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
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
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
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
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
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
S.606 & Guilty Plea Inquiry .................................................................................. 113
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
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
Theories of the Criminal Process
Kent Roach, Due Process & Victim’s Rights
Herbert Packer established two models for criminal process: crime control & due process
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
- 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
- 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
- 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.
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
- 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 &
- 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.
- 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
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
- 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
- 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
- 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
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).
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
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
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).
- 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
- 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
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.
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
- Reactive -> police are responding to information about a particular crime & a
- 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
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.
- 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 &
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.
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?
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
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.
The police officers did not apply the ancillary powers doctrine. There was a violation of the
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.
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 -
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).
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
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
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.
- 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).
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.
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.
The court in Simpson did not set concrete guidelines concerning investigative detentions,
leaving it to be resolved on a case-by-case basis.
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
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.)
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.
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.
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.
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
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
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
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
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
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
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
- 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
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
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).
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
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
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.
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.
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.
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
- 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
- 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.
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
- 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
- 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.
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.
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
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
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).
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
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
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
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).
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
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.
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.
By the time this case reached the SCC, Parliament had already amended s.105 to include
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
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.).
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).
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.
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)?
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
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.
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
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
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.
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.
A conversation w\an informer does not amount to a search & seizure. Surreptitious
electronic interception & recording or private communication does (unless all parties
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
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.
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?
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”.
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.
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.
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
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?
Occupants of a residence have a reasonable expectation of privacy in the approach to their
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
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
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
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
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!
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
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
vi) The existence of a subjective expectation of privacy; and
vii) The objective reasonableness of the expectation.
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
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.
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
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?
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.
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 &
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
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)?
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
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.
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.
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
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?
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
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).
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.
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?
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.
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
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
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!
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
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.
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) &
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):
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
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.
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
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);
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.
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
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
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.
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.
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
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:
1. Compelling - was the information predicting the commission of a criminal offence
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.
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
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.
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,
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
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.
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.
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.
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).
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.
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.
Evidence supports the officer making an arrest & searching the accused’s mouth for
evidence (specific information received).
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.
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.
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
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
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;
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?
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.
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.)
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).
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
- 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
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.
The search was not consensual.
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.
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).
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:
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
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
Decision: Appeal allowed – acquittal restored.
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
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.
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).
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
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
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
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
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.
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
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.
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.
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?
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).
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.
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
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
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.
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).
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
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
S.497(1) officer shall release person as soon as possible w\summons or appearance
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).
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
- 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.
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.
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).
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
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;
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
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).
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
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.
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
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
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.
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.
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
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.
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.
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
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 &
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
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
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
Decision: Appeal allowed – acquittal entered.
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.
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
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)?
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
legal advice exists in the jurisdiction & how they can be accessed (i.e. apprised of 1-800
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.
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
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).
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.
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?
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
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)
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”?
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.
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
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.
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.
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.
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.
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
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.
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
• Appraise the individual of the change in the reasons for his or her arrest or
• To again advise the individual of his or her right to counsel.
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,
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
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
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
Issue: What is the standard to waive the right to counsel?
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.
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.
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.
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.
Court overturned trial judge’s decision excluding statements made to the police by the
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
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
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).
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
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.
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
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
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
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
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
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
• 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
• 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.
The authorities may not take the benefit of actions of their agent which exceeded his or her
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),
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
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
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.
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
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.
The officer did not have the RPG for believing that the offences had been committed. The
information is invalid & declared a nullity.
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.
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).
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.
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
- An offence alleged to have been committed for the benefit of a “criminal
- 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
- Trafficking, possession for purpose\trafficking of a controlled substance or
w\conspiracy to commit any of these offences (s.515(6)(d));
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
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
- (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
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
Decision: S.515(6) is constitutional.
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.
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.).
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
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
Application of criteria from Pearson – “public safety” component does not violate s.11(e).
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.
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)?
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.
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.
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
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
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 &
Note: S.518 CC -> outlines inquiries to be made by justice and evidence for bail hearings
(evidence to be considered in bail hearing).
Crown Policy Standards
Charge screening is the subject of policy statements by the responsible ministries across the
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.
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).
Pursing a criminal charge where this standard is not satisfied makes a prosecutor vulnerable
to a malicious prosecution claim in tort (Proulx v. Quebec).
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.
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
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
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
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.
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%
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
Statistics Canada attributes the difference (Ontario & Quebec) to the fact that in Quebec,
prosecutors scrutinize police charge and arrest decisions before criminal proceedings are
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
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
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.
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
“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
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.
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.
The principles articulated in this case may apply w\less impact to summary conviction
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
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.
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;
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.
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).
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
Held – Majority (Lamer)
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
It is unnecessary to determine whether production order was warranted in this case. Appeal
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
- 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
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
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)).
S.278.7 judge may order production to accused after considering all 7 factors listed by
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.
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.
The accused’s s.7 rights were violated w\out records could not make full answer &
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);
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
- 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
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
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.
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.
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)).
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
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
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":
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
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
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.
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).
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
- 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:
- 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
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
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.
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.
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
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
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”.
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
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).
Although a third trial stretches the limits of the community’s sense of fair play it does not of
itself exceed them.
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.
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).
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
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.
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.
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
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
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.
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
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
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.
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?
A causal link is also not determinative, where time and intervening events serve to make any
linkage too remote.
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).
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;
2) The Seriousness of the Violation; and
3) Effect on the Reputation of the Administration of Justice in Canada
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
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).
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.
Term used to describe “conscripted” real evidence
Involves a Charter violation whereby the accused is conscripted against himself (usually in the
form of an inculpatory statement) which then leads to the discovery of an item of real
evidence. In other words, the unconstitutionally conscripted statement is the necessary
cause of the discovery of the evidence.
The admission of such evidence will also always count as conscripted and its admission will
render the trial unfair, UNLESS the Crown shows, on a balance of probabilities, that:
1. There is an independent source of the evidence; or
2. The evidence is inevitably discoverable (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).
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).
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”.
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.
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).
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
In determining discoverability (Crown must prove for derivative evidence), the alternative
means to obtain the evidence must comply w\the Charter.
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
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
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
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.
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.
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.
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.
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;
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.
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.))
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
• 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
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
• 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;
• 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
• Note Legal aid delays are not attributed to the accused but to institutional
• 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
Although there is no mathematical formula, the Court does set down “guidelines” for
• 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,
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
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
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
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
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
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
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.
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
Counsel can not report to police someone who enters their offence and confesses to a
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).
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
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
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
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
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.
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.
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
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
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
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
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.
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
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.
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
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
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).
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”
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
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
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
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.
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).
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 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
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.
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
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.
The trial judge has a duty to inquire prior to entering a plea to satisfy himself that the
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
(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.
Process of Trial
Begins w\arraignment of the accused (s.801(1) – for summary convictions; s.?? -
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
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
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
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
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
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
Other Criminal Code Provisions Regulating the Trial
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:
• 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.
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.
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
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
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
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
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?
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.
The D can address why the accused did not testify i.e. no need to, the Crown has not met
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.
Presumption of innocence is inextricably intertwined with proof beyond a reasonable doubt
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.
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
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
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.
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)?
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
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?
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?
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,
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
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.
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?
i. If not, was there an exception for dangerous\urgent circumstances
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
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
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).
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
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)?
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)?
1. Presumption of release of the accused (s.515(1)).
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
b. List of restrictions see s.515(2).
3. Charter Challenging provisions denying bail -> was the denial of bail w\just cause
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.
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
a. Threshold low – logically probative of a fact in issue.
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
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
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
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
Access to Third Party Records
1. Is the accused charged w\an offence listed in s.278.2 (sexual violence or indecency)?
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 =
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.
ii. Prosecutorial misconduct & improper motivation are two of many
factors to be considered – the absence of either is not determinative
iii. Example 3 trial attempts stretches the limit (i.e. 4 should be too
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:
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
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
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?
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
Questions for Prof
Paste in unanswered questions from Mann.