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Criminal Procedure Short-Summary 1 Table of Contents Introduction to Criminal Procedure................................................................................. 8 Theories of the Criminal Process ................................................................................. 8 Kent Roach, Due Process & Victim’s Rights ........................................................................ 8 Victim’s Rights Bill (1995) ............................................................................................ 9 The Charter’s Impact on Canadian Criminal Procedure................................................ 9 Prof, “In Search of Dialogue: The S.C.C., Police Powers & Charter” ........................... 9 Jurisdiction Over Criminal Procedure & Criminal Prosecutions ............................ 10 A.G. Can v. C.N. Transportation Ltd (1983) & R v. Wetmore (1983)................................ 11 Classification of Offences ........................................................................................... 11 Indictable Offences .................................................................................................... 11 Summary Conviction Offences .................................................................................. 11 Hybrid or Crown Election ......................................................................................... 12 Stopping Powers .............................................................................................................. 12 Principle of Legality (Fundamental tenet of Law) ........................................................... 12 R. v. Dedman (1985) – Principle of Legality – Pre Charter Decision ...................................... 12 Koechlin v. Waugh & Hamilton (1957) Ont. Court of Appeal (Civil Suit) – Pre Simpson ....................................................................................................................................... 12 Spectrum of Grounds .................................................................................................... 13 R.v. Dedman (1985)(SCC) – Birth of Ancillary Powers Doctrine .............................................. 13 R. v. Clayton & Farmer ..................................................................................................... 14 Regina v. Simpson (1993)(Ont C.A.) – Investigative Detention – Post Charter ............................ 14 Professor Young – Racism & Investigative Detentions – Referenced in Simpson ............................. 15 R. v. Therens (1985) SCC – Meaning of Detention ................................................................. 16 R. v. Thomsen (1988) SCC – Unanimous SCC on meaning of “Detention” ................................ 16 R. v. Mann (2004)(SCC) – Status of Investigative Detention in Canada..................................... 17 Ferris (BC Court of Appeal) – Search Incident to Investigative Detention ..................................... 18 R. v. T.A.V. (2002) (Alta C.A) – Investigate Search & s.10(b) ............................................. 18 R. v. Mooney (1997) Ont. Court of Appeal – Length of “Brief Detention” .................................. 19 Dupuis – Alberta Case – Length of “Brief Detention” ............................................................. 19 Closing Notes on Investigative Detention Powers.......................................................... 19 Analytical Approach to Investigative Detention ....................................................... 19 Stopping Powers Involving Motor Vehicles .................................................................. 20 R. v. Hufsky (1988)(SCC) – Fixed Point Sobriety Stops (Post Dedman in Charter Era) .............. 20 R. v. Ladouceur (1990)(SCC) – Roving & Random Police Stops .............................................. 21 R. v. Mellenthin (1992)(SCC) – Police Check Stops & Ulterior Motives .................................... 22 Boxer Wants Halifax Police On the Ropers – (Sept 2003) ....................................................... 22 Police Target Black Drivers – Toronto Star (October 20, 2002)................................................. 23 Brown v. Durham Regional Police (Court of Appeal) – Ulterior Motives...................................... 23 Thomsen v. The Queen (1988)(SCC) – S.10(b) & Motor Vehicle Stops .................................... 23 Summary of Stopping Powers Involving Motor Vehicles......................................... 24 Search &\Or Seizure Powers.......................................................................................... 25 Pre-Charter Era ............................................................................................................ 25 Entick v. Carrington (1765) – The Genesis of Modern Protection .......................................... 25 2 R. v. Colet (1981)(SCC) – Principle of Legality & Strict Construction (Pre-Charter) ................ 25 Post Charter (s.8) – S.8 & Analytical Framework ..................................................... 26 Hunter v. Southam (1984)(SCC) – Legislation in Quasi-Criminal Context ............................ 26 R. v. Collins (1997)(SCC) – Framework for Assessing Reasonableness under S.8 .................... 27 Engaging S.8: Reasonable Expectations of Privacy ................................................. 28 R. v. Duarte (1990)(SCC) – Expectation of Priacy & Electronic Participant Surveillance ......... 28 R. v. Wong (1990)(SCC) – Video Surveillance & Expectation of Privacy .............................. 29 R. v. Wise (1992)(SCC) – Electronic Tracking Device & Expectation of Privacy .................... 30 R. v. Dyment (1988)(SCC) – Definition of “Seizure” & Zones of Privacy .............................. 30 Evans v. The Queen (1996)(SCC) – High Water Mark For Privacy ..................................... 31 Improper Information in Warrant Applications ......................................................... 32 S.8: Territorial Claims ................................................................................................. 32 R. v. Edward (1996)(SCC) – Expectation of Privacy & Territorial & Spatial Nature ............ 32 R. v. Belnavis (1997)(SCC) – Application of Edwards Factors – Territorial Claim.................. 33 S.8: Informational Claims ........................................................................................... 33 R. v. Plant (1993)(SCC) – Information Privacy Claims ....................................................... 34 R. v. Tessling (2004)(SCC) – FLIR Technology – Anomaly in Search\Seizure? ......................... 34 R. v. A.M. (2006)(Ont CA) – Police Sniff Dogs ................................................................... 36 Statutory Search & Seizure Powers ................................................................................ 36 Search and\or Seizure Powers Enacted in Response to S.C.C. Decisions ............. 37 Re Laporte & The Queen (1972)(QC) – S.487 Does Not Authorize Searches of Body ................ 37 Search Warrants – Execution ..................................................................................... 38 Preconditions for Obtaining a Warrant – S.487(1) .................................................... 38 Re Gillis & The Queen (1982)(QC) – Preconditions for Obtaining a Warrant ........................ 38 Basis for Challenging a Search Under a Warrant ...................................................... 39 Assessing the Search Warrant Information ............................................................... 39 Informants .................................................................................................................... 40 Regina v. Hunter (1987)(Ont C.A.) – Where Confidential Informants Are Involved ................. 40 R. v. Leipert (1997)(SCC) – Identity of Informant Not Known to Police ................................. 41 Debot v. The Queen (1989)(SCC) – Assessing Confidential Informant Tip & RPG ................ 41 Special Case of Anonymous Informants .................................................................... 42 R. v. Lewis (1997)(Ont C.A) – Anonymous Tip ............................................................... 42 Law Reform Commission on Search & Seizure (Pre-Charter Study) ........................................... 43 The Exigency Exceptions........................................................................................... 43 Silveria ........................................................................................................................ 44 Common Law Search & Seizure Powers ....................................................................... 44 Search Incident to Arrest ............................................................................................ 44 Rex. v. Brezack (1949)(Ont C.A) – Search I\T Arrest Can Extend Into Mouth (Pre-Charter) 44 R. v. Stillman (1997)(SCC) – S\Incident to Arrest – Police Can not Seize Bodily Samples ....... 46 Search Incident to Arrest: Strip Searches................................................................... 46 R. v. Golden (2001)(SCC) – Strip Searches Incident to Arrest .............................................. 46 Search For Weapons During An Investigative Detention ........................................ 47 Emergency Search Power ........................................................................................... 48 R. v. Godoy (1999)(SCC) – Emergency Search Power ......................................................... 48 Consent Search & Seizure, Waving the Protection of S.8......................................... 48 3 Regina v.Mellenthin (1992)(SCC) - Consent ...................................................................... 48 Regina v. Borden (1994)(SCC) – Consent ......................................................................... 49 R. v. O’Connor (2002)(Ont CA) -> Police Bluffing About Warrant For Consent ................... 49 Plain View Search Power ............................................................................................ 49 R. v. Buhay (2003)(SCC) – Plain View Seizure ................................................................ 50 Arrest Powers ................................................................................................................... 51 Statutory Arrest Powers ............................................................................................... 51 Special Arrest Powers Relating to Property ................................................................ 52 Police Power to Arrest for Breach of Peace................................................................ 52 Arrest Powers of Police Officers ................................................................................ 52 Legal Requirements .................................................................................................... 52 R. v. Storrey (1990)(SCC) – Legal Requirements for Arrest ................................................. 52 Constitutional Implications ........................................................................................ 53 Regina v. Duguay (1985)(Ont CA) – Constitutional Implications – Unlawful vs. Arbitrary ...... 53 Arrest, Appearance Notice, Summons, Arrest Warrant ............................................ 54 R. v. Feeney (1997)(SCC) – Police Need a Warrant Before Enter Private Dwelling to Arrest ..... 55 Interrogation & Its Limits .............................................................................................. 56 Common Law Confessions Rule ................................................................................ 57 Tactical Considerations .............................................................................................. 57 Charter Safeguards: Detention Revisited .................................................................. 57 R. v. Moran (1987)(Ont CA) – When Does a Witness Become Detained (Suspect) .................. 58 R. v. Mickey (1988)(BC CA) – Example of Detention ....................................................... 59 R. v. Elshaw (1991)(SCC) – Illustration of Contentiousness of “Detention” ............................ 59 Section 10(a) – Right to Be Informed of Reasons ..................................................... 60 Regina v. Borden (1994)(SCC) – S.10(a) Informed of All Reasons for Detention ................ 60 When Does Accused Need to be Informed of S.10(a) & (b) Rights ........................ 60 S.10(b) – Informational Duty ...................................................................................... 60 R. v. Bartle(1994)(SCC) – S.10(b) Should be Informed Immediately on Detainment ................. 61 R. v. Brydes (1990)(SCC) – Informational Duty – Availability of Legal Aid ......................... 61 R. v. Bartle(1994)(SCC) – Informational Duty – How to Access to Available Services? ............ 61 Standard s.10(b) Caution Today in Ontario ................................................................ 62 S.10(b) – Invoking the Right ....................................................................................... 62 R. v. Baig (1987)(SCC) – Invoking s.10(b) Right .............................................................. 62 S.10(b) – Implementational Duties ............................................................................ 63 R. v. Manninen (1987)(SCC) – Implementational Duties .................................................... 63 S.10(b) – Person Asserting Their Rights Needs to Be Reasonably Diligent .......... 64 R. v. Ross (1989)(SCC) – Accused\Detainee Must Be Reasonably Diligent ............................ 64 R. v. Smith (1989)(SCC) – Example Where Accused Not Reasonable Diligent....................... 64 Restrictions on What the Police Can Do (Burlingham) ........................................... 65 R. v. Burlingham (1995)(SCC) – Restrictions on the Police................................................... 65 Waiver of S.10(b) Right to Counsel ............................................................................ 66 R. v. Clarkson (1986)(SCC) – Valid Waiver ................................................................... 66 Waiver & The Mentally Ill .......................................................................................... 66 R. v. Whittle (1994)(SCC) – Test Waiver & Mentally Ill ................................................... 66 Waiver & Young Persons (12 to 18) ............................................................................ 67 4 Right to Silence ............................................................................................................ 67 The Right to Silence in Canada................................................................................... 67 R. v. Herbert (1990)(SCC) – The Right to Silence (Scope & Guidelines)................................ 68 R. v. Broyles (1991)(SCC) – Test for State Agency ............................................................. 69 Intake Procedures............................................................................................................ 70 R. v. Pilcher & Broadberry (1981)(Man Prov CT) –Swearing of Information .............................. 71 R. v. Jeffrey (1976)(Ont Prov CT) – S.504 & S.507 Different Duties ...................................... 71 Closing Notes on Intake Procedures .............................................................................. 71 Bail .................................................................................................................................... 72 S.515(1) – Timing & Presumption of Release............................................................ 72 S.515(2) – Terms of Release ........................................................................................ 73 R. v. Pearson (1992)(SCC) – Criteria For Bail to Be Denied w\in S.11(e) – Just Cause .............. 73 S.515(10) – Grounds for Denying Bail ........................................................................ 74 Regina v. Morales (1992)(SCC) – Constitutionality of s.515(10)(b)....................................... 74 R. v. Hall (2002)(SCC) – Constitutional Validity of s.515(10)(c) ........................................ 75 Closing Notes on Bail .................................................................................................... 75 Charge Screening............................................................................................................. 76 Crown Policy Standards ................................................................................................. 76 Tort Liability .................................................................................................................. 76 Timing ........................................................................................................................... 77 Logistics ......................................................................................................................... 77 Implications ................................................................................................................... 77 Disclosure, Lost Evidence & Third Party Records ...................................................... 78 Disclosure by the Crown ............................................................................................. 78 R. v. Stinchcombe (1991)(SCC) – Crown Disclosure Duty ................................................... 78 Disclosure By The Defence ........................................................................................ 80 Lost or Destroyed Evidence ....................................................................................... 80 R. v. La (1997)(SCC) – Duty to Preserve Evidence & Effect of Its Loss ................................ 80 Third Party Records .................................................................................................... 81 R. v. O’Connor (1995)(SCC) – Access to Third Party Records ............................................. 81 R. v. Mills (1999)(SCC) – Constitutional Challenge of Bill C-46.......................................... 83 R. v. Carosella (1997)(SCC)........................................................................................... 83 Elections, Preliminary Inquiries & Preferring the Indictment .................................... 83 Elections \ Entitlements ............................................................................................ 83 Preferring the Indictment ........................................................................................... 84 Preliminary Inquiries (Part 18 s.535 – 551) ........................................................... 85 R. v. Skogman (1984)(SCC) – Dual Role of Preliminary Inquiry.......................................... 85 Statutory Regulation of Preliminary Inquiry Procedure............................................... 85 Test For Committal (to Stand Trial) ........................................................................... 86 R. v. Arcuri (2001)(SCC) –Test for Committal & Direct\Circumstantial Evidence ................. 86 Remedies for Errors Committed by Preliminary Inquiry Justice ................................. 87 Doing Away W\Preliminary Inquiries ........................................................................ 87 Constitutional Remedies................................................................................................. 88 James Stribopoulos “Canadian Solution to Exclusionary Rule” .................................................. 88 Timing & Forum ......................................................................................................... 88 5 S.24(1) ........................................................................................................................... 89 Abusive of Process (Common Law) ........................................................................... 89 R. v. Jewitt (1985)(SCC) – Adoption of Abuse of Process in Criminal Law Context ................ 89 R. v. Keyowski (1988)(SCC) – Abuse of Process – Limits of Trial Attempts .......................... 90 R. v. O’Connor (1995)(SCC) – Abuse of Process is Subsumed W\in S.7 ............................... 90 S.24(2) – Exclusion of Evidence ................................................................................. 92 James Stribopoulos “A Canadian Solution to the American Exclusionary Rule Debate” ............. 92 Class Discussion on Excluding Evidence ................................................................... 93 R. v. Strachan (1988)(SCC) – First Branch of S.24(2) – Charter Infringed ............................ 93 R. v. Goldhart (1996)(SCC) – First Branch of S.24(2) – Charter Infringed............................ 94 R. v. Collins (1987)(SCC) – Second Branch of S.24(2) – Administration of Justice\Disrepute ... 94 R. v. Stillman (1997)(SCC) – Second Branch of S.24(2) – Conscripted, Derivative, Non-Cons .. 96 R. v. Feeney (1997)(SCC) – Derivate Evidence .................................................................. 97 R. v. Mann (2004)(SCC) – Analysis of Prong #2 & 3 in Collins ........................................ 98 Time Limitations ............................................................................................................. 99 Time Limits ................................................................................................................. 99 The Right to be Tried W\in a Reasonable Time .................................................... 100 Askov & Moran (SCC) – Right to be Tried in a Reasonable Time ...................................... 101 R. v. L. (W.K.)(1991)(SCC) – Right to be Tried in a Reasonable Time ............................... 102 Jerome Frank “Myth & Reality in American Justice” ............................................................ 103 The Role & Duties of Crown & Defence Counsel ...................................................... 103 Duties of Defence Counsel ....................................................................................... 104 Duty to Client .......................................................................................................... 104 Duty of Confidentiality ............................................................................................ 104 Duty w\Respect to Withdrawal ................................................................................ 104 Duty as an Advocate ................................................................................................ 105 Duty to the Court..................................................................................................... 105 Duty w\Respect to Witnesses .................................................................................. 106 Duty to Society ........................................................................................................ 106 Duty to Themselves ................................................................................................. 106 Duty of Crown Counsel ............................................................................................. 107 Client has Control Over the Following Decisions .................................................. 107 R. v. Murray (2000)(Ont S.C.) – Lawyer’s Trilemma ........................................................... 107 Plea Bargaining & The Plea ......................................................................................... 108 Plea Bargaining ......................................................................................................... 108 Pre-Conditions For Accepting Plea Bargain ............................................................. 108 Plea Negotiations Are Privileged .............................................................................. 109 Crown & Negotiating Plea Bargains ......................................................................... 109 Crown Withdrawals from Plea Bargain..................................................................... 109 Joseph Di Luca “A Review of Plea Bargaining” .................................................................... 109 The Plea ..................................................................................................................... 112 Adgey v. The Queen (1975)(SCC) – Limited Ability of Court to Intervene on a Guilty Plea .... 112 R. v. Rubenstien (1987)(Ont CA) – Accused Wants to Take Back Plea\Judge Not Like Sentence ................................................................................................................................. 113 S.606 & Guilty Plea Inquiry .................................................................................. 113 6 The Trial ........................................................................................................................ 113 Process of Trial .......................................................................................................... 113 Other Criminal Code Provisions Regulating the Trial ........................................... 115 Right to Counsel ........................................................................................................ 115 R. v. Rowbotham (1988)(Ont CA) – Right to State Funded Counsel? ................................. 116 New Brunswick Minister of Health & Community Services v. G.(J.) (1993)(SCC) ................ 116 Right to Silence .......................................................................................................... 117 R. v. Noble (1997)(SCC) – Right to Silence & Proof Beyond & Reasonable Doubt ............... 117 Presumption of Innocence & Proof Beyond a Reasonable Doubt ........................ 118 R. v. Lifchus (1997)(SCC) – Charge to Jury & PBRD .................................................... 118 Triangle of Victim’s Rights, Crime Control, Due Process w\Restorative Justice ... 118 Stopping Powers Checklist ........................................................................................... 119 7 Introduction to Criminal Procedure The primary duties\functions of the criminal process are to: - Retain order - Respond to crimes that are reported - Collect evidence about criminal activities - See charges through to completion - Deter further wrong doing The primary sources of law in the criminal process: statutory rules (criminal code), common law rules\decisions, constitutional rules (charter rights), and customary rules (particular to each jurisdiction). Theories of the Criminal Process Kent Roach, Due Process & Victim’s Rights Herbert Packer established two models for criminal process: crime control & due process model. Crime Control Model - Primarily concerned w\efficiency (assembly line -> end product is guilty plea). - Trust in police & prosecutors in screening out the innocent & secure conviction for the rest. - Concerned w\factual guilt (define factual guilt?). - No exclusionary rule (illegally seized evidence should be admissible). - Police have broad investigative powers to arrest for questioning. - Pre-trial detention is necessary to ensure accused’s presence at trial & prevent future crime. - Trial judges should accept guilty pleas and not inquire into factual accuracy. - Chance of someone being wrongfully convicted is an unreal dream. - Minimization of trials\appeals. Due Process Model - Analogized model to an obstacle course. - Model is concerned primarily w\fairness (to the accused). - Skepticism of criminal sanction, police & prosecutors – they can not be trusted to screen w\a prima facie case exists. - Police should not arrest or detain a person to develop their case. - The accused should be informed of right to counsel before any communication w\police. - Require strong exclusion rule to act as deterrent against police abuses. - Criminal trial is concerned w\legal guilt established on legally obtained evidence. - Trial not guilty pleas are preferred. - Accused should not be detain pre-trial unless to ensure attendance. - Real risk of wrongful convictions exists. 8 Criticism of Due Process model: empirical studies show that police, prosecutors, judges and defence counsel have common interests that defy the contrasting of the crime control & due process models. Further, studies have found defence lawyers frequently recommend guilty pleas to secure the most efficient and lenient disposition for their clients. Due Process Model is for Crime Control: formal law created by legislature & courts enable police & prosecutors to exercise broad & discretionary powers. The Charter is enabling – it is not a tool to control the discretion & exercise of police & gov’ts. New Models of Victims Rights Punitive Model (Roller-Coaster) -> combines the crime control & due process model. Constant crisis btw the two models due to crime control being unable to protect & serve victims & the need to defend criminal sanction from due process challenges. Restorative justice is rejected – victims should not have to face their offenders. Non-Punitive Model (Circle Model) -> focuses on the prevention of crime & restorative justice. The model is represented by a circle – once crime has occurred, the circle represents processes of healing, compensation & restorative justice. It favors discussion and negotiation over prosecution & imprisonment (e.g. sentencing circles). Victim’s Rights Bill (1995) - Victims should be treated w\courtesy, compassion & respect for their personal dignity & privacy by justice system officials. - Victims are entitled to information about the status of the prosecution against the offender. - There are no remedial provisions in the Act. - Vanscoy v. Ontario – court rejected a constitutional challenge by a group of victims who were unhappy about the manner in which plea bargains were struck. o “The Act does not establish any statutory rights for the victim’s of crime”. The Charter’s Impact on Canadian Criminal Procedure - Pre-charter, the principle of legality (police need lawful authority) was the main safeguard for civil\individual liberty (common law principle). - However, the principle of legality\common law suffered from two shortcomings: parliament was free to legislate away freedom; illegally obtained evidence was almost always admissible (vindication of rights depended on civil suits – too expensive). - The Charter has altered criminal procedure in Canada (s.7 – 14 -> legal rights & constitutional guarantees, s.24 -> remedial provision). - The Charter provides a forum to redress violations (due to the introduction of rights & remedies). - The current system we have now does not treat any of the three groups well (i.e. individual, victim, state). The court appears sometimes to be protecting individual liberty of a person who is factually guilty (i.e. found murder weapon, linked to the crime – obtain illegally – excluded). Prof, “In Search of Dialogue: The S.C.C., Police Powers & Charter” - Introduction of the Charter exposed the volume of police abuses. 9 - Original draft of the constitution included a section designed to foreclose the exclusion of evidence as a remedy for constitutional violations. - Federal gov’t responded to lobbying by a number of organizations for the inclusion of a remedies provision at a minimum to exclude unconstitutionally obtained evidence. - The goal of s.8 & s.9 appears to have been to supplement the principle of legality. Courts are empowered to review the substance of laws against constitutional principles (go beyond simply asking whether a law expressly authorizes intrusion). - Justice Dickson’s discussion of the Charter in Hunter v. Southam makes it clear that the Charter and its legal rights provisions impose limits on, and are not a source of police power. o “It is intended to constrain gov’t action inconsistent w\those rights & freedoms; it is not in itself an authorization for gov’t action.” Jurisdiction Over Criminal Procedure & Criminal Prosecutions Criminal process is a matter of divided jurisdiction btw Federal & Provincial gov’ts. This is due to the express terms of the CA 1867 and subsequent agreement btw both levels of gov’t to delegate to the provinces responsibilities which are within the purview of the Federal gov’t. Federal - Exclusive authority over criminal law including criminal procedure (s.91(27). o “Criminal law” is concerned w\public peace, order, security, health, morality…these are the ordinary though not exclusive ends served by criminal law. (Re Dairy Industry Act – Margarine Reference). o Criminal procedure includes: rules, pre-trial, post trial, appeal, etc. - Prosecute criminal offences and\or offences under other federal enactments (s.91(27)). - Delegate its prosecutorial authority if it chooses – i.e. as it has w\criminal code offences (s.91(27)). - Establish & maintain federal penitentiaries (federal jails – for people sentenced > 2 yrs; prov jails – for people sentenced < 2 yrs). - Appoint judges to the Superior Courts – i.e. Ontario Superior Court, Court of Appeal (s.96). Provincial - Establish provincial criminal courts (s.92(14)). - Appoint judges to provincial courts (s.92(14)). - Establish & maintain provincial prisons (s.92(6)). - Jurisdiction over the administration of justice in the province - maintenance, organization, etc. in provincial courts (s.92(14)). - Jurisdiction to prosecute Criminal Code offences (s.2 of the CC – definition of “Attorney General” & “Prosecutor” refers to province – policy: crime is a local problem). o Note: delegation of prosecutorial authority does not extend to all federal Acts or offences – only the Criminal Code. If a person is charged w\criminal code offence & an offence under another federal Act, the prosecutor w\normally delegate to the provincial prosecutor if the bulk of the case is criminal code related (and vice versa). 10 A.G. Can v. C.N. Transportation Ltd (1983) & R v. Wetmore (1983) Held: The federal gov’t has constitutional authority to prosecute criminal code & other federal offences (subsumed w\in s.91(27) – procedure in criminal matters).The authority delegated to the provinces by s.92(14) doe not include the prosecution of federal offences. Otherwise, a province could render federal legislation ineffective by choosing not to enforce it. Note: authority can be delegated if the two levels agree. Classification of Offences Indictable Offences Exclusive Jurisdiction (Most Serious Offences) The offences are listed in S.469 (i.e. Treason – s.47; Alarming her majesty – s.51; Murder – s.235). S.468 vests jurisdiction to try persons charged w\these offences exclusively in the Superior Court (usually by jury). Absolute Jurisdiction (Less Serious Offences) The offences are listed in S.553 (i.e. theft under $5K, possession of MJ, etc.). These offences are in the absolute jurisdiction of the provincial court. An accused gets no election under s.536 and no preliminary inquiry or jury. The person will be tried by a provincial court judge via a “bench trial”. Note: s.11(f) of the Charter guarantees a right to a trial by jury where the maximum punishment is > 5 yrs – all S.553 offences have maximum punishments of 2 yrs or less. S.468 gives Superior Court jurisdiction to try any indictable offence (including absolute jurisdiction), but an accused will never get to the Superior Court if only facing a s.553 offence. Election Accused person has the right to choose their mode of trial for offences not found in s.469 & s.553. Available options include: trial by provincial court judge, trial by superior court judge, trial by superior court judge w\jury (s.536(2)). If a trial in the superior court is chosen, the accused is entitled to a preliminary inquiry in the provincial court if requested. If an accused refuses to make an election, s.565(c) deems the accused to have elected trial by judge & jury (Superior Court). However, an accused can change their election after it has been made (s.560-563 & S.565). Note: - If an offence turns out not to be absolute jurisdiction (it started off that way), the judge is obligated to halt proceedings and put the accused to an election (s.555(2)). - There is a residual discretion in the provincial court judge to convert a trial into a preliminary inquiry and require the accused to be tried in superior court despite their election (s.555(1)). - If an absolute jurisdiction offence tags along w\other indictable offences (exclusive), the Superior Court has jurisdiction to deal w\it – there will not be two trials. Summary Conviction Offences There are few true summary offences (most are hybrid). Most of the offences are comparatively less serious (i.e. causing a disturbance, communicating for the purpose of prostitution). Unless otherwise provided in the offence, s.787(1) sets the maximum 11 punishment for summary conviction offences at 6 months imprisonment and\or a fine not exceeding $2K. These offences are important for police arrest powers. Hybrid or Crown Election Most offences in the criminal code are hybrid. The Crown has an election on whether to proceed w\the charge summarily or by indictment. The maximum penalty differs btw the two (i.e. summarily – up to 18 months). If the Crown elects to proceed by indictment, the accused may have an election to make under s.536(2) (see above). Until the Crown elects, hybrid offences are deemed to be indictable via s.34 of the Interpretation Act. This is important for police arrest powers which are more robust for an indictable offence. Stopping Powers S.8. Everyone has the right to be secure against unreasonable search or seizure. S.9. Everyone has the right not to be arbitrarily detained or imprisoned. S.10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retained and instruct counsel without delay and to be informed of that right; (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Stopping is the first stage in the criminal investigative process. There are two main types of stops: - Reactive -> police are responding to information about a particular crime & a specific individual. - Proactive -> police do not have a particular crime or individual in mind by are investigating suspicious circumstances. There is a real risk of abuse by police officers in conducting investigative stops. Officers may make honest mistakes or may act capriciously in deciding who to stop. Principle of Legality (Fundamental tenet of Law) No one including state actors is above the law. R. v. Dedman (1985) – Principle of Legality – Pre Charter Decision Ratio: “It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere w\liberty or property of the citizen to the extent that is authorized by law”. Authority may come from statute or common law. In theory, contravention of the principle of legality exposes officers to criminal culpability (assault, false imprisonment, theft) and civil liability (assault & battery, false imprisonment). Koechlin v. Waugh & Hamilton (1957) Ont. Court of Appeal (Civil Suit) – Pre Simpson 12 Facts: Accused walking home w\friend after seeing movie & stopped by police. Police stopped them due to matching description of burglars from break in a few nights earlier. Police asked for id, the accused refused and scuffle ensued. Accused was charged w\assaulting a police officer. The charge was dismissed. This is a civil suit for unlawful arrest & imprisonment against police officer. Decision: The police officers exceed their powers & infringed the rights of the accused. Held: - The police did not have RPG for believing that the accused or was about to commit an indictable offence (rubber soled shoes not enough). - We have no obligation barring arrest to give our name, identification (Moore v. Queen should give id if arrested). The police had no right to use force to compel identification. - An individual’s assertion of their rights (not to id), does not w\out more, provide police w\the grounds to take further action (i.e. detain, arrest, search, etc.). - Civic duty to cooperate, but we are not legally obligated to do so (failure to do so does not constitute an offence of obstruct police). Spectrum of Grounds Nothing Hunch Suspicion Reasonable Suspicion RPG (credibly based probability) Prima Facie Case Balance of Probabilities Proof Beyond a Reasonable Doubt Absolute Certainty R.v. Dedman (1985)(SCC) – Birth of Ancillary Powers Doctrine Facts: Accused was stopped arbitrarily by police at a random vehicle check point (RIDE). Officer smelt strong odor of alcohol (formed RPG) and requested a breath sample. Accused failed to give a sufficient breath sample for the road side device (four attempts). Accused issued appearance notice for failing to comply w\a roadside demand (s.234.1(2)). Decision: Appeal dismissed – CL authority for fixed point check stops (new power). Ratio (Ancillary Powers Doctrine): A new police power may be recognized on a case-by- case basis. Depends on the following two preconditions: 1. Whether the police officer was acting w\in the general scope of their duties under statute or at common law (i.e. preserve peace, prevent & investigate crime, protect life & property)? 2. Did the officer’s actions represent an unjustifiable interference w\individual liberty\property? (i.e. In other words, was the officer’s conduct reasonably necessary, bearing in mind the liberty interfered w\and the importance of the public purpose served by the interference – A cost\benefit analysis). Held – Majority (Le Dain) The random vehicle stop was prima facie unlawful interference w\liberty since not authorized by statute. The police have a broad duty at CL to prevent crime and protect life by the control of traffic (i.e. prevent drunk drivers) – Requirement #1 Met. Random fixed point sobriety check stop is not an unreasonable interference w\right to circulate on the public highway (RIGHT -> circulate on highway free from interference (subject to license & 13 registration) vs. PUBLIC PURPOSE -> drunk driving serious problem; ANALYSIS -> unpleasant psychological effects from stop of innocent drivers offset by publicized nature of program, short duration of stop & slight inconvenience) – Requirement #2 Met. Dissent (Dickson) To find arbitrary police action justified because it is directed at fulfillment of police duties is contrary to the principle of legality. Legislatures function to authorize arbitrary police action. Slippery slope – what’s next? Note: The ancillary powers doctrine originated in two part test developed by English Court of Criminal Appeal in R. v. Waterfield (1964). This judgment created a new police power. This is a revolutionary judgment for Canadian Civil liberties – the court expands the CL in the era of the Charter making a direct encroachment on the freedom of mobility. The Waterfield test has not been used to create new police powers in England, but rather to determine when police officer acting w\in their duty. Prof -> creation of police powers should be left to Parliament. R. v. Clayton & Farmer Facts: Person reports to police there is a man in the parking lot w\a loaded gun. Police arrive and the car does not match the description precisely. Police setup road block, stop the accused and discover the hand guns. Decision: Action was not justifiable under ancillary powers doctrine. Held: The police officers did not apply the ancillary powers doctrine. There was a violation of the accused’s rights. Note: It appears in this decision the court expects police officers to apply the ancillary powers test from Dedman on the fly. Unclear whether police should apply the test on the fly or the court should apply it after the fact. DO I NEED THIS CASE – MIGHT TAKE IT OUT. Post Dedman the law-making power (ancillary powers doctrine) it seemed to recognize lay dormant. A number of decisions & statements of the SCC cast doubt on the continued validity of the doctrine – i.e. courts should confine themselves to incremental changes of the CL to keep pace w\evolving society (Salituro). The decision in Simpson (Justice Doherty) below changed the trend. Regina v. Simpson (1993)(Ont C.A.) – Investigative Detention – Post Charter Facts: Officers patrol area around a residence know as a crack house and observe a female existing car in the driveway w\the engine running & leave the residence w\the accused (Mr. S.). Police pull over the vehicle & question the accused. Officer noticed “bulge” in pant pocket. The accused removed the baggie when asked and it contained cocaine. Decision: Appeal allowed. Detention was unlawful & arbitrary. 14 Held (Doherty): There was no statutory authority for this stop. Until Parliament legislates on police power to detain for investigatory purposes, the court must use the Waterfield test to regulate the police power (ancillary powers doctrine). The officer was acting w\in the scope\execution of his duties (investigating drug related offences) – Requirement #1 met. In considering whether an investigative detention represents an unjustifiable interference w\individual liberty need to consider the totality of circumstances (requirement #2 - Dedman). First, the court must consider whether there was articulable cause (AC) for the investigative detention. AC requires a constellation of objectively discernable facts (i.e. temporal proximity, seriousness of offence) which give the officer reasonable cause to suspect the detainee is criminally implicated in the activity under investigation. AC does not justify any detention for investigative purpose, but w\out it, a detention to investigate could not be viewed as proper exercise of CL power. If AC is established, then move on to consider additional factors which go to the totality of the circumstances such as: the duty being performed; the extent to which some interference w\individual liberty is necessary in order to perform the duty; the importance of the performance of that duty to the public good; the liberty interfered with; the nature & extent of the circumstances. The officer did not have AC. The officer had information (TIP) of unknown age, origin and reliability. Attendance at location believed to be the site of criminal activity while a factor, when it is the sole factor, not enough for AC – Requirement #2 NOT met. A detention though unlawful is not necessarily arbitrary if the officer believed erroneously on RG that he had AC in good faith (Duguay). Note: The AC standard is both subjective (officer needs to suspect person is committing or about to commit) and objective (reasonable person would come to conclusion they have reasonable cause). An investigative detention needs to be brief to quickly confirm or refute the suspicion. While Simpson won on the appeal, the Crown did not appeal the decision because it recognized a new police power. While this decision only setup “investigative detentions” in Ontario, Doherty is highly respected & other jurisdictions adopted this decision. This was the first time since Dedman that the Waterfield test had been used to recognize a new police power. Professor Young – Racism & Investigative Detentions – Referenced in Simpson - Pre-Simpson, Young argues that despite a lack of legal authority for investigative stops, they are occurring in Canada. - Police discretion for investigative stops is often exercised on racial & class basis. 15 - A number of empirical studies have shown that members of the aboriginal & black community are over-policed. - While the decision in Simpson appears to be responding to Young’s call for action, Prof Delisle notes that the court in Simpson is not regulating, it is not restricting police powers, it is creating new police powers. R. v. Therens (1985) SCC – Meaning of Detention Facts: Accused lost control of vehicle and hit a tree. Officer arrived and having RPG, requested accused to provide a breath sample. The accused was not informed of any rights to retain & instruct counsel. Issue: Are you detained when an officer makes a breath demand? Ratio – Meaning of “Detention” (Dissenting Le Dain) There must be some form of compulsion or coercion to be a “detention” for the Charter. A detention occurs when a state official interferes w\a person’s liberty or freedom of movement (i.e. holding, cuffing, physically restraining). A detention may also occur where a person is subject to a demand or direction by a state official that he or she submits to or acquiesces in, where the person reasonably believes that the choice to do otherwise does not exist (does not require application or threat of application of physical force). Held: The demand to accompany a police officer to a police station to provide a breath sample resulted in a “detention” w\in the meaning of s.10 of the Charter. Criminal liability for refusal to comply w\breath demand constitutes effective compulsion (s.235(2)). The element of psychological compulsion in the form of a reasonable perception of suspension of freedom of choice, is enough to make restraint of liberty involuntary. R. v. Thomsen (1988) SCC – Unanimous SCC on meaning of “Detention” Facts: Officer stopped vehicle because of defective head lamp. The accused refused a formal demand for a breath sample (officer smelt alcohol). Appellant was given two more opportunities (while in back of squad car) to comply w\demand but refused. The accused we not instructed of his right to counsel. Decision: the appellant was “detained” w\in s.10 of Charter. Def’n of Detention: Court endorsed the definition of “detention” in Therens (see above). A “detention” occurs where an officer or agent assumes control over the movement of a person by demand or direction which may have significant legal consequences. The necessary element of compulsion or coercion may arise from criminal liability for refusal to comply w\a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply. S.10 applies to a great variety of “detentions” of varying duration and is not confined to those of such duration to make an application for habeas corpus. Held: 16 The demand by the officer assumed control over the movement of the appellant. In addition, the criminal liability for refusal to comply (constituted the necessary compulsion or coercion) is one which a person might reasonably require the assistance of counsel. R. v. Mann (2004)(SCC) – Status of Investigative Detention in Canada Facts: Two officers respond to radio dispatch detailing a break & enter in progress. As officers approached the scene, the accused walking along the street matched the description (as per police). The accused gave his id and consented to a pat-down search for concealed weapons. The officer felt a soft object in the kangaroo pouch of his sweater. The officer reached into the accused’s pocket & found a small plastic bag containing MJ. Iacobucci: The court in Simpson did not set concrete guidelines concerning investigative detentions, leaving it to be resolved on a case-by-case basis. Investigative Detention In reviewing whether an investigative detention was justified (under Waterfield – prong #2) the court must first determine whether there are reasonable grounds to detain (RGTD). RGTD -> A police officer is authorized to detain any person where the officer reasonably suspects (reasonable suspicion) that there is a clear nexus between that person and a recent or on-going criminal offence (reasonable grounds to detain). The overall reasonableness of the decision to detain must also be assessed against all of the circumstances, including: i) the extent to which the interference with individual liberty is necessary to perform the officer’s duty; ii) the liberty interfered with; and iii) the nature and extent of that interference. No concrete guidelines or clear limits set down. Rather, the determination will need to be made on a case-by-case basis. That said, the detention must be “brief”. Search Power Incident to Investigative Detention The court used the Waterfield test to create a new search power incident to investigative detention. In the course of a lawful investigative detention (see above) where a police officer has reasonable grounds to believe (sic suspect) that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Note: the decision to search must be reasonably necessary in light of the totality of circumstances. The search must be conducted in a reasonable manner and must be confined in scope to an intrusion reasonably designed to locate weapons. (Note: whether protective search can extend to bags that detainee is carrying or car that detainee is riding are not addressed.) Other Issues\Rights 17 Charter s. 10(a) - must be complied with, the person detained must be informed in clear and simple language of the reasons for the detention. Charter s. 10(b) – court does not address whether s.10(b) needs to be complied w\in relation to investigative detentions, but affording this right cannot be used as an excuse for prolonging, unduly and artificially, a detention that must be of a brief duration. (Note: some lower courts have held that the right does not apply, see R. v. T.A.V.). Obligations on detainee - to remain with police, but no obligation to answer questions posed by police - unclear whether this includes an entitlement to refuse to identify yourself either verbally or by producing identification. Held: The officers had RG (to suspect) to detain (closely matched description, 2 or 3 blocks from the scene). There was RG (to suspect) for a protective search (i.e. suspect might have tools used for break-enter which could be used as a weapon). The officer’s decision to go beyond a pat-down & reach into the pocket after feeling a soft object was an unreasonable violation of the accused’s reasonable expectation of privacy in the contents of his pockets. Note: The officers need RG (to suspect) for the investigative detention and also separate RG (to suspect) for the search incident to investigative detention. Following this decision it is still unclear on the use of force - but s. 25(1) allows an officer provided they have RGs can use as much force as necessary in doing what is necessary or required (this may apply to lawful investigative detentions). Similarly, it is unclear on moving detainees & temporal limits - court does reiterate that these detentions must be “brief” and cautions against their transformation into de facto arrests. Prof -> courts recognizing new police powers is not incremental changes in the CL. Ferris (BC Court of Appeal) – Search Incident to Investigative Detention A police officer was performing a justified (under Investigative Detention) and removed a fanny pack and searched it. The BC Court of Appeal upheld the search. R. v. T.A.V. (2002) (Alta C.A) – Investigate Search & s.10(b) Facts: Officers learned from wiretap logs that two Asian girls would be arriving on a bus from Edmonton. The police were suspicious that the girls might be carrying firearms & narcotics (based on a nursery rhyme recorded). Officers went to the bus depot and confirmed two Asian females were traveling together. Officers followed the two girls & subsequently searched their bags w\their consent & located firearms. Decision: No Charter breach. Held: The two girls were detained – their young age indicates they likely felt psychologically compelled to remain w\the officers & to comply w\their demands. The detention was a “brief detention” w\articulable cause. There was AC (based on wiretap) for the search of the girl’s bags for weapons, the search was justified due to the probability of criminal activity attending to the possession of handguns. Where a brief search is conducted to ensure the 18 safety of officers, it seems implausible that this must be preceded by a s.10(b) warning. The time spent by police officers ensuring their safety is not delay which has to be justified (for s.10(b)). R. v. Mooney (1997) Ont. Court of Appeal – Length of “Brief Detention” A suspect alimentary canal smuggle (i.e. drug swallower) was detained for five hours at the Toronto airport. The CL power to make a brief investigative detention based on AC does not imply that police can detain a person for an almost unlimited period of time until the suspect either produces evidence of his guilt or establishes his innocence. Note: we learn from this case that 5 hrs does not qualify as brief. Dupuis – Alberta Case – Length of “Brief Detention” Police entered a residence in search of the supplier of drugs purchased at a recent undercover buy. They found a number of people in the location and subsequently detained all of them until police secured & executed a search warrant. The Court of Appeal upheld the investigative detention of a room full of people at gunpoint for over an hour. Note: from Mooney & Dupuis we know over one hour is ok and more then 5 hrs crosses the line. Closing Notes on Investigative Detention Powers If the police do not have statutory or CL authority they may be able to refer back to Dedman and the ancillary powers doctrine. However, it is unclear whether police officers are expected to apply the Waterfield test on the fly or if it is a vehicle for the courts on review. Note: on exam DO NOT apply Waterfield test – simply acknowledge that the Crown could apply Dedman. Analytical Approach to Investigative Detention 1) Has there been a “detention” (per Therens)? If no, then no need to go further in analyzing encounter, ss. 9 & 10 are not engaged. If yes, proceed. 2) Was s. 10(a) complied with? Was detainee told in clear and simple language the true reason(s) why (Mann)? 3) Was the detention lawful (statutory or CL)? For example, did the officer have reasonable grounds to suspect that the person detained was involved in recent or ongoing criminal activity (Mann)? 4) If the detention was unlawful, did the officer at least have a good faith bases in the adequacy of his or her grounds? If no, then the unlawful detention is probably arbitrary and violates s. 9 of the Charter. R. v. Duguay. a. Untested, unknown origin anonymous TIP & accused’s presence near crime scene are not enough alone for AC and found to be arbitrary detention in Simpson. 5) Even if lawful at its inception, did the detention become unlawful later on, for example, because its lasted longer than reasonably necessary in the circumstances (i.e. Mooney -> 5 hrs), or involved overly intrusive measures (i.e. unjustifiable use of force or moving the detainee, etc.) which transformed it into something unlawful and therefore arbitrary under s. 9? In other words, if it becomes a de facto arrest but in the absence of the grounds required for an arrest it is unlawful and likely arbitrary. 6) Was s. 10(b) respected? Unclear whether that right applies to lawful investigative detentions (defence will argue that it does). In addition, even if there is an override, it 19 would not apply to unlawful and arbitrary detentions. Therefore, if s. 10(b) is not complied with in such cases it too is likely violated. 7) Was their a search? If so, did the officer have the requisite reasonable grounds in the circumstances to be concerned about safety (Mann, TAV, Ferris)? And, if so, were the limits (pat-down only) respected? If no to either or both, the search is unlawful and therefore unreasonable under s. 8. Professor’s Rant in A Nutshell on Detention\Investigative Detention - Police need a power between release and arrest - Detention practices far too complex for case-by-case explication - leads to more questions than answers - Uncertainty on such basic questions is bad for police and for public - Parliament could deal with whole area in one fell swoop. Legislation could define power and its parameters in clear, prospective and comprehensive terms - actually structuring, confining and checking exercises of police discretion • The problem w\the courts developing this power is they only decide questions put before them – therefore, we get gaps being filled piece by piece. - Regulations could be used to promulgate practical guidelines, including data collection on police stop-and-frisk practices (to identify police abuses and possibly racism). - As long as Court fills gaps, Parliament has no incentive - everyone suffers, police, lawyers, courts, citizens (and law students). Stopping Powers Involving Motor Vehicles Charter protections have been relaxed for those who happen to be traveling in a car. The law should distinguish btw a pedestrian and a person traveling in their car because: driving is a highly regulated activity (licensing, vehicle registration, insurance) & motor vehicle travel is quite public (our privacy expectations are reduced). R. v. Hufsky (1988)(SCC) – Fixed Point Sobriety Stops (Post Dedman in Charter Era) Facts: Appellant randomly stopped by police at fixed point sobriety stop. Officer detected odor of alcohol and noticed the appellant’s speech was slightly slurred in conversation. Officer requested a breath sample which was refused. Appellant charged w\failure to provide breath sample. Note: no criteria or guidelines used by police to stop cars. Issue: Whether the random stop of the appellant’s vehicle resulted in being detained arbitrarily? Decision: The appellant was arbitrarily detained but justified under s.1. Held (Le Dain): The appellant was detained within the definition in Therens. Test for arbitrariness -> discretion is arbitrary if there are no criteria, express or implied which govern its exercise. The random stop for the purpose of spot check (under s.189(a)(1)) resulted in an arbitrary detention (no criteria for selection, in absolute discretion officer). Violation of s.9 of the Charter. 20 Section 1 Justification It is a reasonable limit on the right not to be arbitrarily detained for police to conduct random stops of motorists at road checkpoints. Motor vehicle deaths, personal injury & property damage are a grave problem – statistics show higher percentage of accidents for unlicensed & uninsured drivers. Random stop authority is required to increase detection and the perceived risk of detection of motor vehicle offences, many of which can not be detected by mere observation of driving (pressing & substantial). The nature & degree of intrusion (short stop) at random spot check is proportionate to the purpose served. There is no requirement that such stops be a part of an advertised program (public well aware of sobriety check points). Note: This decision gives police the power to conduct fixed roadside check stops to evaluate sobriety. In relation to Dedman, it was a pre-Charter case – Hfusky resolved any doubt that the detention power (fixed roadside sobriety) recognized at CL in Dedman survived into the era of the Charter. Note: s.189(a)(1) – allows officers to require a car to stop. R. v. Ladouceur (1990)(SCC) – Roving & Random Police Stops Facts: Two police officers pulled over the appellant as a matter of routine (no basis for suspicion). It was discovered that the appellant driver’s license was under suspension for failure to pay parking tickets. Note: police relying on s.189(a)(1). Issue: Whether s.189(a)(1) permits random roving stops? If not, can it be justified under s.1? Held – Majority (Cory) The random roving check stop constituted an arbitrary detention in violation of s.9 of the Charter. Section 1 Justification The S.1 justification from Hfusky also applies to random & roving stops of motorists. Evidence shows that mechanical fitness, possession of a valid license & proper insurance, and the sobriety of the driver are the three primary & specific areas of concern for accidents. Random roving stops provide the only effective detection & deterrent (fixed point stops are often known in advance – rural areas need roving stop due to insufficient resources). Concerns about police abuse of this power are unfounded. The stops are of a relatively short duration & require the production of only a few documents (minimal inconvenience). Ratio: During such stops, however, the police are strictly limited to checking on the driver’s license and insurance (registration?), the sobriety of the driver, and the mechanical fitness of the vehicle. Anything more requires reasonable suspicion (to detain more than “briefly” or conduct a protective pat-down search) or reasonable and probable grounds (to arrest or conduct a search for evidence). Held – Concurring but dissent (Sopinka) Random fixed point check stops (Hfusky) exposed the outer limits of the s.1 justification. There is a real potential for abuse of this power w\officers stopping individuals based on 21 age, race, etc. Statistics & probabilities show that 37 innocent drivers will be stopped for 1 offender. Random roving stops can not be justified under s.1. Note: Police now have the power to stop any drive at anytime to check mechanical fitness, sobriety, and license & insurance. Prof -> Justice Cory got it wrong in terms of the potential for police abuse (report in 90’s show racism). The court read in requirements into s.189(a)(1), but these limitations do not appear on the face of the rule. If court found provision unconstitutional, the legislature would most likely incorporate the changes. R. v. Mellenthin (1992)(SCC) – Police Check Stops & Ulterior Motives Facts: Appellant was randomly pulled over at check stop. Officer noticed a knapsack in the passenger seat w\a brown bag containing a plastic sandwich bag. The appellant told police there was food inside it. He removed the baggie and it contained glass vials commonly used to store cannabis resin. Officer believed he had RPG so suspect narcotics present and searched the car locating vials of has oil and cannabis resin cigarettes. Held (Cory): The appellant was detained. Officer is entitled to visually inspect the car (w\flashlight at night) to ensure his safety. Primary purpose of check stops is to verify sobriety, license & insurance and mechanical fitness. Random stops must not be turned into a means of conducting unfounded general inquisitions or an unreasonable search. The officer requires RPG to conduct a search. The search (questions & physical search of gym bag, search of the car) was performed without the requisite RPG. Violation of s.8. Note: Once the officer exceeded the limits established in Hufsky & Ladouceur the s.1 justification was exhausted\overridden. A stop would not be arbitrary if the officer notice something about the driving which gave rise to reasonable suspicion. Had the vials been in plain sight, this case would have been decided differently. Court does not acknowledge potential abuse of this power – police locate evidence and construct the grounds afterwards. Boxer Wants Halifax Police On the Ropers – (Sept 2003) - Kirk Johnson (Canadian Boxer) and his cousin were pilled over for what initially was a a routine traffic check. After 2 hrs and detainment by several officers, his car was impounded & he was assessed $1K in fines. - Reason given by police for the detainment was that they were unable to ascertain whether Mr. Johnson’s paperwork was in order (Texas registration). Suspicion car was stolen. - The Nova Scotia Human Rights Commission found that Mr. J. was a victim of discriminatory treatment by the police. He was awarded $15K in damages. - At the commission, Mr. J. testified that he had been stopped 28 times over 60 to 90 days he visited Nova Scotia (from Texas). Police records showed a total of 41 searches on his license. - Note: Was Justice Cory wrong in Ladouceur in believing there was little potential for abuse of police powers? Prof – reality is most victims of unjustified stops are unlikely to hire a lawyer and initiate a civil suit or human rights complaint. 22 Police Target Black Drivers – Toronto Star (October 20, 2002) - Toronto Star used freedom of information act to gain access to Toronto police’s database. The data shows a disproportionate number of blacks ticket for violations that only surface after a stop has been made. - These ‘out-of-sight’ traffic offences include: failing to update a driver’s license w\a change of address, driving w\out a license, driving w\o insurance. - Review of 7500 out-of-sight violations (two-thirds listed skin color) showed 34% of all drivers charged w\out of sight violations were black. However, blacks made up only 8.1% of the city’s population. - Young black men (25 to 34) made up 39.3% of tickets for out-of-sight violations in that age group. - Police chief (Fantino) denied the finding stating that they do not do racial profiling. - Other studies such as Wortley’s 1997 study & Julian Tanner (U of T) found similar results. - Note: Prof -> these numbers show on a subconscious level that police officers act on the basis of racial stereotypes. The Ont. Gov’t has acknowledges the reality of racial profiling through the Ontario Commission on Systemic Racism (in mid 90s). These two articles question Cory’s belief that abuse was unlikely in Ladouceur. Brown v. Durham Regional Police (Court of Appeal) – Ulterior Motives Facts: Motorcycle gang had annual retreat in Durham region. Police setup motor-vehicle check stop on road leading to retreat. Police verified license, insurance and ask riders to remove helmets to ensure safety. Gang sued police on grounds this violated s.9. Held (Doherty): The arbitrary stop is justified provided police believed one of the purposes was to verify license & insurance, mechanical fitness and sobriety. If the police harbor an ulterior investigative purpose, provided it is not improper, the s.1 justification remains. There was no improper purpose. Appeal dismissed. Note: Improper = engaging in illegal or unconstitutional act (i.e. searching w\out RPG – Mellenthin). In this case police were videotaping gang members for identification purposes. Recall, the police are required to inform you of the reasons for detention (in clear & plain language), otherwise violation of s.10(a). Thomsen v. The Queen (1988)(SCC) – S.10(b) & Motor Vehicle Stops Facts: Appellant stopped at spot check for having a defective headlight (not arbitrary). Officer smelt alcohol on the appellant’s breath & made a breath sample demand which was refused. The appellant accompanied officer to squad car where he further refused. He was no informed of s.10(b) right and was charged w\failing to provide a breath sample (s.234.1(2)). Issue: Whether s.10(b) applies when an officer makes a breath demand (s.234)? Held (Le Dain) The appellant was detained and there was a violation of s.10(b). The right to counsel is incompatible w\the use of a road side screening device. Most people are caught early in the 23 morning when access to a lawyer is limited. The language of s.234.1 implies no opportunity to contact counsel before breath sample given (“forthwith”). The problem of impaired driving is a pressing & substantial concern based on data put before the court in Hfusky (i.e. direct relationship btw drinking & accidents, can not be detected for moderate consumption by visual inspection). Roadside breathalyzer increases the perceived risk of detection. The importance of the role of breathalyzers makes the limitation on s.10(b) reasonable & justified under s.1. Note: s.10(b) will be available if necessary at the more serious breathalyzer stage – computer at police station). Note: The s.1 analysis has proven persuasive w\respect to provincial legislative provisions authorizing police to stop motorists. Provincial appellate courts have held, when stopped by police for a moving violation, the operating requirements of s.216 HTA, by analogy override the right to counsel (Ellerman) based on the s.1 justification in Thomson. Key: when the purpose of a police stop is to check sobriety, licenses, ownership, insurance, mechanical fitness, there is no obligation on police to inform the person of their s.10(b) right – BUT, if police inquiries move beyond matter related to road safety, then the obligation to inform a person of their s.10(b) rights re-emerges. Milne (Court of Appeal) – since s.10(b) right is overridden at roadside for circumstances mentioned above, anything stated at the roadside that leads to the acquisition for grounds to arrest can not be used to prove the allegations against you (disproportionate to override s.10(b) and allow person to incriminate themselves w\out advice). Summary of Stopping Powers Involving Motor Vehicles 1. It is a reasonable limit on the right not to be arbitrarily detained for police to conduct random stops of motorists at road checkpoints (Hufsky). Note: principal of legality still applies – police need authority. 2. There is no requirement that such stops be a part of an advertised program (Hufsky) 3. The section 1 justification also applies to random and roving stops of motorists (Ladouceur) 4. During such stops (arbitrary), however, the police are strictly limited to checking on the driver’s license and insurance (registration?), the sobriety of the driver, and the mechanical fitness of the vehicle (Ladouceur) 5. The police may harbour an ulterior purpose in addition to road safety provided that that purpose is not itself improper (i.e. illegal, unconstitutional or not within the officer’s duties) and the lawful limits on this power are not otherwise exceeded (Brown v. Durham Regional Police). Note: if police do not inform you about ulterior purpose – violation of s.10(a). 6. Anything more requires reasonable suspicion (to detain more than “briefly” or conduct a protective pat-down search) or reasonable and probable grounds (to arrest or conduct a search for evidence) (Ladouceur & Mellenthin). a. If in the course of the encounter police have reasonable suspicion you are involved in criminal activity, the encounter moves to Mann enforcement scheme & they would have to respect s.10(a). b. Polashek -> the odor of MJ alone does not give RPG to arrest (person just smoked). 24 7. Section 10(a) clearly applies, but 10(b) is overridden (Thomsen). If the limits noted above are not respected, however, 10(b) applies again as the s. 1 justification for the override no longer holds. Search &\Or Seizure Powers Modern limits on police powers to search and\or seize can be traced back to 1605 and Semayne’s Case where Lord Coke state “the house of everyone is to him as his castle & fortress”. The principle of legality was the linchpin of early protections (Entick v. Carrington). In Canada, a search warrant power was codified in the first Criminal Code (1892), and it was gradually expanded to include issuance for the investigation of all offences. In pre-Charter era, the principle of legality was of fundamental importance in protection not only liberty but also property from unjustified state intrusion (R. v. Colet). Statutes purporting to authorize such intrusions were subject to strict construction in favor of the individual (R. v. Colet). Pre-Charter Era Entick v. Carrington (1765) – The Genesis of Modern Protection Facts: Three men searched Entick’s residence and seized a number of his private papers pursuant to a warrant issued by the Secretary of State. They were searching for evidence of sedition (Note: stemmed from publication of leaflet insulting prime minister). Issue: Whether the Secretary of State had authority to issue such a warrant? Decision: The Secretary of State did not have the authority – they were trespassers. Held (Chief Justice Camden): The justification for search and\or seizure must be based on statute or common law otherwise it will be a trespass. Papers are the owner’s goods & chattels, where they are removed, the secret nature of those goods will be an aggravation of the trespass (notion of privacy). The court was not prepared to recognize a new police power w\out an act of Parliament to adopt the new practice. Note: at this point, courts recognized searches for stolen property. R. v. Colet (1981)(SCC) – Principle of Legality & Strict Construction (Pre-Charter) Facts: City planned to “clean up” the appellant’s property including the destruction of a rudimentary shelter. The RCMP obtained a search warrant under s.105(1) of the CC (preventative seizure power) to seize any weapons in advance of cleanup. When the police approached his home, the appellant mounted the roof & threw gasoline at the policemen. He was charged w\a number of offences. Issue: Whether the provision authorizes a search & seizure for weapons? Decision: Officers acting w\out authority. Acquitted of all charges. Held (Ritchie): 25 Any provision authorizing police officers to enter & search private property must be phrased in explicit terms and any ambiguity should be resolve in favor of the property owner (the Interpretation Act s.26(2) can not save the provision). S.105(1) is limited to “seizure”, if Parliament intended to include the power to search it would have (based on other sections). The failure to do so was clear case of legislative oversight. Note: By the time this case reached the SCC, Parliament had already amended s.105 to include “search”. Post Charter (s.8) – S.8 & Analytical Framework S.8. Everyone has the right to be secure against unreasonable search or seizure. The principal of legality had some serious limitations as an instrument for protecting individuals from unjustified searches and\or seizures. First, Parliament could, provided it did so explicitly, legislate away freedom. Second, even where the law was violated by police, there was rarely any formal redress, civil suits & formal complaints were rate. Hunter v. Southam (1984)(SCC) – Legislation in Quasi-Criminal Context Facts: Director authorized officers under s.10 (Combines Investigation Act) to enter and examine documents at the Edmonton Journal (division of Southam). A member of the Restrictive Trade Practices Commission certified the exercise of the Director’s powers and a search was carried out. Note: s.10(1) – D can authorize agents to enter & remove items where he “reasonably believes” evidence will be found; s.10(3) the search has to be authorized by member of the Commission. Issue: Whether s.10(1) & (3) of the Combines Investigation Act are constitutional? Dickson – Unanimous Decision: Section 8 is concerned with protecting privacy, not simply property. In particular it protects a reasonable expectation of privacy. The Charter is a limit on state power, not a source of it. As a result, s. 8 does not authorize police searches or seizures, even reasonable ones. In other words, the Charter did not do away with the principle of legality - it supplemented it (keep in mind ancillary powers doctrine). Requirements for legislation that authorizes search\seizure to be consider reasonable in criminal or quasi-criminal investigative context? 1) Whenever it is feasible to obtain one, prior judicial authorization - a warrant - is required. a. Searches/seizures without a warrant are presumptively unreasonable under s. 8 – the burden shifts to the Crown to establish reasonableness. b. For judicial authorization procedure to be meaningful, the person assessing the evidence to see whether the standard has been met must do so in an entirely neutral & impartial manner (Note: judicial actor does not have to be a judge – could be justice of the peace, etc.). 26 2) At minimum, warrants should only issue where there are reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search. a. The minimum standard may fluctuate depending on the circumstances -> i.e. interest of state security (lower standard), bodily integrity (higher standard). Held: S.10(1) & (3) are inconsistent w\the Charter. They fail to specify an appropriate standard for the issuance of warrants (requirement #2 above – all they require is inquiry be in progress & D believes premises may contain relevant evidence). In addition, the Commission is not a neutral and impartial arbiter (providing authorization) – they have a direct interest. The court refused to read-in the appropriate standards in the provision. The court is the guardians of the constitution and of individual rights, it is the legislatures responsibility to enact legislation that embodies appropriate safeguards to meet the constitution. Note: The SCC believes that s.8 protects people & not places, it protects privacy & not property. We can reconcile search incident to investigative detention as searching for weapons is essential to the officer’s bodily integrity. It appears courts become more comfortable w\reading in requirements in subsequent decisions (i.e. Ladouceur, Hfusky) perhaps because the court becomes more comfortable w\the Charter. Critics of the Charter, saw the first decision which was brought by a corporation as evidence that it would do little more then advance\protect the interests of economic elites (corps). Prof -> while the corporations may use the Charter, the results will trickle down to individuals (i.e. Hunter, Big M. Drug Marts). R. v. Collins (1997)(SCC) – Framework for Assessing Reasonableness under S.8 Facts: Officers staking out motel. Accused and her husband were observed moving belongings from one room to another and going to & from a parked car. Husband was arrested when he left the bar and heroin was found. Officers entered bar, grabbed the accused by the throat (to prevent from swallowing evidence), and tackled her to the floor. A balloon containing drugs was found in her hand. Accused argues s.8 violated. Issue: How do we assess a search or seizure (whether reasonable or unreasonable)? Lamer: Burden in Charter applications rests on applicant to establish his/her claim on a balance of probabilities. If the search\seizure was warrantless, then there is a presumption of unreasonableness and the burden shifts to the Crown. This case provides the framework for case specific claims under s.8 challenging the actions of individual state actors. For a search to be reasonable under s.8, the search or seizure must: 1) Be Authorized by law (principle of legality); 2) The Law must be reasonable (Hunter v. Southam); and 3) The search\seizure must be carried out in a reasonable manner. 27 Held: For a search to be lawful under s.10 (CDSA) the officer requires RPG. The nature of the belief will affect whether the manner in which the search was carried out was reasonable (require very specific information for a seizure by throat to be reasonable -> i.e. drug handler). Unable to determine whether the officer had RPG due to an unfounded defence objection (RG can be based on info received from 3rd parties w\out violating hearsay rules – Eccles v. Bourque). W\out the evidence of the officer, the trial judge was correct in concluding the search was unreasonable because it was unlawful and carried out w\unnecessary violence. However, order a new trial, the accused should not be allowed to benefit from her counsel’s unfounded objection. Note: The requirements articulated apply to all searches\seizures regardless of context (to assess reasonableness). Hunter prescribes the process for reviewing a law to see if it is reasonable in a criminal or quasi-criminal context. Fewer due process protections (i.e. warrant) are necessary for laws authorizing searches in other contexts -> searches of travelers at the border (customs requires reasonable suspicion); businesses operating in highly regulated field); searches of students by school officials (need a reasonable basis)…the rationale is lessened expectation of privacy in these situations. In other contexts such as breaking open the body to obtain evidence, would likely require more than RPG. Engaging S.8: Reasonable Expectations of Privacy The decisions in Duarte, Wong & Wise use a normative approach to asses whether a reasonable expectation of privacy is implicated in broad and neutral terms. The SCC does not focus on whether the law-breakers should bear the risk, but whether everyone in society should. The question becomes whether Canadians would reasonable expect that agents of the state could... [insert technique]…without RG to believe that they are implicated in criminal wrongdoing and\or w\out prior judicial authorization? Privacy can be thought of as protecting various zones or realms (these are not discrete categories & sometimes overlap)(Dyment): 1) Privacy in one’s person – implicated by personal searches (pat-down, search of pockets, knapsack), the taking of bodily impressions (teeth / fingerprints), body cavity searches, or the seizure of bodily samples, etc. 2) Territorial or spatial privacy – privacy in one’s home, office, car, locker, etc. 3) Informational privacy – privacy in personal information like medical, educational, psychiatric / therapeutic, financial records, etc. R. v. Duarte (1990)(SCC) – Expectation of Priacy & Electronic Participant Surveillance Facts: Police rented an apartment equipped w\audio-visual recording equipment to be occupied by police informer. The informer & undercover office consented to recording (Electronic Participant Surveillance). The accused & two others attended the apartment & discussed a cocaine transaction w\the informer & officer. Accused later charged w\conspiracy to import a narcotic. 28 Issue: Whether s.178.11(2)(a)(not an offence to record private conversations where one person consents) is constitutional? Court of Appeal (Cory): “Risk analysis” – if you share confidence w\someone, and that person is a state actor (or working in conjunction w\them), you assume the risk. Electronic Participant Surveillance does not violate s.8. SCC (LaForrest): A conversation w\an informer does not amount to a search & seizure. Surreptitious electronic interception & recording or private communication does (unless all parties consent). The practice of warrantless surveillance (electronic) would undermine the expectation of privacy of all those who set store on the right to live in reasonable security & freedom from surveillance, be it electronic or otherwise (risk analysis misses the mark – police can record any of us at any time – “profoundly unsettling”). The constitutionality of Part IV.I (electronic surveillance provisions) is predicated on the safeguards listed in those sections (i.e. requires judicial review before hand, time limits, etc.). It would be contradictory to find electronic participant surveillance which is under the sole discretion of the police to meet the definition of “reasonable” under s.8 w\out those safeguards. S.178(11)(2)(a) does not meet the reasonableness requirements set out in Hunter for legislation that authorizes search & seizure in quasi-criminal context. Note: Provided an informer\informant is not wearing a “body pack” or recording your conversations, then there is no violation of S.8. Prof takes issues with LaForrest’s focus on technology (only when recorded), he feels for there to be an invasion of personal space, all that should be required is some intermediary. R. v. Wong (1990)(SCC) – Video Surveillance & Expectation of Privacy Facts: Police setup a hidden video camera in a hotel room that the appellant had rented (suspect him of an illegal gambling operation). The camera caught the accused inviting members of the public into the room and running a casino. The police did not have a warrant authorizing the installation & use of the camera. Issue: Whether the police require a warrant to put a camera in the hotel room? Held (LaForrest): SCC rejected the “risk analysis” (invite strangers, expectation of privacy vitiated - risk) of the Court of Appeal. The question must be framed in broad & neutral terms so as to become “whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy”. 29 Hotel rooms are our home away from home. To allow this practice would affect all members of society, not just criminals. It does not matter that the accused opened his doors and invited strangers in (i.e. maids enter hotel rooms). S.8 is meant to shield us from warrantless video surveillance when we occupy hotel rooms. Crown argued for the court to read in additional requirements for video surveillance from the wiretap legislation. The court rejected this (adapting code dealing w\different technology) - the wiretap legislation does not speak to the more dangerous threat from video surveillance. The courts’ role is as guardian of fundamental liberties. It is Parliament’s duty to set out the conditions under which video surveillance can be used. Note: case comes btw Dedman & Simpson – Dedman used the ancillary powers doctrine to create power for fixed point sobriety stops. Post Dedman, the power remain unused until the decision in Simpson. The court in this case refuses to create new law. R. v. Wise (1992)(SCC) – Electronic Tracking Device & Expectation of Privacy Facts: Police surreptitiously attached electronic tracking device to a suspect’s car. Crown argued that tracking device did not encroach upon reasonable expectation of privacy as they could use conventional methods. Held: There is a profound difference btw the threat to privacy from ordinary observation (surveillance) and use of technology (electronic tracking device) to allow the state to monitor our every movement. Electronic tracking intrudes upon a reasonable expectation of privacy. Note: The decisions in Duarte, Wong & Wise did not hold that the investigative techniques could never be used, rather because of the privacy interests these investigative measures should only be undertaken under lawful authority that meets the minimum s.8 standards (i.e. judicial authorization, RG to believe that crime has been or is about to be committed). The question after these cases (broad & normative) – Should the state be able to do this w\out a warrant? If people answer No! s.8 has been violated. Parliament responded to these decisions w\legislation: - S.184.1 (Response to Duarte) – officer w\authorization can intercept private communications (w\elec tech). See s.184 – exigency section. - S.181.2 (Response to Duarte) – officer w\authorization can intercept private communication w\consent of one of the parties (Electronic Participant Surveillance). - S.487.01 (Response to Wong) – prov court judge can issue a warrant authorizing use of any device or investigative technique that would violate s.8 w\o a warrant. - S.492.1(1) (Response to Wise) – judge can issue a warrant for a tracking device where RG to believe an offence under the CC or any other act has or will be committed. R. v. Dyment (1988)(SCC) – Definition of “Seizure” & Zones of Privacy Facts: Police took blood sample from hospital staff taken for medical purposes to determine sobriety. 30 Held: The language in s.8 “search or seizure” means that the two concepts are distinct and that “seizure” encompasses something different than “search”. The essence of a seizure under s.8 is the taking of a thing from a person (by a state agent) w\o that person’s consent, where the individual affected has a privacy interest in the subject- matter allegedly seized. Seizures are subject to the very same reasonableness standards set down in Hunter. The blood sample which was taken for medical purposes and subject to a duty of confidentiality on the part of medical personnel, was surrounded by an “aura of privacy”. Violation of s.8 when they seized the sample w\out a warrant. Evans v. The Queen (1996)(SCC) – High Water Mark For Privacy Facts: Police receive anonymous tip that the accused had a MJ grow op in his home. A check of criminal records, electricity consumption and visual perimeter search disclose nothing. Police approach door to knock w\the intent to sniff for MJ. Police smell odor of MJ and arrest the accused immediately. The police did not search until they got a warrant. Issue: Was the police act (knock & sniff) a search? Sopinka: Occupants of a residence have a reasonable expectation of privacy in the approach to their home. That expectation (privacy in the approach to their home) is, absent signs or fencing signaling the contrary, implicitly waived vis-à-vis members of the public (including the police) to approach and knock only for the purpose of communicating with the occupant(s) (implied license). Police exceed the implied license when they approach for the purpose of securing evidence against the occupant(s) and such conduct therefore amounts to a “search” under section 8 of the Charter. Note: where the conduct of anyone goes beyond communicating, they have exceeded the implied license. If the intention of the police is not considered, the police would be authorized to rely on the implied license to knock for the purpose of randomly checking homes for evidence of criminal activity. Held: The knock & sniff was a search (olfactory search) & violated s.8 (exceeded implied license to communicate). The offices required a search warrant under s.10 & 12 of the CDSA. Therefore the search was not authorized by law (first prong of Collins). The warrant was obtained on tainted & untainted evidence. Relying solely on the untainted evidence, the warrant would likely not have been issued. The warrant for the subsequent search was invalid. Note: 31 Arguable the decisions in Duarte, Wong, Wise & Evans represent the high water mark for the articulation of reasonable privacy expectations. More recent decisions show the pendulum swinging the opposite direction. Improper Information in Warrant Applications A court reviewing the adequacy of the grounds contained in a search warrant application is required to excise all improperly i.e. illegally and/or unconstitutionally) obtained information. The reviewing judge must then ask whether, based on what remains, whether the issuing judge would have issued the warrant nevertheless? Note, as we shall see later, this is not a de novo review. The reviewing judge does not substitute his or her opinion, the tests posits the issuing judge and how he or she would have acted in light of the enhanced record. S.8: Territorial Claims R. v. Edward (1996)(SCC) – Expectation of Privacy & Territorial & Spatial Nature Facts: Accused is a suspected drug dealer (information received) and under surveillance by police. Police pull him over (background check - he had a suspended license) and arrest him for driving w\a suspended license (after leaving gf’s house). The police observed the accused swallow an object wrapped in cellophane. Police go to gf’s apt & lie to her to get her to allow them to search the apt (not told of right to counsel). The gf directs the police to seat cushion where cocaine is found. The gf is arrested but the charges get dropped. Issue: Did Edwards have a reasonable expectation of privacy in gf’s apt? – No! Cory: In assessing whether s. 8 is engaged, that is whether state action has encroached on a claimant’s reasonable expectations of privacy, the “totality of circumstances” must be considered. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following (for whether person had reasonable exp of privacy): i) Presence at the time of the search; ii) Possession or control of the property or place searched; iii) Ownership of the property or place; iv) Historical use of the property or item; v) The ability to regulate access, including the right to admit or exclude others from the place; vi) The existence of a subjective expectation of privacy; and vii) The objective reasonableness of the expectation. Held (Cory): The accused did not have a reasonable expectation of privacy in his gf’s apt because he was a specially privileged guest. He did not contribute to rent or household expenses, could not control access to the apt (could not exclude others from premise). The right to be free from 32 intrusion\interference is key element of privacy – the accused was not free from intrusion or interference (goes back to “Risk Analysis”). No personal right of the accused was affected by the police conduct. Note: the only factor Cory found in favor of the accused was historical use of the property. Note: Prof -> LaForrest following his normative approach would probably have found that Edwards did have an expectation of privacy in gf’s apt because: he left stuff there, paid for couch, etc. R. v. Belnavis (1997)(SCC) – Application of Edwards Factors – Territorial Claim Facts: Three women pulled over for speeding (car belonged to bf). Inconsistencies in information provided by the occupants led police to conduct further inquiries. Substantial quantity of stolen property found in garbage bags located inside the car & in the trunk. Issue: Did the passenger (not driver) have a reasonable exp privacy wrt contents of the car? Held (Cory): Reasonable Exp of Privacy in Relation to Vehicle (Territorial) Edwards - whether the passenger will have a reasonable expectation of privacy in the vehicle depends upon the totality of circumstances (territorial claim). Factors in favor: passenger was present during search. Factors against: connection to the vehicle was tenuous did not own the vehicle (only a passenger of friend of owner), no control over the vehicle, never used the vehicle in the past, no relationship w\owner or driver which would establish special access (i.e. spouse, bf, gf), could not regulate access, & no subjective exp of privacy. Reasonable Exp of Privacy in Relation to Contents (Bags). Passenger did not have reasonable exp of privacy in the bags (contents seized). She did not identify which bag was hers or make any gesture which suggested she claimed one bag. There was nothing on the exterior of the bags to indicate a connection to the passenger (opposed to suitcase). The passenger did not have a reasonable exp of privacy in the vehicle or items seized. Note: The driver had a reasonable exp of privacy in the car (bf’s car) b\c had the owner’s permission to use the vehicle. Passenger could have reasonable exp of privacy where the owner-operator of car is their spouse or where two people on extended trip share driving & expenses. Although the S.C.C. never makes this limitation explicit, it appears the first five factors in Edwards only apply to assessing territorial privacy claims. The last two factors seem to apply universally to all claims. S.8: Informational Claims 33 R. v. Plant (1993)(SCC) – Information Privacy Claims Facts: Police receive anonymous top of MJ grow op. Police check hydro consumption rates and find it is 4 times a comparably sized residence. Based on this information the police obtain a warrant and find the grow op. Issue: Does an individual have a reasonable exp of privacy in information contained in the electronic records (hydro)? Sopinka: In assessing whether s. 8 is engaged by the state accessing and examining records, the issue is whether the claimant has a reasonable expectation of privacy in the information contained in those records. Again, the totality of circumstances must control, and the subjective expectation of the individual would seem important. The following factors, identified in Plant, seem relevant to the objective reasonableness of that expectation: • The nature of the relationship between the party releasing the information and the party claiming its confidentiality; • The place where the information was obtained; • The manner in which it was obtained; • The seriousness of the crime being investigated (Tessling rightly holds that this factor is no longer relevant at this threshold level); and • The nature of the information, it must be of a “personal and confidential nature”, relate to a “biographical core” of personal informational, that tends to reveal intimate details of the lifestyle and personal choices of the individual. Held: The computer records (hydro) did not reveal intimate details of the appellant’s life. The records were prepared by the commission as part of commercial relationship – no obligation to keep them confidential. It is possible for members of the public to access energy consumption at a particular address. The police access the records on line w\out intrusion into ordinary places considered private (hotel room, etc.). The accused did not have a reasonable exp of privacy in the hydro consumption records. Note: PIPEDA (Personal Information Protection & Electronic Documents) obligates all entities engaged in commercial activities not to disclose personal information that it may maintain w\o first seeking consent. Exceptions: 1) Entity required to comply w\subpoena or warrant; 2) Disclosure made by entity to investigative body – RG that breach of laws of Canada or related to national security. R. v. Tessling (2004)(SCC) – FLIR Technology – Anomaly in Search\Seizure? Facts: Police receive tip from both an untested & reliable informant(s) that a known drug dealer buying large quantities from “Ken”. Review of hydo consumption records & visual surveillance revealed nothing. RCMP plane w\FLIR flew over the house & captures heat signature showing lots of heat radiating from exterior wall (police infer grow op). W\FLIR 34 image & informant tips police obtained warrant & found large quantity of MJ. Note: FLIR – crude technology, can not see inside house or what is generating the heat. Issue: Is the use of FLIR an intrusion of a reasonable exp of privacy? Binnie: In assessing whether there the accused had a reasonable expectation of privacy (if there as a REP), need to consider the totality of circumstances (Binnie appears to modify Edwards???): 1) What was the subject matter of the FLIR image? 2) Did the respondent have a direct interest in the subject matter of the FLIR image? 3) Did the respondent have a subjective expectation of privacy in the subject matter of the FLIR image? 4) If so, was the expectation objectively reasonable? In this respect, regard must be had to: a. The place where the alleged “search” occurred; b. Whether the subject matter was in public view; c. Whether the subject matter had been abandoned; d. Whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. Whether the police technique was intrusive in relation to the privacy interest; f. Whether the use of surveillance technology was itself objectively unreasonable; g. Whether the FLIR heat profile exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature. If there was a reasonable expectation of privacy, was it violated by police conduct? (Note: warrantless searches are presumptively unreasonable). Held: KEY: FLIR imaging does not touch on the biographical core of personal information nor does it reveal intimate details of lifestyle. A person does not have a reasonable expectation of privacy in the external patterns of heat distribution on the external surfaces of a house. FLIR information on its own does not provide sufficient grounds to obtain a warrant – it merely detects heat radiated from outside surface of a house and only allows inferences to be drawn. The images of heat emanations are meaningless on their own. A person can not have REP in what they knowingly expose to public or abandon - i.e. garbage (allowing heat to escape is not the same). A person does not have serious privacy interest in heat patterns exposed on external wall (exposed to public). However, police are interested in the heat profile for what it reveals about the activities in the house – in this respect, a person may have a subjective expectation of privacy. FLIR imaging technology can not identify the source of the heat or the nature of the activity that created it. The technology must be evaluated according to its present capabilities. Future advances in the technology should be dealt w\when they arise. Current FLIR technology is both non-intrusive and mundane in the data it is capable of producing. On a side note, the seriousness of the offence is not a factor to be considered in whether the person had a reasonable expectation of privacy. 35 Note: Prof feels that if this issue was analyzed in normative terms (broad terms), the court would have likely decided it was an intrusion. He does not agree that the information is meaningless, it tells police that something very hot is going on inside w\very few possibilities (i.e. grow op, sauna, hot bath all of the time). Larger issue for search & seizure analysis - Binnie does not reconcile this approach w\prior decisions (i.e. Edwards). R. v. A.M. (2006)(Ont CA) – Police Sniff Dogs Facts: Three police officers w\a drug sniffing dog check school for drugs. The dog identifies a knapsack in the gym as containing drugs. Police feel they have RPG to search the bag and find MJ, Mushrooms and the owners’ id. Issue: Whether A.M’s s.8 rights were engaged? Held (Armstrong): Crown argued that the odor from the knapsack was waste odor in a public place. The court rejected this argument. There is difference btw a plane flying over the exterior of a building (on basis of information received) and taking pictures of heat emanations & a trained police dog sniffing personal effects of entire study body in random police search. Note: Police were told to remain in classrooms while police subject their belongings to police dog. The students could have argued unlawful detention. Place (US) -> police dogs sniffing bags is not a search – waste odor is something the police can pickup randomly & they are not engaged in a search. Note: due this decision, police wait a bus stops w\search dogs, they will hold your luggage & get search warrant if dog detects. Terry (US) -> The police ordered a family out of their car and waited for dog to show up & sniff the car. No drugs were found. Police can direct all occupants out of the vehicle during traffic stop for safety purposes. Note: if dogs are not a search, police will use them to make their job easier. Statutory Search & Seizure Powers In response to the SCC decisions in the preceding sections (specific technique intruded REP), parliament has responded w\legislative provisions to authorize these techniques. Some of the search\seizure powers that pre-date the Charter have been amended to comply w\s.8 while other remain constitutionally suspect (do not require warrant). In Grant (SCC), the court held that provision which authorize search\seizure w\out a warrant should be read down to apply on in exigent circumstances rather than being declared invalid. Note: “exigent” = imminent danger of loss, removal, destruction or disappearance of evidence. 36 Some provisions have been amended to allow police to search where the conditions for obtaining a warrant are present, but it is impractical to get one (exigent circumstances). Generally, police require a warrant if no exigent circumstances (s.487 – most warrants). Search and\or Seizure Powers Enacted in Response to S.C.C. Decisions 184.1 - body packs for safety (intercept private communications), tape generally not admissible and must be destroyed - constitutionally suspect - response to Duarte 184.2 - body pack warrants - note: only provincial court or superior court judge may issue - response to Duarte. Note: parliament legislated a higher standard then Hunter which only required justice of the peace. 492.1 - tracking warrants - note: “reasonable suspicion” standard and issuance by justices of the peace - response to Wise 492.2 - dial number recorder warrants - note: “reasonable suspicion” and issuance by justices of the peace - response to Fagan 487.04 / 487.06 - DNA investigative warrants - note: provincial court judges may issue, not jps - also available by “telewarrant” - response to Borden & Stillman 487.092 - body impression warrants - note: justices of the peace may issue and available by telewarrant - response to Stillman. Note: fingerprints, palm prints, etc. 487.01 - general warrant - note: provincial or superior court judges only, no interference with bodily integrity permitted - response to Wong. Note: require RPG to believe there is in a building, place or receptacle anything (evidence) of an offence committed. With new technology can use this provision on a case-by-case basis. A JP can decide in provincial court. Re Laporte & The Queen (1972)(QC) – S.487 Does Not Authorize Searches of Body Facts: Accused was arrest. Based on scars & X-ray police believe he was involved in a shootout w\police 1.5 yrs ago. Crown got a search warrant to authorize the search of the accused’s body for one or more bullets (invasive procedure). Accused brought an application for certiorari (prerogative writ – jurisdictional review) to quash the warrant. Issue: Is there jurisdiction to issue a warrant to search the human body (interior)? – NO! Held: S.487 authorizes a search of a “building, place or receptacle” – a human body is not a building, place (geographic not anatomical location) or receptacle (court uses strict approach). Any conflict btw protection of society (detection & prosecution of crime) & protection of individual members must be resolved in a manner most compatible w\human dignity (where possible). Justice had no jurisdiction to issue such a warrant – warrant is quashed. Note: Subsequent decisions have reiterated that the search warrant power can not be used to authorize searches of the person. Parliament has legislated searches\seizures that occasion some minor interference w\physical integrity: S.256 – warrant to draw blood where person can not consent (for impaired driving offences); S.487.04 & .09 – scheme for collection of DNA samples for crimes of violence and inclusion in national DNA databank; S.487(2.1) & (2.2) – search warrants for computer data. 37 Search Warrants – Execution Absent special circumstances, those executing must possess and show warrant if requested (Code, s. 29(1); Police must comply with the common law announcement requirements. Before entering they must provide: i) notice of presence (i.e. knock / ring doorbell); ii) notice of authority by identifying themselves (as police officers); and iii) notice of purpose (i.e. executing search warrant). Exception: unless there are grounds to believe that surprise entry is necessary to preserve life and/or evidence (i.e. exigent circumstance, search warrant) (Eccles v. Bourque). Note: minimally, police should request admission & have it denied before forcing entry. Day time searches are the rule, night time search must be justified and specifically authorized (Code, s. 488) Under s. 487(1), detention and/or searches of occupants (persons) not authorized, authority to do this requires another source - i.e. lawful arrest and search incident thereto - investigative detention. A warrant under s.11 of the CDSA allows police to search the person & gives them the ability to break into places to execute the warrant. If police do not follow the requirements, the manner in which the search is carried out is unlawful (even if they had a warrant), and an unlawful search is unreasonable (Collins). Any person detained during execution of a search warrant should be notified of their s.10(a) & (b) rights. Preconditions for Obtaining a Warrant – S.487(1) Information sworn to obtain warrant must set out bases for a justice to conclude that there are reasonable and probable grounds to believe: an offence has or is being committed; and there is in a particular building, place or receptacle evidence relevant to that offence. The warrant should specify and describe the “things” to be searched for and seized. Therefore, those items must be described with enough detail such that an officer will be guided by the warrant in carrying out the search. Warrants should not be issued to license generalized investigative fishing expeditions. S.487.1 allows for telewarrants (staffed 24 hrs a day). Police can fax in information & JP can fax back a warrant. Re Gillis & The Queen (1982)(QC) – Preconditions for Obtaining a Warrant Facts: Officer swore an information to obtain a search warrant (s.487(1)). The officer did not clearly state RPG for the warrant (i.e. statement by victim, police investigation, etc.). The information to be seized was stated in generic terms (cheques, statement of accounts, bank books, etc.). Application to quash warrant. Boilard (QC Superior Court): Reasonable Grounds 38 The issuance of a warrant is a judicial act. The Justice must be satisfied there are RPG to believe that the objects described in the information are located in the place indicated & whether they will provide evidence of the commission of the offence set out in the information. Description of Objects Objects (documents) must be described w\sufficient precision w\respect to their category & their relation to the offence for which they are to provide evidence. Search warrant must set out w\sufficient precision the nature & identity of the documents so they can be identified & seized. The search warrant should not license a general\broad search (fishing expedition). Note: can not seize item not specified in warrant. Held: The grounds set out in the information were not sufficient (justice exceeded his jurisdiction). Further, the justice exceeded his jurisdiction by not adequately detailing the objects sought. Search warrant quashed – the search was unlawful and the items are to be returned. Basis for Challenging a Search Under a Warrant 1. Inadequate grounds - That the warrant should not have issued because the information sworn, or as amplified on review (ie. after excising of improper/unconstitutional & incorrect info), does not set out adequate grounds for issuance. a. RPG standard is said to be met “at the point where credibly-based probability replaces suspicion” (Hunter, Debot). 2. Fraud on issuing justice - that police deliberately deceived the issuing justice with respect to some material fact. 3. Police exceeded its authority - although warrant was lawful, police exceeded their authority in some way, i.e. not complying with knock/announce rules, searching beyond its authority or over-seizure etc. 4. Manner of execution - something about manner of execution rendered search unreasonable, i.e. gratuitous violence, profane language, etc. Note: first three items go to the first prong of Collins (lawful authority) challenging the legality of what the police conduct. The last item speaks to the third prong of Collins (reasonableness). A writ of certiorari can still be used as a means of challenging search & seizure pursuant to an alleged defective warrant. These application are very narrow & normally limited to procedural error (s.8 & s.24(2) of Charter are much broader). Assessing the Search Warrant Information Generally - A.-G. N.S. et al. v. MacIntyre, 1982 1 S.C.R. 175: A directly interested party is entitled to have access to an information sworn to obtain a warrant, i.e. person whose residence, office etc. was searched and/or property was seized; Note: person facing trial & property seized = directly interested. If a warrant was executed but nothing was seized third-parties, like the media, are generally not entitled to have access to the Information sworn (the privacy of those affected trumps the public’s right to know); 39 If, however, anything was seized when the warrant was executed the public is entitled to have access to the Information - which is, after all - a public document. There is a presumption in favor of the “Information” being available for inspection by the public. However, there is reluctance to allow people to see the “Information” before the warrant is executed to prevent someone from warning the person. Once the warrant is executed, the concern is spent. Informants There are four different def’ns of informant in the criminal justice system: “Informant” refers to the person who swears an information to obtain a search warrant (Criminal Code – usually a police officer). “Informant” refers to a person who swears out a criminal charge (usually a police officer) – the charging document at the early stages is an information (Criminal Code). “Witness” refers to persons who supply information to police without any expectation that their identity will be kept private (i.e. willing to supply testimony). “Informant” (special category) – provides information in secret and expect their identity to remain private (confidential informants). They have the protective shield of the law in the form of informant privilege (cloak their identities from disclosure). Policy: to increase public coming forward to report information –without privilege concern that informant tips would dry up. Regina v. Hunter (1987)(Ont C.A.) – Where Confidential Informants Are Involved Facts: Accused wants access to the information used to get the search warrant (denied). Some of the information was provided by a confidential informant. Issue: What effect does s.8 have upon the CL principle of protecting the identity of informers? Cory – Access to information where confidential informant: An accused is entitled to reasonable disclosure of the information which was used to obtain a search warrant, if it is needed and requested, despite the fact that it may disclose the identity of an informant; Where an informant’s identity is disclosed in the information, the trial judge should review and edit the information to remove references to the informant’s identity; The accused is entitled to disclosure of the information as edited, but if the Crown is still concerned - and the informant is unwilling to waive privilege - then the Crown may choose not to rely on the warrant and attempt to defend the search as warrantless. Note: judge to consider s.24(2) & exclusion of evidence. 40 Held: There is a conflict btw CL principle that the identity of informers should not be disclosed & that a person should be entitled to make full answer & defence (s.7) by getting access to the information for the warrant (to challenge it). The procedure outlines above was not followed at trial. Appeal allowed & new trial ordered. Note: Since this decision, police when swearing an information to obtain a warrant have refrained from identifying confidential informants by name (makes it easier for editing by judges). In response to this decision, Parliament enacted s.487.3 which allows for a protective order sealing the search warrant information where the details might reveal the informant’s identity (provision co-exists w\Hunter). In Toronto Star v. Ontario, an information was sealed under s.487.3 & the warrant had already been executed. Court held that s.487.3 orders should not be made a matter of routine & that police need to show a serious & specific risk that either the informant’s id will be revealed or an ongoing investigation could be compromised. There is the potential for abuse w\the cloak of confidentiality that informants have (i.e. provide false information against innocent individuals (Crime Stoppers)). R. v. Leipert (1997)(SCC) – Identity of Informant Not Known to Police Where the there is a confidential anonymous informant, an accused is not entitled to any information that could potential reveal the identity of the informant. Exception accused can establish that their “innocence is at stake” (factual innocence). The justification is w\anonymous tipsters, the police & Crown are not aware of the person’s identity & are unable to determine what might serve to indirectly reveal their identity to the accused. Debot v. The Queen (1989)(SCC) – Assessing Confidential Informant Tip & RPG Facts: Police received confidential tip that accused & two others to complete a sale for 4 ounces of speed. Informant was reliable (had been used before) & was aware of transaction because one of the parties told him about it. Police setup surveillance near the house & observe a car registered to the accused arrive at the house. Police pull over the vehicle (instructed by senior officer) & search the accused locating speed. Note: s.37 of the FDA allows for warrantless searches of people\places where officer has RPG that person in possession of a controlled drug. Issue: Whether the officer had RPG to search (under s.37 of FDA)? Wilson – Assessing Informant Tips: In assessing whether information possessed by police is sufficient to supply the requisite grounds to (detain), search and/or arrest, the totality of the circumstances must be considered. This includes: 41 1. Compelling - was the information predicting the commission of a criminal offence compelling? 2. Credible - where that information was based on a “tip” originating from a source outside the police, was that source credible? 3. Corroborated - was the information corroborated by police investigation prior to making the decision to act on it? Note: the RPG test is objective & subjective. Held: The requisite grounds for a search (under s.37 FDA) are “reasonable probability”. The totality of circumstances must be assessed to see if it meets the standard of reasonableness. The officer making the decision to search needs to have the RPG (senior officer in this case). Significance of past record -> never provides RPG for a search on its own. In order to use past reputation, it must be related to the reasons for the search. If the reputation is based on hearsay (not police familiarity w\suspect) its veracity can not be assumed. Criteria #1 (compelling) information received was sufficiently specific (participants, location, time of day, etc.). Note: officer relied on direct experience w\the accused for a prior drug related offence. Criteria #2 (credibility) informant was credible. Police had used informant before on drug traffickers & no outstanding charges or investigations against him. Officer had seen the informant w\one of the participants before. Criteria #3 (corroborated) police sufficiently corroborated the tip. It is not necessary for police to confirm each detail in a tip as long as the sequence of events observed conforms sufficiently to the anticipated pattern to remove innocent coincidence. The car was registered to the accused & was at the stated location & the stated time (police had seen men together before). The failure of police to spot the courier was not fatal. Note: This case provides the criteria to assess information provided by an informant to decide if you have the RPG to obtain a warrant, effect a search (under s.37 FDA), detain a person, and\or arrest. If the police do not have RPG, Collins states that the search is unlawful & unreasonable. Special Case of Anonymous Informants Anonymous tips require special caution and greater corroboration (Debot); Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing along, provide reasonable grounds for an arrest or search. But very well may be enough to warrant an investigative detention (Lewis). R. v. Lewis (1997)(Ont C.A) – Anonymous Tip 42 Facts: Anonymous tipster notifies police that man named “Keith Lewis” will be flying from Toronto to Edmonton on a particular day, time, specific airline, accompanied by 2yr boy & carrying rum bottle containing cocaine. Police confirmed man was booked on the flight. Police intercepted the man (checked in w\2 yr boy) and found the rum bottle w\cocaine. Held: Absent confirmation of details other than details which describe innocent & common place conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide RG for an arrest. Risk of false allegations is higher when anonymous tipsters. The police did not have RPG to arrest the man, but did have articulable cause to detain him. Law Reform Commission on Search & Seizure (Pre-Charter Study) Examined search warrant issuance over 4 month period in seven Canadian cities. Study revealed there is a clear gap btw the legal rules for issuing & obtaining search warrants & the daily practice (i.e. 39.4% - validly issued; 58.9% - invalidly issued). Fatal defects were most likely to occur in s.487 CC and in Narcotic Control and Food & Drugs Act (32.2% - RPG not met). Panel found adherence to warrant requirements was largely a product of local practice (Vancouver had best record – 71% issued validly; Montreal had the worst – 17%). The study did reveal that greater care is taken for warrant in relation to commercial crime – most likely due to the increased risk of challenge. Note: Track record after the introduction of the Charter is also troubling. Two studies in 1999 (Old City Hall Toronto) fund that 61% & 39% of warrant should not have been issued (in one study 40% failed to disclose RPG). Part of the reason has been attributed to the poor training of JOP. In the CC, a “justice” (used in s.487) includes a JOP (in Ont – JOP decide upon regular search warrants). Nationwide survey showed that JOP are not lawyers & in Ontario, they are some of the most poorly trained in the country. Prof argues that these studies indicate that there may not be an inherent flaw in the warrant process, but rather the inadequacy of training that is responsible for issuing warrant. The Exigency Exceptions s. 478.11 of Code: A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. 43 s. 11(7) CDSA: A peace officer may exercise any of the powers described in subsection (1), (5), or (6) without a warrant if the conditions for obtaining a warrant exist but by reasons of exigent circumstances it would be impracticable to obtain one. Note: these provisions comply with s.8 and the first prong of Collins (make it lawful to act without a warrant). Without these provisions the police would not be able to act if they did not have a warrant (no lawful authority). Silveria Facts: Police arrested drug dealer down the street from his house. W\out a warrant they entered the accused’s home to prevent the destruction of evidence and held the people present until they obtained a warrant. Held: The SCC admitted the evidence because there was exigency. However, in the future absent lawful authority the court stated they will not turn a blind eye to this conduct. This decision prompted the legislative response for exigency. Common Law Search & Seizure Powers Search Incident to Arrest A power to search “incident” to a lawful arrest had long been recognized at common law, and survived into the era of the Charter (Cloutier v. Langlois). The fact of a lawful arrest (i.e. based on rpg) triggers the power, with no additional grounds being required (Cloutier v. Langlois). “Incidental” is loosely defined, search can occur some time after (Caslake) or even shortly before the arrest (Debot, at Ont.C.A.), again, provided that the officer has the requisite grounds to arrest. Purpose(s) for which police may search incidental to arrest: Safety - police may search for weapons or other items that an arrestee could potentially use to facilitate his/her escape or to harm him/herself or others; To Locate & Preserve Evidence - police may search for the purpose of locating and preserving evidence against destruction by the accused or others Note: courts have upheld searches incident to arrest of a person’s pockets, handbags, & local proximity where arrest occurs. Geographic limit further you get away from “time & place”, the harder it will be to justify. Rex. v. Brezack (1949)(Ont C.A) – Search I\T Arrest Can Extend Into Mouth (Pre-Charter) Facts: Police received specific information that the accused (prior conviction f\drug possession) might be hiding drugs in his mouth. Police seized the accused by the throat (prevent swallowing), a struggle ensued and the accused bit the officers’ fingers each time he tried to check his mouth. Police did not find drugs on his person but found narcotics in his car parked nearby. Accused charged w\assaulting officer. Rule (Collins & Brezack) search incident to arrest can extend into the mouth of a lawfully arrested person provided the police have specific information that there are narcotics concealed in the mouth. Held: 44 Evidence supports the officer making an arrest & searching the accused’s mouth for evidence (specific information received). Note: The court & police use what they found after the fact (in the car) to justify their approach. The SCC has made it clear that this kind of reasoning is not to be used post-Charter (s.8 requires justification on what police knew at front end). Main Point search incident to arrest pre-charter could extend into the mouth. R. v. Caslake (1998)(SCC) – Limits on Search Incident to Arrest Facts: Officer finds accused on the side of the highway apparently relieving himself. The officer checks where the accused was standing & finds 9 pds of MJ in a garbage bag. The accused is arrested (by officers from small detachment) & his car impounded. Approx 6 hrs after arrest, officer performed “inventory search” of accused’s car & finds $1.4K & cocaine. Majority – Lamer -> Limits on Search Incident to Arrest In order to be justified as a search incidental to arrest, beyond a lawful arrest: 1) The searching officer must subjectively have one of these purposes in mind when conducting the search (safety of police & public; protection of evidence from destruction; discovery of evidence); and 2) That belief by the officer that one of the underlying purposes to search incident to arrest will be served by the search must also be objectively reasonable; Note: the officer must subjectively believe the search is based on one of the purposes – that belief must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but as each become more attenuated that may cause a court to draw a negative inference - which may then be rebutted by a proper explanation. If the justification for the search is to locate and preserve evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is arrested (to prevent fishing expeditions). For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further. Held: The officer by his own admission was conducting an “inventory search” he did not subjectively have one of the purposes in mind (i.e. would have been valid if searching for evidence). The 6 hour delay in this case was ok the detachment only had two officers which provides a reasonable explanation for the delay. The search was not authorized by S\Incident to Arrest not authorized by law & unreasonable (due to Collins) violation of s.8. Note: 45 The majority left for another day the question of whether “inventory searches” would be constitutional under s.8. Note: purpose of inventory search is to protect police against liability for lost items. In R. v. Nicolosi (1998), the accused was arrested for outstanding traffic warrants, his car did not have valid plates, was impounded & an inventory search located a gun. The court held the inventory search did not violate s.8 because s.221 of the HTA allows police to remove vehicles from the road w\out valid plates & it grants an implied license to conduct an inventory search. The court concluded the power (inventory search) was reasonable under s.8. R. v. Stillman (1997)(SCC) – S\Incident to Arrest – Police Can not Seize Bodily Samples The power to S\Incident to Arrest does not entitle police to seize bodily samples or take body impressions (teeth) from a suspect. SCC emphasized intrusiveness of the search & lack of risk that this evidence will be lost or destroyed (can not lose DNA). In response to Stillman, Parliament legislated DNA warrants (blood, hair, etc.) & body impression warrants (foot, hand, teeth). Search Incident to Arrest: Strip Searches R. v. Golden (2001)(SCC) – Strip Searches Incident to Arrest Facts: Police observe accused (in Subway) involved in what appears to be a drug transaction (money changing hands, white powder). Officers enter Subway, arrest the accused and perform a pat-down search locating no weapons or drugs. Officer proceeded to force the accused to do a strip search first in the stairwell & then in a booth of the restaurant. The officer used dirty gloves to remove a bag in the accused’s ass. The bag contained cocaine. Majority – Iacobucci & Arbour – Strip Searches Given their intrusiveness, “strip searches” incidental to a lawful arrest are subject to special requirements. Definition - A “strip search” takes place where there is a removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspect of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments. Given that they are warrantless searches, they are presumptively unreasonable under s. 8 and the Crown bears the burden of showing they are in fact reasonable (on balance of probabilities). In order to do so, the Crown must establish the following: 1) The arrest was lawful - i.e. the police possessed the requisite grounds and that those grounds were objectively reasonable (if unlawful arrest – go no further); 2) The strip search must be undertaken for purposes related to the arrest, i.e. officer safety or to locate and preserver evidence (can not be undertaken for capricious reasons or to belittle the accused); 3) Due to the intrusiveness, cannot be undertaken as a matter of routine. Beyond grounds for arrest, police must have additional grounds (RPG) to believe that a strip search is necessary to ensure safety or locate/preserve evidence; 46 4) Generally, strip-searches may only be conducted at the station-house, unless there are exigent circumstances necessitating such a search in the field (i.e. urgency to search for weapons\object could be used against the officer, public). 5) Finally, the search must be carried out in a reasonable manner. This will depend on factors such as those found in P.A.C.E. (reproduced at pg. 233). Can trip search be conducted at the police station…why or why not? Will the strip search be conducted in a manner that ensures the health and safety of all involved? Will strip search be authorized by officer acting in a supervisory capacity? Has it been ensure that the officers conducting the search are the same gender as the person being searched? Will the number of officers in the search be no more then reasonably necessary? What is the minimum of force necessary to conduct the strip search? Will strip search be conducted in private area so no other individuals can observe the search? Will “” as quickly as possible and in a way that the person is not completely undressed at one time? Will the strip search involve only visual inspection of genitals and anal areas without contact? If inspection reveals presence of weapon or evidence in body cavity (not mouth), will the accused be given option of removing it or having it removed by a trained medical professional? Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? Held: The strip search was unreasonable and violated the accused’s rights guaranteed by s.8. While the arrest was lawful, the purpose of the search was to locate concealed illegal drugs & the police had RPG to conduct the search (requirements 1, 2 & 3), the police did not establish an exigent circumstances and the manner in which the strip was conducted was not reasonable (requirements 4 & 5). Reasonableness of the search (from P.A.C.E) accused not given option to remove clothing, no authorization from senior officer, carried out in manner that may jeopardize the health of the accused. Just because an accused resists attempts to remove a bag from his ass (unlawful & unreasonable) does not allow the police to proceed w\force to remove it. Note: Court prescribes how a strip search incident to arrest will be lawful dealing w\prong #1 of Collins. The court is seeking legislative intervention – but the decision has ensured this does not become a priority of the legislature. This decision provoked disapproval form police forces across the country – they claimed the safety of officers could be jeopardized (by following the requirements). Statistics gathered by Toronto Police before Golden indicate that for 1,430 people strip searched 60% reveal nothing & in 40% weapons or contraband was found. QUESTION Requirement 5 deals w\prong #3 of Collins (reasonableness)?? Search For Weapons During An Investigative Detention In the course of a lawful investigative detention (see above) where a police officer has reasonable grounds to believe (sic suspect) that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be conducted in a reasonable manner. Note: whether protective search can extend to bags that detainee is carrying or car that detainee is riding are not addressed.) 47 Emergency Search Power R. v. Godoy (1999)(SCC) – Emergency Search Power Facts: Disconnect 911 call (person did not say anything). Police are met at the door to apartment by accused who reports there is no problem. Police force their way into the apartment and find his spouse w\swelling above her eye in fetal position. Chief Justice Lamer -> Emergency Search Power In response to a disconnected 911 call, the police have the authority to forcibly enter the premises from where the call originated. The intrusion must be limited to the protection of life and safety. The police may locate the caller & determine their reasons for making the call & provide assistance as required – police authority ends there. Beyond that, the police do not have further authority to search the premises (absent a valid consent or some other lawful basis). Note: The court creates this power using the ancillary powers doctrine. Consent Search & Seizure, Waving the Protection of S.8 To be effective, consent to for a search / seizure must be: (1) Given voluntarily. A consent obtained through intimidation, threats or violence would not qualify; and (2) Second, the consent must be “informed”, the subject must be possessed of the requisite informational foundation for a true relinquishment of the right. This requires two things (Borden): - Knowledge of the right to refuse; and - Knowledge of the investigative purpose for which consent is being sought. Note: if a person waives their s.8 rights – none of the requirements we discussed apply. Regina v.Mellenthin (1992)(SCC) - Consent Facts: Accused stopped at fixed checked point. Officer notices an open gym bag w\a brown bag containing a plastic sandwich bag. Officer inquired into the contents of the bag & the accused removed the bag revealing glass vials (for drugs). The officer searched the car (RPG) and found cannabis resin & cigarettes. Crown argues accused consented to the search. Held (Cory): As a result of detention, it can be reasonable inferred that the accused felt compelled to respond to questions from the officer. In these circumstances, the Crown must adduce evidence that the detained person made an informed consent (to search) based upon an awareness of his rights to refuse to respond to questions or to consent to the search. 48 The search was not consensual. Note: Confusion from this case what context does the waiver of consent apply? Regina v. Borden (1994)(SCC) – Consent Facts: Accused arrested for one sexual assault (at Motel) where no genetic or DNA evidence was found. Police suspect the accused of an earlier sexual assault (where DNA evidence collected). Police sought consent to get blood & use it for their “investigations”. Accused was not informed that he was suspected of another sexual assault. The accused was charged w\the other sexual assault as a result of the blood sample. Held (Iacobucci): Police w\holding the true purpose of the evidence (blood) to their investigation violated the accused’s s.10(a) – to be informed of the true reasons for detention & s.10(b) – failure to reappraise the accused of his s.10(b) rights once the focus of the investigation shifted. In order for a waiver (s.8) to be valid, the person must have the requisite informational foundation for a true relinquishment of the right. This requires: knowledge of the right to refuse; and knowledge of the investigative purpose for which consent is being sought (to enable a meaningful decision). Court rejected argument that accused should have known blood could be used for an offence he committed seven weeks earlier protections of Charter would no longer apply where a person arrested is guilty of the offence for which they are detained (i.e. waives protection of Charter for all other offences). Note Mellenthin and Borden piece together the requirements for valid consent\waiver. The requirements for consent are not stated in the Criminal law, based entirely on case law. Valid consent (police) explain reasons for detainment, that they would like to search e.g. your car but you have the ability to refuse. Parliament responded to this decision by creating a legislative scheme to obtain warrants to seize bodily samples for use in DNA comparison (s.487.04 & s.487.05). R. v. O’Connor (2002)(Ont CA) -> Police Bluffing About Warrant For Consent Police told accused that they would apply for a warrant if he refused consent. The court stated that if the police have the grounds to get a warrant, then they are not misleading the accused and they are making an informed choice. BUT, if the police do not have the grounds, any consent obtained under these circumstances is not sufficient. Plain View Search Power S.489(1) & (2) & CDSA s.11(8) codify a plain view seizure (not search) power. To seize under this power: 49 1) The police officer must be in a place and/or position that he or she is lawfully entitled to be in; and 2) The evidence or contraband must be discovered inadvertently, in the sense that additional probing by the police, beyond that which is already permitted under the authority that they are acting under, is unnecessary; and 3) The illicit nature or evidentiary value of the item seized must be “immediately obvious”. These provisions allow a police officer who is executing a warrant (s.489(1) & s.11(8)) or who is otherwise lawfully present in a place (s.489(2)) to seize anything the officer believes on RG has been obtained by or, used in the commission of an offence, or that will afford evidence in respect of an offence. The provisions do not authorize the police to search – any probing into private places requires its own justifications. R. v. Buhay (2003)(SCC) – Plain View Seizure Facts: Two accused store bag w\MJ in locker at bus station. Security guard notices odour of MJ when men inquiring about locker. Security guards retrieve master key, open locker and find MJ wrapped inside sleeping bag. They place bag back in the locker & call police. Two officers show up, smell locker, have Greyhound agent open the locker & seize the drugs. Police leave a note w\pager number, individual shows up, takes note, pages police & is arrested. Decision: Appeal allowed – acquittal restored. Held (Arbour): The accused had a REP in the bus locker. Edwards factors in favour control & possession of locker & its contents; regulate access (through key); signs indicated locker would not be opened until 24 hrs; accused had sub expectation of privacy. The existence of a master key did not destroy the expectation of privacy. Note: framed question in broad & neutral terms. The security guards were not state agents the security guards would have searched locker independent of police (Broyles). The Charter only applies to gov’t actors or person performing gov’t function. The conduct of the police constituted a search & seizure within s.8. The accused’s REP was continuous (not broken by security guard). The presumption of a warrantless search has not been rebutted. It would stretch the meaning of “plain view” to argue that an item placed in a duffel bag inside a locked locker is in plain view of police. The “plain view” doctrine requires the police have prior justification for the intrusion. Had security guards kept the property & transferred it to police, court might have to adapt test in Broyles to determine if they became state agents. 50 Judges have discretion at common law (in absence of Charter breaches) to exclude evidence obtained in circumstances that would result in unfairness if the evidence was admitted at trial, or if the prejudicial effect of admitting the evidence outweighs its probative value (applies to private actors not decided in this case due to Charter breach). Note: Prof believes we require more then a constitutional violation to review the actions of private actors (i.e. something offensive). The Charter excludes private actors, they could trump Charter rights. Arrest Powers S.9. Everyone has the right not to be arbitrarily detained or imprisoned. Arrest Defined: the actual seizure or touching of a person’s body with a view to his or her detention. Or alternatively, the pronouncing of “words of arrest” if “the person sought to be arrested submits to the process and goes with the arresting officer”. The failure to use the word “arrest” is not determinative, it is the substance of the encounter that matters most -> the use of language that reasonably leads an individual to conclude that he or she is in police custody and not free to leave. The hallmarks of an arrest are: prolonged loss of freedom of movement either through acquiescence or physical restraint & marked reduction in personal privacy Lawful arrest is the key to a host of other powers such as: search incidental to arrest, use of force, etc. S.25(1) CC – police are licensed to use as much force as necessary to effect an arrest (possibly lethal). Statutory Arrest Powers Citizen’s Arrest S.494 is the statutory arrest power for everyone (including citizens) to arrest w\out a warrant a person they find committing an indictable offence OR on RG believes has committed a criminal offence and is escaping. Note: the power to join in pursuit is broader than indictable. R. v. Biron has interpreted the words “finds committing an indictable offence” to mean apparently committing an indictable offence. This is to cover the situation where it turns out the person was not guilty of committing an indictable offence – the arrest is not then not unlawful. Due to s.34(1)(a) of the Interpretation Act, a hybrid offence (until an election is made) is deemed to be indictable therefore most offence in CC can be treated as indictable. For summary offences, there are limited powers of arrest for both citizens & police s.494(1)(a) would not provide the statutory authority. 51 Special Arrest Powers Relating to Property S.494(2) confers a power to arrest on owners, custodians, security guards, etc. (in lawful possession of property) to arrest a person who they find committing a criminal offence in relation to the property w\out a warrant. (Note: R. v. Biron apparently committing). S.494(3) requires that anyone other than a peace officer who arrests a person w\out a warrant shall “forthwith” deliver the person to a peace officer if delay it could become unlawful confinement. Police Power to Arrest for Breach of Peace S.31(1) is an old arrest power (existed in CL)that allowed police that allows officers (and person assisting them) to arrest a person who is breaching the peace or who on RG he believes is about to join in or renew a breach of peace. There is no offence in the CC for breaching the peace people are ultimately released when arrested under this provision. It is unclear how long person can be held & what procedures carried out (presumably search incident to arrest). Since people are not charged under this offence no judicial decisions & why the use of this provision is flying below the radar. Arrest Powers of Police Officers S.495(1)(a) is the main police arrest power. It authorizes police to arrest a person w\o a warrant where on RG he believes has committed or is about to commit an indictable offence. Note: where person arrested by security police can form RPG based on information provided by witnesses & mall security guard. S.495(1)(b) authorizes police to arrest persons who are discovered committing a criminal offence (this section used for summary offences). Note: this section does not apply to indictable offences due to specific provisions which cover those offences. If the officer does not witness the offence, then they must procure a warrant before carrying out the arrest. S.495(1)(c) authorizes police to arrest anyone if they have RG to believe that there is a warrant of arrest or committal for the person w\in the jurisdiction. The police officer does not need actual possession of the warrant or knowledge of its contents allows officer to arrest someone who they may not personally have RPG. Note: Biron “apparently committing” applies to these sections. Legal Requirements R. v. Storrey (1990)(SCC) – Legal Requirements for Arrest Facts: Three Americans were attacked in their car. Two of the men reviewed photographs and both select a picture that looks like Darryl Cameron (he was out of town during attacks). Police determine the car used in attack was a blue Thunderbird. Police review vehicle stops for the type of car & identify Storrey picture of Storrey shows he looks almost identical to Darryl. Victims attend police station & identify Storrey in line-up he was arrested. 52 Cory – Legal requirements for arrest Before effecting an arrest under s. 495(1)(a) a police officer must: - Subjectively believe that he or she has reasonable grounds to believe that an individual has committed an indictable offence; and - Those grounds must also be objectively reasonable (in other words, would a reasonable person placed in the position of the officer conclude that there are reasonable and probable grounds to arrest? Held The police had RPG to make arrest based on the following: possession & ownership of blue Thunderbird; accused’s history of several stops driving the car; accused’s past record of violence; two victims picked out picture of Darryl who had a remarkable resemblance. Police can continue their investigation after\subsequent to an arrest (after a lawful arrest). Note: Prof this case was close to the line for RPG. Storrey was held for 18 hrs before going before JOP S.503(1)(a) requires than accused be taken before a JOP w\out reasonable delay and no longer than 24 hrs. Interrogation, putting accused in a lineup & collecting evidence are all reasonable delays. Constitutional Implications Regina v. Duguay (1985)(Ont CA) – Constitutional Implications – Unlawful vs. Arbitrary Facts: Before owner leaves house, three men drinking in neighbor’s backyard – one asks if they always keep their dog in the garage. Family returns home & house has been broken into. The neighbor returns home & based on description contacts the person & four people return the neighbors house. The home owner identifies 2 of the men (not Duguay) from the backyard. Police arrested the 3 men –they conceded they arrested them to gather more evidence (i.e. inculpatory statements). One officer admitted they did not have RPG & they would have released the men if they did not gather additional evidence. Court of Appeal: Not every unlawful arrest results in an “arbitrary detention” under s.9. Where the grounds upon which an arrest fall “just short” of constituting RPG if the person making the arrest acted honestly, though mistakenly believing that they had RPG for arrest & there is some basis for that belief the arrest though unlawful would not be arbitrary. Where there is an entire absence of RPG and not reasonable person would genuinely believe that RPG existed the arrest would be unlawful & the person arbitrarily detained (w\in s.9). 53 Btw the two extremes, whether a person was arbitrarily detained depends on two considerations: 1) the facts of the case; 2) the view of the court wrt the extent of the departure from the RPG & the honesty of the belief in the existence of RPG. Held (Majority) The arrest was unlawful & not justifiable under s.495(1)(a). Further the arrest was arbitrary as it was for the improper purpose of gathering further evidence. The officers did not have a good faith belief in the adequacy of their grounds (far off the mark). Note: The S.C.C. has avoided the issue of whether an unlawful arrest is an arbitrary detention. Duguay remains the law in the province of Ontario (it has not been over-ridden). The only guidance from the S.C.C. on the operation of S.9 in the context of police arrest powers comes from Storrey: - An arrest will violate s. 9 if it is undertaken “because a police officer was biased towards a person of a different race, nationality or colour, or that there was a personal enmity between a police officer directed towards the person arrested.” - Note, that if the bias was based on a ground enumerated in s. 15(1), the quality guarantee, than that right would also likely be violated. Prof takes issue w\the distinction btw s.8 & s.9. An unlawful search is unconstitutional (Collins). Whereas an unlawful arrest is not necessarily arbitrary it requires some bad faith. The better reading of “arbitrary” would be if it was held to be equivalent to unlawful. Arrest, Appearance Notice, Summons, Arrest Warrant Reform (Bail Reform Act) was spurred by gov’t report that police discretion was being exercised inappropriately. S.495(2) officer not to arrest for less serious indictable, hybrid & summary conviction offences where RG to believe arrest is unnecessary in the “public interest”. In assessing “public interest” the officer is to consider all the circumstances including the need to: establish identity, secure or preserve evidence, or prevent the continuation of the offence or some other crime. An arrest is also permissible where RG to believe the person will fail to attend court. S.497(1) officer shall release person as soon as possible w\summons or appearance notice. S.497(1.1) officer shall not release person under sub (1) if RG in the public interest person be detained w\regard to the circumstance including the need to: establish id, secure or preserve evidence, prevent continuation of offence, ensure safety of victim, or person will fail to attend court. S.497(1) & (1.1) obligate arresting officer to release an individual following an arrest if circumstances change (i.e. satisfy themselves about your id). 54 S.498(1) officer in charge at station needs to reconsider the same factors (in public interest). The supervising officer can release people for indictable offences w\penalties less than 5 yrs. S.498(3)(a), s.497(3)(a) & s.498(3)(a) deem police to be acting lawfully. This cures the police violating their obligation in criminal proceeding context. S.507(1)(b) police can secure a warrant for arrest. Typically used where the location of the person is unknown. Note: arrest warrant can be entered into CPIC –any officer who encounters the person can arrested them s.495(1)(c). Police can use the following less intrusive means to secure an individual’s attendance in court: - Appearance notice (s.496); - A promise to appear (s.497(1)(b), 498(1)(b), 499(1)(a), 503(2)); - A summons (s.497(1)(a), 498(1)(a)); - Recognizance entered before officer in charge (s.498(1)(c), 498(1)(d); - Accused giving an undertaking w\conditions (s.503(2.1)). There is a danger of abuse w\police arrest powers (Los Angeles Officer – people fail attitude test). Ontario Commission found that white persons were more likely to be released than black people (for people w\similar criminal records). R. v. Feeney (1997)(SCC) – Police Need a Warrant Before Enter Private Dwelling to Arrest Facts: 85 yr old man found dead in home after fierce attack. Officers went to scene of car accident involving the deceased’s truck – bystander told police that the accused was seem walking easterly and he was living on their property (renting). At the house police were told that the accused came home from a night of drinking & was asleep in the trailer. Police knocked on the door of the trailer, identify themselves & entered the trailer when no answer. The police awoke the accused – had him step into better light & saw blood all over his shirt – he was arrested. Decision: Appeal allowed – convictions set aside – new trial ordered. Majority (Sopinka) Warrantless arrests in dwelling houses are in general prohibited. Police require judicial authorization (warrant) before they can enter a private dwelling to affect an arrest unless they are in hot pursuit. A warrant should only be issued where there is: 1) RPG that the individual to be arrested has committed the offence; 2) RPG that the person is to be found in the place where they want to search (named address). This is the minimum s.8 requirement (to protect privacy) – meets requirements of Hunter v. Southam. 55 Held: The police must make a proper announcement meeting the requirement set out in Eccles before entering private premises. Except where there are exigent circumstances, police should give notice of presence by: - Knocking or ringing the doorbell; - Give notice of authority by identifying themselves as police; - Give notice of purpose by stating a lawful reason for entry; - Note: before forcing entry, police should request admission & have it denied. The arrest was unlawful police did not meet the requirements for a warrantless arrest under s.495 (no RPG – point to accused as suspect) & they did not seek judicial authorization before entering a private dwelling to effect an arrest. This was not a case of hot pursuit or exigent circumstances. The entry into the trailer & search & seizure of the appellant’s clothing violated s.8 of the Charter (evidence excluded). Note There was public outcry from police & victims groups following this decision. In 1997, there was no procedure in CC for police to obtain this kind of warrant. The gov’t asked for a 6 month delay so they could introduce s.529.1 – s.529.5 which codifies the requirements in Feeney. S.529.1 codifies the requirements in Feeney for the issuance of a warrant. S.529.3(1) police can enter dwelling to arrest w\o a warrant if they have RG that person ins the dwelling & the conditions under s.529.1 (for judge to issue) for obtaining a warrant exist but by reason of exigent circumstances it is not reasonable to obtain one. S.529.3(2) exigent circumstances include: a) RG to suspect entry into dwelling is necessary to prevent imminent bodily harm or death; b) RG that entry into the dwelling is necessary to prevent the imminent loss or destruction of evidence. S.529.4 police can forgo announcement requirement (Eccles) in exigent circumstances. Interrogation & Its Limits s.10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right; (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Our current contemporary rules are the product of a number co-existent value\rationales. o Reliability - a concern that evidence obtained through the use of physical and/or psychological intimidation is inherently unreliable; o Principled Objection - such techniques treat the individual as an object, a means to an end, denying his/her humanity and are an affront to human dignity; 56 o Fairness - an increased emphasis on fair process, especially in post-WWII era (closely linked to principled objection) – due process safeguards; o Self-incrimination - an aversion toward having suspects / accused persons unfairly incriminate themselves; Common Law Confessions Rule Before any statement made by an accused person to a “person in authority” may be admitted into evidence, the Crown must establish, beyond a reasonable doubt, that the statement was made “voluntarily” (the voluntariness rule). This will depend on all of the circumstances surrounding the making of the statement, including (not limited): o Any threats or promises made to the suspect; o Whether the statement was made under oppressive circumstances (i.e. length of interrogation, bathroom breaks, how many interrogators, physical contact, etc.); o Whether the accused had an “operating mind” at the time the statement was made; o Any trickery engaged in by police to obtain the statement (Note: the police are allowed to lie. BUT Rothman -> pretending you’re a priest to obtain a confession would be inappropriate). Where recording facilities are available and the police procedure w\o making a reliable record, the resulting interrogation is suspect (Moore-McFarlane). The court must consider the totality of circumstances in considering whether the accused made a voluntary statement beyond a reasonable doubt (R. v. Oickle). Tactical Considerations For tactical reasons, an accused who is challenging the admissibility of his\her confession under the Charter will keep the voluntariness issue in play. Makes sense tactically, by contesting the voluntariness the accused forces a voir dire on the issue at which the Crown bears both the legal and evidentiary burden. The accused can explore the evidentiary foundation of the Crown (who will call witnesses such as police officers). The accused can cross-examine the Crown witnesses and ask leading\suggestive questions. The Charter (s.10) only applies on arrest or detention & requires the individual to show on a balance of probabilities that a violation of their constitutional rights occurred (evidence can be excluded if bring administration of justice into disrepute). The confession rule applies whenever a person in authority questions a suspect & requires the Crown to show beyond a reasonable doubt that the confession was voluntary. A violation of the confessions rule always warrants exclusion. Charter Safeguards: Detention Revisited A challenge has arisen in determining when an individual is detained who begins their encounter as a witness but ultimately ends up as an accused. 57 If the person was detained & police failed to appraise them of their s.10(a) & (b) rights virtually certain statement will be excluded. Otherwise, assuming voluntariness, the statement will be admissible. R. v. Moran (1987)(Ont CA) – When Does a Witness Become Detained (Suspect) Facts: Husband found wife dead. Initially police were unsure whether murder or suicide. Police contacted the accused to provide background info on the deceased (come to station or go to his home). The accused had secret sexual relationship w\deceased for a number of years. Accused went to police station, informed them of their relationship & insinuated the accused committed suicide. Accused invited back to station few days later admitted to lying to police & stated he found the deceased dead & panicked (still not sure if murder). Appellant was later charged w\murder. Issue: Whether the appellant was “detained” during either interview? – Accused not informed of either s.10(a) or (b) rights. Court of Appeal (Martin): The following in a non-exhaustive list of factors for determining whether a person is detained at the time of questioning by police (witness or detainee?). 1. Precise language used by police in requesting person attend station - was accused given a choice (i.e. if given a choice – less likely to be detained)? 2. Did accused attend alone or was s/he “escorted” by police (i.e. how did the accused get to the police station)? 3. Did accused leave at conclusion of Q & A or was s/he arrested? 4. Was questioning part of general investigation or had police already decided accused was a suspect and was questioning undertaken to obtain incriminating statements? 5. Whether police had rpg to arrest accused for crime at the time (Note: police may have the rpg but choose to delay arrest in hopes you make more incriminating statements)? 6. Nature of questioning - general inquiries or accusatory? 7. Subjective belief relevant, but not decisive. Personal characteristics of accused go to subjective assessment but ultimately there is an objective component - reasonable person. Note: Have to analyze the entire set of circumstances to decide whether there is a detention. The accused bears the burden in Charter application of showing they were detained. A witness is free to leave while a detainee is not. Held The appellant was not detained & therefore no violation of s.10(b). Application of factors: accused invited to police station on both occasions; he arrived on his own accord; allowed to leave after questioning; police were conducting general investigation; no RPG for arrest – police unsure of cause of death & questioning was not accusatory. Note: The assessment (factors) is subjective\objective. What would a reasonable person believe in the circumstances? – the reasonable person is an innocent person! If an innocent person 58 feels like they had no choice to leave – then they are detained and s.l0(a) & (b) would have to be complied with. R. v. Mickey (1988)(BC CA) – Example of Detention Facts: Woman found murder outside of Salvation Army building in a van (hockey stick inserted). The victim’s cloths were scattered & there was fingerprints & a palm print at the scene (not the accused’s). The appellant arrived at the scene & remained there from all day. He told an officer he had seen the attack (window) and agreed to go w\police to station to make a statement. On trip to station, the appellant commented on the tattoos on the victims hands (officer did not know another officer had informed his of such). He was handed over to two other officers for interrogation on arrival at the station (officers recorded the interrogation). He was not informed of his s.10(a) or (b) rights & after hours of interrogation made incriminating statements. Held: The appellant was detained when handed over to the two interrogating officers (detention arose when handed over to interrogating officers) – he was no longer free to leave. Violation of the appellant’s s.10(a) & (b) rights was blatant & admission of such evidence would bring the administration of justice into disrepute w\in s.24(2) – statements excluded. Note: some of the interrogation was so oppressive that the statements were involuntary. Note: There is no detention unless the person thinks\believes they are detained & not free to leave (objective & subjective test). The S.C.C. has not provided guidance on how judges are to distinguish btw non-coercive witness interviews & suspect interrogations. R. v. Elshaw (1991)(SCC) – Illustration of Contentiousness of “Detention” Facts: Witnesses observe accused walking in a crouched position along some buses at edge of park leading a young boy by the hand. The witness approached, saw the man sitting in an unusual position w\boy & overheard the man say “let’s keep it our secret”. The police are called & catch the man attempting to escape. Police place him in the back of the van (locked) & informed him they were investigating him for possible child molesting. When the officer returns, the accused makes some incriminating statements about his impulses. Held Majority – Iacobucci The Crown conceded the individual was detained when locked in the back of the van & violation of accused s.10(b) rights. The statements were held to be inadmissible under s.24(2). Held Dissent – L’Heureux-Dube (we focused on this) The accused was not detained he was locked in the back of police vehicle (not determinative) in public view in a park. The officers did not have any firm suspicion that the appellant had been involved in criminal activity when initially locked in the van. Under the test in Therens (psychological compulsion) anytime officer wishes to speak w\a person after a traffic accident, warn crowd to move on, ask for time – if they subjectively & 59 objectively feel they have not choice but to follow directions – the officer must apprise the person of their s.10(a) & (b) rights as the person is detained. Section 10(a) – Right to Be Informed of Reasons Section 10(a) and 10(b) are interconnected. A violation of s. 10(a) invariably leads to a violation of s. 10(b) (where 10(b) applies). R. v. Black a person can only make an informed decision to speak to counsel (s.10(b)) if they know the reasons for their detention (s.10(a)). Because of s. 10(a), a person who is detained / arrested is entitled to be informed of any (and ALL) offence(s) that the police are investigating relating to him/her. Partial disclosure in order to insulate an ulterior investigative purpose is constitutionally prohibited by s.10(a). In short, pre-textual detentions and arrests are constitutionality prohibited because of s. 10(a). Note: s.29(2) of CC person affecting arrest must inform the person of the reasons for the arrest. Regina v. Borden (1994)(SCC) – S.10(a) Informed of All Reasons for Detention Non-disclosure by police of their dual purpose in seizing the respondent’s blood violated his s.10(a) and s.10(b) rights. The accused had a right to be informed for ALL of the reasons for his detainment (i.e. investigation of both sexual assaults). When Does Accused Need to be Informed of S.10(a) & (b) Rights The clear language of s.10(a) & (b) has been taken seriously by the SCC, to mean the accused must be informed immediately of their rights on detention or arrest (Feeney). Note: s.10(a) “on arrest or detention” & “promptly”; s.10(b) “w\o delay”. In Feeney, the police should have informed the accused of his s.10(b) rights as soon as they entered the trailer, woke him up & took him over to the doorway. Exception: That said, where the police are faced with an uncertain and potentially volatile situation they can at least delay the implementation of the right to counsel until they are in control of the situation. (R. v. Strachan,  2 S.C.R. 980) S.10(b) – Informational Duty The person detained or arrested must be told in plain language: o About his / her right to retain and instruct counsel without delay; o This includes being told about whatever system for free, preliminary legal advice exists in the jurisdiction and of how such advice can be accessed (e.g., by calling a 1- 800 number, or being provided with a list of telephone number for lawyers acting as duty counsel); o Although the person detained or arrested can waive the informational right, the standard for waiver is very high. It must be clear that the detainee already 60 understand his or her s. 10(b) rights, fully understands the means by which they can be exercised, and adverts to those rights. R. v. Bartle(1994)(SCC) – S.10(b) Should be Informed Immediately on Detainment Purpose of s.10(b) is to provide detainees w\an opportunity to be informed of their rights & obligations under the law & to obtain advice on how to exercise those rights. The person may be at risk of incriminating themselves – accordingly, a person detained is in immediate need of legal advice in order to protect against self-incrimination & to assist in regaining their liberty. There is a notion that the person is at a disadvantage vis-à-vis the state – s.10(b) plays a role in leveling the playing field. R. v. Brydes (1990)(SCC) – Informational Duty – Availability of Legal Aid Facts: Accused arrested for murder & initially advised of his right to retain & instruct counsel w\o delay upon being arrested. He was never informed of the availability of legal aid (before making incriminating statements) – he indicated during interrogation that he could not afford anything but legal aid. After he spoke w\legal aid he refused to answer any further questions. Decision: Appeal allowed – acquittal entered. Lamer: In order for s.10(b) notice to be reasonable, the police must inform detainee in plain language of their right to counsel. The informational duty includes that they be informed of the availability of duty counsel & legal aid plans in the province. Held: Police had a duty to inform the accused of the existence of legal aid when he expressed concern about the ability to afford one. The accused’s feeling that he could not afford a lawyer wan an impediment to the exercise of his right to retain a lawyer. Had the accused been informed of legal aid or duty counsel – the interrogation may never have occurred. R. v. Bartle(1994)(SCC) – Informational Duty – How to Access to Available Services? Facts: Accused arrested for impaired driving (failed roadside test). He was read his rights (using new card based on Brydges), but the officer did not mention the specific availability of immediate preliminary legal advice by duty counsel or 24-hr toll free legal aid number (printed on card). The accused arrived at station & provided breath sample (computer). Issue: Whether police have obligation to tell person arrested\detained about any 1-800 numbers (duty counsel)? Lamer: In addition to the requirements determined in Brydges, a detainee is entitled under the informational component of s.10(b) to be advised of whatever system for free, preliminary 61 legal advice exists in the jurisdiction & how they can be accessed (i.e. apprised of 1-800 number\service, etc.). Held The accused was not properly informed of his s.10(b) rights. Police were aware of the availability of toll-free number (on card) but never informed the accused. The accused may have been misled about the nature & extent of his right to counsel. Court excluded evidence of two failed breathalyzer & admission that he had 5 or 6 beers. Note: R. v. Prosper s.10(b) does not impose a substantive constitutional obligation on governments to ensure duty counsel is available upon arrest or detention to provide free & immediate legal advice. Every jurisdiction in the country has some form of legal aid. The only provinces that lack immediate free legal advice (duty counsel) are PEI & NS police should have a list of lawyers who will take calls after hours. Standard s.10(b) Caution Today in Ontario - You have the right to retain and instruct counsel without delay. If you cannot afford a lawyer, you may be able to obtain legal assistance through Legal Aid. In addition, 1-800 ….. is a toll free number that you can call 24 hours a day for free legal advice. - Do you want to call a lawyer now? o Note: once a person responds “yes” to the question to contact a lawyer, different duties and obligations are imposed on the police as covered in the next section. S.10(b) – Invoking the Right R. v. Baig (1987)(SCC) – Invoking s.10(b) Right Facts: Accused arrested for murder. When read his rights to counsel and asked whether he understood he responded “how can you prove this thing”. He as warned again upon arrival at the station before making & statement & he replied that he knew the caution originally read by the first officer still applied. The accused made an oral statement. Issue: Was there a waiver of s.10(b) by the accused? Judgment of the Court: Absent circumstances that should suggest to police that a person detained/arrested did not understand the right to counsel when informed of it, the onus is on the individual to establish either: o That he or she asserted the right and nevertheless was denied the opportunity to exercise it; or o That he or she was denied the opportunity to even assert the right (R. v. Anderson). Held: 62 Once the police inform an accused of his rights under s.10(b) – there are additional duties upon them until the accused indicates their desire to exercise his s.10(b) rights. No evidence that the accused did not understand his s.10(b) rights or that he as denied an opportunity to assert the right. Note: Police can assume the person understands the s.10(b) right the accused must assert the right unless there is a language impediment or clear cognitive deficiency. S.10(b) – Implementational Duties R. v. Manninen (1987)(SCC) – Implementational Duties Facts: Accused is read his rights from a card issued to police upon arrest (robbery, theft, Mac’s Milk) – he responds w\a flippant remark. Offers re-read the caution & the accused responds “prove it. I ain’t saying anything until I see my lawyer”. Police proceed to question the accused & he makes an incriminating statement (store owner lying – I only had a gun). Issue: What obligations are there on police when someone invokes their s.10(b) rights? Lamer: Once the detained or arrested individual asserts the right to counsel two corresponding obligations are then imposed on police: Facilitation Duty - the police must provide the person with a “reasonable opportunity” to exercise the right to retain and instruct counsel without delay. Exception: where the circumstances are such that it is particularly urgent that the police continue with an investigation before facilitating the individual’s contact with counsel. Obligation to “hold off” - in addition, the police also have a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a “reasonable opportunity” to retain and instruct counsel. Exception: where the circumstances are particularly urgent that it is essential that the police proceed with their questioning before providing the individual with an opportunity to consult counsel. Waiver - once the right is asserted any purported waiver by the individual is subject to a very high standard. Simply answering questions posed, by itself, will not be characterized as an implied waiver. Held: The police officers failed in respect to the facilitation & hold-off duty accused’s s.10(b) rights infringed. The accused asserted his right to remain silent & consult w\lawyer. There was a phone in the office where individual was arrested which the officers used for this own purposes. Further the police proceeded to question the accused after assertion of s.10(b) rights. Note 63 The two duties are triggered the moment the accused asserts their s.10(b) rights. The court does recognize that there maybe urgent or dangerous circumstances where the two duties may not be recognized immediately i.e. ticking time bomb? S.10(b) – Person Asserting Their Rights Needs to Be Reasonably Diligent R. v. Ross (1989)(SCC) – Accused\Detainee Must Be Reasonably Diligent Facts: Three men arrested for break & enter. Three accused attempt to contact counsel but receive no answer (it is 2:00 a.m.). One of the accused (Leclair) did not contact another lawyer when asked by police. Police setup a lineup (in middle of night) and the accused (Leclair) participated w\o speaking w\a lawyer – there is no obligation to take part. There was a positive id from the line-up. Crown argues that Leclair refusing to contact another lawyer constituted a waiver. Issue: Whether the accused was “reasonably diligent”? Lamer: A person arrested or detained, after asserting his/her right to counsel, has an obligation to be reasonably diligent in exercising the right. If not, the correlative duties imposed on police (to facilitate contact and to hold off - Manninen) are suspended. Whether the individual has been reasonably diligent depends on the circumstances. A person detained or arrested does not fail in her obligation to be reasonably diligent by insisting on consulting a lawyer of his or her choosing (this is their right), provided that that lawyer will be available within a reasonable time. At a certain point, however, reasonable diligence may require the individual to contact another lawyer. Held: The failure of the accused in this case not to contact another lawyer did not violate “reasonable diligence” given the time of night (2:00 a.m.). The police should have fulfilled their holding off obligation & waited before putting the accused through the line-up. A lawyer could have told the accused that they do not have to participate in the line-up. The accused’s s.10(b) rights were violated – the police should have held off – Court excluded the line-up evidence. R. v. Smith (1989)(SCC) – Example Where Accused Not Reasonable Diligent Facts: Accused was arrested at home at 7:00 p.m. On the way to the station the officers agree to various stops. On arrival at the station – the accused is unable to locate a home number for his lawyer & decides not to attempt to contact the office as it was after 9:00 p.m. (officers urge him to call office). An hour later police begin interrogating the accused – he continues to assert his s.10(b) right but then makes a statement off the record. La Forest: An arrested\detained person who has had a reasonable opportunity to communicate with counsel but who was not diligent in the exercise of that right cannot, subsequently, require the police to suspend, one more time, the investigation or the questioning. 64 This principle does not apply when the circumstances that exist when he asks subsequently to exercise the right are substantially different from those which existed when he had the opportunity to communicate with a lawyer. Held (Majority): The accused was not reasonably diligent in exercising his s.10(b) rights. The accused’s decision to not even attempt to contact his lawyer is fatal & prevents him from establishing that he was reasonably diligent in the exercise of his rights. The police officer’s holding off duty was suspended. No violation of s.10(b). Note: there was no change in circumstances. Note Recall police must bring person before JOP w\in 24 hrs (s.503(1)(a)) – this decision recognizes that there is a limited window for police to interrogate & attempt to get a confession. Restrictions on What the Police Can Do (Burlingham) R. v. Burlingham (1995)(SCC) – Restrictions on the Police Facts: Accused charged w\murder. The accused was subjected to an intensive & manipulative interrogation over three days. The accused repeatedly expressed the desire to speak w\a lawyer. The police denigrated defence counsel’s loyalty & commitment. Further, the police offered a plea bargain directly to the accused but leave it open only for the period when his lawyer is not available. The accused accepts the offer & gives a full confession (told police about location of murder weapon under frozen river). Police later told him that the plea bargain (deal – 2nd degree murder) never existed. Iacobucci: Denigrate counsel - the police violate s. 10(b) when they make comments designed to belittle counsel, so as to undermine the detained or arrested person’s confidence in counsel, in an effort to have the individual forego the right to counsel. Plea offers - the police violate s. 10(b) when they make a “plea offer” to an accused when his or her counsel is unavailable and refuse to keep the offer open until a point in time when counsel would reasonably considered to be available. When circumstances change - where there is a fundamental and discrete change in the purpose of an investigation which involves a different and unrelated offence or a significantly more serious offence than that contemplated at the time an a person detained or under arrest was appraised of his or her s. 10(a) and s. 10(b) rights, the police are obligated to (Evans): • Appraise the individual of the change in the reasons for his or her arrest or detention; and • To again advise the individual of his or her right to counsel. Held: There was a violation of the accused’s s.10(b) rights. First, the police failed to “hold-off” there was no urgent circumstances. Second, the police denigrated the defence counsel. Third, 65 the police made a plea offer when the accused’s counsel was unavailable & refused to keep it open until he returned. Fourth, the police failed to re-advise the suspect of his right to counsel when the deal was offered the deal was of material importance & was a fundamental change. Note: The police do not have authority to plea bargain deals come from the Crown. If the police make an offer & the person acts on it to their detriment, the Crown maybe bound by it. Series of cases have held that one of the implementation duties of s.10(b) is that police allow the detained person to consult w\counsel in private. Waiver of S.10(b) Right to Counsel R. v. Clarkson (1986)(SCC) – Valid Waiver Facts: Accused in intoxicated state calls sister & tells her that she shot her husband. Police arrive on scene & arrest her for murder. She was instructed of her right to counsel & interrogation began – her sister interjects on numerous occasions to have her speak to a lawyer, the accused responds there was “no point”. The accused made some very incriminating statements. Issue: What is the standard to waive the right to counsel? Wilson: To be valid, a waiver (of s.10(b)) must be: - Clear and unequivocal; - Voluntarily given; and - Made with an awareness of the consequences of foregoing the right; The police are obligated to hold off until the person is either capable of properly exercising or waiving the right. Held: The purported waiver was not effective – the accused was severely intoxicated & did not pass the awareness of consequences test. The police should have held off until she was sufficiently sober to either exercise her right or to make a valid waiver. Note: In relation to drunk driving cases the person would have to be awfully drunk – the courts are reluctant to find the right was not property waived (high threshold). Waiver & The Mentally Ill R. v. Whittle (1994)(SCC) – Test Waiver & Mentally Ill The Clarkson test presupposes that a person has the cognitive capacity to either exercise or make a waiver of the right. 66 To waive s.10(b) right – the accused must have the cognitive capacity to stand trial. This will depend on the following: • The individual must be capable of communicating with counsel; • The individual must be capable of understanding the function of counsel and that he or she can dispense with counsel (even if that is not in his or her best interests); To meet this low threshold, the individual need not possess “analytical ability”, that is the ability to weigh the available options and choose the best course of action. Held: Court overturned trial judge’s decision excluding statements made to the police by the mentally ill. Although the accused may have been compelled by inner voice it did not deprive him of the ability to understand what he was saying or appreciating the implications of speaking to police. Waiver & Young Persons (12 to 18) The Youth Criminal Justice Act sets down a number of requirements that must be met before any statement made by a youth to police can be admitted into evidence. The protections supplement both the common law confessions rule and the guarantees in s.10(a) and s.10(b) of the Charter (i.e. right to have a lawyer\parent\guardian present). A waiver is subject to very onerous requirements such as (s.146): it must be recorded on video or audio tape, must be in writing signed by the young person, it is explained in language appropriate to their age they do not have to make a statement, statement must be made in presence of counsel or parent, The requirements are very onerous with the result that police officers do not try to get statements. Right to Silence In Canada, the right is different than in the United States. In U.S., constitutional protection of the right arose out of an interpretation of the Fifth Amendment to Bill of Rights: No person … shall be compelled in any criminal case to be a witness against himself … In Miranda, decided in 1968, the U.S. Supreme Court reasoned that given the “inherent coerciveness”of the police custodial environment, safeguarding the right guaranteed by the Fifth Amendment required that before interrogation the police must appraise the subject of his / her rights - i.e. the “Miranda” warnings. The Right to Silence in Canada It is not expressly guaranteed anywhere in the Charter. Despite this, it is long recognized as part of our law, despite little consensus about its requirements. Its absence from express legal rights guarantees in ss.8 to 14 of the Charter is not fatal. Note: s.11(c) protects right to silence at trial (not witness against self). 67 Section 7 provides protection for those un-enumerated rights that can be characterized as “principles of fundamental justice”. The right to silence is included in the principles of fundamental justice (protects right to silence pre-trial but post detention). The police do not have an informational duty to appraise the accused of the right to silence this increase the importance of s.10(b) rights so accused can contact counsel & be informed. R. v. Chambers if an accused refuses to give a statement to police during their investigation, the prosecution cannot rely on that fact to inculpate the accused at trial. R. v. Herbert (1990)(SCC) – The Right to Silence (Scope & Guidelines) Facts: Accused arrested for robbery (hotel\mask\hammer). He exercises his right to contact counsel & in subsequent interrogation he does not make a statement. He was placed in a cell w\a plainclothes police officer posing as a suspect under arrest. The officer engages the accused in conversation during which he made several incriminating statements. McLachlin (Majority) The principles of fundamental justice include a right for individuals in police custody to choose whether to speak to the authorities or remain silent. The “right to silence” is violated if the police engage in conduct that, viewed objectively, effectively and unfairly deprives a suspect of the right to choose whether or not to speak to the authorities. Not an absolute right that requires an “informed waiver” - therefore no informational obligation imposed on police by this right, beyond existing duties under ss. 10(a) & 10(b). General Guidelines on the Right to Silence 1) The right to silence does not preclude police from questioning a suspect who has (or has not) consulted with counsel. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. 2) The right to silence applies only after “detention”. Does not in any way affect police undercover operations that precede arrest. In such situations there is no power imbalance that needs to be remedied because the individual is at liberty. 3) The right to silence does not affect voluntary statements made to fellow cell mates (or others). Violation only occurs when state acts to subvert suspect’s choice. 4) Undercover agents can be used, even after a suspect is in custody - what is forbidden is the use of subterfuge by state agents to actively elicit a statement from the suspect and thereby undermine his choice. Held (Majority) – McLachlin The Crown\police used a trick to negate the accused’s decision not to speak violated his right to silence. Accused exercised his right not to speak to police. Held – Sopinka 68 Adopts the Clarkson standard in order for accused to make a proper waiver of the right to remain silent, it must pass a test of awareness of the consequences. Note: Prof implication is police could never use undercover agents b\c accused did not give informed waiver. Note: The right to silence was crafter by considering: confessions rule, privilege against self- incrimination & specific guarantees of the Charter. The majority expands the protection (lowers the threshold) beyond Rothman police conduct must be “shocking to the conscience”. There needs to be some form of elicitation by Crown or agent. R. v. Broyles (1991)(SCC) – Test for State Agency Facts: Accused charged w\murder. Police arrange for friend of the accused to visit him in jail – the friend was equipped w\a body pack. During their conversation the friend encouraged the appellant to ignore his lawyer’s advice to remain silent. The accused made incriminating statements. Issue: Whether the “friend” was a stage agent? Test For State Agency Would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? Note: requires a relationship btw the informer and the state prior to statement by the accused being given. Elicitation Is there a causal link between the conduct of the state agent and the making of the statement by the accused? The non-exhaustive list of factors to be considered in answering that question can be arranged as follows (into two variables): o Nature of Exchange • Did the agent actively seek out information, i.e. engage in functional equivalent of interrogation? • Or, did the agent simply say things and act in manner consistent with his or her ordinary role (i.e. mother, friend)? o Nature of Relationship: • Did state agent exploit any special characteristics of the relationship to extract a confession? • Was there a relationship of trust between agent and suspect? • Was accused obligated or vulnerable to the state agent? • Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk? In determining whether the statement was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. 69 The authorities may not take the benefit of actions of their agent which exceeded his or her instructions. Intake Procedures Once a person is arrested (and not released), they must be taken before a justice (bail court) without reasonable delay (s.503(1)(a)) Delays occasioned to secure or preserve evidence are not “unreasonable” due to provisions in the CC authorizing police to hold those arrested for these purposes (s.495(2)(d)(ii), s.497(1.1)(b)(ii), s.498(1.1)(a)(ii). In addition, the first court of appearance may be postponed so that police can fingerprint and photograph, conduct an identification line-up or carry out an interrogation (R. v. Storrey). The CC imposes a 24 hr time limit on such post-arrest police controlled detentions (s.503(1)(a)). If the accused is not released or brought before a justice w\in that period, the detention will become unlawful. Note: a violation of 24 hrs does not necessarily make the unlawful detention arbitrary (Duguay). During interval btw arrest & first court appearance, the charge will be formally laid. An “informant” (police officer) will swear an “information” (Form 1 or 2) before a justice. The information sets out the essential ingredients of the charge time, place, nature of offence alleged. The “informant” is required to make a sworn declaration that they have personal knowledge or believe on RG that the person arrested committed the offence specified (s.504). Although, s.504 refers to indictable offences, due to s.34(1)(a) of the Interpretation Act, the provision applies equally to all hybrid & summary conviction offenses. S.504 obligates the justice to receive the information (ministerial). The only reason why it may be refused is if the information does not allege a criminal code violation (or facial defect). S.507 a justice receiving an information will only assess the evidence (allegations of informant, evidence of witness – s.507(1)(a)) in support of a charge where the police are seeking a summons or a warrant for arrest (s.507(1)(b)). Note: same process applies to s.508(1) person released & police seek appearance notice, etc. The relevant process (warrant, summons, etc) should only be issued where the justice “considers that a case for so doing is made out”. This standard has been interpreted to require there to be disclosed by the evidence a prima facie case of the offence alleged. A person held for a bail hearing does not get a pre-inquiry (review allegations of informant, witnesses where necessary, etc.) as contemplated in s.507 & 508. 70 R. v. Pilcher & Broadberry (1981)(Man Prov CT) –Swearing of Information Facts: Accused were two police officers charged w\theft of firearms. The officer who swore the information did not have any knowledge of the circumstances of the charge. Counsel for the accused alleged the officer who swore the information gave a false oath. Issue: What is effect of officer swearing on information w\out knowledge of circumstances? Manitoba Provincial Court By merely reading what appears in an information given to him by others, an informant could not be informed in such a manner in which he is obliged to be informed, in order to protect an accused person from frivolous or foundationless accusations. Peavoy person swearing an information must be satisfied that there is some evidence to support the charge – RPG for believing that the accused committed the offence. Held The officer did not have the RPG for believing that the offences had been committed. The information is invalid & declared a nullity. Note Precedential value of Pilcher must be viewed w\caution 1) other cases have made it clear that the informant’s knowledge can come from reading an arrest report or synopsis; 2) Whitmore (Ont CA) complete absence of knowledge on the part of informant does not affect the validity of the information. & trial judge has no jurisdiction to entertain a collateral attack on the information (need to apply to Superior Court); 3) practical limit unlikely regular citizen would be aware of the routine & how the process was fulfilled. R. v. Jeffrey (1976)(Ont Prov CT) – S.504 & S.507 Different Duties Facts: Accused charged w\unlawfully keeping liquor for sale. The information specified the name of the D, relevant section of the Act & date of offence & was sworn in – in the normal manner. A summons was issued by the justice. Note: JOP performed dual function. Held: JOP performs two separate & distinct functions under s.504 (receive information ministerial function) & s.507 (issue warrant or summons judicial function). The JOP in the present case did not perform the second separate judicial function (i.e. review allegations, etc.). The parties are therefore not lawfully before the Justice. Closing Notes on Intake Procedures The effectiveness of the intake procedures in weeding out unjustified charges is limited. The LRCC states that these procedures (summons, warrant) having become largely a matter of routine. The commission recommends better legal training for JOP (who are not lawyers). 71 If an individual is arrested by police & held in custody, the pre-inquiry contemplated by s.508(1) – to assess allegations is not required the individual will be brought before a justice w\in 24 hrs for a bail hearing. Bail S.11. Any person charged with an offence has the right (e) not to be denied reasonable bail without just cause; Study by professor Friedland found police arrested & held 91-97% of people they could have released. These concerns were echoed by reform committees and led to the enactment of the Bail Reform Act. The emphasis of the Bail Reform Act is on release. Essentially, the presiding justice should order a person’s release unless the Crown shows cause (Crown has burden) why pre-trial detention is justified (presumption of release). Post introduction of the Bail Reform Act (s.515) approx 1 in 4 people charged w\a criminal offence are denied bail. Pre-trial detention in quite common in Canada. JOP can preside over bail hearings (s.2 of CC) the quality of justice at bail hearings can very btw jurisdictions (based on training). S.515(1) – Timing & Presumption of Release S.515(1) Presumption of pretrial release on giving of undertaking w\o conditions unless the Crown can show cause why the detention of the accused in justified based on the options in s.515(10). Note: onus of proof on Crown to prove. There are two general categories of exceptions against the presumption of release: Charged w\s.469 offence (i.e. murder) justice must make a detention order (s.5(11)). The onus is on the accused to demonstrate why their detention is not justified (s.515(10)). Special Circumstances (s.515(6)) justice must make a detention order unless the accused shows cause why he should not be detained (reverse onus hearings). An accused will be detained where an accused is charged with: - An indictable offence while subject to an earlier release order for another indictable offence (s.515(6)(a)(i)); - An offence alleged to have been committed for the benefit of a “criminal organization” (s.515(6)(a)(ii); - An indictable offence & not ordinarily resident in Canada (s.515(6)(b)); - Failing to comply w\terms of an earlier release order or failing to attend court (s.515(6)(c)); - Trafficking, possession for purpose\trafficking of a controlled substance or w\conspiracy to commit any of these offences (s.515(6)(d)); 72 S.516(1) either side (defence or prosecution) can request adjournment for three clear days of the bail hearing. There is no limit to the number of times the Crown can request adjournment. S.515(2) – Terms of Release S.515(2) if a release is ordered a ladder approach is utilized in determining the terms for release. The court must order least onerous form of release unless the Crown shows otherwise (s.515(3)). - (a) An undertaking w\conditions; - (b) A recognizance w\out sureties; - (c) A recognizance w\sureties; - (d) A recognizance w\our sureties in addition to deposit of $$$. - (e) Where accused does not reside w\in 200km of custody a recognizance w\out sureties in addition to deposit of $$$. Undertaking adds conditions based on person’s signature. Recognizance conditions based on promise of $$$, if you skip court you are required to pay. Surety (Sureties) person who knows the accused fairly well promises your appearance (i.e. family member, friend). R. v. Pearson (1992)(SCC) – Criteria For Bail to Be Denied w\in S.11(e) – Just Cause Facts: D was arrested for 5 counts of trafficking in narcotics. The accused was denied bail. Issue: Is the denial of bail & reverse onus s.515(6)(d) constitutional (meet s.11(e) – just cause)? Note: s.515(6)(d) denies bail for offences w\life imprisonment or under the CDSA. Decision: S.515(6) is constitutional. Lamer For bail to be denied w\just cause (s.11(e)) it must satisfy the following: 1. Bail is only denied in a narrow set of circumstances. 2. The denial of bail is necessary to promote the proper functioning of the bail system & is not taken for any purpose extraneous to the bail system. Held – Majority – Lamer S.515(6)(d) meets the requirements of s.11(e) for the denial of bail w\just cause. The circumstances where bail is denied are very narrow, it applies to a small number of offences & where the accused can not demonstrate that detention is not justified. The offences in s.515(6)(d) apply to drug trafficking which generally: constitutes a form of organized crime, violence in relation to drugs, trafficking occurs systematically, incentives for offender to continue while on bail, charged individuals have more access to resources to evade justice & run. 73 S.515(6)(d) does not have any extraneous purpose to the bail system it establishes an effective bail system for specific offences which the normal system would allow to continue & an intolerable risk of evading justice. Held – Dissent – McLachlin S.515(6)(d) fails to distinguish btw the large-scale commercial drug trafficker and the “small time” drug trafficker. There would only be just cause for denying bail to a large-scale commercial trafficker. For small time traffickers there would not be just cause (no flight risk or continuing crime, etc.). Note: This decision likely means that the other provisions w\reverse onus clauses are also constitutional (s.5(11) has been upheld as constitutional). S.515(10) – Grounds for Denying Bail S.515(10) the detention of an accused in custody is justified in one or more of the following grounds: S.515(10)(a) detention is necessary to ensure attendance in court. Considerations: roots in the community, job, residence, family & friends in jurisdiction, track record while on bail. Note: context on past track record is important – failed to attend yrs ago, but on a more recent charge attended. S.515(10)(b) detention necessary for protection or safety of public including any victim or witness, having regard to all the circumstances including any substantial likelihood that accused will commit a criminal offence or interfere w\the administration of justice. Considerations: criminal record, track record for complying w\bail conditions, history of breaching court orders, whether accused is charged w\serious personal injury offence. Note: see Morales below. S.515(10)(c) (Tertiary Ground) detention must be necessary in order to maintain confidence in the administration of justice. Considerations: Depends on all of the circumstances, but especially: the apparent strength of the prosecutor’s case; the gravity of the nature of the offence; the circumstances surrounding the commission of the offence; and the potential for lengthy imprisonment. Note: this section was added in response to Morales - the introductory language was invalidated due to being unduly vague. Regina v. Morales (1992)(SCC) – Constitutionality of s.515(10)(b) Facts: This case finds that the former “public interest” component of s.515(10)(b) was unconstitutional due to its vagueness & lack of precision. However, the court upheld the constitutionality of the “public safety” component of this subsection. Issue: Is “public safety” in s.515(10)(b) consistent w\s.11(e) of the Charter (just cause to deny bail)? Held: Application of criteria from Pearson – “public safety” component does not violate s.11(e). 74 The scope of “public safety” component is sufficiently narrow bail is only denied for those who pose a substantial likelihood of committing an offence, interfering w\administration of justice or where necessary for public safety. The “public safety” component is necessary to promote the proper functioning of the bail system & not undertaken for any purpose extraneous to the bail system. Note: The SCC severed the “public interest” component from the rest of the provision & Parliament followed suit in 1997 (s.515(10)(b). In addition, parliament added the tertiary ground in response to the SCC decision in Morales. R. v. Hall (2002)(SCC) – Constitutional Validity of s.515(10)(c) Facts: Accused charged w\murder. Murder received a lot of media attention & caused significant public concern. Accused was denied bail under s.515(10)(c). Detention was found to be necessary to maintain confidence in the administration of justice in view of highly charged aftermath of murder & strong evidence implicating the accused. Issue: Whether s.515(10(c) is constitutionally valid (s.11(e) – just cause)? McLachlin The justice must satisfied of the following for the application of s.515(10)(c): - Detention is necessary to maintain confidence in the administration of justice. - This depends on all the circumstances (viewed through objective lens) but judge must focus on: o Apparent strength of the prosecution’s case; o Gravity of the nature of the offence; o Circumstances surrounding its commission; o Potential for a lengthy term of imprisonment. Held The judge can only deny bail if satisfied that in view of the factors & related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. The provision does not authorize a “standardless sweep” or confer open-ended judicial discretion. Note: it is sufficiently narrow. The first phrase in the provision “any other just cause” is inconsistent w\the presumption of innocence & s.11(e) – it is to be severed from s.515(10)(c). The remainder of s.515(10)(c) is constitutionally valid. Closing Notes on Bail At bail hearing – inquiry into the facts underlying the allegations is usually rather cursory. 75 The rules of evidence are relaxed in bail hearings (in the interest of expediency), the rules authorize the presiding justice to “receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case” (s.518(1)(e)). Prosecutors will normally read aloud to the court a “Show Cause Report” -> contains synopsis of the allegations – i.e. description of offence, information provided by witnesses which has been synthesized into a narrative. Mistakes and embellishments in the “Show Cause Report” are common. The reports are often unreliable indicators of whether or not there are adequate grounds to support the charge(s). The accused can take exception to the allegations being red in & insist on viva voce evidence – BUT, this will normally require an adjournment & could lengthen the accused’s stay in custody. As a result, bail hearings are ineffective at identifying and remedying unjustified charge(s). Further, it is difficult to assess the strength of the Crown’s case in such an expeditious & informal process. Note: S.518 CC -> outlines inquiries to be made by justice and evidence for bail hearings (evidence to be considered in bail hearing). Charge Screening Crown Policy Standards Charge screening is the subject of policy statements by the responsible ministries across the country. Wording varies, but standard is essentially the same: charges should not be pursued where there is no reasonable “chance”, “prospect”, or “likelihood” of conviction. In Ontario, in theory, screening entails two inquiries by prosecutors: - First, whether there is a “reasonable prospect” of conviction (objective – standard is higher than a prima facie case – but less then a probability of conviction); and - Second, if there is, whether it would nevertheless be in the public interest to discontinue the prosecution. If the Crown determines there is no reasonable prospect of conviction at any stage of the proceeding, then the prosecution must be discontinued. Tort Liability According to the Supreme Court of Canada, before deciding to pursue a criminal charge, the Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt (Proulx v. Quebec). 76 Pursing a criminal charge where this standard is not satisfied makes a prosecutor vulnerable to a malicious prosecution claim in tort (Proulx v. Quebec). Timing Varies depending on the jurisdiction, however most provinces use post-charge screening. Some provinces use pre-charge screening, that is, before the Information is even sworn, e.g. Quebec. In Ontario, charges are usually screened after the Information is sworn, and: o For those released by police, in the period between arrest and first appearance (usually one month delay between each) o For those held for bail hearings, usually between bail determination and first “set date” - appearance 7 to 14 days. Prosecutorial review provides no assurance of timely relief for those who were unjustifiably arrested. Logistics It usually takes weeks (or months) before prosecutors have disclosure, i.e. the actual evidence collected by police. Disclosure is often incomplete (or may seem incomplete), which will necessitate follow-up with police and further review. Prosecutors rarely feel confident to withdraw based on inadequate evidence until they are sure there is nothing more. Fragmentation of prosecutorial work in many jurisdictions means that there is an institutional incentive to defer, to pass the case down the line. Withdrawals therefore take time, and often only come on the first day scheduled for a preliminary inquiry or trial. Despite guidelines for standards & timing for charge screening, there remains a risk that deficient cases continue through the system due: - Unjustified charges going undetected by prosecutors screening cases; - Prosecutors wanting to avoid having to justify withdrawal to superiors, colleagues, police & victims. - Prosecutors delaying to allow for additional evidence to be collected making the withdrawal unnecessary (a less than objective perspective could undermine the utility of review). As a result, an accused could spend a considerable period of time in custody before a prosecutor has an opportunity to meaningfully review the evidence supporting the arrest. Implications In 1999-2000 adult criminal court statistics from 7 provinces reveal that 122,676 charges resulted in “stays” or “withdrawals” (33% of recorded cases). Reasons for stay: beyond deficiency in case (no reasonable prospect of conviction) witnesses fail to attend. Rate in Quebec (which uses pre-charge screening) was only 11% (lowest of reporting jurisdictions). Highest conviction rate, at 73.6% 77 Stay or withdrawal rate is much higher in post-charge screening jurisdictions, 22% in PEI and 40.8% in Ontario. Note: Stay prosecutor can recharge in 12 months; Withdrawal charge dies. Statistics Canada attributes the difference (Ontario & Quebec) to the fact that in Quebec, prosecutors scrutinize police charge and arrest decisions before criminal proceedings are formally instituted. In addition, the disparity provides concern that police officers often arrest & charge despite the inadequacy of the evidence. The charge screening procedures are constitutionally deficient b\c liberty can be taken away w\out the state showing in a timely manner that RPG exists. Disclosure, Lost Evidence & Third Party Records S.7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. S.11. Any person charged with an offence has the right d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; Disclosure by the Crown The prosecutor’s role is characterized in our system as non-partisan. Part of their professional obligation is to bring forward evidence of every material fact whether favorable to the accused or otherwise (R. v. Lemay). Concerns w\relying on prosecutors’ discretion (pre-Stinchcombe): - Subjective perception of what is “material” determined the scope of the duty; - Accused rarely became aware of suppressed material evidence; - Few remedies were available for withheld evidence; - Disclosure practices varied btw jurisdictions & btw prosecutors in same office. - Prosecutors reluctant to provide full disclosure -> blueprint to Crown case – D can manufacturer the “perfect defence”. Example Royal Commission on Wrongful Conviction of Donald Marshall - Commission identified the causes of the wrongful conviction to be: 1) systematic racism in NS system towards Native Canadians; 2) suppression of exculpatory evidence (eye witness statements) by prosecutors. - The commission called for the recognition of “disclosure” w\in s.7 pertaining to the right to full answer & defence. - The fundamental interest in a fair trial of the accused requires that they receive from the Crown all information known to the Crown that might reasonably be considered useful to the accused. - Require comprehensive federal legislation provide legally enforceable rights. R. v. Stinchcombe (1991)(SCC) – Crown Disclosure Duty Facts: Accused charged w\appropriating certain financial instruments from a client. A Crown witness (secretary) testified favorably for the accused at preliminary inquiry. Secretary 78 interviewed on two other occasions by police (recorded). Defence requested disclosure of the records but Crown refused. The secretary refused to interview w\defence. Crown decided not to call secretary at trial. Accused convicted & appeals on grounds that he should have access to witness statements. Sopinka The right to make full answer and defence is a principle of fundamental justice protected by s. 7 and it includes a right to disclosure. The Crown is required to disclose all “relevant information” (positive duty includes statements by witnesses interview by Crown but will not be called) in its possession to the defence. “Relevance” is a low threshold, if something is logically probative of a fact in issue then it is relevant and must be disclosed. Right is triggered by a defence request, but the Crown must appraise unrepresented accused persons of the right and courts must not accept a plea from such an individual without inquiring to ensure that accused knows of right. Timing - disclosure should be provided before an accused is called on to elect his or her mode of trial or to plea. Form - should include all witness statements, if no formal statements given, police notes of statements or a “will say” statement setting out name of witness and anticipated evidence. Withholding disclosure - prosecutors are entitled to withhold or delay disclosure in certain limited circumstances: o Need not disclose what is clearly irrelevant; o Need not disclose privileged information, I.e. informant’s identity etc. o May delay disclosure to protect an ongoing investigation; The decision to either withhold or delay must, however be disclosed - so that the defence may seek review. It is the trial judge’s function to decide such disputes. Held The failure to disclose the witness information was a violation of s.7. The consequences of a failure to disclosure depend on whether the failure impaired the right to make full answer & defence (nature of information & whether would affect the outcome). Appeal allowed – new trial & statements to be produced. Note The principles articulated in this case may apply w\less impact to summary conviction offences. Post Stinchcombe, the police use short form (cryptic) in their notes due to the realization of the low threshold of potential relevance (for defence to get access). The Ontario Court of Appeal has made it clear (R. v. T.(L.A.)) that the disclosure (photocopying) of officer notes is 79 not sufficient where the accused is unable to piece together what the officer will testify (due to cryptic short form) – or where they do not contain all of the information that police possess. Police must provide all relevant information & material to the Crown. Disclosure By The Defence Not mandated by Stinchcombe, which maintained that the defence is entitled to take an entirely partisan and adversarial approach toward Crown. There are some exceptions: Alibi Disclosure - timely disclosure of particulars of any alibi must be disclosed, otherwise you risk an adverse inference by trier of fact; (R. v. Cleghorn approach the evidence with caution; allow Crown to investigate alibi). Notice of Charter Application - such notice is mandated by court rules, including a need to specify bases, grounds for application and the relief to be sought; (Note: in Ont, notice should be given 15 days prior to such applications). Expert Witnesses Notice - under s. 657.3, defence must give 30 days advance notice of expert’s name, area of expertise and qualifications but a report or will say is only necessary (to be disclosed) “not later than the close of the case for the prosecution”. Lost or Destroyed Evidence R. v. La (1997)(SCC) – Duty to Preserve Evidence & Effect of Its Loss Facts: Police find runaway 13 yr old girl in a car w\a known pimp. The girl was interviewed (taped) by police. The police constable turned over report notes to detectives but not the tape of the interview. By the time of the preliminary inquiry – the constable lost the tape. At trial, defence applied for stay of proceedings on the basis of Crown failure to disclose tape. Sopinka The loss or destruction of evidence by the Crown (which includes the police) may result in a violation of 7 of the Charter. If it was lost or destroyed as a result of unacceptable state negligence, then s. 7 is violated. But if the state offers a satisfactory explanation then s. 7 is not breached. Factors relevant to whether the Crown took reasonable steps in the circumstances to preserve the evidence for disclosure include (in addition to looking at circumstances): • Perceived importance of the evidence at the time that it was collected; • Evidence that is clearly relevant when collected is subject to a higher duty of care, but if not relevant at the time a showing of unacceptable negligence will be more difficult as the state cannot be expected to preserve everything; Held Explanation of the Crown was satisfactory for the following reasons: no suggestion of negligent handling of tape, officer took care to preserve the tape up until a hearing; he was involved in stressful & traumatic incident shortly after making the tape; the officer did not fail to take reasonable steps in the circumstances. 80 The loss of the tape did not amount to an abuse of process (violates fundamental principles that underlie the community’s sense of decency & fair play). Accused did not establish that his right to make full answer & defence was impaired (s.7 not violated) by the loss of the tape taped interview was not detailed (purpose investigating runaway teen not prostitution ring); alternative source of information was available (preliminary trial testimony); officer noted the girl told a few lies (cross-examination would not be more effective in damaging credibility). Note It is difficult to claim missing evidence is critical to making full answer & defence how can you prove it w\out seeing the evidence. Third Party Records Where the defence seeks access to records in which a third-party, i.e. complainant etc. has a reasonable expectation of privacy, the right to make full answer and defence collides with the right to privacy. R. v. O’Connor (1995)(SCC) – Access to Third Party Records Lamer – Two Stage Test (for all offences not listed in s.278.2): 1. Accused bring formal written application (subpoena) supported by an affidavit setting out specific grounds for production. a. Notice must be given to third party in possession of the document(s) & all persons w\a privacy interest in the records. b. Accused must demonstrate there is a reasonable possibility that the information is logically probative (likely relevant) to the issue sought (low threshold at this stage – but prevent fishing expeditions). If the first step is met, the documents are to be produced to the court & the judge should examine them to determine whether they should be produced to the accused (balancing). 2. Balancing full answer & defence w\right to privacy (performed by judge). a. Weigh the salutary (helpful) & deleterious effects of a production order & determine whether a non-production order would be a reasonable limit on the ability of the accused to make full answer & defence. The judge should consider the following factors: i. Extent the record is necessary for accused to make full answer & D; ii. Probative value of the record; iii. Nature & extent of REP in the record (medical records = high); iv. Whether prod of record premised upon any discriminatory belief or bias (look at what D is claiming); v. Potential prejudice to complainant’s dignity, privacy or security of the person; Held – Majority (Lamer) 81 The Crown had been ordered to produce the therapeutic records (they have copies). The conduct of the Crown in refusing to comply w\the production order & not honor their Stinchcombe disclosure obligations is inexcusable & warrants a stay of the proceedings against the accused. It is unnecessary to determine whether production order was warranted in this case. Appeal allowed. Held – Minority – L’Heureux-Dube S.15 is engaged as the effect of production orders falls disproportionately on victims of sexual violence (women & children) discouraging them from reporting abuse. The “likely relevance” threshold places a significant burden on the accused (higher then majority concept). The accused can not invoke the credibility of the victim at large but must provide some basis to show the information would relate to the complainant’s credibility on a particular material issue. L’Heureux Dube would add the following additional factors to those articulated by the majority: - Extent to which prod of records of this nature would frustrate society’s interest in encouraging the reporting of sexual offences & the acquisition of treatment by victims (societal implications); - Effect on the integrity of the trial process of producing, or failing to produce the record, having in mind the need to maintain consideration in the outcome (effect on public confidence). Note Once a record is in the hands of the Crown – there is no longer a REP. The majority & dissent in this case agree that therapeutic records should not be subject to a class privilege. This decision triggered outrage from women’s groups & those who work w\victims. The gov’t introduced Bill C-46 in response to the majority decision in O’Connor. S.278.1 to 278.9 provides a legislative scheme for accessing the confidential records of complainants where offences of sexual violence or indecency are charged – it essentially tracks the requirements of L’Heureux-Dube’s dissenting opinion. S.278.1 def’n “Records” records which contain personal information where REP, includes: medical, psychiatric, therapeutic, counseling, education, person journals. S.278.2(1) records not to be produced for the enumerated offence unless procedure in s.278.3 - .9 are followed. (2) records in the hands of the Crown are subject to these rules. S.278.4 10 assertions by accused which are not sufficient on their own to establish “likely relevance”. S.278.5 judge may order production of record for review (by judge) after balancing privacy & right to full & fair defence (based on factors in s.278.5(2)). 82 S.278.7 judge may order production to accused after considering all 7 factors listed by L’Heureux-Dube. For all other offences, the approach in O’Connor applies. R. v. Mills (1999)(SCC) – Constitutional Challenge of Bill C-46 Facts: Whether Bill C-46 strikes the appropriate balance btw protecting the accused’s right to a fair trial & the privacy & equality rights of complainants & witnesses in their confidential records in sexual assault proceedings? Held – McLachlin & Iacobucci Bill C-46 is constitutional. The legislative response was a form of dialogue btw the judicial & legislative branches of gov’t. Parliament is free to strike the balance somewhat differently then that determined by the court in O’Connor. Note: Critics saw this decision as an example of the court abdicating its responsibility to Parliament (authority to interpret the constitution). However, the balancing in this case is btw the constitutional rights of two individuals – not the individual & the state. R. v. Carosella (1997)(SCC) Facts: Complainant sought counseling before going to police. Counselor took notes & informed complainant of the possibility of the notes being subpoenaed. The center had a policy of shredding files w\police involvement before being served (to produce documents). Accused sought production & the Crown, complainant & centre all consented (file was empty). Accused applied for & received a stay of proceedings. Held: The accused’s s.7 rights were violated w\out records could not make full answer & defence. A stay of proceedings was warranted b\c conduct of center resulted in an abuse of process. Confidence in the system would be undermined if the courts condoned conduct designed to defeat the processes of the court. Elections, Preliminary Inquiries & Preferring the Indictment Elections \ Entitlements For many indictable offences an accused has an option or “election” on how they will be tried. However, with the following categories of indictable offences, there are no options: 469 offences - those charged with s. 469 offences must have a preliminary inquiry (in Provincial Court) followed by a trial by judge and jury (ss. 536(2), 469, 471) in the Superior Court unless the preliminary is waived on consent of parties (s. 549); 83 553 offences - those charged with s. 553 (absolute jurisdiction) offences are not entitled to a preliminary inquiry, they must have a trial in provincial court before a provincial court judge (but see s. 555(2)); S.555(2) – allows absolute jurisdiction offences to “tag” along with other offences for which you have a right for a preliminary inquiry. All Other Indictable offences - those charged with indictable offences, other than 553, are entitled to a preliminary inquiry, including hybrid offences where the Crown elects to proceed by indictment (s. 536(2)); The accused’s choices for election to be tried are as follows: - Trial by provincial court judge; - Trial by superior court judge; - Trial by superior court judge & jury; - If not election is made – then deemed to elect trial by superior court judge and jury. - Note: if trial in superior court – accused is entitled to preliminary inquiry but must request one in writing (s.536(4)). Summary offences - no entitlement to preliminary trial, trial in provincial court (s. 536(2)); - Jury trials are on the decline (jury trials occur in superior court). Most criminal law gets practiced in provincial court. Preferring the Indictment Waiver of preliminary inquiry or committal to stand trial (from prelim) will send case to Superior Court. Information is replaced by Indictment which then serves as the charging document (s. 566(1)). The indictment contains style of cause, particulars of charge & is signed on behalf of the ATG & file on the accused’s first court appearance. The Crown\prosecutor drafts (“prefers”) the indictment under authority of s.574(1) & can include those offences that the accused was committed to stand trial on (s.574(1)(a)) & any other charges founded on the facts disclosed by the evidence at the preliminary inquiry (s.574(1)(b)). A justice at a preliminary inquiry is limited to adding charges in respect of the same transactions (s.548(1)(a)) for the original offence charged. The Crown has the authority to add charges based on evidence at prelim when preferring the indictment could be deterrent to having preliminary inquiry. Attorney General may personally prefer a “direct” Indictment, sending an accused to trial in Superior Court without a preliminary inquiry (s. 577(b)). This procedure requires the written consent of the ATG. Note: an indictment can be preferred on an accused where no preliminary inquiry was held or where held the accused was discharged. The constitutionality of the preferred\direct indictment procedure has been upheld by provincial appeal courts (not addressed by SCC) R. v. Ariv (Ont CA) – direct indictment procedure does not offend s.7; R. v. Stolar (Man CA) – accused persons not entitled to make representations to AG before a direct indictment is preferred. 84 Preliminary Inquiries (Part 18 s.535 – 551) R. v. Skogman (1984)(SCC) – Dual Role of Preliminary Inquiry 1. Provide a check on the sufficiency of the Crown’s case against the accused. 2. Discovery discover & appreciate the case against the accused. Question witnesses. Note: argument that post Stinchcombe no need for discovery at preliminary inquiry. Accused Crown Pros Pros 1. Check on sufficiency of Crown’s case; 1. Strengthen case against D identify 2. Discovery (evaluate witnesses; impugne); weaknesses & investigate further; 3. Preserve evidence (if witness absconds, dies, 2. Verify strength of witnesses; leaves Canada s.715 prelim testimony can be 3. Preserve evidence; read into trial); 4. Confront a difficult accused could facilitate 4. Convince a client who is stubbornly insisting guilty plea. they are innocent facilitate guilty plea. 5. Add additional charges (s.548(1)). Cons Cons 1. Additional delay if accused in custody could 1. Reverse of benefits to the D; prolong their stay; 2. RESOURCES if every case had prelim, 2. Crown strengthens their case Crown could system would get bogged down. investigate further to address weaknesses; 3. Show weakness in D case; 4. Amendment of indictment to include additional or more severe charges either by prelim justice (s.548(1)) or by Crown preferring the indictment (s.574(1)(b)). Statutory Regulation of Preliminary Inquiry Procedure S.536(4) accused or Crown must make formal request for prelim. S.536.3 requesting party must provide a statement to the court & other party setting out issues on which they want evidence to be given. S.536(4)(2) & (5) Crown & defence can agree to limit prelim to specific issues. S.537(1) Sets out power of the J presiding over prelim. S.537(1.1) J can put end to questioning that is abusive, repetitive or inappropriate. S.539 J can order publication ban on any evidence adduced at prelim. The order is mandatory when requested by the accused & in discretion of J when requested by Crown. S.540(1) rules for J taking evidence in prelim. S.540(7) Credible & trustworthy evidence in written form can be admitted w\reasonable notice to the opposition (s.540(8)) & the opposing party can request that the witness appear for questioning (s.540(9)). S.541(2) substance of address to a self-represented accused. S.542 anyone who publishes an admission or confession from prelim may be guilty of an offence punishable on summary conviction. S.549 J may order at any stage of prelim w\consent of the accused & prosecutor for the accused to stand trial. S.550 J has power to recognizance a witness whose evidence in his opinion is material to ensure their attendance at trial 85 Test For Committal (to Stand Trial) S.548(1)(a) Committal J shall order the accused to stand trial if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence from the same transaction. S.548(1)(b) Discharge J shall if in his opinion on the evidence no sufficient case is made out of the offence charged or any other indictable offence from the same transaction, discharge the accused. The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict or an extradition judge considering whether to commit an individual for extradition, namely: TEST Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: (U.S.A. v. Shephard), Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": Shephard. The test is the same whether the evidence is direct or circumstantial. Note: Directed Verdict trial judge makes assessment at end of Crown’s case & decides where to direct the jury to enter a verdict of not guilty due to a fatal flaw in the Crown’s evidence. R. v. Arcuri (2001)(SCC) –Test for Committal & Direct\Circumstantial Evidence Facts: Crown’s case against accused was entirely circumstantial (body found in trunk of his car). Accused is implicated b\c of DNA evidence found in bag of cloths left on the side of the road near murder scene (i.e. sweat on shirt collar & blood on shirt match the accused). In addition, the shirt, pants & shoes were all the same size as the accused (found in bag). There were questions about the accused’s opportunity to commit the crime. Note: Direct evidence witness testimony to precise fact which is the subject of the issue on trial; Circumstantial evidence any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue. McLachlin Test for committal (s.548(1)) in application – Direct\Circumstantial. The nature of the judge's task varies according to the type of evidence that the Crown has advanced. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e., including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. 86 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt (reasonableness of the inferences). Held The preliminary justice did not error in ordering the accused to stand trial. The justice thoroughly surveyed the circumstantial evidence sighting of car similar to the accused’s when bag of cloths dropped; sighting of a man similar to the accused, DNA evidence, etc. The justice considered the evidence offered by the defence – only after considering the whole of the evidence did the J commit the accused to trial. Remedies for Errors Committed by Preliminary Inquiry Justice There is no statutory right of appeal in Part 18 of the CC. The accused must use one of the following prerogative writs: Writ of Certiorari allows for jurisdiction review by Superior Court. Permits review where it is alleged the tribunal has acted in excess of its assigned statutory jurisdiction or in breach of natural justice. Examples: - Justice ordered committal despite absence of any evidence to support it. Errors as to sufficiency of evidence are in jurisdiction of prelim (R. v. Russel). - There is no evidence relating to each essential element of the charge brought. - J misconstrues the legal elements of the offence charged or discharges an accused b\c he misapprehends the evidence (R. v. Sazanti). - Denial of natural justice preliminary inquiry justice arbitrarily refused to allow the accused to question witnesses or refused to hear submissions from counsel. Writ of Prohibition stops the J from doing something. The prelim stops until the application has been decided. Note: counsel inform J that an application will be sought for certiorari & prohibition – custom for J to halt proceeding. Writ of Mandamus compels the J to act in a certain way. Doing Away W\Preliminary Inquiries Arguments for eliminating preliminary inquiries: - Discovery benefits no longer necessary given disclosure obligation in Stinchcombe. - Preliminary inquiries can be expensive and time consuming. - Given the low threshold that must be met to secure committal, the protective benefits are low. - For vulnerable victims (i.e. children & women of sexual assault) – being required to testify twice could be unnecessarily traumatic. Defence lawyers have offered the following reasons for keeping preliminary inquiries: 87 - Provide defence & Crown opportunity to assess the strengths and weaknesses of their case – could encourage timely resolution. - From tactical standpoint – greater detail is provided by examining witnesses then from written disclosure materials. Vic Toew (Minister of Justice) has argued that preliminary inquiries are no longer needed Disclosure of evidence before trial could serve the purposes of a prelim & save costly duplication in the legal system. The fact you have a prelim does not eliminate the possibility of error. Professor takes issue w\the statement of Mr. Toew flawed reasoning w\suggests parliament should legislate a higher standard to test the minimum adequacy of evidence at early stage. Constitutional Remedies 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would* bring the administration of justice into disrepute. *read as “could” as per R. v. Collins. S.52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. James Stribopoulos “Canadian Solution to Exclusionary Rule” Debate about whether there should be any remedial provision in the Charter. Prior to the Charter, the Canadian Bill of Rights did not address how the courts should deal w\evidence obtained in violation of its provisions courts stuck to common law rule evidence is admissible no matter how it was obtained. The Joint Subcommittee of Parliament (refining Charter provisions) was persuaded (to add exclusionary rule) by the fear of courts adopting the American automatic exclusion of evidence if the Charter was silent on the issue. S.24(2) is a compromise it provides the courts w\discretion to exclude evidence where its admission would bring the administration of justice into disrepute. Timing & Forum S.24(1) authorizes court of competent jurisdiction to grant constitutional relief. 88 Trial courts - always a “court of competent jurisdiction”, therefore may grant constitutional relief, be it a declaration of constitutional invalidity of legislation, evidentiary exclusion or a stay of proceedings. Preliminary inquiries - not a “court of competent jurisdiction”, therefore cannot grant constitutional remedies. (Mills can not bring constitutional challenge to exclude evidence at prelim). Note: if require disclosure before prelim bring application to Superior Court need to seek disclosure prior to prelim as it is a remedy ordered under s.24(1). Superior Courts - due to their inherent jurisdiction are always a “court of competent jurisdiction” BUT will only exercise this jurisdiction in exceptional circumstances, i.e. where the trial court is not in sight or is implicated in the alleged constitutional violation, otherwise it will defer to the trial court. Raheed SC should only exercise its jurisdiction where the trial court is not in reach. S.24(1) With the exception of exclusion of evidence, which takes place under s. 24(2), s. 24(1) confers broad remedial authority on courts. Typically, before a remedy will be granted there will need to be some correlation between the constitutional violation and the relief being sought. Courts have used this jurisdiction to do the following: • Declare invalid or read down legislation (s.52(1) law inconsistent is invalid); • Order costs; • Grant constitutional exemptions; • Decrease the sentence that would otherwise be appropriate; • Order the return of items seized (not contraband); and • Stay proceedings (most dramatic). R. v. Therens courts can not order the exclusion of unconstitutionally obtained evidence under s.24(1). Trial judges have a residual discretion (under s.7 & 11(d)) to exclude evidence under s.24(1) that was not obtained in violation of the Charter (i.e. action of private actors, confession extracted by American authorities, etc.). Abusive of Process (Common Law) A stay order under s.24(1) halts the proceeding hence use of that remedy is quite rare. However, a stay will be ordered if an abuse of process is made out. R. v. Jewitt (1985)(SCC) – Adoption of Abuse of Process in Criminal Law Context Held – Dickson S.C.C. adopted the conclusion of the Ontario Court of Appeal in R. v. Young. “…there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie 89 the community’s sense of fair play and decency and to prevent an abuse of a court’s process through oppressive or vexatious proceedings.” The power should only be used in the “clearest of cases”. Note The determination of abuse of process is highly subjective depending on the perspective of the justice. Unsure on this case how this common law doctrine interfaces w\s.7 of the Charter (fundamental principles of justice) court does not address, but dealt w\in O’Connor. R. v. Keyowski (1988)(SCC) – Abuse of Process – Limits of Trial Attempts Issue: Whether the accused should be ordered to stand trial for a 3rd time on the charge of criminal negligence causing death? Wilson Abuse of Process Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account in deciding whether or not an abuse of process is made out. The absence of either is not determinative. As a result, an abuse of process could be established as a result of an accused being required to stand trial repeatedly on the same charge(s). Held Although a third trial stretches the limits of the community’s sense of fair play it does not of itself exceed them. Note A fourth trial would likely exceed Keyowski. R. v. O’Connor (1995)(SCC) – Abuse of Process is Subsumed W\in S.7 Facts: looked at earlier for disclosure gaining access to confidential third party records. L’Heureux-Dube -> Majority on issue of abuse of process Abuse of process is subsumed within s. 7 of the Charter, a prosecution that offends our basic sense of fairness and decency necessarily violates the principles of fundamental justice. A “stay” is not the only potential remedy. Section 24(1) puts a scalpel in a judge’s hands, not an axe. The judge may craft an appropriate remedy. Stays for an abuse of process are only appropriate in the “clearest of cases”. That is: • Where the prejudice to the accused’s right to make full answer and defence cannot be remedied; or • Where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. Held 90 Although the Crown’s conduct was shoddy & inappropriate, it did not violate the accused’s right to full answer & defence. The original order for production should not have been granted the Crown was right in trying to protect the interests of justice (rather clumsy). Note Require conduct or events to be so egregious that it would be unjust to put person on trial (for order of stay under). Where the Crown has intentionally suppressed exculpatory evidence, it would irreparably prejudice the justice system. There is a right under S.7 (fundamental principles of justice) not to be subject to an abuse of process. An abuse of process results in a violation of the fundamental principles of justice. R. v. Regan – Abuse of Process & Stay of Proceedings Facts: Former N.S. premier faced criminal charges for sexual assaults on a number of young women that had worked for him. At trial, a number of charges were ordered stayed. He was acquitted of the charges that were not stayed. Crown is appealing the stay of proceedings. The accused is alleging abuse of process based on police disclosing to a reporter that the accused is being investigated; police charging the accused despite advice from the ATG not to pursue the charges; assistant Crown Attorney involved in interviewing witnesses (at odds w\separation btw Crown & police – not normal for Crown to interview); Crown judge shopping (this is ok). Lebel Abuse of Process (muddying the standard) Regardless of whether abuse causes prejudice to the accused because of an unfair trial or to the integrity of justice system, a stay will only be appropriate where: • The prejudice caused by the abuse in question will be manifest, perpetuated or aggravated through the conduct of the trial, or by its outcome; and 1. No other remedy is reasonably capable of removing that prejudice; Finally, there may still be cases where uncertainty persists about whether an abuse is sufficient to warrant a stay, in such cases a final factor is: • To balance the interests served by ordering a stay against the societal interest in having a final decision on the merits. Note: this is a very high standard for abuse of process. Held There was no abuse of process the cumulative effect of: judge shopping, pre-charge Crown interviews, improper police announcement, and the addition of 16 counts in the direct indictment does not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community’s sense of decency & fair play. Further, the conduct (if AOP) did not have an ongoing effect which would jeopardize the fairness of his trial. Appeal dismissed. Note Prof takes issue w\this very high standard. This standard allows the Crown to play “loose” w\the rules (incentive to play loose) – even if the Crown is caught, the prosecution will not 91 likely be stayed unless there is an element of ‘bad faith’ in their conduct (difficult to get past claim of ‘good faith”). Hopefully in egregious circumstances a stay can be ordered i.e. Crown threatening the accused, intentionally suppressing evidence. This decision co-exists w\R. v. La on Lost Evidence i.e. standard of ordering a stay of proceedings – arguable that the standard of abuse of process from this case applies to lost evidence. Crown will want to argue Regan standard and defence will want to argue O’Connor. Need to flag this on exam. S.24(2) – Exclusion of Evidence Threshold for Application S.24(2) will only be applied where “…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter…” Criteria for Evidence to be Excluded Evidence will be excluded if “it is established, that having regard to all the circumstances, the admission of it in the proceedings would* bring the administration of justice into disrepute”. Note: would = could as per R. v. Collins. Unlike the American exclusionary rule (automatic judicially developed), the Canadian rule is not automatic & trial judges have the discretion to decide whether evidence should be excluded on a case-by-case basis (“all the circumstances”). The US rule was extended to apply to any evidence acquired by public officials in the US (federal, state or municipal). James Stribopoulos “A Canadian Solution to the American Exclusionary Rule Debate” Criticism criminal is to go free b\c the constable has blundered. Response criminals go free b\c official compliance w\the requirements of the 4th amendment make it more difficult to catch criminals. Criticism exclusionary rule handcuffs police in their effort to enforce the criminal law. Response the constitutional rule imposes limits on the operation of police, if they follow the rule constitution, there is no evidence to excluded. Criticism exclusionary rule does not provide a remedy for innocent people who are victims of unconstitutional conduct. Response exclusionary rule benefits all by decreasing the likelihood that someone will be subject to an unconstitutional search or seizure. Criticism exclusion motions shift focus of trial away from the D’s guilt or innocence. Response court should be preoccupied w\manner in which evidence has been obtained, otherwise constitution’s guarantees would be meaningless. 92 Criticism exclusionary rule confers a disproportionate benefit on the D (minor violation = D go free). Response all that is excluded is the evidence the police would not have found had they abided by the constitution. The rule does not confer immunity on the D. There are exceptions to its application. Criticism other countries (democratic nations) do not employ an exclusionary rule. Response England, Scotland, Ireland, Germany, Canada all use some form of exclusionary rule. Class Discussion on Excluding Evidence Reasons for excluding evidence: Right to fair trial; Police could develop unreliable evidence; If do not exclude, encourage unconstitutional behavior & tarnish the view of the courts & administration of justice; Deterrence to police to act unconstitutionally; R. v. Strachan (1988)(SCC) – First Branch of S.24(2) – Charter Infringed Facts: accused charged w\possession of MJ for trafficking. MJ was obtained during a search via warrant. Warrant was based on confidential tips (3). Police had information that the accused had firearms. Upon arrest, the accused asked for right to speak w\lawyer. The police refused – and told him he had to wait until police had matters under control. 40 minutes after entering apartment, accused still not given right to counsel & 2 of the 4 officers left. The search revealed quantity of MJ & cash. Only when accused arrives at police station he was given right to speak w\lawyer (2 hrs later). Crown conceded there was a violation of s.10(b). Dickson A direct causal link between the violation and the acquisition of the evidence is not required (rejection of R. v. Cohen) but it does help. The court should focus on the entire chain of events during which the Charter violation occurred (look at all violations) and the evidence was obtained. First, the court should determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection, however, is not determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be obtained in a manner that infringed the Charter. 93 Held S.10(b) violation did not occur initially, but once the accused was arrested, weapons located, and the other two officers left. The narcotics in this appeal were obtained in a manner which infringed the Charter. During search of apartment, the accused was denied his right to counsel (direct connection not required; in the same transaction). First branch of s.24(2) was met. R. v. Goldhart (1996)(SCC) – First Branch of S.24(2) – Charter Infringed Facts: police obtain search warrant based on confidential tip & perimeter search (notice smell of MJ). When warrant executed, police arrest Goldhart & his accomplice Mayer. Goldhart is successful on application that the warrant was invalid – due to evidence from an illegal perimeter search. Mayer undergoes religious transformation, pleads guilty to the offence & cooperates w\police & testifies against Goldhart. The accused is convicted. Issue: Whether Mayer’s testimony was obtained in a manner that violated the Charter? Ratio: A causal link is also not determinative, where time and intervening events serve to make any linkage too remote. Held: There was a causal link btw the violation (unlawful search) and the evidence (Mayer’s testimony). However, the temporal connection was too remote. The evidence\testimony was not given immediately on arrest, but some months later (not part of same transaction). The evidence was not obtained in a manner that infringed the Charter (s.24(2) not engaged). Note Prof try to show pattern of disregard for Charter violations (look broadly at the entire investigative process) – the more violations, better chance of exclusion of evidence. R. v. Collins (1987)(SCC) – Second Branch of S.24(2) – Administration of Justice\Disrepute Facts: See in search\seizure. Accused seized by throat & thrown to floor. Lamer Bring Administration of Justice into Disrepute Burden - the Applicant must establish it (bring administration of justice into disrepute) on a balance of probabilities “Would” - “would” is read as “could” given the language used in the French version In assessing whether the admission of unconstitutionally obtained evidence could bring the administration of justice into disrepute, a judge should have regard to "all of the circumstances”. Note: involves some element of community views. The relevant factors can be grouped into one of three categories: 1) Trial fairness; 94 2) The Seriousness of the Violation; and 3) Effect on the Reputation of the Administration of Justice in Canada Trial Fairness Will the admission of the evidence undermine the fairness of the trial? A trial will be rendered unfair if the accused is confronted with conscripted evidence, such as an unconstitutionally obtained statement (incriminating), or other evidence emanating from the individual. Note: conscripted evidence does not exist prior to the violation. Such evidence should usually be excluded because nothing undermines the integrity of administration of justice more than an unfair trial. Draw a distinction between conscripted evidence and “real” evidence, the latter is not obtained through self-incrimination and its admission will generally not impact on trial fairness. Note: real evidence exists irrespective of Charter violation – e.g. guns, drugs, etc. Seriousness of the Violation Did the violation occur in good faith (inadvertent) or was it deliberate, willful or flagrant? – if willful or flagrant more likely for exclusion. Good faith is more controversial (viewed w\skepticism). Note: lack of training is a serious violation. Was the violation motivated by urgency or necessity to prevent the loss or destruction of evidence? police can’t manufacturer urgency or exigency (Silvera). Was the police conduct in violation of well-established constitutional requirements? The availability of other constitutional investigative routes will render the violation more serious (Collins), but proceeding unconstitutionally where no lawful investigative options exist has also been characterized as having the same effect (Kokesch). Note: this list of factors is not exhaustive. Effect of Exclusion on Reputation of the Admin of Justice The long term effect on the repute of the administration of justice of admitting or excluding evidence in analogous circumstances must be considered. A serious offence and a technical breach counsel in favour of admission. In contrast, a serious breach and a minor offence counsel in favour of exclusion. Note: the concept of disrepute of admin of justice is related to community perceptions. The test is in the eyes of the reasonable person, dispassionate and fully apprised of the circumstances. Held 95 The evidence obtained was real evidence (drugs) it use\admission at trial would not render it unfair. If the evidence was excluded, someone who was found guilty at trial would evade conviction. Such a result could bring the administration of justice into disrepute. However, greater disrepute would occur if the evidence was not excluded & the court did not dissociate itself from the conduct of the police (i.e. choke hold). Note Subsequent cases interpreted Collins as requiring evidence to be excluded if it compromises the fairness of the trial w\o consideration of the 2nd & 3rd factors. Almost became automatic exclusion – against drafters of s.24(2) of the Charter which deliberately included the words “having regard to all of the circumstances”. This approach creates a hierarchy of rights and places s.10(b)(automatic exclusion) above other rights such as S.8. R. v. Stillman (1997)(SCC) – Second Branch of S.24(2) – Conscripted, Derivative, Non-Cons Facts: accused arrested for murder. At police station accused’s lawyers informed police that he was not consenting to provide any bodily samples (hair, teeth imprints or give any statements). Once lawyer left, police officers took under threat of force, scalp hair, pubic hair, & teeth impressions. Police attempted to obtain a statement. The police got DNA from a tissue thrown out in the garbage by the accused. He was released but subsequently arrested again & dentist took new impressions of teeth w\o consent. Cory Re-visit of Trial Fairness from Collins Abandon the “conscripted” vs. “real” evidence distinction. "Conscriptive evidence" necessarily undermines trial Fairness and must therefore be excluded, while non-conscriptive evidence doesn't and its admission turns on the other two sets of factors. Evidence will be characterized as "conscriptive" where following a Charter violation an accused is “compelled” to participate in the creation or discovery of self-incriminating evidence, at the behest of the state, by: i) Providing a statement; ii) The use of the body; or iii) The production of bodily samples. “Compulsion” appears to include: being asked or requested (Feeney); directed; or forced. Evidence that is not characterized as “conscripted” is not dealt with under trial fairness, and proceeds for consideration under the second and third sets of factors. Note: automatic exclusion of evidence if the evidence obtained in violation of a Charter right would render a trial unfair. Derivative Evidence Term used to describe “conscripted” real evidence 96 Involves a Charter violation whereby the accused is conscripted against himself (usually in the form of an inculpatory statement) which then leads to the discovery of an item of real evidence. In other words, the unconstitutionally conscripted statement is the necessary cause of the discovery of the evidence. The admission of such evidence will also always count as conscripted and its admission will render the trial unfair, UNLESS the Crown shows, on a balance of probabilities, that: 1. There is an independent source of the evidence; or 2. The evidence is inevitably discoverable (applies to all conscripted evidence) – i.e. could have got a warrant. If the accused’s statement is not the necessary cause (i.e. but for cause) of the evidence, then it is not classified as derivative and it moves directly to prong two and three of Collins (Feeney). Held Court concluded that the evidence (hair, pubic hair, teeth impression) were conscripted (unlawful seizure –violation of s.8) – the evidence was not imminently discoverable as there was no DNA warrant provision at this time. The evidence was excluded (hair, teeth impressions, public hair). In regards the tissue, the court found a violation of s.8 (seizure a person in police custody can not abandon tissue). The tissue was imminently discoverable as the police could have obtained a search warrant. The tissue was not conscripted (not forced or requested) – hence trial fairness not implicated. The administration of justice would not be brought into disrepute by its admission (consideration of factors 2 & 3). Dissent A finding that the evidence is conscriptive should not prevent analysis of the other factors from Collins based on the plain language of s.24(2) – “regard to all circumstances”. Note Despite the desire to clear up some of the confusion – this judgment has created other problems relating to the meaning of “conscripted” and in particular the reference to “compelled” (open or closed) Justice Cory made it clear later that “compelled” was a closed category: statements, use of body, or production of bodily samples. Add back in Wijeinsha case….see notes. R. v. Feeney (1997)(SCC) – Derivate Evidence Facts: see case from earlier arrest section. Accused stole truck, trailer, blood. In this section dealing w\exclusion of evidence. Sopinka Derivative If the accused’s statement is not the necessary cause (i.e. but for cause) of the evidence, then it is not classified as derivative and it moves directly to prong two and three of Collins (Feeney). 97 In considering whether the statement (conscripted) was the necessary cause (derivative), the inquiry is directed at whether the evidence should be treated as a product of the accused’s mind or body, which does not depend on the constitutionality of the alternative means of discovery. In determining discoverability (Crown must prove for derivative evidence), the alternative means to obtain the evidence must comply w\the Charter. Held The bloody shirt, shoes, cigarettes and money (would have been found by police performing an illegal search – statement not necessary cause) were not conscriptive (derivative) evidence. Their admission does not affect fairness of trial & must be consider under prongs 2 & 3 of Collins. Under prong #2 – serious of violation the balance of considerations & pattern of disregard (no RPG to enter trailer or arrest) leads to conclusion that evidence should be excluded. The statements & fingerprints are conscripted evidence and are inadmissible. They could not be obtained w\o the were the result of a statement, use of body or production of bodily samples. By not informing the accused of his s.10(b) rights, the police in effect compelled the statements. Note Police went back to collect more evidence and got fingerprints from a previous arrest in another jurisdiction. Feeney was ultimately convicted. Contrast w\Burlingham, where the gun was located at the bottom of a frozen river where police would never locate it. If the accused’s gf came forward & told police, it would be independent source therefore it admissibility of the evidence would be analyzed under prong #2 & 3 of Collins. R. v. Mann (2004)(SCC) – Analysis of Prong #2 & 3 in Collins Facts: see above MJ in kangaroo pouch. Iacobucci The MJ was non-conscriptive therefore analyze exclusion under seriousness of the violation & administration of justice. Evidence which is non-conscriptive & essential to the Crown’s case need not necessarily be admitted. In prong #3 need to balance the interests of truth w\integrity of the justice system; the nature of rights at issue & lack of reasonable foundation. The MJ is excluded. Dissent 98 The MJ should not be excluded. The violation was not serious the accused had a lesser REP since in high crime area late at night & approx two blocks from break-in scene. Note: prof disagrees w\suggestion violation less serious for the reasons stated. Note Deterrence of unconstitutional police behavior lurks beneath the surface in s.24(2). There is an assumption in the cases that police act exclusively for law enforcement purposes – in reality that is only one-third of what police do (order maintenance & peace-keeping). Studies show that how an officer approaches an encounter depends on their purpose at the time as order maintenance or law enforcement police are more concerned about the rules when approaching for law enforcement (make arrests) vs. for order maintenance where they do not attempt to justify or cover for their actions. The exclusionary rule has no deterrent effect in these circumstances. Time Limitations S.11. Any person charged with an offence has the right (b) to be tried within a reasonable time; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; Time Limits There are very few “limitation periods” in Canadian criminal law, i.e. a point in time past the offence after which charges cannot be brought. Exceptions: 1. Summary proceedings are subject to a six month limitation period (s. 786(2)) – from date of actus reus, but offence is hybrid the Crown can always avoid it (elect to proceed by indictment) or the accused may waive it. The accused would be inclined to waive to be subject to lesser penalties by proceeding summarily (Crown can avoid prelim). Note: there are very few true summary offences in the code. 2. Treason, 3 year limitation period (s. 41) 3. Most provincial offences are subject to a 6 month limitation period (Provincial Offences Act, R.S.O. 1990, c. P.33, s. 76(1). If the provincial offence has a time limit built into the offence it applies – otherwise, s.76(1) specifies 6 months. There is debate in Canada over limitation periods & the potential for prejudice if the passage of time is too great. Pre-Charge Delay & Prejudice A delay between an alleged offence and the laying of a criminal charge, even a long delay, may be of no consequence If because of the delay an accused cannot make full answer and defence to the charge (i.e. s.7 & 11(d)), i.e. have a fair trial, then a court could intervene (L.(W.K.)) 99 Relief subject to same standards that apply to lost evidence case where no state negligence, i.e. R. v. La. High standard difficult for applicant to show on BOP that their ability to make full answer & defence has been harmed. MacDonald expert died, but report is available. Accused’s ability to make full answer & defence was not irreparably harmed. Require showing irreparable prejudice to ability to make full answer and defence. • However, stated limitation periods award those who go long enough without detection. • Child is sexually assaulted. They grow up and do not complain originally. It seems unfair when they grow up to have the law tell them they can not proceed or bring the claim. Stay possible, but not guaranteed because of Regan Note some jurisdictions have passed limitations but these award those who go long enough w\o detection (what about child who was victim of sex assault – realize later in life). ON EXAM – acknowledge the possibility of irreparable prejudice. Court has to figure this out. The Right to be Tried W\in a Reasonable Time Section 11(b) provides that : “Any person charged with an offence has the right to be tried within a reasonable time.” – applies to all offences in HTA. In Askov & Morin SCC endorses a balancing approach (examination of the delay in light of the factors below), not a mathematical formula. Relevant factors include: • Length of the delay; • Examine period from charge (date information sworn \ or indictment preferred) to end of trial (or is it scheduled trial date?). • Waiver of right, globally, or with respect to specific delays; • Whether at any point, the accused waived their right to a trial in a reasonable time. • Note Crown will often agree to adjournment i.e. at prelim w\condition that you waive s.11(b) rights. • Reasons / explanations for delay; • Some delay is inevitable. Were there special circumstances? • Inherent time requirements of case; • All offences have inherent time requirements complexity of the case, intake requirements (bail, prelim, etc.). • Actions / conduct of accused; • Adjournments at request of accused; Charter challenges, etc. • Actions / conduct of Crown; • Adjournments requested by Crown; failure or delay in disclosure. • Institutional delay; 100 • This period starts to run when parties are ready for trial but the system can not accommodate them. • In terms of guideline for this delay not specific\scientific – consider delay in comparable jurisdictions. • This is the delay we are most concerned with (Askob – 2 yr institutional delay). • Note Legal aid delays are not attributed to the accused but to institutional delay. • Other reasons for delay; and • Actions of trial judges. • Prejudice to accused. • Prejudice may be inferred from the length of delay the longer the delay the more likely the inference will be drawn. • Either party may rely on evidence to either show prejudice or dispel such a finding. Although there is no mathematical formula, the Court does set down “guidelines” for institutional delay: • For cases in provincial court, from first appearance to trial or committal to stand trial, 8 to 10 months; • Once cases are in superior court, from first appearance to trial, 6 to 8 months; Delays that are part of inherent time requirements of the case or due to actions of accused, get deducted. Delays attributable to Crown get added. If what remains exceeds guidelines, than case is in the zone of unreasonable delay & accused should consider bringing an application. In such cases, actual prejudice to accused may be the determinative factor. The action or inaction of the accused can be taken into account in assessing prejudice. The accused’s custodial situation will impact a finding of prejudice in custody, more likely to find prejudice. Note: the remedy for a delay under s.24(1) is a stay (a complete defence). Askov & Moran (SCC) – Right to be Tried in a Reasonable Time The two cases should be read together. Primary purpose of s.11(b) is to protect individual liberty & security interests. There is a community or societal interest implicit in s.11(b) which ensures that law breakers are brought to trial & dealt w\expeditiously & those on trial are treated fairly & justly. The delay in Askov was 2 years (institutional delay) and was found to be unreasonable & violated the accused s.11(b) rights (prejudice). In very long & unreasonable delays – the 101 accused does not have to prove prejudice (the court would assume it). The impact of Askov was the stay of nearly 50K cases. The delay in Moran was 14 ½ months, the court found: 10 months (upper end of range) of institutional delay as a general guideline in that jurisdiction; 2 months of inherent time to due to complexities of the case (drunk driving charge). While the delay was long, it was not unreasonable. Accused did not adduce evidence to show prejudice & did nothing to attempt to speed up the process – no prejudice. R. v. Kalanj (1989)(SCC) – When time starts to run The time under s.11(b) begins to run when the person is charged w\the offence (information sworn, or direct indictment laid). Time continues to run until completion of trial. The delay btw arrest & swearing of information does not count for section 11(b) purposes (pre-charge delay). Further appellate delays btw trials are not counted in s.11(b) (R. v. Potvin). R. v. L. (W.K.)(1991)(SCC) – Right to be Tried in a Reasonable Time Facts: Accused charged w\numerous sexual offences against daughter which date back over 30 yrs. Held: A delay in charging an individual cannot w\out more justify staying the proceedings. The question is whether the accused can establish a violation of s.7 & s.11(d) fairness & trial. Pre-charge delay is relevant as evidence could be lost, witnesses could forget, etc. Appeal dismissed – stay not entered. The Adversary System Canada utilizes an adversarial model. The decision-maker (judge or jury) is supposed to be disconnected from the parties w\no vested interest in the dispute. It is believed that this model (in Canada) is best suited for the task of determining the truth. The judge is to officiate btw the two parties and ensure the rules of the process are followed & ultimately if judge trial render a decision. An alternative model is the inquisitorial model where the judge is charged w\adjudicative, investigative & prosecutorial functions (i.e. manage investigation & prosecution). Underlying Basic Assumptions 1. That the investigative and adjudicative roles are inherently incompatible, therefore the judiciary must be absolutely passive, only then can it be impartial; 2. That the adversarial contest is most likely to yield the truth about an event. It is only when equally pitted adversaries advance their respective cases, all the while tearing down that of their opponent, will the “truth” emerge. Impartiality of Judges 102 However, judges are human & they likely struggle w\remaining impartial. The judiciary comes from a certain privilege position in society (white men – upper class). The system could be made to be more representative. Equally enabled Adversaries Fact of the matter, adversaries are not always equal. One side may have more money and hence access to better lawyers. A lawyer who is clever enough to come up w\the right theory & develop it better then their adversary will win the case. There is a concern for self-represented people who may be innocent but can not afford a lawyer (& make to much for legal aid). Jerome Frank “Myth & Reality in American Justice” The adversary system is built on “fight theory”. This theory can lead to the distortion of evidence (or block uncovering of evidence). The interviewing & handling of witness the approach of lawyers can make honest witness look un-credible & nervous. Further, lawyers can use strategies to minimize the impact of testimony disadvantageous to there position (witness coaching). Lawyers seek to discredit adverse witnesses and hide defects of witnesses who testify favorably to their client’s position. Ultimately the court is denied benefit of observing the witness’s normal demeanor & is prevented from assessing credibility. Our current trial method is equivalent to throwing pepper in the eyes of a surgeon when he is performing an operation. Criticism should not be thrown at lawyers but at the system which compels & treats a lawsuit as a battle of wits & wiles. The risk is always present that an innocent person w\a great lawyer may lose due to having less financial resources and thus access to investigators, engineers, etc. to prove their claim. Note prof is it arguable whether this model is a good way of getting at the truth as the system is susceptible to abuse. The Role & Duties of Crown & Defence Counsel The Crown has unfettered discretion in deciding whether to pursue or withdraw charges (R. v. Osborne). There are checks on the exercise of Crown discretion: 1. Crown policy dictates that charges not be pursued if no “reasonable chance”, or “prospect” or “likelihood” of conviction. 2. In abuse of process judge can order a stay in the clearest of cases. 3. Prosecutor who pursues charges recklessly can be called to account in tort through a malicious prosecution claim. 103 The defence lawyer must continually balance the following competing duties, which invariably pull him/her in different directions: • The duty to one’s client, especially the duty of confidentiality; • The duty to the court, in particular not to knowingly mislead the court; • The duty to society, practicing law not a license to violate the law; • The duty to oneself, you aren’t just the client’s hired gun. The following duties were taken from S. Surka & J. Strib “Professional Responsibility in Criminal Practice” they argue that lawyers must balance a duty to the client, the court, society, colleagues & themselves. Duties of Defence Counsel Duty of defence counsel to advocate zealously for the accused within the limits prescribed below. Counsel can not pre-determined the case “your guilty, I will not represent you”. Duty to Client Obligation to come to court fully informed & well prepared. Act honestly & candidly when providing legal advice. Explain the nature of the proceedings at all stages. Obtain disclosure from Crown in timely manner. Duty of Confidentiality Duty of confidentiality is separate\different from solicitor\client privilege (protection of things client say while obtaining legal advice). Required for effective representation of a client’s interests so the D lawyer can be possessed of full information. Hold in strict confidence all information concerning the client (i.e. being consulted & retained; client does not pay bill have to be cautious when suing what u disclose). Exception: if defending yourself against allegations of wrongdoing can disclose limited things such as the client came to you….but not the particulars. Duty not to divulge unless expressly or impliedly authorized by the client or required by law. Counsel can not report to police someone who enters their offence and confesses to a crime. E.g. judge asks D whether accused has criminal record answer should be “the Crown is in a better position to answer the question”. Rationale fear innocent person falsely accused will be apprehensive about speaking w\a lawyer and what they hold back could be key too their innocence. Duty w\Respect to Withdrawal Relationship btw counsel & client has fiduciary dimensions. Counsel does not have a right to terminate the retainer (withdraw) except for good cause & upon notice in the circumstances. Client entitled to terminate relationship w\counsel at will. In Ontario, counsel can withdraw if client has not paid fees provided it would not seriously prejudice the client’s interest (too close to trial). 104 Counsel would be required to withdraw: client instructs counsel to do something inconsistent w\duty to the court & following explanation the client persists; client is guilty of dishonorable conduct in proceedings; conflict of interest; counsel is not competent; serious loss of confidence btw lawyer & client (i.e. client deception of counsel). In obtaining court’s permission to w\draw, counsel must be careful not to disclose any confidential information (i.e. do not reveal cause of conflict). Duty as an Advocate D’s counsel function is wholly partisan duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case & to endeavor to obtain for the client the benefit of every remedy & defence authorized by law. Must perform duty w\out regard to whether the client is guilty. Counsel can not enter plea of guilty on behalf of a client who denies committing the offence (obligation to safeguard against the wrongful conviction of innocent people). Before a plea is entered, counsel must conduct the level of investigation required for preparation for trial (determine if guilty plea is warranted) & satisfy themselves of the following (Rules of Professional Conduct): o Advise client about prospects for an acquittal or finding of guilt. o Advise client of the implications & consequences of a guilty plea & the sentencing authority & discretion of the judge (court is not bound). o Client is voluntarily prepared to admit the factual & mental elements of the offence. o The client so instructs the lawyer (preferably in writing). Note if a client originally says not guilty but then offers to plead guilty: counsel needs to satisfy themselves that they are not doing it solely to take advantage of an plea bargain. Duty to the Court Trilemma counsel must strike a balance btw competing obligations to a duty to know everything, hold it in confidence, and to reveal it to the court. Duty Not to Knowingly Mislead the Court Must never knowingly mislead the court (Rules of professional conduct). Must inform the court of a pertinent & binding legal authority – even though not mentioned by Crown. Obligation not to misstate the contents of a document or the testimony of a witness. Never assert something they know is not supported by the evidence. D counsel precluded from endeavoring, or permitting anyone to endeavor to influence the decision of the court by means other than advocacy (i.e. juror has interest – must inform court). Never dissuade a witness from giving evidence or knowingly permit a witness to be presented in a false or misleading manner. Counsel can not call evidence which is known by admission of the client to be false includes the presentation of an affirmative defences such as an alibi. Test is whether putting forward an affirmative defence. 105 A lawyer who has inadvertently engaged in any of the above has an obligation to correct the consequences of this conduct subject to confidentiality. If client admits factual & mental guilt counsel can not offer a false defence but may properly object to the jurisdiction of the court, sufficiency of the evidence (i.e. height example report says the assailant was 5 ft…..client is 6 feet can not claim if we know guilt that the accused can not be person responsible, we have to point to inconsistencies in evidence). Counsel can not call evidence which is known to be false. Counsel has sole discretion to determine which witness to call & should not call one who will offer false evidence (if call witness who you know giving false evidence – could be party to perjury). o If a witness surprises counsel & gives false evidence duty of lawyer to inform the court not to rely on this aspect of false evidence by the witness. If the client offers false testimony (surprise to counsel), counsel has a responsibility not to continue the examination and ask the client if they wish to make a statement. If accused wishes to engage in any of the conduct above, counsel must attempt to dissuade the accused & if they persist then good cause to withdraw. Duty w\Respect to Witnesses Counsel must disclose their interest to the witness (when interviewing). Must not say anything that would subvert or suppress evidence. Duty to avoid impeding examination of witness before the court further, not to needlessly abuse, hector or harass a witness giving testimony. Counsel can coach witnesses but not tell them what to say. Counsel should refrain from outlining possible defences to the accused until after hearing their version of the events. Counsel is permitted to point out inconsistencies but should not offer more plausible alternatives. Counsel should not have discussion w\the witness following examination in chief and prior to cross-examination. Duty to Society Counsel has duty to follow the law. Counsel must never knowingly assist in, or encourage any dishonesty, fraud, crime or illegal conduct or instruct a client on how to violate the law & avoid punishment. Solicitor client privilege does not protect communication for the purpose of committing an offence information does come w\in duty of confidentiality. Rules of professional conduct provide that counsel may breach confidentiality if he\she has reasonable grounds to believe that there is an imminent risk to an identifiable person or group of persons of death or serious bodily harm (should call law society or speak to senior counsel)(Smith v. Jones). Counsel must seek prior judicial approval before disclosure & disclose only what is necessary to prevent death or serious bodily harm. Note: counsel may not breach for non-violent crimes. Duty to Themselves If counsel feels that a request will not help the case, they can object – if client persists, can withdraw (i.e. I am not longer acting as lawyer, there is a loss of confidence). If what the client requests is unethical, duty to prevent & withdraw. Counsel retains control over the conduct of the D. 106 Duty of Crown Counsel Owe a duty to the state & administration of justice. Principle priority is to assist in the administration of justice, rather than acting as an advocate & pressing for conviction. The Crown has an obligation to bring forward evidence of every material fact known to the prosecution, whether favorable to the accused or otherwise. Unfettered discretion to pursue a charge where there is a reasonable prospect of conviction. Positive obligation to disclose to accused in a timely fashion all relevant material in the Crown’s possession (triggered on D request). Related obligation obtain from police all relevant information & material concerning the case (Crown & police are one entity in this context). If the Crown wishes to withhold disclose, they must disclose that fact. Failure to disclose is unethical & may constitute professional misconduct. Crown is entitled to press fully & firmly every legitimate argument tending to establish guilt, but they must be accurate, fair & dispassionate in conducting the prosecution & addressing the jury. Note in practice obligations as advocate can overwhelm prosecutors (i.e. tunnel- vision, desire to win, white hat syndrome – prosecutors overreach) – they are human & may loss sight of the fact they are arguing for the state (e.g. Marshall spent 12 yrs in prison). o Dangers of prosecutorial overreaching include wrongful conviction, appeal court overturning decision even if person is guilty, professional punishment & sued in tort for malicious prosecution. o Prof should be division of charge screening & prosecutorial functions this allows for a further check on colleagues (currently – both steps performed by same prosecutor). Client has Control Over the Following Decisions Whether to plead guilty or not guilty. Lawyer can not advice them to plea guilty if they are claiming to be not guilty. Whether to have a judge or jury trial & whether to testify. R. v. Murray (2000)(Ont S.C.) – Lawyer’s Trilemma Facts: Accused is the first lawyer to represent Paul Bernardo. Murray on instructions from Bernardo went to the house & retrieved tapes & retained them for 17 months. In meantime, Karla H. negotiated a plea agreement w\the Crown. After Murray reviews the tapes (show gross sexual abuse) he withdraws from the case when Bernardo asks that the tapes be suppressed forever. On withdrawal Murray considering surrendering the tapes to the court but Bernardo’s new lawyer blocked the effort. After review and discussion w\legal experts, Rosen disclosed the tapes to the Crown. Murray was charged w\obstructing justice. Held The court was satisfied beyond a reasonable doubt that concealment of the tapes did in fact obstruct justice. The accused had three legal option: immediately turn over the tapes to the 107 prosecution either directly or indirectly; deposit them w\the court; disclose their existence to the prosecution & prepare to do battle to retain them. However, the judge had reasonable doubt (gives benefit of doubt) whether he had the mens rea & appreciated that he had crossed the line. There was a lack of clarity in the authorities for D lawyers’ obligations when in possession of physical evidence if Murray had inquired beyond his token effort he might have remained confused. Ultimately Murray is acquitted. Note The Law Society attempted to rules to deal w\the issue of lawyers’ duties w\respect to physical evidence relevant to crime. The draft rules were dissented to by the prosecutors on the Committee (disagreement btw D & P on Committee). The report w\the draft rules was referred back to Committee for further review but nothing has happened since (that was in 2002). Prof to avoid this scenario D should have asked what was on the tape. General rule of thumb never go & get physical evidence unless you are absolutely sure what it is & what it will show (otherwise could be willful blindness obstruction of justice). Plea Bargaining & The Plea Plea Bargaining Despite the occasional public outcry, plea-bargaining takes place on a daily basis in every courthouse across the country. Of 380,000 criminal cases each year, approx 228,000 (61%) result in convictions. Estimates are that anywhere from 85-90% of the convictions result from guilty pleas. Most guilty pleas are the result of some kind of bargaining or negotiation. The PB can be formal extended negotiations w\written terms, approved & overseen by a judge (pre- hearing conference); or informal discussion btw defence lawyer & prosecutor. There could be a pre-hearing conference (s.625(1)) where there can be discussion of the proceedings in attempt to promote a fair & expeditious hearing i.e. narrow issues, judge facilitates negotiations, see if judge will accept a plea, etc. The judge who oversees the pre- trial hearing will not be the judge who oversees the trial (unless parties consent). There is a concern about transparency. Pre-Conditions For Accepting Plea Bargain In the rules of professional conduct, the lawyer is not to enter into plea negotiations w\o instruction from the client (could have a hypothetical discussion). The Rules of Professional Conduct require the D lawyer to advise the accused before entering a guilty plea: about prospects for an acquittal or finding of guilt; the implications & consequences of a guilty plea & the sentencing authority & discretion of the judge (court is not bound); client is voluntarily prepared to admit the factual & mental elements of the offence; the client so instructs the lawyer (preferably in writing). 108 Plea Negotiations Are Privileged Plea negotiations are privileged just like settlement discussion in civil cases. This is to remove the chilling effect that would exist if it could be used against the accused or Crown in trial no one would be open to discussion & making concessions. Crown & Negotiating Plea Bargains The Crown may initiate & participate in plea bargaining. It assists w\efficiency of the system & the workload of the Crown. The Crown may negotiate plea bargain w\an accused to get evidence for another case (i.e. Karla H.). If the D wants to fact bargain & water down the facts the Crown & D need to be careful on the submission of facts to the court not to mislead. The Crown & D can simply state that these are the facts as submitted. S.724.3 permits the Crown & D to have a disagreement on one of the issues or facts in the case and have it litigated (for sentencing purpose after guilty plea). S.724.3(e) requires the Crown to prove beyond a reasonable doubt any aggravating factors that go towards sentencing (i.e. racial remarks, etc.). While the police are often involved in plea bargains they do not & should not have veto power as their interest would likely push them solely to see the case through to conviction. However, a prosecutor who does not exercise their independent judgment (i.e. gives in to police w\o justification) would be shirking their office. Crown Withdrawals from Plea Bargain Courts refrain from treating PB’s like contractual arrangements. However in some cases the Crown repudiating the agreement can be characterized as an abuse of process. This requires 1) parties have agreed on terms of disposition; 2) accused would be prejudice (i.e. already handed over evidence or contraband) if Crown were able to repudiate. (i.e. Smith abuse found where accused already surrendered contraband). Victims Interest in Plea Bargaining Ontario Victims’ Bill of Rights, S.O. 1996, c. 6, section 2(1): 2. Victims should have access to information about, x. any pretrial arrangements that are made that relate to a plea that may be entered by the accused at trial, The Ontario Victim’s Bill of Rights provides that victims should have information about the PB. Victims should be consulted in the plea bargain process (do not require their approval – prosecution has authority to accept or deny the PB). If victims are not given access to information about a potential PB, Vanscoy v. Ontario makes it clear that violation of the Victim’s Bill of Rights does not result in a Charter violation and it (the Bill) does not provide a remedy for any violation. Joseph Di Luca “A Review of Plea Bargaining” 109 The Martin Committee recommended formalization (occur in every criminal case) of plea bargaining & the re-labeling (due to public appearance) to “resolution discussion”. These discussions are entitled to deal w\discussions btw counsel for the resolution of any issues that arise at a criminal prosecution (including plea). Explicit Plea Bargaining Involves some form of open negotiation btw the accused and other actors in the justice system. Usually btw counsel for the accused & prosecutor. Constant elements of explicit plea bargains: plea of guilty to one or more charges; a bargain or benefit will only be provided if the accused pleads guilty; bargain must result from express or overt negotiation. Variable elements of explicit plea bargains: where the plea bargain occurs (in the prosecutor’s office, the hallways of the courthouse or in judges chambers); when it occurs (on first appearance or eve of trial); with whom the bargaining is done (prosecutor, police, judge, etc.); what is actually bargaining for by the accused; why a plea is bargained for (i.e. lesser sentence). Implicit plea bargaining Accused relies on the understanding that a plea of guilty will be taken into account as a mitigating fact in passing sentence. Charge bargaining Process whereby the accused bargains w\police and/or prosecutor to have lesser charges laid or to have charges reduced in exchange for a guilty plea. Fact bargaining Process whereby accused tries to “water down” or neutralize the facts that he or she will agree to on a guilty plea. Sentence bargaining Involves discussions btw counsel regarding the length & type of sentence to be imposed following a guilty plea the aim is a joint submission. Arguments in Favor of Plea Bargaining Necessity PB required to keep the wheels of justice moving (overcrowded court dockets & unreasonable delays) to prevent backlogs. Efficiency PB increase the efficiency of the system as trials are very expensive & require the use of scarce resources. Counter evidence does not show the necessity of negotiated pleas in achieving a high rate of guilty pleas…..some of the pleas are open pleas where person would plead guilty regardless (studies from Alaska that implemented a ban). The Accused Person’s Best Interests results in a lower sentence for the accused and has been suggested it helps w\rehabilitation where they accept responsibility & express remorse. Benefit to the system as pleading guilty saves scarce resources. Provides the accused w\certainty on the outcome of the case & saves the accused the time\money & embarrassment of a public trial. Counter some who plead guilty are not remorseful. Accused people may do it to get the benefit of a lesser sentence & get out of a tough spot. A discount for a guilty plea could be a 110 punishment for those who insist on exercising their rights. Note: judge reserves discretion in relation to the sentence irrespective of the plea bargain reached. Efficient Prosecutor’s Office guilty pleas offer a fast & final means of completing criminal litigation. Like the accused, the prosecutor is spared from the all of nothing nature of the trial & can get certainty of a conviction. Counter US studies have shown that guilty plea rates in highly populated areas & those of lower are not significantly different – argues against over-burdened prosecutor. Interests of Society quick resolution reinforces certain values that are viewed to be important in society & serves to highlight the systems ability to protect the public efficiently. Counter social benefits will be forgone such as not bringing to light abuses of power by the state & its agencies (since PB happen behind closed doors). Trial advance the state of the law. Victims of Crime spares the victims and their families from the task of having to attend a public trial (especially for victims of sexual crimes). Victims could be re-victimized. Counter most crimes are victimless crimes, while sparring the victim it does not serve societal’s broader interest in preventing or deterring these crimes. PB marginalize victims who already feel their role is restricted there input into the bargaining process is not often sought. Ontario Victims Bill of Rights does not provide substantive remedies for not being kept in the loop. Arguments Against Plea Bargaining Plea bargaining is an unprincipled circumvention of the proper adjudicative process which brings w\it the unfortunate potential for convicting the innocent. The accused’s guilt is not determined through a public marshalling and testing of evidence, but through negotiated bargaining out of public sight w\o protections built into the adversarial system (operates on presumption of guilt). Coercive elements surrounding PB increases the risk of convicting innocent people excessive periods of pretrial detention, overcharging & large differentials btw trials & guilty pleas are incentives for accused persons to plead. There is a link btw lengthy pre-trial detention & guilty pleas (if you plead guilty get out if you go to trial stay in jail). Plea bargains occur behind closed doors & violate concepts of openness and accessibility. Justice reached through a plea bargain is neither visible nor transparent. Note D lawyer may be put in an ethical situation where a client who originally pleads not guilty changes their plea when an offer comes their way. The lawyer has a duty not to mislead the court or see that an innocent person is found guilty. A D lawyer can not help someone who states they are innocent yet wants to plead guilty. The lawyer needs to make an assessment of whether or not they believe the client (that they are guilty here material facts for the elements of the offence). 111 Alternative option if the Crown agrees is to have the D not contest the facts. The D concedes that the Crown can adduce those facts beyond a reasonable doubt. While this spares the system the time & costs of a trial, the mitigating factor is not as good as a plea. The Plea The plea can come at any time during the court process. If an accused decides to plead guilty at a very early stage (prelim) the plea will be entered in front of a judge who will then pass sentence. Where the accused intends to go to trial, the plea will not be formally entered until the trial is ready to commence before a judge or jury. The plea begins w\accused being arraigned on the charge(s) the charge as contained in the information or indictment is read to the accused in open court & the accused is asked how they plead w\respect to each count. The accused may plead guilty to some counts & not to others. A trial will occur for the counts which the accused did not plead guilty to. Sentencing for the counts the accused pleaded to will usually be postponed. An accused who pleads not guilty is free to change his plea at any time. If an accused pleads guilt it is more difficult to go back & undue the plea once it is formally entered. Adgey v. The Queen (1975)(SCC) – Limited Ability of Court to Intervene on a Guilty Plea Facts: Accused faced 10 charges. He was self-represented initially and on his third appearance w\the assistance of duty counsel he plead guilty to the charges. The Crown called a senior officer who recited the facts to the court & when the accused was asked if he disputed any of the facts he responded “No”. When asked for his version of the events (after sworn in) he appears to give evidence which suggested that he was not admitting some of the essential elements of the offences to which he is pleading guilty. Despite this, the trial judge entered the pleas of guilty & convicted him. Dickson (Majority) The judge has discretion to refuse to receive or strike a guilty plea once entered where: 1) Reason to believe the accused is not admitting some essential ingredient of the offence; 2) Where the accused has misapprehended or failed to appreciate the nature of the charge or the effect of the guilty plea; 3) If there is reason to believe the accused did not intended to plead guilty (i.e. language barrier). Provided the judge acted judicially in considering the request to strike a plea, an appellate court will not intervene. Appeal dismissed. Note it is the trial judges’ option to choose to hear evidence to be satisfied that the charges are well founded or in order to have background for sentencing. Laskin (Dissenting) 112 The trial judge has a duty to inquire prior to entering a plea to satisfy himself that the accused: 1) Understands the nature of the charge or charges against him; 2) Unequivocally pleads guilty to the charges; 3) Whether the facts support the guilty plea (charge); Appeal allowed new trial on the charges subject to the appeal (strike of guilty plea). Note dissent adopted the American procedure for plea inquiry. R. v. Rubenstien (1987)(Ont CA) – Accused Wants to Take Back Plea\Judge Not Like Sentence Facts: Plea negotiation. Crown & defence agree to statement of facts & make a joint submission on the sentence. It became clear the judge would not accept the joint submission on sentence – the accused sought to withdraw the guilty plea but was refused. Court of Appeal Accused can not take back guilty for the reason that it appears the judge will reject the joint submission on the sentence. Otherwise, this would allow an accused to judge shop until they found a judge who would accept the joint submission. S.606 & Guilty Plea Inquiry (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others. (1.1) A court may accept a plea of guilty only if it is satisfied that the accused (a) is making the plea voluntarily; and (b) understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor (1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. Note S.606 of the criminal code was adopted in 2002 (27 yrs after Adgey) and tracks the requirements of the Lamer’s dissenting opinion. It obligates the judge receiving the guilty plea to be satisfied that the party is making it voluntarily & understands the requirements in the code. However, s.606(1.2) fixes any plea inquiry that does not meet the requirements of s.606(1.1) the legislature did not want to create an automatic appeal right if the judge forgets to do the inquiry. The Trial Process of Trial Begins w\arraignment of the accused (s.801(1) – for summary convictions; s.?? - Indictable). 113 The accused (indictable offences) or defendant (summary offences) enters a plea of guilty, not guilty or special plea (*only applies to indictable)(s.606(1) – Indictable; S.801(1)(a) – Summary); For indictable offences, the judge can hear & decide on pre-trial motions (s.645(5)); If a jury trial (in Superior Court), after the pre-trial motions are handled, the accused will be arraigned again. If a jury trial has been selected, the jury will then be selected (12 normally selected but can operate w\only 10 due to members be excused). The trial commences w\Crown making an opening statement outlining the evidence it plans to call & why the evidence will substantiate the charges laid. Note normally opening statements are only made in jury or complicated trials. For the majority of trials in provincial court there are no opening statements (but they can happen). The prosecution bears the legal burden. It starts by calling its first witness & conducts an examination-in-chief (open ended questions who, why, what, etc.). The D counsel for each of the accused (if multiple in the order on the indictment –order is Crown’s prerogative) cross-examines each witness. Following cross-examination, the Crown is permitted to re-examine the witness but is limited to any new matters that were raised on cross-examination. After Crown has finished calling all of its evidence it will close its case. The accused\defendant at this point may bring an application for a “directed verdict” the judge needs to determine whether a “reasonable jury properly instructed could convict the accused on the charge(s)”. Note: a directed verdict application can be brought on any or all counts in an information or an indictment. If no directed verdict application is brought, or if brought & dismissed accused will be asked whether he wishes to call any evidence. The accused is entitled to make full answer & defence (s.650(3)). If the accused chooses to call evidence, can make an opening statement to the trier of fact (s.651(2)) not normally used in bench trials in the provincial court. D then calls it witness, same sequence applies w\examination-in-chief, cross- examination & re-examination. The practice is to call the accused first if they are going to testify. After all evidence is hard the parties are given an opportunity to make a closing address to the trier of fact. S.651(3) if the accused does not call any evidence, the prosecutor goes first & if the accused (or one of the accused) calls evidence, the prosecutor addresses the trier of fact last. Note this rule was challenged under s.7 in Rose, the court found that s.7 simply guarantees a fair trial, someone has to go first, rule was upheld. In a jury trial, the closing addresses are followed by judge’s instruction to the jury judge reviews the evidence & provides the jury w\the relevant law. The jury is sequestered until it reaches its verdict (s.647(2)). The verdict must be unanimous. Note a jury can continue w\10 members, any less and a mistrial must be declared (s.644(2)). If the jury is unable to reach consensus w\respect to a count, a mistrial results and the entire process may be repeated for the mistried count (s.653). In judge alone trial, the judge may render a judgment immediately or adjourn to consider to his verdict. The judge may adjourn the case to consider the verdict & write reasons (if 114 complex). In provincial court, verdicts usually come after a short break & reasons are crafted quickly & delivered in summary fashion. If accused is found not guilty, they are free to go. If accused is found guilty, the sentence needs to be dealt with. In minor matters, sentencing will usually follow the verdict. In a more serious case (risk of imprisonment) submissions on sentence will be adjourned to another day. Other Criminal Code Provisions Regulating the Trial Indictable Offences Note The accused is referred to as the “accused”. S.645 once trial commences it must proceed continuously but can be adjourned by the court form time to time. S.650(1) subject to (1.1 – video links), (2 – exceptions) & 650.01 the accused must be present during their entire trial. S.650.01 accused can be absent when evidence is not being heard – they must file a designation of counsel to appoint counsel to represent the accused under any proceeding. Note this is to reduce some of the hardship of having to appear many times & impacting work & family responsibilities. Note Canada does not allow indictable offences to be tried ex parte (parties are not there). However, if disturbing the proceedings, the accused can be removed (s.650(2)). Summary Conviction Proceedings Note The accused in pure summary conviction proceedings is referred to as the D. S.800(2) accused may appear by counsel or agent. D does not have to be present at trial. S.8002.1 accused may not appear agent if the maximum punishment is more than 6 months in jail. Note to protect people from paralegals & under trained representation. S.803(2)(a) the trial can proceed in the absence of the accused (ex parte) as fully & effectually as if the accused appeared. Note normally a warrant would be issued to bring person before the court. Right to Counsel Right to have counsel present and conduct defence is both: • Statutorily protected, Code ss. 650(3) – Indictable & 802(2) - Summay • Constitutionally guaranteed, Charter s. 10(b) No “right” to state funded counsel at trial - although Legal Aid will often intervene to fund defence of those who are unable to pay for counsel. Rowbotham Application (Rowbotham, New Brunswick Minister of Health). Where an accused is unable to afford counsel but, in the opinion of the trial judge, a fair trial is not possible without a lawyer, in light of: 115 • The seriousness of the charge(s); • The complexity of the proceedings; and • The capacities of the accused The judge may order the state to fund counsel, pursuant to her obligation to ensure a fair trial (Charter ss. 7 and 11(d)). Note: person must bring an application. R. v. Rowbotham (1988)(Ont CA) – Right to State Funded Counsel? Facts: The accused (wife) one of 11 people charged w\trafficking in MJ. She applied for legal aid but was refused b\c she had sufficient means to retain a lawyer privately. She applied at trial for a lawyer to be appointed due to the length of the proceedings (state funded) – but it was rejected. Ontario Court of Appeal The accused could not have a fair trial w\o representation by counsel. The accused was charged w\a serious offence (complicated case - conspiracy) who lacked the means to employ a lawyer to conduct a 12mnth trial. However, would not need counsel available for the entire trial. Lawyer would only need to be there during critical parts of the trial where her interests are at stake: arraignment, selection of jury, calling of evidence directly admissible against her, calling of defence witnesses, judges charge to the jury. New trial ordered circumstances should be examined fully where both the accused & legal aid give evidence. New Brunswick Minister of Health & Community Services v. G.(J.) (1993)(SCC) Facts: Analyzed whether a parent whose child is the subject of a child protection proceeding that could result in a loss of the parent’s custodial rights, is constitutionally entitled under s.7 to state-funded counsel. Note state takes your children this interferes w\security of person under s.7. SCC Court held while a parent need not always be represented by counsel to ensure a fair custody hearing, in some circumstances (could loss child forever) depending on the: seriousness of the interests at stake; the complexity of the proceedings, and the capacities of the parent the gov’t may be required to provide state-funded counsel. The court approved Rowbotham. Note The SCC has not dealt directly w\the issue but this case gives us insight. Combining this case w\Rowbotham we get Rowbotham application. See above. The person must file an application listing their assets, etc. before state w\approve. If the accused is unrepresented, there is a special duty on the judge to guide the person through the process could impact impartiality. The concern is innocent people who go unrepresented could be convicted because they can not defend themselves properly. However, there are also efficiency concerns where unrepresented accused are involved prosecutors have to play fair, the case will generally 116 take longer (accused does not know process or how to cross-examine) to be processed…..Prof thinks it costs us more at the end of the day to allow people to go unrepresented. Right to Silence Section 11(c ) of Charter provides that “any person charged with an offence has the right … not to be compelled to be a witness in proceedings against that person in respect of the offence.” In addition, silence at trial may not be used as a make-weight, to push a marginal Crown case over the proof beyond a reasonable doubt threshold (Noble). Practical reality is that this is exactly what a jury might very well do with silence. Section 4(6) of the Evidence Act prohibits the judge or the prosecutor from commenting on an accused’s failure to testify. Note judge can not instruct jury on the impermissibility of using silence of the accused to make case beyond a reasonable doubt. R. v. Noble (1997)(SCC) – Right to Silence & Proof Beyond & Reasonable Doubt Issue: Whether the silence of an accused at trial can be treated as a distinct piece of evidence which the trier of fact can use to become convince of guilty beyond a reasonable doubt? Sopinka (Majority) Silence at trial may not be used as a make-weight, to push a marginal Crown case over the proof beyond a reasonable doubt threshold. It would severely undercut the right to silence at trial (s.7 & s.11(c)). Further this would shift the burden of proof to the accused (to get up & undue impact of not taking the stand). The Crown has to establish the case beyond a reasonable doubt. Some mention of the silence of the accused will not offend the charter i.e. it could be referred to as evidence of the absence of an explanation (not heard any other explanation that would point away from guilt). Alibi exception if an accused advances an alibi defence does not testify to substantiate it, this is a matter of importance in considering the validity of the alibi defence – the judge can address that the accused did not testify in charge to the jury (in relation to the defence, not to the verdict)????. Appeal allowed trial judge used the failure of the accused to testify to find guilt PBRD. A new trial is ordered. Note The D can address why the accused did not testify i.e. no need to, the Crown has not met the case. 117 Presumption of Innocence & Proof Beyond a Reasonable Doubt Section 11(d) of the Charter provides that “any person charged with an offence has the right … to be presumed innocent until proven guilty according to law.” R. v. Lifchus (1997)(SCC) – Charge to Jury & PBRD Facts: Accused charged with fraud and theft (alleged against his employer). Ground of appeal is the charge of the trial judge to the jury on the meaning of PBRD. Cory (Majority) Presumption of innocence is inextricably intertwined with proof beyond a reasonable doubt standard. A “reasonable doubt” is a doubt that is based on reason or common sense (not sympathy), it is logically connected to the evidence or a lack of evidence. It does not require absolute certainty. At the same time, it requires more than probable guilt. In the end, if the trier of fact is sure that the accused committed the offence then it should convict, as this is proof beyond a reasonable doubt. The Crown has the burden of proving guilt beyond a reasonable doubt. Appeal dismissed and new trial ordered the charge to the jury was insufficient. Note The presumption of innocence would be meaningless w\o PBRD. Crown must establish PBRD for each element of the offence. Triangle of Victim’s Rights, Crime Control, Due Process w\Restorative Justice CLS argue that due process has been for crime control. There is a constant tug btw Crime Control & the Due Process models. Some of the decisions we have studied are victories for either side. The Charter has made substantive changes in the area of search & seizure and the limits on police interrogation practices (Rotham vs. Herbert). But in other areas, crime control still reigns supreme. Some argue that the Charter has led to the expansion of police powers (investigative detention, protective searches, etc.). The ancillary powers doctrine & its use by the SCC has played a key role in this debate. Realistically, the Charter has the unintended effect of increasing police powers. Generally the public views liberties as being better protected. The problem w\pre-Charter was that abuses did not come to light. The Charter has illuminated police practices and provided more practical remedies (pre-Charter – have to sue & file complainants – very costly). The system is ultimately geared towards preventing wrongful convictions. There has been progress in that area especially in relation to disclose requirements coming out of Stinchcombe. 118 In relation to Victims Right, while there has been symbolic gestures (i.e. Victim’s Bill of Rights), there have not been substantial changes. While the Victim’s Bill of Rights strives to give victims greater information on the proceedings of the accused, it provides no substantive recourse or remedy (Vanscoy). There have been some victories in relation to disclosure of private confidential records (s.278.1-.9). Restorative justice has been met w\limited success especially in serious offences. It tends to work w\younger or aboriginal offenders. LOOK AT CRIMINAL CODE PROVISIONS NOT IN SUMMARY ADD IN WIGHENY – FROM JEN’S SUMMARY - STILLMAN Stopping Powers Checklist 1. Do police have statutory authority for the stop? 2. Do the police have CL authority for the stop? a. Police powers created\recognized (ancillary powers doctrine): fixed point sobriety check stops (Dedman); investigative detention (Simpson & Mann); Search incident to detention (Mann); b. If no CL power, apply ancillary powers doctrine – to see if new police power can be recognized (Dedman)? Detention Checklist 1. Was the individual detained? (see Therens or Thomson for def’n of detention) a. Interferance w\physical liberty? b. Person reasonably believes they do not have a choice on whether to comply w\a demand? Search Incident to Arrest Checklist 1. Was there a lawful arrest based on RPG? 2. Was the purpose of the search for one of the stated purpose: safety of officers &\or others; to locate & preserve evidence? 3. Was the search incident to the arrest in terms of time & geography? Arrest Checklist 1. Was there an arrest? a. Actual seizure or touching of a person’s body w\a view to detention? b. Pronouncing of words of arrest if the person submits to the process & goes w\the arresting office? c. “Words of arrest” not required….look at the circumstances in general. 2. Did the person have statutory authority (s.494(1) – citizen arrest; s.494(2) – property; s.495(1)(a) – general police arrest; s.495(1)(b) – summary; s.495(1)(c) – warrant)? 3. Did the person meet the requirements of Storrey? 119 a. Before effecting an arrest under s. 495(1)(a) a police officer must: i. Subjectively believe that he or she has reasonable grounds to believe that an individual has committed an indictable offence; and ii. Those grounds must also be objectively reasonable (in other words, would a reasonable person placed in the position of the officer conclude that there are reasonable and probable grounds to arrest? 4. If entering dwelling to make arrest, did the police obtain a warrant (Feeney)? If not, were the police in hot pursuit? a. S.529.3(1) warrantless entry\arrest where exigent circumstances? i. S.529.3(2) list of exigent circumstances: bodily harm, loss or destruction of evidence. b. Did the police meet the announcement requirements under Eccles? i. Exigent circumstances Grant (SCC) – “exigent” = imminent danger of loss, removal, destruction or disappearance of evidence? ii. S.529.3(4) – forgo announcement in exigent circumstances: bodily harm, loss or destruction of evidence? 5. If the arrest was unlawful, did it result in the detention being arbitrary (Duguay)? 6. Side issues did the police release the person after arrest (s.495(2)), etc.? Interrogation Checklist – For person who makes a Statement 1. CL Was the statement voluntary (Voluntariness rule crown bears burden, automatic exclusion)? 2. Charter Was the person “detained” or a witness (Moran)? – see factors. a. Example detention see Mickey. 3. S.10(a) Did police inform the person of the reasons for detention “promptly? a. Was the accused informed of all the reasons for their detention (R. v. Borden)? b. Note: a violation of s.10(a) invariably leads to a violation of s.10(b) where it applies – can not properly instruct counsel w\out knowing the true reasons for detention\arrest. 4. S.10(b) Three duties….& Restrictions on Police. a. Informational Duty did police inform the accused of right to s.10(b) immediately on detainment (Bartle)? i. Was the accused\detainee given the standard caution (in Ontario)? ii. Was the accused informed “immediately” of their s.10(b) rights on detention\arrest (Feeney)? Was there a recognized exception (R. v. Strachan)? iii. Was the accused informed of the availability of legal aid\duty counsel & 1-800 number to access the services & how to access those services (i.e. 1-800, 24 hrs) (Brydges, Bartle)? b. Invoking the Right did the accused invoke their s.10(b) right? i. If not invoked, any evidence that the accused did not understand s.10(b) right or can the accused show any of the following (Baig)? 1. Asserted right, denied opportunity. 2. Denied the opportunity to assert the right. c. Implementation Duties did the police meet the duty to facilitate & hold off questioning (Manninen) after right invoked by accused? 120 i. If not, was there an exception for dangerous\urgent circumstances (Manninen)? ii. Was the accused “reasonably diligent” in exercising their s.10(b) rights (Ross)? If not, the facilitation & hold-off duty are suspended. 1. Example of accused not “reasonably diligent” see Smith accused refused to contact counsel after 9 p.m. d. Did police denigrate defence counsel, offer a plea bargain directly to accused & fail to keep it open until lawyer returns, or did they not re-apprise the accused of their s.10(b) rights when material\fundamental change (i.e. bargain, new offence, etc.)(Burlingham)? e. Did the accused waive their s.10(b) right? i. Was there a valid waiver: clear & unequivocal; voluntary; awareness of consequences (Clarkson)? – was person intoxicated (Clarkson)? ii. Was the accused mentally ill – did they pass the test Whittle (i.e. capable of communicating w\counsel; understand function of counsel & that counsel can be dispensed with although not suggested)? iii. Was the accused a youth (12 to 18)? If so, Youth Criminal Justice Act applies (statement needs to be recorded, in writing, made in presence of lawyer or parent, etc.) 5. Right to Silence a. Did the police engage in conduct which objectively unfairly deprived the accused of the right not to speak to the authorities (elicit\cell mate)(Herbert)? i. Did the police\Crown\state agent elicit the statements? – test for elicit in Broyles. Or, did the accused voluntarily provide them – not protected (Herbert)? b. If the accused made a statement which was used against them to a cell mate, friend, relative, etc. – were they a state actor? i. Would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? (Broyles). Intake Procedures Checklist 1. Was the accused subject to “unreasonable delay” before being brought before JP? a. Can be delayed for fingerprinting, interrogation, line –up (Storrey). b. Was the absolute limit of 24hrs to be brought before a JP violated? i. Violation of 24hrs while unlawful may not be arbitrary (Duguay). 2. Information a. Did the “informant” have personal knowledge or believe on RG that the person arrested committed the offence specified (s.504)? i. Pilcher (Man Prov CT) w\o knowledge information is a nullity. BUT, Whitmore (Ont CA) complete lack of knowledge on officer swearing in does not affect validity of information. ii. MAY NOT HAVE TO CONSIDER THIS POINT – COULD MENTION BREIFLY. b. Was there a facial defect in the information or did it not allege a criminal offence – so it should not have been received by justice (s.504)? 121 c. Where the JOP was issuing a summons or warrant (s.507) or other process (notice of appearance – s.508), did they exercise their judicial function properly – reviewing the allegations of the informant & interviewing witnesses where necessary (Jeffrey)? Bail Checklist 1. Presumption of release of the accused (s.515(1)). a. Exceptions: i. Accused charged w\s.469 offence (s.515(1) & (11)). ii. Special circumstances (s.515(6)). iii. Crown shows justification for detention (s.515(10)): 1. Necessary to ensure attendance (s.515(10)(a)); 2. Substantial likelihood accused w\commit a criminal offence or interfere w\administration of justice and where necessary to protect “public safety” (s.515(10)(b)); 3. Necessary to maintain confidence in the administration of justice (see rule for main factors)(s.515(10)(c)). a. See Hall -> should s.515(10)(c) should be viewed through objective lens. 2. Where accused released -> did they get the least onerous restrictions? a. The court must order least onerous form of release unless the Crown shows otherwise (s.515(3)). b. List of restrictions see s.515(2). 3. Charter Challenging provisions denying bail -> was the denial of bail w\just cause (s.11(e)). a. Is bail denied (statutorily) in narrow set of circumstances; denial necessary for proper functioning of bail system & not for extraneous purpose (Pearson)? i. Example – Morales -> s.515(10)(b) “public safety” is constitutional; ii. Example – Hall -> s.515(10)(c) is constitutional – struck out opening words of provision. Charge Screening 1. Is there a “reasonable prospect” of conviction (objective – higher than a prima facie case – but less then a probability of conviction)? a. Proulx Crown must have evidence to believe that guilt could properly be proved beyond a reasonable doubt. 2. If there is a “reasonable prospect” of conviction, would it nevertheless be in the public interest to discontinue the prosecution? 3. If there is not a “reasonable prospect” of conviction & the prosecutor has pursued the criminal charge, the prosecutor may be vulnerable to a malicious prosecution claim in tort (Proulx)? Crown Disclosure (Stinchcombe) 1. Has the Crown disclosed all “relevant information” (exculpatory, inculpatory) in its possession? a. Threshold low – logically probative of a fact in issue. 122 b. Should include all witness statements, police notes (disclosure of the notes may not be enough where the do not contain all the relevant information police possess), will say statements. 2. Has the defence triggered the right (requested by defence)? a. If accused is unrepresented, has the Crown appraised the accused of the right? 3. Timing was it provided before the accused is called to make an election or to plea? (Stinchcombe case states disclosure should not has to be). 4. If the prosecutors are withholding disclosure is it one of the recognized limited circumstances? a. Information clearly irrelevant; b. Privileged information (see cases in S.8 accessing info for warrants); c. Delay disclosure to protect ongoing investigation. 5. Where the Crown has decided to either delay or withhold disclosure of something – did they inform defence counsel? 6. Where Crown failed to disclose the legal consequences depend on the impact to the accused’s s.7 right to make full answer & defence to the charges? a. What is the nature of the information? b. Would it change the outcome? Defence Disclosure (Post-Stinchcombe) 1. Disclosure is not mandated unless one of the exceptions below: a. Alibi disclosure (timely disclosure); b. Notice of Charter application (15 days prior); c. Expert Witnesses Notice (30 days notice in advance of trial). Loss of Evidence by Crown - Duty to Preserve Evidence (R. v. La) 1. Is the explanation of the Crown satisfactory for the loss of evidence (or was state negligent)? a. Whether the Crown took reasonable steps in the circumstances to preserve the evidence for disclosure; i. Perceived importance of the evidence at the time it was collected; ii. Note: evidence that is clearly relevant when collected is subject to a higher duty of care, but if not relevant at time of collection, a showing of unacceptable negligence will be more difficult the state cannot be expected to preserve everything. 2. If tape was lost as a result of unacceptable state negligence then s.7 is violated. 3. If tape was not lost as a result of unacceptable state negligence, was the accused then s.7 (right to make full answer & defence) would be violated? a. Nature of evidence for the purpose of the charge\investigation b. Alternative source available; c. Effect if evidence had not been lost. d. NEED TO CONSIDER REGAN abuse of process? Exclusion of evidence? Access to Third Party Records 1. Is the accused charged w\an offence listed in s.278.2 (sexual violence or indecency)? 123 o If yes, must follow procedure in s.278.3 to 278.9 S.278.4 insufficient grounds S.278.5 order production for court review S.278.7 order production to the accused. 2. For all other offences, follow the approach of the majority in O’Connor. o Accused bring formal written application w\affidavit setting out specific grounds for production. Notice given to all interested parties. Accused must demonstrate likely relevance. o Judge must review the document(s) & balance the right to make full answer & defence w\the right to privacy. Weigh the salutary & deleterious effects of a production order & determine whether non-production would be a reasonable limit on the ability of the accused to make full answer & defence. The judge should consider the following factors: Extent the record is necessary for accused to make full answer & D; Probative value of the record; Nature & extent of REP in the record (medical records = high); Whether prod of record premised upon any discriminatory belief or bias (look at what D is claiming); Potential prejudice to complainant’s dignity, privacy or security of the person; Charter Remedies (s.24(1)) 1. Has there been a constitutional violation? If so, which one? a. Abuse of Process abuse of process is subsumed w\in s.7 s.7 is violated (fundamental principles of justice) if found (O’Connor). i. Def’n: there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent an abuse of a court’s process through oppressive or vexatious proceedings. (Jewitt). ii. Prosecutorial misconduct & improper motivation are two of many factors to be considered – the absence of either is not determinative (Keyowski). iii. Example 3 trial attempts stretches the limit (i.e. 4 should be too much)(Keyowski). 2. S.24(1) Remedies: a. Stay for abuse of process (Regan & O’Connor) court originally articulated standard in O’Connor, but the issue was revisited in Regan. i. O’Connor Regardless of whether abuse causes prejudice to the accused because of an unfair trial or to the integrity of justice system, a stay will only be appropriate where: 124 a. The prejudice caused by the abuse in question will be manifest, perpetuated or aggravated through the conduct of the trial, or by its outcome; and b. No other remedy is reasonably capable of removing that prejudice; c. Where uncertainty persists about whether an abuse is sufficient to warrant a stay, in such cases a final factor is: To balance the interests served by ordering a stay against the societal interest in having a final decision on the merits. b. Declare invalid or read down legislation; c. Order costs; d. Grant constitutional exemptions; e. Decrease the sentence that would otherwise be appropriate; f. Order return of items seized (not contraband); Charter Remedies (s.24(2)) – Exclusion of Evidence 1. First branch of s.24(2) was evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter? a. Strachan & Goldhart i. Direct causal link not required & is not determinative (but it helps) where temporal connection is week\too remote (S & G); ii. Focus on the entire chain of events which violation occurred (pattern of disregard) (S); iii. Ensure the Charter violation occurred in the course of obtaining evidence (S); iv. Should be temporal link btw Charter infringement & discovery of evidence…..violation & discovery in the same transaction. Is the temporal connection too remote (G & S)); v. Presence of temporal link not determinative (S); Abuse of process confused….Regan sets out criteria for stay or for abuse of process? My understanding is it sets out standard for abuse of process…..because if found then constitutional violation & then can seek remedy? What does this do to the definition in Jewitt? Is the criteria from Regan to be used for an order of a stay of proceedings from any violation…..or just from abuse of process…….flip that….is an abuse of process needed for a stay of proceeding? 125 What about factors in Kewoski talks to prosecutorial misconduct & improper motivations….would we cite this case? Would 4 trials meet the high threshold in Regan? Application of Collins? – search into mouth is ok where specific information (goes to reasonableness)? Questions for Prof Paste in unanswered questions from Mann. 126
"Criminal Procedure - Legal and Lit"