on the part of the informant does not affect validity of information.
o Anyway, how could accused demonstrate the informant had no knowledge of the allegations?
o No obligation on informant to appraise the justice of the grounds supporting a charge
Re: CC s. 504, the justice "shall receive the information"
i.e. absent some obvious defect, the justice must complete this "ministerial" function and receive the charge; no discretion to refuse it.
R. v. Jeffrey (1976) Judicial role of justice issuing or being asked to confirm process.
CC s. 732(1): objections for patent defects must be taken prior to plea.
CC ss. 507 and 507.1: govern manner in which information charging an offence under an Ontario statute is to be received by a justice and the manner in which a
summons is to be issued compelling attendance of a person to answer such a charge.
JP permitted to do nothing more than receive informations, unless he afterwards complied w/ ss. 507 and 507.1.
Not authorized in law to issue either a summons or a warrant for arrest to compel accused to attend to answer to the charges unless first complying w/
ss. 507 and 507.1.
Word "hear" includes reading of the "allegation" appearing in the information.
Actually "hear" doesn't include "read".
The JP has already seen and read the "allegation" in the information when he received it; Crown's interpretation would make the provision redundant.
The laying of an information [completion of the complaint under] is separate and distinct from the inquiry contemplated by [ss. 507 and 507.1].
Laying of an information deals w/ jurisdictional requirements: "[by swearing the written complaint] the information is 'laid' and becomes the first
step or commencement of criminal proceedings"
ss. 507/507.1 are the next step, concerning issuance of a judicial process to compel alleged offender's attendance: justice conducts inquiry for the
purpose of determining whether a summons or a warrant shall issue
The judicial officer can only compel the attendance of the defendant if he first hears and considers the allegations of the informant.
CC s. 507(1) and 508(1): process should issue or be confirmed if the justice "considers that a case for doing so is made out."
o i.e. if "there is disclosed by the evidence a prima facie case of the offence alleged" -- Whitmore (1989)
2nd most important judgment [after guilt or innocence]
Martin L. Friedland, Detention Before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates' Courts (1965):
o Those subject to pre-trial detention are more likely to plead guilty, to be found guilty after trial, and to receive heavier sentences if convicted
CC ss. 139(1) (a), (b): It's a crime to pay or accept a fee in return for serving as a surety in Canada. The role is usually reserved for those who are either related to or
closely acquainted w/ the person charged.
Emphasis of contemporary legislative scheme is on release.
CC s. 515(1): Presiding justice should order accused's release unless the Crown shows cause why pre-trial detention is justified.
CC s. 515(2): ladder approach: release must be ordered on the least onerous terms unless cause is shown for a more restrictive form of release.
o Less restrictive: undertaking - s. 515(2)(a)
o More restrictive: recognizance, w/ or w/out sureties, and with a deposit - s. 515(2)(e)
See also CC ss. 503(1), 515(1) and 515(2)
CC s. 516(1) sets out authority to adjourn
Presumption In favour of release doesn't operate in all cases. 2 categories of exceptions:
o Accused charged w/ most serious indictable offences (s. 469)
Justice must make detention order, re: s. 515(11)
Superior court judge may then order release (re: s. 522).
Onus on accused to demonstrate detention not justified under s. 515(10).
o Special circumstances set out in s. 515(6) reverse onus
Justice is to order detention unless accused can show cause. These "reverse onus" hearings required where accused is charged w/
i. An indictable offence while already subject to an earlier release order for another indictable offence (s. 515(6)(a)(i))
ii. An offence alleged to have been committed for the benefit or at the behest of a "criminal organization" (s. 515(6)(a)(ii))
iii. An indictable offence and accused is not ordinarily a resident of Canada (s. 516(6)(b))
iv. Failing to comply w/ terms of an earlier release order, or failing to attend court (s. 515(6)(c))
v. Trafficking, P4P, importing/exporting, or producing a controlled substance or w/ conspiracy to commit any of these offences
R. v. Pearson (1992) Constitutionality of reverse onus bail provisions, CC s. 515(6)(d)
Accused charged w/ NA [CDSA] offence. Onus on accused to show cause why detention not justified. Violation of Charter ss. 7, 9, 11(d) and/or 11(e)?
"[Certain] deprivations of liberty and security of the person may be in accordance with the principles of fundamental justice where there are reasonable
grounds for doing so, rather than only after guilt has been established beyond a reasonable doubt."
S. 515(6)(d) does not violate s. 7 [life/lib/SoP] unless it fails to meet the procedural requirements of s. 11(e) [not to be denied reasonable bail w/out just cause].
Does s. 515(6)(d) violate s. 11(e), depriving the accused of reasonable bail?
The "just cause" aspect of s. 11(e) imposes constitutional standards on the grounds under which bail is granted/denied.
["bail" referred to in CC as "judicial interim release"]
Order under section is subject to review by judge (ss. 520(1), 520(8))
Necessary to promote proper functioning of bail system
Offences under s. 515(6)(d) have specific characteristics which justify differential treatment
Drug trafficking = organized crime!
Trafficking in narcotics "occurs systematically, usually within a highly sophisticated commercial setting. … It is highly lucrative,
creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail." Requires more strict bail
process, special rules.
Increased danger accused will abscond.
Inequitable to treat a person who distributes a few joints of marihuana in the same manner as a person running a
sophisticated cocaine-trafficking network?
"The 'small fry' and 'generous smoker' will normally have no difficulty justifying their release and obtaining bail."
Does s. 515(6)(d) violate s. 9 [arbitrary imprisonment]?
Meaning of "arbitrary" in Hufsky (1988): "no criteria, express or implied, which govern its exercise"
Provision not arbitrary in this sense; sets out process w/ fixed standards
Long story short, no Charter violations. No reason to consider s. 1.
Not all accused denied bail under the drug provision fall into the category of prosperous drug-lords; "[the] lowly street vendor, the person most
likely to be arrested, cannot count on the distant drug lord to run the risk of stealing him out of the country."
Someone charged w/ minor trafficking may not convince judge he/she is not connected to a drug organization: "Criminal organizations, unlike
unions and service organizations, do not distribute lists of their members. How does one prove that one is not a member?"
Grounds for ordering detention (opposing release)
CC s. 515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following
Justification for where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to
detention in law;
custody where the detention is necessary for the protection or safety of the public, including any victim of or witness to
the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if
released from custody, commit a criminal offence or interfere with the administration of justice; and
if the detention is necessary to maintain confidence in the administration of justice, having regard to all the
the apparent strength of the prosecution’s case,
the gravity of the offence,
the circumstances surrounding the commission of the offence, including whether a firearm was used,
the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in
the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of
imprisonment for a term of three years or more.
Primary ground: attendance in court
Having regard to accused's roots in community (job, home, family, friends), past convictions
Secondary ground: public safety
Having regard to likelihood of committing an offence/interfering w/ justice
Used to have "public interest" clause, but this was found unconstitutional for vagueness, incompatible w/ s. 11(e) [right not to be denied reasonable bail w/out
just cause]: Morales (1992)
Tertiary ground: confidence in administration of justice (i.e. media frenzy, Greyhound Bus cases)
Morales (1992) Former ground, "public interest" too vague, violates s. 11(e). HVR, "public safety" is acceptable.
Section 11(d) has no application at the bail stage; guilt or innocence not determined, punishment not imposed. Public safety component does not infringe s. 11(d).
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for
those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood"
endangers "the protection or safety of the public".
S. 515(10) (b) necessary to promote proper functioning of the bail system; system can't function if accused interferes w/ administration of justice while on bail.
The bail system does not aim to make exact predictions about future dangerousness; impossible. HVR, impossibility "does not preclude a bail system which aims to
deny bail to those who likely will be dangerous."
o "substantial likelihood"
o Provisions for review of detention: ss. 520, 523(2), 525.
o Provisions to expedite trial: ss. 525(9), 526.
The tertiary ground, confidence in administration of justice
R. v. Hall (2002) Tertiary ground not unconstitutional
Alleged murderer arrested. Not likely to re-offend or skip town. Can they keep him in?
Court took into account:
o Offence was grievous, "horrific"
o Crown's case was strong
o Officer testified "there was a general sense of fear [within the community] that there was a killer at large"
Concluded: Detention necessary to maintain confidence in administration of justice.
Facts of case "offer convincing proof that in some circumstances it may be necessary to the proper functioning of the bail system and, more broadly of the
justice system, to deny bail even where there is no risk the accused will not attend trial or may re-offend or interfere with the administration of justice."
Tertiary ground "is neither superfluous nor unjustified" but in fact "serves a very real need … of maintaining the public's confidence". Much narrower, more
precise than old "public interest" ground.
"A degree of generality is … essential, and is not to be confused with vagueness" *where law so imprecise that it does not permit legal debate about its meaning
"It does not further our pre-trial release scheme to allow irrational fears and inclinations to distort the proper application of bail requirements. No
authority is needed for the proposition that ill-informed emotional impulses are extraneous to our system of bail."
CC s. 518: Inquiries to be made by justice and evidence [evidentiary parameters for bail hearings]
Section 518(1) (e) relaxes rules of evidence at bail hearings, authorizing the justice to "receive and base his decision on evidence considered credible or
trustworthy by him in the circumstances of each case."
Disclosure: R. v. Stinchcombe
R. v. Stinchcombe (1991)
"Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted
weapons in the arsenal of the adversaries.”
"The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its
"The adoption of uniform, comprehensive rules for disclosure by the Crown would add to the work-load of some Crown counsel but this would be offset by the
time saved which is now spent resolving disputes [e.g. extent of Crown's obligation] and dealing with matters that take the defence by surprise. … Much time
would be saved and therefore delays reduced by reason of the increase in guilty plea, withdrawal of charges and shortening or waiver of preliminary hearings.
Re: claim that material will enable the defence to tailor its evidence
o "All forms of discovery are subject to this criticism."
o "[Fairness] to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which
the prosecutor holds close to the vest."
o Search for truth is advanced rather than retarded by disclosure of all relevant material.
Re: claim that disclosure may put at risk security, safety of informants
Protection of informers is covered by informer privilege and exceptions thereto; any rules with respect to disclosure would be subject to this and other rules of
The prosecutor must retain a degree of discretion in respect of these matters [reviewable by trial judge], e.g.
o Excluding what is clearly irrelevant,
o Withholding the identity of persons to protect them from harassment or injury,
o Enforcing privilege relating to informers,
o Delaying disclosure in order to complete an investigation ["not to be encouraged and should be rare"].
On review, Crown must justify refusal to disclose.
Information ought not to be withheld if there is a reasonable possibility that withholding will impair the right of the accused to make full answer and defence,
unless justified by the law of privilege.
Accused is entitled to
(a) His criminal record;
(b) Any statement made by him;
(c) Anything the prosecutor proposes to introduce as an exhibit;
(d) Any statement made by a witness or anyone who may be called as a witness;
(e) Any material or information known to the Crown which tends to mitigate or negate the defendant's guilt;
(f) Electronic recording of any witness;
(g) The criminal record of any witness; and
(h) The name and address of any other person who may have information.
CC s. 482: superior courts and courts of criminal jurisdiction may enact rules to provide further details re: procedural aspects of disclosure.
Duty of disclosure may apply w/ less impact in summary conviction offences; right to make full answer and defence may be of a more limited nature.
Initial disclosure should occur before the accused is called upon to elect.
Crown's brief will often not be complete and disclosure will be limited by this fact. nevertheless, the obligation to disclose is a continuing one and
disclosure must be completed when additional information is received.
Re: what should be disclosed,
"all relevant information … subject to the reviewable discretion of the Crown"; not only that which the Crown intends to introduce in evidence but also
that which it does not.
No distinction btw inculpatory and exculpatory evidence.
Disclosure by the evidence
Defence entitled to refrain from revealing anything until case underway
Exception 1: alibi
o Where accused advances an alibi defence the failure to disclose the particulars of that defence to the authorities, in a timely manner, hsould result in an
instruction to the trier-of-fact to approach the evidence w/ caution: R. v. Cleghorn (1995)
Exception 2: advance notice w/r/t any constitutional relief sought
o If accused intends to seek exclusion of evidence/invalidation of a statute, notice must be served, setting out the nature of the application, including
The factual foundation for it,
The legal grounds to be argued, and
The relief to be sought
At least fifteen days prior: R. v. Kutynec (1992), R. v. Loveman (1992)
Exception 3 [recently imposed by amendment to Criminal Code]: expert opinion evidence
o CC s. 657.3(3): party intending to call evidence must give notice at least thirty days before commencement of trial including name, area of expertise,
o CC s. 657.3(4): if notice not given, court shall, at the request of any other party, grant an adjournment to prepare cross-examination, etc.
Lost or destroyed disclosure
R. v. La (1997)
When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it.
Breach of Charter if the explanation doesn't satisfy the trial judge
Discharge of duty to disclose in lost evidence cases
Duty to disclose gives rise to obligation to preserve relevant evidence: R. v. Egger (1993).
Duty of Crown and police to preserve the fruits of the investigation.
Test for "loss":
Whether the Crown or the police took reasonable steps in the circumstances to preserve the evidence for disclosure, considering the relevance the
evidence was perceived to have at the time.
Loss of relevant evidence will not result in breach of duty to disclose if conduct of police is reasonable. HVR, as relevance of the evidence increases, so
does the degree of care for its preservation expected of the police.
In extraordinary circumstances, loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to
receive a fair trial; stay may be appropriate. Test: accused must establish actual prejudice to his/her right to make full answer and defence.
Appropriateness of stay of proceedings depends on the effect of the conduct amounting to an abuse of process on the fairness of the trial.
Disclosure is essential to enable the accused to exercise right to make full answer & defence
While disclosure is a duty to which the Crown must adhere, every failure to disclose is not a Charter violation.
Disclosure of third-party records
R. v. O'Connor (1995)
Accused sought production of alleged victim's therapy records from a third party. [Records alleged to indicate doubt or confusion re: accused's guilt.] Failing such
production, accused claimed violation of Charter right to make full answer and defence; sought stay of proceedings.
Issue 1: when does non-disclosure by the Crown justify an order that the proceedings which are the subject matter of the non-disclosure be stayed?
Issue 2: what is the appropriate procedure to be followed when an accused seeks production of documents such as medical and/or therapeutic records that are
in the hands of third parties?
Application for production
When accused applies for an order for production of record, 2-stage approach:
1. Accused must demonstrate that the information contained in the records is likely to be relevant either
a. to an issue in the proceedings or
b. to the competence to testify of the person who is the subject of the records.
2. Weigh the positive and negative consequences of production, with a view to determining whether, and to what extent, production should be
Accused must establish there is further material which may be useful to the accused in making full answer and defence
Material must be logically probative
HVR, application for records held by a third party must be accompanied by affidavit evidence which establishes the information sought is likely to
be relevant. Based on evidence, not speculative assertions. Application will not succeed if not supported by evidence demonstrating the likely
relevance of the records.
In the case at bar:
Records in question are not w/in the possession or control of the Crown, do not form part of the Crown's "case to meet", and were
created by a third party for a purpose unrelated to the investigation or prosecution of the offence.
Accused did not prove such records likely to be relevant; "fishing expedition".
"The fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of his or her
"It must not be presumed that the mere fact that a witness received treatment or counselling after a sexual assault indicates that the
records will contain information that is relevant to the defence. … Victims often question their perceptions and judgment, especially if
the assailant was an acquaintance. Therapy is an opportunity for the victim to explore her own feelings of doubt and insecurity. It is not a
fact-finding exercise. [Information derived from therapy] is inherently unreliable and, therefore, may frustrate rather than further the
If trial judge concludes records likely to be relevant,
a. Balance the salutary and deleterious effects of ordering production, having regard to
i. The accused's right to make full answer and defence, and
ii. The effect of such production on the privacy and equality rights of the subject of the records.
Case at bar:
Order for production is an invasion of privacy.
Documents in question are profoundly intimate.
Neither subject nor records' guardian should be compelled to violate the intimacy of the records unless the judge has determined, after
careful consideration, that the salutary effects of doing so outweigh the damage done thereby.
Once a court has reviewed the records, production should only be ordered in respect of those records, or parts of records, that have
significant probative value … not substantially outweighed by the danger of prejudice to the proper administration of justice or by the
harm to the privacy rights of the witness or to the privileged relation.
i. Extent to which record necessary for accused to make full answer & defence;
ii. Probative value of record;
iii. Nature/extent of the reasonable expectation of privacy vested in record;
iv. Whether production would be premised upon any discriminatory belief or bias;
v. Potential prejudice to complainant's dignity, privacy or security of the person occasioned by production of record;
vi. Extent to which production of such records would frustrate society's interest in encouraging the reporting of sexual offences and
acquisition of treatment by victims; and
vii. Effect on integrity of the trial process, having in mind the need to maintain consideration in the outcome.
CC s. 276(3)(b): admissibility of evidence re: complainant's past sexual conduct
i. Whether and under what circumstances an accused is entitled to obtain production of records in the possession of third parties, and
ii. When a stay of proceedings is the appropriate remedy for non-disclosure by the Crown of information in its possession which is neither clearly
irrelevant nor privileged.
Code amendment post-O’Connor re: sexual offences
O'Connor ruling broadening accused's access to documents resulted in immediate backlash. Parliament amended Criminal Code to include
CC ss. 278.1 - 278.9
Legislative scheme for accessing confidential records of complainants where offences of sexual violence or indecency are charged. Likely relevance maintained
278.3: ten assertions insufficient to establish likely relevance.
278.5: trial judge required to balance privacy and other issues before deciding whether to order production.
278.7: directs trial judges to consider L'Heureux-Dube J.'s 7 factors (see R. v. O'Connor)
278.2: legislation applies to those "confidential" records that make their way into Crown's possession.
If an accused is charged w/ an offence other than those enumerated in s. 278.2(1), the O'Connor regime still applies.
R. v. Mills (1999) Charter challenge re: amendments to third-party-document provisions.
Claim: provisions re: treatment of records deprives accused of right to make full answer and defence.
Provision must strike balance btw 2 charter rights: accused's right to full answer and defence vs. complainant's right to privacy.
Not a violation of ss. 7 [life, lib, SoP] and 11(d) [fair trial]
Parliament had the advantage of being able to assess how the O'Connor regime was operating.
Criticism of Mills: Ct abdicates responsibility to parliament.
o HVR, in most criminal procedure cases, accused's constitutional rights pitted against state interests. No need to balance conflicting constitutional
rights of competing claimants.
o Here, 2 sets of rights are irreconcilable; one party's rights will need to give way. Legislature better suited to such a task.
R. v. Carosella (1997)
Sexual assault crisis centre shredded interview notes w/ complainant. Defence subpoenaed notes. Social worker had no recollection of contents.
Absence of what would have been Crown disclosure violates s. 7.
Shredding impairs accused's ability to make full answer and defence; violates s. 11(d).
constituted an abuse of process, impairing accused's ability to make full answer and defence; stay of proceedings warranted.
Accused did not satisfy Ct that the documents should have been produced. No s. 7 violation.
Accused couldn't demonstrate probability of prejudice; failed to prove s. 11(d) violation.
Abuse of process requires state action and the centre is not a public entity; no abuse of process, THF stay of proceedings not warranted.
CC s. 553: absolute jurisdiction indictable offences
Accused has no choice; trial in provincial ct before a provincial ct judge (here, OCJ).
CC s. 469: exclusive jurisdiction offences
Trial in superior ct (typically after accused has had a preliminary inquiry in provincial ct)
CC s. 536(2): all other indictable offences
(1) trial by provincial court judge;
(2) (a) trial by superior court judge;
(2) (b) trial by superior court judge and jury [if no election made, accused deemed to elect trial by superior ct judge
If accused elects trial in superior court, accused or prosecutor entitled to preliminary inquiry (in provincial ct); re: CC
s. 536(4), request for prelim must be made in writing.
CC Part XVIII: Rules, procedures governing preliminary inquiries. Review this part carefully.
G. Arthur Martin, Q.C., re: the 2 motivations for prelim:
1. Ascertain whether or not there is sufficient evidence to warrant trial (i.e. sufficient evidence to induce the belief in the mind of a cautious man that
the accused is probably guilty).
2. Defence counsel can ascertain nature and strength of Crown's case (i.e. discovery).
Obligation on presiding justice to assess the adequacy of the Crown's evidence.
CC s. 548(1)
a. If in his opinion there is sufficient evidence to put the accused on trial, [the justice will] order the accused to stand trial; or
b. Discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out.
Test for sufficient evidence to commit to trial/'standard for committal':
o Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.
Motion for directed verdict
o Trial judge makes assessment re: whether the jury should be instructed to return a verdict of not guilty b/c of inadequacy of Crown's case.
o Applicable where a finding of guilt would be irrational on the evidence presented.
o [Trial judge could obviously refuse a motion for a directed verdict but ultimately go on to find an accused not guilty b/c of reasonable doubt.]
R. v. Arcuri (2001) Prelim Standard of committal where evidence circumstantial
Case against accused entirely circumstantial.
Question to be asked under CC s. 548(1) "same as that asked by a trial judge considering a [motion] for a directed verdict:
Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty."
Must commit "in any case in which there is admissible evidence which could, if it were believed, result in a conviction".
Same whether evidence direct or circumstantial.
Testimony as to "the precise fact which is the subject of the issue on trial"; for the jury to say whether and how far the evidence is to be believed.
If judge determines Crown has presented direct evidence as to every element of the offence charged, task is complete.
Where Crown has not presented direct evidence as to every element of the offence, question becomes whether the remaining elements may
reasonably be inferred from the circumstantial evidence; requires a "limited weighing" of evidence
Judge is to assess whether the circumstantial evidence is reasonably capable of supporting the inferences, not whether he himself would conclude
the accused is guilty.
Case at bar:
Whether preliminary inquiry judge's task differs where the defence tenders exculpatory evidence, as is its prerogative under CC s. 541.
Task "essentially the same": where Crown adduces direct evidence on all elements of the offence, the case must proceed to trial, regardless of the
existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true [as this would be weighing
the evidence, and that's the jury's job]
"Credibility determinations are within the exclusive province of the jury." Judge must consider whether the evidence, if believed, could reasonably
support a finding of guilt. "The question is the same whether the evidence is direct or circumstantial."
Accused and Crown may seek a writ of certiorari to quash preliminary justice's decision. prerogative writ. HVR, no relief from ordinary legal errors committed by a justice
during the prelim, or in deciding to commit/discharge. Rather, certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned
statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction": R. v. Skogman (1984).
See CC ss. 566 & 574.
Provincial court refers to charging document as an Information (see CC Form 2), whether summary or indictable. Sets
out offences, style of cause, particulars of charges.
In superior court, prosecutor prepares an Indictment (see CC Form 4).
Where Crown prefers direct indictment
CC s. 577(c): Sends accused directly to trial, where no preliminary inquiry was held or where one was held and the
accused was discharged. Requires written consent of the Attorney General.
Survived constitutional challenge; doesn't offend s. 7, re: R. v. Aviv (1985).
R. v. Swain (1991)
Charter challenge: automatic, indefinite detention of an NCR accused violated s. 7.
CC Part XX.1
Introduced as a result of Swain.
NCR provisions triggered when person, following arrest, shows signs of mental disorder that may interfere w/ capacity to instruct counsel or appreciate the
Based on growing appreciation that treating mentally ill offenders like other offenders failed to address interests of either offenders or the public.
Twin goals of fair treatment and public safety.
Once an accused person is found to have committed a crime while suffering from a mental disorder that deprived him/her of the ability to understand the nature
of the act or that it was wrong, individual is neither convicted nor acquitted but is diverted to a special stream: Court or Review Board conducts hearing.
NCR accused is to be treated w/ the utmost dignity and afforded the utmost liberty compatible with his/her situation. Not to be punished, nor to languish in custody.
NCR is not a finding of dangerousness.
CC s. 672.54
Court/Review Board disposition is to be the one "the least onerous and least restrictive" one compatible w/ accused's situation (e.g. absolute discharge,
conditional discharge, detention).
Where evidence doesn't establish NCR accused represents a "significant threat to the safety of the public", he/she entitled to absolute discharge.
Winko v. British Columbia (Forensic Psychiatric Institute) (1999)
Court changed "not guilty by reason of insanity" to "NCR on account of mental disorder": CC s. 16.
Purpose of Part XX.1
R. v. Hussein (2004)
Application for Charter relief following application for habeus corpus re: orders for psychiatric assessment pursuant to CC s. 672.11:
Court may order assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(a) Whether the accused is unfit to stand trial;
(b) Whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection 16(1) …
Accused #1 ordered assessed. Detained in jail 32 days before assessment even commenced, pending availability of a hospital bed. Accused #2 ordered assessed.
Detained in jail 29 days.
[CC s. 747.1(1) governs orders to detain accused in a treatment facility where accused has been convicted of an offence]
[s. 672.15 governs extensions of an extension order]
Charter s. 24(1) provides that anyone whose rights have been infringed/denied may obtain "such remedy as the court considers appropriate and just in the
circumstances". Appropriate relief here: declaratory judgment, that failure to perform assessments is unconstitutional.
Detaining accused w/out being assess is contrary to CC s. 672.11, and Charter ss. 7 and 9. Practice deprives accused persons of their liberty. Accused "is not
detained to be assessed; but rather he is detained waiting to be assessed." Not related to principles of fundamental justice (s. 1).
"[T]he number of persons being assessed in an appropriate hospital setting should be dependent upon the number of persons who require assessment pursuant to
the Code, rather than an arbitrary number based on other factors."
Deference to govt legislating in these matters doesn't give them an unrestricted licence to disregard an individual's rights.
Ct orders suspension of declaration for 6 months "to enable the government to explore its options and formulate an appropriate response."
What to do about remedying constitutional wrongs ("evidentiary exclusion")
James Stribopoulos, "Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate." 22 Boston College International and Comparative Law
Review 77 (1999)
o Conventional common-law rule: evidence remains admissible no matter how obtained.
o Kuruma: evidence can be excluded if admission would unfairly affect the accused, but only if evidence was gravely prejudicial, its admissibility tenuous, and its
probative value slight.
o 3 bases for redress at the time:
i. Sue the police for damages,
ii. Complain or demand disciplinary action, or
iii. Demand criminal charges be laid.
o 1977: SCC introduced abuse of process -- inherent power of court to stay proceedings if it felt that compelling the accused to stand trial would violate those
fundamental principles of justice that underlie the community's sense of fair play and decency.
o Difficulty: could only be employed to bring an entire prosecution to a halt.
o Rothman v. The Queen: discretion should be recognized to exclude otherwise admissible confession evidence if, due to improper conduct by the authorities, its
admission would "bring the administration of justice into disrepute".
o 1981: Royal Commission (The McDonald Commission) inquired into the activities of the RCMP. Concluded that w/out judicial condemnation of unlawful police
conduct, police officers believed that illegal practices were implicitly approved of by the judiciary.
o Although aggrieved individuals could theoretically sue the police and govt, prior to Charter, only 2 such claims.
o Those individuals most likely to be victims of police illegality (young, homeless, poor, racial/ethnic minorities, political dissidents) are also the least likely to
pursue legal redress.
o Original drafts of Charter did not contain provisions dealing w/ how to enforce rights, freedoms.
o Problem is not existence of rights but remedies for their violation.
o Charter s. 24(2):
Where … evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice
o Not as extreme as American automatic exclusion rule, nor traditional common law inclusion rule.
o Rationale: integrity of the administration of justice (really not a "rule" at all); confers discretion on court to exclude evidence on a very specific basis (whether
admission of evidence would bring admin of justice into disrepute).
o Discretion to exclude illegally-obtained evidence is fundamental to preserving judicial integrity.
o Discretion rule as effective in safeguarding individual constitutional rights? So far, yes.
Timing and forum
2 very important matters to always remember:
1. Constitutional relief is not available at preliminary inquiry, and
2. Trial judge always has jurisdiction to grant a constitutional remedy.
Trial court always has jurisdiction to deal w/ a constitutional issue.
Ontario Court of Justice has jurisdiction to adjudicate constitutional issues in circumstances where it is the trial court. At a preliminary inquiry, no such authority.
By contrast, Superior Court has inherent jurisdiction to grant constitutional relief. When that court is acting in first instance as a trial court as well as when exercising its
supervisory functions on an application for prerogative relief (i.e. writs of certiorari, mandamus or prohibition).
o HVR, in the absence of exceptional circumstances, superior court should defer consideration of constitutional issues to the trial court, to avoid delay,
fragmentation of trial process and multiplicity of proceedings.
Stay of proceedings re: Charter s. 24(1)
Five types of remedies under s. 24(1):
2. Mitigation of sentence
3. Return of items unconstitutionally seized
4. Stay of proceedings
5. Constitutional exemption for the individual whose rights are uniquely and adversely affected
One remedy not appropriate under s. 24(1): exclusion of evidence unconstitutionally obtained.
HVR, court ruled trial judges have a discretion to exclude evidence where its admission would compromise the fairness of a criminal trial. Obligation on trial judges to
ensure fair trial rights under ss. 7 & 11(d); extends to the exclusion of evidence not obtained in violation of Charter.
Abuse of process
Stays invariably ordered where abuse of process is found.
R. v. Jewitt (1985) Stay of proceedings for abuse of process
Abuse of process: means of "controlling prosecution behaviour which operates prejudicially to accused persons" (Rourke v. The Queen, 1978)
Old test, R. v .Young: "there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those
fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through
oppressive or vexatious proceedings". Should be exercised only in the "clearest of cases".
R. v. Keyowski (1988) A series of trials could be 'oppressive', constitute abuse of process.
Accused was tried 3 times. Issue: whether a series of trials could per se constitute abuse of process (whether it is necessary for the accused to show
"To define 'oppressive' as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine. … prosecutorial
misconduct and improper motivation are but two of many factors to be taken into account."
NTL, new trial appropriate: accused failed to demonstrate "that this is one of those 'clearest of cases' which would justify a stay. … A third trial may, indeed,
stretch the limits of the community's sense of fair play but does not of itself exceed them."
R. v. O'Connor (1995) Court finally brings abuse of process under the purview of s. 24(1).
1. When does non-disclosure by the Crown justify an order that proceedings be stayed?
2. What is the appropriate procedure to be followed when an accused seeks production of documents such as medical and/or therapeutic records that
are in the hands of third parties?
Relationship btw common-law abuse of process and the Charter
Court has implicitly considered abuse of process separately from Charter.
Strong parallels btw the two regimes, but differing onus of proof: burden under Charter is balance of probabilities; burden at common law is "the clearest of
Court recommends stay of proceedings appropriate remedy under s. 24(1) in "clearest of cases"; burden of proof remains the same.
Remedies less drastic than a stay are available under s. 24(1) in situations where the "clearest of cases" threshold is not met but where it is proved, on a
balance of probabilities, that s. 7 has been violated. The Charter "[puts] into judges' hands a scalpel instead of an axe".
Administration of justice is best served by stay of proceedings
where the affront to fair play and decency is disproportionate to the societal interest in effective prosecution.
No real utility in maintaining 2 regimes. Only instance in which there need still be 2 regimes: where Charter doesn't yet apply but circumstances, ntl, point to
abuse of process.
Remedy to s. 7 violation for non-disclosure
s. 24(1) enables court to confer "such remedy as the court considers appropriate and just in the circumstances". Stay appropriate only when
The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
No other remedy is reasonably capable of removing that prejudice.
Where the adverse impact upon the accused's ability to make full answer and defence is curable by a disclosure order, such a remedy will generally be
Where, given advanced state of proceedings, it is simply not possible to remedy prejudice through reasonable means, stay of proceedings is necessary. Last
resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted.
Consideration must be given to seriousness of the violation, societal and individual interests in obtaining a determination of guilt or innocence.
1. Conduct and intention of the Crown ("it does not follow that a demonstration of mala fides on the part of the Crown is a necessary precondition")
2. Number and nature of adjournments attributable to the Crown's conduct
3. Societal and individual interests in obtaining a determination (i.e. seriousness of the charges)
Application to the facts
Even if I had found a violation of s. 7, this cannot be said to be one of the "clearest of cases" which would mandate a stay of proceedings.
Regan v. The Queen Court again addresses test for abuse of process, standard to be applied in deciding whether a stay of proceedings is
Residual category of abuse of process in which the individual's right to a fair trial is not implicated, re: O'Connor:
Addresses the "circumstances in which a prosecution is conducted in such a manner as to connote unfairness and vexatiousness of such a degree that it
contravenes fundamental notions of justice and thus undermines the integrity of the judicial process."
Abuse of process may be established where, re: R. v. Scott (1990)
1. Proceedings are oppressive or vexatious; and
2. Violate the fundamental principles of justice underlying the community's sense of fair play and decency.
Abuse of process has a necessary causal element: abuse "must have caused actual prejudice of such magnitude that the public's sense of decency and fairness is
Re: O'Connor, stay appropriate only when
1. The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
2. No other remedy is reasonably capable of removing that prejudice.
Under Charter s. 7, residual category:
"abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system" (O'Connor)
Stay only appropriate when the abuse is likely to continue or be carried forward
Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will
Where uncertainty persists about whether the abuse is sufficient to warrant stay, third criterion:
(3) balancing of interests is done:
Balance the interests served by the granting of a stay against the interest that society has in having a final decision on the merits. "[An] egregious act of
misconduct could *never+ be overtaken by some passing public concern *although+ … a compelling societal interest in having a full hearing could tip the
scales in favour of proceeding".
Application to facts
No abuse of process in this case. Cumulative effect of abusive actions does not rise to the level of abuse of process which is egregious, vexatious, oppressive or
which would offend the community's sense of decency and fair play. No ongoing effect on the accused, which would jeopardize the fairness of his trial.
Exclusion of evidence re: s. 24(2)—stage I
Charter s. 24(2)
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
No parallel to s. 24 in US Constitution or Bill of Rights.
Stribopoulos, "Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate" (ctd)
o Criminals don't go free b/c the constable blundered, but b/c compliance w/ the Fourth Amendment makes it more difficult to catch criminals. It is
not the exclusionary rule but the Fourth Amendment which imposes a cost in lost convictions.
o If the police abide by the Constitution, no evidence will be excluded.
o The exclusionary rule inures to the benefit of all by decreasing the likelihood that anyone, "innocent" or "guilty", will be subjected to an
unconstitutional search or seizure.
o Courts should be preoccupied with the manner in which evidence has been obtained, otherwise the Constitution's guarantees would be rendered
o Exceptions to the exclusionary rule have been created to ensure that all that is excluded is the evidence the police would not have found had they
abided by the Constitution.
R. v. Strachan (1988) Exclusion under s. 24(2) requires temporal but not causal nexus
Officer got a warrant for accused's apartment. Police had reason to believe there were weapons in the apartment; wouldn't let accused phone a lawyer until the
apartment was "under control".
o Was the search invalid b/c it was unreasonable re: Charter s. 8?
o Should the evidence have been excluded under s. 24(2) b/c of the denial of the right to counsel or the alleged breach of s. 8?
Section 10(b) and the right to counsel
Police violated appellant's right to counsel when they refused to allow him to phone a lawyer.
Constable Bisceglia's concern to stabilize the situation was a proper one.
Combination of arrest in accused's home, presence of unknown people, knowledge that restricted weapons were in the apartment, was a
potentially volatile situation.
HVR, "once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason
why they should not have allowed the appellant to telephone a lawyer. … *Infringement of s. 10(b)+ began at that point."
Was the evidence obtained in a manner that infringed the Charter?
2 conditions must be met before evidence will be excluded:
Evidence "obtained in a manner that infringed or denied any rights of freedoms guaranteed" by the Charter, and
Admission "would bring the administration of justice into disrepute".
(1) Evidence obtained unconstitutionally
R. v. Therens: first branch of s. 24(2) generally requires only a temporal connection. "[T]he words 'obtained in a manner that infringed or denied any
rights of freedoms guaranteed by this Charter" … do not connote or require a relationship of causation. … It is not necessary to establish that the
evidence would not have been obtained but for the violation of the Charter."
Strict causal nexus would place the courts in the position of having to speculate whether the evidence would have been discovered had the Charter
violation not occurred.
Requiring a causal link will tend to distort the analysis of the conduct that led to the discovery of evidence.
Imposing a causation requirement in s. 24(2) would generally have the effect of excluding from consideration under that section much of the real
evidence obtained following a violation of the right to counsel.
With the exception of derivative evidence, infringements of the right to counsel occurring in the course of arrest or execution of a search warrant
can only be causally connected to self-incriminating evidence.
Imposing a causal requirement would result in treating violations of s. 10(b) differently depending on the role counsel could have performed.
"Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be 'obtained
in a manner' that infringed the Charter. [These] situations should be dealt with on a case by case basis."
(2) Admission would bring administration of justice into disrepute
Narcotics were obtained in a manner that infringed the Charter. Second stage is activated.
[Collins test is applied: no bad faith on part of police; isolated error in judgment. No exclusion.]
R. v. Goldhart
Police got a tip about a grow op; conducted "perimeter search" of property. Smelled pot. Obtained warrant.
Warrant wouldn't have issued w/out information gleaned from an illegal and unconstitutional perimeter search.
NTL, accused was convicted based on testimony of a Crown witness.
Police were unaware of the witness prior to the unconstitutional search. Issue: whether his testimony could be excluded. Was it "obtained in a manner" that
violated the Charter?
While causation is not controlling, it is indeed important.
HVR, testimony can't be treated as an inanimate object (to be "found" during a search).
"Testimony is the product of a person's mind and known only if and when that person discloses it. … Testimony which is heard for the first time
some months after a search cannot e equated with or analogized to evidence found or seized when an illegal search is carried out."
"The pertinent event is the decision of *the informant+ to cooperate with the Crown and testify, and not his arrest. … The connection between the
illegal search and the decision .. To give evidence is extremely tenuous. … [The] nexus between the impugned evidence and the Charter breach is
Exclusion under s. 24(2)—stage II (the Collins test)
R. v. Collins (1987)
Bringing the administration of justice into disrepute
s. 24(2) is not a remedy for police misconduct
"The purpose of s. 24(2) is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the
proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial
condonation of unacceptable conduct by the investigatory and prosecutorial agencies. … *Even+ though the inquiry under s. 24(2) will necessarily focus on
the specific prosecution, … the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of
justice … must be considered."
The ultimate determination must be with the courts.
"The Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority."
Real question: "Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully
apprised of the circumstances of the case?"
Consider "all the circumstances":
What kind of evidence was obtained?
What Charter right was infringed?
Was the Charter violation serious or was it of a merely technical nature?
Was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
Did it occur in circumstances of urgency or necessity?
Were there other investigatory techniques available?
Would the evidence have been obtained in any event?
Is the offence serious?
Is the evidence essential to substantiate the charge?
Are other remedies available?
"Real" evidence and "self-incriminatory" evidence
Distinction btw pre-existing real evidence and self-incriminatory evidence created following a breach of the Charter.
The availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to
render the Charter violation more serious; failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the
Evidence is more likely to be excluded if the offence is less serious.
"Resort to tricks that are not in the least unlawful let alone in violation of the Charter to obtain a statement should not result in the exclusion of a free
and voluntary statement unless the trick resorted to is a dirty trick, one that shocks the community."
2 reasons why threshold for exclusion under s. 24(2) is lower:
A Charter violation is a violation of the most important law in the land, and
the French version says "could bring the administration of justice into disrepute", not would.
Application to facts
Evidence obtained as a result of the search was real evidence, and, while prejudicial to the accused, nothing to suggest that its use at trial would render
Cost of exclusion would be high (person guilty of serious offence would go free).
HVR, the administration of justice would be brought into greater disrepute if the court did not exclude and dissociate itself from a flagrant and serious
violation of individual rights.
"Disrepute in whose eyes?" Through the eyes of the community at large.
"Real" evidence re: Collins "Self-incriminatory"/"conscripted" evidence
Evidence that existed irrespective Following Charter violation, "accused is conscripted against himself through a
of the Charter violation. confession or other evidence emanating from him."
Not enough on its own to render Exclusion virtually automatic, as admission would compromise trial fairness, which
trial unfair. would bring administration of justice into disrepute.
o Where admission would evidence would compromise trial fairness, it should be excluded without consideration of the second and third stages of Collins
(seriousness of breach and the effect of exclusion).
R. v. Stillman (1997) Clarification of "real" vs. "self-incriminatory" evidence
o Once the lawyers left, police took, under threat of force, scalp and pubic hair samples from the accused.
o Taking of dental impressions, hair samples and buccal swabs, seizure of which interfered w/ bodily integrity, all w/out any legal authority, violated both ss. 7
and 8 of the Charter.
If the accused was not compelled to participate in the creation or discovery of the evidence, the evidence will be classified as non-conscriptive [real]. Its admission
will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration
of justice. If the evidence, obtained in a manner which violates the Charter, involved the accused being compelled to incriminate himself either by a statement or
by the use as evidence of his body or of bodily substances, it will be classified as conscriptive evidence.
If the evidence is found to be conscriptive (which in the case of statements includes derivative evidence), and it would have been discovered by alternative non-
conscriptive means, its admission will generally not render the trial unfair. HVR, seriousness of Charter breach and the effect of exclusion on the repute of the
administration of justice must be considered.
Court will exclude w/out considering seriousness of breach of effect of exclusion on the repute of the administration of justice.
Police acted w/ blatant disregard for the fundamental rights of the accused. Purposely waited until his lawyers had left to proceed, through the use of force,
threats and coercion, to take his bodily samples and to interrogate him in an effort to obtain a statement. Police were aware the accused was a young offender,
entitled to special protection. "The fact that the police rode roughshod over a young offender's refusal to provide bodily samples would 'shock the conscience of
all fair minded members of the community'.
"Compulsion" Closed category, consisting of statements, the use of the body or production of bodily samples.
R. v. Feeney (1997) "Derivative conscriptive" evidence
Is evidence conscriptive where it has an intimate relationship w/ other conscriptive evidence?
Bloody shirt is non-conscriptive, and thus its admission does not go to trial fairness; existed in a form useable by the state independent of any actions by the state.
Appellant was not compelled to incriminate himself by means of a statement, the use of the body, or the production of bodily samples. [The accused's body] was
not integral to the taking of the bloody shirt and thus the shirt is not conscriptive."
OTOH, statements obtained by police in accused's trailer, in violation of s. 10(b), are "clearly conscriptive"; police compelled self-incriminating statements.
Alternative, legal means of compelling the statements? No: couldn't have been obtained w/out Charter breach. Not "discoverable".
THF admission would render the trial unfair; inadmissible under s. 24(2).
Police found shoes during initial unconstitutional search of trailer; later seized in search which violated s. 8.
Non-conscriptive (not compelled statements or bodily samples; didn't involve body)
Cigarettes found in trailer: conscriptive if found as the result of other conscriptive evidence (typically a statement) -- derivative conscriptive evidence.
Statements given to police didn't indicate location of the cigarettes; thus the statements could not even have been a sufficient cause for obtaining the
Cigarettes non-conscriptive, derivative evidence. admission wouldn't affect trial fairness.
Accused told police he stole cash and hid it under his mattress.
Conscriptive statement, sufficient cause for obtaining the cash, stating as it did the location of the cash.
HVR, not a necessary cause of finding the cash; police intended to search the trailer, would have found the cash in the mattress even in the absence of the
Non-conscriptive, derivative evidence.
Distinction btw test for conscriptive, derivative evidence and test for whether conscriptive evidence is discoverable:
Whether a Charter breach was necessary to the discovery and obtaining of conscriptive evidence.
If the conscriptive evidence would have been obtained even if the Charter had not been breached, the evidence is discoverable and its admission, despite
the conscription of the accused, would not affect trial fairness.
Unconstitutionality of the second search is a factor to be considered under other branches of the Collins test.
Fingerprints were taken in violation of the Charter. Moreover, conscriptive evidence. Admission would render trial unfair.
R. v. Mann (2004) s. 24(2) is not intended to operate as an automatic rule of exclusion or inclusion
1. Fairness of trial
The "nature of the evidence obtained and the nature of the right violated"
2. Seriousness of breach
a. Whether breach committed in good faith or bad faith,
b. Obtrusiveness of the search,
c. Individual's expectation of privacy in the area searched, and
d. Reasonable grounds (here, serious disregard for appellant's s. 8 rights)
"good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of
his or her authority" (Buhay)
3. Whether the exclusion of the evidence would adversely affect the administration of justice
Exclusion would substantially diminish, if not eliminate altogether, the Crown's case
Evidence which is non-conscriptive and essential to the Crown's case need not necessarily be admitted
There can be no automatic inclusion; focus is to balance the interests of truth with the integrity of the justice system
Inclusion of the evidence would adversely affect the administration of justice.
Evidence not conscriptive, found during a search sl closely related to a legal search that it amounted to a minuscule departure
"I am not convinced that the admission of the evidence would bring the administration of justice into disrepute."
"New police strategy designed to blanket high-violence areas." The Globe and Mail, 13 February 2006.
o Parkdale's Queen St W.
o Toronto Anti-Violence Intervention Strategy (TAVIS) -- response to last year's surge of gun violence. 52 gun-related homicides, rooted in Toronto's flourishing
o "The message we're putting out is that we're not putting up with this violence anymore".
o Might mean "arresting people sought on warrants", "scattering a knot of drug dealers gathered in a high-rise stairwell", "responding en masse to a particular
incident -- most likely a shooting -- flooding an area, knocking on doors".
o Main targets: people convicted of violent offences, violating court-imposed sanctions.
o Dingy pool hall at College and Spadina, where hip-hop music blares and marijuana smoke hangs in the air.
Pre-trial conference (plea bargaining)
Controversial; HVR, takes place on a daily basis in every courthouse in the country.
Joseph Di Luca, "Expedient McJustice or Principled Alternative Dispute Resolution? A Review of Plea Bargaining in Canada." 50 Criminal Law Quarterly 14 (2005)
Guilty plea: primary dispute resolution mechanism. Recognized staple of the criminal justice system.
80% of cases in the Ontario Court of Justice resolved by way of guilty plea.
Arthur Klein C.J., Ontario Provincial Court:
*Not+ only must justice be done, … it must be seen to be done.
The public in general are quite unfamiliar with the nature of judicial proceedings, and probably a large section of the public are only too prone to believe
that there is a certain amount of graft and personal influence in the administration of law.
[A] large percentage of the criminal element of the population believe that justice can be manipulated, that deals can be made, and that certain legal
practitioners or officials will serve their purposes better than others.
D.W. Perras, "Plea Negotiations":
While plea bargains generally centre on an agreement by an accused to plead guilty in exchange for some benefit, there are other objectives.
Proposed new definition for plea negotiation: "A proceeding whereby competent and informed counsel openly discuss the evidence in a criminal
prosecution with a view to achieving a disposition which will result in the reasonable advancement of the administration of justice."
Concessions by accused, most notably concessions of guilt, are the currency with which the favourable treatment is purchased.
The substance of the practice has remained essentially the same regardless of the name by which it is referred.
Types of plea bargaining
a. Reduction in the charge;
b. Withdrawal of charges;
c. A promise not to proceed on other charges;
d. A recommendation or promise as to the type of sentence to be expected (e.g. fine, probation, imprisonment, etc.);
e. A recommendation as to the severity of sentence;
f. A Crown election to proceed by summary rather than indictable procedure where the offence involves a Crown option;
g. A promise not to seek a sentence of preventative detention;
h. A promise not to seek an enhanced penalty where the Code allows for one in the event of a prior conviction for the same offence;
i. A promise not to charge another person;
j. A promise concerning the nature of any submissions to be made to the sentencing judge (e.g. not to mention aggravating facts or circumstances when
they are in dispute);
k. A promise not to compel a jury trial through resort to a preferred indictment or by eans of the power given under s. 568 of the Code;
l. A recommendation or promise as to the place of incarceration or arrangements concerning release (e.g. day parole);
m. An arrangement for the sentencing to take place before a particular judge; or
n. A promise not to appeal the sentence imposed.
Explicit plea bargaining
Three constant elements
i. Plea of guilty to one or more charges;
ii. Bargain only provided if the accused pleads guilty; and
iii. Express negotiation.
And five variable elements
i. Where the plea bargain occurs;
ii. When it occurs;
iii. With whom bargaining is done;
iv. What is bargained for; and
v. Why a plea is bargained (e.g. accused wants lesser sentence or Crown case is weak).
Explicit plea bargaining
Accused enters a guilty plea without any negotiated benefit.
Understanding that a plea of guilty will mitigate.
Criminal offences may often be "processed" according to an unwritten or informal sentence tariff that develops over time and becomes commonly
Accepted but unwritten understanding that certain offences "are worth" a particular sentence.
Accused bargains to have lesser charges laid
More common where strict mandatory minimum sentencing regimes exist.
Accused tries to "water down" or neutralize the facts that he'll agree to.
Facts presented are either less aggravating or more mitigating.
Discussions re: length and type of sentence
Aim is a "joint submission" btw Crown and defence
Arguments in favour of plea bargaining
Bargaining required to keep the wheels of justice moving.
criminal caseloads have doubled, but the state has failed to respond w/ similar increases in funding. As a result, the system has become chronically
dependent on negotiated guilty pleas.
Trials are expensive: plea bargains permit the dedication of increased resources to the few cases that proceed to trial.
Necessity of negotiation in achieving high rate of guilty pleas is not supported by empirical evidence.
In 1974, approx. 71% of guilty pleas in Toronto were not explicitly negotiated. Rate outside TO would be even lower.
Accused person's best interests
a. Lower sentences
Assists in rehab; first steps in demonstrating remorse, accepting responsibility
HVR, pleading isn't necessarily related to any feelings of remorse.
"rational actor" analysis: pleading is the easiest, most rational way out of a tough spot.
b. Certainty of outcome
Avoid the "all or nothing" trial process
In Canada, the ultimate power to decide sentence is reserved for the judge irrespective of any deal reached btw Crown and accused.
Judge can depart from "joint submissions", where the sentence proposed is contrary to the public interest or will otherwise bring the administration
of justice into disrepute.
c. Other benefits
Avoid cost, potential embarrassment, stigma associated w/ convictions, criminal records
The efficient prosecutor's office
Young Crown: "The pressure of work will cause you to accept a guilty plea and to reduce a charge. The overloaded case load that you have is a
psychological factor in making you accept a plea to a lesser offence."
Judicial agreement to defence-prosecution submissions is seldom refused as tangible benefits for the expedition of case backlog is a prime concern of
lower court judges."
Crown, like accused, is spared from the "all or nothing" nature of the trial.
The interests of society
Broader societal benefits
HVR, trials have social benefit too.
Victims of crime
Claim: plea bargain spares the victims and their families from having to attend a public trial. Victims (esp. sexual assault victims) are "revictimized" by
HVR, justification limited: many crimes seen as "victimless"; most problematically, plea bargaining often marginalizes victims
Arguments against plea bargaining
True objective of criminal justice system: search out truth, punish the guilty. Plea bargaining circumvents the proper adjudicative process.
Potential of convicting the innocent. "Risk of convicting the innocent increases when the coercive elements surrounding plea bargaining are left unchecked."
presumption of innocence,
burden of proof beyond a reasonable doubt,
right to cross-examine prosecution witnesses,
right to legal representation.
Negotiated out of the public's view. Presumption of guilt.
Life magazine joke -- accused is innocent but is offered release in exchange for plea -- "You mean if I'm guilty I get out, but if I'm innocent I stay in jail?"
Daniel Givelber: "If we do not know that [the client] is guilty, then we confront the disturbing possibility that he is being threatened with additional punishment
precisely because he is both innocent and naïve or stubborn or principled enough to insist on a trial to establish that fact."
Locus of fact finding and adjudication is removed from the public forum, secreted to the backrooms of the courthouse.
The deals are determined on the basis of the bargaining or negotiating skills of the particular lawyers involved.
When they perform their duties in a public forum, their degree of compliance with ethical obligations is more easily scrutinized. However, this scrutiny is notably
absent when the duties are undertaken behind closed doors.
In some cases, the Crown's attempt to repudiate the agreement may be characterized as an abuse of process. Generally, two preconditions have been satisfied in those
cases where an abuse of process has been made out.
1. Parties have in fact agreed upon the terms of a disposition (a "deal" was struck).
2. Accused prejudiced if the Crown were permitted to repudiate, usually b/c he has given something up to complete the deal.
Plea can come at any time during the court process.
Where the accused intends to go to trial the plea will not be formally entered until the trial is ready to commence.
Plea begins w/ accused arraigned. (charge in the Information or Indictment is read to the accused; accused is asked how he pleads for each count.)
Not unheard of for the lawyer to enter the plea on the client's behalf. (Should probably be avoided.)
An accused who pleads not guilty is free to change his plea at any time. But if an accused pleads guilty, it's harder to undo.
Adgey v. The Queen (1975)
Appellant pleaded guilty. After plea, facts were related by a police officer and the appellant was afforded an opportunity to explain.
Issue: whether, having heard the explanation, the judge erred in failing to strike the guilty pleas and direct trial upon the charges. (No request for a change of plea
2 stages in which discretion of the trial judge comes into play:
1. When the charge is read to the accused and a guilty plea is entered, and
2. Following the hearing of evidence.
Trial judge may not accept plea.
Brosseau v. The Queen (1969)
Trial judge not bound to conduct an inquiry after guilty plea entered.
"When a plea of guilty is offered and there is any reason to doubt that the accused understands what he is doing, [the judge] will make inquiry to
ascertain whether he does so and the extent of the inquiry will vary with the seriousness of the charge".
R. v. Milina (1946)
"Failure to make due inquiry may … be a ground … to lalow the plea of guilty to be withdrawn … *however,+ where an accused is represented by counsel
and tenders a plea of guilty to non-capital murder, the trial judge before accepting it is [not] bound, as a matter of law, to interrogate the accused."
R. v. Bamsey (1960)
An accused may change his plea if he can satisfy the appeal Court "that there are valid grounds for his being permitted to do so".
Charges relating to false pretences: accused pleaded ugilty and either offered no explanation or the explanation that he intended to get money from his aunt. It
was within the discretion of the trial judge to accept or reject that explanation in deciding whether to strike the pleas of guilty. I would not disturb the exercise of
Charge that the accused defrauded Texaco: victim lent the accused a Texaco credit card. Appellant used the card to get his own car fixed. Said he didn't realize the
loan was only for 2 days but didn't deny the loan was limited to gas purchases. Judge was correct in accepting the appellant's plea.
Charge of B&E and theft (accused broke into victim's cottage, drank his booze): in pleading guilty an accused admits having done that with which he is charged.
The appellant admitted B&E, theft. Difficult to discern any foundation for a claim to colour of right. Appeal dismissed.
There is sufficient doubt on the elements of the offence of break, enter and theft to warrant the striking of the plea.
Concern is failure of the trial judge to make inquiry of the accused whether he understood the charges, appreciated the consequences of a guilty plea and
was unequivocal in admitting guilt.
R. v. Rubenstein (1987)
Accused pleaded guilty to wash trading, fraud. Later pleaded guilty to a further charge of fraud. Joint submission: 3 yrs' probation, $85,000 restitution to victims.
Sentenced to 5 yrs prison. Appeals conviction.
Claim: judge wrongfully refused to allow the appellant to withdraw his pleas of guilty.
Judge: "to allow a procedure … in which defence counsel makes a proposal, and … wishes to withdraw the plea *when the judge rejects it+ … would result in judge
It is not suggested or argued that the appellant did not fully understand the charges or that his plea was equivocal. Facts admitted amply demonstrated
Power of the trial judge to impose a sentence is not limited by a joint submission. Difference btw sentence sought by the joint submission and that imposed by
the trial judge was stark but that does not affect the principle involved.
Criminal Code s. 606
(1.1) A court may accept a plea of guilty only if it is satisfied that the accused
a. is making the plea voluntarily; and
i. that the plea is an admission of the essential elements of the offence,
ii. the nature and consequences of the plea, and
iii. that the court is not bound by any agreement made between the accused and the prosecutor.
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the
validity of the plea.
R. v. Sherratt (1991)
Issue: proper interpretation of the challenge for cause provisions found in the Criminal Code.
Question: whether the accused was properly denied the ability to challenge each prospective juror for cause on the ground of partiality ("non-indifference").
Criminal Code s. 638(1)(b):
A prosecutor or an accused is entitled to any number of challenges on the ground that
a. The name of the juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that
the description given on the panel sufficiently designates the person referred to,
b. A juror is not indifferent between the Queen and the accused,
c. A juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding welve months,
d. A juror is an alien,
e. A juror is physically unable to perform properly the duties of a juror, or ...
No challenge for cause shall be allowed on a ground not mentioned in subsection (1).
As each prospective juror is called, either the accused or the Crown can challenge the juror, either peremptorily or for cause, or the Crown can direct the juror to
s. 634 deals w/ peremptory challenges. Accused charged w/ high treason or first degree murder is allowed twenty peremptory challenges. If the offence charged
is one for which imprisonment for a term greater than give years is possible, the accused is allowed 12 peremptory challenges. Any accused not falling 2within
the two previous categories is allowed four peremptory challenges.
s. 634(3): accused must determine whether he'll challenge a juror for cause or otherwise before the Crown can be called upon to make a decision as regards the
Both the accused and the Crown have a theoretically unlimited ability to challenge for cause.
s. 638(1): exclusive grounds upon which a challenge for cause can be made.
In order to be meaningful, application of CC provisions must be informed by Charter ss. 11(d) [innocent until proven guilty] and 11(f) [right to trial by jury].
Principles governing trial-by-jury and factors that need to be balanced when considering challenges for cause:
1. Every accused person is entitled to an impartial jury.
2. Juror presumed to perform his/her duties in accordance w/ the oath sworn.
3. Trial judge has "wide discretion" and must be in a position to control the challenge procedure.
Dissemination by the media of the facts of the case is not normally sufficient to ground a challenge for cause.
Counsel must communicate a reason to the trial judge outside of the mere words of s. 638(1)(b).
If the reason offered appears "far-fetched", the trial judge can require further elaboration.
The questioning of the prospective juror must be relevant, not a "fishing expedition".
Prospective jurors' reactions to various pieces of evidence that may be elicited at trial are not the proper subject of the challenge for cause.
Excusing jurors of obvious partiality is desirable in all cases.
What degree of pre-trial publicity ("non-indifference") is necessary to lead to the right to challenge for cause?
While there must be an "air of reality" to the application, it need not be an "extreme" case; "The real question is whether the particular publicity
and notoriety of the accused could potentially have the effect of destroying the prospective juror's indifference between the Crown and the accused."
Distinction btw mere publication of the facts of a case and situations where the media misrepresents the evidence, dredges up and widely publicizes
discreditable incidents from an accused's past or engages in speculation as to the accused's guilt or innocence.
Threshold: whether the ground of alleged partiality could create partiality which would prevent a juror from being indifferent as to the result.
Realistic potential for the existence of partiality, on a ground sufficiently articulated in the application.
No realistic potential for the existence of partiality on the basis of pre-trial publicity.
Pre-trial publicity here "was not of the type to occasion partiality towards an accused". Appeal dismissed.
R. v. Crosby (1979)
"Counsel for the accused now wishes to challenge for cause and ask each prospective juror a short number of questions relating to his possible prejudice against
"*To+ permit challenges of this kind … simply on the ground that man is prejudiced and that black and white may frequently be prejudiced against each other is
to admit to a weakness in our nation and in our community which I do not propose to acknowledge. … *There+ would be few criminal cases today in which such
challenges would not be justified."
R. v. Parks (1993)
Accused, a black man, was convicted of murder in the death of a white man.
"Racism, and in particular anti-black racism, is a part of our community's psyche." The criminal justice system reflects and perpetuates those negative
"[There] can be no doubt that there existed a realistic possibility that one or more potential jurors drawn from the Metropolitan Toronto community would,
consciously or subconsciously, come to court possessed of negative stereotypical attitudes toward black persons." New trial ordered.
[Many courts attempted to construe the judgment above narrowly, suggesting the judge was describing a phenomenon unique to Metro TO that didn't extent beyond its
R. v. Williams (1998)
Accused charged w/ robbing a pizza parlour.
"A juror who is partial or 'not indifferent' is a juror who is inclined to a certain party or a certain conclusion."
Specific prejudice involves attitudes and beliefs about the particular case that may render the juror incapable of deciding guilt or innocence with an impartial
mind. May arise from personal knowledge of the case, publicity, public discussion and rumour.
Generic prejudice arises from stereotypical attitudes about the defendant, victims, witnesses or the nature of the crime itself.
Conformity prejudice arises when the case is of significant interest to the community causing a juror to perceive that there is strong community feeling about a
case coupled with an expectation as to the outcome.
In this country, candidates for jury duty are presumed to be indifferent or impartial. Before the Crown or the accused can challenge and question them, they
must raise concerns which displace that presumption.
Judicial discretion distinguished from judicial whim.
R. v. Zundel No. 1) (1987):
Judge's exercise of discretion cannot "effectively curtail the statutory right to challenge for cause"
Judge hsould permit challenges for cause where there is a "realistic potential" of the existence of partiality.
Whether evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality.
Assumption that prejudice will be judicially cleansed
It cannot be assumed that judicial directions to act impartially will effectively counter racial prejudice.
We should not assume that instructions from the judge or other safeguards will eliminate biases that may be deeply ingrained in the subconscious psyches of
Post-jury selection safeguards may not suffice.
Where widespread racial bias is shown, it may well be reasonable for the trial judge to infer that some people will have difficulty identifying and eliminating their
It is for the triers on the challenge for cause to determine:
Whether a particular juror is racially prejudiced in a way that could affect his/her partiality; and
If so, whether the juror is capable of setting aside that prejudice.
Insistence on the necessity of a link between the racist attitude and the potential for juror partiality
Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a
realistic potential for partiality. The potential for partiality is irrefutable where the prejudice can be linked to specific aspects of the trial, like a widespread belief
that people of the accused's race are more likely to commit the crime charged. But it may be made out in the absence of such links.
Triers might conclude that a prospective juror's beliefs that people of the accused's race are more likely than others to commit the type of crime alleged are
highly indicative of partiality.
Confusion between the two phases of the challenge for cause process
CC s. 638(2): two different tests
1. Whether challenges for cause should be permitted: whether there is a realistic potential or possibility for partiality. Question: whether there is
reason to suppose that the jury pool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions
from the judge. (Operative verbs: "may" and "might".) Low threshold; "reasonably generous" approach.
2. Whether they harbour prejudices against people of the accused's race, and if so, whether they are able to set those prejudices aside and act as
impartial jurors. (i.e. whether the candidate will be able to act impartially.)
Impossibility of proving that racism in society will lead to juror partiality
"Concrete" evidence as to whether potential jurors can or cannot set aside their racial prejudices can be obtained only by questioning a juror.
Failure to interpret s. 638(1)(b) in accordance with the Charter
Charter s. 11(d) right to be presumed innocent.
Challenge for cause is an essential safeguard of the accused's s. 11(d) right to a fair trial and an impartial jury.
Charter right is undercut by an interpretation of s. 638(1)(b) that sets too high a threshold for challenges for cause.
s. 15: "[e]very individual is equal before and under the law and has the right to the equal protetion and equal benefit of the law without discrimination".
Allowing challenges for cause has important benefits: Jurors who are honest or transparent about their racist views will be removed. All remaining jurors will be
sensitized from the outset of the proceedings regarding the need to confront racial prejudice and will help ensure that it does not impact on the jury verdict.
The slippery slope argument
Sherratt: presumption that members of the jury pool are capable of serving impartially. No automatic right to challenge for cause. Accused must show realistic
potential that some members of the jury pool may be biased in a way that may impact negatively on the accused, by establishing widespread prejudice in the
community against people of the accused's race.
2 ways to establish widespread bias in community:
1. Evidence, or
2. Judge takes judicial notice of
a. a finding of fact from a previous case, or
b. events or documents of indisputable accuracy.
Trial judge has a wide discretion in controlling the process to prevent its abuse, to ensure that it is fair to the prospective juror as well as to the accused, and to
avoid the trial's being unnecessarily prolonged by challenges for cause.
In this case:
Ample evidence that this widespread prejudice included elements that could have affected the impartiality of jurors.
Trial judge should have allowed the accused to challenge prospective jurors for cause.
Realistic potential that some jurors might not have been indifferent btw Crown and accused.
Appeal allowed. New trial directed.
After Parks, number, nature of challenge-for-cause applications in Ontario grew. Not restricted to minorities subject to racist attitudes/stereotypes; began to focus on
the nature of the allegations (e.g. sexual assault)
3 factors combined to satisfy the Sherratt realistic potential for partiality test for sexual assault cases:
1. Statistically high likelihood that every jury pool would include both victims and perpetrators of sexual abuse, as well as persons closely associated
2. Sexual offences, especially those involving children, evoke such strong feelings of hostility and disapprobation that some prospective jurors might
be unable to rationally weigh the evidence.
3. Results from past cases in which these sorts of challenges had been permitted were also cited.
R. v. Find (2001) SCC rejected appropriateness of offence-based challenges based on the sort of evidence that had grounded such claims
Appellant charged w/ sexual assault of children. Applied to challenge potential jurors for cause.
The nature of the charges against him gave rise to a realistic possibility that some prospective jurors might harbour such prejudice that they would
be unable to act impartially and try the case solely on he evidence before them. Trial judge rejected request.
Appellant has not established the right to challenge for cause.
No basis for conclusion that the charges raise a realistic possibility of juror partiality.
Establishing a realistic potential for juror partiality requires
Widespread bias exists in the community; and
Some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.
Not every emotional or stereotypical attitude constitutes bias. Prejudice capable of unfairly affecting the outcome of the case is required.
"Bias" may flow from a number of different attitudes. Must be established as sufficiently pervasive in the community to raise the possibility that it may be
harboured by one or more members of a representative jury pool.
Behaviour component: law presumes jurors' views and biases will be cleansed by the trial process. Doesn't permit a party to challenge their right to sit on the
jury b/c of the existence of widespread bias alone.
Jurors are objectively instructed on the facts and the law.
Trial process will cleanse biases: jurors are asked not to decide on the basis of their personal, individual views of the evidence and law, but to listen to each
other's views and evaluate their own inclinations in light of those views and the trial judge's instructions.
"Impartiality" is not the same as neutrality. Does not require juror's mind to be a blank slate.
Diversity is essential to the jury's function as collective decision-maker and representative conscience of the community.
Proof: how a realistic potential for partiality may be established
2. Judicial notice;
3. Evidence and judicial notice; or
4. Inferences from events that occur in the proceedings.
First branch of the inquiry (establishing widespread bias) requires evidence, judicial notice or trial events demonstrating a pervasive bias in the community.
Second branch: matter of proof, judicial notice, or reasonable inference as to how bias might influence the decision-making process.
Judicial notice dispenses w/ need for proof of facts that are clearly uncontroversial or beyond reasonable dispute.
Strict threshold: court may properly take judicial notice of facts that are either
1. So notorious or generally accepted as not to be the subject of debate among reasonable persons; or
2. Capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
Expert evidence neither notorious nor capable of immediate and accurate demonstration; must be proved through an expert whose qualifications are accepted
by the court and who is available for cross-examination.
Is the first stage (widespread bias) proven?
a. Incidence of victimization and its effect on members of the jury pool;
b. Strong views about sexual assault;
c. Myths and stereotypes arising from widespread and deeply entrenched attitudes about sexual assault;
d. Intense emotional reactions to sexual assault;
e. Experience of Ontario trial courts (hundreds of potential jurors successfully challenged as partial); and
f. Social science research indicating a "generic prejudice" against the accused in sexual assault cases.
Some factors satisfied; HVR, accused fails to establish widespread bias arising from charges relating to sexual abuse of children. Falls short of grounding judicial
notice of widespread bias in Canadian society in such trials.
Is it reasonable to infer that some jurors may be incapable of setting aside their biases despite trial safeguards?
Moldaver J.A., Betker: "Racial prejudice is a form of bias directed against a particular class of accused by virtue of an identifiable immutable characteristic. There
is a direct and logical connection between the prejudice asserted and the particular accused". By contract, the aversion, fear abhorrence, and beliefs alleged to
surround sexual assault offences may lack this cogent and irresistible connection to the accused. Unlike racial prejudice, they do not point a finger at a particular
Even if widespread bias were established, we cannot safely infer that it would lead to unfair, prejudicial and partial juror behaviour.
Such circumstances may arise. If widespread bias arising from sexual assault were established in future, it would be for the court to determine whether this bias
gives rise to a realistic potential for partial juror conduct. Court should take into account the nature of the bias and its susceptibility to cleansing by the trial
Case for widespread bias tenuous. Link to actual juror behaviour speculative. "Many criminal trials engage strongly held views and stir up powerful emotions --
indeed, even revulsion and abhorrence."
Appeal dismissed. Conviction affirmed.
The trial process
1. Arraignment -- charges read, accused enters plea re: CC s. 606(1).
2. Application to exclude witnesses.
3. Opening statement by Crown prosecutor.
4. Crown's examination-in-chief of its witnesses.
5. Accused cross-examines the Crown witnesses.
Crown permitted to re-examine any new matters raised on cross-examination.
6. Crown closes its case.
Accused may bring an application for "directed verdict". (Judge determines whether a reasonable jury properly instructed could
convict the accused of the charges.)
7. Accused asked whether he wishes to call any evidence.
Right to make full answer and defence: CC s. 650(3), Charter ss. 7, 11(d) and (f)
8. Accused entitled to opening statement: CC s. 651(2).
9. Accused may call witnesses. Process repeats.
10. Accused's closing address.
Order of closing depends on whether s. 651(3) is engaged; if accused didn't call evidence, prosecutor closes first; if accused does call a
defence, prosecutor is entitled to address trier of fact last: s. 651(4).
11. Judge instructs jury.
12. Jury retires to consider verdict. Sequestered: s. 647(2). If unable to reach consensus, mistrial.
13. If accused found guilty of any count, sentence dealt with.
Right to counsel: s. 10(b)
Criminal Code s. 650(3) and 802(2): right to retain and instruct counsel; further entrenched in Charter s. 10(b).
Onus of hiring a lawyer remains on accused. No express right to state-funded legal representation.
Charter s. 7: right to full answer and defence. s. 11(d): right to a fair trial.
R. v. Rowbotham (1988)
Deutch v. Law Society of Upper Canada Legal Aid Fund (1985): There may be rare cases where legal aid is denied to an accused person facing trial, but, where the
trial judge is satisfied that, because of the seriousness and complexity of the case, the accused cannot receive a fair trial without counsel, … there is an entrenched
right to funded counsel under the Charter.
Issue: right of an accused charged with a serious offence who lacks the means to employ a lawyer, to be provided with funded counsel at his or her trial.
Appellant couldn't have a fair trial w/out representation.
It was not necessary that her counsel be present in court every day. She had co-accused; evidence directly admissible against her fell w/in a small compass.
Even an accused able to afford counsel will, where much of the evidence does not affect him/her, frequently arrange his/her counsel be present in court only
during those parts of the trial that are critical to him/her.
Calling of evidence directly admissible against client
Calling of defence witnesses
Judge's charge to the jury
New Brunswick (Minister of Health and Community Services) v. G. (J.) (1999)
Issue: whether a deadbeat parent is entitled under s. 7 to state-funded counsel when the child might be taken away.
Held: while a parent need not always be represented, in some circumstances, depending on the seriousness of the interests at stake, the complexity of the
proceedings, capacities of the parent, the govt may be required to provide an indigent parent w/ state-funded counsel.
Right to silence: s. 11(c)
Charter s. 11(c): "Any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person."
R. v. Noble (1997) Evidentiary significance of the failure of the accused to testify at trial
o Issue: May the trier of fact consider the accused's silence in arriving at its belief in guilt beyond a reasonable doubt?
o Held: Right to silence and presumption of innocence preclude such inference.
The right to silence
Accused has a right to silence on arrest. "*It+ would severely undercut the right to silence at trial, … found in ss. 7 and 11(c) of the Charter, if the silence
could be used against the accused to convince the trier of fact of guilt. … *Quoting Cory J. in Chambers,] it would be a "snare and a delusion" to grant the
accused a right to remain silent at trial yet then proceed to use the silence to find him or her guilty. … [The accused's silence] cannot be placed on the
R. v. Amway Corp. (1989): "s. 11(c) … was intended to protect the individual against … a practice which enables the prosecution to force the person
charged to supply the evidence out of his or her own mouth."
Presumption of innocence
"If silence may be used against the accused in establishing guilt, part of the burden of proof has shifted to the accused. … *It+ is not incumbent on the
accused to present any evidence at all, rather it is for the Crown to prove him or her guilty."
The character of the trier of fact
Canada Evidence Act s. 4(6): prevents a trial judge from commenting on the silence of the accused, instructing the jury on impermissibility of inferring
guilt from silence.
"[It] is impossible to prevent a jury from drawing whatever inference they please from the failure to testify. They cannot be cautioned against such an
inference ex ante because of s. 4(6), and they cannot be reversed ex post for drawing such an inference because speculation as to the jury's reasoning is
R. v. Boss (1988): "it might be explained to the jury that the case against the accused must be made out by the Crown which must bear the burden of
proving all the essential elements of the offence beyond any reasonable doubt. Counsel can stress that there is no duty upon the accused to testify and
that, rather, the obligation rests upon the Crown throughout the case to satisfy them beyond all reasonable doubt that the accused has indeed
committed the crime with which he or she is charged."
Exception for alibi cases
Vezeau v. The Queen (1977): Where an accused has an alibi defence and then declines to testify, the trier may consider the absence of testimony when
assessing the alibi.
Conclusion: failure to testify cannot be placed on the evidentiary scales. New trial ordered.
Lamer, dissent: "I find nothing infirm … in drawing inferences from the silence of the accused. The accused's Charter protection lies, as it always has, in the case
to meet. Silence cannot be used as part of the case to meet. But once the Crown has made out its case such that a conviction would be reasonable and there is
a logical expectation that the accused adduce evidence in response, all judicial decision-makers may draw inferences of guilt based on the silence of the
Reasonable doubt standard: R. v. Lifchus
Charter s. 11(d): accused person has "the right … to be presumed innocent until proven guilty according to law."
R. v. Lifchus (1997) Def'n of "reasonable doubt"
Accused charged w/ fraud, theft. Convicted of fraud, acquitted of theft. Judge muddied definition of "reasonable doubt" in instructions to jury.
Jurors are often confused about the meaning of reasonable doubt, when left undefined. Should be provided with a definition.
Phrase is composed of common words; HVR, they have a "specific meaning in the legal context." Not an "ordinary" concept.
Standard meaning of reasonableness -- "the standard by which we make our everyday decisions and by which we habitually govern ourselves. It is a standard of
probability and, often with that, at the low end of the scale. It is very different from the criminal standard of proof".
Also misleading: "moral certainty"; may not be equated by jurors w/ "evidentiary certainty".
It must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important, inextricably linked to presumption of innocence.
Not essential to instruct jurors that a reasonable doubt is a doubt for which a reason can be supplied. "[A] reasonable doubt is a doubt based on reason and
common sense which must be logically based upon the evidence or lack of evidence."
Jurors should be instructed that
reasonable doubt cannot be based on sympathy or prejudice.
Doubt must not be imaginary or frivolous.
The Crown is not required to prove its case to an absolute certainty (impossible).
What the definition should contain
Standard is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
Burden of proof rests on the Crown throughout the trial and never shifts to the accused;
A reasonable doubt is not a doubt based on sympathy;
Reasonable doubt is based upon reason and common sense;
It is logically connected to the evidence or absence of evidence;
It does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
More is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.
What the definition should not contain
Describing the term "reasonable doubt" as an ordinary expression w/ no special meaning in the criminal law context;
Inviting jurors to apply to the task before them the same threshold they apply to important decisions in their own lives;
Equating proof "beyond a reasonable doubt" to proof "to a moral certainty";
Qualifying the word "doubt" with adjectives other than "reasonable"; and
Instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the
meaning of the words "beyond a reasonable doubt."