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Criminal Procedure Summary
Introduction
Herbert Packer – criminal process is in a perpetual state of tension btw two paradigms the crime control
model and the due process model.
Crime Control: Assembly line of police and prosecutors, main concern is efficiency
-deferential to police and prosecutors, believe they can be trusted to screen out the innocent
-factual guilt over legal guilt. Don‟t believe someone should go free b/c a constable has blundered.
Broad police powers
-The specter of an innocent person wrongly convicted is viewed as an unrealistic dream
Due Process: police and prosecutors are not infallible but capable of mistakes and perhaps even of
capricious action. No less evil than anyone else.
-concerns about intrusive police powers
-fairness and equality to the individual is important
-illegally obtained evidence should be excluded because process matters
-criminal trial is about whether the prosecution can establish legal guilt BRD only
Pre- Charter we had Crime Control model, dependent upon the principle of legality. Free to do whatever the
law doesn‟t prohibit you from doing. Thus protection only existed against the state is the official didn‟t have
lawful authority, it was an end run around freedom to give official legal authority ex: internment of Japanese
Canadians.
S. 24 of the Charter gives those aggrieved by unconstitutional behaviour an opportunity to seek redress in a
court of competent jurisdiction.
Critical Legal Studies and Michael Mandel argue that due process has been used by powerful interests and
corporations to exploit the disadvantaged and justify increased repression.
Stribopoulos Article: low visibility of police abuses pre Charter resulted in a view that CDN police rarely
violated the law in discharging their duties. Wasn‟t the case at all.
-S. 8 and 9 were never intended to do away with the principle of legality, instead they supplement that
principle. Beyond asking whether a law expressly authorizes a particular intrusion on liberty or privacy,
courts are now empowered to evaluate the substance of such laws against entrenched constitutional
standards.
-Hunter v Southam – Charter is a living tree, to be given broad, purposive analysis
Jurisdiction:
S. 91 (27) says Fed Gov‟t has legislative authority over the criminal law.
S. 91 (28) Parliament has jurisdiction over penitentiaries (2 years or more)
S. 92 (14) Established provincial criminal courts and to appoint judges to that court and S. 92 (6) maintain
prisons (sentences of 2 years less a day)
CN Transport Case: If Constitution gives authority to gov‟t to create substantive offences, then by implication
you have the power to prosecute violations otherwise the provinces could render all federal legislation of no
force and effect by not choosing to prosecute them.
-Feds gave the power to provinces since crime is a local phenomenon
-There are many federal enactments outside Criminal Code that carry penalties, CDSA, Immigration Act,
Income Tax Act etc.
Classification of Offences:
Indictable – more serious crime, contemporary felony
Hybrid or Crown election – most offences are hybrid and left to discretion of crown
Summary conviction – least serious, like a misdemeanor
Exclusive Jurisdiction: listed in S. 469, the most serious offences, treason, murder, alarming her majesty.
Absolute Jurisdiction: Listed in S. 553, less serious like gaming offences, theft under 5k.
-No election under S.536, so no preliminary inquiry and not right to jury, all bench trials
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CHARTER: S. 11 right to jury trial only triggered when the maximum punishment is 5 years or more.
Hybrid Offences – most offences, Crown elects how to proceed.
-maximum penalty, and procedures available will differ. Summary matters usually 6 months, but some up to
18 such as causing bodily harm, sexual assault with weapon
-Until the crown elects, they are deemed indictable (Interpretation Act S. 31.1 (a): important for police arrest
powers: they change depending on the type of crime. More robust arrest powers for indictable offences.
STOPPING POWERS
-Two Forms:
a) Reactive Stops: police reacting to information they have been given, they stop someone
who fits a certain description
b) Proactive Stops: initiated by the police not in response to any specific information, but in
regard to the person or circumstances that arouses their suspicion and/or concern.
Koechlin v Waugh and Hamilton (1957) ONT C.A
Facts: Sometime after midnight on Oct 11, 1955 two guys were walking home after seeing a movie and they
were approached by to plain clothed police officers in a marked cruiser. Police say they stopped them
because they were sauntering down the street and because of the way they were dressed.
Koechlin refused to identify himself, the police officer produced a badge but never gave his name. Koechlin
still refused to identify himself, a scuffle ensued he fell into a ditch and was arrested. Charges were later
dropped and now he is suing the police for false imprisonment.
Issue: Was he required to identify himself to the police?
Ratio: A police officer has not in law an unlimited power to arrest a law abiding citizen. They had no right to
use force to compel him to identify himself. It would have been a good citizen thing to do, but that doesn‟t
excuse police conduct.
There is no legal duty to cooperate with state officials.
Analysis: There had been a number of break-ins in the neighbourhood by someone with rubber soled shoes
and Koechlin had rubber soled shoes on.
-This is a case of a citizen asserting his civil liberties versus a police officer asserting his power.
-Individuals who are not under arrest or being charged with an offence are under no legal obligation to
identify themselves to police (Moore v The Queen)
-there may be a civic duty to cooperate, but they are not legall obligated to do so, therefore failure to do so
does not constitute offence of obstruction of police
R v Dedman (1985) SCC –case occurred in 1980 but gets to SCC in 85.
Facts: Police had set up roadblocks under the RIDE program. These are random stops and Dedman was
pulled over. The officer asked the accused for his licence, whike they were speaking the officer smelled the
odour of alcohol and formed a reasonable suspicion that he was in the care and control of a vehicle with
alcohol in his body. Prior to smelling the alcohol, he had no reason to suspect the accused was impaired.
Dedman refused to comply with the breathalyzer and was pursuant to S.234 1 (2) for failing to comply with a
roadside demand.
Issue: The offence is failing to provide a breath sample without a reasonable excuse (ex lung condition).
Dedman argues he has a reasonable excuse, that the police had no authority to stop him and it was entirely
within his rights to refuse as the demand itself was unlawful. Was the stop unlawful?
Ratio: Ancillary Powers Doctrine. A new police power may be recognized on a case by case bases.
Depends on two pre-conditions:
a) Whether the police officer was acting within the general scope of his duties under statute or at
common law, ie to preserve the peace, prevent and investigate crime and to protect life and property and
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b) Did the officer‟s actions represent an unjustifiable interference with individual liberty/property? In
other words, was the officer‟s conduct reasonable necessary, bearing in mind the liberty interfered with and
the importance of the public purpose served by the interference? Essentially a cost benefit analysis.
Analysis: Court uses the Waterfield Case (1964) UK.
-W had been involved in an accident, police officer arrived order him to stop, but he ignored the cop and
drove off. At the time in England there was no legislative provision stating someone had to stop for an
officer. W was charged with obstruction of a police officer in the execution of his duty.
-In Waterfield the court held that the officer was not in the execution of his duty b.c he had not lawful
authority to compel the car to stop. It was simply a request.
-The SCC in Dedman do not note that Waterfield was acquitted they just take the 2 part test to decide
whether the officer has the power to do the act in question.
* The test morphs from deciding whether an officer was acting in executing of his duty to a means of
deciding whether a police officer should have a particular power.
* In the UK this case has been cited 12 times and has never been used to create a new power.
Application of Waterfield Test to Dedman Case:
Part 1) No doubt this fell within the duties of the police officer to prevent crime and protect life and property.
Certainly falls within the rubric to protect life by getting drunk drivers off the road to avoid carnage.
Part 2) Cost Benefit Analysis – Impaired driving a serious issue, driving is a licensed activity subject to
regulation and control. The stop is of a short duration and only a small inconvenience. The program was
well advertised.
-A revolutionary Development
R v Dedman (1985)
Dissent from C.J. Dickson
It has always been a fundamental tenant of the rule of law of this country that the police in carrying out their
duties have limited powers and can only interfere with your liberty or property to the extent authorized by law.
Far more important is the social, legal and political principle upon which the system is premised that a person
has the right to be left alone.
-although a police officer is entitled to question any person: he has no lawful power to compel the person to
answer. Moreover, the officer has no right to detain a person for questioning to further the investigation. If
the person refuses to answer the officer must allow him to proceed on his way unless he arrests him
pursuant to S. 450 of CCC where the officer has RPG to believe he is about to commit an indictable offence.
-Short of arrest the police have never possessed legal authority at common law to detain anyone against his
or her will for question to pursue an investigation.
-Slippery slope argument, initial innocuous incursion can easily be transformed into something less benign.
-How and by whom are spot checks to be organized and determined? Concerns about location, target areas
of town based on race.
-What criteria used to pull ppl over, every car, every third, only those with black motorists?
-How long can they be held? May they be asked to exit the car?
-In the UK Waterfield was never used to expand or create new powers
-Let Parliament legislate RIDE stops and attach statutory conditions to govern them
Notes: Clayton & Farmer Case- police get a call there are ppl in a parking lot with guns, police see a few cars
that vaguely match description and immediately set up roadblock.
-court ruled they exceeded their authority and it didn‟t meet ancillary powers doctrine
Murray Case: after a bank robbery in Quebec police set up roadblock in this case it was deemed to be ok.
8 years went by without further application of Ancillary Powers Doctrine, ppl noted it was an anomaly to be
read narrowly and was the last of the pre-charter cases, the last of an old breed, until R v Simpson.
R v Simpson (1993) ONT C.A. (J. Doherty)
Facts: Officer read an internal police memo authored by another officer describing a particular residence as a
crackhouse. On patrol officer saw a women exit the residence with Simpson and they begin to drive down
the street. He pulled them over, spoke to Simpson officer sees a bulge in is pocket reaches out, a scuffle
ensues it turns out to be cocaine. S. 216 of Highway Traffic Act authorizes police to pull ppl over. However
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the purpose did not fit as that only allows stopping for: checking licensing, registration, insurance, sobriety
and mechanical fitness.
Issue: Was the appellant arbitrarily detained contrary to S.9 of the Charter which states everyone has the
right not to be arbitrarily detained or imprisoned?
Ratio: An investigative stop could be justified under the ancillary powers doctrine but has to be premised
upon articulable cause. Doherty borrows this from the US Stop and Frisk Jurisprudence.
a) Where the police acting within the scope of their duties
b) Whether the stop represented an unjustified use of police powers, totality of the circumstances
approach.
Analysis: Requires a constellation of objectively discernable facts which give the detaining officer reasonable
cause to suspect that the detainee is criminally implicated in the activity under investigation. The
requirement that the facts must meet an objectively discernible standard is recognized in connection with the
arrest power.
Articulable cause is something less than the grounds required to support an arrest.
-These Detentions Must Be Brief
-Articulable cause was not found in the Simpson case. It was a stopped based entirely on suspicion
and you cannot do that.
* Doherty recognizes this new power by stating given the very low threshold for the term “detention” he has
no doubt police detain ppl for investigative purposes.
* Every single other provinces adopted this reasoning after the respective Doherty opined it. They loved the
investigative detention power, it‟s why the crown did not appeal it in Ontario despite the fact that Simpson
was set free.
Policy Concerns:
Toronto Star survery used police data with non-moving traffic violations. Blacks were charged at rate 5x
higher than whites.
Kingston Police Study: Minorities and aboriginals pulled over at rate 3.5x higher than whites…some argued
minorities too small a sample.
DETENTION
S.9 Everyone has the right not to be arbitrarily detained or imprisoned.
R v Therens: (1985) SCC
The dissent from Le Dain defining detention is later approved of by the SCC in another case.
• There must be some element of compulsion or coercion for their to be a “detention” for Charter (ss.
9, 10(a) & 10(b)) purposes. For example:
• a detention occurs when a state official physically interferes with a person‟s freedom of movement
(i.e. holding, cuffing, physically constraining); or
• a detention may also occur where a person is subject to a demand or direction by a state official,
that he or she submits to or acquiesces in, where the person reasonably believes that the choice to
do otherwise does not exist.
• Issue is whether a person can reasonably regard himself as free to refuse to comply
-A psychological type of detention. You must subjectively feel it, and it must be Objectively reasonable.
-The fact that habeas corpus might not be available b/c of the short duration of the detention does not detract
from there being a detention.
-It is not realistic as a general rule to regard compliance with a demand or direction by a police officer as truly
voluntary. Most citizens do not know their rights and will err on the side of compliance with the officer.
-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 involuntary.
-Detention may be effected w/o the application or threat of application of physical restraint if the
person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that
the choice to do otherwise does not exist.
R v Thomsen (1988) SCC
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Facts: Thomsen was stopped because his car had a defective headlamp. In the course of conversation the
officer detected the odour of alcohol and formed a reasonable suspicion and demanded he provide a breath
sample. He refused to provide a sample. At no time did the officer inform him of his right to retain counsel
without delay, despite the fact he was seated in the officer‟s car for 15 minutes.
Issue: Does S.234.1 demand for breath sample result in a detention within S.10 if so, whether the right to
retain counsel without delay and to be informed of that right was subject to S.1, a reasonable limit,
prescribed by law that is demonstrably justified in a free and democratic society?
Ratio:
Analysis:
-See later in book, court upholds infringement under S.1
R v Mann (2004) SCC
Facts: Officers respond to a B&E call in Winnipeg. Given detailed description and thought to be one Zachary
Parisienne. Officers observed an individual walking casually who matched the description to a tee. His
name was Philip Mann he stopped and complied with the police and was given a pat down search of his
person for concealed weapons. Officer felt a soft object in his pocket, turned out to be a bag of marijuana
and some valium.
Issue:
Ratio: a) A police officer is authorized to detain any person where the officer reasonable suspects that there
is a clear nexus between that person and recent or on going criminal offence
b) The overall reasonableness of the decision to detain must also be assessed against all of the
circumstances including i) the extent to which the interference with the individual‟s liberty is
necessary to perform the officer‟s duty ii) the liberty interfered with iii) the nature and extent of that
interference
c) No concrete guidelines or clear limits set down. Rather, the determination will need to be made on a
case-by-case basis. That said, detention must be BRIEF.
Search Power
• In the course of a lawful investigative detention (see above) where a police officer has reasonable
grounds to believe (sic suspect) that his or her safety or that of others is at risk, the officer may
engage in a protective pat-down search of the detained individual.
• The search must be conducted in a reasonable manner.
• (Note: whether protective search can extend to bags that detainee is carrying or car that detainee is
riding are not addressed.)
Analysis: Reaching into the pocket went beyond the parameters of the search. They had the objective right
to pat him down b/c the suspect could have a screw driver, crow bar etc.
1) Officers had reasonable ground to detain; he closely matched the description given. This led them to
reasonably suspect he was involved in recent criminal activity. Was also in a high-crime
neighbourhood (which in itself is not a basis to detain someone)
2) Reasonable grounds for protective pat down, he could have weapons used to break in, knife, screw
driver etc.
3) Decision to go into pocket after feeling something soft is problematic. This was an unreasonable
violation of his reasonable expectation of privacy. Fails third aspect of Collins test that search was
carried out in a reasonable manner.
Notes: Investigative detentions are to be premised on reasonable grounds as per Waterfield and Simpson.
-detention must be viewed as reasonable necessary on an objective view of the totality of the circumstances.
Collins: Any search incidental to the limited police power of investigative detention is a warrantless search
and they are presumed unreasonable unless they can be justified pursuant to the Collins Test.
Warrantless searches are deemed reasonable if:
a) They are authorized by law
b) The law itself is reasonable
c) The manner in which the search was carried out was also reasonable.
Crown bears the burden to prove these 3 on a B of P.
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Charter Issues:
S. 10 (A) – person detained must be informed in clear and simple language of reasons for detention. Mann
makes it clear you must comply with this requirement. Has to be a true explanation.
S. 10 (B) – Right upon arrest or detention to be informed of your right to counsel. Mann says they can‟t use
this right as a pre-text to extend your detention.
-Open question, court does not fully address.
Obligation on detainee- remain with police but Mann states there is no obligation to answer the questions
posed; unclear is this includes entitlement to refuse to identify yourself. Can‟t falsely identify yourself, that‟s
a crime, but not sure if there is an obligation to identify yourself at all.
Analytical Approach to Investigative Detention
1) Has there been a “Detention” (per Therens?) If no inquiry ends here; it‟s just a benign
encounter outside the constitution. If Yes S. 9 and 10 are engaged. Turning point is
officer assuming control of the person where he reasonably believes he no longer has
a choice
2) Was S.10 (a) complied with? Told in clear and simple language
3) Was the Detention lawful? Did officer have reasonable ground to suspect that the
person was involved in recent or ongoing criminal activity? Did police have lawful authority
to detain?
4) If the detention was unlawful, did the officer have a good faith basis in the adequacy of
his grounds? If no, then probably arbitrary and violates S.9 of Charter. R v Duguay
-Just b/c police lack authority to detain it doesn‟t necessarily follow S.9 was violated. How
was off was he? Can we say it was capricious, despotic or a result of malevolent
intentions?
5) If lawful at inception, did detention become unlawful later on? Ex: Lasted longer than
reasonably necessary, overly intrusive manners, unjustifiable force. Becomes a de facto
arrest but absent the grounds required to arrest.
6) Was S.10 (b) respected? Unclear if it applies to investigative detentions, defence
counsel WILL argue that it does.
7) Was there a search? Did it go beyond a protective pat down?
R v TAV (2002) ALTA C.A
Facts: Wiretap telephone call revealed that 2 girls would be coming from Edmonton to Vancouver on a bus
and that they would be carrying firearms and perhaps narcotics. Officer stopped the two Asian females after
they got off the bus asked them if there was anything in their bags they said no, officer searched them and
found guns.
Issue: Were they detained? A finding of detention requires evidence that the accused believed his freedom
was restrained or circumstances which would lead the accused to reasonable believe that his freedom was
restrained. Was search legal? Right to counsel?
Ratio: Power to search upon detention is coupled to the need to assure the safety of the police; therefore
officers are given the right to search and latitude in order to protect themselves.
-The purpose of the right to counsel is to prevent a suspect from being willingly conscripted against herself.
No logical connection btw the right to counsel and the inspection or search. Ultimately 10 (b) does not
apply in these circumstances.
Analysis: The girls were young and likely would have felt psychologically compelled to remain with the
officers and comply with their demands.
R v Monney
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-guy was held at the Toronto airport for 5 hours. Court held that the brief detention based on articulable cause does not
imply the power to detain a person for an almost unlimited period of time until either the suspect produces evidence of his
guilt or establishes his innocence.
-Still the Court did not say at what point it was no longer brief. The SCC when it got this case avoided the issue entirely
upholding the detention under the Customs Act, steering clear of investigative detentions.
Dupuis (ALTA CA)
Upheld the detention of a room full of ppl at gunpoint for over an hour as a permissible use of investigative powers. The
police had entered a residence in search of the supplier of drugs and found a number of ppl at the location. All of whom
were detained, many face down and handcuffed, until the police secured and executed a warrant at the location.
-Court intentionally avoids placing any strict limits on investigative stops, many believe Parliament should act
to regulate.
STOPPING POWERS INVOLVING MOTOR VEHICLES
Alan Dershowitz “ If you‟re a criminal, the last place in the world you want to be is in a car”
-Courts have relaxed the protections of the Charter for those in a car due to the regulated
nature of driving which diminishes our reasonable expectations from state interference.
R v Hufsky (1988) SCC
Facts: Officer has part of a spotcheck program who was in uniform but in an unmarked car pulled Hufsky
over in a random stop. Guy refused to supply a breath sample; consequently was charged with failure to
provide one S.234 of CCC.
Issue: Is S.189 now 216 of the Highway Traffic Act Constitutional? It states that a police officer in lawful
execution of his duties and responsibilities may require the driver of a motor vehicle to stop and the driver
when signaled or requested to stop by a police officer who is readily identifiable shall immediately come to a
safe stop. Does this provision violated S.9 freedom from being arbitrarily detained?
Ratio: It is a reasonable limit on the right not to be arbitrarily detained for police to conduct random stops of
motorists at road checkpoints.
-There is no requirement that such stops be part of an advertised program. Court argued these checkstops
are now “notorious”
Analysis: The random stop for the spot check although relatively brief in duration resulted in the detention of
the appellant under S.9 of the Charter. The officer assumed control over the movement of the person.
-The detention was arbitrary because there were no criteria for the selection of drivers to be stopped and
subjected to the procedure. A discretion is arbitrary if there are no criteria, express or implied which govern
its exercise.
S. 1 Analysis Oakes Test
1) Pressing and Substantial
2) Proportionality Requirement
a) Rational Connection
b) Minimal impairment
c) Advantageous versus deleterious effects
-Deemed a reasonable limit
S. 8 Issue: Everyone has the right to be secure against unreasonable search and seizure.
Hufsky contended that the compelled production of his licence and insurance constituted a search within the
meaning of S.8.
-Court rules it did not constitute a search because it did not constitute an intrusion on a reasonable
expectation of privacy (Hunter v Southam). There is no such intrusion where a person is required to produce
a licence or permit or other documentary evidence of a status or compliance with some legal requirement
that is a lawful condition of the exercise of a right or privilege.
R v Ladouceur (1990) SCC
Facts: Ladouceur was pulled over in a random roving stop. After he was stopped it turned out he was driving
with a suspended licence and was charged. Actions authorized under S.189a (1) of the Highway Traffic Act.
Issue: Does a routine check/random stop of a motorist by police violate S. 7,8 or 9 of the Charter?
Ratio: 5-4 verdict. Very few distinctions between this case and Hufsky. A random routine check can be
reasonably and demonstrably justified in a free and democratic society.
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Analysis: (Majority) Points to statistics which show a depressing picture of maiming and killing on the roads.
There is a positive correlation between unlicenced driving and the risk of serious accidents. Ex: Accidents
involving licenced drivers has fatality of 214-1 versus unlicenced 59-1. Random stops the only method of
ensuring brakes and seat belts are operational. Discuss importance of seatbelts on the highway.
Oakes – meets pressing and substantial
Proportionality a) Rational Connection: random stops only effective deterrent to stop ppl w/o licence from
driving. B) Min impair: stops of short duration, require only a few documents. C) Saving lives definitely worth
the small inconvenience. Concern for abuse unfounded, you can only stop people for legal reasons: check
licence and insurance, the sobriety of driver and the mechanical fitness.
Being part of an organized program isn‟t practical in rural communities
(Minority) Roving random stop would permit any individual officer to stop any vehicle at any time and
any place. Concern about abuse, stop younger/older drivers, racist reasons, class based on type of car etc.
Checkpoints are better because the decision is made by a superior officer or several officers together and
while individual officers decide which vehicles to pull over the conduct will be monitored by fellow officers.
Police will be able to stop the vehicle as a right and need not justify the stop.
-Consider now all the evidence and studies that show racial profiling in pulling over drivers. This empirical
evidence wasn‟t before the court at this time.
R v Mellenthin (1992) SCC
Facts: Pulled over in a random checkstop. He wasn‟t wearing seatbelt, officer asked for licence and
insurance he complied. Officer then shone his flashlight around the interior of the vehicle, he did this to see
if drugs were present and for the safety of the officers at the checkpoint. He saw a gym back with a brown
bag and plastic sandwich bag inside it. He asked the guy what was in it, he should some empty class vials
which contained some cannabis resin and he was arrested.
Issue: Can the police, conducting a random stop in the absence of any reasonable grounds for doing so,
interrogate a driver about matters over than those related to the vehicle and its operation? And can they
search the driver and the vehicle?
Ratio: Random stop programs must not be turned into a means of conducting either an unfounded general
inquisition or an unreasonable search.
Unless there are RPG for conducting the search, OR drugs, alcohol or weapons are in plain view in the
interior of the vehicle, the evidence flowing from such a search should not be admitted.
Analysis: Was the search unreasonable? Can be no quarrel with visual inspection and the flashlight is fine at
night since it‟s dark, it‟s essential to protect those on duty. Subsequent questions about the gym back were
improper. Search was made without the requisite RPG and was therefore and unreasonable search.
Article about Kirk Johson‟s the boxer from Nova Scotia with Texas plates because that‟s where he trains.
Police stop and seize his car for “driving while black”
-Stopped 28 times in his 60 days in N.S. There were 41 searches on his licences and police ran his plates
20 times, including twice in a day.
Toronto Star Article: Disproportionate number of blacks tickets for “out of sight” offences. Ones one can only
discover after a motorist is pulled over.
34% of all drivers charged were black, they are only 8.1% of Toronto‟s community
52.1% charged are white who make up 62.7% of population
Thomsen v The Queen
Facts: Police stopped his car because he had a defective headlight. In the course of the conversation officer
detected the odour of alcohol, he formed a reasonable suspicion and asked for a breath sample. Appellant
refused to provide a sample.
Issue: Whether a person to whom a demand was made by a police officer pursuant to S.234.1 to provide a
breath sample before responding to such a demand can exercise S. 10 (b) right to retain and instruct counsel
without delay and to be informed of that right.
Ratio: Yes S. 234.1 violates his right to counsel however it is upheld under S.1.
-At roadside when the purpose of a police stop is to check sobriety, licence, ownership, insurance or the
mechanical fitness of vehicles, there is no obligation upon the police to appraise a driver of his right to retain
and instruct counsel without delay.
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Analysis: There is a fair degree of urgency to get the breath sample, the longer it is delayed the lower the
blood alcohol content of the person becomes. The right to retain counsel is incompatible with the effective
use of random stops for the purpose to deter individuals from drinking and driving.
Search and/or Seizure Powers
1) Introduction
S. 8: Everyone has the right to be secure against unreasonable search or seizure.
S. 9: Everyone has the right not to be arbitrarily detained or imprisoned.
Lord Coke: “The house of everyone is to him as his castle and fortress”
The genesis of this protection can be traced back to Entick v Carrington (1795).
-The great end for which men entered into society was to secure their property.
-Where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he
admits the fact, his is bound to show by way of justification, that some positive law has empowered or
excused him.
R v Colet
Facts: Charged with 2 counts of attempted murder and 2 counts of intending to cause bodily harm which
arose out is his conduct defending his property against what he thought was a wrongful intrusion. He lived in
a little shack and promised to defend his property.
RCMP obtained a warrant to seize any firearms or weapons/ammo or explosive substances in the
possession of Colet. Colet climb to his roof and threw gasoline to defend his property.
Court held the warrant was only to seize, not to search his property. Therefore police were acting outside
their authority
• In pre-Charter era the principle of legality was of fundamental importance in
protecting not only liberty but also property from unjustified state intrusion (R. v.
Colet)
• Supreme Court took principle of legality seriously, demanding clear authority before
state officials could enter onto and/or seize private property (R. v. Colet)
• Statutes purporting to authorize such intrusions were subject to strict construction
in favour of the individual (R. v. Colet)
S. 8 of the Charter changed everything.
Canada v Southam (1984)
Facts: Sections 10 of the Combines Investigation Act allow a representative of the Combines Investigation
Branch to enter any premises on which the director believes there may be evidence relevant to the matters
being inquired and to examine anything on the premises. Pursuant to this section they entered and
examined documents at the Edmonton Journal a division of Southam Inc.
Issue:
Ratio: S. 10 of the Combines Investigation Act is inadequate to satisfy the requirement of S. 8 of the Charter.
Analysis: Michael Mandel would not this shows the Charter only advanced the interests of the economic elite
as this decision protects the powerful Southam chain of newspapers.
R v Collins (1987) SCC
Facts: Officer tackled woman and put her in a choke hold because drug dealers often swallow drugs in a
balloon.
Issue: Were the officers actions justified or should the evidence be excluded per S. 24 (2) of the Charter?
Ratio: A search will be reasonable if it is 1) authorized by law, 2) the law itself is reasonable and 3) if the
search/seizure is carried out in a reasonable manner.
Analysis: Evidence was excluded in this case.
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Hunter v Southam
-The requirements set out in this case only apply in Criminal and Quasi-Criminal context.
-This case prescribes the ingredients for a law authorizing a search or seizure to be considered reasonable
(Part 2 of the 3 part Collins Test).
It‟s about protecting reasonable expectations of privacy thus:
a) Whenever it is feasible to obtain a warrant, prior judicial authorization is required
b) Searches/Seizures without a warrant are prima facie unreasonable under S.8. The crown as the
burden of BOP to establish reasonableness
c) At minimum warrants should only issue where there are RPG establishes upon oath to believe that
an offence has been committed and that there is evidence to be found at the place of the search.
2) Engaging Section 8: Reasonable Expectations of Privacy
R v Duarte (1990) SCC
Facts: OPP rented an apartment for purposes of drug bust. Apartment was equipped with audio-visual
recording equipment installed in the wall. The informant and officer consented to the interception of their
conversations. A few days later Duarte and others discussed a cocaine transaction with the undercover
officer and informer. Duarte was later charged with conspiracy to import a narcotic. He challenged the
recording info.
Issue: Whether the commonly styles consent or participant surveillance in which one of the parties to a
conversation, usually a police informer or undercover cop, surreptitiously records it infringes on S. 8 rights?
Is such an infringement justifiable under S.1?
Ratio: Without a warrant this is a violation upon your reasonable expectation of privacy.
Surreptitious electronic interception and recording of a private communication by police amounts to
a search and seizure within the meaning of the Charter.
A conversation with an informer does not amount to search and seizure within the meaning of the
Charter but surreptitious electronic interception and recording a private communication does.
Analysis: Crown argued that the Charter cannot purport to protect us if we don‟t know how to choose our
friends. They say a person who has voluntarily decided to confide wrongdoings with another should not be
able to invoke the Charter.
-The court disagrees with the Crown as electronic surveillance is very dangerous to our privacy.
-We shouldn‟t have to bear the risk that everytime we speak to someone that we run the risk of them running
to the state. It has a chilling effect on human discourse.
-The Crown only considered that the relevant inquiry is limited to the legitimate expectations of privacy for
criminals, but the proposition must be stated more broadly.
-The reason we want them to get a warrant is because it is predicated on numerous safeguards.
R v Wong (1990) SCC
Facts: Police were investigating an illegal gambling operation. They had good reason to believe that the
appellant was involved in setting up floating gaming house in hotel rooms. In the course of their investigation
police put a secret video camera in the hotel room that he rented which caught him running his own casino.
Police did not have a warrant authorizing the installation and use of the video camera.
Issue: Did the police need a warrant?
Ratio: Yes they needed a warrant. There is a reasonable expectation of privacy for a hotel room, doesn‟t
matter that strangers entered, even the maid.
Analysis: Ont CA argued that because he invited strangers into his hotel room any expectation of privacy he
had was effectively vitiated. Question is not whether person who engage in illegal activity behind locked
doors have a reasonable expectation of privacy but framed in broad and neutral terms, 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?
-The very reason we rent such rooms is to obtain a private enclave where we may conduct our activities free
of uninvited scrutiny.
Note: Court admitted the evidence emphasizing the good faith of the police.
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R v Wise (1992) SCC
Facts: Police had surreptitiously affixed an electronic tracking device to a suspect‟s car.
Issue: Did this encroach his reasonable expectation of privacy?
Ratio: There is a profound difference between 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.
Analysis: The police could have simply used conventional surveillance techniques to monitor his movement.
The Crown argued the tracking device had no constitutional significance since it only served to provide the
police with information that was far from private. The movements and whereabouts of a vehicle traveling on
public streets.
Normative approach taken from Duarte, Wong and Wise:
1) Frames the question as to whether a particular technique or device used by
the state for criminal investigative purposes encroaches on a reasonable
expectation in broad neutral terms.
2) Not focused on whether law breakers should bear the risk but whether
everyone should
3) Question becomes whether Canadians would reasonable expect that agents
of the state could …(insert technique).,…without reasonable grounds to
believe they are implicated in criminal wrongdoing and/or without prior
judicial authorization.
R v Dyment – The essence of a seizure under S.8 is the taking of a thing from a person
(by a state agent) without a person‟s consent; provided that the individual has a privacy
interests in the subject matter seized.
-Seizures are subject to the same reasonableness standards set down in Hunter and
Collins.
-In Dyment this meant police violated S>8 when they took a vial of his blood from hospital
staff
Evans v The Queen (1999) SCC (A High Water Mark for Privacy)
Facts: Police had an anonymous tip that the accused had marijuana growing in his house. After a check of
criminal records, electricity consumption and a visual inspection revealed nothing the police approach the
door with the intent of sniffing for marijuana. The police smelled pot, arrested the accused immediately, then
obtained a warrant to search the place based on the odour.
Issue: A) Did the sniffing constitute a search as per S.8 of the Charter? B) If it was a search, was it
nd
reasonable within the meaning of S.8? C) Did the 2 search with a warrant violated S.8? D) Should
evidence obtained be excluded as per S.24 (2).
Ratio: Only those activities that are reasonable associated with the purpose of
communicating with the occupant are authorized by the implied licence to knock.
Where the conduct goes beyond this the implied licence is breached. Occupiers of
a dwelling cannot be presumed to invite the police to approach their home for the
purpose of substantiating a criminal charge against them.
Analysis:
A) Common law has long recognized an implied licence for all members of the public including the
police to approach the door and knock. This doesn‟t extend to everyone for instance a burglar to
knock to case the house. Only those activities that are reasonable associated with the purpose of
communicating with the occupant are authorized by the implied licence to knock. Where the conduct
goes beyond this the implied licence is breached. Police actions went beyond the implied licence in
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an attempt to get a whiff of pot odours. In exceeding their invitation the police approached as
intruders.
B) Prima Facie warrantless search is unreasonable. We go to the Collins test and it fails here because
it is not authorized by law.
C) Warrants based solely on information gleaned in violation of the Charter are invalid. Where a
warrant was issued only partially on the strength of tainted evidence and partially on evidence that
was properly obtained the court must consider whether the warrant would have been issued had the
improperly obtained facts been excised from the info sworn to get the warrant. In this case there
was insufficient evidence for a warrant.
D) Court chose not to exclude evidence relying heavily on the good faith of the officers involved.
R v Edwards (1996) SCC –Privacy claims which have a territorial or special nature
Facts: Police monitoring a guy who they had tips that was a drug trafficker. They were told he had drugs on
him, in his house or at his gf‟s. Police saw him driving, knew he had suspended licence pulled him over and
saw him swallow object wrapped in cellophane. Usual procedure for someone without a licence is to
impound the car and give a ticket but the police took him into custody to facilitate the drug investigation. Two
officers when to his gf‟s apartment obtained her cooperation through lies and half-truths she removed a
cushion and there was cocaine worth $11000-$23000. She was charged too, but they were eventually
dropped.
Issue: What rights does an accused person have to challenge the admission of evidence obtained as a result
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of a search of a 3 party‟s premises? What is the accused reasonable expectation of privacy in relation to
his girlfriend‟s apartment?
Ratio: In assessing whether S.8 is engaged, that is whether the state action has
encroached on a claimant‟s reasonable expectations of privacy, the totality of the
circumstances must be considered.
The factors to be considered in assessing the totality of the
circumstances may include, but are not restricted to, the
following:
i) presence at the time of the search;
ii) possession or control of the property or place searched;
iii) ownership of the property or place;
iv) historical use of the property or item;
v) the ability to regulate access, including the right to admit or exclude others from the
place;
vi) the existence of a subjective expectation of privacy; and
vii) the objective reasonableness of the expectation.
Analysis: Ms. Evers states he was just a visitor who stayed over occasionally. He was no more than a
privileged guest. He did not contribute to the rent or household expenses, although he did help her buy a
couch. Although he did have keys, he lacked the authority to regulated access to the premises. An
important aspect of privacy is the ability to exclude others from the premises.
R v Belnavis (1997) SCC
Facts: 3 women in a car that was pulled over for speeding. Car belonged to the driver‟s boyfriend. A
substantial quantity of stolen property was found in garbage bags in the trunk.
Issue: Did the passenger have a reasonable expectation of privacy while in the vehicle?
All parties agreed that the driver of the car with apparent permission of the owner to be driving had a
reasonable expectation and thus could advance a S.8 claim.
Ratio: First 5 factors in Edwards apply to territorial privacy claims while the last 2 apply to all claims.
Analysis: Her connection to the vehicle is extremely tenuous; she was merely a passenger driven by a friend.
She didn‟t have any control over the vehicle nor did she have the ability to regulate access to it.
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-There may be other situations where a passenger could establish a reasonable expectation of privacy: For
instance if two ppl driving together were sharing the driving responsibilities and expenses, if they were
married.
* The only other manner in which we could claim rights violation is if she could demonstrate a REP in relation
to the items seized, the bags of merchandise.
She couldn‟t, never identified the bags as hers, a garbage bag is different from a suitcase with initials on it.
R v Plant (1993) SCC (Informational Privacy Claims – records)
Facts: Police received an anonymous tip from crime stoppers about a grow op in someone‟s house. The
police accessed the electricity records and found out that consumption at that address was 4x higher than
average.
Issue: Whether accessing the appellant‟s electricity consumption records intruded upon a reasonable
expectation of privacy
Ratio: Again, the totality of circumstances must control, and the subjective
expectation of the individual would seem important. The following factors,
identified in Plant, seem relevant to the objective reasonableness of that
expectation:
• the nature of the relationship between the party releasing the information and the party claiming its
confidentiality;
• the place where the information was obtained;
• the manner in which it was obtained;
• the seriousness of the crime being investigated (Tessling rightly holds that this factor is no longer
relevant at this threshold level); and
• the nature of the information, it must be of a “personal and confidential nature”, relate to a
“biographical core” of personal informational, that tends to reveal intimate details of the lifestyle and
personal choices of the individual.
Analysis: Electricity consumption cannot reasonably be said to reveal intimate details of a person‟s life.
-Plant was decided before the introduction of federal privacy legislation that now legally obligates all entities
engaged in commercial activities not to disclose personal information.
R v Tessling (2004) SCC
Facts: Police had info from 2 informants, 1 a proven source, about a drug house. Police checked with
Ontario hydro but electricity usage appeared normal. RCMP equipped an airplane with Forward Looking
Infra-Red (FLIR) technology.
Issue: Does FLIR represent a search within the meaning of S.8?
Ratio:
1. What was the subject matter of the FLIR image?
2. Did the respondent have a direct interest in the subject matter of the FLIR image?
3. Did the respondent have a subjective expectation of privacy in the subject matter
of the FLIR image?
4. If so, was the expectation objectively reasonable? In this respect, regard must be
had to:
a. the place where the alleged “search” occurred;
b. whether the subject matter was in public view;
c. whether the subject matter had been abandoned;
d. whether the information was already in the hands of third parties; if so, was it subject to an
obligation of confidentiality?
e. whether the police technique was intrusive in relation to the privacy interest;
f. whether the use of surveillance technology was itself objectively unreasonable;
g. whether the FLIR heat profile exposed any intimate details of the respondent‟s lifestyle, or
information of a biographical nature.
Analysis: Plant clearly establishes that not all information an individual may wish to keep confidential
necessarily enjoys S.8 protection. S.8 of the Charter should seek to protect a biographical core of personal
information.
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-While it is Orwellian in its theoretical capacity, the reasonableness line has to be determined looking at the
information generated by the existing FLIR technology and then evaluating its impact on a reasonable
privacy interest.
-The devices do not see into or through structures. It‟s essentially a cameras that takes pictures of heat
instead of light.
-The home is traditionally accorded the highest degree of privacy.
US SC held FLIR technology unconstitutional in Kyllo case. Scalia wrote it was a unreasonable search. The
entire home should be held safe from prying gov‟t eyes.
Court stats that it‟s true that a person can have no reasonable expectation of privacy in what he or she
knowingly exposes to the public or to a section of the public.
THIS IS CONTRARY to what they said in WONG.
Notes: This test is so specific to FLIR that it is not applicable to other cases.
-The information isn‟t meaningless as Binnie says it tells the police a lot. Binnie does say FLIR technology
alone isn‟t enough to get a warrant.
Binnie says it‟s no different than throwing out garbage. You have no expectation of privacy. Really? We
throw out all kinds of things in our garbage used condoms, personal hygiene, banking info, prescription
drugs.
R v AM (2006)
Facts: Three police officers entered a high school with sniffing dogs pursuant to an open invitation from the
principle. Students were instructed to remain in their classrooms while police took the dog through the
school. Dogs go in the gym, one of the backpacks has drugs in it, police search the bag.
Issue: Were his S. 8 rights engaged? Did he have a reasonable expectation of privacy over his bookbag?
Ratio: The dog sniffing was a search as per S.8. You have a REP over your backpack.
Analysis: Police officers who attended the door of a house for the purpose of sniffing the odour of marijuana
were involved in an olfactory search.
Crown argued the dog was just smelling waste odour, you‟re allowing the pungent waste odour to leave your
bag.
The US in PLACE said that a drug sniffing dog was not a search.
Statutory Search and Seizure Power
R v Grant (1993)
SCC said when you are dealing with these old provisions that authorize searches without warrants but on the
principle of reasonable and probable grounds, they should be read down and only apply in EXIGENT
circumstances, such that obtaining a warrant isn‟t feasible.
Reading down “warrantless” search/seizure powers:
In Grant, the Supreme Court held that rather than declaring invalid provisions that authorize searches or
seizures without a warrant, such provisions should be read down so as to only
apply in “exigent” circumstances.
In Grant the court indicated that: “exigent circumstances” “will generally be held to exist if there is an
imminent danger of the loss, removal, destruction or disappearance of the evidence if
the search or seizure is delayed”.
Laporte and the Queen (1972) Quebec Court of Queen‟s Bench.
Facts: A writ of certiorari (basis for challenging the jurisdiction of a lesser court) for the purpose of quashing
and setting aside a search warrant. Warrant authorized a search into the body of Roger Lapotto for one or
more bullets in his shoulder. They have reason to suspect the petitioner was involved in a shot up with
police, X-rays show a metallic object in his shoulder.
Issue: Is there jurisdiction arising from the CCC or elsewhere for a justice to issue a warrant to search the
interior of a living human being?
Ratio: Words much plainer than those used would be required to convince me that Parliament intended to
authorize breaking open of the human frame by means of search warrant. Any conflict must be resolved in a
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manner most compatible with human dignity. This is a grotesque perversion of the machinery of justice and
invasion upon the inviolability of the human person.
Analysis: S.443 of CCC under which authorizes the issuance of a warrant to search a building, receptacle or
place. The definition of receptacle includes a vehicle or stall….or other structure or thing which use used
(whether or not constructed or adapted for such use) as a container for or for the display of any article or
thing and article or thing includes any living thing.
Search Warrants - Execution:
• Absent special circumstances, those executing must possess and show warrant
(Code, s. 29(1);. Legally obligated to show the warrant.
• Before entering they must provide: i) notice of presence (i.e. knock / ring doorbell);
ii) notice of authority by identifying themselves; and iii) notice of purpose. Unless
there are grounds to believe that surprise entry necessary to preserve life and/or
evidence (i.e. search warrant) (Eccles v. Bourque)
• Day time searches are the rule, night time search must be justified and specifically
authorized (Code, s. 488)
• Under s. 487(1), detention and/or searches of occupants not authorized, authority to
do this requires another source - i.e. lawful arrest and search incident thereto -
investigative detention - but see s. 11(5) of CDSA
Search Warrant - 487(1) - Preconditions for Obtaining\
Information sworn to obtain warrant must set out bases for
justice to conclude that there are reasonable and probable
grounds to believe:
• an offence has or is being committed; and
• there is in a particular building, receptacle or place evidence relevant to that
offence.
The warrant should specify and describe the “things” to be
searched for and seized. Therefore, those items must be
described with enough detail such that an officer will be guided
by the warrant in carrying out the search.
Warrants should not issue to license generalized investigative
fishing expeditions.
Gillis and the Queen (1982) Quebec Superior Court
Facts: Warrant issued that authorized police to search and seize cheques, promissory notes, deposit books,
investor lists, and transactions of Trevi Creations Inc and CIBC.
Bases for Challenging Search Under Warrant:
1) Inadequate grounds - That the warrant should not have issued because the information sworn, or as
amplified on review (ie. after excising of improper/unconstitutional & incorrect info), does not set out
adequate grounds for issuance.
2) Fraud on issuing justice - that police deliberately deceived the issuing justice with respect to some
material fact.
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3) Police exceeded its authority - that although warrant was lawful, police exceeded its authority in some
way, i.e. not complying with knock/announce rules, searching beyond its authority or over-seizure etc.
-they just take everything, go beyond the limits of the warrant.
4) Manner of execution - something about manner of execution rendered search unreasonable, i.e.
gratuitous violence etc.
rd
-3 prong of Collins, they do all sorts of things that make the search unreasonable. Use gratuitous
violence.
• Generally - A.-G. N.S. et al. v. MacIntyre, 1982 1 S.C.R. 175:
• a directly interested party is entitled to have access to an information sworn to obtain a
warrant, i.e. person whose residence, office etc. was searched and/or property was seized;
• if a warrant was executed but nothing was seized third-parties, like the media, are generally
not entitled to have access to the Information sworn (the privacy of those affected trumps the
public‟s right to know);
• if, however, anything was seized when the warrant was executed the public is entitled to have
access to the Information - which is, after all - a public document.
• Important because you cannot challenge the information for lacking RPG if you do not know it
• Problem: because what the police have relied on in getting the search, i.e., confidential
informant, (page 197) informant:
o Person who swears the information to get a warrant – officer (Form 1)
o The charging document is sworn by the informant, invariably a police officer (Form
2)
o Person who comes in and gives a statement, informant but really you are just a
witness
o Confidential informants provide information to authorities in confidence – exchange
information in exchange for confidentiality – it is privileged and is impenetrable –
public policy to encourage people to come forward to authorities to supply
information – informants are a huge part of criminal justice system. By and large this
informant has been arrested and they are given a deal to provide information – their
information is privileged
When you call crime stoppers that is different, you are an anonymous
confidential informant as the police do not even know your identity
R v Hunter (19877) ONT CA
Facts: Someone is charged on the basis of a search warrant, some of the info to get the warrant was based
on an informant. It has long been a principle of the common law that the identity of informers should not be
disclosed. Conversely, an essential element of making full answer and defence, an accused whose
premises have been searched may been access to the information upon which the warrant was obtained.
Issue:
Ratio:
An accused is entitled to reasonable disclosure of the information which was used to obtain a search
warrant, if it is needed and requested, despite the fact that it may disclose the identity of an informant;
• where an informant‟s identity is disclosed in the information, the trial judge should review and edit
the information to remove references to the informant‟s identity;
• the accused is entitled to disclosure of the information as edited, but if the Crown is still concerned -
and the informant is unwilling to waive privilege - then the Crown may choose not to rely on the
warrant and attempt to defend the search as warrantless.
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R v Leipert (1997) SCC
-Court concluded that an accused is NOT entitled to any information that could potentially reveal the identity
of a confidential and anonymous informant.
-The only exception is where the accused is able to establish that his or her innocence is at stake (factual
innocence).
As such the accused only get the information that is part of the court record to get a warrant.
Toronto Star v. Ontario [2005] 2 SCR 181
Facts: Case coming out of meat-packing fiasco. Where there was a meat-packing house that was
slaughtering improperly. It was sealed information and the warrant was executed but they wanted
the information.
Held: SCC provided guidance for 487.3. Court said that these orders should not be routine. Crown
must show a serious and specific risk to an informant or to an on-going investigation. In the era of
the charter, with media access, the court says that freedom of the press is important and press
should gain access to proceedings; if the state wants to override that they have to show reason.
Prof: there is a real danger with informants because of who they are. Criminals who are getting
paid and the impenetrability of their information. Their identity is privileged. By and large an
accused person can say that you cannot use the information against me as I gave it to you.
Privileged like lawyer-client confidentiality. The danger lies in information being provided to the
detriment of someone just to get out of trouble. Moreover, anonymous, confidential informants
pose a threat as well. Thus, there should be more information relied upon than just the confidential
information.
Debot v The Queen (1989) SCC
Facts: Police get confidential tip from a “reliable” informant who they had previous experience with and that
was successful. He told police that Debot and Carpenter were getting 4 oz and meeting at Carpenter‟s
house. Police see car coming to Carpenter‟s house, car drives off. Confirm that car is registered to Debot.
Senior officer says to pull over car and search it. Debot is in passenger seat. Asked if he has drugs – denies
it. Officer tells him that he has RPG to search for speed. Find approx. 1 oz. of speed in glasses case. S.37
was provision that allowed police to search places and persons if they thought that there was drugs on
person if there was no warrant – crown tries to justify this under that. Debot does not challenge s.37 search
without warrant. Police could likely not get a warrant.
Issue: Did the officer have a reasonable belief that the appellant was in possession of a
controlled drug and whether the search was carried out in a reasonable manner?
Held: Exigent circs. exist
• Page 203: court discuses RPG standard “the question as to what…requisite standard.”
Standard of grounds of RPG is beneath prima facie case of beyond a reasonable doubt. If it is
not lawful, then there is a violation of s.8 so need to see if the search was lawful. Court says
that it depends on the totality of circs. Court does not try to enumerate the circs. that will
qualify for RPG because of the diversity of factual circs. So they do not want to limit police
powers – they need a flexible standard to use the threshold such that they can act on it. Fluid
Standard. Both subjective and objective standard. Officer needs to believe that he has
grounds for search and that belief has to be reasonable under the circs.
• When you are dealing with the search the question is who has to have the grounds – the
officer just gets a call from a superior, one of the args. that Debot makes is that this is not RPG
because all he had was directions from a superior – page 204: “the police officer must…for
doing so”
• How do you make the assessment as to whether the information from informants is enough?
Police will do certain things to examine locations, familiarize crime scenes, etc., that they could
18
describe in a search warrant saying that they have RPG but they will often rely on information
from 3rd party – how do they assess 3rd parties information? Page 204: “In assessing…”
• In assessing whether information possessed by police is sufficient to supply the requisite
grounds to (detain), search and/or arrest, the totality of the circumstances must be considered.
This includes (test):
1. Compelling - was the information predicting the commission of a criminal offence compelling?
2. Credible - where that information was based on a “tip” originating from a source outside the
police, was that source credible?
i. What is their track record like, are they dishonest, are they getting a benefit
from this, are they being paid?
ii. Most important, have they supplied information in the past and are they
proven or reliable
3. Corroborated - was the information corroborated by police investigation prior to making the
decision to act on it?
• None of these factors are controlling but they all work together
• Page 205: the fact that he has a prior criminal record and reputation is not enough to justify a
search “first, the reputation…”
• Police in this case relied on hearsay and experience with Debot which may way into grounds
• Wrt credibility of informant in this case, page 206, court describes why informant is reliable,
previous tips, police saw the informant with Carpenter
• Court makes a very important statement where informant is confidential and anonymous
“different considerations…credibility of the source” page 206 – higher standard
• There was some inconsistency (page 207): “the failure of the police to spot…coincidence is
greater”
• Failure to corroborate will be important when considering what is not corroborated
R v Lewis (1997) Ont CA
Facts: Tipster notified police a man named Keith Lewis would be flying from Toronto to Edmonton on a
particular day at a particular time with a specific airline with a 2 year old boy. Tipster indicated he would
have a bottle or rum containing crystallized cocaine.
Held: The police did not have RPG to arrest him when they approached him, they did have articulable cause
to detain him.
-It takes little imagination to conceive of situations where a person familiar enough with another to know his
travel plans would falsely accuse that person of a serious crime. False allegations are particularly significant
when the tipster is shielded by ansolute and impenetrable anonymity.
Law Reform Commission Notes (1983):
-Almost 60% of the warrants were invalidly issued
-This was prior to Charter but study in 99 showed the same that 61% of warrants should not have been
issued 40% of which for not discussing RPG.
Special Case of Anonymous Informants
• Anonymous tips require special caution and greater corroboration (Debot);
• Absent confirmation of details other than details which describe innocent and
commonplace conduct, information supplied by an untested, anonymous informant
cannot, standing along, provide reasonable grounds for an arrest or search. But
very well may be enough to warrant an investigative detention (Lewis).
The Exigency Exceptions:
s. 478.11 of Code:
st
-Need these legislated exceptions because It has to be authorized by law. (1 prong of Collins).
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A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or
provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his
or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions
for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
s. 11(7) CDSA:
A peace officer may exercise any of the powers described in subsection (1), (5), or (6) without a warrant if the conditions
for obtaining a warrant exist but by reasons of exigent circumstances it would be impracticable to obtain one.
-Definition of Exigent from Grant decision should stand under these provision
Common Law Search and Seizure Powers
Search Incidental to Arrest:
A power to search “incident” to a lawful arrest had long been recognized at common law,
and survived into the era of the Charter (Cloutier v. Langlois).
The fact of a lawful arrest (i.e. based on rpg) triggers the power, with no additional grounds
being required (Cloutier v. Langlois).
“Incidental” is loosely defined, search can occur some time after (Caslake) or even shortly
before the arrest (Debot, at Ont.C.A.), again, provided that the officer has the requisite
grounds to arrest.
Purpose(s) for which police may search incidental to arrest:
1) Safety - police may search for weapons or other items that an arrestee could potentially
use to facilitate his/her escape or to harm him/herself or others;
2) To Locate & Preserve Evidence - police may search for the purpose of locating and
preserving evidence against destruction by the accused or others
-Obviously there must first be a lawful arrest. A search carried out under an unlawful arrest is by definition unlawful.
-Incidental is loosely defined
-The search can take place before or after the arrest but the search must be incidental to it.
-courts have upheld searches of ppl‟s cars when they weren‟t far away.
-The court does not give a geographic limit, but the further you get away in time and place the harder it is to justify under
the incidental search power.
-just b/c you are arrested outside your car doesn‟t mean the police can‟t search your car.
R v Brezack (1949) Prof: This is not good law anymore with S. 10 A and B of the Charter it
is doubtful that S.29 (1) continues to be authorative
-The purpose of including this case was to show that it truly is a common law power.
Facts: Police had info the accused might be carrying a narcotic and specific info he might put drug in his
mouth. Police intercept him and try to force their fingers down his throat to preclude swallowing.
Putting Collins and Brezack together it seems that search incidental to arrest can extend to the mouth of the
arrested provided that police have very specific information, that they have RPG that drugs
could be secreted w/I the mouth.
R v Caslake (1998) SCC
Facts: Officer saw man 30-40 feet from the highway, he claimed to be relieving himself but when he left
officer found a yellow garbage bag with 9 pounds of pot. He then pursued the car and arrested him. 6 hours
after the arrest the officer went to the RCMP garage and searched the vehicle w/o warrant and found cash
and cocaine. The sole reason for the search was it was required by RCMP policy.
Issue: Was this a search incidental to arrest?
Ratio: In order to be justified as a search incidental to arrest, beyond a lawful arrest:
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1) The searching officer must subjectively have one of these purposes in mind when conducting the search
(police/public safety and preserving evidence); and
2) That belief by the officer that one of the underlying purposes to search incident to arrest will be served by
the search must also be objectively reasonable;
Delay and distance do not automatically preclude a search from being incidental to arrest, but as each
become more attenuated that may cause a court to draw a negative inference - which may then be rebutted
by a proper explanation. Court should be reluctant to set a strict limit on the amount of time that can elapse.
Time if flexible what is more important is the underlying PURPOSE.
If the justification for the search is to locate and preserve evidence, there must be some reasonable prospect
of securing evidence of the offence for which the accused is arrested.
For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is
nothing that could properly justify searching any further
Analysis: In this case the police office boxed himself in by saying it was only an inventory search and there is
no legislation which authorizes an inventory search. Most importantly it caused him to fail the subjective
element of the test.
The Majority does not discuss whether or not inventory searches would be constitutional under S.8 of the
Charter.
R v Nicoloso (1998) Ont CA
-Guy was arrested for outstanding traffic warrants and locked his doors and told police to stay the Fuck out of his car.
IN
the course of the inventory search they discovered a loaded revolver.
-Doherty had no problem with inventory search, said s. 221 of the Highway Traffic Act which authorizes police to remove
from the roadway and store any vehicle that is found on the road bearing improper plates. The court said this granted an
implied licence to conduct an inventory search.
R v Stillman (1997) SCC.
given the rationales for the incidental search, this cannot extend to seizing bodily samples or bodily impressions. Doesn‟t
fit search incidental to arrest because there is no safety element in taking the guys blood or teeth imprints. And you
won‟t lose the evidence because he can‟t destroy his DNA or his teeth.
-Some argument I guess he could escape and disappear but a weak one.
Parliament legislated DNA warrants after the Stillman case and a body impression warrant for foot, hand or teeth
imprints.
R V GOLDEN (2001)
Strip searches incidental to arrest - R. v. Golden:
Given their intrusiveness, “strip searches” incidental to a lawful arrest are subject to special requirements.
Facts: Officers watch the guy from across the street see him making a drug transaction in a Subway store.
End up taking his pants down trying to get the drugs. Almost fall down the stairs. Then move him upstairs,
pull down his pants and underwear to his knees bent over a table. The police force the bag out, he craps on
himself! Get dirty dish gloves to remove the bag that contains crack.
Definition - A “strip search” takes place where there is a removal or rearrangement of some or all of the
clothing of a person so as to permit a visual inspect of a person‟s private areas, namely genitals, buttocks,
breasts (in the case of a female), or undergarments.
Given that they are warrantless searches, they are presumptively unreasonable under s. 8 and the Crown
bears the burden of showing they are in fact reasonable.
In order to do so, the Crown must establish the following:
First, that the arrest was lawful - i.e. the police possessed the requisite grounds and that those grounds were
objectively reasonable;
21
Second, the strip search must be undertaken for purposes related to the arrest, i.e. officer safety or to locate
and preserve evidence; (Ex: can‟t just do it cause the guy is a prick and you want to embarrass him), must
relate to safety or location of evidence not just capricious reasons.
Third, due to the intrusiveness, cannot be undertaken as a matter of routine. Beyond grounds for arrest,
police must have additional grounds to believe that a strip search is necessary to ensure safety or
locate/preserve evidence;
Fourth, generally, strip-searches may only be conducted at the station-house, unless there are exigent
circumstances necessitating such a search in the field:
Finally, the search must be carried out in a reasonable manner. This will depend on factors such as those
found in P.A.C.E. (reproduced at pg. 233)
-hard to envision circumstances where it would be ok to strip search in the field. How can they destroy the
evidence or get at the weapon once handcuffed? Hard to even think of a hypothetical.
-up until Golden no clear authority on the power to strip search subject to arrest.
-there was no consensus in the lower courts, it‟s a common law power so it was the courts job to draw it out.
-health and safety concerns of dirty dish gloves.
-rather than just excluding the evidence the court enters an acquittal and they don‟t engage in a 24 (2)
analysis. So offended by what the police did here.
-They already have RPG to arrest you, why again RPG for a strip search?
Search for Weapons During Investigative Detention
• In the course of a lawful investigative detention (see above) where a police officer
has reasonable grounds to believe (sic suspect) that his or her safety or that of
others is at risk, the officer may engage in a protective pat-down search of the
detained individual.
• The search must be conducted in a reasonable manner.
• (Note: whether protective search can extend to bags that detainee is carrying or car
that detainee is riding are not addressed.)
Emergency Search Power - R. v. Godoy:
In response to a disconnected 911 call, the police have the authority to forcibly enter the
premises from which such a call originated;
The intrusion must be limited to the protection of life and safety;
The police may locate the caller and determine his or her reasons for making the call and
may provide such assistance as may be required - police authority ends there;
Beyond that, the police do not have further authority to search the premises (absent a valid
consent or some other lawful basis).
Consent - Waiving the Protection of Section 8
To be effective, consent to for a search / seizure must be:
22
(1) Given voluntarily. A consent obtained through intimidation, threats or violence
would not qualify; and
(2) Second, the consent must be “informed”, the subject must be possessed of the
requisite informational foundation for a true relinquishment of the right. This requires two
things:
- Knowledge of the right to refuse; and
- Knowledge of the investigative purpose for which consent is being sought
If you consent you waive the protection that would otherwise apply. If you do make a
waiver of consent the requirements of S.8 no longer apply. They no longer require lawful
authority, RPG etc, their authority comes from your consent.
SCC has applied a very high standard as what is necessary to constitute a waiver.
R v Mellenthin case: In our book, the Crown‟s argument as to what the officer did. They
argued no violation b/c there was a waiver/consent. He agreed by acquiescing to the
officer‟s request to provide his gym bag.
-The court does not buy this argument. He felt compelled to produce it for the police.
R v Borden (1994) SCC
Knowledge of the investigative purpose for which the consent is being sought.
nd
Police didn‟t appraise him of the fact that he was being investigated for a 2 sexual assault.
Facts: Warrant was issued in result to a sexual assault complaint at Sundowner Motel. In that attack no
sexual intercourse or ejaculation occurred. Upon being arrested he was very cooperative giving DNA
samples and blood samples. This evidence the police used to catch him for a prior sexual assault they
thought he committed.
-At no point did they say the investigation was about that prior complaint only about the one at the Motel.
Police thought based on carefully worded statement that they could use the blood sample for other
investigations even the one he didn‟t appreciate he was a suspect in.
-The police do have a duty to be truthful.
Issue: Where his S. 8, 10 a and b rights infringed?
Ratio: A right to choose requires not only the volition to prefer one option to the other, but also sufficient
available information to make the preference meaningful. Need the requisite informational foundation for a
true relinquishment of the right.
It was incumbent on the police at a minimum to make it clear that they were treating his consent as a blanket
consent to use the sample in relation to other offences.
Guilt does not mean you have requisite information to relinquish the right
Analysis: When one consents to the police taking something that they otherwise have no right to take, one
relinquishes one‟s right o be left alone by the state and removes the reasonableness barrier imposes by S.8.
-Police argued that he knew he committed another sexual assault and it‟s reasonable to infer that there was
a police investigation into it.
-Court refused to accept this argument.
-What if they say let us now or they threaten to get a warrant. That threat when they actually don‟t
have reasonable grounds, vitiates the warrant.
Plain View Seizure Power
Look at Code s. 489(1) & (2) and CDSA s. 11(8). These
23
provisions codify a plain view seizure (not search) power.
In short, to seize under this power:
(1) The police officer must be in a place and/or position that he or she is lawfully
entitled to be in; and
(2) The evidence or contraband must be discovered inadvertently, in the sense that
additional probing by the police, beyond that which is already permitted under the authority
that they are acting under, is unnecessary; and
(3) The illicit nature or evidentiary value of the item seized must be “immediately
obvious”. (a bunch of stereos wouldn‟t qualify b/c you have to compare serial #‟s etc,
that‟s not immediately obvious, while a kilo of coke or loaded gun is.)
R v Buhay (2003) SCC
Facts: Bus depot with set of lockers. Security guards use master key open locker find it has drugs inside a
sleeping bag. Rather than taking it they lock it back up and call the police and then open it up again for the
police when they arrive.
-Bus company had policy of entering lockers if they gave off a bad odour but it wasn‟t posted anywhere.
Court (Arbour) lists Edwards criteria for reasonable expectation of privacy.
Court then frames the question in terms of Wong, “framed in broad and neutral terms” is whether a society
such as our persons who store and lock belongings in a bus depot locker have a reasonable expectation.
She rules they do have the R.E.P.
-He‟s not the owner of the locker. His relationship with the locker is tenuous, put in $2 and only last for 24
hours.
Goes through all the criteria in Edwards.
Ability to regulate access etc.
Argument made by Crown that this was a search initially by security guards and remained little more than a
transfer from guards to police and S.8 wasn‟t engaged.
-Court says security guards not regulated by the Charter, they are not state actors. They are private sector
actors. Nor were they acting at the behest of the state.
-Argue it was just a transfer from Security guards who already breached the privacy of the defendant. Court
doesn‟t deal with it because that‟s not what happened here. The drugs weren‟t in plain view in the security
office, they locked the locker back up and the police officers then came in and opened it.
* Simply b/c there is a master key and other ppl do go in it doesn‟t change the R.E.P nor the responsibility of
the police
-The last argument the Crown makes is that the drugs were in plain view. This argument must fail.
-An item in a bag inside a locker is not in plain view.
Police officers require prior legal justification to be in the place before something is of plain view. Would
have been diff if guards took it out of locker and left it on a bench waiting for them. But plain view doesn‟t
extend into looking into private places.
A) Did they have a REP vis-à-vis the locker? Yes that‟s the point of paying for a locker.
B) Were the Security guards state agents during the initial search? NO
C) Was the search of the Locker by the police contrary to S.8? Yes
ARREST POWERS
24
A Formal Definition:
• The actual seizure or touching of a person‟s body with a view to his or her
detention; or
• The pronouncing of words of arrest if the person sought to be arrested submits to
the process and goes with the arresting officer;
• The use of actual words of arrest is not determinative.
The substance of the encounter matters most. The use of language that reasonably leads
an individual to conclude that he or she is in police custody and not free to leave also
constitutes an arrest
Statutory authority to arrest is:
Citizen’s Arrest Power:
494. (1) Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person
It‟s read to be “apparently” committing the offence. You can‟t go back ex post facto when they are found not
guilty and say the arrest was vitiated.
-If it looks like they are committing an indictable offence, then anyone can arrest them.
It doesn‟t say summary offence, nor criminal offence. But b.c of S. 34 1 (a) of INTERPRETATION ACT, this
provision states that where it is a hybrid offence up until the time of formal election the offence is presumed
indictable.
Reality is that almost all the offences of the code could be subject to arrest under 494 1 (a).
Some offences are truly summary
Sub B is a little more expansive. Allows us to join in if we see the police or someone else who is enacting a
citizen‟s arrest to join in the pursuit and assist them.
Arrest Powers Relating to Property:
(2) Any one who is
(a) the owner or a person in lawful possession of property, or
b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that
property.
-This can extend to security at the mall, someone watching property, private security etc.
(3) says you must turn them over forthwith to the police. The mall security can‟t hold you and interrogate you
for an hour before they turn you over. If they do it‟s unlawful confinement.
Police Power to Arrest for Breach of Peace:
31. (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is
justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he
believes is about to join in or renew the breach of the peace.
* a breach of the peace is a very old arrest power that existed at common law and was codified in the 1892 CCC.
Breaches of peace were riots, unlawful assemblies, unruly order disturbing events.
-Problem with this provision there is no offence of breaching the peace in Canada. There is the offence of causing a
disturbance, thus we have an arrest power but it‟s not linked to any legislative provision.
-PPL are arrested under this provision, we don‟t know how long they are held, they would obviously have a search power
incidental to arrest
25
-The police don‟t see it as a historical footnote and one of the ways they use it is when they know there is going to be a
big public protest and they have determined protestors will assemble at a particular location and a particular time. They
use this provision to cordon off the area and arrest them for an apprehended breach of the peace.
* It‟s not a pro-active arrest power. (Strib)
-It‟s prefaced on the idea that there has been a breach of the peace and then someone is going to join in, it‟s not about
stopping ppl before any breach occurs.
There has no been judicial review of this because the ppl aren‟t charged in the end, they are just arrested, searched and
then released
Police Arrest Powers - Generally:
495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds,
he believes has committed or is about to commit an indictable offence;
-Read out the “Who has committed an indictable offence” Guilt cannot later give you
authority to arrest.
b) a person whom he finds committing a criminal offence; or
-Rarely do police find ppl committing offences, this is the police power to arrest for
summary offences
c) a person in respect of whom he has reasonable grounds to believe that a
warrant of arrest or committal, in any form set out in Part XXVIII in relation
thereto, is in force within the territorial jurisdiction in which the person is
found.
-this provision is a means by which an officer can arrest someone if there is a warrant out
for their arrest.
R v Storrey (1990)
Facts: Guys were stabbed at a border crossing. They went back to the police station looked at many
pictures, pointed out a few look-alikes and described the car used by the attackers as a Ford Thunderbird
1973-75 model. The officer discovered that Storrey had been stopped on numerous occasions driving a
Thunderbird. He also looked “like a twin” to the person the victims had picked out in the photographs.
The officer concluded he had RPG, Storrey was not brought before an JofP until 18 hours later.
Issue: What are the legal requirements for arrest?
Ratio: Before effecting an arrest under s. 495(1)(a) a police officer must:
• subjectively believe that he or she has reasonable grounds to believe that an
individual has committed an indictable offence; and
• those grounds must also be objectively reasonable (in other words, would a
reasonable person placed in the position of the officer conclude that there are
reasonable and probable grounds to arrest?
-Provides a safeguard incase the officer has an unduly low sense of what is required
Analysis: Officer stated the delay in laying the charge resulted from a desire to have the
victims attend a line up.
-Nothing wrong with police continuing to investigate once they have RPG; perhaps the
investigation will exonerate the arrested.
AN Arrest which is lawfully made does not become unlawful simply b/c the police
intend to continue their investigation
26
S. 503.1 of CCC obligates police to bring someone before JofP within 24 hours or w/o
unreasonable delay, here it was 18, there was no unreasonable delay.
-What would be deemed unreasonable is if police hold you for 23 hours so you‟re
postponed in getting bail then they take you to court house at 5pm and make you stay
another night
Constitutional Implications – Unlawful vs Arbitrary
R v Duguay (1985) ONT CA
Facts: 3 young guys drinking beer in a neighbours yard. One asks the neighbour do you always put your
dog in the garage? When the family comes home their house was burglarized. The officers showed up and
arrested the 3 men.
-The police stated the reason they arrested was to gather more evidence, the officer admitted be lacked
RPG. Maybe he had articulable cause or reasonable suspicion but not RPG. The arrest was a means of
conducting their investigation.
-The arrest was unlawful, was it arbitary?
Issue: Was the arrest arbitary?
Ratio: It cannot be that every unlawful arrest necessarily falls within the words "arbitrarily detained". The
grounds upon which an arrest was made may fall „just short‟ of constituting reasonable and probable cause.
The person making the arrest may honestly, though mistakenly, believe that reasonable and probable
grounds for the arrest exist and there may be some basis for that belief. In those circumstances the arrest,
though subsequently found to be unlawful, could not be said to be capricious or arbitrary. On the other hand,
the entire absence of reasonable and probable grounds for the arrest could support an inference that no
reasonable person could have genuinely believed that such grounds existed. In such cases, the conclusion
would be that the person arrested was arbitrarily detained. Between these two ends of the spectrum, shading
from white to grey to black, the issue of whether an accused was arbitrarily detained will depend, basically,
on two considerations: first, the particular facts of the case, and secondly, the view taken by the court with
respect to the extent of the departure from the standard of reasonable and probable grounds and the
honesty of the belief and basis for the belief in the existence of reasonable and probable grounds on the part
of the person making the arrest.”
Analysis: S.9 Says everyone has the right not to be arbitrarily detained or imprisoned. Arbitrary is a strong
word which makes it much different from S.8 right to be secure against unreasonable search or seizure.
Arbitrary implies capricious, despotic, malevolent BAD FAITH. This is a huge difference from an honest
mistake.
In Hunter v Southam the court didn‟t go to the dictionary to interpret Charter provisions, they
argued it was a purposive document designed to evolve and protect rights
Chretien assumed arbitrary would subsume unlawful when consulted about it.
Strib thinks we should interpret the Charter in a manner consistent with our international
obligations ex: Int‟l Covenant on Civil and political rights Article 9 (1).
-Kind of foolish that S.8 they can‟t search or seize anything in your house unlawfully, but they can seize you
personally. Wouldn‟t we rather they search our house unjustifiably rather than take your
person.
Storrey’s limited guidance on s. 9 of Charter:
An arrest will violate s. 9 if it is undertaken “because a police officer was biased towards a
person of a different race, nationality or colour, or that there was a personal enmity
between a police officer directed towards the person arrested.”
Note, that if the bias was based on a ground enumerated in s. 15(1), the quality guarantee,
than that right would also likely be violated.
27
-If the police get a warrant for a summary offence they can arrest you. But it‟s very unlikely
they would ever do that. The other way is if they find you committing the offence.
You will argue both S. 8 and 9 on exam.
There is no power to search incidental to an unlawful arrest. If you are being arrested
unlawfully that is no better than an assault, you are entitled to defend yourself and could
give you a defence to a charge of assaulting an officer.
R v Feeney (1997)
Facts: 85 year old man killed. Police were informed the appellant had stolen a truck that was found near
Boyle‟s residence exactly where Boyle‟s truck was later found. The appellant was asleep in the trailer.
The officer knocked on the door, said POLICE, receiving no answer he entered the trailer with his gun drawn
and woke the appellant. The officer noted blood spattered all over Feeney. Feeney tried to call a lawyer
several times unsuccessfully, he was kept in an observation cell for 8 hours. Two Detectives began
questioning him then, he stated “I should have a lawyer” but the interview continued and he admitted striking
Boyle and stealing cigarettes and cash from him.
Issue: Was the arrest lawful?
Ratio: Before the Police can enter a dwelling, unless the police officers are in hot pursuit and a person runs
into a residence, they require prior judicial authorization before they can enter to effect such an arrest.
Warrant should only be issued where there are RPG to believe that the individual to be arrested has
committed an offence and there must be RPG to believe that the person you are looking for will be found in
the place you want to search.
Need judicial authorization and you must make an announcement before entering to minimize the
invasiveness of the arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking
to the doorway and surrendering himself.
Gov‟t asked for moratorium and came back with S.529.1-529.5.
-All evidence obtained in Feeney was excluded.
529.3: Sets out an exigency exception. Police can enter w/o warrant where someone is
facing bodily harm or reasonable grounds to believe that entry is necessary to prevent
imminent loss or imminent destruction of evidence.
529.4: Police can forgo the announcement requirement if they believe announcement
could lead to bodily harm or destruction of evidence.
Interrogation and Its Limits
The Rationales for Our Contemporary Rules:
• Reliability - a concern that evidence obtained through the use of physical and/or
psychological intimidation is inherently unreliable;
• Principled Objection - such techniques treat the individual as an object, a means to
an end, denying his/her humanity and are an affront to human dignity;
• Fairness - an increased emphasis on fair process, especially in post-WWII era
(closely linked to principled objection);
28
• Self-incrimination - an aversion toward having suspects / accused persons unfairly
incriminate themselves;
The Confessions Rule in a Nutshell:
Before any statement made by an accused person to a “person in authority” may be
admitted into evidence, the Crown must establish, beyond a reasonable doubt, that the
statement was made “voluntarily”. This will depend on all of the circumstances
surrounding the making of the statement, including:
• any threats or promises made to the suspect;
• whether the statement was made under oppressive circumstances; (how long did
interrogation go on for, were they given food, bathroom breaks, set up of room, how
many interrogators, physical structure, how far apart from the accused were they,
was there any physical contact, did they berate him, cold room)
• whether the accused had an “operating mind” at the time the statement was made;
(high on drugs or booze, not making a choice to speak, just the ramblings of a
disconnected person)
• any trickery engaged in by police to obtain the statement. (pretending you‟re a
priest and tricking them into a confession, if police lie and say this is off the
record…that might be trickery)
• R v Oickle (2002) a more restrictive approach to the confessions rule. In Oickle
they induced the statements by threatening to charge his girlfriend.
R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.) at para. 65:
… where the suspect is in custody, recording facilities are readily available, and the police
deliberately set out to interrogate the suspect without giving any thought to the making of a
reliable record, the context inevitably makes the resulting non-recorded interrogation
suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine
whether or not a sufficient substitute for an audio or videotape record has been provided to
satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
Charter S.10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
(c) to have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
-Bad idea for lawyer to go into investigation room, you could be forced to be a witness in
the investigation. You say he‟s not making any statement there will be no investigation.
Arrest Defined:
• The actual seizure or touching of a person‟s body with a view to his or her
detention; or
29
• The pronouncing of words of arrest if the person sought to be arrested submits to
the process and goes with the arresting officer;
• The use of actual words of arrest is not determinative.
The substance of the encounter matters most. The use of language that reasonably leads
an individual to conclude that he or she is in police custody and not free to leave also
constitutes an arrest.
Detention Defined:
There must be some element of compulsion or coercion for their to be a “detention” for
Charter (ss. 9, 10(a) & 10(b)) purposes. For example:
• a detention occurs when a state official physically interferes with a person‟s
freedom of movement (i.e. holding, cuffing, physically constraining); or
a detention may also occur where a person is subject to a demand or direction by a state
official, that he or she submits to or acquiesces in, where the person reasonably believes
that the choice to do otherwise does not exist
R v Moran (1987) ONT CA
Facts: Guy comes home and finds his wife dead in the basement in pool of blood. Police unsure as to
whether it was a murder or suicide. Police was investigating and asked Moran if they could come to his
house to talk, he said he‟d be glad to help and that he would come to the police station. Officers never
nd
considered him a suspect at the time. He went to the OPP station a 2 time. In his two interviews he
volunteered that he was having an affair with the deceased, he later confessed to killing her.
Issue: Was he a Witness or a detainee? Upon being detained your S.10 rights are activated and he was
never told about his ability to instruct or retain counsel.
Ratio: Witness or Detainee? Moran factors
1) Precise language used by police in requesting person attend station - was accused
given a choice?
2) Did accused attend alone or was s/he “escorted” by police? (did he go on his own)
3) Did accused leave after Q & A of or was s/he arrested?
4) Was questioning part of general investigation or had police already decided
accused was a suspect and was questioning undertaken to obtain incriminating
statements?
5) Whether police had rpg to arrest accused for crime at the time?
6) Nature of questioning - general inquiries or accusatory?
7) Subjective belief relevant, but not decisive. Personal characteristics of accused go
to subjective assessment but ultimately there is an objective component -
reasonable person
30
Analysis: Moran testified he went to the police station b/c he felt he had to otherwise the police would have
come and got him. He also said had he been advised of his right to a lawyer he never would have said
anything.
-Court points out that he was asked if he preferred to come into the station or have the police come see him.
-Questions were not accusatory
-Everyone was asked to account for where they were at the time of her death.
-The fact that he told the police his conversation with them was off the record it was irrelevant as to their
voluntariness.
-He was not detained and confession is admissible.
R v Mickey (1988) BC CA
Facts: murder outside a building and this dude claims he saw a scuffle and what happened through the
window of his mother‟s house. During the drive over he talks about the victim having tattoos on her hands
and other intimate details like hockey stick inside of her, that you would not know had you seen it from a
window across the street,
They hand this guy over to detectives and they relentlessly interrogate him. Given officer‟s concerns that he
was the perp he gave them to the detectives. After hours of interrogation be makes statements which
implicate him.
Issue: Was he detained and were 10 b rights implicated?
Ratio: The status of the appellant changed when it appeared that he might have knowledge which only the
police and the assailant had. He was no longer free to leave when they turned the tape on and began
interrogating him.
Analysis: Some of the interrogation was oppressive as it was relentless and continued for hours. Court
deems it was not voluntary.
R v Elshaw (1991) SCC
Facts: good example why police need investigative detention power.
-Ppl gardening see a man on his hands and knees escort the boy into bushes and saying this is our little
secret let‟s not tell anyone.
Police arrive and Elshaw is trying to escape they stop him and place him in police car, no 10 a or b warning.
They talk to the kids.
The police opens the door and asks Elshaw what would have happened if we didn‟t show up when we did.
He talks about his irresistible impulses towards children.
The Majority find the statements inadmissible as the Crown conceded the police detained him, since he was
never informed of his right to retain and instruct counsel.
Heureux Dube (dissent)
-tried to read US Miranda language into S.10 and the majority of the court want nothing to do with it.
-She says taking Therens to the extreme it would mean anytime an officer wished to speak to anyone it
would effectively shackle an investigation at its outset. HD is missing the objective element that NO
reasonable person speaking to an officer after a car accident would think they are being detained.
Section 10(a) - “to be informed …promptly of the reasons therefor”
Section 10(a) and 10(b) are interconnected. A violation of s. 10(a) invariably leads to
a violation of s. 10(b) (where 10(b) applies).
Because of s. 10(a), a person who is detained / arrested is entitled to be informed of any
offence(s) that the police are investigating relating to him/her.
In short, pre-textual detentions and arrests are constitutionality prohibited because of s.
10(a).
31
R v Black: a person can only make an informed decision whether or not they want to speak
to counsel if they know the true extent of their jeopardy.
R v Borden: didn‟t tell him about the other sexual assault only told him about the one and
the effect of not fully disclosing the true reasons violated his 10 a and b rights.
-Police must inform the person detained or arrested of their true reasons. Partial
disclosure in order to insulate an ulterior investigative purpose is constitutionally prohibited
by 10 a.
S. 29 2 (b) of CCC says that a person has to be informed of the reasons for arrest but prior
to the Charter there was no remedy. A right without a remedy.
Informed when?
• Section 10 says “on arrest or detention”
• Subsection 10(a) says reasons must be given “promptly”
• While ss. 10(b) says “without delay”
• This clear language has been taken seriously by the SCC, it means immediately on
detention or arrest (Feeney).
• That said, where the police are faced with an uncertain and potentially volatile
situation they can at least delay the implementation of the right to counsel until they
are in control of the situation. (R. v. Strachan, [1988] 2 S.C.R. 980)
Section 10(b) - Informational Duty;
The person detained or arrested must be told in plain language:
• About his / her right to retain and instruct counsel without delay;
-not everyone would think counsel means lawyer, the police aren‟t always arresting the
most intelligent or literate individuals.
• This includes being told about whatever system for free, preliminary legal advice
exists in the jurisdiction and of how such advice can be accessed (e.g., by calling a
1-800 number, or being provided with a list of telephone number for lawyers acting
as duty counsel);
• Although the person detained or arrested can waive the informational right, the
standard for waiver is very high. It must be clear that the detainee already
understand his or her s. 10(b) rights, fully understands the means by which they can
be exercised, and adverts to those rights.
R v Brydges (1990) SCC
Facts: Arrested in Manitoba. Said he understood right to counsel but then started to ask questions about it.
States he can‟t afford a lawyer and asks if they have legal aid in Manitoba? Officer said he didn‟t know if
they had legal aid in Manitoba, after stalling for a while Brydges made some incriminating statements.
Issue:
Ratio: 10 b imposes two duties on the police. First the police must give the accused or detained person a
reasonable opportunity to exercise the right to retain and instruct counsel and second the police must refrain
32
from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable
opportunity. The second duty includes a bar on the police from compelling the detainee to make a decision
or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial
until he has had that reasonable opportunity to exercise his right to counsel.
Analysis: Once the appellant requested the assistance of counsel it was incumbent on the officer to facilitate
the contact with counsel by giving him a reasonable opportunity to exercise the right.
Informational Duty: Detainee should be informed of the existence and availability of the applicable systems of
duty counsel and legal aid in the jurisdiction.
Rationale: There could be cases where detainee says nothing about counsel b/c he believes it a foregone
conclusion that he cannot afford one. It is most often the indigent and disadvantages in society that is
not aware of the schemes set up on their behalf.
R v Bartle (1994) SCC
Facts: Bartle arrested for impaired driving and given the standard rights warning. Bartle testified he thought
the caution meant that he could contact a lawyer when one would be available like Monday morning or
something.
Issue: DO ppl who are detained and arrested have the right under the information component of 10 (b) to be
advised as a matter of routine of the existence of a service which provides free 24 hour free preliminary legal
advice and can be reached by a 1800 #? Did he adequately waive his rights?
Ratio: The 10 b caution he received at roadside and the police station failed to convey the necessary sense
of immediacy and universal availability of legal services.
Analysis: A person who does not understand his right cannot be expected to exercise it. Before an accused
can be said to have waives his right he must be possessed of sufficient information to allow him to make an
informed decision.
It can hardly be described as an undue hardship on police to require them to provide detainees with this
basic information.
-The fact that a detainee merely indicates that he knows his rights will not itself provide a reasonable basis
for believing he understands the full extent or the means by which they are implicated Ex: interrupts an
officer in the middle of explaining the rights.
-Court excluded the evidence of 2 failed breathalyzer tests and admissions made .
Dissent Heureux Dube: How can we make a constitutional requirement to inform detainee of such services
when there is no constitutional requirement to provide them by the state.
R v Prosper (1994): 10 b does not impose a substatntive constitutional obligation on gov‟ts
to ensure that duty counsel is available upon arrest or detention…
Nothing in 10 b about the right to silence. You do have the right to silence but there is no constitutional entitlement to be informed of
that right by the police.
the thinking is that the key to your civil liberties is that you be told about your right to counsel and if you assert that
right you will speak to a lawyer and the lawyer should first tell you about your right to silence.
You have to explain to them what that means, to sit there and shut up. It doesn‟t mean the police have an
obligation not to ask you questions persistently over a long period of time, but you just have the right not to say
anything. It‟s you that must assert the right. Don‟t answer any questions.
Obligation is on the person to be resilient. Any conversation with the police is admissible, there is no such thing as
an off the record statement, it doesn‟t matter if they write it down or not.
The holding off is only required until you speak to a lawyer. You won‟t talk to us, you know how that
looks to us. It‟ll look to a jury that you‟re guilty too.
Section 10(b) - Invoking the Right:
R v Baig (1987) SCC
Facts: Charged with murder. He was read his rights and asked the police questions about the investigation
but never asked for counsel.
Issue: Did he waive his right to counsel?
33
Ratio: You have a positive duty to invoke the right after the police inform you of the right.
Absent circumstances that suggest to police that a person detained or arrested did not understand that right
to counsel when informed of it, the onus is on the individual to establish either:
a) the her asserted the right and nevertheless was denied the opportunity to exercise it
b) that he was denied the opportunity to asset the right
Analysis: He was properly appraised of his rights and did nothing to invoke them.
R v Manninen (1987) SCC
Facts: Robbery at Mac‟s Milk, they intercept him at an industrial office. The officer says hi Ron and identify
themselves as police and arrest him at this office. He‟s read his rights at which point he says I ain‟t saying
anything until I see my lawyer. I want to see my lawyer.
Issue: What obligations are imposed upon the police when someone asks too see their lawyer.
Ratio: Section 10(b) - Implementational Duties:
Once the detained or arrested individual asserts the right to counsel two corresponding obligations are then
imposed on police:
Facilitation Duty - the police must provide the person with a “reasonable opportunity” to
exercise the right to retain and instruct counsel without delay.
Only exception is where the circumstances are such that it is particularly urgent that the
police continue with an investigation before facilitating the individual‟s contact with counsel.
Obligation to “hold off” - in addition, the police also have a duty to cease questioning or
otherwise attempting to elicit evidence from the detainee until he has had a “reasonable
opportunity” to retain and instruct counsel.
This is subject to the exception already noted, where the circumstances are particularly urgent that it is
essential that the police proceed with their questioning before providing the individual with an opportunity to
consult counsel.
-there could be some extreme circumstances where you have to question him before counsel talks to him.
But short of a ticking time bomb it seems difficult for them find a reason to hold off. Ex: a nuclear device
about to be detonated at some location.
Analysis: There was a phone at the officer that the police used, they could have allowed him to use this
phone.
R v Ross (1989) SCC
Facts: A break in occurred and police arrested 3 men on a nearby street. One man asked to speak with
counsel and called his lawyer but there was no answer as it was 2am and when asked if he wanted to try
another lawyer said no. Police then put them in a lineup at 3am.
Issue: Was S.10b complied with on these facts?
Ratio: A person arrested or detained, after asserting his/her right to counsel, has an obligation to be
reasonably diligent in exercising the right. If not, the correlative duties imposed on police (to facilitate contact
and to hold off) are suspended.
Whether the individual has been reasonably diligent depends on the circumstances.
A person detained or arrested does not fail in her obligation to be reasonably diligent by insisting on
consulting a lawyer of his or her choosing, provided that that lawyer will be available within a reasonable
time. At a certain point, however, reasonable diligence may require the individual to contact another lawyer.
Analysis: You have a right to consult with the counsel of your choice provided they will be available within a
reasonable time.
34
Here the police should have waited until the next day during business hours so they could speak to counsel;
there was nothing urgent that required they hold the line up in the middle of the night. Crown tried to argue
memories fade but there was no reason not to wait until the next day.
-Crown also argued lawyer would have provided no benefit but this also fails. Lawyer could have informed
them: you have the right to refuse to be in a line up, to inform you what a fair line up entails # of ppl, clothing,
similar height, weight, skin colour.
Ensure line up is photographed so that it is subject to objective verification.
R v Smith (1989) SCC
Facts: He was arrested at 7pm on the way home they agree to stop a few times for him once he gets to the
station at 9pm he asks to speak to lawyer, he only has office number and decides not to call thinking he
won‟t be able to get a hold of him until the morning.
-The police tell him he should call anyways, he says no.
The police begin to interrogate him, he twice states his desire to have counsel present and ultimately Mr
Smith decides to make an OTR statement.
Issue: Was his S. 10 b right violated?
Ratio: The police held off when he first asked to contact his lawyer. However it became suspended because
he was NOT REASONABLY DILIGENT.
An arrested or detained person who has had a reasonable opportunity to communicate with counsel but who
was not diligent in the exercise of this right cannot, subsequently, require the police to suspend, one more
time, the investigation or the questioning.
Analysis: They met their Manninen requirements. His subsequent reassertion of the right did not give rise to
a further holding off requirement, he had his chance and wasn‟t diligent. Had he not had the cops stop a few
times for him maybe he would have arrived at the station closer to 7pm and someone would have been in
the lawyer‟s office.
-Substantially different from a person who tries to contact his lawyer but the lawyer was unavailable.
Note: This principle does not apply when subsequently he asks to see a lawyer and the circumstances have
substantially changed. Ex: person believed they are brought in for disturbing the peace but during
questioning learns he will be possibly accused of murder.
A “reasonable opportunity” …
A person arrested or detained, after asserting his/her right to counsel, has an obligation to be reasonably
diligent in exercising the right. If not, the correlative duties imposed on police (to facilitate contact and to hold
off) are suspended.
Whether the individual has been reasonably diligent depends on the circumstances.
A person detained or arrested does not fail in her obligation to be reasonably diligent by insisting on
consulting a lawyer of his or her choosing, provided that that lawyer will be available within a reasonable
time. At a certain point, however, reasonable diligence may require the individual to contact another lawyer.
R v Burlingham (1995) SCC
Facts: He was accused of murder. Over a weekend he was subject to an intensive and
manipulative interrogation. They systematically question him in spite of the fact that he
repeatedly stated he would not speak unless he could consult with his lawyer. They
denigrate his lawyer saying he‟s not your friend what kind of a friend wants money to talk
to you. They offer him a plea bargain but leave it open for a short period of time so he
can‟t consult his lawyer.
Issue:
Ratio: What the police cannot do (Burlingham)….
Denigrate counsel - the police violate s. 10(b) when they make comments designed to belittle counsel, so as
to undermine the detained or arrested persons confidence in counsel, in an effort to have the individual
forego the right to counsel.
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Plea offers - the police violate s. 10(b) when they make a “plea offer” to an accused when his or her counsel
is unavailable and refuse to keep the offer open until a point in time when counsel would reasonably
considered to be available
Analysis: Police cannot undermine your confidence in counsel.
Evans Case:
Duty on police when circumstances change:
In circumstances where there is a fundamental and discrete change in the purpose of an investigation which
involves a different and unrelated offence or a significantly more serious offence than that contemplated at
the time an a person detained or under arrest was appraised of his or her s. 10(a) and s. 10(b) rights, the
police are obligated to:
• appraise the individual of the change in the reasons for his or her arrest or detention; and
• to again advise the individual of his or her right to counsel
Communication with counsel must be in PRIVATE! In order for the person to get counsel it‟s
often the case they must be able to communicate fully and candidly with the lawyer.
Waiving the right to counsel:
Like any other constitutional right, the right to counsel guaranteed by section 10(b) may be waived.
To be valid, a waiver must be:
• clear and unequivocal;
• voluntarily given; and
• made with an awareness of the consequences of foregoing the right; The person needs the capacity
to appreciate what they are giving up.
The police are obligated to hold off until the person is either capable of properly exercising or waiving the
right.
R v Clarkson (1986) SCC
Facts: Woman is arrested for murder of husband. She is drunk and taken to police station. They give her
the right to counsel and proceed to question her despite her intoxication. Mrs. Estey who she confessed to
tried to get her to stop talking and see a lawyer but Clarkson responded that there was no point.
Issue: Was she in a position to validly waive her right to counsel?
Ratio: For a waiver to be valid it must be 1) Clear and unequivocal 2) Voluntarily given 3) made with an
awareness of the consequences of foregoing the right. Need the capacity to appreciate what you are giving
up.
Analysis: She wasn‟t sober enough to make an informed decision…you really have to be extremely drunk for
a court to say you‟re incapable of waiving the right.
-Could apply in other circumstances ex difficulty communicating in English.
Waiver and the mentally ill:
The Clarkson test presupposes that a person has the cognitive capacity to either exercise or make a waiver
of the right. This will depend on the following:
• the individual must be capable of communicating with counsel;
• the individual must be capable of understanding the function of counsel and that he or she can
dispense with counsel (even if that is not in his or her best interests);
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To meet this low threshold, the individual need not possess “analytical ability”, that is the ability to weigh the
available options and choose the best course of action. Just need an operating mind. (R v Whittle.)
The Right to Silence
th
-Not expressly guaranteed by the Charter. Our S.11c is similar to American 5 amendment…not be a
witness against himself, but right to silence has never been read in by a CDN court.
-For right to silence to be a pre-trial right it has to be found in S.7 b/c it‟s an unenumerated right.
-The principles of fundamental justice is a potentially limitless repository of legal and procedural rights.
R v Herbert (1990) SCC
Facts: He was arrested for robbery after a masked man stole some $190 dollars. Several months pass and
in the intervening period police receive 3 confidential tips that say Hebert is the culprit and they arrest him.
-Anon tips provided they meet 3 C‟s can meet RPG.
-Once the person is under arrest, they are confidential informants, it‟s not enough b/c there is no one to
testify. They need more to secure a conviction, they can‟t just put him in a line up b/c his face was covered
and there is no evidence of physical evidence.
Police needed a confession, w/o it there is no case.
-He speaks to lawyer, refuses to talk, but in the cells an undercover cop was in the cell with him, struck up a
conversation with Hebert and got him to make incriminating statements about his role in the robbery
Issue:
Ratio: A person who is in the power of the state during the course of the criminal process has the
right to choose whether to speak to the police or to remain silent.
In 1981 in Rothman, they court held there was nothing wrong with the police engaging in subterfuge so long
as the police don‟t engage in any actions that shock the conscience like having a cop dress up as a priest.
-Going into trial things looked rather bleak for Hebert. This overturns Rothman.
Analysis: The scope of the right must extend to exclude tricks which would deprive the suspect of
choice. To permit the authorities to trick the suspect into making a confession after he exercised the
right of conferring with counsel and declined to make a statement would be to permit the authorities
to do indirectly what the Charter does not permit them to do directly.
When the police use subterfuge to interrogate an accused after he has advised them that he does
not wish to speak to them they are improperly eliciting information they were unable to obtain by
respecting his constitutional right to silence.
This deliberate deception must be discouraged.
R. v. Hebert: General Contours of Right
The principles of fundamental justice include a right for individuals in police custody to choose whether to
speak to the authorities or remain silent.
The “right to silence” is therefore violated if the police engage in conduct that, viewed objectively, effectively
and unfairly deprives a suspect of the right to choose whether or not to speak to the authorities.
Not an absolute right that requires an “informed waiver” - therefore no informational obligation imposed on
police by this right, beyond existing duties under ss. 10(a) & 10(b).
There are no new informational duties placed on the police
So the court doesn‟t take the common law caution and elevate it to a constitutional requirement
Hebert’s Guidelines:
1) The right to silence does not preclude police from questioning a suspect who has (or has not)
consulted with counsel. Police persuasion, short of denying the suspect the right to choose or depriving him
of an operating mind, does not breach the right to silence.
1) The right to silence applies only after “detention”. Does not in any way affect police undercover
operations that precede arrest. In such situations there is no power imbalance that needs to be
remedied because the individual is at liberty.
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1) The right to silence does not affect voluntary statements made to fellow cell mates (or others).
Violation only occurs when state acts to subvert suspect‟s choice. Only state acts can subvert the
suspect‟s choice.
1) Undercover agents can be used, even after a suspect is in custody - what is forbidden is the use of
subterfuge by state agents to actively elicit a statement from the suspect and thereby undermine his
choice.
Sopinka formulated another test: He demands that there be an informed waiver. The problem would be
police could never use undercover agents in the cells again b/c you couldn‟t give an informed waiver.
This is a pragmatic decision by making it a different kind of right with a different type of waiver.
R v Broyles:
Facts: Police arranged for a friend to visit him in the jail cell and provided him with a recording device. Friend
elicited information.
Issue: Whether the authorities obtained the evidence in a manner that violated his right to silence.
Ratio: He acted as an agent for the state and violated the right to silence.
R. v. Broyles - Test for Agency:
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 ofthe state or its agents ?
R. v. Broyles - Test for Elicitation:
Is there a causal link between the conduct of the state agent
and the making of the statement by the accused? Two
variables to be considered in making determination:
Nature of Exchange:
• Did the agent actively seek out information, i.e. engage in functional equivalent of interrogation?
• Or, did the agent simply say things and act in manner
consistent with his or her role?
Nature of Relationship:
• Did state agent exploit special characteristics of the relationship to extract a confession?
• Was there a relationship of trust between agent and suspect?
• Was suspect obligated or vulnerable to the state agent?
• Did the state agent manipulate the accused to bring about a mental state in which the accused was
more likely to talk?
-Assertion of constitution al right to silence can‟t be used at trial to incriminate you.
Criminal Code, s. 503
503. (1) A peace officer who arrests a person with or without warrant or to whom a person
is delivered under subsection 494(3) or into whose custody a person is placed under
subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody
and, in accordance with the following provisions, to be taken before a justice to be dealt
with according to law:
(a) where a justice is available within a period of twenty-four hours after the person has
been arrested by or delivered to the peace officer, the person shall be taken before a
justice without unreasonable delay and in any event within that period, and
-we want there to be a cap on how long you can be held.
38
-24 hour window there b/c there are legitimate things police should be able to do within the
window, interrogate, finger print, pictures, line up etc.
An unlawful detention isn‟t necessarily arbitrary.
(b) where a justice is not available within a period of twenty-four hours after the person has
been arrested by or delivered to the peace officer, the person shall be taken before a
justice as soon as possible,
-arguably a violation of S.9 if they don‟t bring you to court within 24 hours.
Criminal Code, s. 504
504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may
lay an information in writing and under oath before a justice, and the justice shall receive the information,
where it is alleged… [essentially, that an offence was committed in the jurisdiction] …
Criminal Code, s. 507
507. (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a
peace officer, a public officer, the Attorney General or the Attorney General‟s agent, other than an
information laid before the justice under section 505, shall, except if an accused has already been arrested
with or without a warrant,
(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and
(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a
summons or a warrant for the arrest of the accused to compel the accused to attend before him or some
other justice for the same territorial division to answer to a charge of an offence.
-only time they call witness is if private person swears the info and not a cop. B/c “Anyone” can.
-Notice that if the person is held for a bail hearing there is no pre-inquiry into the issuance of process nor the
grounds underlying the arrest.
The idea structurally in the code is that‟s ok b/c you‟re getting a bail hearing/
R v Pilcher and Broadberry (1981) Manitoba Prov court
Facts: Officer who swore the case before the JofP had no knowledge of the case nor did he ever discuss it
with any officer. He was ordered to swear it by a senior officer. He later complained about it and filed a
report.
Issue: Whether the informant had reasonable and probably grounds to believe and did believe that the
accused committed the offences charged
Ratio: He failed to comply with S.504 of CCC.
Analysis: Although this case emphasizes the important protection provided by the informant satisfying
himself as to the existence of RPG for the charges, other cases have made clear that the informant‟s
knowledge can simply come from reading an arrest report prepared by the arresting officer.
-Recent and higher authority disagrees with this ruling.
R v Jeffrey (1976) Ont Prov Court
-Argued that the court have no jurisdiction over their persons
-The law says a justice must hear and consider the allegations of the informant. They argue the justice did
not “hear” the allegations as it was handed to him on paper.
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Bail
Purpose: Pre-trial custody can jeopardize a suspect‟s job, result in a loss of residence,
undermine personal or family relationships and even interfere with the ability to prepare a
defence.
You are presumed innocent until convicted!
Bail in Theory vs. Bail in Practice
In Theory
• Hearing in 24 hours
• Pre-trial detention rare
• Judicial check on state power
In Practice
• Delays common - due to caseload & adjournments
• 1 in 5 of those charged is detained, 100,000 people a year
• poorly trained J.P.s preside in some jurisdictions
Charter
11. Any person charged with an offence has the right
(e) not to be denied reasonable bail without just cause;
R v Pearson (1992) SCC
Facts: Charged with 5 counts of trafficking narcotics, he was denied bail. S. 515 6 (d) of code said the
justice SHALL order that the accused be detained in custody unless the accused having been given a
reasonable opportunity to do so, shows cause why his detention in custody is not justified.
Issue: Does 515 6d violated S.11 d Presumption of Innocence and E) not to be denied reasonable bail
without just cause?
Ratio: 515 6d denies bail in certain circumstances, but: First, that bail is denied only in a narrow set of
circumstances; and
Second, the denial of bail is necessary to promote the proper functioning of the bail system and is not
undertaken for any purpose extraneous to the bail system.
Court rules there is just cause for these special rules! Doesn‟t deny bail to everyone only to those that are
unable to demonstrate that detention is not justified having regard to the specified primary or secondary
grounds.
Analysis: S 11 E creates a broad right guaranteeing both the right to obtain bail and the right to have that bail
set on reasonable terms.
-Concern for unique characteristics of 515 6d offences b/c they are often highly sophisticated mafia offences.
Having access to large amounts of funds and a sophisticated organization can assist them in absconding
from justice.
McLachlin (dissent): It violates S. 11 e. S.515 6d is very broad and applies to everyone who committed the
specific offence and anyone one traffics no matter how small the quantity or what the circumstances.
Grounds for Denying Bail:
10) For the purposes of this section, the detention of an accused in custody is justified only
on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to
be dealt with according to law;
40
(b) 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
c) on any other just cause being shown and, without limiting the generality of
the foregoing (this part is severed by R v Hall), where the detention is
necessary in order to maintain confidence in the administration of
justice, having regard to all the circumstances, including the apparent
strength of the prosecutions case, the gravity of the nature of the offence, the
circumstances surrounding its commission and the potential for a lengthy
term of imprisonment.
Primary ground (515(10)(a) - factors:
Positive
Roots in the community, ie.
job / business
residence
family
friends
Positive track record while on bail
Negative
No roots, ie.
No fixed address
Unemployed
No family
No friends
Prior convictions for failure to comply with bail order or failure to appear in court
Secondary ground (515(10)(b):
Detention is only justified where:
there is a “substantial likelihood” that the individual will commit an offence or interfere with the
administration of justice, and only where this “substantial likelihood” endangers “the protection or
safety of the public”;
AND
only where it is “necessary” for public safety.
Secondary Ground - 515(10)(b) - factors:
Positive
No criminal record
No prior record for failure to comply with bail conditions
No prior record for breaching court orders
Negative
• Long & uninterrupted criminal record
• Prior offences while on bail, especially for obstruction of justice
Serious personal injury offence & strong Crown case
Tertiary Ground - 515(10)(c):
Introductory language invalidated, as unduly vague - but remainder stands
Detention must be “necessary” in order “to maintain confidence in the administration of justice”
Depends on all of the circumstances, but especially:
• the apparent strength of the prosecution‟s case;
• the gravity of the nature of the offence;
the circumstances surrounding the commission of the offence; and
41
• the potential for lengthy imprisonment.
R v Morales (1992) SCC
Facts:
Issue: Is the public safety component of S. 515 10 (b) constitutionally valid?
Ratio: From Pearson: First, that bail is denied only in a narrow set of circumstances; and
Second, the denial of bail is necessary to promote the proper functioning of the bail system and is not
undertaken for any purpose extraneous to the bail system
The public safety component provides just cause to deny bail within these criteria.
Bail is only denied 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.
the "public interest" component violated the accused right not to be denied
reasonable bail under section 11(e) of the Charter and could not be saved under
section 1. He ordered the words "in the public interest" be declared of no force or
effect.
-In general society does not countenance preventative detention of individuals simply b/c they have a
proclivity to commit crime.
Analysis: S11 (d) has no application at the bail stage where guilt or innocence is not determined and where
punishment is not imposed.
S 11 e creates a basic entitlement to bail.
-The bail system does not function properly if individuals commit crimes while on bail.
-Statistic evidence on recidivism
The public safety component establishes narrow circumstances in which bail is denied. Those
circumstances are necessary to promote the proper functioning of the bail system and are not undertaken for
any purpose extraneous to the bail system.
R v Hall (2002) SCC
Facts: A heinous crime was committed where there were 37 separate slash wounds in a murder in a small
community Sault St Marie. There was a general sense of fear in the community that a killer was at large.
Issue: Is 515 10 (c) constitutionally valid?
Ratio: The court severs the first part of the phrase Bail denied for “any other just cause”
This is too broad and leaves too wide a discretion. It‟s generality impels its failure on the proportionality
branch of Oakes Test. This does not kill the entire provision, parliament clearly intended to permit bail be
denied where it was necessary to maintain confidence in the administration of justice.
-IN some circumstances it may be necessary to the proper functioning of the bail system and the justice
system to deny bail even where there is no risk the accused will not attend trial or may re-offend.
Analysis:
May erode the public‟s confidence in the administration of justice. Where justice is not seen to be done by
the public, confidence in the bail system and the entire judicial system may falter. Dangers such as public
unrest and vigilantism may emerge.
-Courts must be careful not to pander to public opinion.
* this provision is neither superfluous nor unjustified, it serves a very real need to permit a bail judge to detain
an accused pending trial for the purpose of maintaining the public‟s confidence if the circumstances so
warrant.
The law is not impermissible vague or lacking precision. Parliament has provided important safeguards and
4 specific criteria it is to be based on.
Iacobucci (dissent) Liberty lost I never regained and can never be fully compensated for, we must place the
highest emphasis on ensuring justice minimizes the chances of unwarranted denial of liberty.
-Upon examination of the 4 factors, it is difficult to see how the listed factors contribute to a determination of
whether confidence in the administration of justice would be promoted by denying bail.
* Parliament has essentially revived albeit with more elaborate wording the old public interests
ground this court struck down in Morales
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Charge Screening
Crown Policy Standards:
Charge screening is the subject of policy statements by the responsible ministries across
the country.
Wording varies, but standard is essentially the same: charges should not be pursued
where there is no reasonable “chance”, “prospect”, or “likelihood” of conviction.
In Ontario, in theory, screening entails two inquiries by prosecutors:
First, whether there is a “reasonable prospect” of conviction; and
Second, if there is, whether it would nevertheless be in the public interest to
discontinue the prosecution. No public interest however compelling can warrant the
prosecution of an individual if there is no reasonable prospect of conviction.
Tort Liability:
According to the Supreme Court of Canada, before deciding to pursue a criminal charge,
… the Crown must have sufficient evidence to believe that guilt could properly be proved beyond
a reasonable doubt …
Proulx v. Quebec, [2001] 3 S.C.R. 9 para. 31. This is essentially the same standard adopted by the
responsible government ministries across Canada.
Pursuing a criminal charge where this standard is not satisfied makes a prosecutor vulnerable to a malicious
prosecution claim in tort.
Timing:
Varies depending on the jurisdiction, although most provinces
use post-charge screening
Some provinces use pre-charge screening, that is, before the Information is even sworn, e.g. Quebec
In Ontario, charges are usually screened after Information is sworn, and :
• for those released by police, in period between arrest and first appearance
(usually one month delay between each)
• for those held for bail hearings, usually between bail determination and
first “set date” appearance 7 to 14 days
Logistics:
It usually takes weeks (or months) before prosecutors have disclosure, i.e. the actual evidence collected by
police.
Disclosure is often incomplete (or may seem incomplete), which will necessitate follow-up with police and
further review.
Prosecutors rarely feel confident to withdraw based on inadequate evidence until they are sure there is
nothing more. Prosecutors may simply be looking for evidence to solidify their case.
Fragmentation “Balkanization” of prosecutorial work in many jurisdictions means that there is an institutional
incentive to defer, to pass the case down the line.
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Withdrawals therefore take time, and often only come on the first day scheduled for a preliminary inquiry or
trial.
Implications:
In 1999-2000 adult criminal court statistics from 7 provinces reveal that 122,676 charges resulted in “stays”
or “withdrawals” (33% of recorded cases).
Many reasons to stay or withdraw, beyond deficiency in a case that was manifest at the outset.
Rate in Quebec (which uses pre-charge screening) was only 11% (lowest of reporting jurisdictions). Highest
conviction rate, at 73.6%
Stay or withdrawal rate is much higher in post-charge screening jurisdictions, 22% in PEI and 40.8% in
Ontario.
Disclosure/Lost Evidence & Third Party Records
R v Stinchcombe (1991) SCC
Facts: Appellant is a Calgary lawyer charged with appropriating financial instruments from a client. A former
secretary of Stinch gave favourable evidence to him at the Prelim inquiry. The police have statements she
made recorded but the Crown has decided not to call her saying she‟s not worthy of credit. The D want
those tapes disclosed.
rd
It wasn‟t until the 3 day of trial that they learned she would not be called to testify.
Issue: The crown‟s obligation to make disclosure to the defence.
Ratio: Crown Disclosure Duty (per Stinchcombe):
The right to make full answer and defence is a principle of fundamentaljustice protected by
s. 7 and it includes a right to disclosure.
The Crown is required to disclose all “relevant information” in itspossession to the defence.
“Relevance” is a low threshold, if something is logically probative of a fact in issue then it is
relevant and must be disclosed.
Right is triggered by a defence request, but the Crown must appraise unrepresented
accused persons of the right and courts must not accept a plea from such an individual
without inquiring to ensure that accused knows of right.
Timing - disclosure should be provided before an accused is called
on to elect his or her mode of trial or to plea.
Form - should include all witness statements, if no formal
statements given, police notes of statements or a “will say”
statement setting out name of witness and anticipated evidence.
Withholding disclosure - prosecutors are entitled to withhold or
delay disclosure in certain limited circumstances:
• need not disclose what is clearly irrelevant;
• need not disclose privileged information, I.e. informant‟s identity etc.
• may delay disclosure to protect an ongoing investigation;
The decision to either withhold or delay must, however, be
disclosed - so that the defence may seek review. It is the trial
judge‟s function to decide such disputes.
Defence Disclosure
Not mandated by Stinchcombe, which maintained that is defence entitled
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to take entirely partisan and adversarial approach toward Crown.
There are some exceptions:
1) Alibi Disclosure - timely disclosure of particulars of any alibi must be disclosed, otherwise you risk an
adverse inference by trier of fact; R v Cleghorn
1) Notice of Charter Application - such notice is mandated by court rules, including a need to specify
bases and grounds for application;
1) Expert Witnesses Notice - under s. 657.3, defence must give 30 days advance notice of expert‟s
name, area of expertise and qualifications but a report or will say is only necessary “not later than the
close of the case for the prosecution”
Analysis: Trials are about search for the truth. The prosecutor never wins or loses but seeks justice. The
right to make full answer is essential to justice being done.
The explanation that the witness was not worthy of credit was inadequate to suppose denying the
evidence. Whether the witness is credible is for the trial judge to determine after hearing the
evidence
The Duty to Preserve Evidence & The Effect of Its Loss:
R v La (1997) SCC
Facts: Police were looking for a 13 year old runaway. They found her with a known Pimp. Officer made a 45
min recording of one of the conversations he had with her, as a result of the recording he didn‟t take any
notes. He discovered other girls were part of the prostitution network. When all the evidence was turned
over the tape was missing which contained specific evidence about a Ranger Motel incident.
Issue: Does the accused get a stay of proceedings based on the Crown‟s failure to disclose the tape
recording?
Ratio: The loss or destruction of evidence by the Crown (which includes the police) may result in a violation
of 7 of the Charter.
If it was lost or destroyed as a result of unacceptable state negligence, then s. 7 is violated. But if the state
offers a satisfactory explanation then s. 7 is not breached. Factors relevant to this assessment:
• perceived importance of the evidence at the time that it was collected;
• evidence that is clearly relevant when collected is subject to a higher duty of care, but if not
relevant at time a showing of unacceptable negligence will be more difficult as the state
cannot be expected to preserve everything;
If the explanation unsatisfactory, then s. 7 will be breached.
Section 7 will also be breached where, regardless of an absence of negligence, the accused is able to show
that lost evidence was essential to making full answer and defence. In some cases the loss of a document
may be so prejudicial that it impairs the ability to make full answer.
Analysis: Police cannot be expected to preserve everything that comes into their handa on the off chance
that it will be relevant in the future.
-Deliberate destruction will amount to an abuse of process.
-No evidence of negligence in this case. Officer was involved in stressful and traumatic incident shortly after
making the tape.
-There was no impairment of his right to make full answer to the charges.
Accessing Third Party Records:
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-IF the records are in the hands of the crown, there is no longer an expectation of privacy
and they are disclosable as per Stinchcombe.
R v O‟Connor (1995) SCC
Facts: A conflict of Charter Rights. The Right to Privacy vs the Right to make full answer and defence.
Issue: Whether and under what circumstances an accused is entitled to obtain production of sexual assault
rd
counselling records in the possession of 3 parties.
Ratio: The Majority:
Instances of likely relevance:
a) contain info concerning the unfolding of events underlying the criminal complaint
b) may reveal the use of a therapy which influence the complainants memory of the alleged
events.
c) They may contain information that bears on the complainant‟s credibility, including
testimonial factors such as the quality of their perception of events at the time of the offence
and their memory since
If they can show the documents are likely relevant the judge can read the contents then taking into
account a # of factors: Burden on accused to show likely relevance
1) the extent to which the record is necessary for the accused to make full answer and defence
2) the probative value of the record in question (a function of its content)
3) the nature and extent of the reasonable expectation of privacy in question
4) Would production of the record be premised on a discriminatory belief or bias. (Ex twin
myths: sexual experience makes a woman more likely of consent and less likely of belief)
5) The potential prejudice to her dignity, privacy or security of the person
HD and the Minority:
Was not happy with relatively low threshold for production to the judge to look at the contents. All they
needed to show was likely relevance.
-She was of the view that more than likely relevance is needed.
-Would have included 2 additional factors to be balanced in deciding whether access should be granted
1) The extent to which production of records of this nature would frustrate society‟s interest in promoting the
reporting of sexual offences and discourage victims from seeking treatment.
2) The effect on the integrity of the trial process for failing to produce the record. To what extent would public
confidence be undermined by a production order.
Analysis: For the accused to gain access to all the emotion based information is another rape in itself.
There was almost an immediate backlash against the Court‟s judgment. Parliament introduced Bill C-46.
Parliament eventually responded with Bill C-46, which introduced section
278.1 to 278.9. This legislated scheme replaced O’Connor‟s common-law scheme with respect to private
records relating to a complainant or witness where an accused is charged with one of the offences listed in s.
278.2 (ie. crimes that violate a victim‟s sexual integrity).
With such offences, the scheme in 278.1 to 278.9 controls. With all others,
O’Connor controls.
278.3 (4) Lists 10 factors which will constitute likely relevance.
-They cannot stand on their own. Need many of them, not just one
R v Mills (1999) SCC
Issue: Whether Bill C-46 strikes the appropriate constitutional balance btw protecting the accused‟s right to a
fair trial and the privacy and equality rights of complainants and witnesses when an accused seeks access to
their confidential records in a sexual assault proceeding.
Ratio: This is part of a constitutional dialogue. Parliament had the benefit of information not available to the
court when it penned O‟Connor. They had the advantage to assess who the O‟Connor regime had been
operating. Parliament decided to supplement the likely relevant standard for production with the further
requirement that it be in the necessary interests of justice.
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We had a collision of Constitutional Rights.
Really a matter of policy choice how to strike the balance btw these conflicting rights.
R v Carosella (1997)
Before going to the police woman went to centre to seek assistance in laying sexual assault charge against a
former teacher. Prior to trial D brought an application for production of the centre‟s file. File had nothing in it,
all notes were shredded.
Issue: Whether the trial judge was right to stay the prosecution because the notes were no longer available.
In a 5-4 verdict they upheld the stay.
Maj: emphasized the prejudice to the accused‟s ability to make full answer and defence. They also said the
center‟s conducted resulted in an abuse of process. The agency made a decision to obstruct justice by
systematically destroying evidence which the practices of court might require be produced.
Min: Did not assume the records would have been produced even if available. Moreover they said abuse of
process requires state action and the center is not a public entity.
Elections, Preliminary Inquiries& Preferring the Indictment
S. 536 (2) of CCC gives an accused an election on how he will be tried:
1) Trial by prov court judge
2) Trial by Superior court judge
3) Trial by superior court judge and jury
If no election is made then he is deemed to elect # 3.
Absolute jurisdiction indictable offences S553 of CCC = Ont Court of Justice
Exclusive jurisdiction offence S. 449 of CCC - trail in superior court after a prelim inquiry in prov court.
Preliminary Inquires
Recent Amendments:
1) For a preliminary inquiry to occur the accused or the Crown must now make a formal request, per
the rules of the court (s. 536(4));
2) The requesting party must provide a statement to the court and the other party setting out the issues
on which the requesting party wants evidence to be given (536.3);
3) Parties can agree to limit the hearing to specific issues, and such agreement will be filed with the
court (ss. 536.4(2) & 536.5);
4) Credible and trustworthy evidence in written form (i.e. written reports etc.) can be admitted (s.
540(7)), with reasonable notice (s. 540(8)), but the opposing party may request that the court require
the witness to appear for questioning (s. 540(9)).
Entitlement
• 469 offences - those charged with s. 469 offences must have a preliminary inquiry followed by a trial
by judge and jury (ss. 536(2), 469, 471) unless the preliminary is waived on consent of parties (s.
549);
• 553 offences - those charged with s. 553 (absolute jurisdiction) offences are not entitled to a
preliminary inquiry, they must have a trial in provincial court (but see s. 555(2));
• indictable offences - those charged with indictable offences, other than 553, are entitled to a
preliminary inquiry, including hybrid offences where the Crown elects to proceed by indictment (s.
536(2));
• summary offences - no entitlement, trial in provincial court (s. 536(2));
R v Arcuri (2001) SCC
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st
Facts: Arcuri charged with 1 degree murder, at the Prelim the Crown‟s case was entirely circumstantial.
The accused called two witnesses whose evidence was arguably exculpatory.
Issue: Whether the evidence was sufficient to warrant committing the accused to trial
Ratio: A preliminary inquiry judge must commit the accused to trial in any case in which there is admissible
evidence which could, if it were believed result in a conviction. The test is the same whether the evidence is
direct or circumstantial.
Analysis: Answering the question inevitable requires the judge to engaged in a limited weighing of the
evidence. The judge does not ask whether she herself would conclude that the accused is guilty, nor does
the judge draw factual inferences or assess credibility. The judge asks only whether the evidence if believed
could reasonable support an inference of guilt.
Preferring the Indictment:
Waiver of preliminary inquiry or committal will send case to Superior Court
Information is replaced by Indictment which then serves as the charging document (see s. 566(1))
Crown drafts (“prefers”) Indictment under authority of s. 574(1), can include those offences that accused was
committed to stand trial on (a) and any other charges founded on the facts disclosed by the evidence at the
preliminary inquiry (b)
Attorney General may personally prefer a “direct” Indictment, sending an accused to trial in Superior Court
without a preliminary inquiry (s. 577(b))
574.1 (a)
There are certain preconditions that must be satisfied before a charge can be included in an indictment by a
prosecutor.
Prosecutor limited in drafting indictment to limit those charges to ones the person was ordered to stand trial
on,
Or (b) a prosecutor is entitled to add to an indictment any charge for which there was evidence adduced at
the Prelim inquiry.
Ex: Charged with robbery but during Prelim a witness makes reference to some other uncharged robberies
that you were also involved in.
Judge at prelim limited to adding charges so long as they are related to the same transaction. Ex can bump
st
up 2nrd to 1 degree. S. 548 (1) CCC
The prosecutor has greater authority than the judge. Doesn‟t have to be part of same transaction.
CROWN is authorized under 574 1 b to add charges in superior court so long as there was evidence given at
the prelim inquiry.
Direct indictments are consistent with the Charter and do not violate S.7
There is no statutory right of appeal against errors committed by a prelim justice. It is open
to the accused and the crown to seek a write of certiorari in the Superior Court to quash the
prelim inquiry justice‟s decision.
Certiorari permits review only where it is alleged that the tribunal has acted in excess of its
assigned statutory jurisdiction or has breached the principles of natural justice which is taken
to be an excess of jurisdiction.
Writ of Mandamus to mandate/ compel them to act in a certain way or a writ of prohibition to
stop something
Vic Toews talking about doing away with Prelim inquries.
Solution should be to legislate a higher threshold, not eliminate it b/c there have been mistakes.
It‟s like saying blood still gets infected despite screening so let‟s get rid of blood screening.
Constitutional Remedies
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-concern in Canada that American went too far with fruit of poisoness tree evidence where everything
obtained unconstitutionally is thrown out
-some wanted us to keep the preCharter approach
-a right is meaningless without a remedy, without a way to effectuate it
What emerged was a compromise position.
Enforcement
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may
apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just
in the circumstances.
(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.
*read as “could” as per R. v. Collins. B/c French translation!
A court of competent jurisdiction = the court must have a pre-existing jurisdiction over the parties and the
remedies being sought.
Timing & Forum
• Trial courts - always a “court of competent jurisdiction”, therefore may grant constitutional relief, be
it a declaration of constitutional invalidity of legislation, evidentiary exclusion or a stay of
proceedings.
• Preliminary inquiries - not a “court of competent jurisdiction”, therefore cannot grant constitutional
remedies.
• Superior Courts - due to their inherent jurisdiction are always a “court of competent jurisdiction”
BUT will only exercise this jurisdiction in exceptional circumstances, i.e. where the trial court is not in
sight or is implicated in the alleged constitutional violation, otherwise it will defer to the trial court.
Section 24(1) - General Remedial Provision
With the exception of exclusion of evidence, which takes
place under s. 24(2), s. 24(1) confers broad remedial
authority on courts.
Typically, before a remedy will be granted there will need
to be some correlation between the constitutional violation
and the relief being sought.
Courts have used this jurisdiction to do the following:
• declare invalid or read down legislation;
• order costs;
• grant constitutional exemptions;
• decrease the sentence that would otherwise be appropriate;
• order the return of items seized; and
• stay proceedings
The one thing you can‟t get under 24 (1) is the exclusion of evidence. That is because if Parliament had
intended it they wouldn‟t have passed 24 (2). R v Therens
Abuse of Process:
R v Jewitt (1985) SCC
Doctrine had an Uncertain status in criminal law prior to
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Jewitt, which finally resolved question. In it, the Supreme
Court adopted the following passage from 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 an abuse of a court‟s process through oppressive or vexatious
proceedings.”
This power should only be exercised in the “clearest of cases”
R v Keyowski (1988) SCC
rd
Facts: First 2 trials ended with hung juries, 3 trial was stayed as an abuse of process.
rd
Issue: Whether he should stand trial for a 3 time on a charge of criminal negligence causing death? Does a
series of trials constitute an abuse?
Ratio: Prosecutorial misconduct and improper motivation are but two of many factors to be taken into
account in deciding whether or not an abuse of process is made out. The absence of either is not
determinative.
As a result, an abuse of process could established as a result of an accused being required to stand trial
repeatedly on the same charge(s).
That said, although a third trial stretches the limits of the community‟s sense of fair play it does not of itself
exceed them.
Analysis: The test for abuse was in R v Young, a stay should be granted 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 or where the proceedings are oppressive or vexatious.
-The charge in this case is a serious one, proceedings have not taken an undue amount of time and the
accused has not been held in custody. We are sure he has suffered trauma and stigma from the
proceedings.
-You can have abuse of process even when prosecutor is acting in good faith. If 3 trials stretches the limits
th
of fair play it seems a 4 crosses the line.
R v O‟Connor (1995) SCC
Facts: Issue of confidential records
Abuse of process is subsumed within s. 7 of the Charter, a prosecution that offends our basic sense of
fairness and decency necessarily violates the principles of fundamental
justice.
A “stay” is not the only potential remedy. Section 24(1) puts a scalpel in a judge‟s hands, not an axe. May
craft an appropriate remedy.
Stays for an abuse of process are only appropriate in the “clearest of cases”. That is,
• where the prejudice to the accused‟s right to make full answer and defence cannot be
remedied; or
• where irreparable prejudice would be caused to the integrity of the judicial system if the
prosecution were continued…no other remedy is capable or removing that prejudice.
The Charter was not engaged b/c US police are not subject to it.
Stays of proceeding are drastic: they say we are not even going to hear this case in its merits, it‟s so unfair
that we are going to stop this case right now.
A stay of proceedings is only appropriate in the clearest of cases!
R v Regan (2002) SCC
Facts: Former NS Premier faced criminal charges stemming from allegations that he sexually assaulted a
number of young women he worked with. Police confirmed to a reporter that he was being investigated, they
went “judge shopping” and Crown involved itself in interviewing witnesses.
Ratio: Regardless of whether abuse causes prejudice to the accused because of an unfair trial or to
the integrity of justice system, a stay will only be appropriate where: (limiting of the ability of a judge to
make a stay)
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• The prejudice caused by the abuse in question will be manifest, perpetuated or aggravated through
the conduct of the trial, or by its outcome; and
• No other remedy is reasonably capable of removing that prejudice;
Finally, there may still be cases where uncertainty persists about whether an abuse is sufficient to warrant a
stay, in such cases a final factor is:
• To balance the interests served by ordering a stay against the societal interest in having a final
decision on the merits.
Analysis: Regan is now controlling over O‟Connor.
A stay of proceedings is a prospective rather than a retroactive remedy. A stay does not merely redress a
past wrong. It aims to prevent the perpetuation of a wrong that if left alone, will continue to trouble the
parties and the community as a whole in the future.
-The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of
proceedings.
The Exclusion of Unconstitutionally Obtained Evidence:
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.
*read as “could” as per R. v. Collins.
Threshold for 24(2) - “… obtained in a manner…”
The language in s. 24(2) contemplates that it will only be applied where:
“…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms
guaranteed by this Charter…”
History: Those drafting the Charter did not want the same rule as in the USA. One of the main concerns was
what to do with unconstitutionally obtained evidence. The fear was that if we didn‟t have a rule the courts
could create their own. Or even take the Bill of Rights route and say there is no remedy.
-Wanted to leave it to judges to make the decision on a case by case basis.
R v Strachan (1988) SCC
Facts: Charged with trafficking narcotics. When warrant was executed at 6:20, after being shown warrant
and apprised of right to counsel he asked to speak to his lawyer. They said no. There were 2 other ppl in
his apt and it was known he had 2 guns.
The officer told him he had to wait until the police had matters under control. 40 minutes later they complete
the search, let the other 2 go.But it was another hour later when he got to the police station that he was
allowed to call counsel.
The Crown conceded there was a violation to speak to his lawyer. Majority decided the violation began from
when the police “had control” and ensured the situation was safe.
The Crown argues drugs were found, the search warrant was fine and led directly to the acquisition of the
evidence. The evidence was not obtained in a manner that infringes his Charter rights….There was no
causal link!
Issue: Was the Search invalid b/c it did not comply with the Narcotic control act and thus unreasonable under
S.8? Should the evidence be excluded under 24 (2) of the Charter?
Ratio: First, the court should determine whether a Charter violation occurred in the course of obtaining the
evidence.
A temporal link between the infringement of the Charter and the discovery of the evidence figures
prominently in this assessment, particularly where the Charter violation and the discovery of the evidence
occur in the course of a single transaction.The presence of a temporal connection, however, is not
determinative.
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.
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Analysis: Crown argued there was no direct relationship btw the breach of the accused‟s right to counsel and
the discovery of the drugs. The court decided on a temporal connection rejecting the more stringent causal
connection.
Reading the phrase “obtained in a manner” as imposing causation requirements creates a host of difficulties.
A 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.
R v Goldhart (1996) SCC
Goldhart: police go in on unconstitutionally obtained warrant, which is executed and they located Goldhart
and a guy named Meyer.
-You have to excise the perimeter search Goldhart gets evidence excluded the evidence was excluded.
-Meyer several months after arrest undergoes a religious conversion and decides to confess against
Goldhart and cooperates with the police. He pleads guilty and testifies against Goldhart.
-Issue is whether Meyer‟s testimony was obtained in a manner that violated the Charter.
Here there is a clear causal connection. Only b/c they executed the unlawful warrant did they learn about
Meyer. There is but for causation.
The temporal connection is somewhat remote. The moment we have to focus in on his is religious
transformation. Maybe the case would have been different had he immediately implicated his co-accused b/c
he was scared by the police.
R v Collins (1987) SCC
Facts: Chokehold used on Ms Collins when she was searched and the recovery of a balloon containing
heroin from her clenched hand during that search.
Issue:
Ratio: In assessing whether the admission of unconstitutionally obtained evidence could bring the
administration of justice into disrepute, a judge should have regard to "all of the circumstances”.
The relevant factors can be grouped into one of three categories:
1) Trial fairness;
2) The Seriousness of the Violation; and
3) Effect on the Reputation of the Administration of Justice in Canada
Analysis: Trial Fairness:
Will the admission of the evidence undermine the fairness of the trial?
A trial will be rendered unfair if the accused is confronted With conscripted evidence, such as an
unconstitutionally obtained statement, or other evidence emanating from the individual. (A key component of
a fair trial is one that does not have the accused incriminating himself /providing evidence against himself in
the trial)
Such evidence should usually be excluded because nothing undermines the integrity of administration of
justice more than an unfair trial.
Draw a distinction between conscripted evidence and “real” evidence, the latter is not obtained through self-
incrimination and its admission will generally not impact on trial fairness.
- a statement though is conscriptive, emanates from his head. Police can‟t find it otherwise
without having him incriminate himself.
- Nothing in a Serious case salvages conscriptive evidence
Seriousness of the Violation
Did the violation occur in good faith (inadvertent) or was it deliberate, willful or flagrant?
Was the violation motivated by urgency or necessity to prevent the loss or destruction of evidence?
Was the police conduct in violation of well-established constitutional requirements?
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The availability of other constitutional investigative routes will render the violation more serious (Collins), but
proceeding unconstitutionally where no lawful investigative options exist has also been characterized as
having the same effect (Kokesch).
-In Kokesch they didn‟t have any other options but unconstitutional perimeter search, but that‟s
serious too b/c in those circumstances you should leave the individual alone.
Quote from Therens.
-Did violation occur in good faith? Was it motivated by urgent circumstances and necessity. Was it in
violation of a well established requirement or a new rule that is being developed in this case.
GOOD FAITH? In some cases there is good faith when officer is relying on legislation or common law
doctrine and unbeknownst to him it was unconstitutional and being struck out in this particular case.
HOWEVER, courts a reluctant to constitute honest mistakes as good faith as it would encourage inadequate
training of officers if they can rely on that excuse.
Effect of Exclusion
The long term effect on the repute of the administration of justice of admitting or excluding evidence in
analogous circumstances must be considered.
A serious offence and a technical breach counsel in favour of admission. –It would actually bring the
administration of justice into greater disrepute if someone could go free of a murder due to a minor technical
breach. Court seems to take all Charter breaches seriously.
In contrast, a serious breach and a minor offence counsel in favour of exclusion
although the idea of repute is related to community perception, the determination should not
be based on the majority opinion which is always likely to convict him and leave the
evidence in!
In the eyes of the reasonable person, dispassionate and fully apprised of the circumstances,
the standard seems more like reasonable jurist.
Reasonable person is usually the average person in the community but when that
community‟s mood is reasonable
Evidence that impacts a trial‟s fairness is NOW automatically excluded. We don‟t even go into consideration
of the other two factors (seriousness and effect).
-This is directly counter to the drafting of 24 (2) which was to avoid an automatic exclusionary rule. 24(2)
says having regard to all the circumstances. This interpretation elevates one consideration above the others!
Debate: Puts the right to counsel above all other rights in the Charter. A hierarchy of rights. 10 b at the pinnacle of rights
and S.9 in the middle since it often involves a confession but S.8 is dropped down to the bottom. S.8 is always physical
evidence being search or seize.
-court views the right to counsel in especially privileged terms. But to Strib the right in S8. seems equally as important. It
can be profoundly intrusive to have your S.8 rights violated while the S,10 b rights can be more minor.
Trial Fairness Revisited - R. v. Stillman (1997) SCC
Facts: 17 year old accused arrested for brutal murder of a teenage girl. At the police station the accused‟s
lawyers informed the police by letter that he was not consenting to provide any bodily samples, including hair
or teeth nor would he give any statements. Once the lawyers left, police officer took under threat of force
scalp hair samples and he was made to pull some of his own pubic hair. Plasticine teeth impressions were
also taken. A police officer then interviewed the accused for an hour to obtain a statement. He cried
throughout the interrogation, went into washroom to blow his nose and threw tissue in garbage. Police
seized the tissue to test his mucus.
-This was all before Parliament passed the legislative section for DNA retrieval.
Issue: Should evidence be excluded? Court already concluded that the taking of the dental impressions, hair
samples, buccal swabs and the seizure of which interfered with bodily integrity, all without legal authority. In
addition the seizure of the mucous was held to violate S.8.
Ratio:
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Abandon the “conscripted” vs. “real” evidence distinction.
"Conscriptive evidence" necessarily undermines trial Fairness and must therefore be excluded, while non-
conscriptive evidence doesn't and its admission turns on the other two sets of factors.
Evidence will be characterized as "conscriptive" where following a Charter violation an accused is
“compelled” to participate in the creation or discovery of self-incriminating evidence, at the behest of
the state, by:
i) providing a statement;
ii) the use of the body; or (impression, fingerprint, putting you in line up)
iii) the production of bodily samples.
“Compulsion” appears to include:
• being asked or requested (Feeney);
• directed; or
• forced.
Compulsion sounds quite coercive. How is someone who doesn‟t have the right to counsel read to them
compelled to incriminate themselves?
Feeney gives the definition of when the compulsion line is crossed. It‟s crossed pretty easily, if they ask you
a question or make a request. As passive as just talking to you.
-By compulsion they mean you are being put to work against yourself; not so much what the state is
forcing you to do. And you are required to incriminate yourself.
Evidence that is not characterized as “conscripted” is not dealt with under trial fairness, and proceeds for
consideration under the second and third sets of factors
Stillman jettisons the real evidence label. “Real” Evidence doesn‟t exist anymore. What matters is whether
evidence is conscripted or not conscripted. The evidence at issue consisted of hair samples (scalp, pubic)
dental impressions, swabs from his mouth.
Para 72 makes it clear when it undermines trial fairness it is AUTOMATICALLY EXCLUDED.
Conscriptive evidence necessarily undermines trial fairness and is automatically excluded.
“Derivative” evidence - is also “conscripted” evidence:
Term used to describe “conscripted” real evidence
• Involves a Charter violation whereby the accused is conscripted against himself (usually in the form
of an inculpatory statement) which then leads to the discovery of an item of real evidence. In other
words, the unconstitutionally conscripted statement is the necessary cause of the discovery of the
evidence.
• The admission of such evidence will also always count as conscripted and its admission will render
the trial unfair, UNLESS the Crown shows, on a balance of probabilities, that:
1) there is an independent source of the evidence; or
2) the evidence is inevitably discoverable
If the accused‟s statement is not the necessary cause (i.e. but for cause) of the evidence, then it is not
classified as derivative and it moves directly to prong two and three of Collins (Feeney).
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Analysis: Any invasion of the body is an invasion of the particular person. Indeed it is the ultimate invasion of
personal dignity and privacy. It‟s repugnant to fair minded men and women to think that police can without
consent or statutory authority take or require an accused to provide parts of their body or bodily substances.
Burlingham case: After intensive and unconstitutional interrogation he tells police that the murder weapon is
at the bottom of a frozen river. The gun should not be treated as “Real” evidence but rather it should be
viewed as a conscriptive or self incrimination evidence. It “DERIVES” from the accused.
Requires some speculation on the part of the court. What if there was a video tape he confessed to at his
girlfriend‟s house. But it turns out they broke up 3 days before and she testified she would have brought it in.
-Or if crown can show evidence would have been inevitably discovered.
Ex: he gave blood but wasn‟t read rights. But police showed they had adequate grounds to get a warrant
anyways and would have had he not volunteered. It can still be excluded though it just stays out of trial
nd rd
fairness box, and then goes to the analysis of 2 and 3 groups.
Talking about Trial Fairness. If something gets pushed into that box it is automatically tossed out.
Court concludes in Stillman that the evidence wasn’t inevitably discoverable. At the time there was
no DNA warrant scheme.
Dissent: McLachlin and HD note that automatic exclusion contradicts the express language in 24 (2).
The fact that one factor trumps the others makes them superfluous.
R v Feeney (1997) SCC
Facts: Our friend in the trailer who was charged with murder. Police unconstitutionally search his trailer and
interrogate him.
Issue: Is the money they find under his bed conscripted evidence? As they learned of it from his statement
and therefore subject to automatic exclusion as violating the fairness of the trial?
Ratio: If the accused statement is not the necessary cause (ie but for cause) of the evidence, then it is not
nd rd
classified as derivative and it moves to the 2 and 3 prongs of the Collins test.
-The police would have search his trailer anyways and looked under the mattress. It was inevitable, this isn‟t
like in Burlingham with a gun at the bottom of a river.
Strib Notes:
I sense that you are not alone. Remember, all we were talking about today with respect to our discussion of
Stillman and Feeney is whether evidence should be classified as conscripted or non-conscripted. That is,
we were only talking about the first step in determining the admissibility or exclusion of unconstitutionally
obtained evidence. For evidence that is not characterized as conscripted, there are still two more sets of
factors to consider (seriousness of the violation & effect on the repute of the administration of justice). Let's
take the example of the money located under Feeney's mattress, which the police located after Feeney told
them about it in his unconstitutionally obtained statement. The statement itself is clearly conscripted, and
therefore is subject to automatic exclusion. Is the same true of the money? In other words, given that the
statement led police to the money, isn't the money essentially just as "conscripted" as the statement? This
will depend, says the Court, on whether the police would have found the money absent Feeney's statement.
According to the Court, the police would likely have torn apart the trailer, even without first obtaining a
warrant. As a result, the fact that Feeney mentioned the money in his statement doesn't mean the money
should be treated as the equivalent of his statement. In other words, the police would have come across the
money in any event, his statement was not the necessary cause of the money's discovery. Therefore, the
money is not conscripted derivative evidence and it is not automatically subject to exclusion. That said, the
money is still unconstitutionally obtained evidence. (I think this is the point you are missing.) Its admissibility
will still depend on an application of the second and third set of factors from Collins, i.e. the seriousness of
the violation(s) that led to the acquisition of the evidence and the impact of exclusion / admission on the
repute of the administration of justice. In the end, the money was excluded - but not because its admission
would undermine "trial fairness". Rather, because the violations were considered serious and the majority
was of the view that the repute of the administration of justice would be adversely effected by admission. The
gun at the bottom of the river in Burlingham was treated differently, it was characterized as conscripted
derivative evidence and therefore it was subject to exclusion without consideration of the seriousness of the
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violation and the effect on the repute of the administration of justice. In Burlingham, the accused's statement
led police to the gun at the bottom of the river. There was nothing to suggest that the police would have
found that gun (through any means, constitutional or unconstitutional) without the accused's statement.
Therefore, the statement was the necessary cause of the discovery of the gun. The gun was therefore
conscripted derivative evidence. As a result, it was subject to automatic exclusion, unless the Crown could
show either: 1) that it was inevitably discoverable through constitutional means (again, given the unlikelihood
of police dragging the river, the answer was obviously no); or 2) that there was some independent source
that would have led them to it (nothing to suggest as much). In theory, the Crown can always try to get what
initially appears to be conscripted evidence out of that category if it can show either one of these two things.
In the case of conscripted derivative evidence, the gun in Burlingham, once you conclude that the violation
was the necessary cause of the discovery of the evidence, then by implication you will also logically conclude
that the evidence was not inevitably discoverable or available through some independent source. (If it had
been, you wouldn't have concluded that it was conscripted derivative evidence because the violation would
not have been the necessary cause of its discovery).
R v Mann: (2004) SCC
Facts: SCC first endorsed the investigative detention power and also the limited protective pat down search.
Police went beyond the preventative pat down to find marijuana in his pouch.
Ratio: There is no automatic inclusion rule
Analysis: This was not conscriptive evidence and thus didn‟t implicate the fairness of the trial. Nevertheless
b/c the seriousness of the violation and the effect on the repute of the administration of justice it was
excluded!
-Some lower courts would treat conscriptive evidence as automatically out and then non-conscriptive
evidence as automatically in. This ruling shows that‟s not acceptable and you have to go through the
analysis.
Time Limitations
Limitation Periods
• There are very few “limitation periods” in Canadian criminal law, i.e. a point in time past
the offence after which charges cannot be brought
• Summary proceedings are subject to a six month limitation period (s. 786(2)), but offence is
hybrid the Crown can always avoid it or the accused may waive it
• Treason, 3 year limitation period (s. 41)
• Most provincial offences are subject to a 6 month limitation period (Provincial Offences Act,
R.S.O. 1990, c. P.33, s. 76(1)
-in some true summary offrences there is no option and if they are out of time they are up shit’s
creek.
S.786 2) No proceedings shall be instituted more than 6 months after the time when the
subject matter of the proceedings arose, unless the prosecutor and defendant agree.
The only time you would agree to it if they promise not to proceed under indictment
Pre-Charge Delay & Prejudice
• A delay between an alleged offence and the laying of a criminal charge, even a long delay,
may be of no consequence
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• If because of the delay an accused cannot make full answer and defence to the charge, i.e.
have a fair trial, then a court could intervene (L.(W.K.))
• Relief subject to same standards that apply to lost evidence case where no state negligence,
i.e. R. v. La
• Require showing irreparable prejudice to ability to make full answer and defence
• Stay possible, but not guaranteed because of Regan
Regan seems to suggest whether you are dealing with abuse or irreparable prejudice to make full
answer and defence the court still has to go onto the last category to see if the balance of interests
favours a trial or not.
-maybe they will say its such a serious charge the public deserves a trial on the merits and it
will trump the fair trial concern. (Not really gonna happen but mention it on exam)
Right to Trial Within a Reasonable Time
Section 11(b) provides that : “Any person charged with an offence has the right to be tried within a
reasonable time.”
-For all offences, bylaws anything!!! You should do this with tickets in Toronto.
-Americans have 6th amendment the right to a speedy and public trial.
-generally we all have an interest to see that ppl are charged and tried in a reasonable time. We
want justice to be expedient. We don’t want ppl out re-offending. Victims need closure.
R v Askov (1990) SCC
-The court identified a number of factors to be used in determining whether the delay in bringing an accused
to trial has been unreasonable.
a) The length of the delay; b) The explanation for the delay; c) waiver d) prejudice to the accused
-There is no requirement for prejudice for someone‟s 11 b rights to be violated. The court said once you get
to a certain point, prejudice will be assumed.
-SCC said acceptable delay was 6-8 months. The effect was nearly 50 000 cases stayed in Ontario alone.
R v Morin (1992) SCC
Facts: A re-examination of the Askov ruling. After being charged with driving while impaired on her
scheduled trial date the accused brought a motion for a stay to the proceedings pursuant to S. 24 (1) of the
Charter prior to entering a plea arguing the 14 ½ month delay in bringing the accused to trial infringed her
right under S 11 (b).
Issue: What is a reasonable time to be tried in?
Ratio: In Askov & Morin SCC endorses a balancing approach, not a mathematical formula. Relevant factors include:
• length of the delay;
• waiver of right, globally, or with respect to specific delays; (if D counsel just waive 11 b
rights for period of delay not globally.
• reasons / explanations for delay;
• inherent time requirements of case;
• actions / conduct of accused;
• actions / conduct of Crown;
• institutional delay;
• other reasons for delay; and
• prejudice to accused.
Although there is no mathematical formula, the Court does setdown “guidelines” for institutional delay:
• for cases in provincial court, from first appearance to trial or committal to stand trial, 8 to 10 months;
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• once cases are in superior court, from first appearance to trial, 6 to 8 months; Still these are not to be treated as
a limitation period and thus inflexible.
Delays that are part of inherent time requirements of the case or due to actions of accused, get deducted
Delays attributable to Crown get added
If what remains exceeds guidelines, than case is in the zone of unreasonable delay
In such cases, actual prejudice to accused may be the determinative factor
Analysis: While 14 ½ months is hardly a model of dispatch it may be excusable in suitable circumstances.
Nothing in the record to suggest that the Crown was in any way dilatory in proceeding in this matter.
Most important factor was institutional delay, the system could not accommodate them. The court looks at
the huge increase in caseload in the Peel region where this took place.
There was no prejudice to the accused, the delay was not unreasonable.
R v Kalanj (1989) SCC
-Held that time begins to run under section 11 b when a person is charged with an offence which occurs
when an information is actually sworn alleging an offence or a direct indictment is laid when no information is
sworn.
R v L (WK) 1991 SCC
Facts: accused was charged with numerous sexual offences against his daughter dating back over a 30 year
period.
Issue: Pre-Charge Delay
Ratio: Staying proceedings based on the mere passage of time would be the equivalent of imposing a
judicially created limitation period for criminal offence.
Analysis: If anything a significant delay may operate to the advantage of the accused since Crown witnesses
may forget or disappear.
It takes great courage for victims of sexual abuse to come forward. It proceedings were to be stayed solely
on the passage of time it would suppress the reporting of incidents.
Territorial Limitations
(In a Nutshell)
• Generally, Code only asserts jurisdictions over crimes “in” Canada, there are exceptions, i.e.
certain sexual offences involving children, offences on planes and vessels registered in
Canada etc.
• Similarly, offences are to be tried within province where they occurred, again there are
exceptions, i.e. on or close to boundary, in vehicle traveling between provinces etc.
• Within provinces all courts have jurisdiction, but custom is for court in territorial division
where offence occurred to deal with case
• Crown can always move case (s. 470), i.e. forum shop - accused must bring change of venue
application - rarely granted (s. 599)
The Adversary System
Underlying Basic Assumptions:
1) That the investigative and adjudicative roles are inherently incompatible, therefore the judiciary
must be absolutely passive, only then can it be impartial;
2) That the adversarial contest is most likely to yield the truth about an event. It is only when
equally pitted adversaries advance their respective cases, all the while tearing down that of their
opponent, will the “truth” emerge.
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Jerome Frank Article: Courts on Trial
-Questions the adversary system of zealous partisan lawyers.
-You can make truthful witnesses look untruthful and lying ones appear credible.
-Objectiveness of judges and juries
-Trial like going to war against each other. Some feminists argue it‟s an inherently male
construct.
Professional Responsibility:
The Roles of Crown and Defence Counsel
In Theory
• quasi- ministers of justice
• don’t win or lose
• role to facilitate administration of justice
• role that excludes any notion of winning or losing
• may be firm, but always fair , not over zealous!
In Practice:
• obligations as advocate can overwhelm
• like all lawyers, want to win
• tunnel-vision
• “white hat” syndrome
• can overreach
Lord Brougham “The barrister is to proceed without regard to the alarm, the suffering, the torment,
the destruction, which he may bring upon any other.
Duty to Client: Come to court fully informed and well prepared. Keep abreast of amendments to
criminal laws and decided cases.
Duty of Confidentiality: Never divulge any information about the client to anyone unless expressly
or impliedly authorized by the client to do so.
The defence lawyer’s ethical balancing act:
The defence lawyer must continually balance the following competing duties, which invariably pull
him/her in different directions:
• the duty to one’s client, especially the duty of confidentiality;
• the duty to the court, in particular not to knowingly mislead the court;
• the duty to society, practicing law not a license to violate the law;
• the duty to oneself, you aren’t just the client’s hired gun
Lord Broughman originally thought there were no constraints on what a defence lawyer could do.
What has remained constant it although there are conflicting duties a pre-eminent duty is owed to
the client!
-There are competing duties
Duty to the client is tempered by other obligations like duty not to knowingly mislead the court.
Duty to society, you can’t do illegal things when representing your client.
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It’s not our concern that a guilty person will hold back info, but that an innocent person falsely
accused will be apprehensive about speaking. We don’t want innocent person scared to share info
that can exculpate them.
The chilling effect, maybe ppl won’t even exercise their right to counsel
Circumstances where you know a client is going to commit a crime.
-when a lawyer has knowledge it allows a lawyer (p599) to make disclosure of that fact in order to
prevent the commission of the crime.
Smith and Jones exception: You don’t have an obligation to reveal it. If there is an imminent risk to
an identifiable person
Only entitled to disclose the threat to a person.
Can you defend someone who you know for a fact is guilty? This means they told you they did it!
-The rules of professional conduct contemplate you can represent someone who confessed their
guilt there are just certain limitations on what you can do.
-You can’t put forward a false alibi, or imply someone else did it. You can’t an
affirmatively false defence forward. Can’t call any evidence you know to be false.
-You still can challenge the crown who bears the evidentiary and legal burden. Raise a reasonable
doubt!
If clerk testifies person who robbed him was 6 feet and your client is 5’7. That’s admissible.
What you can’t do is say it HAS to be someone else cause your client isn’t 6’0.
Carefully word it, clerk said person was 6, we have evidence my client is 5’7 and it’s my
submission that it’s RD.
-If you call a witness that you know is lying you are arguably a party to perjury.
Judge will let you withdraw if you have to.
-You can’t continue asking questions that you know elicit false testimony.
-When the witness isn’t your client and he’s lying you have to correct the misapprehension. There
is no duty of confidentiality.
3 Things the client has control over:
1) Do they plead guilty or not guilty – you cannot advise them to plead guilty if they insist they are
not. It’s perpetrating a falsehood on the court.
2) Whether to have a jury or judge alone trial. –you can advise but it’s their decision
3) Whether or not to testify. –again you can advise
Duty to Society:
R v Murray (2000) SCC
first lawyer that represented Bernardo.
Retrieved video tapes from his house and brings them back to his office. Homolka makes a deal and agrees to testify
against Bernardo. After that happens Murray views the tapes and they show the gross sexual abuse of both victims.
Murray withdraws from the case. Claims he did it when Bernardo would not let him hand the tapes over.
-Tapes were turned over.
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Murray was charged with obstructing justice for holding back the tapes from when he took them from the hidden area to
ultimately surrendering them to the court. His failure to hand them over, precluded the crown from using them in
deciding to make a deal with Homolka.
AR: he did obstruct justice:
He’s acquitted b/c judge has RD has to whether Murray appreciated that by what he was doing crossed the line and
amounted to obstruction of justice. He claimed he was gonna use it at trial to impeach Homolka’s testimony.
Plea Bargaining and the Plea
-Any agreement by the accused to plead guilty in return for the promise of a benefit.
-The word bargain conveys the message that justice is a commodity and it can be bartered…prefer to call it resolution
discussions now.
Many types: Explicit bargaining, implicit bargaining, charge bargaining, fact bargaining and sentence bargaining.
Benefits of plea bargaining:
a) Necessity/Efficiency based arguments
b) Accused best interest – lower sentences, certainty of outcome
c) Efficient Prosecutor’s Officer
d) Interests of Society –can save trial time for novel and new cases to advance common law
e) Victims of Crime: save them from re-victimization
Against Plea bargaining:
-Seen as unprincipled circumvention of the proper adjudicative process
-Imposes penalty for trial “entertainment tax”
-Systemic problems due to delay in getting a trial. If I plead guilty I walk, if I want a trial 6 more weeks in jail? Could
lead to innocent ppl pleading guilty. Immediate freedom for guilt vs continued incarceration for a claim of innocence is
perverse.
-Details are not disclosed and subject to public scrutiny it is done in the halls and backrooms.
The Plea can come at any time during the criminal proceedings.
Adgey v The Queen
Facts: 2 appearances in court without counsel, had duty counsel at the 3 rd. He plead guilty, judge asked is facts are
substantially correct he says yes. When asked for his version of the facts he gives evidence which suggests that he is
not admitting some of the essential elements and may have a defence.
Issue: Should trial judge have not entered the convictions?
Ratio: 3-2 Verdict.
Analysis:
Majority: Dickson – the trial judge has the discretion to strike or accept the plea before him. The CA must show
deference
Minority: Laskin – It’s mandatory for the trial judge to inquire if duty counsel has had the opportunity to consult with
the accused and ascertain the factual bases of the charges. The court may refuse to accept a guilty plea and shall
without first addressing the defendant personally to make sure it’s voluntary and he understands the nature of the
charge.
An appellate court should interfere to set aside a conviction made upon a guilty plea if
1) The accused did not understand the nature of the charge before pleading
2) The accused did not unequivocally plead guilty to the charge as understood
3) The accuse don the facts offered in support of the charge, could not in law have been convicted of the
offence charged
Section 606:
(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and
no others.
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(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
(b) understands
(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 theconditions set out in subsection (1.1) are met does not affect the
validity of the plea.
S.606 essentially codifies the dissent and makes it the law!
R v Rubenstein
Facts: He plead guilty but judge said that plea was unacceptable and he was going to give a more severe punishment and
Ruben tried to withdraw his plea.
Issue: Can accused withdraw his plea?
Ratio: Once you plead guilty you do so knowing the court is not bound by any agreement made.
Analysis: The appellant was fully aware of his legal rights and was represented by competent and experienced legal
counsel. Don’t want to allow an accused to keep withdrawing his plea until he finds a malleable judge. It is judge
shopping to the extreme.