CRIMINAL PROCEDURE SUMMARY by 344627J4

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									                       CRIMINAL PROCEDURE SUMMARY

JURISDICTION
   legislative division of powers
            o Constitution Act, 1867
                    s. 91(27)—gives federal government power over the criminal law,
                       including criminal procedure
                    s. 92(14)—gives the provinces power over the administration of justice,
                       including the constitution of the courts
            o Criminal Code of Canada—federal statute
                    s. 2—definitions
                            i.e. Attorney General—provinces prosecute Criminal Code
                               offences, and feds prosecute other federal legislation (drugs)
   classification of offences
            o summary conviction offences
                    penalty—s. 787(1)
                            general--$2000 fine and/or 6 months imprisonment
                            specific—s. 271, s. 267 (penalties increased to 18 months)
                    court—provincial court before provincial court judge
                    time limitations—s. 786(2) specifies 6 month limitation period
            o indictable offences
                    no prescribed time limitation
                    penalty—provision sets out maximum (2, 5, 10, 14, life)
                    court
                            s. 471 offences—has to be judge and jury unless both parties
                               consent (s. 473)
                            s.469 indictables—most serious offences
                                   o exclusive jurisdiction of the superior court
                            s. 553 indictables—least serious offences
                                   o absolute jurisdiction of provincial court
                                   o not exclusive—superior court still has jurisdiction
                                            taking away option from accused, not court
                            every offence not in these sections—electable indictables
                                   o accused has choice of mode of trial—combined operation
                                       of s. 554 and s. 536(2)
                                            judge alone in PC
                                            judge alone in SC—preliminary inquiry
                                            judge and jury in SC—preliminary inquiry
                                            no election—judge and jury (s.565(1)(c))
            o hybrid offences—Crown can try them either way
                    Code specifies that offence can be tried as either
                    consequences of choice—prelim, juries, penalty
                    factors influencing choice—gravity of offence, prior history of accused,
                       cost and brevity (for frail witnesses), time limit of summary offences
   territoriality—jurisdiction over the offence
        o offence must have occurred in Canada and in the place where trial is to be held
        o “in Canada” requirement—s. 6(2)
               exceptions for Crimes Against Humanity—but need a excepting law
        o regional requirement—locality principle
               historically, crime prosecuted locally in community that suffered crime
               debatable today in light of jury impartiality
               main rationale—convenience to witnesses, and justice to community
        o s. 478(1)—offence entirely done in one province shall not be tried in another
        o s. 476—the grey areas (concurrent jurisdiction)
               where offence deemed to have been committed on boundary, or in two
                  separate territories, both territories have jurisdiction over the offence
        o s. 478(3)—guilty pleas in combination with s. 479
               consent of local prosecutor to accept guilty plea for offences committed in
                  another province
        o Re Bigelow and R. (1982) (Ont. C.A.)
               charge of abduction—transprovincial aspect to the offence
               court ruled that offence was not committed wholly in Alberta (or else the
                  Ontario Court would have no jurisdiction)
                      committed partly in both provinces
               concurrent jurisdiction—did any part of it occur in Ontario
                      look to three categories where concurrent jurisdiction arises
                              o continuity of operation—criminal action begins in one
                                  district, and is continued and completed in another
                              o commission of an overt act
                                       province can assume jurisdiction when overt acts
                                           referable to or in furtherance of a criminal act
                                           extending beyond a specific province are committed
                                           in that province
                              o generation of effects in another province


STRUCTURE OF THE CRIMINAL COURTS
       trial courts—two levels
                o provincial courts—entry level courts
                         no juries—judge alone
                         sole jurisdiction over summary conviction and prelims; jurisdiction
                           over most indictables
                         YOA offences—the judges are Youth Court judges
                o superior courts
                         preside over trials proceeding by way of indictment
                         juries are possible
                         operating charging document/pleading is the indictment
       appellate courts
                o first level is the Superior Court—where trial held in Provincial Court
                o second level is Court of Appeal—where trial held in SC, or PC (with
                    leave)
                   sits three justices—reviews legal errors
           o third level is the Supreme Court of Canada
                   appeals where leave granted, or as of right where justice dissents on
                     a point of law in the provincial Court of Appeal
   the charging document in courts
           o information—issuing process
                   usually JPs—police officer (sometime citizens) swears on RG that
                     person named committed the offence listed therein
                   history in the PC
           o indictment—replaces information as the charging document if case goes to
               SC
PRE-TRIAL PROCEDURES – INVESTIGATION

Charging and Compelling Attendance in Court

1.     Powers of an Individual
 any individual can attempt to initiate a criminal prosecution by laying an information in
writing and on oath before a justice who receives and has discretion to decide whether the case
is made out to compel the accused to attend and answer the charge by issuing a summons or an
arrest warrant
 two steps
          o ministerial—receive the information
          o judicial—issuing process
 R. v. Pilcher—the requirements of a valid information and duty of the informant
          o facts
                   accused is a police officer who made a motion to quash an information
                     laid by a detective alleging theft of firearms
                   informant swore that he had “reasonable and probable grounds to believe
                     and does so believe the allegation” in the information
                   the informant by the Crime Superintendent to go to the Crown Attorney’s
                     office and obtain a draft information, and then go to the Clerk’s office and
                     have the draft typed and information sworn
                   neither the superintendent nor the Crown Attorney discussed the case with
                     the informant, nor did they give him any details regarding the
                     investigation
                   overall, he swore an information but knew nothing about the case
          o issues
                   were there reasonable and probable grounds to believe the allegations?
          o decision
                   what does the term “reasonable and probable grounds” mean?
                   one definition—an honest belief in the guilt of the accused based upon a
                     full conviction, founded upon reasonable grounds, of the existence of a
                     state of circumstances, which, assuming them to be true, would reasonably
                     lead an ordinarily prudent and caution man, placed in the position of the
                     accuser, to the conclusion that the person charged was probably guilty of
                     the crime alleged
                   Peavoy and Sanderson cases—accused must discharge the onus of proving
                     by a preponderance of the evidence that the informant did not have
                     reasonable and probable grounds
                   additionally, in Peavoy the Court set out some of the duties and
                     responsibilities of informants
                          the informant need not have personal knowledge of the facts
                              supporting the allegation; he need only have reasonable grounds
                          he must be satisfied that there is some evidence to support the
                              charge, that the evidence in fact constitutes reasonable and
                              probable grounds for believing the accused committed the offence
                              and that he believes the accused did so
                           objective here is to protect citizens from frivolous and baseless
                              accusation from authorities—the right to be left alone
                   the Court decides here that the informant was not entitled to lay the
                      charges on the mere say so of the Superintendent and Crown attorney
                           a true informant acts prudently and cautiously, apprises himself of
                              the relevant circumstances of the case which he reasonably and in
                              good faith believes to be true and concludes with a genuine
                              conviction that the person to be charged is probably guilty
                   by merely reading what appears in a draft information, he could not
                      perform these duties and thus the information is invalid and quashed for
                      want of jurisdiction
   R. v. Jeffrey—the duty of the justice
           o facts
                   accuseds, charged with unlawfully keeping liquor for sale, object to the
                      judge’s jurisdiction over their persons to deal with the charges by reason
                      of the manner in which process was issued
                   detective went before the justice, requested that information be prepared,
                      provided the name of the defendant, the relevant section of the Act, the
                      date of the offence, signed the information, swore on the Bible that they
                      were true, and the JP endorsed them, and then issued summons
                           the justice did not “hear and consider, ex parte, the allegations of
                              the informant” as required by s.455.3(1)(a) of the Code before
                              issuing an arrest warrant or a summons to compel attendance
           o issues
                   are the summonses invalid because the justice did not act in accordance
                      with s.455.3(1)(a)?
           o decision
                   “hear” in that section does not mean to “read” or “see” the allegations in
                      the information; it means actual auditory perception
                   JPs are required to perform two separate functions
                           a ministerial function—s. 504
                                  o “receive”—means that the justice will not reject a
                                      complaint that is in writing and which complies with the
                                      requirements in the relevant section
                                  o about the requirements of the information laying process
                           a judicial function—s. 507
                                  o “hear and consider”—conduct an inquiry for the purpose of
                                      determining whether a summons or warrant shall issue
                                  o about the requirements of the issuance of judicial process to
                                      compel an accused’s appearance before the Court
                   the purpose of s. 507 is to place a judicial officer between the informant
                      and the accused to ensure that the liberty of the subject was secure from
                      unwarranted intrusion
                         the means of accomplishing this are requiring the judicial officer to
                          actually hear and listen to the allegations of the informant—simple reading
                          would not allow the judicial officer to be informed in a manner which he
                          is obliged to be informed to protect the accused person
                      in this case, the justice did not hear and consider the allegations, and thus
                          he could validly compel the attendance of the accuseds via summonses,
                          and so the summonses are defective, and case fails for want of jurisdiction
    Re Buchbinder and Venner
            o justice received an information against “unknown persons to be pointed out”, and
                 later issued a subpoena commanding attendance of Venner to give evidence
            o Venner applied for writ of prohibition—denied
            o conceded that information was defective for failing to name a person, or
                 sufficiently describe one for identification, and that summons could be issued, but
                 argued that it was still adequate to give the JP jurisdiction to conduct a hearing
                 and compel witnesses to attend
            o Court rejected this argument
                      judge does not have an investigative function, but a judicial one—that is,
                          testing the quality and sufficiency of evidence
                      JP must at least be confident that he is dealing with a particular person,
                          who has been named or described with specificity so as to be identified
    citizen arrest without warrant—governed by the Code (s. 494)
            o any one may arrest without warrant a person found committing an indictable
                 offence or a person who, on reasonable grounds is believed to have committed a
                 criminal offence and is escaping and being freshly pursued by persons who have
                 lawful authority to arrest that person
            o extension—s.494(2)
                      lawful possessors of property or those they authorize may arrest without
                          warrant a person found committing a criminal offence in relation to that
                          property
    peace officer arrest without warrant—governed by the Code (s. 495)
            o peace officer may arrest without warrant a person who has committed an
                 indictable offence, or who he believes on reasonable grounds has committed or is
                 about to commit an indictable offence; or a person found committing a criminal
                 offence; or a person he believes on reasonable grounds has a warrant outstanding
    caveats—s. 495(2)
            o shall not arrest without warrant for s. 533 indictable
            o shall not arrest without warrant for a hybrid offence, or a summary offence
            o shall not arrest in any case where he believes that the public interest
                 (identification, preserving evidence) may be satisfied without arresting the person
                 and he has no RPG to believe, if he does not arrest, the person will fail to appear

2.     Arrest and the Constitution
   people have the right to be left alone—only superseded by the state’s interest in preventing
crime where credibly-based probability replaces suspicion (Hunter v. Southam)
 R. v. Storrey—the requirements of a lawful arrest
           o police are required to have reasonable and probable grounds to believe that the
               accused committed the offence before arresting
                    these grounds have to be demonstrated to a judicial officer for the arrest to
                      be valid
           o it is not sufficient for the police officer to personally believe that he or she has
               reasonable and probable grounds to arrest—it must be established objectively that
               those grounds did exist
                    i.e. a reasonable person, in the shoes of the officer, would have believed
                      that those grounds existed to make the arrest
   R. v. Biron—interpreting s. 495(1)(b): “found committing” means “apparently committing”
           o facts
                    accused is arrested in a raid for refusing to cooperate with police and give
                      his name
                    he refuses to get into the police wagon, and got into a scuffle with police
                    he is charged with creating a public disturbance and resisting a peace
                      officer
                    subsequently, he is acquitted of the disturbance charge and appeals the
                      resisting charge
           o issues
                    does the charge against the accused of resisting a peace officer fail
                      because of his acquittal of the disturbance charge?
           o decision—majority
                    accused argues that he could not be convicted of resisting because he was
                      not under lawful arrest, and so was entitled to resist the officer’s efforts to
                      take him into the wagon
                           the arrest was not lawful because the officer did not find him
                              committing a criminal offence since he was acquitted on the charge
                              laid against him
                    Court rejects this argument
                           peace officer may arrest without warrant any person he finds
                              committing a criminal offence—includes summary offences
                                   o his power of arrest is based on his own observation—no
                                       reason to refer to reasonable and probable grounds because
                                       it is based on his own discovery of a crime actually being
                                       committed
                           accused’s argument, if followed, would mean that the validity of
                              an arrest under s.450(1)(b) can only be determined after the trial of
                              the person arrested and after the determination of any appeals
                           Court finds that validity of an arrest must be determined in relation
                              to the circumstances which were apparent to the peace officer at
                              the time the arrest was made
                           power of arrest given in the section has to be exercised promptly,
                              yet, strictly speaking, it is not possible to say that an offence has
                              been committed until the party arrested has been convicted
                                  o that means that no peace officer can ever decide, when
                                      making an arrest without warrant, that the person arrested is
                                      “committing a criminal offence”
                          so, the Court interprets the section to mean that the power of arrest
                              without warrant is given where the peace officer himself finds a
                              situation where a person is apparently committing an offence
                          here, the officer found the accused committing an apparent
                              offence, so the arrest was lawful and the resistance was unlawful
           o decision—dissent
                   Laskin sees s. 450 as a “shield” to protect officers from criminal or other
                     liability by immunizing them in specified circumstances for arrests they
                     have made
                          not as a sword for providing a basis upon which an accused may
                              himself be convicted of resisting an arrest
                   no textual or policy reasons for reading “apparently” into the section—if
                     so, it should be read into the other related sections, where its addition
                     would make no sense
                   words “reasonable and probable grounds” are omitted from the section,
                     but are included in (a) and (c), and there is no reason to include them or
                     their equivalent, “apparently” into the section
                   the law has long held that a citizen has the right to resist unlawful arrest,
                     as long as he does not use excessive force
                          his resistance may be at his own risk if the arrest proves to be
                              lawful, but so too must the officer accept the risk of having
                              effected a lawful arrest
   Roberge v. R.—Lamer’s decision
           o “apparently committing” was the same as having RPG for believing that an
              offence has been committed
   R. v. Duguay—the unlawful arrest is not necessarily arbitrary within meaning of s.9 (CRF)
           o facts
                   police arrested the accuseds unlawfully, in contravention of s.495(1)
                          they did not have reasonable and probable grounds for the arrest
                   at the time of the arrest, the police officers had no case against the
                     accuseds, but arrest for the purpose of furthering the investigation by
                     obtaining inculpatory statements and fingerprints
                   TJ found that the unlawful arrest was also arbitrary within meaning of s.9
           o issues
                   is an unlawful arrest necessarily an arbitrary arrest violating s.9 of CRF?
           o decision—majority
                   not every unlawful arrest falls necessarily under the scope of s.9’s
                     meaning of “arbitrarily detained”
                          the grounds upon which an arrest was made may fall just short of
                              RPG, and the person making the arrest may honestly believe that
                              RPGs exist and there may be some basis for that belief
                          in these circumstances, the arrest, although later found to be
                              unlawful, cannot be said to be capricious or arbitrary
                  issue of whether an accused was arbitrarily detained will depend on two
                   considerations
                         the particular facts of the case
                         the view taken by the court with respect to the extent of the
                            departure from the standard of RPG and the honesty of the belief
                            and basis for the belief in the existence of RPG on the part of the
                            arresting person
                in this case, the arrest was arbitrary, being for an improper purpose—that
                   is, aiding an investigation
                         police officer has no right to detain a person for questioning or
                            further investigation
          o decision—dissent
                the officers had evidence that the accuseds did commit the offence that
                   constituted RPG
                even if it fell short of RPG, that does not mean that the arrest was arbitrary
                   within the meaning of s.9
                         the arrest in this case was neither capricious nor random

   Iron v. R.—illegal detention is necessarily contrary to s.9 of the Charter (Saskatchewan)
           o facts
                   police officer, while on routine patrol, stopped the accused for the purpose
                      of checking documents
                   he finds that the accused did not have a valid license and charges him
           o issues
                   was the detention unlawful?
                   if so, does an unlawful detention necessarily violate s. 9 of the Charter?
           o decision
                   definition of “arbitrary detention”
                           means that the detention was not authorized by an existing law
                           also, means that if the law is not rational or reasonable, then the
                              powers of detention to which it gives effect, if used, are arbitrary
                                  o s.9 does not excuse arbitrary detention on excuse that it is
                                      authorized by law
                                  o so, the law must not permit detention to be effected on the
                                      basis of unfettered police discretion or in the absence of
                                      RPG to believe that an offence has been committed
                   was there a statutory power to detain?
                           no specific law gave the police the power
                           however, the duty to stop for police under the Vehicles Act may
                              have implied a corresponding power to stop and detain
                           but, doctrine of implied powers cannot be used here because to
                              imply a police power which is a mirror image of the statutory duty
                              to stop at any time for any reason implies a much wider power that
                              can be said with assurance to have been contemplated by the
                              legislature
                           also, the corresponding power to stop may arise at common law
                     was there a common law power to detain?
                            public purpose test—Waterfield
                                   o is the random stop of the appellant sufficiently important to
                                       support a common law authority to detain of the Dedman
                                       (power to detain to deter impaired drivers) variety?
                                            no comparison between importance of deterring
                                               impaired drivers and unlicensed drivers
                                            no positive evidence provided that deterring
                                               unlicensed drivers would prevent sufficient injury
                                               and death (like Dedman powers) to warrant wide
                                               ranging powers
   R. v. Simpson (1993) (Ont. C.A.)—the “articulable cause” test
            o suspected crack house—accused was picked up outside
            o police officer stopped the car and searched the accused—found drugs
                   no RPG for arrest
            o Doherty’s decision
                   unlawful is not equivalent to arbitrary, but finding that detention is
                      unlawful goes a long way to finding it arbitrary within meaning of s.9
                   law imposes broad duties on police officers, but only limited powers to
                      perform those duties
                   police conduct is not rendered lawful merely b/c it assisted in performance
                      of the duties assigned to an officer
                            has to be authorized by law where interferes with liberty of citizen
                   here, no statutory basis for the stop—check of vehicle fitness, etc.
                   look to common law
                            Dedman—creation of a common law power to investigate certain
                               things the Waterfield test
                            Waterfield—where police officer has a duty there may be corollary
                               power to carry it out (ancillary police powers doctrine)
                   if police officer has an “articulable cause” to believe that the person is
                      involved or has knowledge about the offence, then he has a limited power
                      to detain to investigate
                   thus, police can detain to investigate only if they have AC
                            more than a hunch, less than RPG
                   but, presence of AC does not render every detention for investigative
                      purposes a justifiable exercise of police common law powers—only the
                      first step in that determination
                            find AC, then look to gravity of the offence (property vs. violent),
                               length of detention justified, timing of offence (past vs. present)
   the stop-and-check cases
            o Dedman—decided before Charter, and implementation of s.216 of OHTA
                   SCC developed Waterfield test—ride programs okay
            o police implemented ride programs under s. 216—attacked on constitution args
                   Hufsky—random stop at fixed location
                            law upheld under s. 1 despite s. 9 breach—detention in unfettered
                               discretion of cop is necessarily arbitrary (no criteria for exercise)
                     Ladouceur—random stop at random location
                           majority still upholds the legislation under s.1 as AG put evidence
                              before SCC to show that not only are impaired drivers killing
                              people, but so are unlicensed drivers and unfit vehicles
                           Court did not get this evidence in Iron
                     Mellenthin—used stop-and-check procedures to investigate a driver for
                      drug offences
                           SCC said cop can only use the procedure in relation to driving
                              offences—drinking, license, fitness
                           random stop programs must not be turned into a means of
                              conduction an unfounded inquisition or an unreasonable search
   right to be informed of reasons for arrest
            o common law—Christie v. Leachinsky (House of Lords
            o Canada—codified in s. 29 of the Code
                     R. v. Gamracy—duty to give notice is exhaustively codified in s.29(2)
                           duty of everyone who arrests a person to give notice that person,
                              where feasible, of the process of warrant under which he makes the
                              arrest OR the reason for the arrest
            o Charter has changed this—s. 10(a) “right to be informed promptly of reasons”
   R. v. Feeney (1997) (SCC)—warrantless arrest in a private dwelling-house
            o pre-Charter law of arrests in dwelling houses
                     four requirements
                           RPG that the person sought is within the premises (Eccles)
                           proper announcement is made (Eccles)
                           the officer believes RG for the arrest exist (Landry)
                           objectively, RPG for the arrest exist (Storrey)
                     Landry requirements were not met—no RPG for arrest
                     requirements are found wanting in the Charter era—right to privacy in the
                      dwelling becomes increasingly important
            o the Charter law of arrests
                     court rules that privacy interests outweigh police interests—warrantless
                      arrests/searches in houses are prohibited
                           exceptions to warrant requirement—hot pursuit (Macooh)
                                  o refused to consider whether any other “exigent”
                                      circumstances may justify warrantless entry to arrest
                     the warrant requirement—prior authorization (Hunter)
                           arrest warrant alone is insufficient—fails to safeguard privacy
                           the Code is silent on prior authorization of a search for persons
                           but, Charter demands that police obtain prior judicial authorization
                              of entry into a dwelling in order to arrest
                           thus, if the Code fails to provide for one, it must be read in
            o the Feeney warrant
                     police must get a warrant to enter a dwelling house to arrest—to get
                      warrant, must set out before a justice that RG for the arrest, and RG that
                      the person will be found at address named
                     also, Landry requirement of proper announcement is also required
           o in this case—no warrant, Landry requirements not met
                     thus it was an unlawful arrest  so search incident to arrest is unlawful
           o the minority in Feeney—expansion of exigent circumstances beyond “hot pursuit”
   the legislative response to Feeney—s. 529, 529.1, 529.2, 529.3
           o s. 529—where arrest warrant is issued or needed to effect arrest
                     must satisfy JP that the RPG exist to believe that person is in the house
                     include in an arrest warrant, the power to enter a dwelling to effect arrest
           o s. 529.1—freestanding warrant to enter premises to effect arrest
                     only need information on oath—don’t need it in writing
                             reduced standards?
                     use this when warrant not needed to effect arrest by itself (have RG that
                        the person committed the offence)
                     or use it when arrest warrant is in force anywhere in Canada
           o s. 529.3—exigent circumstances
                     warrantless entry to effect arrest may take place in other circumstances
                        than just “hot pursuit”, where conditions for obtaining warrant exist but by
                        reason of exigent circumstances it would be impractical to get warrant—
                        for example (not limited to):
                             imminent bodily harm/death (preservation of life)
                                    o need to enter to prevent it
                             to prevent imminent destruction of evidence—need RPG that
                                evidence of an indictable offence is present
                     doesn’t limit or restrict power an officer may have to enter a house under
                        existing law (leaves it open)
                     also leaves open the prospect of finding more exigent circumstances under
                        the Waterfield test
   R. v. Godoy—entry into premises at common law to investigate disconnected 911 call
           o evaluating common law powers of police—Waterfield test
                     does the conduct fall within the general scope of any duty imposed by
                        statute or common law?
                     does the conduct involve an unjustifiable/unreasonable use of powers
                        associated with the duty?
           o scope of the duty—preservation of life imposed by statute—Dedman
                     duty is engaged whenever it can be inferred that the 911 caller is or may
                        be in some distress, including cases where call is disconnected before
                        nature of the emergency can be ascertained
           o was it an unjustifiable use of powers associated with the duty to preserve life?
                     use of powers—forcibly entering a dwelling home without warrant
                     justifiable—depends on the duty itself, the extent to which some
                        interference is necessary to perform it, the importance of the performance
                        of that duty to the public good, the liberty interfered with, and the nature
                        and extent of the interference
                     here, it was a 911 call—a cry for help
                     the police do not know what is going on inside—could be real emergency
                     necessary to enter the home to carry out the duty in this case
                              no other reasonable alternative to ensure that the caller received
                               necessary assistance in a timely manner
 R. v. Golub—where circumstances of arrest give rise to legitimate cause for concern with
respect to the safety of those at the scene, reasonable steps to allay the concern may be taken
            o risk of physical harm to those at scene of arrest are exigent circumstances to enter
               without a warrant
 R. v. Silveira—narcotics
            o preservation of evidence as an exigent circumstance to justify entry in premises
               without a warrant
 what if part owner allows police into a premises to arrest a suspect
            o should be okay—joint tenancy law in U.S., etc.
 can police go up to the door and ask to talk to the target? (maybe triggers detention, rights)
            o iffy—law of perimeter searches
                    sniffing for marijuana is a search
 arrest vs. detention—mouth the magic words (arrest)
            o Therens—right to counsel on detention
                    detention = physical control OR psychological compulsion (i.e. you think
                       you had to go along with the cop)

Search and Seizure

See Scott Hutchison’s lecture—notes

Right to Silence
 related to the Charter, common law confession rule, and principle against self-incrimination
           o right to silence has been constructed as a free-standing right—limits are unclear

1.      Voluntary Confession Rule
    the Wray case
           o facts
                    robbery and shooting
                    coercive interview—skilled police interrogator coaxed a confession out of
                     the accused and he told cop about the gun in a swamp
           o issue—to what extent are statements and derivative use of confession admissible?
           o SCC
                    TJ only has discretion to exclude evidence if it operates unfairly
                    does not matter how coercive the police acted
           o analysis
                    the SCC held admissible part of an involuntary statement
                    sole reason for the voluntariness requirement of a confession is to promote
                     trustworthiness—a voluntary statement is more reliable
                    here the involuntary statement’s truth was confirmed by derivative use
    Ibrahim v. R.
           o the rule that an inculpatory statement is admissible only if it is
                    voluntary—not obtained by fear of prejudice or hope of advantage
                     exercised or held out by person in authority
   Rothman v. R.—SCC
          o to what extent could an undercover officer get a statement from an accused?
                   where accused does not know he is speaking to a cop—cellmate
          o accused makes a confession to a “fellow prisoner”
                   does the right to silence kick in?
          o Court said that the statement was admissible
                   did not regard the prisoner as a “person in authority”—no involuntariness
   Salhany and Carter—defining the Right to Remain Silent
          o right of a suspect to refuse to identify himself even to a cop, to answer his
              reasonable questions, to remain silent at his trial, and the additional right to
              compel the judge and the prosecution to refrain from any comment to the jury
              upon the failure of an accused or his wife to testify
          o have a hard time justifying the right to silence in modern times (no torture, etc.)

2.      Section 7 and the Right to Silence
 R. v. Hebert (1990) (SCC)—overruling Rothman
  McLachlin’s majority
           o s. 7 of the Charter accords a right to silence to a detained person
                    liberty at stake—can only be deprived in accordance with PFJ
                    found in basic tenets of the legal system
                            rules such as the common law confessions rule, the privilege
                               against self-incrimination (PASI), and right to counsel
                    but a PFJ may be broader than the particular rules that exemplify it
           o right to silence is rooted in two main common law rules—confessions rule, PASI
                    two rules are linked in the idea that a person in the power of the state has
                       the right to choose whether to speak to the police or remain silent
           o the confessions rule
                    defines the choice negatively—absence of threats, promises by authorities
                            right not to be tortured or coerced into making a statement
                    rationale for the old rule is the rejection of unreliable statements
                    but the old theme is also one of choice
                            the mental element—act of choosing whether to remain silent or
                               speak to police necessarily comprehends the mental act of
                               choosing one over the other
                            the fact that the accused did not realize he had a right to remain
                               silent or has been tricked into making the statement is relevant to
                               the issue of voluntariness
                    then Wray came along and narrowed the rule down to a negative right
                            reliability became the only concern and all statements were
                               admissible unless induced by threats, promises or violence
                            court did not have the power to exclude admissible and relevant
                               evidence merely b/c its admission would BAJID—fairness issue
           o privilege against self-incrimination
                    mostly at trial—but, encompasses notion that the accused has no
                       obligation to give evidence against himself, that he has the right to choose
                       whether to testify or remain silent
           also, practical link between PASI and right to silence at the pretrial stage
            is obvious—protection at trial would be illusory if offered no protection
            with respect to pretrial statements
o   the common theme—the right to choose whether to make a statement to the
    authorities or remain silent, coupled with concern with the repute and integrity of
    the judicial process
o   overruling Wray
         right to choose whether to speak or remain silent suggests that the scope of
            the right to silence under s.7 must extend beyond narrow confessions rule
         encompasses not only a negative right to be free from coercion, but also a
            positive right to make a free choice about whether to speak or be silent
         s.24(2) stipulates exclusion of evidence where admission would BAJID
                 thus, reliability is no longer determinative—there is a discretion to
                    exclude statements on grounds of unfairness to the suspect and the
                    integrity of the judicial system
         thus, the right to silence under s.7 must reflect the Charter’s concerns with
            individual freedom and integrity of the process and exclude evidence
            which offends these important values
o   the scope of the right to silence
         preserve for the detainee the right to choose whether to speak to the
            authorities or to remain silent—despite the fact that he is in their power
         must extend to exclude tricks that would effectively deprive the individual
            of his choice b/c to permit authorities to trick a suspect into making a
            confession after he has exercised the right to choose not to speak with
            police (conferring with counsel and declining to speak) is to permit
            authorities to do indirectly what Charter doesn’t permit them to do directly
         defined objectively
                 after establishing “operating mind”—a subjective element
         permits judges to reject confessions on grounds of unfairness and concerns
            of integrity/repute of judicial system
                 can correct abuses of power by the state
         not an absolute right to silence—which is capable of being discharged
            only by waiver
                 goes too far b/c waiver is subjective and depends on the accused
                    knowing he is speaking to persons in authority
o   four limits to the right to silence
         police may question the accused in the absence of counsel even after the
            exercise of that right
         right to silence only applies after detention—no need to protect him from
            greater power of the state in predetention phase
         does not apply to cellmates not acting as informants/cops
         officer as cellmate cannot initiate discussion and elicit information in
            violation of right to remain silent, but can act as an observer/listener and
            hear the statements
                 eliciting the info deprives the accused of his choice where it is
                    done after he has advised them that he does not wish to speak
           o here, the undercover cop was trying to elicit statements from Hebert—violated the
               right to remain silent b/c depriving him of choice to willingly speak to police
R. v. Oickle (2000) (SCC)—police trickery to obtain a confession
 facts
           o series of fires—arson
           o police get everyone to go to a centre to get a polygraph test
           o Oickle fails the polygraph—police tell him to confess to one fire (rather than all
               eight), and they won’t have to bring down his girlfriend, and it would feel
               “better”; overstated reliability of the polygraph tests
 decision—majority (Iacobucci)
           o confession is not admissible unless freely made and voluntary
                    Ibrahim—negative right not to be coerced into making a statement by
                       threats or promises held out by a person in authority
                    Hebert—statement is involuntary if the necessary mental element of
                       deciding between alternatives is absent
           o Charter—Hebert
                    did not discuss the scope of the common law rules in light of Charter
                    common law rules NOT subsumed under the Charter
                            confessions rule has broader scope than the Charter—applies
                               whenever a person in authority questions someone, not just on
                               arrest on detention
                            different burdens
                                   o Charter—accused has to show on BOP violation of rights
                                   o old rule—Crown has to show BARD voluntariness
                            remedies
                                   o Charter—only exclude under s.24(2) if BAJID
                                   o old rule—violation always warrants exclusion
                    common law rule offers protections beyond those in the Charter
           o the modern confessions rule
                    refined in light of understanding of false confessions
                    concerned with voluntariness, because involuntary confessions are more
                       likely to be unreliable
                    false confessions
                            role of false confessions in wrongful convictions
                            five types
                                   o voluntary—not important; not product of police questions
                                   o stress-compliant—comply to terminate questioning
                                   o coerced-compliant—threats and promises
                                   o non-coerced-persuaded—confused; persuaded of guilt
                                   o coerced-persuaded—threats and promises to persuade
                    common themes
                            particularities of individual accuseds
                            danger of using non-existent evidence
                            emphasis on threats and promises—most likely to convince a
                               suspect that in spite of the long run, it is in his best interests in the
                               short run to confess
   voluntariness overlaps with reliability—an involuntary confession will
    often be unreliable
   threats and promises
         imminent threats of violence—inadmissible
         fear of prejudice/hope of advantage—inadmissible
         offer of psychiatric assistance in exchange for confession
                o inducement, but look at entirety of circumstances
                o if offered as quid pro quo—undermines voluntariness
         aimed at third party?
                o look at relationship between the party and the accused and
                     all circumstances surrounding the confession
                o ask whether the benefit to the third party would tend to
                     induce the accused to make an untrue statement
         veiled threats
                o “it would be better to confess”—inadmissible
                o “it would be better if you told the truth”
                           not automatic—look at context
                           ask if there is a reasonable doubt that resulting
                              confession was involuntary (yesexclude)
                o “it would be better” comments in general require exclusion
                     only where the circumstances reveal implicit threat/promise
         moral/spiritual inducements—generally won’t produce involuntary
            confession b/c the inducement is obviously not in control of cop
                o “you will feel better if you confess”—no quid pro quo offer
   the operating mind requirement
         the operating mind test—mental element
                o objective when looking at inducements
                o person making confession must have operating mind
                           Whittle—very low standard
                                   just have to understand what you are saying
                                     and that you are saying it to authorities
   atmosphere of oppression
         potential to produce false confessions where overbears person’s
            will to the point where he doubts memory, believes in his guilt
         factors that can create atmosphere of oppression
                o deprivation of food, clothing, sleep, water, medical aid
                o denying access to counsel
                o excessively aggressive questioning over a long time
         use of non-existent evidence
                o can cause him to believe that protestations of innocence are
                     futile, and thus, want to confess to avoid severe punishment
   other police trickery—distinct inquiry
         more specific objective is not really voluntariness as much as it is
            maintaining integrity of the CJS
         look not at reliability but at police conduct as regards reliability
                              sometimes police must resort to trickery or deception in dealing
                               with criminals, but what is not allowed is conduct that “shocks the
                               community”
                            may be situations where trickery neither violates right to silence
                               nor undermines voluntariness but does shock the community
                                    o i.e. lying about the evidence
                            two step process
                                    o confession should be excluded if police deception/trickery
                                       shocks the community
                                    o if it doesn’t rise to that level, the use of deception is still a
                                       relevant factor in the overall voluntariness analysis
            o in this case, the police lied about the polygraph test
                     simply failing to tell him that the test is inadmissible will not STC
                     factor in voluntariness
                            here he knew it was inadmissible—so voluntary
                     exaggeration of validity
                            still, the results did not overwhelm his will—no complete
                               emotional disintegration, just crying
                     did not raise reasonable doubt about confession’s voluntariness
   analysis of Oickle—D. Stuart’s critique
            o provides police with manual of permissible coercive measures
            o not sufficient deference to TJ on issue of voluntariness?
            o places focus on reliability rather than integrity and fairness
            o at odds with SCC jurisprudence on right to silence and right against self-incrim.
   reliability gave way to fairness in the Charter era under Hebert
            o inquiry into voluntariness—focus on coercion and deprivation of choice
   comes back full circle in Oickle—reliability became the focus again
   R. v. Sweeney (2000) (Ont. C.A.)
            o robbery—arrested and made statements to the police
                     TJ said involuntary—coercive tactics used to obtain them
                            police got warrant—said they were going to trash the house
                               looking for gun
                     he confesses location of gun—they find the robbery money too
            o the Lawrence exception—confirmed in Wray
                     no exclusion if independent confirmation of truth is found
            o the Court builds s.7 into the common law
                     statement is involuntary  s. 7 rights are violated
                     Sweeney’s statement was involuntary—violation
                            s.24(2)—to the extent that the Lawrence rule was inconsistent with
                               s.7 and allowed the admission of evidence improperly gathered, it
                               is of no force and effect
   inferring guilt from pretrial silence—R. v. Chambers
            o accused gives alternative explanation for action at trial
                     Crown cross-examines him on his failure to reveal this earlier
            o Court looks at obligation of accused to disclose defence to the Crown
                        general rule that there is no obligation on accused to disclose defence or
                         details of the defence before the Crown has completed its case
                     special exception for failure to disclose an alibi in a timely manner
                              this may be considered in assessing the credibility of the defence
           o Court ruled that the Crown cannot use silence against the accused
           o it would be a snare and a delusion to say that the accused cannot be compelled to
                say anything to the police and then to turn around and put in evidence his exercise
                of that right and hold it against him at trial through drawing of adverse inference
           o mere silence of an accused during police investigation cannot be said to advance
                the case for the Crown—it is irrelevant to any issue at trial, unless Crown can
                prove otherwise, and so should be inadmissible
           o if this evidence of silence is admitted (after Crown demonstrates relevance) then
                the RJ ought to instruct jury in the clearest of terms that the fact that the accused
                had remained silent did not lend itself to any adverse inference
           o the failure to correct the impression on the jury that an accused is under an
                obligation to disclose his defence to a person in authority, by direction from a TJ,
                renders the right to silence a snare of silence for the accused—can affect
                reliability of the verdict, and so is a reversible error
   the principle against self-incrimination—Crown cannot force the accused to testify
           o privilege refers to noncompellability at trial—testimonial privilege
           o principle refers to broad idea that the accused does not have to incriminate
                himself in front of any state actor
                     cannot be forced into assisting in own prosecution
                     no obligation to respond until the state has succeeded in making out a
                         prima facie case against you
           o the principle is fundamental principle of justice under s.7
                     extends to derivative use immunity—R. v. S.(R.J.) and Branch
   silence at trial—R. v. Noble (SCC)
           o accused is silent in the face of an overwhelming Crown case
           o TJ comments on accused’s failure to testify in his defence—adverse inference
           o SCC majority ruling—Sopinka
                     antithetical to the right to silence to use silence to infer guilt
                     antithetical to presumption of innocence to use silence to infer guilt
                     TJ cannot comment to jury about failure to testify
                     silence at trial is, in general, confirmatory of guilt, but it should never be
                         elevated to a legitimate consideration—no evidence should be regarding it
                     it is, however, impossible to prevent jurors from using it to help find guilt
                         though—personally witness accused’s silence in face of an accusation
                              TJ cannot tell them not to use silence to turn the case against the
                                 accused into one that proves guilt BARD—s. 4(6) of CEA prevents
                                 TJ from commenting at all on silence of accused person
                              juries do not give reasons for their verdicts
                     thus, silence at trial can only be used to confirm prior findings of guilt
                         BARD, and to remind triers of fact that they need not speculate about any
                         unstated defences
           o SCC dissenting opinion—Lamer
                  
                  recognize the consequences of silence
                  
                  when accused is faced with a lot of evidence against him, to let it go
                  uncontested is indicative of guilt and should be used in that regard
                       why can a TJ point out that evidence has gone uncontested by the
                          accused, but not that the jury can draw an adverse inference from
                          that silence? (makes no sense to him)
               different definition of “case to meet”
                       means that Crown has put forth sufficient evidence upon which a
                          properly instructed jury could reasonably convict—i.e. Crown has
                          met its burden of proof
          o SCC dissenting opinion—McLachlin
               suggests a two-step process to use silence as evidence of guilt
                       first, jury has to find that Crown’s case, if believed, establishes
                          guilt BARD
                       then, they can use the fact of a lack of evidence to the contrary as a
                          relevant and legitimate consideration to decide whether they
                          actually believe the Crown’s case (includes failure to testify)
               failure to testify cannot be used to shore up a Crown case which otherwise
                  does not establish guilt BARD

Right to Counsel
 three components of s. 10(b) right to counsel
          o meaning of detention
          o substance of the right
                  informational (content)—what do the police have to say?
                  implementation—what do the police have to do to facilitate the right?
          o waiver of the right

1.     Triggering Mechanism: Detention
   jurisprudence on s.10(b) mostly comes from impaired driving cases
            o unfortunate b/c of dangers of impaired driving—few would not want intrusive
               police powers to be available to combat it, and thus public policy considerations
               entered into the judicial sphere (see Rahn v. R.)
 Chromiak—SCC found that detention only existed where it lasts long enough to be
challenged by a writ of habeas corpus
R. v. Therens (1985) (SCC)—overruling Chromiak
 breathalyzer demand—police did not inform accused of right to counsel under s.10(b)
 TJ found that he was detained within meaning of 10(b), and that there was thus a violation of
the right to counsel—excluded the breathalyzer evidence
 SCC decision—the meaning of detention
            o broader than both Chromiak and Brownridge
            o detention is a situation where there is restraint of liberty that leads a person into
               reasonably believing that he/she cannot retain a lawyer
                    where restraint might otherwise effectively prevent access to counsel
            o detention is a compulsion—situation where person reasonably believes that he is
               unable to refuse to comply
           o here, the accused could reasonably have believed that he was unable to refuse
              (mainly because he could be prosecuted for his refusal to blow into the machine)
           o but, detention is still broader than this
                   even in situations where failure to comply does not entail adverse legal
                      consequences (criminal liability)
                   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
           o thus, detention may be effected without the application or threat of application of
              physical restraint if the person concerned submits in the deprivation of liberty and
              reasonably believes that the choice to do otherwise does not exist
   R. v. Thomsen (SCC) (1998)
           o question is whether a roadside demand is a detention
           o SCC says yes
                   criminal liability attaches—provides the necessary compulsion to make
                      the restraint of liberty a detention
                   accused may reasonably require the assistance of counsel
                   police assume control over movement of the person
                   reasonable belief that don’t have choice about whether to comply
           o Court found violation of s.10(b) but saved it under s.1, so no right to counsel
   R. v. Moran (Ont. C.A.)—considering Bazinet
           o the Bazinet requirements for “psychological detention”
                   demand or direction essential for “psychological compulsion”
                   acquiescence to demand with reasonable belief that there is no other
                      choice but to comply
           o factors to determine whether one was detained in police interrogation context
                   was the accused given a choice to go to the station or stay at home?
                   was he escorted to the station?
                   was he arrested at the end of the interview?
                   look at the stage of the investigation
                   whether RPG existed to believe the suspect committed the crime
                   nature of the questioning—general or confrontational
                   subjective belief of the accused that he is detained
                           personal characteristics are relevant, but it is an objective
                              assessment (“whether he reasonably believes…”)
   R. v. Mickey (B.C.C.A.)
           o accused volunteers info to the police as a witness
                   they interrogate him—begin to think he’s a suspect
                           bring in two experienced interrogators
                           not told of right to counsel
           o was he detained?
                   not when he first came in—voluntary
                   this changed when they began to suspect that he was the perpetrator
                           no longer free to leave when he was interrogated by the two cops
                                   o became a detention
                               so, statements were not voluntary—needed to be informed of right
                                to counsel first
            o what about the subjective standard?
                     Mickey may not have thought he was being detained—psychopathic
                        personality
                     maybe not reasonable?
    R. v. Hawkins (Nfld. C.A.)
            o detention arises when suspicions become crystallized and police approach to the
                encounter is changed from questioning the individual to an examination with
                intent to charge the person with an offence
            o act of creating an adversarial relationship can be identified in the centering by the
                investigating officer upon the individual as the offender and the confining of the
                interview thereafter to discern culpability and elicit incriminating evidence
            o rejection of the subjective standard—endorsement of objective standard
            o SCC overturned this ruling—unknown whether they favored more subjective test
    R. v. Elshaw—dissent of L’Heureux-Dube
            o rejection of psychological detention
                     hampers law enforcement—police would have to warn everyone they
                        routinely question
    R v. Feeney
            o majority decision
                     no caution on initial detention—violation of s. 10(b)
                     not given adequate opportunity to consult with counsel before being
                        questioned
                             made statements in the trailer—taken in violation of s. 10(b)
            o dissent—caution was given when they had a reasonable opportunity to do so
    R. v. Bartle—distinguishing between informational and implementational duties
            o purpose of s.10(b)—revolving around danger of self-incrimination upon detention
            o duties of police
                     first: to inform of right without delay (mandatory)
                     second: if detainee takes up offer (only where detainee wants to exercise)
                             detainee must be given reasonable opportunity to do retain counsel
                             police must refrain from eliciting further evidence until that time
                                has elapsed

2.      Informational Duties
    R. v. Brydges (SCC) (1990)
            o accused asked whether legal aid was available
            o police give him an unclear answer and keep interrogating him
            o accused says he wants to contact legal aid—continues to provide statements
            o Court found breach of s.10(b)
                     he should have been informed of the existence of legal aid
                     police have to inform detainees of the existence of legal aid in all cases
    R. v. Bartle (SCC) (1994)
            o Ontario gets a 1-800 legal aid hotline
            o police did not mention the existence of this hotline in their caution to Bartle
           o extending Brydges
                  accused was informed of legal aid availability, but not about the hotline
                  Court said that this was insufficient—did not convey full availability of
                     legal advice in the province
                          should be told of whatever preliminary, free legal aid services exist
                             in the jurisdiction and of how such advice can be accessed
                          detainee should also be told of the hotline and that it could be
                             accessed as soon as they reached the station
           o stresses the importance of the informational component
                  unless accused are clearly and fully informed of their rights at the outset of
                     questioning, they cannot be expected to make fully informed choices and
                     decisions about whether or not to contact counsel
                  purpose of s.10(b) is about providing detainees with meaningful choices
                     and it follows that he should be fully advised of all available services
                     before being expected to assert that right, particularly since subsequent
                     duties of the state are not triggered until a detainees expresses with for aid
           o waiver of informational component
                  valid waiver will be rare because a person who waives a right must have
                     “full knowledge” of it
                  difficult—person who waives right to be informed of something without
                     knowing what it was that he/she had the right to be informed of
                          not full knowledge
                  so, a detainee saying that he does not wish to hear a 10(b) caution is not
                     enough to constitute a valid waiver of the informational component

3.      Implementation Duties
    Jumaga—no obligation to afford privacy unless requested
            o overruled in Playford—now police must afford privacy whether requested or not
    R. v. Manninen (SCC) (1987)
            o accused asserts right to counsel immediately after the caution is read to him
                     but, police persist in questioning
            o Court found that police must provide a reasonable opportunity for him to exercise
                his right to counsel
                     have to cease questioning or otherwise attempting to elicit evidence until
                        he has had a reasonable opportunity to retain and instruct counsel
                     have to offer use of telephone—facilitate contact with counsel
                              purpose of the right to counsel is to allow detainee not only to be
                                informed of his rights under the law, but also to obtain advice on
                                how to exercise those rights
            o possible that there may be circumstances in which it is particularly urgent that the
                police continue with their questioning before it is possible to facilitate
                communication with counsel—not the case here though
            o does the accused have to assert the right positively?
    R. v. Baig (SCC)
            o accused is given caution and responds “How can you prove this thing?”
            o police go no further to facilitate the right—deemed that he has not asserted it
           o accused makes statements
           o SCC decides admissibility of the statements based on Anderson
                    there must be a positive assertion of the right for any implementational
                      duties to come into play
                           usually accused indicates his desire to exercise the right once the
                              caution is read to him
                    onus is on the accused to prove that he asked for the right but it was
                      denied, or he was denied any opportunity to even ask for it
   Leclair v. R. (SCC) (1989)
           o accuseds told to participate in a lineup—not told they weren’t obligated to do so
           o SCC—accused has to be “reasonably diligent” in exercising the right to counsel
                    if not reasonably diligent, the correlative duties of police are suspended
                    reasonable diligence depends on the context facing the accused
                           on being arrested, immediate need for legal advice and accused
                              must exercise the right accordingly
                           no immediacy where seeking a lawyer on how best to conduct trial
                    accuseds do have right to choose their counsel
                           only if that lawyer is not available in reasonable amount of time,
                              the accused has to try to get someone else
                           factor of urgency relevant in assessing what constitutes
                              “reasonable opportunity”—here, no urgency
                    once an accused has asserted right, the police cannot in any way compel
                      the detainee to make a decision or participate in a process that could
                      ultimately have an adverse impact on the conduct of an eventual trial until
                      that person has had a reasonable opportunity to exercise that right
                    failure to refuse to participate in lineup did not amount to a waiver of right
                           cannot waive the right simply by submitting, before being
                              instructed by counsel, to precisely those attempts that secure the
                              detainee’s participation from which the police should refrain
                           not an informed decision to participate in the lineup because
                              ignorant of their legal position, because no contact with counsel
                    opportunity given was not reasonable
   R. v. Burlingham (SCC) (1995)
           o accused constantly asks to speak with his lawyer
           o police denigrate his lawyer and offer him a deal
           o SCC
                    barring emergency, police must refrain from asking questions once the
                      right to counsel is asserted (he expresses a desire to contact a lawyer)
                    s.10(b) forbids police from belittling counsel or undermine confidence
                    the offer of a deal was inappropriate
                           unconstitutional to offer it to him, and not to his lawyer as well
                    absence of urgency influenced the decision in this case
   R. v. Prosper (SCC) (1994)
           o no constitutional duty on provincial governments to provide a 1-800/free duty
               counsel system on arrest or detention
            o but, in those jurisdictions that don’t have one, the “holding off” period may be
              extended to give the accused more time to make contact with a lawyer

4.       Waiver and Duty to be Reasonably Diligent in Exercise of Right
    R. v. Clarkson (SCC) (1986)
            o accused makes drunken confession—waives the right on being cautioned
            o SCC assesses the standard of valid waiver
                    clear and unequivocal
                    has to have full knowledge of rights and of effect that waiver will have on
                       those rights (consequences of giving up the right)
                    forms the “awareness of consequences” test
                            if accused is not aware of implications of the waiver, it’s not valid
                    at very least, police should have waited until accused had sobered up
    R. v. Smith (SCC) (1989)
            o issue—did accused exercise his right in a diligent manner?
            o SCC—significance of diligence
                    right will be suspended where accused is not diligent in exercise of right
                            here, Smith didn’t even try to contact his lawyer—just said it was
                               impossible to do so at the time and that he’d wait until morning
                            failure to try proved fatal to s.10(b) claim—if he had made the call
                               and failed in attempt to contact lawyer, then he would have been
                               justified to ask for a delay until the opening of office in the morning
            o strong dissent from LaForest—found violation of the right
                    only factor in police’s favor was the accused’s failure to try
                    LaForest thinks that if the accused is willing to spend the night in jail, then
                       that’s his choice
                    stresses right to choose
                            accused should be able to wait and get in touch with his own lawyer
                               if he wants to stay in jail for longer
                            he should not have to talk with any available lawyer

Remedies for Charter Breaches

1.      Declarations of Invalidity Under s.52 of the Charter and Saving Under s.1
    the Oakes test—contextualized in Edmonton Journal
           o contextual approach to s.1 analysis
                    degree of flexibility that shapes the test and based on such factors as the
                      public-private nature, the nature of the right violated, legislative
                      background, degree of public importance
           o two criteria
                    is the objective of the legislation pressing and substantial?
                    are the means chosen reasonable and demonstrably justified?
                           rational connection—between breach of right and objective
                           minimal impairment
                           effects
           o importance of the objective—the pressing and substantial test
         the role of deference to Parliament
               look at Hansard debates, legislative history of the provision, public
                   opinion polls, number of prosecutions
       the “shifting objective”
               original purpose was not valid, but changed purpose is relevant and
                   legitimate today
               R. v. Big M Drug Mart—have to look at the original purpose
                       o if original purpose is not P&S but new one is, law is not
                           justified under s.1
o the means—the proportionality test
       rational connection—measures adopted must be carefully designed to
          achieve the objective in question
               cannot be arbitrary, unfair, or irrational
       minimal impairment—means should impair the right as little as possible
               the deferential approach
                       o Laba—some provisions the Court are better able to assess
                           than others (singular antagonist rule)
                                evidential burdens, legal rules: not deferential
                                big socially divisive issues: more deferential b/c
                                   Parliament is better equipped to tackle them
               existence of other alternatives—if they are more reasonable, the
                   impairment is not minimal
               different tests
                       o Oakes—as little as possible
                       o Edward Books—as little as reasonably possible
                       o Chaulk—would the less intrusive means (alternatives)
                           achieve the same objective as effectively?
       deference and RJR MacDonald
               the contextual approach reaffirmed, and Oakes test reinstated
               deference varies according to context
                       o greater deference where law is concerned with competing
                           interests between sectors of society
                       o less deference where state is singular antagonist of
                           individual trying to assert his rights
o effects of the limit
       Dagenais—publication ban
               balance the deleterious effects not only with the objective, but with
                   the salutary effects of the law
               have deleterious effects which are proportionate both to their
                   salutary effects and to the importance of the objective
               can be other rights at stake
                       o here it was the rights of the media clashing with legal rights
                           of the accused to a fair trial
                       o have to balance the two rights—coexisting is necessary
                       o so, consider salutary and deleterious effects of the law on
                           both parties involved
    prescribed by law—statute OR common law
    to the extent of the inconsistency—s. 52 analysis (can a law be partially saved?)
             o remedy—no law can be consistent with the Charter
                     examples are severance (striking down), reading down (excise specific
                        part of the statute that is offensive to the Charter) and reading in (inserting
                        different words into the “read down” part of the provision to make it
                        compliant with the Charter), reconstruction (reinterpret provision to make
                        it consistent with Charter), suspending the declaration of invalidity,
                        constitutional exemptions

2.     Remedies Under s.24 of the Charter
  dramatic departure from the common law, where the illegality of the search/seizure had no
bearing on its admissibility as evidence
 section 24(1) and the exclusion of evidence
          o Harrer—court used s.24(1) to exclude evidence (extraordinary cases)
                   usually done under s.24(2)—Therens (SCC)
 contrast to the American strict exclusionary rule—“fruit of the poisonous tree” doctrine
 the logic of excluding evidence—Paulsen
          o disciplining the state—punishing police misconduct
                   maybe not as much punishment as it is taking away the temptation
          o fundamental values—don’t condone the state breaking the law
                   taints the public image of the administration of justice
 R. v. Duguay (1985) (Ont. C.A.)
          o majority of the Court excluded the statements
                   causal connection between Charter breach and the discovery of evidence
                   relevant factors under s.24(2)
                            seriousness of the breach/conduct
                            seriousness of the crime
                                   o less serious—easier to exclude
                            circumstances of urgency—to undertake the illegal action (arrest)
                   reason for exclusion is to maintain the integrity of the judicial system
                            deterrent effect?
                            affirm Charter rights and ensure they are not illusory
                            don’t want to give tacit approval to actions of the police
                                   o taints the Court process
          o minority did not want to exclude (Zuber)
                   focuses on BAJID
                            looks back at Rothman—the “community shock” test
                   presumption of admissibility—only inadmissible if it BAJID
                   what will suppression of truth do to the administration of justice?
                            sets threshold very high—when damage of admission of the
                               evidence would exceed damage of suppression of the truth in the
                               eyes of the community, then exclusion is warranted
 R. v. Duguay—SCC (limited their decision on the scope of appellate review and 24(2))
          o has to be an apparent error in principle or simply unreasonable
 R. v. Collins (SCC) (1987)
o burden of persuasion is on the person seeking exclusion—on BOP that the AJ will
  be brought into disrepute
o focus is on further damage, further disrepute of AJ
       exclusion is not done for the purpose of redressing police misconduct
       two part test
                would admission deny accused the right to a fair trial?
                would admission amount to judicial condonation of misconduct?
o disrepute can flow from both the exclusion and the admission
o important to look not just at case at hand, but at its implications for the big picture
o the community shock test
       not empirical—no polls
       it’s a theoretical test
                public may be uninformed and not know about the issues until they
                   themselves are charged
o the test
       would the admission of the evidence BAJID in the eyes of the reasonable
           man, dispassionate and fully apprised of the circumstances of the case?
       relevant factors that can impact on repute
                group A—factors that relate to the fairness of the trial
                group B—factors that relate to the seriousness of Charter breach
                group C—other factors affecting whether admission/exclusion
                   would BAJID
o group A—trial fairness
       evidence that affects fairness of the trial will generally tend to BAJID and
           so will generally be excluded
       look at:
                nature of the right infringed
                nature of the evidence obtained—real vs. conscriptive
                      o real evidence—pre-exists the Charter violation, and so will
                          rarely affect trial fairness
                      o conscriptive evidence—exists where accused is conscripted
                          against himself through a confession or other evidence
                          emanating from him
                                renders the trial unfair—did not exist prior to
                                  Charter violation and strikes at one of the
                                  fundamental tenets of a fair trial—PASI
o group B—seriousness of the Charter violation
       whether it was committed in good faith, or deliberately flagrant?
       technical, or serious?
       motivated by urgency or necessity to prevent destruction of evidence?
       availability of other investigatory techniques?
       could the evidence have been obtained without violating the Charter?
                if so, this indicates a blatant disregard for the right, and supports
                   exclusion of the evidence
o group C—the effect of excluding the evidence
                       would exclusion OR admission BAJID—would the reputation of the AJ be
                        better served by exclusion or admission?
                    consider any disrepute that may flow from the exclusion of the evidence
                    look at:
                             seriousness of the offence—less serious, less likely that excluding
                                 would BAJID (but, not the case when trial fairness is at issue)
                                    o public is less outraged by release of petty criminals
            o the “community shock” test—provides some assistance, but is no substitute
                    s.24(2) threshold is lower
                    Justice Lamer looks at the French translation—“could BAJID”
                    the Rothman standard is “would”—a higher standard
 Sopinka J. in R. v. Hebert—where impugned evidence falls afoul of the first set of factors in
Collins (i.e. renders the trial unfair), the admissibility of that evidence cannot be saved by resort
to the second set of factors (i.e. seriousness of the violation)
            o two sets of factors are alternative grounds for the exclusion of evidence not the
                admission of evidence
 R. v. Burlingham (SCC) (1995)—resolving the “real evidence” controversy
            o is real evidence generally admitted, as stated by Lamer J. in Collins?
                    looking at how the evidence came to the police—if it came through the
                        conscripted actions of the accused, then it should be excluded
                    derivative evidence—obtained as a result of the Charter breach
            o just look at conscriptivenss—not “real”
                    was it conscriptive or not conscriptive?
            o focus on the discovery of the evidence
                    link between the breach and the discovery—causal connection
                             need not be strict connection—derivative is enough
                             Court leaves open the question of remoteness
            o dissenting opinion of L’Heureux-Dube
                    Court is digging itself into hole wherein evidence that affects trial fairness
                        will always be excluded—not considering “all the circumstances”
 R. v. Stillman (SCC) (1997)—resolving the “conscriptive evidence” controversy
            o accused conscripted by police to give evidence that incriminated himself
            o focus is on the fairness of the trial
                    if the evidence renders the trial unfair, it will be excluded
            o first step is to classify evidence—not real vs. conscriptive, but conscriptive vs.
                non-conscriptive (Burlingham)
                    real evidence becomes a useless term
                    crucial question—was it found without the participation of the accused?
                             if so, then it is nonconscriptive
            o derivative evidence—basically conscripted real evidence
                    flows from the Charter breach
                             breach was necessary to discovery of the evidence
                    general rule is that evidence derived from unlawfully conscriptive
                        evidence will render the trial unfair—so exclude it
            o the discoverability principle—if Crown can show that the evidence could have
                been obtained through non-conscriptive means, or that its discovery was
                inevitable, then the evidence will be admissible as long as those other means
                complied with the Charter
                     burden is on the Crown to show this on a BOP
            o here, discoverability did not apply—there was no legal means to seize those
                bodily samples
                     so, it rendered the trial unfair—excluded
            o but, the tissue containing the mucous was discoverable—had legal means to
                search the trashcan (admissible)
   R. v. Davies—adopted the narrow approach of Justice Cory’s article
            o conscriptive evidence is when accused is compelled to incriminate himself at the
                behest of the state by means of a statement, the use of the body, or the production
                of bodily samples
            o everything else is not conscriptive, even if not discoverable
   R. v. Harper
            o breach did not affect accused’s behavior—felt compelled from within to confess
            o so, the statement would have been made even if no breach had occurred
                     was discoverable—admitted
            o Crown has to show on a BOP that accused would not have consulted counsel even
                if advised—Burlingham, Bartle, Pozniak
   R. v. Feeney—focus on the second Collins factors
            o adoption of the narrow Stillman approach
            o some of the items seized were discoverable—proceed to second set of factors
                     serious breach—invasion of the home (trespass)
                             absence of good faith—no reasonable grounds to arrest
                             no urgency or exigent circumstances
            o proceed to third set of factors
                     nonconscriptive evidence was obtain as the result of flagrant disregard for
                        Feeney’s rights—so could have BAJID
                     serious crime—but still entitled to full protection of Charter
                     serious disregard for rights suggest that the admission would bring greater
                        harm to the repute of AJ than its exclusion
   R. v. Silveira (SCC) (1995)
            o here, the evidence was discoverable—preexisted the illegal search
                     not conscriptive—so not trial unfairness
            o seriousness of the breach
                     very serious—man’s home is his castle (sanctity of the home)
                     but, no bad faith, and the violation was motivated by urgency
                             exigent circumstances—needed to enter to preserve the evidence
                                which was likely to be destroyed b/c the public arrests of co-
                                accuseds took place close to the home of the appellant
                             thought they had the right to enter to preserve the evidence
            o effect on AJ
                     exclusion would hurt the Crown’s case on possession fatally
                     serious crime (drug trafficking)that has a harmful effect on society
                     so exclusion would bring greater harm to repute of AJ than admission
   R. v. Evans (SCC) (1996)
          o drugs and s.8 breach (invalid warrant based on “tipster”)
          o evidence was discoverable and nonconscriptive
          o seriousness of the breach—not that serious
                 good faith—police believed that the warrant was valid and did not know
                   that the “olfactory” search was beyond their investigatory powers
          o exclusion would be more likely than admission to BAJID
                 eviscerate Crown’s case if excluded—offenders would go unpunished
                 serious crime—growing marijuana

3.    Judicial Stay as Abuse of Process
 prior to the Charter, the courts developed a common law power for judges to stay criminal
proceedings as an abuse of process
          o used sparingly to control prosecutorial practices at trial deemed to be oppressive
 Rourke v. R. (SCC) (1978)—Court rejects notion of judicial power to stay as an abuse
          o abuse arose from pre-trial delay by the police—prejudicial b/c key witness died
          o majority rules that there is no general discretionary power in courts to stay
              proceedings regularly instituted because the prosecution is considered oppressive
                   judge must keep out of arena—no responsibility for instituting prosecution
                   if he has power to decline to hear a case b/c he doesn’t think it should have
                     been brought, then the cases he doesn’t stay will be thought to have his
                     tacit approval
                   difficult to discern how to appeal such a decision—no provision in Code
          o dissent finds power exists for court to control its own process and prevent abuse
 the stay of proceedings as a remedy under s.24(1)
          o not a decision on the merits, but a decision on whether the prosecution will be
              allowed to proceed further
 recognizing the stay—R. v. Jewitt (SCC) (1985)
          o stay is recognized as a remedy—overruled Rourke
          o stay is tantamount to an acquittal—thus, Crown has right of appeal
          o there is a general discretion of the court to control its processes and prevent abuse
                   thus, it is residual discretion in a trial court judge to stay proceedings
                     where compelling an accused to stand trial would violate those
                     fundamental principles of justice which underlie the community’s sense of
                     fair play and decency and to prevent the abuse of a court’s process through
                     oppressive or vexatious proceedings
          o stay can only be entered in the “clearest of cases”—see R. v. Young
 section 7 of the Charter and abuse of process
          o Keyowski—three trials
                   doesn’t have to show prosecutorial misconduct to prove abuse of process
                   mere fact of three trials per se is not enough to constitute an abuse of
                     process—doesn’t exceed the limits of community’s sense of fair play
                   have to demonstrate that it one of the “clearest of cases”
                   s.7 analysis left for another day—O’Connor
                           problem of onus—with s. 7 violation it is enough for accused to
                             show on BOP a violation of PFJ, but with abuse of process the
                             accused has to prove it is one of the “clearest of cases”
          o O’Connor—case stayed for abuse of process resulting from nondisclosure and
            Crown misconduct
                 conduct of the Crown was found not bad enough to throw the case out
                         was incompetent—but did not impair accused’s right to fair trial
                 what constitutes an abuse of process?
                         relationship between common law right to be free from abuse of
                             process and s.7 of the Charter
                         s.7 subsumes common law—abuse of process now violates s.7
                 s.7 analysis—have right not to be submitted to proceedings that are an
                     abuse of process
                         has to be a case where life, liberty, or security of the person is
                             engaged in a judicial proceeding
                         accused has to show on BOP a breach of rights as a result of an
                             abuse of process—then, the s.7 violation is made out
                                 o to get a stay, accused must then show that this is one of the
                                      “clearest of cases”, where a stay is warranted
                         only in the “clearest of cases”, where the prejudice to an 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 process if the prosecution were continued, will the remedy
                             under s.24(1) be a stay of proceedings
                 no “right against abuse of process”—sometimes different Charter
                     guarantees other than s.7 will be engaged
                         prosecutorial misconduct—pre-charge delay (s.11(b))
                         police misconduct—announcement to public of charges affect right
                             to a fair trial (s.7 AND s.11(d))
                 also a residual category of conduct caught by s.7
                         does not relate to individual’s ability to have a fair trial, but to the
                             unfairness/oppressiveness of the Crown and the appearance of
                             injustice (undermining the integrity of the judicial system)
                 Court finds that nondisclosure is an abuse of process, BUT that it is not
                     one of the clearest of cases—so, s.7 is violated but remedy is not a stay
                         other less drastic remedies are available that are “appropriate and
                             just” in the circumstances of the case
                                 o examples: disclosure order, or an adjournment
          o R. v. L. (W.K.)—lengthy pre-charge delay does not per se warrant a stay of
            proceedings (fairness of trial under s.7 not automatically undermined)


PRE-TRIAL PROCEDURES – IN THE COURTS

The Role of Defence Counsel
 who’s the boss?
          o G. Arthur Martin would say the lawyer is, except for fundamental decisions like
             how to plead, and mode of trial
          o cooperative model—client makes decisions and lawyer carries them out
                     unless decision is so unreasonable that you cannot do it ethically
           o the plea—can you let an innocent client plead guilty?
                     Rule 4.01 (8-9)
                             have to be satisfied that the client voluntarily admits to the
                                necessary elements of the offence
                     true innocent—misleading the Court?
                             overwhelming Crown case—then can plead him out (Proulx)
   the solicitor-client privilege—Rule 2.03
           o exception—imminent risk to an identifiable person or group of serious bodily
                harm or death
                     Smith v. Jones decision incorporated
                             can breach confidentiality, but only as necessary to prevent
                                imminent harm
   duty of candor—Rule 4.01
           o cannot put forward info that you know is fals
           o R. v. Murray—concealing incriminating physical evidence
                     issue of intent—could have been trial strategy and not to obstruct justice
                     reasonable doubt on this issue

The Role of the Prosecutor
 R. v. Boucher—role of the Crown is to be objective and impartial
          o goal is not to obtain convictions—no notion of winning or losing
          o serves a public function
 resources to draw upon to make decisions
          o the Crown Policy Manuals—governs Crown attorneys
                  AG—top Crown attorney and politician that sits in Parliament
          o LSUC Rules of Professional Conduct—Krieger
          o inquiries and inquests—Marshall and Kaufman inquiries have found that abuse of
              Crown discretionary powers has led to wrongful convictions
 Crown discretion
          o what factors govern that discretion?
                  reasonable prospect of conviction
                         higher than scintilla of evidence test
                         guilty verdict would not be unreasonable
                  look at the evidence—availability, credibility, admissibility, defences
                         admissibility—what about pushing the envelope?
                                o changing evidence law—Khan
                                        may be appropriate to continue a case where
                                           evidence is initially inadmissible to change law
                         assessing credibility—“if believed” would the evidence give rise to
                            a reasonable prospect of conviction
                  in the public interest—even though there is RPC, should we continue?
                         factors listed in CPM (p.544) (gravity of offence, etc.)
 R. v. S. (F.)—improper closing address and other improprieties
          o Crown counsel cannot use the power of the office to influence the jury
 disclosure
             o Krieger v. Law Society of Alberta (SCC) (2002)
                   preliminary DNA result showed blood on victim was not that of the
                      accused, but Krieger does not disclose this to the defence at prelim
                   the Law Society initiates disciplinary proceedings against him
                   he claims that it has no place in regulating the disclosure of Crowns
                   should LS be playing a supervisory role on Crown counsel decisions?
                   SCC—the guidelines were not ultra vires
                           Crowns are lawyers too—so it has jurisdiction over them
                           certain decisions are at the core of the power of AG (i.e. to
                             stay/proceed with a charge, to accept a plea, etc)
                                 o not appropriate for LS to regulate these
                           certain conduct is governable by LS that is not at the core, but is
                             akin to ordinary conduct of lawyers
                           decisions regarding disclosure are not at the core of the office of
                             the AG—so subject to governance by the LS
                                 o not even really a discretion—duty to disclose
                           can only discipline nondisclosure that is flagrant and done in bad
                             faith—that was the case here

Bail
      Friedland’s 1965 study opened the eyes of many in the CJS about the impact of bail
      Bail Reform Act—rectified some of these problems
      mechanics of the process—Part XVI of the CCC (s.515,518,522)
              o Thompson—provisions should be liberally construed in favor of accused/release
              o show-cause hearing—s.515(1)
                      Crown must show cause as to why the detention of the accused is justified
                      ladder effect—Crown must show cause why outright release isn’t
                         warranted, then has to show why the accused should not be released on a
                         form of release representing the least interference with his liberty, from
                         undertaking with conditions, to recognizance, sureties, finally to a
                         detention order --(conditions are necessary? Crown has to show why, etc.)
                      show it on BOP—R. v. Julian
              o reverse onus provisions—accused has to show cause as to why he should be
                 released pending trial
                      s.522—for s.469 offences
                      s.515(6)(a)—indictable offence and:
                              already out on bail
                              terrorism offence
                      s.515(6)(b)—indictable offence and not a Canadian resident
                              (c)—commit a bail-related offence (breach of bail)
                              (d)—drug offences punishable by life imprisonment; or conspiracy
                                 to commit such offences
                      presumption of innocence?
                              R. v. Pearson—reverse onus provision does not violate Charter
                                     o court is looking at s.515(6)(d)
                                            onus is reasonable in that it requires accused to
                                             provide info which he is most capable of providing
                                            special rules combat pretrial recidivism and
                                             absconding problems that are characteristic of
                                             systematic drug trafficking in a commercial setting
                                            provision may catch small time drug dealers, but
                                             they should have no problem justifying their release
           o who decides?
                  non-469 offences—bail hearings done by justice (usually JPs in Ontario)
                  s.469 offences—look at s.522 (1)
                           no court, judge, or justice, or than a judge in superior court of
                              criminal jurisdiction for the province, may release the accused
                              before trial—i.e. Superior Court Judges only
           o how?
                  s.518—factors and inquiries to be made by bail judge
                           rules of procedure more relaxed at bail hearing—can use hearsay
                              evidence, or other evidence ordinarily inadmissible at trial as long
                              as he finds it “credible” and “trustworthy”, and other party has
                              opportunity to correct or contradict
                           Crown doesn’t have to lead evidence—can just read synopsis
                           like sentencing phase—why?
                                   o time is at premium—accused wants it right away (no time
                                       to get witnesses, etc.)
                           hear about uncharged actions, record, bad character, psych. history
                                   o might not come out at trial
   s.515(10)—grounds for detention
           o criteria for detention—hearing is basically about application of 515(1)
                  Crown must show cause as to why accused should not be released by
                      justifying it on one or more of three grounds listed
                  same with accused if onus reversed
           o detention is only justified where:
                  primary ground (a)—necessary to ensure attendance
                  secondary ground (b)—necessary for safety of the public
                           is he going to reoffend?
                           is he going to interfere with A of J?
                  tertiary ground (c)—necessary to maintain confidence in the
                      administration of justice
           o every piece of evidence led by Crown (or accused) in a show cause hearing has to
             relate to one of these grounds:
                  primary ground
                           look at post-offence conduct—did he flee jurisdiction?
                           look at ties to the community—life circumstances that make it
                              unlikely for him to leave (family, job, etc.)
                           seriousness of offence—increased gravity = increased penalty =
                              increased likelihood of fleeing jurisdiction
                           previous compliance with court orders and other orders
                                    o probation orders, driving prohibitions
                     secondary ground—protection of public
                             criminal record
                             reputation in the community (does he have pugnacious character?)
                             nature of the offence—pedophile? domestic violence?
                             already on bail?
                     tertiary ground—justice has to look at:
                             apparent strength of prosecution’s case
                             gravity and nature of offence
                             circumstances around commission of offence, and the potential for
                                long term of imprisonment
                             basically, where you think he’ll remain in jurisdiction, and you
                                don’t think he’s going to harm public or AJ, but you think that
                                confidence in justice system will be undermined if you release him
                                    o brutal offence against an adulterous wife by an upstanding
                                        member of the community? (Trotter’s example)
   the history of the tertiary ground
           o used to be “public interest”
                     challenged in R. v. Morales—s.11(e) of Charter (right to bail)
                             Court struck down “public interest” ground as basis for pretrial
                                detention because it authorized detention in terms that were vague
                                and imprecise and thus authorized denial of bail without just cause
                                    o worried about “standardless sweeps”
                                    o impossible to give it meaning and gives courts unrestricted
                                        latitude to define any circumstances as sufficient to justify
                                        pretrial detention
                                              term creates no criteria to define these circs
                                    o no interpretation of it would be capable of rendering it a
                                        provision which gives any guidance for legal debate
                             found “public safety” component re second. ground constitutional
   the current provision—“maintain confidence in A of J” was challenged in R. v. Hall
           o CA—found it constitutional
           o SCC—majority
                     The portion of s. 515(10)(c) permitting detention "on any other just cause
                        being shown" is unconstitutional.
                             the impugned phrase confers an open-ended judicial discretion to
                                refuse bail, it is inconsistent with both s. 11(e), which guarantees a
                                right "not to be denied reasonable bail without just cause", and the
                                presumption of innocence.
                             It is a fundamental principle of justice that an individual cannot be
                                detained by virtue of a vague legal provision.
                             Parliament must lay out narrow and precise circumstances in
                                which bail can be denied.
                             The impugned phrase is not justified under s. 1 of the Charter.
                                    o generality--fails the proportionality test.
       
      The next phrase in s. 515(10)(c) ("without limiting the generality of the
      foregoing") is also void since it only confirms the generality of the
      preceding phrase.
     The balance of s. 515(10)(c), which authorizes the denial of bail in order
      "to maintain confidence in the administration of justice", is valid.
           It provides a basis for denying bail not covered by (a) and (b).
           Although the circumstances in which recourse to this ground for
               bail denial may not arise frequently, when they do it is essential
               that a means of denying bail be available because public
               confidence is essential to the proper functioning of the bail system
               and the justice system as a whole.
     Denial of bail "to maintain confidence in the administration of justice"
      having regard to the factors set out in s. 515(10)(c) complies with s. 11(e)
     This ground is narrower and more precise than the old public interest
      ground which was struck down as vague in 1992 and provides an
      intelligible standard for debate and for the exercise of discretion.
     Parliament has hedged the provision with important safeguards: a judge
      can only deny bail if satisfied that, in view of the four specified factors
      and related circumstances, a reasonable member of the community would
      be satisfied that denial of bail is necessary to maintain confidence in the
      administration of justice.
     The provision strikes an appropriate balance between the rights of the
      accused and the need to maintain justice in the community.
     The appropriate remedy in this case is to sever the phrase "on any other
      just cause being shown, and without limiting the generality of the
      foregoing,".
     The balance of s. 515(10)(c) can stand alone as a functioning whole
      without doing damage to Parliament's intention.
o SCC—dissent
     At the heart of a free and democratic society is the liberty of its subjects
      and our justice system must minimize unwarranted denials of liberty.
           Under s. 11(e) of the Charter, the reference to "just cause" requires
               that bail be denied only in narrow set of circumstances and where
               necessary to promote the proper functioning of the bail system.
           It cannot be denied for a purpose extraneous to the bail system.
           Section 515(10)(c) must thus be scrutinized in light of these
               constitutional requirements.
     Fear that a bail judge will be unable to protect the public without s.
      515(10)(c) is without reasonable foundation.
     There is no evidence that the bail system was lacking in any way before
     the introduction of the provision in 1997, five years after the "public
      interest" ground for denying bail had been struck down as
      unconstitutionally vague.
     Crown could not raise even a convincing hypothetical that would require
      pre-trial detention for reasons not contemplated by s. 515(10)(a) or (b).
                   The wording of s. 515(10)(b) is broad enough to encompass threats to "the
                    protection or safety of the public" other than from an accused and
                    including public unrest and vigilantism.
                  Section 515(10)(c) must be assessed as a whole—its structure belies
                    piecemeal analysis.
                  For the purposes of argument, however, the two components of s.
                    515(10)(c) are assessed separately. .
                         It is impossible to hold that the phrase "any other just cause"
                            provides for the denial of bail under a narrow set of
                            circumstances.
                                 o The phrase is deliberately open-ended and is more vague
                                    than the old "public interest" ground for denying bail
                                    because it fails to specify even a particular basis upon
                                    which bail may be denied.
                                 o This open-ended judicial discretion to deny bail does not
                                    promote the proper functioning of the bail system.
                                 o The broader the terms under which bail may be denied, the
                                    more the presumption of innocence -- the raison d'être of
                                    the bail system – is compromised.
                  Nor does the "confidence in the administration of justice" component of s.
                    515(10)(c) provide a sufficiently precise standard.
                         The specific factors listed in s. 515(10)(c) provide little more than
                            a facade of precision.
                         Whether the phrase "maintain confidence in the administration of
                            justice" has been given a workable standard by courts and/or
                            Parliament in other contexts, in the context of s. 515(10)(c) it is
                            impermissibly vague because of the failure to establish a plausible
                            and valid ground for denying bail that would serve the proper
                            administration of the bail system and that is not already covered
                            under the more specific grounds in s. 515(10)(a) and (b).
                         Without such an independent ground, the listed factors, by
                            themselves, point to a denial of bail on the mere two-fold basis of a
                            serious crime and a strong prima facie case; however, it does not
                            promote the proper functioning of the bail system to detain an
                            accused on this basis alone, when the accused is not a flight risk
                            and does not pose a threat to public safety.
                  Section 515(10)(c) essentially revives the old "public interest" ground and
                    invokes similarly vague notions of the public image of the justice system.
                         It is ripe for misuse and allows irrational public fears to be elevated
                            above an accused's Charter rights.
                         The problem with s. 515(10)(c) is that it allows the subjective fears
                            of the public and ill-informed emotional impulses extraneous to the
                            bail system to form a sole basis for denying bail.
                  it is not a reasonable limit under s.1
                  so, the only available remedy is to strike down s. 515(10)(c) in its entirety.
   Stuart’s comments on Hall
          o it ignores studies pointing to systemic discrimination in the bail context
          o allowing wider discretion for bail judges to deny bail may cause more unjust
            pretrial detention of minorities


Mode of Procedure/Mode of Trial: Elections and Re-Elections
 Crown—mode of procedure
         o hybrid—until election: indictable (s.34(1)(a) of Interpretation Act)
                timing—usually first appearance prior to plea, but may be held up to the
                   calling of evidence
                failure to elect—tried as summary
                not subject to judicial review—unless governed by Charter (s.7)
         o can re-elect if it wants (Code is silent)
                Crown has to seek permission of judge and defence has to consent after
                   evidence has been called, or during the preliminary inquiry
                why re-elect?
                        new information comes forth
                        defence is only likely to agree if re-electing to summary
                usually rather than re-elect, Crown withdraws the information and re-lays
                   a new one on which it proceeds by indictment (nullity—no double jeop.)
 defence—mode of trial
         o no election for s.553, s.469 and summary offences
         o elections—PC judge, SC judge alone, SC judge and jury
                default position is SC with jury
         o limits
                has to be same for all counts—cannot elect different courts for different
                   counts in the same information b/c it amounts to severance of counts
                   without satisfying criteria for severance (s.591(3)—interests of justice)
                co-accused—if they can’t agree, get a jury trial under s.567 + s.565(1)(b)
                if penalty is 5+ years imprisonment, s.568 permits AG to require jury trial
                where Crown lays direct indictment under s.577—presumptively a SC jury
                        matter of such public importance—need a SC jury trial
                        accused can re-elect by judge alone—needs Crown consent
                s.598—accused loses right to a jury trial if he fails to appear for trial or
                   remain, unless he can show the TJ that there is a legitimate reason
         o s.561—right to re-elect menu
                sometimes Crown consent is required, sometimes not—depends on time of
                   the re-election
                        re-elect to PC at any time before or after prelim with Crown
                            consent; from 15th day after prelim onward, can re-elect with
                            Crown consent; re-election as of right (w/o Crown consent) before
                            end of prelim or within 15 days of its completion only where re-
                            elect a mode of trial other than in PC
                        re-elect to SC from PC as of right up until 14 days before trial—
                            after that, need consent of Crown
                usually Crown should consent though—but, no judicial scrutiny usually
                             judges will only intervene if Crown is refusing consent in such an
                              arbitrary manner that it constitutes abuse of process (s.7 violation)


The Preliminary Inquiry
 3 considerations as to whether accused has entitlement to a prelim
          o electable indictable—elects trial in SC
          o indictable or hybrid—Crown elects to proceed by indictment
          o not 553 indictables—no prelim b/c absolute jurisdiction of the Prov. Ct.
 prelim occurs in lower court—usually PC judge
 purpose is to screen out weak cases—evidence sufficiency
          o little right of appeal (certiorari to quash)
                  only ground for reviewing is lack of jurisdiction
 CCC – Part XVIII sets of procedure for prelim
          o s. 535—inquiry by justice
          o s.540—evidence at a prelim
          o s.541—accused calling witness: judge has to give accused opportunity to do so)
          o s.548—powers of the justice to order
                  he can order accused to stand trial or discharge
                  sets out the test—is there sufficient evidence to put the accused on trial for
                      offences charged or any other indictable offence arising out of the same
                      transaction
          o s.549—order to stand trial at any stage of prelim with consent
                  waiver of prelim—need consent of accused and Crown
                  reasons for waiver
                           guilty plea; cost of lawyer; don’t need more disclosure
                  why Crown consent required?
                           if there are frail, aged witnesses, may choose not to consent to get
                              their evidence down in the record at prelim to read in at trial
 R. v. Chabot (1980) (SCC)—scope of prelim judge’s power to commit for trial on prelim?
          o second-degree murder charge—ended up being committed by PJ on first-degree
             murder charge at end of prelim
          o case arose before amendments to CCC—“any other indictable offence”
          o decision (Dickson)
                  no inherent power to commit accused on more serious offence than that
                      charged—has to be granted by statute or by necessary implication
                  debate over “charge” in phrase “or any other charge”
                           “other charge” said to refer to other charges set out in the
                              information—not other charges arising from same transaction
                  a fairness issue—prelim judge should not be able to lay charges based on
                      accusation, rumor, or innuendo—it’s the job of police/Crown
                  no authority to lay related charges not in information
 s.535 of the CCC was a direct response to Chabot
          o language changed from “charge” to “offence”
          o added in “in respect of the same transaction”
 preferring an indictment
           o following committal—Crown drafts indictment
           o s.574, 566—preferred indictment provision
                    Crown may prefer indictment on any charge that the person is ordered to
                       stand trial on, or any other charges based on evidence given at prelim
                            doesn’t have to be same transaction
           o s.577—direct indictment
                    bypass prelim altogether—even if accused has already been discharged
                    held not to infringe Charter in Arviv and Stolar—no absolute right for an
                       accused to be given a hearing or to submit representations before the
                       preferment of an indictment, and that power does not infringe s.7
                    used gingerly, in the public interest—R. v. Bernardo
   prelim as a discovery vehicle
           o Skogman v. R—prelim affords defence with opportunity of ascertaining nature
               and strength of the Crown’s case
                    cross-examination of witnesses—get their story down, and use it to
                       impeach them later at trial
                    like an exam for discovery
   sufficiency of the evidence—s.548
           o same test as “no evidence motion” or directed verdict—need some evidence that
               goes to every element of the offence
           o test is there to promote rational decision-making
           o U.S. v. Sheppard—SCC set out the test
                    is there sufficient evidence upon which a reasonable jury, properly
                       instructed, could return a verdict of guilty
           o R. v. Monteleone (1987) (SCC)
                    TJ granted directed verdict—reversed on appeal (SCC upholds CA)
                    arson—expert evidence says no accidental cause determined
                            motive and opportunity of the accused
                    problem—origin of fire/arson could not be determined
                            evidence equally consistent with guilt as with innocence
                    effectively, TJ decided case based on the rule in Hodge’s case
                            should be governed by the Sheppard case
                    question of whether the circumstantial evidence meets the requirement of
                       Hodge if for the jury to determine—not the TJ
                    TJ should not draw inferences of fact from the evidence before him, nor
                       should he weigh the evidence, assess its reliability once a determination of
                       admissibility is made—for the jury to do, not him
                    test is the same regardless of whether the evidence is direct or
                       circumstantial—is there is sufficient evidence that if believed by a
                       reasonable, properly instructed jury, would justify a conviction?
                    so, TJ can look at circumstantial evidence and know that it’s equivocal,
                       and that if jury convicts it will be an unreasonable verdict
                            but, he still has to put it to the jury to decide
                            policy reason?—Crown’s case will build through trial, after prelim
           o R. v. Nelles (1982) (SCC)—discharge after prelim
                    was the TJ really weighing the evidence instead of seeing if it was there?
       looked like weighing, which is what the SCC said in Monteleone not to do
o R. v. Charemski—expansion of Monteleone?
       SCC—split 3-2
       similar situation as Monteleone—TJ directed verdict
       majority—Bastarache
                for jury to weigh the evidence—go by rule in Hodge’s Case
                not for TJ to do it for them, but he must make it plain to the jury,
                  before basing a verdict of guilty on circumstantial evidence, the
                  jury must be satisfied BARD that guilt of the accused is the only
                  reasonable inference to be drawn from the proven facts
                Crown presented sufficient evidence from which a reasonable jury,
                  properly instructed, could return a verdict of guilty
       dissent (McLachlin)
                departure from Shepard test, and Monteleone
                no weighing—but no proper jury could conclude that this was a
                  wrongful death
                      o evidence is incapable of supporting this proposition
                TJ should do a quasi-weighing—could a jury reasonably convict?
                      o closer to test for unreasonable verdict—appellate judge test
                      o like the Yebes test—TJ (AJ) should determine, on the
                          whole of the evidence, whether a guilty verdict is one that a
                          properly instructed jury could reasonably render?
o R. v. Arcuri (SCC) (2001)—McLachlin gets her majority
       first-degree murder—all circumstantial evidence; accused called evidence
          at the prelim
       TJ commits—CA upholds it
       SCC upholds committal—but elucidates extent to which prelim judge
          should weigh the evidence?
       reaffirmation of Shepard test—same test as for directed verdict
                “any evidence” standard
       test is the same whether or not the evidence is circumstantial or direct
                still “some evidence” test
       but, it becomes complicated where the Crown has not presented any direct
          evidence in its case at all
                this requires some weighing of the evidence because there is an
                  inferential “gap” between the evidence and the matter to be
                  established—the TJ must determine whether the evidence is
                  reasonably capable of supporting the inferences that the Crown
                  asks the jury to draw (i.e. of guilt)
                      o i.e. are the inferences to be drawn reasonable?
                      o have to make that leap before you can decide whether it
                          supports guilt
                      o limited weighing never requires consideration of reliabilty
       where accused raises exculpatory evidence, TJ must engage in a limited
          weighing of the evidence as a whole to determine whether a jury properly
          instructed could return a verdict of guilty
                     where rule in Hodge’s case applies, where the evidence is equally
                      consistent with guilt as with innocence, then the evidence cannot
                      reasonably support an inference of guilt
                           prelim judge should deny committal in this case
                   analysis
                           McLachlin has reshaped the “no evidence” test
                                  o made it more consistent with “unreasonable verdict” test
   R. v. Hynes (SCC) (2001)
           o reaffirms that a judge in a prelim is not a court of competent jurisdiction for the
              purposes of granting a Charter remedy under s.24(2) (exclusion of evidence)
           o no Charter jurisdiction—function is just to inquire and assess sufficiency of the
              existing evidence
           o policy reasons
                   recognizing remedial jurisdiction in PJ has the potential to transform the
                      role Parliament intended this process to perform in CJS
                           prelim might become forum for trying Charter breaches and
                              getting remedies rather than screening
                   assigning this new role to PJs might undermine the expeditious nature of
                      the prelim
                   TJs are better situated than PJs to engage in s.24(2) determinations
                           must appraise impact of the evidence on fairness of the trial and
                              repute of justice system
                           issues are best reserved for a TJ who is likely to have a more
                              complete picture of the evidence and its significance in the context
                              of the case and is thus better situated to resolve such questions
                   Charter motions at prelim level may increase costs and delays
                   Parliament’s intention that these Charter issues be decided in a forum
                      where there is proper review by higher courts (avenues of appeal)
                           there is no statutory right of appeal from ruling of PJ
                           Crown’s power to proceed by direct indictment is not a proper
                              substitute for a statutory appeal mechanism


Disclosure and Production
 disclosure—access to information in possession of the Crown
 production—rules of criminal procedure by which defence counsel obtains access to info in
the control of third parties
 Stinchcombe and following—when do Crown agents have to disclose to the defence?
 O’Connor—Court draws distinction between disclosure and production
           o Crown—obtains fruits of investigation
                    obligation to disclose to the defence (Stinchcombe Charter)
                    3rd parties—may have info the defence needs
                             no obligation to disclose to the defence (ordinary people)
                                  o how does the defence obtain it?
                                          rules of production
 the theory of disclosure
          o fight theory of justice
                   why should Crown have to disclose?
                          basic fairness—avoids miscarriages of justce
                                 o Royal Commission of the Marshall Prosecution
                          efficiency—may not go to trial if have full disclosure (take a plea)
          o nondisclosure—consequences can be stay of proceedings (most common reason)
          o cons to fight theory impact
                   accused could tailor his evidence to fit the disclosure
                   gets complicated—could slow down justice
                   accused could intimidate witnesses
 R. v. Stinchcombe (SCC—Sopinka for the Court)
          o imports civil law standard into the criminal law
          o Crown must disclose
                   Crown acts on behalf of the public—fruits of the investigation are public
                     property (not Crown’s personal property)
                   rights of accused to make answer and defence
          o limits
                   Crown must disclose all info that is not clearly irrelevant or privileged
                   must be made before defence elects mode of trial
          o an ongoing duty—throughout trial and appellate process
          o all exculpatory and inculpatory evidence in possession or control of the Crown
                   charges; synopsis; witness statements; address and number of witnesses;
                     tapes; accused’s + witness’ criminal records; accused’s statement; forensic
                     reports; documents + photos; search warrants; YOA record; ID info; all
                     info relevant to credibility of witnesses; all info relevant to defence
          o only triggered by defence request
                   to justify argument for stay, they better have a letter stating what they
                     wanted and what they didn’t get
          o some discretion to protect identity and prevent harassment
                   also in relation to timing
          o informants—informer privilege
                   can only be overcome by “innocence-at-stake” exception (Leipert)
                          if need to know the identity of informant to exonerate innocent
 s.278.1 to s.278.9 of CCC—exception in sexual assault cases
          o regime of production in sexual assault cases mostly
          o complainant’s private information—comes into Crown’s possession
                   usually privilege is gone and Crown has to disclose
                   in sexual assault cases, defence has to make special application to obtain
                     these records “interests of justice”
                   gives defence a “search warrant”—a way to access the info of 3rd parties
                          TJ has power to force witness with subpoena to hand over
                             documents demonstrated to be relevant beforehand
 relevance—information of which there is a real possibility that, if deprived thereof, accused
won’t be able to make full answer and defence
          o anything that can be helpful to the defence
 what is the “Crown”—the “fruits of the investigation Crown
          o OR the “Crown at Large” (the entire government)
                   obligated to disclose info in hands of the police, whether or not Crown
                     knows about it the info
                   this can create the nightmare
 what is control—control witnesses
          o diary example—control their property?
                   complainant tells Crown they kept a diary—have to get her to produce?
 right to disclosure is an independent Charter right—not an adjunct to right to make full
answer and defence
          o so don’t have to show abridgement of the right to make full answer and defence
 Stinchcombe application
          o trial court—but entitled to disclosure before election?
          o defence obligations—show it to Crown and file it with the Court
                   has to specify relief sought and;
                   grounds argued
                   material to be relied on in the hearing
          o Crown obligations
                   inventory—what has Crown actually got? (then judge examines item)
                   Crown has to establish that it is not relevant
                   can refuse where not known—existence of which is not known
                           Chaplin—defence has to show that material exists before
                              demanding that the Crown make disclosure
          o stay only granted where accused’s ability to make full answer and defence is
              unremediable—clearest of cases (abuse of process)
 conditions—on the court order (possible)
          o purposes for defence (not for public dissemination)
          o publication ban
          o restricting access
 production regime—seek info from someone in the world at large (i.e. psych records)
          o defence—O’Connor application
                   competing rights—s.7 accused; s.8 complainant
                   all have to show is that the info is likely relevant
                   initiation
                           must bring formal written application to the Court supported by
                              affidavit setting out specific grounds for production
                           notice to third parties must be given—those in possession and
                              those with a privacy interest at stake
                                   o defence should ensured subpoenaed
                           test for relevance is higher—judge must be satisfied that there is a
                              reasonable possibility that the info is logically probative to an issue
                              at trial or the competence of a witness to testify
                   brought to Court—looks at it, inspects it, and decides how much of it, if
                     any, should go to the defence
          o 2 stage process when defence seeks info in the hands of a third party
                   defence must show that evidence is likely relevant (no rights assessment)
                           likely relevance not to be onerous burden
                               low threshold—accused may be disadvantaged by arguing
                                relevance of a document he had not seen
                             relevance threshold just there to prevent defence from engaging in
                                “fishing expeditions”
                      upon production to the Court, judge determines relevance and whether it
                        outweighs the rights of the complainant
                             determines whether, and to what extent, they should be produced
                                to the accused
                             five-factors in balancing the rights in question
                                    o extent to which the record is necessary for accused to make
                                        full answer and defence
                                    o probative value of the record in question
                                    o nature and extent of the reasonable expectation of privacy
                                        vested in that record
                                    o whether production of the record would be premised upon
                                        any discriminatory belief or bias
                                    o the potential prejudice to the complainant’s dignity,
                                        privacy, or security of the person that would occasioned by
                                        production of the record in question
                      formal written application—set out info you want and from who
                             basis for application
                      serve on the Crown and the witness, and if not in the hands of the witness,
                        the custodian of the records
           o legislation—s.278 – s.278.9 (sex cases)
           o non-sex cases—O’Connor still governs the production regime
   the legislative regime in sex cases (s.278.1 – 278.91)
           o s.278.1--records other than investigative records for which the complainant has a
                reasonable expectation of privacy (Mills)
           o s.278.2—provisions are triggered by an application by the accused charged with
                listed sexual offences
                      includes records in control of any person, including Crown (overrules
                        O’Connor majority, upheld in Mills over Lamer’s dissent)
                      if in hands of Crown, must notify accused that he has the record in his
                        possession, but, shall not disclose the contents
                      continuing privacy interest even if in possession of the accused (Shearing)
           o s.278.3 – s.278.7—multistaged procedure
                      s.278.3—accused makes written application for production to the TJ
                        identifying the record, the person in control of the record, and the grounds
                        for seeking the production of it
                             s.278.3(3)—purposes for which a record may be produced:
                                relevant to an issue at trial, or to the competence of a witness
                             s.278.3(4)—certain assertions that, on their own, are not to be
                                sufficient to provide grounds for the production of the record
                             accused must serve application on prosecutor and the person with
                                the privacy interest in the records, and the person in control of it
                                    o serve subpoena in Form 16.1 on person having control
                     s.278.4—in camera hearing to determine whether to require production of
                      the records to the judge to review
                    s.278.5—basis on which judge may decide to require production of the
                      records—make determination without necessarily reviewing the records
                           before ordering records to be produced, judge must be satisfied
                              that the application is in accordance with s.278.3, the accused has
                              established that the record is likely relevant to an issue at trial or to
                              the competence of a witness to testify, and that the production of
                              the records is necessary in the interests of justice
                           s.278.5(2)—test judge must apply
                                  o required to consider accused’s right to full answer and
                                      defence as well as the privacy and equality rights of the
                                      person to whom the records relate (overrules majority in
                                      O’Conner no equality)
                                  o consider the salutary and deleterious effects of the
                                      determination on the accused’s rights and complainant’s
                                  o has to consider a number of listed factors that focus not
                                      only on the probative value of the evidence and the privacy
                                      interests of any person, but broader societal concerns
                                           3 additional factors to the O’Connor five
                                                   society’s interest in encouraging reporting of
                                                       sexual offence
                                                   societal interest in encouraging the obtaining
                                                       of treatment by complainant’s of sex crimes
                                                   the effect of the determination on the
                                                       integrity of the trial process
                           s.278.8—judge must give reasons for the decision
                    s.278.6—third stage of procedure
                           if judge decides that records should be produced to the judge, the
                              judge must then decide whether to disclose them to accused
                           ordinarily made by judge in absence of parties, but may hold in
                              camera hearing if it will assist him
                    s.278.7
                           s.278.7(1) + (2)—test for determining whether to order disclosure
                              involves factors that are same as those in s.278.5(2)
                           s.278.7(3) - (6)—where judge decides that a record or part of it
                              should be produced to defence
                                  o (3)—can impose conditions on disclosure (edited, copies of
                                      the record not be made, examined only at court offices)
                                  o (4)--judge will order copy of record be disclosed to Crown
                                      unless not in interests of justice
                                  o (5)--production made subject to condition that it is not to be
                                      used in any other proceedings
                    s.278.9—offence to publish/broadcast application, hearing, judge reasons
   lost evidence cases
           o Carosella—lost evidence (crisis centre destroyed the records)
                    SCC went nuts—found unremediable breach of right to make full answer
                     and defence (stay of proceedings)
           o R. v. La, R. v. Vu
                  lost rather than deliberately destroyed
                  Crown’s duty to disclose all relevant evidence in its possession gives rise
                     to duty on Crown and police to preserve evidence known to be relevant
                  where evidence lost, Crown has a duty to explain the loss
                  where Crown’s explanation satisfies the judge that the evidence has not
                     been destroyed or lost deliberately, duty to disclose has not been breached
                  where Crown not able to satisfy judge, it has failed to meet disclosure
                     duties, and there has been a breach of .s7
                  judge’s decision
                          considers relevant that the evidence was perceived to have at time
                          reasonableness of conduct of police/Crown
                          as relevance of evidence increases, so does the degree of care for
                              its preservation that is expected of the police
                  abuse of process
                          conduct on part of government that violates fundamental principles
                              that underlie the community’s sense of decency and fair play
                          deliberate destruction of material to defeat disclosure duties falls
                              into this category
                          not limited to officers of the Crown which proceeds from improper
                              motive—third party destruction
                          serious departures from Crown’s duty to preserve material subject
                              to production—notwithstanding that deliberate destruction for
                              purposes of defeating duty of disclosure not established
                  stay of proceedings
                          extraordinary circumstances—loss of a document may be so
                              prejudicial to right to make full answer and defence that it impairs
                              the right of an accused to receive fair trial
                                   o stay is appropriate remedy here
   R. v. Mills—upholds s.278.1 – s.278.91 as constitutional

Change of Venue
  general rule—crime ought to be prosecuted locally
  exceptions regulated by s.599 of the Code
          o court can change the venue if it appears expedient to the ends of justice
  usually changed where pretrial publicity has made it hard to have an impartial jury
  R. v. Ponton—sympathy for the accused
          o application made by the Crown to change venue because of sympathy to accused
              was such that a fair trial could not be had
          o people were shouting out to the jury room their support for Ponton—argued to
              have an intimidating effect on the jury
          o if they had convicted Ponton, they could not have passed safely through the
              crowd around the courthouse
          o one of the jurors appealed to a constable because he feared they would hurt him
            o some of them were threatening the judge
            o judge grants the order changing venue for the second trial
  R. v. Fatt—venue changed because of bias in a small native community against the victim
 and in favor of the accused
  R. v. Suzack and Pennett—sympathy for the victim
            o motion for change of venue based on pretrial publicity—denied
                     scope of appellate review
                             court can only interfere with TJ’s exercise of discretion if he erred
                                in principle (i.e. failure to consider relevant factors, taking into
                                account irrelevant ones, or improper weight to applicable ones) or
                                exercise of discretion was unreasonable in all of the circumstances
            o the test—onus is on the defence to show on BOP that there is a fair and
                reasonable likelihood of partiality in the area that cannot be overcome by
                safeguards in jury selection process
                     including oath, instructions from TJ to panel during screening,
                        peremptory challenges, challenges for cause and rules of evidence
            o placing the onus on the defence is nothing more than the application of the
                traditional rule that the party who seeks a remedy bears the onus of showing the
                need for that remedy
            o where the real cause for prejudice lies in the evidence that the jury will
                eventually hear anyway, a change of venue does not assist in protecting an
                accused’s right to a fair trial—safeguards must provide that protection
  other safeguards could include publication bans, reporting bans, etc.


THE TRIAL PROCESS

Plea Bargaining
 90% of cases end in guilty plea
           o admission of facts sufficient to support the charge
           o Crown will read facts and defence will agree
                   sometimes defence will disagree about certain facts, and Crown will have
                     to call evidence to prove them BARD
 joint submission is seen as a reward for saving the system the costs of a trial
 list of things Crown can bargain with set out at p.626
 R. v. Adgey—TJ’s role in accepting a guilty plea
           o issue—when should an accused be permitted to withdraw a guilty plea?
           o facts—accused pled guilty to a number of counts and TJ did not make a proper
              inquiry into what accused was pleading guilty to
           o Laskin’s famous dissent
                   TJ erred in entering guilty pleas where accused challenged the facts
                   TJ has duty to ensure accused understands the nature of the charge, that
                     the facts set out actually support the charge, and that accused is
                     unequivocally pleading guilty to those facts
                   here, TJ failed to inquire whether accused understood the nature of the
                     charge and consequences of a guilty plea
           o Dickson’s majority
                  no hard and fast duty
                  accused had a lawyer
                  in some cases, accused may not understand what he is doing—TJ is
                     twigged to it, and should make inquiry to ascertain if he does so
                          only in cases where it appears that accused does not fully
                             understand the nature of the charge or the effect of his plea, or if
                             the matter is left in doubt, does the TJ have a duty to inquire
                          but, where represented by counsel, the twigging will not usually
                             occur, and duty is not usually raised
                  rejects the Forde rule as too narrow
                          no reason why the Court’s right to permit a withdrawal of a plea of
                             guilty should be necessarily limited to the “admitted” facts
                          statements made in course of inquiry following the plea, that show
                             that he could in law have been convicted of the offence charged,
                             although not admitted by the Crown, may justify Court in rejecting
                             the plea and proceeding to trial
                  any evidence to show that accused did not intend to admit all facts, or did
                     not really intend to plead guilty, or misapprehended what it meant, then TJ
                     has discretion to direct that a plea of not guilty be entered, or permit
                     accused to withdraw his plea and enter a new one
   Law Reform Commission of Canada—rejects plea bargaining
           o destroys appearance of justice
           o becomes not a decision on the merits, but on bargaining skills of the players
   R. v. D.(E)—police renege on a plea agreement
           o accused seeks a stay of proceedings—TJ grants it (abuse of process)
           o Crown appeals—overturn TJ
                  sometimes, reneging will amount to an abuse of process
                          but, these cases usually involved “deals” in which the accused
                             made some sort of compromise to his position and made a real
                             concession for a reward, and because of that compromise, the
                             accused had been prejudiced by the Crown reneging on the deal
                  uncertain whether there was a deal here under which he agreed to leave
                     complainants alone in return for charges not being laid, or just warning to
                     stay away from complainants and told that they were unwilling to testify
                  burden is on accused to establish abuse of process
                  he gained psychological comfort and peace of mind from being told he
                     would not be charged, but this may give rise to a claim of abuse of process
                     only where it is an unfair reneging on expectations generated in accused
                          not unfair here--no disruption of his life and no prejudice from the
                             reneging or the delay (i.e. charges are not more serious than that
                             which he would have faced in 1984, etc.)

Plea
 s.606—lesser, included offences
           o need Crown consent to plea to lesser, included offences (arising out of same
               transaction)—court “may” accept that plea (duty?)
   R. v. Hansen—withdrawing the guilty plea
           o Crown’s error adversely influenced later proceedings—TJ allowed accused to
               change his plea b/c it would be unfair to hold him to his guilty plea
                    proceeded under false assumption about potential laying of a more serious
                       charge—colored his appreciation of charge and his choice of alternatives
           o one week adjournment and TJ’s explanation not sufficient here
   R. v. Rubenstein— jumping the joint submission
           o TJ refuses to abide by joint submission and imposes harsh sentence
           o then, he doesn’t allow the defence to withdraw the plea—b/c judge shopping
           o CA dismisses appeal against conviction
                    unseemly to bring TJ into the bargaining process
                    would promote judge shopping
                    power of a TJ to impose a sentence cannot be limited to a joint submission
                       and joint submission cannot be made the basis upon which to seek to
                       escape the sentencing judge when it appears he rejects it
                    plea of guilty exposes an accused to a proper sentence to be determined by
                       the TJ like a finding of guilt after trial does—accused should know this
   R. v. Lessard—can a TJ vacate an adjudication of guilt?
           o TJ finds accused guilty—but permits defence to reopen its case and then he
               acquits on the basis of the new evidence
           o question is whether a TJ is precluded from reopening a case and permitting the
               accused to testify after finding him guilty
                    importance of not being functus officio
                            TJ in a nonjury trial is not functus officio following a finding of
                               guilt until he has imposed sentence or otherwise finally disposed of
                               the case—recognized that a TJ may permit accused to change plea
                               of guilt to one of not guilty at any time before sentence imposed
                               because up to that time, the proceedings have not been completed
                    no reason why a TJ who has made a finding of guilt on disputed facts is
                       not also empowered to vacate the adjudication of guilt at any time before
                       the imposition of sentence
                            BUT, it is a power that should only be exercised in exceptional
                               circumstances and where its exercise is clearly called for
                                   o court has to ensure that only the guilty are punished—must
                                       clear the innocent
                    functus officio arises where case is dismissed
                    jury trial—TJ has no power to vacate verdict (separate functions)
           o thus, TJ has a discretion to vacate his finding of guilt and allow defence to reopen

								
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