CRIMINAL PROCEDURE OUTLINE 2003

CRIMINAL PROCEDURE OUTLINE 2003 Part 1: Jurisdiction A. Jurisdiction: Division of Powers   Feds have power to prosecute all crim offences, but by custom have allowed Provs to prosecute most of them Feds still prosecute Tax, Customs, CDSA, Immigration s. 91: POGG - residual fed gov‘t powers s. 91(27): Fed gov‘t criminal law power (substance/components of crime, procedure, EXCEPT for const‘n of courts of criminal jurisdiction which is reserved to Provs) s. 92(6): Prov pwr re: establishment, maintenance and mgmt of public & reformatory prisons in and for the prov s. 92(13): Property and Civil Rights s. 92(14): Provs power to administer justice re: the continuation, maintenance, and organization of prov courts, both of civil & crime jurisdiction; incl procedure civil matters in those courts s. 92(15): imposition of punishment by fine, penalty or imprisonment for enforcing any law of the Prov Prosecutor = AG or any person who institutes procedures (i.e., swears the info) R. v. Hauser (1979) (SCC) - dealt w/ power to prosecute old Narcotic Control Act offences - provs felt that they should be able to prosecute it under Admin of Jus head (s. 92(14)) - Held: NCA enacted pursuant to fed POGG residual power not s. 91(27) - provs had no jurisdiction - left open whether provs had power to prosecute anything enacted by feds under s. 91(27) - as provs had power to administer justice under s. 92(14) Answer came in Wetmore: R. v. Wetmore (1983) (SCC) Held: whether crim legislation or not (Food and Drugs Act) feds could authorize or define who would prosecute  prosecution is matter of crim pro reserved to Feds by s. 91(27) carrying w/ it the responsibility for administering any scheme enacted under that head  whether crim leg‘n or not, feds power to authorize or define who would prosecute prosecution is a matter of crim pro reserved to feds by s. 91(27)  legislative body that has power to enact substantive law must have power to enforce it otherwise provs could negative fed leg‘n by failing to enforce it B. Jurisdiction: Classification of Offences 1. Three types of offences: a) Summary Conviction [s. 785]:  max penalty 6 mos imprisonment / $2000 fine - unless otherwise provided [s. 787(1)]  trial before prov court judge w/o jury and w/o prelim    information is charging document; accused called defendant limitation of prosecution to w/in six months after act; section of Code will say if it is summary conviction offence typically ―less serious‖ 6 Possible Summary Conviction Offences Punishable by up to 18 mos imprisonment: i) Uttering death threats to cause death or bodily harm (s. 264(1)(a)) ii) Assault w/ a weapon (s. 267 (a)) iii) Assault causing bodily harm (s. 267(b)) iv) Unlawfully causing bodily harm (s. 269) v) Sexual assault (s. 271) vi) forcible confinement (s. 279(2)) b) Indictable Offences:  ACCUSED IN POSITION OF POWER I) Exclusive Jurisdiction Offences [s. 469 - e.g., murder]: must be tried in Superior court in front of judge and jury after prelim is held II) Absolute Jurisdiction Offences [s. 553 - e.g. mischief under]: must be tried in Ont. court of Justice (Prov Div) w/o jury and w/o prelim; II) Electable Indictables [the rest of the indictables]: Accused can elect (s. 536): i). Trial in Ont. Ct. Jus. w/ no jury and no preliminary inquiry ii). Trial in Sup. Ct. w/ prelim and no jury iii). Trial in Sup. Ct. w/ prelim and w/ judge and jury c) Hybrid Offences:  CROWN IN POSITION OF POWER  e.g. assault causing bodily harm (s. 267)  Crown can elect to proceed by way of summarily or by way of indictment (this decision is not reviewable, short of bad faith - Smythe) : usually depends on seriousness of offence (e.g. SA if rape, indictment; if ―touching‖, summary)  This affects: o penalties: lesser for summary conviction o accused election: indictment may allow accused to elect type of trial (unless s. 553) o limitations: 6 mo time limit for summary conviction; no limitation for indictables  all hybrid offences deemed indictable until Crown elects  max penalty for several hybrid offences increased to 18 mos when proceeded by way of summary conviction (See above) C. Jurisdiction: Time Limitations 1. General Before Charter  there were very few time limits  s. 786(2): summary conviction offences tried w/in 6 mos after date of alleged offence (unless prosecutor and defendant otherwise agree)  indictables: no limitations except for treason - w/in 3 yrs of alleged offence (s. 48(1))  prov‘l offences: statutorily set out unless continuing offence Continuing offence: e.g., begins when you steal car and continues while you still have it (Bell): Conjunction of two elements of offense continues Bell (1983 SCC) an offense where the conjunction of the actus reus + mens rea does not terminate the offense - the accused remains in a state of criminality 2. Charter s. 11(b): Trial Within a Reasonable Time a) Remedy for unreasonable delay: Stay of Proceedings (Rahey) b) Unless or until there is a charge, s. 11(b) clock doesn‘t begin to run (Kalanj) c) s. 11(b) challenge available for all public offences involving punitive sanctions d) s. 11(b) does not apply to delays from appeals from conviction or acquittal (Potvin) e) Askov was aggressive interpretation of s. 11(b); Court backed-off in Morin 3. Askov/Morin Test for “Unreasonable Delay”: Askov: F: Extortion and weapons charges against four accused had taken almost three years to come to trial. A stay was granted. CA overturned stay. Morin: F: Accused charged with impaired driving. 14 ½ month delay in coming to trial requested at ―earliest possible date‖. I) Overarching Principles (refined by Morin – a more discretionary approach): a) Crown doesn‘t have onus to show delay was caused by accused; that institutional delay was justified, that there was no prejudice, or that the accused has waived his s. 11(b) right: Onus on accused throughout (burden: BOP, as in all Charter cases - Collins); b) Change: The more serious the charge, the less likely it will be stayed (remedy for delay) a. NOTE: Who determines this? Subjective!!!! Appears to be based on penalty c) Change: Prejudice to accused is THE key factor: - prejudice may be inferred from length of delay - where not inferred, and no evidence given, the basis for the enforcement of the individual right is undermined (p.25) - inaction on part of accused can be relevant in assessing degree of prejudice - either accused or Crown can lead evidence to prove or dispel prejudice to accused d) Change: emphasizes need for flexibility: Guideline approach softened considerably: Comparative jurisdiction test is much less important II) Factors to consider WRT “unreasonable delay” (i.e., the “Test”): 1. Length of the delay: Is delay of sufficient length to raise an issue as to its reasonableness? i) Measure from date information sworn/indictment preferred (ie ―charge‖) to end of trial ii) If delay unexceptional (see guidelines): no reason for inquiry & no explanation for delay is called for unless applicant is able raise reasonableness based on other factors (e.g. prejudice) iii) Guidelines: 6-8 mos systemic delay between committal and trial not unreasonable for indictable in Askov; 8-10 mos systemic delay not unreasonable in provincial courts a. 14.5 mos delay in Morin lead court to inquire, but based on all factors, not unreasonable b. if applicant in custody: shorter period of delay will raise issue of reasonableness c. Pre-charge delay may have influence on overall decision, but not counted here. d. KEY: Guidelines are NOT RIGID!!! e. Comparisons with other jurisdictions must be made cautiously! 2. Wavier of Time Periods: i) If by agreement/other conduct accused has waived whole or part of his rights to complain of delay: this will either dispose of matter or allow period to be deducted ii) Waiver of 11(b) rights must be clear/unequivocal, with full knowledge of rights procedure was enacted to protect and effect of waiver has on those rights: a. waiver can be implicit or explicit b. if implicit: conduct of accused must meet stringent test for waiver (above) c. if mind of accused or his counsel not turned to issue of waiver and is not aware what that conduct signifies, then this conduct does not constitute waiver [this conduct taken into account in ―actions of the accused,‖ but is not waiver!] d. consent to trial date may give rise to inference of waiver, BUT NOT if mere acquiescence in the inevitable 3. Consider Reasons for delay: i) Inherent time requirements: - more complex case = more preparation = lengthens amount of delay that‘s reasonable [remember to account for cases that have a prelim – adds time] ii) Actions of the accused: if accused takes certain actions (e.g. tactical things like change of venue etc.), then this will likely lengthen amount of delay that‘s reasonable Actions of the Crown: failure or delay in disclosure; adjournments requests etc. will be examined these delays cannot be relied upon by Crown to explain that delay is otherwise reasonable Limits on Institutional Reasons (Systemic Delay issues – most common source): Occurs when parties are ready to go, but there is no courtroom etc. there is a point in time at which the court will no longer tolerate delay based on the plea of inadequate resources  court can‘t merely accede to gov‘t allocation of resources look at guidelines: 6-8 mos systemic delay btw committal and beginning of trial not unreasonable; for prov cts, 8-10 month systemic delay not unreasonable BUT, guidelines not to be applied mechanically comparisons with other similar jurisdictions is only a rough guide! look at: evidence of limitations on resources; strain imposed on resources; opinions of other courts and judges; stats from comparable jurisdictions; expert opinion ALSO, application of guidelines influenced by absence or presence of prejudice: if accused in custody, subject to restrictive bail, or other substantial prejudice, period of acceptable institutional delay may be shortened iii) iv) - 4. Prejudice to the Accused (key factor!) i) Prejudice may be inferred from length of delay BUT ii) If prejudice not inferred: accused must demonstrate prejudice: WHEREBY iii) either party may rely on evidence to show or dispel prejudice a. Accused may show: prejudice by pre-trial incarceration or restrictive bail; ongoing stress or damage to reputation; right to make full answer and defence etc. b. Crown may show: conduct of accused helped delay; accused didn‘t push for early trial; delay benefited accused; NOTE THAT iv) inaction on part of accused may be relevant in assessing prejudice; MOREOVER v) accused must show prejudice in terms of: a. security of person (emotional suffering); or b. liberty rights (incarceration, restrictive bail); or c. right to fair trial (available evidence; right to full answer and defence) vi) THESE ARE WHAT 11b PROTECTS! Policy Question: Does this mean that emotionally vulnerable accused are being favoritized? 4. Post- Morin/Askov - Tough to get stay under 11(b) BECAUSE usually have to show emotional suffering wrt prejudice to accused to get stay 5. Other notes R v. Kalanj (3-2) - Pre-charge delay is not to be included in determining s. 11(b) reasonableness -exceptional cases should be dealt with by reliance on the general rules of law and, where necessary, other sections of the Charter‖ – but not 11b! R v. Potvin (6-3) -Can’t take into account appeal delay -Dissent – p.37: disagrees. McLachlin says that the abuse of process doctrine (under s.7) is a narrow doctrine. R v Pusic -lack of resources is one factor – will have limits. D. Jurisdiction: Territorial Limitations (Change of Venue) 1. Only try cases that for offences committed in Canada (s. 6(2)) Exceptions: conspiracies (s. 465); - TEST: Is there a significant enough nexus between Canada and the crime to confer jurisdiction here? 2. Offences to be tried in province in which they allegedly occurred 1) General rule is: offences committed entirely in one province shall not be tried by tried by courts of another province (s. 478(1)); exception s.476: if committed on boundary of two or more territorial divisions or within 500 metres of any such boundary (ie. the ―Ottawa provision‖) or if offense was began in one jurisdiction and completed within another the Exception is: if accused charged with an offence alleged to have been committed in a different province then where accused is located; accused may, provided offence is not s. 469 indictable (i.e., murder) plead guilty and be sentenced in the province where the accused located. Consent of AG must be obtained. - 3. Offences to be tried in territorial division in which offence allegedly occurred Re Bigelow and R. (1982) Ont CA p. 42 F: -accused and wife separated in Ontario; child abducted by father, and taken to Alberta, H: Ontario court has jurisdiction, because part of offence took place there, and effects of offence were felt there. R: -s. 432(b) of CC argued (see above, now s. 476(b) - Ontario courts would have jurisdiction over this offence if any element of part of it could be said to have been committed in this province - Three categories relevant to this case which illustrate the broad and flexible bases upon which courts have assumed jurisdiction over interprovincial offences: establish: i) Continuity of operation extending from that province to other provinces ii) The commission of an overt act in that province --as grounds for assumption of jurisdiction by that province when those acts are referable to or in furtherance of a criminal plan extending beyond that province --they are demonstrable elements of the offence occurring in that province iii) The generation of effects in that province from acts committed in other provinces -where the act of an accused in one province generates effects in another, courts have applied s. 476(b) to confer jurisdiction on the second prov (*mother felt the effects of the act in Ontario) (Crown need only establish one of these categories on a balance of probabilities) 4. Change of Venue applications (s. 599(1)(a)) i) Court may, on request/application of Crown or Defence permit trial to be held in different territorial division of same province where offence allegedly committed; PROVIDED THAT ii) It appears expedient to the ends of justice; WHEREBY iii) Onus is on the party seeking change to demonstrate that it should be granted; NOTE THAT iv) The test is very broad and relies upon to judicial interpretation to flesh out when change of venue is granted and when it is denied; AND v) The most common ground for application is pre-trial publicity prevent fair and impartial trial. R v Suzack (2000 OCA) - Murder of PO; high-profile case in community - Court denied: claimed history of acc would come out at one point or another (prejudice lay in horrendous crime); also claimed prejudicial media coverage occurred well before trial - exception to rule that trial should take place where offense commited if accused + community‘s interest in a fair trial are severed by a change of venue - onus on applicant (here, accused) not inconsistent with right to fair trial - right to fair trial is compromised where despite safegaurds there is a reasonable likelihood that an accused cannot receive a fair trial pre-trial publicity does not automatically imply this fact - TJ in the best place to decide this! E. Jurisdiction: Charter 1. Section 24(1) 1) Everyone may apply to a ―court of competent jurisdiction‖ to obtain Charter remedy; WHEREBY 2) the key is the meaning given to ―court of competent jurisdiction‖ 2. Court of competent jurisdiction is 1) Trial judge is court of competent jurisdiction for s. 24(1); AND 2) preliminary inquiry judge has no competent jurisdiction for s. s. 24(1) (Mills); NOTE THAT 3) if case is in prov‘l court, superior ct has concurrent jurisdiction to hear Charter arguments; BUT 4) normally they let the lower ct deal with these then if there is an appeal, they will look at the issues (after trial is over).  Mills – if issue is judge, only real likelihood they will intervene. 3. Section 52 1) The constitution is the supreme law of the law of the land; WHEREBY 2) any law inconsistent with constitution (Charter) is of no force and effect; NOTING THAT 3) where a challenge to a law is mounted (as opposed to challenge to conduct), challenger must serve notice on the Crown. Two types of Charter challenges 1. Challenge to Law. Have to establish a breach; etc. a. s.52 declaration (of invalidity) b. s.1 justification (limitation) c. s.33 override. 2. Challenge to Conduct (typically police conduct) a. s.24(1) or (2) remedy. b. NO s.1 justification. Mills - court of competent jurisdiction incl TJ w/ Superior Court having concurrent jurisdiction court must have jurisdiction conferred by the statute governing the offense and persons, along w/ power to make orders sought Hynes – SCC  Preliminary inquiry has no jurisdiction to raise issue of Charter violation – not a court of competent jurisdiction  Role of prelim – is there any evidence with respect to each aspect of the offence – does not weigh the evidence (merely air of reality) R v. Shearing: In this context, third party records of complainants- 3rd parties have charter rights and right to make arguments Part 2: Search & Seizure Steps for Constitutional s. 8 Constitutional Challenge Where applicable, the following questions should be asked: 1. Was there a reasonable expectation of privacy? a. Note: this will usually be the case in criminal cases. 2. Was the search/seizure legal under statute or CL? a. e.g. look at Code req‘s, etc. Search without warrant powers, etc. 3. Was a warrant constitutionally required? a. Unless not feasible/exigent circumstances? 4. Were the HvS standards for a warrant satisfied? a. was the warrant ―sound‖?? 5. Were the constitutional standards for warrantless searches satisfied? a. e.g. mere suspicion or reasonable belief? 6. Was the search conducted in a reasonable manner? a. e.g. too much violence, improper strip search, etc. QUESTION 1: Was there Reasonable Expectation of Privacy to Engage s. 8 Requirements? 1. Value of S.8 is to protect privacy… persons, not just places. Might go beyond this, but goes at LEAST this far (Hunter v Southam p.141) Protect against unjustified searches BEFORE they happen. 2. If no reasonable expectation of privacy, s. 8 requirements not engaged; 3. KEY FOUNDATION: Question has to be phrased in neutral, broad terms. E.g. ―whether people who retire to a hotel room and closed the door have a reasonable expectation of privacy‖ (R v Wong; accepted in Buhay) 4. TEST FOR REASONABLE EXPECTATION OF PRIVACY (flexible) - Edwards a. person claiming reasonable expectation of privacy cannot rely on breach of 3rd party‘s rights to privacy (Edwards – re g/f‘s appartment); b. reasonable expectation of privacy‖ depends on ―totality of the circumstances‖ (ie. context), assessed according to the following factors (Edwards : Gomez Test): a) presence at time of search; b) possession or control of the property in place searched; c) ownership of property or place; d) historical use of the property or item‘ e) the ability to regulate access, including the right to admit or exclude others from the place; f) the existence of a subjective expectation of privacy; g) the objective reasonableness of the expectation; ` c. Will then have to go on to see if search conducted in reasonable manner (below) 5. passenger in vehicle normally has no reasonable expectation of privacy to advance s. 8 claim (Belnavis); driver does b/c they have sufficient control over vehicle 6. Passenger may be able to make s. 8 claim if he/she: a) has relationship w/ owner of vehicle such that she has special access (wife of driver); b) is on long trip w/ driver sharing driving responsibilities; c) makes an assertion that a bag in the vehicle is hers – specific assertion of ownership or possession of property 7. courts have rejected U.S. ―open fields doctrine‖ and people may have reasonable expectation of privacy in: a) hotel room with ―do not disturb‖ sign (Kenny); b) things discarded while in police custody at station (Collins); 8. Reduced standards of s. 8 REP exist in the following situations: a. non-criminal/regulatory investigations (except under Income Tax Act); i. R v. Jarvis (2003, SCC) – re Income Tax. Gives powers to subpoena documents, etc. This case, there was an audit, CCRA claimed tax evasion; decided that once investigation turned to notion of punishment, THEN the HvS standard applies. ii. David Stratas article: once officials are pursuing the predominant purpose of determining penal liability, they have ―crossed the rubicon‖ and full Charter protections apply. b. people at border crossings/airports (Simmons, Monney- bedpan vigil); i. reasonable suspicion enough b/c of national security interests, and resulting reduced level of REP. ii. elevated types of searches (e.g. luggage, strip searches) require reasonable cause though. Charter does still apply! c. School children have reduced REP b/c admin‘s responsibility to provide a safe, orderly environment. 3 departures from the Hunter standard (R v. MMR): (NOTE: p. 183 – assumed that Charter applies to school; and held VP not acting as agent) i. warrant not essential in order to conduct a search of a student by school authority on school property; ii. school must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach [but this is lower than reasonable and probable grounds, or ―credibly based probability‖]; (similar to Caslake?) iii. school authorities in best position to assess information given to them and relate it to situation existing at their school; d. BUT, school search must be conducted reasonably and must be authorized by statutory provision which in itself is reasonable; i. relevant Education Act has to authorize or imply the right of teachers/principals to conduct searches of their students in appropriate circumstances; ii. search must be conducted in reasonable manner: should be conducted in sensitive manner and be minimally intrusive; iii. all surrounding circumstances (including age & gender of student) must be consider to see if reasonable Result: Odd - Admin with more power in schools than police? QUESTION 2: WAS SEARCH LEGAL UNDER CL OR STATUTE? STATUTORY SEARCH AND SEIZURE POWERS 1) An illegal search, not authorized by statute or CL, violates s. 8 (Kokesch); e.g. mere suspicion not enough to embark on perimeter search. 2) Police must be able to (Caslake): i) point to specific statute or CL rule that authorizes the search;  see below section: consent, ancillary powers, etc.  also see general CC requirements for warrant (Gillis, etc) ii) search must be carried out in accordance w/ procedural & standard requirements the law provides; iii) search must not exceed its scope as to its area and as to the items which the law has granted authority to search for; (no fishing expeditions!) 3) “plain view doctrine” only applies to extend an existing lawful power to justify seizing objects in immediate vision and found inadvertently! NOT a ―new police power to search and seize‖ [note that s. 489 is statutory version of ―plain view doctrine‖ wrt search warrant execution] 4) All warrantless searches are prima facie a violation of s.8 onus shifts to Crown to establish/demonstrate the superiority of state‘s interest to that of individual [unfeasable to obtain warrant exception to const warrant req] 5) SCC found section 10 of NCA unconstitutional because it authorized warrantless searches without insisting on exigent circumstances – read in req‘t. – R v. Grant Search & Seizure: Search Powers Under CDSA and Other Acts REMEMBER: IF THERE‘S A SEARCH FOR DRUGS, AND POLICE CAN FIND AUTHORITY UNDER CDSA FOR SEARCH THEY‘LL DO IT (e.g. warrantless search under CDSA in exigent circumstances!) 1. Warranted Search Under CDSA s. 11 1) Justice can issue warrant upon RG authorizing officer to search place for drugs and seize such drugs (and stuff related to drugs) (CDSA s. 11(1)); AND 2) police can search the person of anybody found in the place outlined in warrant issued and seize drugs from them if police have RG to believe that person has drugs on them (CDSA s. 11(5); 3) police can seize just about anything they find in conducting the search pursuant to a warrant  KEY: HvS STANDARDS WILL STILL APPLY! Credibly based probability! 2. Warrantless Search Under CDSA s. 11(7) 1) Officer may exercise any of the powers listed above (warranted search powers) without a warrant (including searching the person!) if the conditions for obtaining a warrant exist (see HUNTER v SOUTHAM STANDARDS); BUT 2) by reason of exigent circumstances it would be impracticable to obtain one. (no def‘n, but LOOK TO POST FEENEY) (529-529.3) 3. Use of Force in Searching Under CDSA (s. 12) 1) For purpose of exercising search powers, officer may; a) enlist others if he feels necessary; b) use as much force as is necessary in the circumstances  Note: See Cases under Buhay – battering ram not ok, when no reason to use it. 4. Telewarrants and CDSA 1) Can get warrant under CDSA by way of telewarrant procedure under CC (s. 487.1) 5. Search Powers Under Other Acts 1) Many other federal and prov‘l statutes contain powers of search w/out a warrant [e.g. Customs Act, Excise Act, Food and Drugs Act etc.] 2) Police will use the powers of search w/ or w/out a warrant and search will be lawful [but still open to constitutional challenge under s. 8 if law found to be unreasonable] 3) there are hundreds of search powers under various prov‘l statutes that include wide powers of stop, inspection and seizure [e.g. Highway Traffic Act, Liquor Act] 6. Writs of Assistance 1) Use to have these writs that were like ―walking search warrants‖ issued to certain officers to enforce certain acts [e.g. old NCA]; (were only supposed to be used in situations of urgency) 2) allowed certain officers with writ wide powers to search w/out on suspicion of drugs; 3) declared to be unconstitutional in Noble (1984 – are essentially warrantless, so contravenes charter where feasible to get warrant – won‘t read in req‘t) 4) largely replaced by ―telewarrant‖ procedure in s. 487 (but need RG and sworn before chief prov‘l court judge to get telewarrant - also MUST BE impracticable to get warrant) Search & Seizure: Criminal Code S&S Powers 1. Without a Warrant CC only allows for warrantless searches for certain offences: Weapons [ss. 117.]; Common Gaming House [s. 199(2)]; Impaired Driving [s. 254(2) - (4)]; Suspected stolen Timber [s. 339(3)]; Cockpits [s. 447(2)]; Counterfeit money [s. 462]. 2. Warranted search - Search of Body under Criminal Code (NOTE: If search of a vehicle, also consider later section on STOP AND SEARCH POWERS!) 1) Only two special powers to search body under CC: i) s. 256: warrant for blood sample where person is reasonably believed to have caused bodily harm through impaired driving and is unable to consent to taking of sample ii) s. 487.04 - .09: Prov‘l Ct Judges (not JP‘s!) can issue warrants to obtain bodily substances for DNA analysis for certain listed offences: murder, assault, sex assault, robbery, kidnapping, arson [can only obtain DNA by certain methods: listed in s. 487.05) Limited intrusiveness! 2) General search warrant (s. 487) doesn’t permit search of body (Laporte) LaPorte v. Laganiere (1972 Que Q.B)  arrested for something else, but were suspected of robbery; believed bullet from police shootout was still inside him; got search warrant to surgically remove it; challenge  Considers American authority – which seems to allow some samples with a warrant o But simple procedures like taking blood are different than surgery!  Analyzes language: body is not a building, receptacle or place. Can‘t be interpreted as such. Words much plainer than these would be necessary to show that parliament intended to authorize the search of the body 3. General Warranted Search Power in Criminal Code (s. 487) i) JP/Prov‘l Ct Judge may issue warrant authorizing officer to search for and seize stuff named in warrant; IF ii) he is satisfied by information on oath that such an officer has RG to believe that there is in a building, receptacle or place: a. anything on or in respect of which any CC offence (or other offence) has been or has suspected to have been commited; b. anything that there are RG to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, c. anything that there are RG to believe is intended to be used for purpose of committing an offence against the person for which a person may be arrested w/out a warrant or (c.1) any offence related property. 4. Telewarrants (s. 487.1) i) If an officer believes that indictable offence has been committed and it would be impracticable to appear personally before JP; ii) officer can submit an information on oath by phone to get authorization from chief judge of provincial court having jurisdiction over the matter. 5. Warrant to be executed by day (s. 488) i) Warrant issued under 487 or 487.1 to be executed by day; UNLESS ii) justice satisfied that there are RG for it to be executed by night; OR iii) the RG are included in the information; OR iv) warrant authorizes that it may be executed by night. 6. Seizure of things not in warrant by person who executes the warrant (s. 489(1)) [statutory plain view!! Can‘t be colorable reasons though!!!] i) Every person who executes warrant may seize, in addition to things mentioned in warrant any thing that the person believes on RG‘s has: a) been obtained by commission of an offence; OR b) has been used in the commission of an offence; OR c) will afford evidence in respect of an offence ii) Note: any officer who is lawfully present at place pursuant to warrant or merely by officer in execution of his duties (s.489(2)) has the same powers 7. Duty to produce warrant (CC s.29) Everyone who executes warrant must have it with him; AND where feasible to do so, produce when requested to do so Three Broad Requirements for Valid Criminal Code s. 487 Search Warrant – Key: Gillis (if any of these 3 requirements not met, warrant is not valid and search is illegal!) 1) Informant must present justice w/ an information upon oath that provides justice w/ sufficient factual details to confer jurisdiction (so judge can act judicially by assessing existence of RG): a) need sufficient detail to prevent ―fishing expeditions‖ (Gillis) -p.74: ―duty of informant to reveal his reasonable grounds will vary depending on the particular circumstances set out in the information‖ -p.76 ―the objects or documents sought… must be described with sufficient precision‖ b) always context-driven: amount of details depends on type of charge i) not much specificity need for complex fraud (Scientology) or obscene books; ii) more detail needed for videotape/photograph seizure from news media (Hosie; iii) appeal court may look at other stuff ex post facto (e.g. new evidence) to see if there was proper basis for issuing warrant (Araujo – amplification); c) if relying on confidential source/informant: have to say why the source is reliable Debot: was the information compelling; was the source credible/reliable; was the information corroborated prior to decision to search  may have to reveal name (see below) 2) Justice must act judicially in his independent assessment of the facts in exercising his discretion of whether to issue the warrant a) JP must independently assess facts and exercise discretion b) bring thought and discretion to bear on decision c) Valente – JP‘s are independent and impartial! d) Universal Spa Ltee v Valois (Que CA) – allowing part time municipal court judges to also practice law or run businesses as well as try provincial and municipal cases did not impeach their partiality/independence. 3) Warrant itself must contain sufficient description of the objects of the search in relation to category and offence a) need particularity - no basket clauses! (e.g. ―and any other obscene material‖) b) context driven! c) difference between first: that is re. sufficient factual details to show production of articles will be relevant to issue; this part, objects have to be described with sufficient precision. (R v Johnson –context is crucial –don‘t need to list 10,000 titles!) OTHER CONSIDERATIONS - Gillis – (searched business re. fraud) illegally seized property must be returned o p.79 – unless C establishes items are required in a current investigation. o Crown can obtain a successive warrant, properly drafted and re-seize. IF SEEMS UNLAWFUL - Johnson – severability can be applied to sever ―bad parts‖ from good - Araujo – reviewing judge can cite ―minor, technical‖ drafting errors/omissions made in good faith to uphold warrant if can show that PO went beyond docs and explained to JP o If lied on material point  clearly invalid under s.8 Disclosure of Warrant and Information  Person searched has right to disclosure of warrant and information (MacIntyre)  if the name of police informant is placed in warrant, person searched probably gets access to that name (Hunter) - but may only get access to this if name of informant necessary to establish accused‘s innocence (Leipert); (note; Leipert – name was in separate doc; Hunter was in info) o Hunter: TJ can review with object of deleting all references to informant; if at conclusion of editing, Crown thinks ID will still be revealed, can decide not to use, and proceed as if warrantless search  third parties (e.g. media) only get access to information and warrant if there‘s shit found as a result of search pursuant to warrant (MacIntyre ; s. 487.2(1) struck down in Cdn. Newspapers)  s.487.3 – ability to seal warrants. Search & Seizure: Common Law Powers Three types of CL Search Powers of Police: 1) Search Incident to arrest; 2) Consent Search; 3) Ancillary Power to Search (Incidental to Duties of Officer if Reasonably Necessary) 1. Incident to Arrest (most often used) – Caslake, Stillman are recent leading cases  Police can search as incident to LAWFUL arrest (Stillman confirms) o Search can take place prior to actual arrest (Debot).  Searching two weeks before is not incidental though! (Tomaso)  Delay and distance are factors to consider –no firm guidelines. Delays do not necessarily mean automatic unlawfulness, but may cause a court to infer that search is not sufficiently connected with arrest (Caslake). Reasonable explanation can rebut!! Need reasonable grounds for arrest under CC s.450 FIRST though (Debot, in Tomaso) o Brezack: need RG before search. (RG that he had drugs, that they were in mouth; they were in car instead – ok, as had RG before)  Police cannot rely on fact that, ex post facto, an objectively legitimate purpose existed for search when that was not the reason for which they searched (Caslake);  Once have reasonable and probable grounds for arrest, police have automatic right to search provided: (Cloutier v Langlois – foundational case) o 1) Officer uses discretion – not automatic search power. Can decide search/not search o 2) Search is conducted for a VALID PURPOSE in pursuit of criminal justice.  KEY - Officer safety (ie. presence of weapons) is one  KEY - preserving evidence, discovering evidence. IE. HAS TO BE connected to purpose of arrest!!!! – Caslake – searching trunk for inventory is not!  Even though was arrested for marijuana possession, the search of the trunk was under the pretense of INVENTORY  Officer must have subjectively turned his mind to valid purpose at time search carried out (subjective) and there must be reasonable basis for this belief (objective) (Caslake) –p.107  THRESHOLD IS ―SOME REASONABLE BASIS‖. Don‘t need R & P grounds –e.g. if reasonable to think suspect is armed, search is ok.  Lim – more than just evidence which might be destroyed.  Lower courts have allowed searches of vehicle driven by accused in immediate vicinity of arrest (Speid) and to searches not limited by necessity (Smellie)  Cloutier and Langoise - re privacy – this power arises out of a need for PO‘s to gain control of things or information which outweighs individual‘s interest in privacy. o 3) Search is not abusive – ie. manner must be reasonable (Stillman)  essentially, a ―frisk search‖ – Cloutier v Langlois  Abusive examples: non consensual taking of hair, buccal swabs and dental impressions (Stillman) – re. expectation of privacy – re. tossed out swab.  Also: routine strip searches (Flintoff) and other bodily intrusive searches (Laporte)  SEE BELOW SECTION ON ABUSIVE SEARCHES   Note: different concerns arise in context of cars (Caslake) vs body (Stillman). Invasive nature of body searches demands higher standards of justification o (note – tissue – can‘t say abandoned property in context of detention) o BUT - Ont. C.A. has held that arrest for outstanding tickets did not authorize search of car trunk (Belvenais) Has to be connected to reason for arrest!!! 2. Consent Searches  True consent is an effective legal authorization  but must be valid and meaningful o Have to consider realities of police/citizen contact; can‘t assume consent exists due to coercive relationship (Dedman – roadcheck case). In absence of clear indications person is free not to comply, compliance cannot be seen as voluntary.  It is in the public interest that people comply with police officers orders. o Must be given by person who is (or whose place is) to be searched (Kenny - ?) o person consenting must be possessed of sufficient foundation of information to truly relinquish their constitutional s. 8 right (Nielson, Borden – p.113-4), in that: i) waiver must real and voluntary; ii) searched person must be aware of right against unreasonable search & seizure; iii) searched person must be aware of consequences of waiver; ―clear + unequivocal… with full knowledge of the rights: see R v Borden  has to be clear to person at time that he‘s free NOT to comply s. 8 has no clear informational component (police may not have to inform), but suggests it may be implicit!!! Otherwise may conclude person unaware! Consent for one investigation does not give free reign WRT other investigations o Can‘t say ―investigationS‖ – can‘t trick into consent  need information of what you‘re consenting to! (Borden – consented to sample, PO‘s had arrested on warrant for second, and only told him he was a possible suspect in first; used DNA for first instead) o BUT: no violation of s.8 where DNA evidence collected validly from accused on consent is subsequently used as evidence an unrelated offense, years later (Arp) o Arp v Borden – seems to be a bad faith distinction possibly. Answering door for police is not consent to search your house any evidence gained thereof (smell drugs to substantiate issuance of warrant) exceeds implied invitation which is simply to permit conventional communication (violation of s.8 non-consentual search) (Evans)   3. Ancillary Powers Doctrine: 1) Courts will find ex post facto power of police to search and/or otherwise interfere with liberty in rare cases, even where no CL or statute power exists; Dedman/Waterfield Test – applied to police action 1. Police is acting within scope of their duties – see p262 a. Duty to enforce CC, HTA, etc b. Duty to preserve the peace, prevent crime, protect life/property c. Other specific duties outlined in police act. 2. Interference w/liberty must be necessary for carrying out duty and it must be reasonable, having regard to: (ie. was it ―justifiable‖?) a. 1) the nature of the liberty interfered with and b. 2) extent of interference with individual liberty necessitated c. 3) the importance of the public purpose served by the interference. i. E.g. Deterring drunk driving (Dedman); investigating 911 calls (Godoy) d. 4) nature and extent of the actual interference e. IE – Balancing process! Dedman: the right to circulate in a motor vehicle on the public highway is a ―liberty‖, although a licensed activity that is subject to regulation and control for the protection of life and property f. Godoy, Simpson = justifiable. –p.263. 3. Note: Inconsistent Application of Doctrine - ancillary powers doctrine was not even considered by court in Stillman a. the Ont. C.A. has held that APD allows for brief ―investigatory detention‖ and limited frisk power on ―articulable case‖ (Simpson); b. SCC did not consider APD to authorize: a) search powers for a weapons seizure warrant (Colet); b) warrantless perimeter search (Kokesch); c)seizure of bodily samples for DNA testing (Stillman); d)warrantless entry into trailer to investigate murder (Feeney)  Thus, perhaps since it‘s so broad and provides potential for a lot of power, courts have used it as a ―last resort‖ to ―do the right thing‖, in relatively minor offences. Won‘t necessarily authorize HUGE intrusions into rights.  Key is balance: nature of liberty interfered with and importance of public purpose. If very strong liberty concerns, would need a very high standard  Feeney, etc – courts don‘t want to abrogate from importance of warrants.  Kokesch – importance of privacy rights in non emergency situations (Godoy) QUESTION 3: WAS A WARRANT CONSTITUTIONALLY REQUIRED? Search & Seizure: Constitutional Minimums Setup: R v Rao : Although search warrants will not ALWAYS be required, the ―search of an office without a warrant where the obtaining of a warrant is NOT impracticable is unreasonable‖ All Warrantless Searches are prima facie Unreasonable and Onus Shifts to Crown to Justify a Warrantless Search! BASIC HUNTER V. SOUTHAM STANDARDS 1. warrants are not necessarily absolutely required. BUT, where feasible to obtain authorization, you must do so. 2. person giving authorization need not be a judge, but must be at minimum a person capable of acting judicially! 3. Basis of authorization: Credibly based probability, replacing suspicion, that there is evidence to be found. 4. note: broad, purposeful approach to Charter – Charter can be interpreted to constrain gov‘t, but never authorize gov‘t action. Constitutional Warrant Requirement i) Regardless of what law authorizing search says, s. 8 does not ABSOLUTELY require a warrant, but DOES require a warrant for a search where it was feasible to obtain in the circumstances (HvS); a. ―feasibility‖ means ―practicality‖ in that: i. not impracticable or impede effective law enforcement to obtain a warrant to search a fixed location - even if NCA permitted warrantless search (Rao/Noble); OR ii. not impracticable to obtain warrant for impounded car; but not likely iii. R v Rao – if vehicle that could move away rapidly, not likely. ii) there is no general “exigent circumstances” exception to warrant requirement -as this is considered only under s. 24(2) (Silvera); iii) there are no blanket exceptions to this requirement - even for vehicle searches (IDD); iv) Ont. C.A. has been loathe to accept a warrant requirement for vehicle searches (Annett?); v) The Court has been inconsistent in asserting warrant requirement for body searches: a) no warrant needed to get fingerprints (Beare?); b) warrant required where police seized medical sample (Dersch?); c) warrant required where police commandeered samples from Coroner (Colarusso?); vi) CL search incident to arrest doesn‘t permit non-consensual seizure of samples (Collins); vii) General search warrant (s. 487) doesn‘t allow seizure of bodily samples; DNA warrant power (s. 487.05) is only for certain offences QUESTION 4: WAS THE WARRANT VALID? Constitutional Minimum Standards Any legal defect in a warrant will violate s. 8 and shift inquiry to s. 24(2) possible exclusion; TEST IN HUNTER V SOUTHAM (HvS): 1. Warrant is required where it is feasible 2. Person giving authorization need not be a judge, but must be at minimum a person capable of acting judicially! 3. Basis of authorization: Credibly based probability, replacing suspicion, that there is evidence to be found. 1. See question 3 (re. feasibility) 2. must be impartial review by detached neutral person capable of acting judicially: a. if there is a reasonable apprehension of bias, then not neutral; b. Provision authorizing unreviewable power would clearly be inconsistent w/s.8 (HvS) c. JP can‘t give advice on unexecuted draft information (Gray) 3. Officer has to have RPG/reasonable grounds, established upon oath, to believe that an offence has been committed and that there is (or may be) evidence to be found at the place of the search (Baron): - this is the minimum standard for allowing warrants of search/seizure!! a. can‘t be on mere suspicion; AND b. information should contain sufficient facts for issuer to judicially assess RGs and warrant should contain sufficient particularity of things to be searched for/ seized; c. BUT‖ warrant is still lawful and constitutional even if partly based on prior warrantless search violating s. 8 if there was otherwise sufficient info to obtain valid warrant (Grant);  State’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibility based probability replaces suspicion (H v S p.146) compare with facts of HvS. 4. NOTE: Stuart says he‘s never seen an unreasonable search saved under s.1! Can‘t be a reasonable limit if it‘s unreasonable! QUESTION 5: WERE THE CONSTITUTIONAL STANDARDS FOR A WARRANTLESS SEARCH MET? (Onus on Crown) 1. Warrantless searches are prima facie unreasonable, and onus shifts to Crown to demonstrate that warrantless search was reasonable on BOP‘s (Collins) 2. TEST: A search will be ―reasonable‖ if (Collins) a. 1) Authorized by law b. 2) The law itself is reasonable i. ie if law doesn‘t require reasonable grounds, its unreasonable (R D(ID) p.158). HvS, says RPG‘s? p.146 – if D(ID) says warrantless can‘t be lower. ii. Noble: Law authorizing writs of assistance is unreasonable – reasonable belief that a narcotic may be found isn‘t enough, where no circumstances exist that would make getting a W impracticable. Wouldn‘t read into legislation a limitation confining it to situations were W not feasible. c. 3) The manner in which the search was carried out was reasonable. 3. The minimum requirement for a warrantless search is that there was REASONABLE GROUNDS (or RPG) to believe that the search would yield evidence a. Also have to then consider particular forms of authorization (APD, etc) b. NOT suspicion alone! E.g. police can‘t search based on having info that accused might have been in drug trade and having dealt with the accused before (Stevens); 4. Reasonable grounds can be based on info supplied by an informer (see above Debot!) 5. police can‘t knock on your door and sniff to get RGs for warrant when they have mere suspicion (Evans); AND 6. may be brief ―frisk‖ power if stop person for questioning on ―articulable cause‖ (Simpson) 7. EXAMPLE: Kokesch – warrantless perimeter search invalid (used it to get RPG for warrant) a. could have argued the ancillary powers doctrine as grounding the search in the common law BUT the officers were working on a hunch, therefore they had no reasonable and probable grounds to search, i.e they lacked reasonable and probable grounds to obtain a search warrant and the standard for warrantless searches is the same as that of a warranted search b. there was no reason why they couldn‘t have gotten a warrant, there were no exigent circumstances, only a lack of reasonable and probable grounds 9. D(ID) – p.158 – no req‘t of reasonable grounds  didn‘t meet HvS standards QUESTION 6: WAS THE SEARCH CONDUCTED IN A REASONABLE MANNER? Even if a search is authorized by law and/or the law is reasonable; if the search is conducted in an unreasonable manner, it will violate s. 8 (Collins);      the reason/purpose for the search must relate to the manner of the search; the nature of the belief of the officer will help determine whether the manner of search was reasonable (Collins); Crown has onus to present evidence that belief existed and was reasonable. the degree of the intrusion must be reasonable (or even ―minimally intrusive‖ - MMR); ore more intrusive the search, the higher the standard of justification. the following manner of searches have been held to violate s. 8: a) throat-hold on woman based on info that there are people in a bar who have drugs on them (Collins) – didn‘t establish RG:  b) rectal exam after arrested for outstanding traffic tickets (Greffe); c) non-consensual taking of hair samples (Stillman); Searches incident to arrest and strip searches – Golden o ―Strip search‖ : removal or rearrangement of clothing to allow a visual inspection of private parts or undergarments; does not include more intrusive body cavity searches o ―pat down‖/frisk: less intrusive than a strip search; does not require removal of clothes lower standard of justification o TEST/Requirements for strip searches– Onus on police to justify!  In order to search incidental to arrest, arrest must be lawful (ie. based on reasonable grounds, as per above)  Strip search must be related to reasons for the arrest itself  strip search must be truly incident to arrest cannot be carried out as a matter of routine policy, or as a ―punishment‖  search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of a weapon (only justification for field search) or evidence related to grounds for arrest.  Min Constitutional Standards  requires establishing of reasonable + probable grounds for strip search in addition to the RPG for arrest – HIGH – p.164  mere possibility that person may be concealing evidence or weapons upon his person is NOT sufficient to justify strip search  stronger language (RPG vs RG) than used in Collins b/c throat search is not as evasive as strip search  Manner Strip Search Conducted s.8 = Reasonable  search must not be conducted in an abusive fashion so as to show considerable disregard for the accused dignity + physical integrity  KEY: strip searches should generally be conducted @ police station unless field search is necessary + urgent  ONLY ACCEPTABLE EXIGENT CIRCUMSTANCES ARE if there is a demonstrated necessity and urgency to search for weapons/objects that threaten parties safety evidence will not be lost if wait until get to station . o List a number of questions to ask/considerations in order to make a strip search reasonable (s.8): Can it be done at station? Can it be done in healthy way? Will it be authorized by the supervisor officer? Same gender? Min number of police involved; Minimal force; Should be conducted in a private area; Quickly as possible; Only visible inspection – no contact; If object seen, option to remove given to person; Proper records must be kept re. reasons/manner. E. Search & Seizure: Wiretapping 1. Permission to Intercept Private Communications 1) Police can intercept private communications; IF: a) get prior judicial authorization from a prov‘l ct judge or other judge (s. 184.2); OR b) have consent of one of the parties [informant or undercover officer] and there are reasonable grounds to fear the risk of bodily harm (s. 184.1); OR c) there are exceptional circumstances where an authorization ―could not, with reasonable diligence, be obtained‖ (s. 184.4); BUT 2) it is not clear that these sections (including s. 487.01 below) are constitutional, given the following: a) interception of private communications by state w/out prior judicial authorization, even with one party‘s consent, is an unreasonable search and seizure and violates s. 8 (Duarte had videotaped undercover operation in informer‘s apartment )  Gave police too much unfettered discretion to invade privacy  Applied HvS 2. Techniques for Interception 1) General search warrant power allows prov‘l ct judges and other judges to authorize (s. 487.01: a) use of any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search and seizure in respect of a persons property; SPECIFICALLY, 2) authorization can be given for television surveillance (s. 487.01(4)) - gets rid of Wong; 3) justice can issue warrant for tracking device (s. 482.1) (removes R v Wise) 4) justice can issue warrant to install telephone number recorder (s. 492.2) 3. Getting Prior Judicial Authorization 1) Can get authorization under CC s.186 where:  it would be in the best interests of the admin of justice to do so  other investigative procedures have tried and failed;  other investigative procedures are unlikely to succeed [ie. no reasonable practical alternative to interception – ―last resort‖ language too restrictive - Araujo];  given the urgency of the situation, it would be impractical to use other techniques.  NOTE: cannot get post-facto judicial authorization, even if consented in first place. Violates s.8! (Duarte) o Implication: more difficult for police officers – safety issues!  Have to name specific people (R v. Welsh and Iannuzzi), or include ―basket clause‖ authorizing unknown persons at designated premises (R v Chesson – p.215)  Must state particulars of the offence being investigated (s.185(1)(c)) 4. No Reasonable Expectation of Privacy in Communications 1) No reasonable expectation of privacy in following communications: a) prayer to God in police interview room (Davie); b) speech to 75 invited guests (Boivin); c) yelling something out d) cellphone conversations –unless you use a scrambling device – R v Soloman e) interceptions obtained by means of surreptitious entry into residential premises, which were not specifically mentioned on the face of the authorization – R v Thompson NOTE: s.187 provides that all documents relating to application for authorization are confidential, and sealed after determination. See p.216 text. -accused must show prima facie evidence of misconduct before an order to open could be granted -however, some authorities have seen this as falling under answer/defence rights. As per R v Dersch 5. Anti-Gang and Terrorism Legislation 1) Only need three people to be a ―gang‖; AND 2) once police have ―gang‖ on their hands, they have wider powers of surveillance [e.g., don‘t need to exhaust other methods in order to get prior authorization]. Political context – motorcycle gang wars in Quebec -gang legislation rushed through parliament. -in respect of electronic surveillance, definition of ―organized crime‖ was very vague. -also created new offenses -new electronic surveillance provisions – basically, took the old ones (as per Araujo) and removed the safeguards. Judicial authorization doesn‘t need to consider other alternatives. -but note: no evidence of problems getting authorization in old rules! Terrorism legislation -also rushed through parliament -included extensive powers of electronic surveillance – without using Araujo test.(no reasonable practical alternative) -official secrets act is abolished, replaced by something else. -e.g. now CSIS can get direct authorization from DND. This is also unreviewable. Part 3: Charging & Compelling Attendance at Trial A. Charging & Compelling Attendance: Powers of Any Individual 1. Preventive Action by Anyone 1. Anyone can use as much as is ―reasonably necessary‖ to prevent crime (s. 27); 2. Anyone can interfere and detain to prevent a breach of the peace if: i) purpose is to give person into custody of police; ii) no more force than is reasonably necessary is used OR the force used is reasonably proportioned to the danger of the breach 2. Information Before a Justice: Summons or Arrest Warrant 1. Any person (usually the police) who has RGs to believe that a person has committed an indictable offence can attempt to initiate a prosecution by laying an information before a justice [s. 504] (has to be written and sworn aloud); a. R v Pilcher – subordinate officer with no information of case can‘t lay info! Doesn‘t need to know all evidence, but at least enough to establish RPG 2. If justice, in acting judicially and considering the circumstances, feels case is made out to compel accused to answer the charge [s. 507(1)] (Jeffrey): a. may issue a summons to the accused; OR b. may issue an arrest warrant (if accused is danger to public); 3. One cannot swear an information against unknown person - no fishing expeditions. A JP‘s role is judicial, not investigatory – need at least a sufficient description (Buchbinder); 4. In the case of most offences, process usually initiated by police utilizing their wide arrest powers whereby officer lays information (charging document) after accused is arrested 3. Arrest Without a Warrant by Any Person (s. 494(1) 1. Anyone may arrest without warrant a. person he finds committing an indictable offence; b. person he believes (on RGs) has committed a criminal offence and is escaping from and freshly pursued by persons who have lawful authority to arrest that person;‘ c. THUS: can‘t arrest person if they‘re doing something minor, unless they‘re being chased by the cops. 2. anyone other than an officer who arrests w/out warrant shall give them to the cops 3. hybrid offences are treated as indictable before Crown elects (s. 34(1) Interp. Act) 4. Special powers of Arrest of Owners, Possessors and Those They Authorize (s. 494(2)) 1. Can arrest person whom they find committing an offence in relation to their property; a. Property offences thus gives slight expansion to powers, compared to other offences. 2. BUT have to hand them over to the cops ASAP! (security guard stuff) B. Charging & Compelling Attendance: Powers of Police 1. Breach of Peace (s. 31) 1) Officer who witnesses breach of the peace; OR 2) who on RGs believes breach of peace is about to be committed; 3) may arrest the person 2. Arrest Without a Warrant (s. 495(1)) 1. Officer may arrest w/out a warrant: a. person who has committed an indictable, or whom officer has RGs to believe has committed or is about to commit an indictable; OR b. person whom he finds committing a criminal offence; OR i. THUS: if summary, need either warrant or find committing. c. person whom he has RGs to believe there is a arrest warrant for; 2. ―finds committing a criminal offence‖ = ―finds APPARENTLY committing‖, in relation to the circumstances to the officer at the time (R v. Biron); a. ie. TOF is the one who will decide whether they actually DID commit! 3. ―apparently finds committing‖ is same standard as ―RGs for believing offence has been committed (Roberge): Onus is on Crown to show this. 4. Officers need not say ―you under arrest‖ to effect a lawful arrest if words communicate person isn‘t free to go and this is clear from accused‘s actions (Latimer); 5. Officer must have subjective belief in RPGs for arrest and RGs must be objectively reasonable (i.e., a reasonable person in the place of the officer would have had believed the RGs existed) (Storrey); a. ie. you would legally have the right to resist a clearly unlawful arrest. 6. For summary conviction and s. 553 hybrids police should not arrest w/out a warrant, but rather issue appearance notice instead; a. UNLESS officer has RGs for believing, having regard to all circumstances, that it is in the public interest to arrest, or arrest is needed to (s. 495(2)); i. ensure attendance in court; ii. to secure or preserve evidence; iii. to establish identity of the person; iv. prevent continuation or repetition of offence 7. BUT any arrest contrary to s. 495(2) is still a lawful arrest (s. 495(3)) 8. Potentially relevant Charter rights: a. s.9: Right not to be arbitrary detained or imprisoned (applies to arrest + brief detentions) b. s.10(a): Right upon arrest or detention to be properly informed of reasons thereof [foundation for 10(b) right to counsel] C. Charging & Compelling Attendance: Constitutional Minimum Standards 1.    Challenges: Arbitrary Detention or Imprisonment (s. 9) Everyone has right not to be arbitrarily detained or imprisoned a law can be challenged under s. 9 for being arbitrary; can challenge police conduct wrt applying law in an arbitrary fashion 2. s. 9 Arbitrary Detention and Unlawful Arrest  Storrey first – subjective and objective grounds for arrest – to see if lawful  Three tests/considerations for ―arbitrary‖ – WHAT CASE? DUGUAY a. Just because arrest is unlawful does NOT mean it is automatically arbitrary i. EXCEPT Saskatchewan  Iron v. R = if unlawful, then arbitrary 1. ie. any illegal detention is arbitrary ii. Duguay – unlawful (lacking RPG) does not necessarily mean arbitrary  1. An arrest on grounds ―just short‖ of RPG not arbitrary 2. An arrest on mere suspicion clearly would be 3. KEY: Officer has to believe that RPG exist, and there must be some objective basis for this belief. b. Where there are no criteria (express or implied) for exercising of a police power, its automatically arbitrary i. Hufsky + Ladoceur random stops in rel‘n to highway traffic offenses violate s.9 b/c provision under the HTA which grants the said authority provides for unfettered discretion for police to detain vehicles however violation is justiable as a reasonable limit under s.1 c. Capricious detention is always arbitrary. i. the absence of lawful authority (RGs) for arrest may be ―strongly suggestive of arbitrariness‖ (Brown) Fact that police intend to further investigate after a lawful arrest (RGs present) for more info does not make arrest unlawful for purpose of assessing whether arrest was arbitrary (Storrey); a. even an 18 hour delay in charging after lawful arrest was held not to violate s. 8 (Storrey); 3. s. 9 Arbitrary Detention and Random Vehicle Stops  s.261 of HTA – provides for a general power to stop motorists. a. PROBLEM: No criteria given!  Random vehicle stops under Highway Traffic Acts, whether at a pre-determined location (Hufsky) or not (Ladouceur) violate s. 9 but are saved under s. 1; a. Hufsky: driving is a licensed activity; difficult to otherwise patrol licensing; spot check procedure. Necessary to effectively regulate and promote safety! b. Ladouceur: random stops provide only means to investigate MV offenses like insurance requirements. KEY: Can only be questioned re. MV offences.  Can only stop vehicle for vehicle related reasons; can make visual inspections (ie. plain view doctrine, and for police protection); can ask any questions re MV operation, but if you want to go further, s.8 protections apply  need RPG (Mellenthin) (asking re. bag is violation, unless had RPG to believe something inside)  additional purposes for the stop (i.e., intelligence gathering) will not make such stops unlawful (Brown – biker case)  SIMPSON!!!! 4. Brief Detention for Questioning on Articulable Cause: “Stop & Frisk”  Individuals can be detained by police in order to determine whether individual is involved in criminal activity. This detention is justified under CL Ancillary Powers Doctrine IF o TEST: Detaining officer has reasonable suspicion based on ―articulable cause‖ for the dentention (Simpson) (ie. this is part of Dedman inquiry re APD‘s) o Articulable cause is determined by looking a ―constellation of objectively obtainable facts‖ that gives the officer reasonable cause to suspect detainee involved in criminal activity being investigated - more than ―hunch‖ is needed!! o even if there was ―articulable cause‖, detention might still not be justified: -p.244  can‘t detain to question someone on reasonably based suspicion that person committed a property crime a long time ago;  can‘t detain person if don‘t know about reliability of info received and don‘t have any personal knowledge of person you detain; o can likely detain person whom you think (reasonable suspicion) may have just committed a violent crime and is fleeing the scene, to quickly confirm suspicion.     Need more than reasonable suspicion based on articulable cause to arrest and search incident to arrest (need RG - no search incident to detention power) But this may be FIRST STEP, as information given may provide RG to proceed under Dedman o Once have articulable cause, must look at the totality of the circumstances of the detention (severity of crime, length of detention, time elapsed since crime) BUT: Simpson – just b/c unlawful, doesn‘t mean automatic s.9 violation. Will play a central role in determining this though! It may that detention although unlawful is not arbitrary if officer believed on RG that he had an articulable cause. The distinction between reasonable suspicion for detention and reasonable grounds for arrest seems hard to draw! o Seems clear, though, that Ontario requires more for legal arrest, and thus search incident to arrest, than just suspicion, even reasonable suspicion as per Simpson. o An arrest of a black person in a mall near the scene of a recent robbery b/c matched the decription of ―male, black, 5‘8-5’11, with a short afro, wearing a dark jacket‖ could not amount to RPG for arrest. Could match many people! Articulable cause for detention wasn‘t enough here (R v. Charley – p.269 charter book) o Could not be used to justify wholesale checkpoint stop of bikers (Brown); o where no articulable cause existed, police could not stop accused for I.D. and C.P.I.C. check in high-crime neighborhood (Powell) AND unlawful arrest can‘t be used as grounds to search for drugs (Nicely) o THUS: Defense likes Simpson  if not justified THERE, where CAN it be? Good information and observation of house insufficient. Sets HIGH threshold! o BUT: Crown likes Simpson  provides for stop powers – could apply to both vehicles AND pedestrians (p.245). Racial profiling (Brown Ont CA) o Facts: black man driving nice car, driving in slight excess of speed limit; (apparently weaving a bit) pulled over; failed breathalyzer o Defines racial profiling: targeting members of a particular racial group on the basis of supposed criminal propensity of the entire group need not be conscious – can be ―subconscious‖ (para 9) (OPENS HUGE DOOR FOR DEFENCE!!!) o to establish racial profiling, contrary to s.9, have to prove it was more probable than not that there was no articulable cause. Specifically in this case, that the stop was because the accused was black (although note  Cop was FOLLOWING him!!) o Possible grounds to distinguish: PO credibility may have been issue (changed notes) 5. Upon Arrest/Detention, s. 10(a) Right to be Informed of Reason for Arrest  Charter s.10(a) – establishes the right of everyone ―on arrest or detention to be informed promptly of the reasons therefore‖  Duty of office who arrests, with or without a warrant, to give notice to that person (where feasible to do so) under s. 29(2) CC: o that they are arresting them on a warrant; OR o the reasons for the arrest (if w/out warrant);  police must inform person of real reason for arrest – NO PRETEXT arrests (Greffe); o ie. being arrested for traffic tickets won‘t give authority for strip search!  HOWEVER, Question is whether what the accused was told, viewed reasonably in all circumstances of the case (e.g. his mental disability) was sufficient to permit him to make a reasonable decision to decline to submit to the arrest (know extent of his jeopardy) and/or to exercise his right to counsel under s. 10(b) (Evans – leading case)    ―it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern‖. p.250 where accused was informed that he had been detained wrt a serious investigation into death of daughter, police did not have to specifically say that he was under arrest for charge of murder - as accused new the extent of his jeopardy (Latimer) SEE Gamracy p.248. ―where it is feasible to do so‖ SEE Evans p.251 – re. reasons for right! D. Charging & Compelling Attendance: Entry into Premises 1. Arresting Person in their Home: Feeney Warrants (s. 529 – response to Feeney)  Pre-Charter: Warrantless arrest following a forced entry into a private residence is legal IF Officer has RG to believe person sought is within; A proper announcement is made (doorbell, give notice of authority and purpose); Officer believes RG for arrest exist; Objectively speaking, RPG for the arrest DO exist. FEENEY OVERRULED THIS  Post-Charter: Feeney: Privacy interests outweighs the interest of police and warrantless arrests in dwelling houses are prohibited o HvS – Have to act pre-emptively to protect privacy! o KEY DISTINCTION: intentions to arrest v. intentions to search!  This case focuses on arrests. HvS et al dealt with pure search.  BUT if you found an arrest unlawful, then would have to consider whether evidence seized pursuant to unlawful arrest is valid. Separate issues (I think) o GENERAL RULE: warrant must be obtained on RPG to arrest and to believe person is in premises; proper announcement must be made; exception is hot pursuit.    CURRENT LAW: To enter into a dwelling house to arrest, if police have RG that person committed indictable offence (or will commit indictable) and have RG to believe that they are in the house, police should get a warrant (s. 529); HOWEVER police can still enter to arrest person if they have RG to believe they did it and RG to believe they‘re in the house (i.e., enough to satisfy warrant requirements); BUT because of exigent circumstances it would be impracticable to do so; Exigent circumstances include: o RG to suspect entry necessary to prevent imminent bodily harm or death; o RG to believe that evidence relating to commission of indictable offence is in the house and that entry is necessary to prevent its imminent loss or destruction of ev. o Still need a proper announcement (ie. not just yell ―police‖) s.529.4(1) o Feeney: hot pursuit is an exception. 2. Entry into House in Response to 911 Call  Police have power to enter homes to investigate 911 calls as justifiable under APD (Godoy); o TEST (See also above for APD - Waterfield):  does the conduct fall within the general scope of any duty imposed by statute or recognized at CL  whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty  Essentially approves Simpson, that when using APD you have to look for justification  have to look to circumstances     Godoy: 911 caller unable to communicate w/ dispatcher or answer door upon police arrival – reasonable inference (Dedman) in circumstances of an unknown trouble call for need to enter premises + locate 911-caller HOWEVER this power is limited to the protection of life and safety! PO duty! o Feeney was particular to arrest! o Is also controlling authority for investigating domestic assault!  Stuart: should this be up to the courts? What about parliament? police have power to come in, locate the caller and provide assistance if needed; BUT do not have further permission to search (Godoy) - maybe under ―plain view doctrine‖ POLICY ISSUE: Essentially, Godoy used APD to expand police powers. o Simpson, Godoy, etc – show Courts are willing to recognize ancillary powers for police in disparate areas. o problem: inconsistent. Couldn‘t this argument have been invoked in other cases, such as Feeney? o 3. Meaning of “arrest”  s. 10(a) is triggered by arrest or detention. Begs question of what ―arrest‖ means!  R v Latimer (1997) what constitutes an arrest – need look at the character of events o A de facto arrest which is lawful cannot be arbitrary detention for the purposes of s. 9 o Where one is substantively placed under arrest, it is irrelevant whether or not police state ―you are under arrest‖ – have to look beyond mere words! o de facto arrest was lawful as based on RPG that A‘s had committed the offence (both subj & obj) Subjective: accused was conscious that cops have reasonable grounds to make arrest; Objective: reasonable person in cops position would have concluded there are reasonable grounds for arrest Whitfield (cited in Latimer) –arrest consists of either the actual seizure/touching of a persons body with a view to their detention; OR the pronouncing of ―words of arrest‖ to a person who submits to the arresting officer (though don‘t have to say specifically ―you are arrested‖) o question is what the acc was told, viewed reasonably in all circ‘s o Latimer understood the basis of his apprehension, had been told of his right to silence, etc., and was aware of the seriousness of the situation, therefore he fully understood the jeopardy so s. 10(a) cannot be said to have been violated. Note: s.10(a) Right to Be Informed o Would otherwise be a gross interference w/ individual‘s liberty o Would be difficult to exercise one‘s s.10(b) right (right to counsel) if one is not made aware of the extent of one‘s jeopardy   Part 4: Bail: Judicial Interim Release Freedland Report  many people denied bail could have been brought to court by less intrusive means  were denied because could not come up with money on A own behalf – net result was discriminatory against the poor  Those detained without bail more likely to be convicted and greater sentences A. Bail: Use of Appearance Notices  appearance notices are the third way to start the criminal justice system ( 1st is an arrest with a warrant, 2nd is an arrest without a warrant) 1. Officer Should Issue Appearance Notice (s. 495(2)) – ie. please do not arrest unless!  Officer should not arrest person w/out a warrant for: o s. 553 indictable (ONLY s.553 – absolute jurisdiction of provincial judges); o hybrid offence; o summary conviction offence; IN ANY CASE WHERE  officer has RG that the public interest, having regard in all the circumstances, including the need to: o establish ID of person; o secure or preserve evidence in relation to the offence; o prevent continuation or repetition of offence or prevent commission of another offence; IF  he has no RG to believe that by not arresting, person will fail to show up to court 2. Failure to Comply with s. 495(2) No Effect (s. 495(3)) –ie. don’t worry!  Even if officer fails to comply with s. 495(2), arrest is still lawful – onus on acc to show not. o P.272 – shield against civil/criminal proceedings against individual officer, but accused can‘t be convicted of offense predicated on lawful conduct of police (eg. SD)  P.271 – technical errors in an appearance notice, or delay in its confirmation by an information, are no longer held sufficient to render notice a nullity. 3. Arresting Officer Should Release (s. 497)  Officer who effect arrest is to release as soon as practicable and to compel appearance by way of summons or appearance notice 4. Officer in Charge of Lock-up Should Release (ss. 498(1) & 499)  Officer in charge of lock-up should release as soon as practicable and compel attendance through summons or promise to appear (written document) or recognizance ($$) 5. Failure to Appear  Person who fails to appear may be arrested by warrant (ss. 502 and 512);  failure to appear is an offence (s. 145) B. Bail: Show Cause Hearings 1. Release/Least Restrictive Conditions Should be the Norm (s. 515)  Justice shall order the release of A on his own undertaking, w/o conditions; UNLESS o Crown shows cause under on or more of the grounds for detention as to why release should not be ordered; o If release allowed, Crown can argue whey there should be conditions; o If not, Crown can argued why other forms of release (ie. sureties, recognizance, etc) are required, ie. why nothing less is sufficient; o A deposit of money is only to occur when prosecutor persuades it is necessary;  KEY: onus on Crown to show cause for detention / or justify restrictions on release! 2. Restriction “Rungs” of Release Conditions (ss. 515(2)-(3))  Crown must prove need for each increasing level of restriction using the primary, secondary or tertiary grounds: a) Rung 1: (515(2)(a)) release on promise to judge; b) Rung 2: (515(2)(b)) release upon entering into a recognizance [if don‘t abide by conditions - pay $$]; c) Rung 3: (515(2)(c)) recognizance w/ a surety: if accused skips-out; surety pays; d) Rung 4: (515(2)(d): cash bail; Crown must approve;  Specific conditions on release can be imposed: a) remain in area; b) give up passport; c) prohibiting use of firearm (if violent offence) d) no communicate w/ victim or other person;  OR any other reasonable condition - provided that condition has a causal relationship to controlling commission of another offence similar to one accused has been charged with o Conditions CANT amount to detention!!!!!!!!!!!!! 3. Grounds for Detention (s. 515(10) a-c)  Detention of accused only justified only on one or more of the following grounds: o detention necessary to secure attendance at trial; o detention necessary for public safety having regard to likelihood that if accused released he will commit an offence or otherwise interfere with admin of J; o (W)here detention is necessary to maintain confidence in the administration of justice, having regard to: (in essence, clarifies ―public interest‖ post-Morales)  apparent strength of Crown‘s case;  gravity of offence alleged;  circumstances surrounding commission of offence and potential for harsh sentence/lengthy imprisonment;  Re Powers v R - ―public interest involves many considerations, not the least of which is the public image of the CC…‖ - p.282; also protection of citizens o R v. Graham: in the case at bar, it ruled that because the assault was so violent/serious/demeaning there was a need to protect the public from being exposed to an individual who appears to be the perpetrator.  Certain offences have been determined to be more serious than others, WRT public interest. e.g. handguns, drugs, sexual abuse, domestic assault. BUT: R v Lamothe (Que CA) - we have to remember that there is a presumption of innocence, and not pander to emotionalism about CJ system being too soft!! FOUNDATION FOR SHOW CAUSE: Charter 11(e)- any person charged has right not to be denied reasonable bail without just cause. o General ―public interest‖ criteria too vague, and unconstitutional – R v Morales  Valid if: bail is denied only in a narrow set of circumstances; denial of bail is necessary to promote the proper functioning of the bail system‖ o ―on any other just cause being shown‖ – was struck out of legislation for conferring too broad of discretion on judges (R v Hall, 2002 SCC) o 515(10) c: R v Hall (2002)  s.11(e) requires leg to provide narrow + precise circumstances in which bail can be denied – Hall says this legislation DOES this, by including factors        Denial of bail "to maintain confidence in the administration of justice" having regard to the factors set out in s. 515(10)(c) complied with s. 11(e)'s requirement of no denial of bail without just cause. judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the JS Dissent: where is the evidence that we need this ground of detention?  VERY STRONG LANGUAGE – protect against tyranny of majority Stuart: surprised nobody raise issue of racism, abuse, subjectivity.  KNOW IT WELL AND TAKE A POSITION ON IT. POSSIBLE LIMITS TO HALL  ―while the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available.  the reasonable person making the assessment of the need to maintain public confidence must be properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case  This was an especially brutal offence with evidence that the community were fearful about this particular case. 4. Reverse Onus (s. 515(6))  Onus shifts to accused to show why he should be released (must demonstrate primary or secondary grounds) in certain cases, if: o accused charged w/ indictable offence or bail abuse offence allegedly committed while awaiting trial on another indictable:  bail abuse: failure to appear; failure to comply w/ bail terms; failure to show up for fingerprinting o accused charged w/ indictable and not normally resident of Canada; o accused is charged with offences under CDSA [ss. 5(3); 4; 6(3)] –  upheld in Pearson – re. systematic operation of drug trafficking.  ―small fry‖ will likely be able to prove primary/secondary. o certain offences committed at direction of, or in association w/ a criminal organization  515(10)(b) – secondary grounds for detention were altered by removing the requirement that anticipated offences involve ―serious harm‖  Prosecutor may now lead evidence of the circumstances of offence s.518(1)(c )(iv) 6. s. 522 Murder Bail (s. 469 offences)  Reverse onus is in effect  release can only by ordered by judge of Superior Court upon application by accused; AND there is no automatic bail hearing 7. Judge Must Decide  Judge must hear evidence as to why an accused should be denied bail; AND  must make a finding based on that evidence and cannot just agree based on consent of accused;  judge cannot defer judicial function to Crown (Major) 8. Judge May Order Names of Sureties (s. 515(2.1)) 9. Prosecutor May Lead Evidence of Circumstances of the Offence (s. 518)(1)(c)(iv)) Part 5: Right to Counsel A. Right to Counsel: Triggering Mechanism Charter s. 10 Everyone has the right upon 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; and  (c) - to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful Triggering device: Arrest or detention! 2. Detention: Arrest  Does not matter whether arrest was lawful to engage s. 10(b) rights;  Doesn‘t matter if formal words of arrest are used, as long as tell accused that they are being detained for an investigation and accused, by their actions, conveys an understanding that they weren‘t free to go (Latimer)  Need reasonable and probable grounds - Storrey 3. Detention: Without Actual Arrest Generally (Therens)  In determining ―detention‖ – have to look to purpose of section! When a restraint of liberty other than arrest occurs a person may reasonably require assistance of counsel, BUT might be impeded from talking to counsel BUT FOR the s. 10(b) guarantee;  detention for purposes of s. 10(b) - Clarified in Thomsen (leading case) o deprivation of liberty by physical constraint; o detention also occurs when an officer assumes control over movement of person by way of a demand or direction which may have significant legal consequences and which impedes talking to counsel; o the necessary element of coercion or compulsion may arise from either:  criminal liability for refusal to comply w/ demand; OR  PSYCHOLOGICAL DETENTION - a reasonable perception of suspension of freedom of choice, is enough to make restraint of liberty involuntary (even if no criminal liability could result);  s. 10 applies to a great variety of detentions of varying duration and is not confined to those of such duration as to make the effective use of habeas corpus possible.  R v Feeney – detention began as soon as the PO touched the accused‘s leg and ordered him to rise (was only cautioned after taken into light, saw bloodstains, gave warning). Statements made in trailer are thus inadmissible b/c of lack of caution & opportunity to consult with c. o At first opportunity, not first reasonable opportunity! o Dissent disagrees: need to give PO‘s latitude to assess/gain control over situation.  there are varying degrees of detention whereby s. 10(b) doesn‘t apply to all communications between police and people (Simmons): o routine questioning by customs officers was not detention for s. 10(b) (Simmons); o but person taken out of normal course and forced to submit to strip-search is detention (Simmons); o secondary questioning by customs at airport is not detention (Dehghani - ?) MORAN - Police Questioning Scenario  When police question person short of arrest or physical detention it may be a detention for the purposes of s. 10(b); BUT  There are numerous approaches to assessing this situation: a) Moran (leading Ont. case): look at what police did and what accused thought (demand may produce detention - but acquiescence to request may not): i) precise language used: demand or request language used?; was there a choice/alternative?; location of interview (if conducted at home, maybe more like request - but at police station, more like demand) ii) escorted to police station or went voluntarily? iii) whether accused left interview or was arrested: arrest after interview ex post facto colours the interview iv) stage of investigation: if interview done towards end of investigation, suggest detention v) reasonable grounds: if police already have RGs for arrest, questioning more like det‘n vi) nature of question: general or confronted w/ accusations of guilt vii) subjective belief of accused: Therens (did accused think he was detained?) NOTE in Johns, Ont. C.A.: actions of police created detention; didn‘t matter that they said ―you can go home at any time‖; coercive environment; accusatory questions  perception of police may be relevant as to whether detained, but not decisive! -Claims to be following Hawkins, but really isn‘t! b) Therens Approach: look purely at what accused was thinking (psychological det‘n) c) Mickey Approach (BCCA): as soon as person questioned is suspect = detained -should then have been warned/advised of rights. d) Hawkins Approach (Nfld. C.A.): where suspicions become crystallized and investigator‘s approach changes from questioning individual to examination with intent to charge = detention BUT: SCC allowed Crown appeal – no detention on facts!!! No reasons.  KEY: the law is a bit uncertain on this. What you try and argue may depend on what side you‘re advancing. e.g. Defense might argue not clear what Hawkins stands for, but there are other cases that support broader range of psychological detention. -Note: Dissent by LHD in R v Elshaw rebutted psych detention. Goes too far. Roadside Test & Breathalyzer Demand  Both a demand for a roadside test (Thomsen) or a breathalyzer (Therens) are detentions for the purposes of s. 10(b) - as failure to do either results in criminal liability; BUT  lack of right to counsel for roadside test is saved under s. 1; AND  only have s. 10(b) rights when breathalyzer demand made 4. Major Change in Reason for Detention  Where there is a major change in reason for detention whereby there is also a material change in the jeopardy of accused, police have to notify accused of this change in reasons for detention;  informational and implementational components of s. 10(b) surface (Black)  e.g. accused arrested and detained for questioning based on aggravated assault; given 10(b) warning and allowed to talk to law; later find out victim dies in hospital; police now charge w/ second degree murder; must inform counsel of new reason for arrest and do s. 10(b) stuff all over again (yeah!) B. Right to Counsel: Informational & Implementational Components Police Duties Upon Detention Cops: Once person is detained for purposes of s. 10(b); (R v Bartle 1994 SCC)  Informational duty: Inform detainee of right to talk to lawyer w/out delay - along with availability of legal aid and (1-800) duty counsel;  Implementational duty: IF detainee has indicated a desire to exercise this right, provide detainee (except in cases of emergency & dangerous circumstances) with reasonable opportunity to exercise that right in private (Playford 1987 OntCA – whether or not privacy is requested);  Implementational duty: to refrain from eliciting evidence from detainee until he has had that reasonable opportunity (again, except in cases of emergency or danger); Detainee: rewards assertiveness!  Detainee MUST INVOKE RIGHT and be REASONABLY DILLIGENT with respect to implementation duties. o Stuart: rewards pushy assertive people! People who don‘t know rights or are timid are then very vulnerable!  Detainee may waive s. 10(b) rights; but standard for waiver is high - especially where alleged waiver has been implicit! 1. Informational Duty  If detention under s. 10(b) occurs; police MUST inform accused of right to retain and instruct counsel in a timely and comprehensive manner; (Bartle)  Once the accused in effect requested the assistance of counsel it was incumbent on the police officer to facilitate contact with counsel by giving the accused a reasonable opportunity to exercise his right to counsel (Brydges)  KEY: police must tell accused about availability services and how to access them (of legal aid and 1-800 duty counsel number) BEFORE accused is expected to assert that right! (Even if can‘t access at precise time – e.g. roadside, where no phones – as allows for selfincriminating statements to be made in interim, if weren‘t warned) (Brydges/Barlte)  unless accused has obvious difficulty (language/drunk/mental), police not required to make sure they understand s. 10(b) caution (Bartle/Anderson Rule) o may also apply WRT youth o When circumstances indicate lack of understanding, not informed (R v Evans)  Waiver: dependent upon it being clear/unequivocal and done in FULL knowledge of rights procedure was designed to protect (Bartle) – can‘t waive something you don‘t know.  in urgent or emergency situations, police may not be able to give s. 10(b) warning right away [e.g. police don‘t have to suspend search incident to arrest before warning (Debot)]  if no urgent situation, probably have to give s. 10(b) caution immediately upon detention (Feeney)  if reasons detention change materially - have to give s. 10(b) caution again (Black) 2. Implementational Duty (Manninen duties)  The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel [Brownridge]  Manninen: - foundational case o police must provide the detainee with a reasonable opportunity to exercise his right to counsel without delay – i.e. duty to facilitate contact with counsel included the duty to offer the respondent the use of the telephone. o duty to cease questioning or otherwise attempting to elicit evidence for the detainee until he has had a reasonable opportunity to retain and instruct counsel (once requested) o while a person may implicitly waive this right to counsel, the standard will be very high o in this case, he first refused to talk and then gave a statement. However, he had the right not be asked questions and it was held that he did not implicitly waive the right simply because he answered questions Need assertion by accused to exercise right to counsel, once properly advised initially by police [must continue to assert rights throughout!] (Baig) – this is a key triggering device! o Absent proof of circs indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it o Stuart says that this is a fundamental flaw in jurisprudence!!! police must provide accused w/ a reasonable opportunity to exercise right to counsel in private - regardless of whether or not accused requests privacy (Playford); LeClair : once asserted, police cannot compel the detainee to make a decision or participate in a process which could negatively impact on an eventual trial until that person has had a reasonable opportunity to exercise that right – unless VERY URGENT! o The detainee has the right to choose his counsel and only if their counsel cannot be available within a reasonable time should they be expected to call another lawyer. o Are free to continue interrogating once consulted, but don‘t have to answer. a real ―reasonable opportunity‖ depends on the circumstances (Dubois, LeClair): o accused should be able to talk to lawyer of their choice; o only if lawyer of choice not available during reasonable time should accused be expected to call another lawyer; o have to take into account the time of night etc. when accused is trying to call; o ―reasonable opportunity‖ lessens when there is urgency in the situation - may be situations where police have to proceed with questioning regardless - but they can‘t set arbitrary time limits!; o may not get full two hours to consult with counsel after breathalyzer demand; police must not denigrate reputation of defence counsel as attempt to undermine confidence in them (Burlingham) - but they can say ―Greenspan‘s a great lawyer, but do you know how much he costs?; police or Crown cannot enter into a plea bargain w/out participation of defence counsel unless accused expressly waives that right – efficiency is not an urgency! (Burlingham); o Allowing the accused to call some random lawyer, if they already have retained their own and are dealing with serious consequences (and in context of trickery), is not sufficient. Also, since different charge, definitely should have been able to consult.       Waiver of s.10(b)  Any waiver is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.  The duties on the police are suspended when the detained/arrested person is not reasonably diligent in the exercise of his rights (Smith) o ―reasonable diligence‖ depends on the circumstances:  not reasonable diligence if refused to even try calling lawyer, even though it was after hours (Smith) If tried and failed, would be justified in seeking delay, and thus diligent (R v Ross p.355)  e.g. not reasonable diligence if accused in Tuktayuktuk and wants to wait for Clayton Ruby;  but have to always look at the circumstances (time of night etc.);  R v Prosper: there is no constitutional obligation on governments to provide a free duty counsel system on arrest or detention. But unavailability doesn‘t equal waiver. o Where a detainee asserts the right to this counsel, there is a violation where the accused is not given a reasonable opportunity to consult counsel. o The lack of availability of duty counsel in a particular jurisdiction is ONE factor to be considered in the determination of reasonableness. o Police must ―hold off‖ eliciting information until the opportunity has been provided  Waiver must be given with ―full knowledge of the rights the procedure was enacted to protect and the effect of the waiver‖ along with ―a true appreciation of the consequences of giving up the right‖ (Clarkson);  e.g. not if hosed, unless truly ―aware of consequences‖. o Authority for this case resurrected by Bartle and Tran (p.353)  notion of duty to exercise right w/ due diligence is inconsistent w/ high standard of waiver! Implicit Waiver of s. 10(b)  Waiver of s. 10(b) rights can be implicit, but the standard will be very high (Manninen);  waiver must be given with full awareness of the consequences of waiver. Ie. accused must be aware of sufficient information to allow him to make an informed decision to waive; o accused need not be made aware of the precise charge or all the factual details of the case (Smith, Clarkson)  the following factors can be examined: a) no implicit waiver found simply because accused continues to answer police questions or participated in line-up (Manninen, LeClair); b) silence does not constitute waiver - but neither is it an assertion of rights; c) can‘t waive if you‘re too drunk to understand consequences of waiver (Clarkson); d) if accused doesn‘t understand he can get a lawyer even if broke - no waiver (Brydges); e) subnormal mental capacity many prevent waiver (Evans);  if accused doesn‘t lay the foundation that accused didn‘t understand consequences or waiver, the court will presume accused understood! No Continuing Obligation Unless Material Change  Once reasonable opportunity to consult counsel given there is no continuing obligation on police to provide further opportunities to consult lawyer (Hebert);  police can then investigate and interrogate at will unless there is a material change in the reason for the detention (Evans): a) different and unrelated offence; b) investigation of more serious offence than one contemplated when caution given;  s. 10(b) duties resurface (Black) Part 6: Right to Silence A. Right to Silence: Voluntariness Ibrahim v. R (1914) JCPC p.p.336 A statement must be voluntary to be admissible. Voluntariness must be shown by the prosecution. By voluntary it is meant that the statement has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person of authority R v Wray (involuntary confession, later partly confirmed by evidence) Applied the St. Lawrence rule; although involuntary, part was admissible (when he gave location of gun) as it was confirmed to be true 1. General Voluntary Confessions Rule:  No statement given by a to ―person in authority‖ is admissible until Crown proves voluntary BRD o person in authority: tested subjectively (person making arrest, detention, examination, prosecution of A) o confessions rule applies whenever person speaks to ―person in authority‖ - not just on arrest or detention;  Confessions to others ARE admissible – as admission!  Ward v R: won‘t admit statements that aren‘t a product of an operating mind (state of shock) A. Right to Silence: Pre-Trail Silence Under Charter s.7 – principles of fundamental justice  The term ―principles of fundamental justice‖ is not a right, but a qualifier of the right not to be deprived of life, liberty, and security of the person, its function is to set the parameters of that right  PFJ are to be found in the basic tenants and principles, not only of our judicial process, but also of the other components of our legal system  Whether any given principle may be said to be a PFJ within the meaning of s7 will rest upon an analysis of the nature, sources, rationale and essential role of the principle within the judicial process and in our legal system, as it evolves  Since Hebert, position has emerged that within s.7 there is a principle against self incrim, wider than the pretrial right to silence, protections against compellability, and s.13.  NOTE: HAS THE CAPACITY TO INTRODUCE NEW RULES o Focus: any state action that coerces an individual to furnish evidence against him or herself in a proceeding in which the individual and state are adversaries violates the principle against self-incrim. Coercion means the denial of free/informed consent. o PURPOSE: to protect against unreliable confessions o PURPOSE: to protect against abuse of power by the state. Scope of the right to pre-trial silence under s.7 (re. undercover police elicitation tricks)  Essence of a pre-trial right to silence under s.7 must be broad enough so that a detained person will be afforded the right to make an informed choice of whether to speak to the authorities or not o Other Charter rights as demonstrating that this residual right exists under s.7     If you have a self-incrimination privilege at trial (ss. 11 (C) & 13), but not in the pretrial, then the protection is illusory Even if accused statement is voluntary, accused can prove violation of s. 7 Right to Pretrial Silence on a BOP; WHEREBY s. 7 right to silence is violated if suspect asserts right to silence (Graham) and then state agents act to deprive accused right to choose to speak to authorities or not; MEANING if suspect chooses not to speak, state can not use it‘s power or trickery to override that choice; HOWEVER, the s. 7 right to silence protection is limited by (Hebert): o Only Applies to Detained/Arrested Persons:  no s. 7 right to remain silent can be invoked by persons subject to undercover sting operation in the field; o No Doctrine of Waiver/Advise wrt s. 7 Right to Silence:  don‘t have to be advised of pre-trial right to silence; o Police May Continue to Question Detainee:  after accused has exercised s. 10(b) right to counsel, police can continue to question accused in absence of lawyer;  presumed that police will inform Acc of right to silence (but don‘t have to)  if police not posing as undercover officers & accused chooses to volunteer info, no violation of s. 7;  police persuasion, short of depriving accused of right to choose or operating mind, doesn‘t violate s. 7; o Right to Silence does not Affect Voluntary statements to Cell Mates:  as long as cell mates not agents of the state, s. 7 not violated;  police informant or undercover officers are agents of state; o Right not violated if no Active Elicitation by State Agents:  distinction between active and passive elicitation;  test: “would the exchange btw accused and the agent have taken place in same manner and form but for the intervention of the agent” (Broyles) Problem with Hebert is how to apply it to normal interrogation. The courts are reluctant to apply it. Also, is any trick violative (per Whittle ) or only a bad trick (per Lamer) ? Stuart says probably just a bad trick violates s.7. o WHITTLE: Confession rule 10b and right to silence are interrelated, and having the common element that the suspect must have the right to make a choice. QUESTION IS ―did the action of police authorities deprive the suspect of making an effective choice by reasons of trickery, coercion or misinformation or lack of information‖ NEW CASE: Roy (Ont CA) Nov 13,2003 – appeal against murder conviction - OBITER -high profile jury trial – jury out for 5 days.- answered some q‘s not others -Issue: obtaining confession by interrogation -Defense: confession obtained in violation of s.7 – right to silence -Court: might be an argument on this, but not in this case, these facts. -Stuart – whether HEBERT notion of pre trial right to silence applies to police interrogation when acc wants to stop questioning. -―clearly, repeated assertion by detained person that he doesn‘t want to speak any further, will be indication that statements are not given freely‖ -STUART: when PO‘s continue interrogating when acc says he no longer wishes to speak, will be a violation -STUART: also an alternative to Oickle o   R v Otis – Quebec – might be an argument. Overarching “Principle Against Self-Incrimination” 1) Overarching principle against self-incrimination is a principle of fundamental justice; 2) it is broader than the privilege against self-incrimination at trial (see below); AND 3) it not only encompasses existing rules and principles but has the capacity to introduce new protections; 4) it is rooted in the notion that the accused is not required in any way to respond to the state until the state has succeeded in making out a prima facie case against him! (R v PMB)  fundamental right not to be forced into assisting with one‘s own prosecution! 5) Purposes (White) -- to protect against unreliable confessions and to protect against abuses of power by the state Principle Against Self-Incrimination: Used to Limit Compellability and Use of Derivative Evidence  Person charged with offence cannot be compelled to testify in proceedings regarding that offence: Charter s. 11(c), CEA s. 4(1) – aka ―privilege against self incrimination!  co-accused being tried can be compelled as witnesses against each other;  accused can be compelled to give evidence relating to events of an alleged crime in prior noncriminal proceeding;  HOWEVER cannot use evidence given at a prior proceeding against person at a subsequent criminal proceeding [e.g. ―use immunity‖] (Charter s. 13, CEA s. 5(2)) - except in prosecution for perjury; also aka ―privilege against self incrimination (R v Dubois – can‘t indirectly what you can‘t directly do under s.11c)  DRAWING FROM THESE:  s. 7 ―principle‖ against self-incrimination has been used to require the following: o Discretion to prevent compellability of co-accused in appropriate circumstances (S(RJ)); o Procedure to limit use of evidence derived from prior testimony:(expands s.13)  accused has initial burden of showing plausible connection between compelled testimony and derived evidence sought to be use at later proceeding to convict him; THEN  if initial burden satisfied, in order to use derivative evidence, Crown must establish that would have discovered the impugned evidence anyway, absent the prior testimony on a BOP (BSCS v. Branch); o ability of court to grant exemptions from compulsion to testify if predominant purpose of compelling prior testimony was to gain incriminating evidence (BCSC v Branch) as opposed to some legitimate public purpose.  Limits in Hebert may have to be reconsidered as a result of this ―principle‖? p.393 o GORDON WALL – see article. Hebert was taken from a specific context, namely an undercover operation. Hebert should be modified in context of direct interrogation by identified PO‘s to remove the detention requirement, impose a duty to advise of the right to silence, and include the usual Clarkson standard for waiver. 4. Use of s. 7 “Principle Against Self-Incrimination”: Exclusion of Evidence Given under Statutory Compulsion (in more detail)  Person may be required by law to make statement; OR  Person may reasonably believe they were compelled to do so;     statement may be excluded if person can establish that statement was made because of such compulsion; s. 7 will be violated if the statement compromised the purpose underlying the principle against self-incrimination (White- MVA reports made under compulsion of MVAct not admissible at trial for failure to stop at scene); o Purpose: To protect against unreliable confessions o Purpose: To protect against abuse of power by the state. s. 7 will be violated if the following are present: o the existence of real coercion in obtaining the statement; o existence of an adversarial relationship when statement was made; o risk of unreliable confession as a result of the compulsion; o risk of an abuse of power by the state as a result of the compulsion R v S.A.B. (2003) SCC – re. ability to get warrant for DNA samples – upheld o ―not all consciptive evidence will violate the principle against self incrimination‖. To determine violation, need to consider two underlying rationales: unreliable/abuse  Unreliable: Unlike testimonial compulsion, DNA is very reliable!  Abuse of power: Degree to which this principle is engaged will depend in part on the extent to which coercion used, extent of adversarial relationship, presence/absence of increased risk of abuse of power by state via compulsion  Here: Adv and Coercision are high! Hard not to comply w/warrant  BUT: considerable safeguards exist to prevent abuse! RPG, limited intrusiveness. o Thus: this is one of cases where factors that favor search for truth outweigh factors that favor protecting individual against undue compulsion by the state. R v. Jones (1994) SCC p.392 -there is a difference between the principle and the privilege  Lamer C. J. expands on what he had earlier written about the principle against selfincrimination: ―any state action that coerces an individual to furnish evidence against himself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination… The privilege is now the narrow traditional common law rule relating only to testimonial evidence at trial‖  There has been in the past an ability in the State to avoid the strictures of the privilege against self incrimination by compelling a suspect or an accused to testify at some other proceeding prior to his criminal trial and discovering evidence usable against him at trial. The court may have now moved to foreclose that possibility – in BCSC v Branch No Adverse Inference Drawn from Pre-Trial Right to Silence o At trial CANNOT draw adverse inferences from accused exercising right to pre-trial silence (e.g. refusal to state innocence) (Chambers – CE‘d re failure to advise of real intent at first trial)  if it is done, remedy is a new trial o there have been a few ad hoc exceptions to this rule created: ―unless the court can establish a real relevance and a proper basis for their admission, neither the q‘s or the evidence as to the ensuing silence of the accused should be admitted‖ o TJ can instruct jury to draw adverse inference from late disclosure of alibi evidence (Hill); (NOTE – NOT IN TEXT) o co-accused can use it to attack credibility of other accused (Crawford) (NOT IN TXT) B. Right to Silence: At Trial 1. No Adverse Inferences from silence at trial (Noble)  TJ CANNOT comment to jury on A‘s failure to testify (CEA s. 4(6));  s. 7: just as a person‘s words should not be conscripted and used against him, by the statute, it is equally inimical to the dignity of the accused to use his or her silence in grounding a belief in guilt beyond a reasonable doubt  s. 11(d): in order for the burden of proof to remain with the crown, the silence of the defendant should not be used against him in building the case for guilt  it is impossible to prevent jury from using silence as a ―make weight‖ for the Crown‘s case;  EXCEPTIONS o HOWEVER there is nothing in CEA s. 4(6) to prevent TJ from telling jury that evidence on a particular issue remains uncontradicted – o TJ can also indicate that he need not speculate about possible defences that might have been offered by the acc had he testified o where trial of judge alone, the silence of the acc may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt o in a judge alone trial the TJ can refer to failure to testify in determining whether the accused has an answer to the Crown‘s case (after, and only after, Crown has proved it BRD) (can‘t say used silence to ―infer‖ guilt though!!!) o if using A uses alibi defence, entitled to draw adverse inference from failure to testify (and TJ tell jury about it)  appeal court may draw adverse inference from A‘s failure to testify – left open by Noble o not assessing guilt per se, but rather REASONABLENESS of his guilt.  POLICY QUESTION: Is s.4(6) of CEA unconstitutional to the extent it prohibits judges from cautioning juries?? Prevents judge or Crown from commenting on the accused silence during trial implies judge cannot counsel jury against such forbidden inferences + given that speculation as to a jury‘s reasoning is also forbidden does this imply that the use of the accused silence at trial is elevated to an principle of law? C. Common law voluntary confession rule: Oickle – NOT CHARTER Iacobucci posits that confession rule can offer protection beyond Charter b/c not restricted to arrest or detention (NOT DETENTION), burden + standard of proof is more favorable to accused (criminal standard) + remedies are different less protection was occasioned to accused in this instance than he would have had under Charter protection  OICKLE: Was fully informed of rights REPEATEDLY!!! When reviewing a confession a trial judge should: - consider all the relevant factors - strive to understand the circumstances surrounding the confession and - ask if it gives rise to a reasonable doubt as to the confessions voluntariness, taking into account all the aspects of the rule First Inquiry: RELIABILITY Determine whether the following factors actually caused the accused to produce an involuntary:   Focus on reliability of confession. Unless these factors actually subjectively caused accused to give an involuntary statement, they will not render confession involuntary.   Look at subjective elements of accused: strength/weakness of mind; personal background; compliant personality etc. Doesn’t matter how oppressive circumstances are, unless produced involuntary confession, it’s not relevant (have to go to “shock the community/police trickery test) 1- Promises or Threats:  Promise of lenient treatment: o explicit offer to procure lenient treatment in exchange for confession warrants exclusion in all but exceptional circumstances; o if not explicit offer of leniency: other inducements must be view in context to determine if inducement actually was factor in accused‘s decision to confess; o promises not aimed at suspect: evaluate carefully to see if had any real effect on accused‘s decision to confess  Threats of prejudice: o ―it would be better if you told the truth‖ should not automatically require exclusion; o carefully evaluate to see if actually affected decision to confess; o use of spiritual inducements will not generally produce involuntary confessions 2- Oppression:  if conditions bad enough: may cause confession to escape those conditions;  look at: deprivation of sleep, water, food etc. and length and manner of questioning;  oppressive circumstances might overbear suspects will to point where he comes to doubt on memory and confesses (Hoillett)  confronting suspect w/ inadmissible or fabricated evidence, when combined with other factors, may also be oppressive enough to cause involuntary confession 3- Operating Mind:  suspect‘s statement never involuntary if: he knows what he is saying that he‘s saying it to police who can use it to his detriment  Look to all of circumstances – threats, deprivation, accused state of mind (e.g. drunk) Second Inquiry Even if First Inquiry Renders Statement Voluntary have to see if Police Trickery ―Shocks Community‖ and Confession not Admissible  a very high bar! Stands on its own, whereas other 3 interplay 1 - Right to Silence:  even if police conduct didn‘t ―deny suspect the right to choose to speak to authorities‖ police conduct can still lead to inadmissible statement if conduct would ―shock community‖  ―shock the community‖ is nearly impossible standard: dressing up as Priest in confessional booth 2 - Limits on Interrogation  Permissible Conduct: o lying (within certain limits) o offer psychiatric counselling or other counselling (if not conditional on confessing) o appealing to conscience or morality of suspect o confronting suspect w/ inadmissible or fabricated evidence (although this may be a factor, when combined with others, for exclusion); o use of polygraph w/out telling suspect it‘s inadmissible  suggesting polygraph nearly infallible exploiting trust developed in pre-test phase of polygraph using ―good cop, bad cop‖ routine say suspect, his girlfriend etc. and community would feel better if he confessed indicating it would be necessary to polygraph suspect‘s fiancee if he didn‘t confess discussing possibility of a number of offences being pre-packaged for sentencing purposes Impermissible Conduct: o physical abuse or outright violence; o imminent threats of torture; o offers of leniency in the form of reducing charge or the sentence; o telling a mother her daughter would not be charged o phrases like ―it would be better if you confessed‖ - but only if actually induces suspect to confess; o creating ―utterly intolerable conditions‖ - combo of no food & long, aggressive questioning o using tricks like dressing up as chaplain or lawyer or injecting w/ truth serum o o o o o o 2. Voluntary Confession Inquiry Separate from s. 7 Right  Voluntary confession rule is a matter of CL;  it is independent of, and not subsumed by, the right to silence under s. 7; THEREFORE  if person is detained or arrested, may still be able to get statement excluded under s. 24(2) if can prove a violation of s. 7 right to silence (police trickery deprived accused of right to choose to speak to authorities or not);  Oickle completely ignores the whole expanded notion of ―principle against selfincrimination‖ Two Key Issues Which Result From Oickle: i. Polygraphs - encourage use even though not admissible b/c inherently unreliable Trotter: - SCC legitimizes use of polygraph, rejecting argument that it works too well in getting confessions Iacobucci - no fault can be found w/ the role played by the polygraph standing alone the tactic of exaggerating the reliability of the polygraph, like the tactic of inflating the reliability of incriminating evidence in general, is common + not objectionable ii. Inducements What can the police now do? Iacobucci - courts must be wary of unduly hampering police in their investigations of crime police must be given some latitude in interrogation - they need not be benign + open ended  line must be drawn w/ police tricks - cops can effectively interrogate + yet severely prejudice the accused  Oickle is very pro-state - there is a danger that the SCC‘s approval of so many coercive police techniques will legitimize + encourage routine use of polygraphs + other manipulative techniques (see back for do‘s + don‘ts for police in interrogations from Stuart‘s book) Part 7: Remedies s.24(1) Anyone whose rights or freedoms, as guaranteed by Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate + just in the circumstances Note: court of competent jurisdiction – trial court will always be one – Mills s.24(2): Exclusion Rule Where in a proceeding under ss(1), a court concludes that the evidence was obtained in a manner that infringed or denied any right or freedom [Burlingham] guaranteed by Charter, the evidence shall be excluded if it is established that having regard for all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute [Collins & Stillman] Evidence Must be “Obtained in a Manner that infringes or denies freedom”  To be excluded, evidence must have been ―obtained in a manner‖ that breached the Charter rights of the applicant (Strachan, Burlingham): o Causal Connection: evidence discovered as a result of breach:  stuff found during unreasonable search;  breath samples taken during arbitrary detention;  gun found after confession made in breach of right to counsel; OR o Temporal Connection: breach & discovery of evidence occur as integral part of same transaction A. Remedies: Exclusion of Evidence Under s. 24(2) NOT automatic exclusion! Once violation established, then have to proceed with 24(2) analysis      at the common law, the judge has discretion to exclude evidence if prej. > probative value. R v. Sang (1979) H.L. affirmed the idea that the trial judge has discretion to disallow evidence because prejudice > probative, but not because of how it was obtained in Wray it was said that concern was for the fairness of the trial, not what happened prior. ―Bad men, like good men, are entitled to be tried and sentenced in accordance with law‖ Black, Hugo L., in Green v. United States Duguay – Zuba dissent – excluding evidence runs risk of suppressing truth!  rare exclusion of evidence under s.24(2) focus should be on truth not charter justice. A frequent exclusion of evidence under s.24(2) suppresses the truth + equally brings the admin of justice into disrepute  s.24(2) = Compromise which tilts the balance in favor of the truth - evidence obtained via a charter breach is prima facie admissable  other remedies available under charter  s.24(2) gives courts discretion to state that at a certain pt the price of truth is too high suppression vs admission of truth in relation to admin of justice reliability of evidence cannot defeat effect of s.24(2) but it is an important consideration  Exclusion of evidence to control police conduct has no place under s.24(2) + has proved not to be an effective remedy R v. Collins (1987) SCC p. 393  KEY: the onus is on the def. to show a Charter breach and to show (on a balance of probabilities) that the administration of justice would be brought into disrepute if it is admitted.  when assessing whether there would be such disrepute, must be from the point of view of ‗the reasonable man, dispassionate and fully apprised of the facts of the case‘  s. 24(2) is not a remedy for police misconduct. If there is police misconduct, doesn‘t automatically mean exclusion…only if the admission would bring further disrepute  in determining whether the admission of evidence would bring admin. of justice into disrepute, consider following factors:  THE COLLINS TEST: Could the admission of the evidence bring the administration of justice into disrepute in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances of the case? (the ―average‖ person in the community, but only when that community‘s current mood is reasonable!) o 1) TRIAL FAIRNESS (what kind of evidence, what right was infringed)  Conscripted Evidence Affects Trial Fairness re. presumption of innocence [s.11(d)] + principle against self-incrimination  then admission thereof would tend to bring the administration of justice into disrepute + st to other factors (nature of evidence + right violated), the evidence should be generally excluded  real evidence obtained in a manner that violated charter will rarely operate to render trial unfair for that reason alone real evidence existed irrespective of Charter violation + its use does not render trial unfair unless charter violation precipitated the finding of such evidence [see Burlingham + Stillman re: derivative evidence]  Lamer recognizes that fairness of Canadian trials is a major source of repute of the system. If admission of evidence fails this test, it should be excluded  STILLMAN analysis fits under here! –  IF BUHAY - DON‘T FIT UNDER HERE, ONLY DO 2 and 3 2) SERIOUSNESS OF VIOLATION (was the violation serious or technical, was it deliberate or inadvertent, did it occur in urgent circumstances, were there other techniques available, would evidence have been obtained in any event)  considering the conduct of authorities. Violation more serious if it could have been obtained another way and wasn‘t; shows disregard for the Charter  Good faith: Isn‘t good enough to say just b/c standard practice, it‘s good faith  R v Lau (police policy to use battering ram – not in good faith b/c was automatically more force than was reasonably necessary. Busting into house then serving warrant  Dinh, Lam – bus depot case – police were hanging out at bus depot because people usually bring drugs in; looked nervous; dropped stuff in locker, brought dogs to check o search violated 8, detention violated s.9 o Follows Buhay – CA will defer to TJ unless overriding error. Points to a new standard favoring exclusion of non conscripted evidence in which good motives of police (ie to catch people selling drugs) will not amount to good faith (sticking to legal methods of arrest, search, etc). 3) EFFECT ON REPUTATION OF JUSTICE ( is the offence serious, is evidence essential to substantiate the charge, are other remedies available) o o   admin. of justice would be brought into disrepute by the exclusion of evidence essential to substantiate the charge because of a trivial breach  this test rejects the ‗shock the community‘ test in R v. Duguay  Has to be high, but not THAT high. Stuart – believes this is a strange distinction – SO, if you‘re conscripted, they‘re more likely to exclude evidence. A 10b violation ALWAYS results in a conscription, and thus generally resulting in exclusion. As always in evidence, can exclude if prejudicial outweighs probative.  R v. Hebert (1990) SCC  Sopinka: ―where impugned evidence falls afoul of the first set of factors set out by Lamer J. in Collins (trial fairness) the admissibility of such evidence cannot be saved by resorting to the other sets of factors. These two sets of factors (2 & 3) are alternative grounds for the exclusion of evidence, and not alternative grounds for the admission of evidence‖.  Stuart: this, converting what appears to be a discretionary approach into an absolutist position  SUPPORTED BY ELSHAW in MAJORITY R v.Burlingham (1995) SCC Important p. 400  Was there a 10(b) Charter violation and if so, should the gun and voluntary statement be excluded under s. 24 (2)?  KEY: This case affirms the notion that if it (the evidence) goes to the fairness of trial, it is virtually certain that it will be excluded.  KEY: if evidence is derived from conscripted evidence, it‘s ALSO deemed to be conscripted  KEY: Adopts Dickson in Strachan where it was held that ―obtained in a manner‖ did not require a strict causal connection between the violation and the evidence. Rather, look at the chain of events. A temporal link between the violation and the discovery of the evidence would be sufficient…as long as the evidence is not too remote from the violation. (Strachan is the leading case on the issue of connection).  HERE: wouldn‘t have found gun if didn‘t violate 10b  conscripted  dissent by (who else?) L‘Heureux-Dube who is against automatic exclusion rule for fairness of trial and asserts that exclusion should be very rare. Doesn‘t want to go back to Wray.  ADDITIONAL BURDEN: Where cases involve 10b and fairness factor, burden on C to prove acc would NOT have consulted counsel, even if asked (check this!!!!!!!) 2. Exclusion of Evidence (Stillman Test) – KEY TEST    Evidence obtained in a manner that violates the Charter will be excluded under 24(2); IF it could bring the administration of justice into disrepute; WHEREBY evidence that affects trial fairness will always bring administration into disrepute [see Trial Fairness box]; (ie No need to consider seriousness of breach, etc;) FURTHER evidence that does not effect trial fairness could bring the administration of justice into disrepute, but need more analysis [see Non Trial Fairness box - over] Trial Fairness Box [Automatic Exclusion]  Evidence obtained in violation of Charter will affect fairness of trial if it is ―CONSCRIPTIVE‖ AND Crown fails to demonstrate evidence ―OTHERWISE DISCOVERABLE‖ on a BOP:  ―CONSCRIPTIVE‖ evidence must meet 2 Prequisites: First Prerequisite [if it exists independently of the accused, its probably non-conscriptive!]  The Evidence Emanates from the Accused/Involves Use of the Body:  statement; bodily sample (incl. dental impressions); line-ups; gestures; reenactments; sobtriety tests; physical assistance of the accused OR Is Derivative Evidence: ―conscriptive real evidence‖: exists independently of accused but would not have been found but for the original conscripted statement/sample accused was compelled to provide by C breach (Burlingham) Second Prerequisite Accused must be compelled to participate in the discovery of evidence: although this may not be a pre-requisite any more! (Davies) II) Crown fails ―OTHERWISE DISCOVERABLE‖ test if it can‘t show [BOP] either: a) Alternative Source: an alternative source existed for discovery of the evidence; b) Inevitable Discovery: evidence would have been discovered w/out a Charter violation anyway [e.g. cops would have availed themselves of another constitutional method; guy would have spoke anyway etc.]  Stuart: Doctrine of discoverability makes no sense! If you have a situation where acc has had is rights violated, what‘s the point in pointing out alternatives… they DIDN‘T pursue them!  BUHAY MODIFIES THIS: complete lack of charter consideration o thus, not automatic EXCLUSION rule – have to do 24(2) analysis, fairness analysis. Non-Trial Fairness Box [evidence rarely excluded!] 1) If evidence obtained in violation of Charter does not affect trial fairness re above; 2) courts will still exclude such evidence when: a) ― the seriousness of the breach outweighs any disrepute to the administration of justice which would be caused by excluding the evidence‖ (the latter two stages of Collins!) 3) the courts look at : the seriousness of violation & effect of exclusion on repute of system: Seriousness of Violation Factors i) serious or technical violation (e.g. didn‘t fill out form properly); ii) willful, flagrant violation or officer acting in good faith; iii) urgency or necessity (Godoy) iv) availability of other investigative techniques; v) part of pattern of disregard for accused‘s Charter rights in the case AND Effect of Exclusion on Repute of System Factors i) seriousness of offence (more serious = less likely to exclude) ii) appalling nature of crime iii) critical evidence likely to be discovered in any event 3. Bright-Line Approach to Stillman Test  If the evidence obtained as a result of the Charter breach is: o a statement, use of body or a bodily sample – ie. narrow view of conscipted; o ―real evidence‖ derived from a statement or bodily sample; o BROAD view of conscripted also expressed in judgment is re. whether acc was compelled to participate in the creation or discovery of the evidence. ‗ o Davies – relied on statement by Cory suggesting narrow interpretation! –p.459      Crown can‘t demonstrate discoverability on a BOP; THEN the evidence will affect trial fairness and will always be excluded HOWEVER if the evidence is classified as ―non-conscriptive‖ (or ―conscriptive‖ but otherwise discoverable); THEN such evidence is likely not to be excluded under s. 24 (Silvera, Evans)] only in rare cases is ―non-conscriptive‖ evidence excluded (Feeney) “ … and I said to hell with that, that’s bullshit!” - D. Stuart, Fall 2001 SEE FEENEY AGAIN – there can be both conscripted and non-conscripted in a single case.  The inquiry is directed at whether evidence should be treated as a product, which treatment does not depend on the constitutionality of the alternative means of discovery. (argh p.463) Rare Exclusion of Non-Conscripted Evidence Under s.24(2): o NEW: 24(2) is not an automatic exclusionary rule, neither should it become one when the evidence is non-conscriptive and essential to the Crown‘s case! o Appellate court must determine if, all factors considered, TJ‘s conclusion to exclude evidence, based on finding that its admission would bring admin of J into disrepute, was reasonable. R v Buhay! – opens the door for exclusion of non-conscripted evidence F: Pot in bus depot locker, security guards smell it, get master key and open locker, find bag of pot; close locker, call cops; cops show up, seize bag (w/o warrant); individual came with key and opened locker; arrested for PPT I: Should evidence be excluded? H: Yes! R:  Accused had REP, but not as high as home, as bus station had master key  Initial search by security did not trigger Charter. Private actors.  Police search and seizure violated s.8. Intervention of SG‘s did not relieve prior authorization obligation before seizing contraband  Questions seem to be: would it render the trial unfair, and what is the seriousness of the breach o Since its non conscriptive, ―discoverable‖ evidence, would not render trial unfair o Seriousness:  Casual attitude towards acc‘s Charter rights! One didn‘t even think of getting warrant, while other thought he didn‘t have enough grounds!!!  No evidence of urgency or necessity o Didn‘t pose a threat, no danger it‘d be lost/stolen/destroyed  Clearly, could have obtained evidence without infringing his rights!  Failure of police to explore other investigative techniques showed a sincere effort not to comply with the Charter. o Despite other elements (not very intrusive, slightly diminished privacy, fact that RPG for warrant probably existed), evidence considered on a whole supported conclusion that violation was serious!!! o STUART: leaves open discretion at CL – prejudical vs probative weighing.  Therens: did reject this though! Only way is under 24(2)  So Buhay essentially goes against this! Look to article -R v Lau, R v Schedel  a police policy cannot be relied upon to establish good faith for 24(2) Silveira – rare that in the future, exigent circumstances alone will justify the inclusion! R v Evans (1996) SCC:  Facts: Plainclothes officers were acting on a tip, knocked on door, id‘d themselves and entered the premises after smelling pot. Secured the premises. Search warrant was later sought and executed.  Issue: Should the evidence be excluded?  Held: Approaching the residence to secure evidence was a search of the home. The warrantless search was unreasonable (presumption of this was not rebutted).  Although it was done in a reasonable manner, it was not authorized by law. Warrant was invalid. Therefore the search was unreasonable under s8.  The admission of this evidence would not result in an unfair trial – evidence was real irrespective of Charter violation. The appellants were not conscripted against themselves in the creation of the evidence since it preceded the violation.  The violation was not PARTICULARLY GRAVE – good faith of these officers cannot be questioned because they felt that their behaviour was consistent with Kokesch. Although the olfactory search of the home has now been rendered unconstitutional in light of the present case, the police were unaware of this. The police also had no reason to doubt validity of warrant. Finally, exclusion of this evidence would tarnish the image of the admin of justice to a much greater extent then its admission. This is a serious offence. The evidence should therefore be included. R v Law [SCC, 2002]:  Facts: accused operated a restaurant. A locked safe belonging to him was reported stolen. Later recovered but had been opened. Before returning it to the accused, files were photocopied because an officer believed him to be involved in tax violations. Forwarded documents to Revenue Canada. Trial judge ruled that unreasonable search under s8 and should be excluded. SCC agreed.  Issue: Was the search unreasonable and should the evidence be excluded under s24(2)?  Held: The evidence should be excluded. o Was there a search or seizure: Liberal view of privacy. The mere fact that the police recover lost or stolen property is insufficient to support an inference that the owner voluntarily relinquished his expectation of privacy. On the facts of the case, the owner did not relinquish this expectation as the documents were locked in a safe that was stolen. Search was within s8 because, although a reasonable accused would have expected a certain degree of state intrusion in the stolen safe, he still would have expected the contents of the safe to remain private. There was also no reasonable grounds to do what the officer did. o Was the search unreasonable?: Charter only protects against unreasonable searches and seizures. In the absence of judicial authorization, search and seizure will be reasonable if authorized by law, and law and conduct is reasonable. None of these exceptions were satisfied and thus unreasonable. o S24(2):  Trial fairness: Whether or not conscriptive evidence – on the facts of the case, NO. It neither emanated directly from accused nor was it derived from cooperation with state. Therefore the trial fairness will not operate   to exclude the evidence. IMPORTANT: just because the officer used the fact that a criminal act was perpetrated against the accused, does not really go to trial fairness because it goes more to the manner in which the right was violated and not so much to the nature of the evidence obtained/nature of right violated (trial fairness not as concerned with manner in which rights are violated – Collins). Seriousness of breach: Conduct of officer goes here. Whether or not committed in good faith and whether it was deliberate are the issues here (Therens). Also relevant is whether the officer could have obtained the evidence by other means (Collins). Trial judge entitled to deference here – conduct was sufficiently serious here. Effect on justice: This turns on whether the unconst. Obtained evidence forms a crucial part of case and where trial fairness not affected, the seriousness of underlying charge. Evidence here is essential to case and therefore would risk undermining justice if excluded. This must be balanced with fact that less serious crime – the admission of evidence and not its exclusion would affect justice. B. Remedies: Invalidity Under s. 52(1) and Saving Under s. 1 Section 1 (Oakes Test) 1) To justify under s. 1, Crown has onus to prove on a BOP: a) the legislative objective that the limitation is designed to promote must be of sufficient importance to justify overriding a constitutional right [pressing and substantial concern]; AND b) Means chosen to obtain objective must be proportional to the ends of the legislation: i) means chosen (the law) must be rationally connected to the objective; ii) the law must impair the right as little as possible; iii) the must be overall proportionality between the deleterious and salutary effects of the law Declarations of Invalidity Under s52 of Charter and Saving under s1.  R v Big M: any court has power under s52(1) of Constitution to declare laws contrary to Charter to be of no force or effect. Can be saved under s1 though.  R v Oakes: the test for this justification  R v Edwards Books: restatement of test. Notable because suggests that the Oakes test will vary depending on the context. Further, question as whether it is as little as REASONABLY possible – whether some reasonable alternative scheme which would allow the province to achieve its objective with fewer detrimental effects on freedom. La Forest (separate from majority) said that need to be flexible.  R v Chaulk: parliament is not required to adopt the absolutely least intrusive means – rather, it is whether the less intrusive means would achieve the same objective or would achieve the same objective as effectively. Wilson (dissent) said that this was not a case to move away from strict test laid out in Oakes.  Question: should the s1 test, in the context of criminal law, be (a) does the limit restrict as little as possible (Oakes) or (b) does it restrict as little as reasonable possible (Edwards) or (c) does it achieve the same objective as effectively (Chaulk)?  Question: should s1 always be applied more strictly in the criminal law context? o RJR MacDonald Case: restates the Oakes test – McLachin gives best analysis of s1 but agreement of court is unsure because of short concurring judgments.  Bottom line: Before the state can override constitutional rights, there must be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement.  Oakes test must be applied flexibly. It is a fact-specific situation. However, although the law must be considered in its social and economic context, nothing in its jurisprudence suggests that the contextual approach reduces the obligation on the state to meet the burden of demonstrating that the limitation on rights imposed by law is reasonable and justified.  Related to context is the degree of deference to Parliament. Deference may vary with social context in which the limitation on rights is imposed – greater deference if competing rights between different sectors of society. Deference shouldn‘t extend too far however.  Civil standard of BOP should be used  As a general matter, appellate courts are not as constrained by trial judge‘s findings in the context of s1 since the impact of infringement on constitutional rights must often be assessed by reference to broad review of social science factors.  In dealing with criminal law, the Court is less likely to be deferential to choices of Parliament; the Courts are experts in dealing with the rights of the accused (Libman) THEREFORE the Court is likely to apply the minimal impairment test very strictly! (Laba) **Case: Libman v Quebec (AG) [SCC, 1997]:  Facts: challenge to constitutionality of certain provisions in Quebec Referendum Act.  Held: The impugned provisions infringed the freedoms of expression and association. They could not be saved under s1. While the courts must accord great deference to the leg‘s choice when competing interests at stake, the courts should judge the leg‘s choice more harshly in areas where the government plays the role of the singular antagonist of the individual – primarily in CRIMINAL MATTERS – owing to their expertise in this area. (ii) Prescribed by Law:  S1 can never be used to justify unconstitutional conduct – eg by police officers - although it can be by statute or regulation, express or implied, or by common law.  S8: o In Hunter v Southam: left open the question of relationship between the protection in s8 and s1 o R v Nobel (OntCA): great difficulty in concluding that an unreasonable search power was justified under s1 as a reasonable limit  S7: beyond question that the SCC will consider the possibility of demonstrably justifying violations although reluctant to do so o EG: R v Heywood: doubt as to whether any s7 violation could ever be justified except perhaps in times of war or national emerges, and overbroad leg‘n which infringed s7 would appear to be incapable of passing the minimum intrusion branch of the analysis. (iii) ―To the extent of the Inconsistency‖  Can a law be partially saved? o In Hunter v Southam and R v Oakes, court declined to do so. BUT indications of change in attitude: R v Holmes **Case: R v Grant [SCC, 1993]:  Held: S10 of Narcotic Control Act violates s8 because it authorizes warrantless searches but no requirement for exigent circs. Court decided to read it down as concerns generally associated with reading down don‘t arise here. C. Remedies - Stays: Remedies: Crown discretion and Judicial Stay as Abuse of Process (24(1))  By s. 579 for indictable offences, and s. 795 for summary conviction proceedings, the AG or his agent may stay any proceedings which have been instituted. Within a year the proceedings may be recommenced without laying a new charge, but if no such notice is given the proceedings shall be deemed never to have commenced. Crown Attorneys have virtually unfettered discretion as to when to charge, what to charge, and when the charge should be dropped or reduced. R v Smythe – (1971) court will typically not review exercise of discretion by Crown SCC has retained this attitude in era of Charter o AG should be held accountable in legislature, not courts Operation Dismantle v. R (1985): decision of a cabinet minister (or any exec) IS reviewable in the courts (thus, theoretically, also actions of Crown!)  BUT, courts have always recognized that there has to be prosecutorial discretion, and this does not automatically violate s.7 (or 9) UNLESS exercised for improper/arbitrary motives. R v TV (1992): confirmed that the discretionary powers of prosecutors were not per se contrary to s. 7  the judge should not have or appear to have any responsibility for the institution of a prosecution and the decision to prosecute was particularly ill-suited to judicial review  SCC added that prosecutorial power was not absolute, and that the trial judge could enter a stay as an abuse of process in the ―clearest of cases‖ Re Bradley and R (1975): Crown can take over private prosecution in summary conviction proceeding ―where justice to the accused seems to demand his interposition‖. Once taken over, Crown has discretion      Remedies: Judicial Stay as Abuse of Process 1. CL Abuse of Process Subsumed Under s. 7  originally C/L doctrine (now a s.7 doctrine) whereby judges will stay a criminal proceeding for abuse of process by police, Crown‘s + sometimes judges supervisory function of court  CL abuse of process is subsumed under the principles of fundamental justice guaranteed under s. 7 of the Charter (O‘Connor) EXCEPT  in those rare cases where the Charter does not apply (e.g. no Canadian state involved); NOTE  because ―abuse of process‖ subsumed under Charter, court has ability to fashion wide variety of remedies for abuse under s. 24(1) [e.g. - disclosure order + adjournment + costs]; HOWEVER  CL abuse of process used as the controlling authority in recent extradition cases (Cobb, Shulman) Historically:  Rourke v R - Maj somehow decided there wasn‘t a doctrine of abuse of process at all o stands for proposition that mere delay alone is insufficient for a stay as an abuse of process o Stuart: note, Charter 11b has since come in – time begins to run from date of charge.  R v. Jewitt (1985) : backs off of Rourke: o ―there is a residual discretion in the TJ to stay proceedings where compelling acc to stand trial would violate those fundamental principles of justice which underlie the community‘s sense of fair play and decency and to prevent the abuse of a court‘s process through oppressive or vexatious proceedings‖ o Only in the CLEAREST OF CASES  Keyowski : multiple trials due to hung juries not sufficiently ―clearest case‖ case [probably have to show that accused unable to get a fair trial!] o prosecutorial con duct and improper motivation are but two of many factors to take into account: o Abuse of process occurs when:  compelling accused to stand trial would violate the principles of fundamental justice which underlie the community‘s sense of fair play & decency; OR  when proceedings are ―oppressive or vexatious‖; 2. Test for Stay as Abuse of Process (O’Connor + Tobiass) - KEY  There is no Charter right to be ―free from abuse of process‖ o Charter‘s concerned with individual rights and integrity of justice system o Charter offers more flexible remedies (scalpel): can achieve remedies less drastic than a stay under 24(1) if ―clearest of cases‖ threshold not met, but where s.7 violated o Prosecutorial conduct that contravenes basis sense of decency and fair play and thereby calls into question the integrity of the JS is also an affront of constitutional magnitude to the rights of the individual accused.  abuse of process may be said to have occurred when: i) a particular Charter rights are abused, affecting fairness of trial: (may be accompanied by concerns about the integrity of the JS) a) e.g. - s. 11(b) right to trial w/in a reasonable time; b) e.g. - right to fair trial under s. 7 and 11(d) OR ii) residual category: ―panopoly of diverse and sometimes unforeseeable circumstances in which prosecution conducted in such an unfair manner that continuation of the process would undermine integrity of the judicial process‖  KEY: a stay as a remedy for abuse of process should only be granted if: i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; AND ii) where no other remedy is capable of removing that prejudice to right to make full answer and defence; iii) where irreparable prejudice would be caused to integrity of justice system by the prosecutorial misconduct ii) e.g. may violate s.7, but must be THE CLEAREST OF CASES!  stay as abuse of process under residual category are too be relatively rare (Tobiass): a) e.g. likely have to show that fair trial is no longer possible [material evidence missing] BUT NOTE – p.511  in recent extradition cases (Cobb, Shulman), SCC has gone back to the CL Doctrine of Abuse of Process (Keyowski) thereby: i) ignoring the restrictive approach of O’Connor or Tobiass; AND ii) stating that Cdn courts have an inherent and residual discretion at CL to control process and prevent its abuse;  R v Neil (2002) – leaves door open whether doctrine of abuse of process can be invoked where there is no state action ALSO NOTE  there are lots of remedies available under s. 24(1) for abuse of process other than stays: a) most common in case of Crown non-disclosure: disclosure + adjournment + costs (noted in O‘Connor p.509) 3. Delay and Abuse of Process  Length of delay [including pre-charge] is relevant in so far as it affects trial fairness (ss. 7 & 11(d));  but a lengthy delay alone (e.g. historic case) does not per se infringe the accused‘s rights - R v. L(WK) – 30 years! (might be an 11b violation)  FOCUS IN ASKOV/MORIN IS ON TIME, with prosecutor conduct as a factor to consider. FOCUS HERE IS ON CONDUCT which might incidentally affect time, BUT FOCUS IS ON ACTIONS OF THOSE IN POWER. o abuse of process might not necessarily involve time. Part 8: Role and Powers of Counsel Trial Process A. The Adversary System Phillips v. Ford Motor Co. (1971) Ont CA p. 473 ―This procedure assumes that the litigants, assisted by their counsel, will fully and diligently present all the material facts which have evidentiary value in support of their respective positions and that these disputed facts will receive from a trial judge a dispassionate and impartial consideration in order to arrive at the truth of the matters in controversy‖.  It is believed that the bias of the decision-maker can be minimized if he plays a much less active role than is demanded in the inquisitorial method. -the judge who himself conducts the examination of witnesses is seen as ―descending into the arena and is liable to have his vision clouded by the dust of conflict…‖   The goal of the lawyer is to present the best picture of his client, not the most complete. Also, the adversary system presupposes for success some equality between the parties and when this is lacking the truth becomes too often simply the view of the more powerful. The system cautions against the judge who ―evens the match‖ ―The inquisitorial method is the one used by every genuine seeker of the truth in every walk of life (not merely scientific and historical investigations) with only one exception… the trial system in the common law world‖ - Prof. P. Brett Our courts provide a forum for the purpose of resolving disputes between parties which they themselves have been unable to resolve in any other way. The parties should be able to leave the court feeling that they have had their say, that their case has been presented in the best possible light and that they have been judged by an impartial trier.    Frank, “Courts on Trial” 1950 p. 475 (with hair by Frank Lloyd Wright) -criticism of adversarial system -zealously partisan lawyers bring into court evidence which, in a dispassionate inquiry, might be overlooked -however, we have allowed the fighting spirit to become dangerously excessive -most obvious in handling of witnesses -we do the opposite of what would be most effective -unfamiliar circumstances -the lawyer considers it his duty to create a false impression, if he can, of any witness who gives testimony -seeks not only to discredit adverse witnesses, but also to hide the defects of witnesses who testify favorably to his client -a lawyer, if possible, will not ask a witness to testify who, on cross-examination, might testify to true facts helpful to his opponent -in short, a lawyer aims at victory, at winning the fight, not at aiding the court to discover the facts -he does not want the trial court to reach a sound, educated guess, if it is likely to be contrary to his client‘s interests -our present trial method is thus equivalent to throwing pepper in the eyes of a surgeon when he is performing an operation Hazard, “Ethics in the Practice of Law” (1978) p. 479 -no question of legal ethics is more difficult that the question whether an advocate can help suppress the truth in order to protect his client -paradoxically, the primary benefit of the system is often said to be the promotion of truth -the real value of adversary system thus may not be its contribution to truth, but its contribution to the ideal of individual autonomy -you are, in many cultures, expected to lie on your own behalf -the present ethical dilemma in the adversary system may therefore be ultimately traceable to the abolition of the common law rules of witness disqualification -to require a party to choose between imprisonment of financial self-destruction on the one hand, and complete truthfulness on the other, is to impose a moral burden that may simply be too heavy -rules clearly say that, even in the defence of criminal cases, the advocate may not assist his client in committing perjury or in otherwise fabricating or suppressing evidence -in practice, lawyers often wind up violating these rules, but they seek escapes from moral responsibility: -―no client is guilty until found so by a court‖ -indicate to the client how inconvenient it would be if the evidence were such and so, and leave it to the client to do the dirty work -advocate then absolved as merely ―an instrument‖ -North America different from English Barrister‘s system -barrister has no continuing relation with any client; his fee is fixed before trial in negotiations to which he is not a party and on a basis unrelated to eventual victory or defeat -the case is placed with a barrister through a solicitor as intermediary -barristers as a group are small in number, clannish, aristocratic, and closely tied to judiciary -seen as officers of the court -N. American lawyer can become so completely immersed in her lawsuits, they become identity and their outcome the sole criterion of professional stature -system in its present form is pretty sick Luban, “The Adversary System Excuse” (1984) p. 483 -―an advocate, in the discharge of his duty, knows but one person in all the world… his client‖ -institutional excuses -can a person appeal to a social institution in which he or she occupies a role in order to excuse conduct that would be morally culpable were anyone else to do it? -plausibly, yes… we do not call it murder when a soldier kills a sleeping enemy, although it is surely immoral for you or I to do it Greenspan, “The Case for the Defence” (1987) p. 491 -whenever a crime is committed, a large impersonal machinery goes into motion -however, this machinery has one built-in bias - it is an unconscious, functional bias, somewhat like an aircraft‘s bias for leaving the ground as soon as it has attained a certain speed -the bias of the justice system is to find guilt - that‘s the way the justice system flies -on abstract level, the remedy is the law‘s presumption that every person is innocent until proven guilty beyond a reasonable doubt -the second, concrete remedy is the lawyer for the defence - he drives the abstract engine of the presumption of innocence -he is the one person in the entire world, apart from the accused‘s mother, who starts with the assumption that the authorities must be mistaken -to balance the awe-inspiring machinery of the criminal justice system, the law permits one individual to be the accused‘s friend - his counsel -the defence lawyer is to balance the dozens of powerful professionals whose task it is to investigate and prosecute an accused person -the defence lawyer only defends a client, and not a crime -―I only defend innocent people. Until they are found guilty there are no other kinds of people for me to defend, and what difference does it make what an innocent person is accused of?‖ Schroeder, “Some Ethical Problems in Criminal Law” (1963) p. 494 -it is not for counsel to decide whether the client‘s story is improbable and to be rejected by him -experience in the courts has demonstrated again and again that improbable stories can be and are true, despite their apparent improbability -however, where accused admits guilt, a situation of great delicacy is created -does counsel withdraw, and ought he do so in fairness to client? -depends largely on stage of the trial -if trial sufficiently far off for client to retain new counsel, may be well advised to withdraw -however, if on eve of trial, or during course of trial, then you don‘t have a choice Martin, “The Role and Responsibility of the Defence Advocate” 1970 p. 498 -it is defence counsel, not the client, who decides what witnesses to call, whether he should crossexamine a witness, and if so how the cross-examination should be conducted -equally clear that there is at least one decision that only client can make: pleading guilty or not guilty -counsel must not allow an accused to plead guilty unless he admits he committed the act and had the mental state necessary to constitute the offence charged -he must not permit an accused, who denies committing the offence, to plead guilty because of some hoped for advantage such as a lighter sentence -counsel should explain to the client why it is necessary for him to be in control Freedman, “Professional Responsibility of the Criminal Defence Lawyer” (1966) p. 502 -the plea of not guilty does not necessarily mean ―not guilty in fact‖, for the defendant may mean ―not legally guilty‖ -even the accused who knows that he committed the crime is entitled to put the govt to its proof -accused has constitutional right to remain silent -plea bargaining frequently results in improper guilty pleas by innocent people Role and Powers of Counsel: Defence Counsel 1. The “Rule”: CBA Code Professional Conduct  The CBA states that the lawyer has to hold, in strict confidence: i) all information concerning the business and affairs of the client acquired in the course of professional relationship;  should not divulge such information; UNLESS disclosure is expressly or impliedly authorized by: a) the client; OR b) required by law; OR c) otherwise permitted or required by the CBA‘s Code of Professional Conduct 2. Duties of Defence Counsel  The duties of the defence counsel are somewhat contradictory to the ―role‖ required of a lawyer by the CBA IN THAT  the CBA lists the following duties of defence counsel: o duty of defence counsel to protect the client, as far as possible, from conviction except upon evidence to support a conviction; o defence counsel may rely on all evidence or defences including so-called technicalities; HOWEVER  the defence counsel must note the following if client admits all elements of the offence, defence counsel may: a) bring an attack upon the information or indictment; b) challenge the jurisdiction of the court; c) challenge the admissibility of certain evidence; BUT  defence may NOT: a) raise a defence that another person committed the offence or lead evidence to that effect; b) lead any evidence that he knows, by reason of the client‘s admissions, is false; c) make an affirmative case inconsistent with those admissions [e.g. by calling evidence in support of an alibi intended to show that the accused could not, or did not do, the act]; MOREOVER  because of admission of client defence counsel is entitled to more limited role: o he may ―test‖ the evidence of each Crown witness and argue that, on the whole, the Crown has not displaced its burden of proof - but he should not go further than that! B. Role and Powers of Counsel: Crown Counsel 1. Powers of the Prosecutor  Powers of Crown counsel are virtually unfettered in terms of: a) when to charge; b) what to charge; c) when charge should be reduced or dropped; WHEREBY  the Crown has absolute discretion to chose to proceed by way of summary conviction or indictable [in case of hybrid offence] (Smythe); AND  by virtue of s. 579 (for indictables) and s. 795 (for summary conviction) the Crown can stay proceedings (w/out an explanation) & may recommence proceedings w/out relaying charges w/in 1 year - if not recommenced it shall be deemed that no such proceedings ever began; HOWEVER  if Crown chooses to withdraw charges it must be done before the trial starts (i.e., before they lead evidence) - otherwise it‘s up to the judge to decide whether to stay proceedings [judge can say: no, you started this shit now we‘re going finish it - accused is entitled to a verdict!] NOTE  Crown has power to take over any private prosecution whether complainant wants them to or not (Bradley); 2. Role of the Crown  Before going through with a charge, Crown should screen the charge for ―reasonable prospect of conviction‖; WHEREBY  ―reasonable prospect of conviction‖ involves the following factors: i) availability of the evidence; ii) admissibility of the evidence; iii) some assessment of the credibility of the witnesses; iv) consideration of any defences that should reasonably be known or have come attn of the Crown; v) is it in the public interest to discontinue the prosecution [a proverbial ―shit-load‖ of factors - “ the kitchen sink …‖ - Stuart says!];  Crown should be aware of certain limits on their trial demeanor: i) Crown can‘t give opinion as to guilt or innocence of accused (Boucher, SF); ii) Crown can abuse witness by accusing of lying; iii) Crown shouldn‘t arrogant or flippant (SF) “… tone, tone, tone, tone, tone … everything must sound so reasonable. But why is the Ont. C.A. being so fucking picky?. Why can’t we be sarcastic? Especially with an obnoxious witness.‖ G.T. Trotter, Nov. 2001 Part 9: Preliminary Inquiry Prior to the trial of certain indictable offences, a justice of the peace, usually a Prov. Ct. Judge, will inquire into the charge and determine whether there is sufficient evidence to warrant placing the accused on trial A. Preliminary Inquiry: Procedure 1. When Does Accused Get Prelim?  Prelims are largely only used in murder cases nowadays (s. 469 offences);  accused charged w/ a s. 469 ―exclusive jurisdiction‖ offence (i.e., murder) must have a prelim [s. 469 offences have to be tried in Sup. Ct.):  prelims are optional for all other indictables (electable indictables) [accused can ―elect up‖ to go to Sup. Ct. and therefore must have a prelim];  EXCEPT FOR o s. 553 ―absolute jurisdiction‖ indictables that must be tried in Prov‘l Ct; o of course, any summary conviction offences (held in Prov‘l Ct);  accused can always waive right to prelim for s. 469 offence (murder);  s.535 – judge (in a preliminary inquiry) shall inquire into that charge and any other offence that might arise from the transaction  reversed R v Chabot  Crown can prefer direct indictment (s. 577 - but need permission of AG to do so!) where: a) prelim has not been held; OR b) prelim has been held and accused has been discharged a. R v Arviv: there is no absolute right for an accused to be given a hearing or to submit representations before preferment of a direct indictment and that power does not infringe s. 7 of the Charter. e) No real right of appeal for prelim, only if you don‘t have jurisdiction. Preliminary as a Discovery Vehicle Skogman v. R. (1984) SCC -prelim has another purpose - to afford defence counsel an opportunity for discovery. Note, largely supplanted by R v Stinchcombe‘s requirement of discovery -purpose of prelim is to protect the acc from a needless and indeed improper exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. 2. Committal – Sufficiency of evidence  Where an accused charged w/ an indictable offence is before a justice, the justice shall inquire (s. 535): o into the charge found on the information; AND    any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence lead in the prelim; WHEREBY the judge must see if there is sufficient evidence to commit accused to trial (s. 548(1)(a) by applying the following test [same test for ―directed verdict‖; ―extradition‖]: “Was there evidence lead upon which a reasonable jury, properly instructed could be satisfied of the accused’s guilt BRD?” (Sheppard Test, cited in R v Arcuriincorporating BRD standard into assessment) there is never any assessment of credibility of witnesses during prelim (that‘s for the jury); The nature of the judge‘s task varies w/ the type of evidence lead by the Crown (Arcuri, adopts McLachlin’s dissent in Charemsky): o If ―direct evidence‖ wrt every element of the offence:  no weighing of evidence – only as if evidence is ―true‖ (ie. was witness capable of observing -- e.g. blind)  accused must be committed to trial if there is any direct evidence (e.g. witness account of crime, DNA, etc) o If some circumstantial wrt elements of offence:  limited weighing of evidence - whether evidence, if believed, could support inference of guilt  see R v Nelles – all evidence circumstantial – now, could only do a LIMITED weighing.  R v Charemsky – if any doubt, weighing should be left to TOF  look at any defence evidence (if lead);  no consideration of inherent reliability of evidence itself;  assessment of whether evidence is reasonably capable of supporting inferences – if reasonable jury, properly instructed, could decide on this issue.  the incorporation of the standard of BRD into the committal test wrt circumstantial evidence was not mentioned in Arcuri - but this has been done in post-Arcuri cases! [Delisle says this is logical]  Had said BRD in dissent in Charemsky. o 3. After Committal: Preferring the Indictment  Crown may prefer an indictment against person ordered to stand trial in respect of (ss. 566 & 574): i) the charge found in the information (original charging document); AND ii) any charge founded on the facts disclosed by the evidence taken on the prelim; 4. Publication Ban on all Prelims  evidence is usually all one-sided (all Crown) - so would present lop-sided view to public! Part 10: Disclosure and Discovery   Discovery – allows one to find specific information, if they ask; Disclosure – giving info. note: from Crown perspective, disclosure of evidence can increase number of guilty pleas –so it might not be as one sided as it appears A. Disclosure and Discovery: Disclosure 1. Pre-Trial Conferences (s. 625.1)  This process looks like disclosure but it is basically designed to promote a ―narrowing of the issues‖ before trial;  pre-trial conferences are meant to ―promote a fair and expeditious hearing‖; ‗ o can be granted upon request of either Crown, defence or judge; o pre-trial conference is mandatory before a jury trial 2. Crown Duty to Disclose: Stinchcombe  Pursuant to s.7 of the Charter, Crown has a duty to disclose to accused all material that is not clearly irrelevant, including: o witness statements; o will-say statements (summarized anticipated evidence of witness); o police notes; o anything in the Crown brief; o note: requirement applies for all types of offences, serious and non.  the obligation to disclose is a continuing obligation BUT process of disclosure is not actually triggered until material is asked for (Stuart – bureaucracy!)  the Crown has limited reviewable discretion in deciding not to disclose material that they feel is ―clearly irrelevant‖ or in deciding to delay disclosure of certain material (for safety reasons; or because of on-going investigation); o relevance = low threshold of logically relevant to a material issue at trial (evidence threshold). THUS – ―clearly irrelevant‖ is a high hurdle if you‘re trying to keep information away from defence.  the Crown has a duty not to disclose privileged material: o solicitor-client privilege; o informer privilege –unless, as per above s.8, necessary for proof of innocence (re. Liepert, names of informers re. warrants)  TJ can review on appeal from defense whether or not information should be disclosed  only material that is the possession or control of the Crown must be disclosed;  that material in the hands of the police, whether know about by the Crown or not, must be disclosed  R v Morris  R v. Brouillette - QCA – no obligation for defense  R v Vokey – if police didn‘t tell Crown: doesn‘t matter if they know of info or not.  R v Chaplain – only things that are in control of Crown NOTE: interpreted that what is in hands of police is in control of the crown.  R v McQuaid – defense must not remain passive, and must pursue disclosure! o Further, if didn‘t complain about level of disclosure at trial, can‘t do so on appeal.  Chaplin – SCC – said right to disclosure is confined to material in possession of the crown.  Unnamed Edmonton Gang case –70,000 pgs of transcript disclosed right before trial is unfair!  Dickson – duty to assert disclosure w/reasonable diligence. 3.    Remedy for Non-Disclosure Can get a stay of proceedings for non-disclosure; However, this remedy is very rarely granted, particularly after O’Connor: TYPICALLY have to show deliberate non-disclosure to get a stay of proceedings;   the usual remedy is to grant the defence request to order disclosure, grant the defence an adjournment, and then award costs (because of the delay); if there has been an appeal to C.A. because of non-disclosure, the C.A. will typically send it back for a new trial (w/ disclosure ordered and costs awarded) B. Disclosure and Discovery: Discovery of 3rd Party Records (s. 278) Seaboyer 1991 -rape shield law – whether defense can CE re. prior sexual conduct with others or acc  court struck this down (McLachlin) – too narrow, but put into place guiding principles -famous dissent by LHD; set out evils of myths/stereotypes in SA context -Maj: notes complainants have equality interests, but the rights of acc to fair trial outweigh this Bill C-49 -response to Seaboyer -―new‖ rape shield law – criteria essentially those set out by McLachlin in Seaboyer! (Re. tests) -addressed issues of consent AND mistaken belief -an honest belief will not get you acquitted; are under duty to take reasonable steps to ascertain that complainant consented Ewanchuk –1999 -Imposed extra limits on mistaken belief in consent defense have to believe that consent was communicated! not that it just existed can‘t take passivity/ambiguity/silence as consent any refusal of consent means you have to stop Darrach – 2002 -new rape shield laws held to be constitutional TODAY: Problem: pursuant to Stinchcombe, counsel were petitioning all types of records. e.g. counseling, etc.  Stuart: ―fishing expeditions‖ 1. Which Procedure: O’Connor or s. 278?  If crime alleged is of sexual nature use s. 278 procedure;  HOWEVER, if non-sexual crime, but defence still requests disclosure of 3rd party records, then use the procedure outlined in O’Connor  S.278 Notes p.628 o Preamble assets s.15 equality right for women/children complainants o Although relevance test remains, 10 specific assertions are declared insufficient on their own to establish relevance or to address competence o TJ has to balance PRIVACY and other issues, before deciding re. production o TJ may only order production to ACC on consideration of 7 factors listed by LHD (not just the 5 from O‘Connor) o Two stage balancing process applies to records in possession of the Crown. 2. BILL C-46 s. 278 Procedure: 2 Stages [legislative adoption of minority in O’Connor upheld in Mills] STAGE 1 - disclosure to the judge  In order to have material produced to the TJ, accused has the onus of demonstrating that the material is likely to be relevant to: a) a material issue at trial (e.g. guilt/innocence of accused); OR b) the competence of a witness to testify;  AND that the production of record to the court is necessary in the interests of justice;  accused‘s application must be in writing and must set out: i) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; AND ii) the grounds upon which the accused relies to establish that the record is likely relevant to an issue at trial or the competence of a witness to testify; [also accused has responsibility to subpoena the record holder and the records, and to serve notice to the record holder, the prosecutor, and the person who has a privacy interest in the record!]  the judge must consider the following in deciding whether the likely relevance threshold has been met according to the following test: ― Is there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify?‖  HOWEVER, any one of the following assertions on their own is not sufficient to establish that the record is likely relevant to an issue at trial or the competence of a witness to testify: a) that the record exists; b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving; c) that the record relates to the subject matter of the proceedings; d) that the record may disclose a prior inconsistent statement; e) that the record may relate to the credibility of the complainant; f) that it may relate to reliability simply because complainant/witness received treatment; g) that the record may relate to allegations of sex abuse by person other than the accused; h) that record relates to presence or absence of a recent complaint; i) that record relates to complainant‘s sexual reputation; k) that record was made close to time of alleged sexual offence;  BUT if the accused can rely on one of the above assertions if he can point to case specific evidence or information to show that this evidence is likely relevant to an issue at trial or competence of witness to testify: a) accused point to something in Crown disclosure that establishes evidentiary basis; b) accused can point to evidence to be given by a defence witness; c) evidence adduced through cross-examination of Crown witnesses at trial; d) expert evidence;  will still have to consider ―likely relevant threshold‖ though.  in deciding whether or not to order disclosure to the judge, the judge shall consider the salutary and deleterious effects on the following: a) accused right to make full answer and defence; Vs. b) right to privacy and equality of the complainant or witness; taking into account the following factors: (even though hasn‘t seen yet, that‘s ok) a) the extent to which the record is necessary for the accused to make a full answer and defence; b) the probative value of the record; c) the nature and extent of the reasonable privacy wrt the record; d) whether production of the record is based on discriminatory belief or bias; e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; f) society‘s interest in encouraging reporting of sexual offences; g) society‘s interest in encouraging the obtaining of treatment by compainants of sexual offences; STAGE 2 – PRODUCTION TO COURT  if the likely relevant threshold is met, the judge shall look at the material in camera and determine whether the records should be produced to the accused (subject to any conditions) by again considering the salutary and deleterious effects of production to the accused on a) the right of accused to make full answer and defence; AND b) the privacy and equality rights of the complainant or witness; and by using the same salutary and deleterious factors as laid-out above (a-h);   this procedure is to be used even if the records are in the possession/control of the Crown! (unless the person who has an interest in the record has waived privacy right in those documents). (CHECK WHAT CASE THIS IS FROM – see above) Judge may impose conditions Stuart: THUS, you have enforceable privacy rights for complainant in SA cases. -Implications? Can‘t JUST be WRT access to records? Arent these rights more general? Most courts have disagreed on this though. -Isn‘t it strange that there is only constitutional protection for victims in this ONE particular context? Particularly in light of crimes like domestic assault -Note: there are other contexts in which people make applications for disclosure in areas other than SA (? where does he get this from?) -Mills says err on side of production, Stuart says pro comp. Shearing says pro-acc -Note: Steve Coughlan argues that there is still considerable room for discretion. -ie. that judges can still essentially ―do what they want‖ CONSTITUTIONAL DISCUSSION: Tension between full answer + defense, privacy + equality Need Balancing  no hierarchy of rights no single principle is absolute + capable of trumping the others 1. Full Answer + Defense [s.7]  s.7 does not afford the accused the most favourable proceedings imaginable  crucial right to ensure that innocent are not convicted  must be det in the context of other principles of fundamental justice  no right to evidence that distorts the truth 2. Privacy [s.8]  interest of being left alone by the state incl the ability to control the dissemination of confidential info  values protected by privacy rights are most at stake where confidential info contained in records concerns aspects of one‘s individual ID (sounds like making reference to a diary) or where the maintenance if confidentiality is crucial to the therapeutic or trust-like reln 3. Equality [s.15]  no s.15 analysis (Law comparator = complainant in non-sex case) w/ ref made to Osolin [equality in the context of limitations placed on cross-exam of complainants]  Seaboyer eliciting evidence from the complainant for purpose of encouraging inferences pertaining to consent or credibility of rape victims which are based upon groundless myths + stereotypes is improper  Where boundary between privacy + full answer and defense is unclear, the equality of the individual will be effected b/c they will be subjected to wrongful scrutiny SUMMARY  full answer + defense will be more implicated where the info contained in the record is part of the case to meet (ie. relevant) OR where its potential probative value is high  complainants privacy interest is very high where the confidential info contained in a record concerns the complainants personal ID or where confidentiality is crucial to the protection of the therapeutic or trust-like reln  Stuart = when in doubt rule for the complainant (ie. equality is a tie-breaker in favor of complainant)  Coughln = not pro-complainant b/c Mills grants judges significant discretion re production of record where doing so would be in the nature of justice R v Shearing  backing off of Mills notion of balancing rights!  Should D be able to cross-exam complainant on diary in D‘s possession including omissions/absence of entries re alleged sexual abuse? YES  Admissability at issue NOT Production Judge should have used Seaboyer not O’Connor + Mills o b/c diary in possession of D consider probative vs prejudicial effect: consider if cross on diary would create prejudice to complainant that substantially outweighs” its potential probative value to the accused and in that regard whether cross on absence of entries recording abuse relies upon rape myths o balancing of interests =/ substantially outweighs rejection of balancing of rights in context of admissability of evidence (higher threshold must be meet)  BUT: Key  Equality + Privacy INTERESTS o Mills did not shift the balance away from the primary emphasis on the rights of the accused Shearing is silent on the issue of no hierarchy of rights + language is softened from rights to interests  ―Mills itself affirms the primacy –in the last resort—of the requirement of a fair trial to avoid the wrongful conviction of the innocent‖  cites from Mills ―where info directly bears on right to make full answer and defense, privacy rights must yield to need to avoid convicting innocents‖ o Where rights of the accused and privacy + equality concerns of complainant clash on issue of admissability, the rights of the accused must be given priority inconsistent rights of accused + complainants are not capable of being balanced o in Shearing pre-eminence is given to the accused right to make full answer + defense privacy + other concerns are NOT of sufficient importance to substantially outweigh the accused right to fair trial  Note: Seaboyer o although complainants had privacy + equality concerns(interests), the line has to be drawn short of the point that resulted in an unfair trial + the possible conviction of an innocent person  Dissent (L’HD) o privacy rights (s.8) are NOT strictly tied to proprietary interests possession of the diary by D should have no bearing on the complainants right to privacy therein. o o Further, diary was essentially stolen. Should have returned to D and made an order for production. allowing cross on omissions in diary revives doctrine of recent complaint, one of the myths and stereotypes. 3. O’Connor Procedure (non-sexual offences)  In order to have the material produced to the judge, accused has the onus of demonstrating that the material is likely to be relevant: i) defence must bring formal application for discovery/production; ii) application is supported by affidavit outlining the specific grounds for production; iii) notice must be given to those in possession of the records and the person who has a privacy interest in the records (complainant); iv) accused ensures that custodian and records are subpoenaed; WHEREBY  the judge must be satisfied that there a reasonable possibility that the material is logically probative to: a) a material issue at trial; OR b) the competence of a witness to testify; NOTE  this first stage is not to be a “high hurdle” for the accused because; a) hard to make a case for the relevance of something you‘ve never seen; b) the following are examples of why such info would be relevant to accused: i) records may contain information about unfolding of the complaint; ii) use of therapy to influence memory; iii) information bearing on credibility; THEN  if likely relevant threshold is satisfied, records are produced to the judge, and judge decides whether or not to produce records to the accused according to the following test: i) the judge must weigh the salutary and deleterious effects of a production order and determine whether or a non-production order would constitute a reasonable limit on ability of accused to make full answer and defence; ii) in weighing such interest the judge should consider the following factors: a) the extent to which the record is necessary for the accused to make full answer and defence; b) the probative value of the record in question; c) the nature and extent of the reasonable expectation of privacy vested in that record; d) whether production of the record would be premised upon any discriminatory belief or bias; e) the potential prejudice to the complainant‘s dignity, privacy or security of the person; NOTE  under this test, information in the Crown brief is governed by Stinchcombe, not O’Connor 4. Loss of Evidence in Possession/Control of Crown  Where evidence is lost, the Crown has a duty to explain the loss to the t.j. WHEREBY  if the Crown satisfies the t.j. that the evidence has not been destroyed or lost due to unacceptable negligence, the duty to disclose has not been breached; HOWEVER  if the Crown is unable to satisfy the t.j. that the loss was not due to unacceptable negligence then the Crown has failed to meet its duty to dislcose and there has been a breach of s. 7; BUT NOTE  whether or not the Crown has breached its duty to disclose will depend upon the perceived relevance of the evidence at the time it was received: i) even loss of relevant evidence will not result in breach of duty to disclose if conduct of police is reasonable; WHEREBY ii) as the relevance of the evidence increases - so does the duty of degree of care for its preservation expected of the police; MOREOVER  the following might amount to ―abuse of process‖ on part of Crown/police: a) deliberate destruction of material by the police or other officers of Crown for purpose of defeating Crown‘s disclosure obligations; OR b) a serious departure from the Crown‘s duty to preserve material subject to production WHEREBY  the loss of a document in certain circumstances might be so prejudicial to the accused‘s right to make full answer and defence that only a stay of proceedings can remedy the situation 5. Loss of Evidence Subject to Production Order: Evidence in Hands of 3rd Party  If evidence is in the hands of a 3rd party (not in possession/control of Crown) and such evidence is subject to a production order (s. 278, O’Connor), and such evidence is deliberately destroyed documents; THEN  if accused‘s right to make full answer and defence (under s. 7) cannot be remedied by any other means OR irreparable prejudice would be cause to the integrity of the judicial system if the prosecution were continued;  THEN a stay of proceedings will be ordered – stay due to violation of production order, not as an abuse of process (Carosella)  R v. La and R v. Vu – backs off of Carosella re. destroyed/lost evidence o neatly divides into three issues  1-can get a remedy if there was unacceptable negligence in either police or crown‘s work. Duty to preserve evidence under s.7  2-deliberate destruction amounts to an abuse of process (changes Carosella, though that wasn‘t a state action)  3-fair trial – sometimes the loss of a document is so grievous as to amount to an unfair trial, and a stay may be necessary o where the Crown‘s explanation satisfies the judge that he evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached o as the relevance of evidence increases, so too does the duty on Crown and police to preserve it Part 13 Jury Selection     Purpose of a jury trial – trial by peers; appeal to common sense; take mystique out of law; public accountability; ―justice‖ goes back to classification of offenses. -summary conviction = no right to jury trial -indictment = right to jury trial p.837 – ―and the horrible thing about all legal officials, even the best, about all judges, magistrates… is not that they are wicked, stupid, but simply that they‘ve gotten used to is‖ Many judges have strong faith in jury system. Dickson‘s ―trust in the good sense of the jury‖ A. Jury Selection: Challenges to Jurors 1. Fundamental Elements of Jury (Sherratt – pretrial publicity case)  If the accused has been charged w/ an offence that has a max punishment of 5 yrs or more, he has a right to a fair and impartial jury, and this right is bolstered by: a) s. 11(d) of Charter: ―hearing by a fair and impartial tribunal‖; b) s. 11(f) of Charter: if charged w/ offence punishable by 5 yrs or more, get a jury trial;  LHD: impartiality and, to a lesser degree, representativeness of jury are the hallmarks of our system 2. Challenges to the Array (s. 629)  These challenges are very rare;  After an array of 100 jurors is randomly selected and assembled by the Sherrif, it is open to both counsel to challenge the array;  Challenges to the array may only be made on the following grounds (s. 629): partiality, fraud or wilful misconduct on the part of court official; e.g. - artificially skewing the composition of panel to meet demands of a distinct segment of Canadian society, even if to make it more representative(Born With A Tooth); e.g. – no right to a particular type of cultural representiveness on jury. If that‘s an issue, can call expert evidence instead, or try challenge for cause re. bias (R v F(A))  challenges to the array have to be in writing, alleging that the official was fraudulent;  it is up to the discretion of the judge to determine if the allegation is true [if it is true, the judge directs a new panel to be selected 3. Excusing Jurors (s. 632)  Judge can excuse any empannelled jurors for reasons of: o personal interest in the case [e.g. police officer‘s brother]; o relationship w/ judge, prosecutor, accused, defence counsel, witness; o personal hardship (Stewy‘s mom) 4. Process  Defence is called upon first to indicate whether he challenges a juror for cause or peremptorily;  thereafter the Crown and the defence are called upon alternately;  Once juror is challenged for cause, other party can either accept the challenge or not accept it and it goes to a ―mini-trial‖ before the triers [then if party loses the challenge, can still challenge peremptorily] 5. Peremptory Challenges (s. 634(2)) – no reasons necessary  Crown and defence get equal number of challenges: a) 20: accused charged w/ first degree murder or high treason; b) 12: accused charged w/ offence [other than in ―a‖] where he may be sentenced to imprisonment for a period exceeding 5 yrs; c) 4: for all other offences;  if two accused tried together, get the same number of peremptory challenged if tried alone and Crown gets total of the two (s. 634(4);  if two or more counts to be tried on indictment together: only get the number of challenges that the count which offers the greatest number of challenges allows (can‘t add them up!) (s. 634(3)  Canadian practise is that lawyers are provided with very limited information as to personal details of prospective jurors o basically: get computer printout with: name, address, occupation, age (crown gets info on whether juror has criminal record- via CPIC) o AND – visual impression at the date of selection. o Stuart: suggests amateur psychology, stereotypical decisions going on. o have to be strategic, of course.  R v Caldough – crown had telephoned prospective jurors and asked basic q‘s – not ok here  R v Latimer – crown had issued survey to 30 prospective jurors on feelings of euthanasia – overturned  See R v Biddle below– Crown had orchestrated all female jury. This was ok. 6. Challenges for Cause (s. 638(1)) Challenges for Cause: General  Both the Crown and the defence are entitled to an unlimited number of challenges for cause based on the grounds that: ―a juror is not indifferent btw the Queen and the accused‖  two triers of cause are selected from the panel: i) two people selected at random from the panel to serve as the first 2 triers; ii) thereafter the last two sworn jurors serve as the triers;  if a challenge for cause is made, the other party may accept the challenge, or they may disagree - causing the issue of ―cause‖ to go before the triers to determine if the challenge is warranted;  even if a triers don‘t find that the challenge was warranted, the challenging party may still exercise one of her peremptory challenges (s. 634)    accused is entitled to an impartial and representative jury - not a favourable one (Hubbert) sworn jurors are presumed to do their duty, you can‘t ask a whole pile of questions to try to find out about all the underlying proclivities of a prospective juror (Hubbert) Can‘t necessarily challenge on general grounds: minority, religion, political belief. Challenges for Cause: Pre-Trial Publicity (Sherratt)  Challenges for cause are not meant to be extraordinary;  although jurors are presumed to behave according to their oaths and trial judge has wide discretion over the challenge for cause process;  Nevertheless, these two principles cannot supercede the accused‘s right to a fair and impartial jury and the trial judge cannot simply take over the challenge process and decide controversial questions of partiality; where the accused can establish that there is a realistic potential for the existence of partiality amongst potential jurors (i.e., there must be an “air of reality” to the potential), then the threshold to challenge for cause has been met; the trial judge must allow the party SOME ABILITY to challenge for cause WRT media publicity (Zundel) o Can ask as to whether have formed opinion based on what they had heard, read, seen in the media o If have any opinions, would the juror be able to come to a decision as to verdict despite opinion? mere dissemination of facts by media is not sufficient to meet the threshold for realistic potential for impartiality: a) media must go beyond reporting of mere facts; b) media likely has to make misrepresentation, or at least speculate on guilt/innocence of accused; c) not necessarily a ―notorious episode‖ (Zundel) d) If coverage way before trial, reports more concerned with search and discovery of victim and victim‘s reputation than issues re. accused, not enough (Sherratt) the test for whether pre-trial publicity met the threshold is: Whether the particular publicity and noteriety of the accused could potentially have the effect of distroying the prospective jurors indifference (Zundel p.854)     Challenges for Cause: Race (Parks, Williams esp)  Anytime you have a minority accused, you can make a race-based challenge for cause (Williams) provided: a) the Sherratt threshold is met;  Need to establish evidential basis of realistic possibility that a potential juror would be biased (ie. attitudinal) – through expert evidence  was there a realistic possibility that this prejudice would affect the decision (ie. behavioral) – Williams  very low threshold, provided attitudinal met. This is because it‘s very difficult to prove! Only jurors have that info! b) Also, court can take judicial notice of the racism;  facts that are so notorious as to not be the subject of dispute among reasonable persons  facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy  the question you can ask should not seek to challenge prospective jurors on their beliefs, opinions etc. - but instead on their ability to set aside certain beliefs (if they are present) in order to do their job as a juror: Would your ability to judge the evidence in this case w/out bias, prejudice or impartiality be affected by the fact that the accused/victim is ________ ? [the Parks/Williams question]  there are three benefits to allowing the questions (Parks) o 1-some potential jurors who would discriminate are eliminated o 2-prospective jurors are sensitized to need to confront personal racial bias and ensure it does not impact their verdict o 3-permitting the question enhances the appearance of fairness in the mind of the accused. NOTE  it is open to the Crown to challenge for cause based on the race of the victim (Rogers)  p.875 – Kerr: judge allowed challenge for cause to include questions in addition to that allowed in Parks – specifically re. blacks from Jamaica in crimes involving drugs; and reliability of police officer -Stuart: this is the farthest that this has gone.  p.876 – R v Cameron – sequel to Parks -wanted to limit to TO – nope!  p.876 – R v Wilson -Parks inquiry should be applied to all of Ontario  p.877 – R v. Alli – generic prejudice and (homo)sexual prejudice -Doherty essentially writes judgment to restrict his ruling in Parks -talks of a need for evidence -one of grounds for prejudice rejected here was prejudice against homosexuals (no evidential foundation for this, he states) -Stuart: this is something to be intrigued about – seems just as likely to be established. -p.877 – R v Koh – any visible minority can get benefit of Parks inquiry Challenges for Cause: Offence Based Challenges based on Generic Prejudice (Find)  R v. Biddle: Crown had orchestrated all female jury o Ont CA: gender does not establish reasonable apprehension of bias – ―a strong association with the plight of the victim does not equate with bias in favor of the prosecution‖ o SCC: McLachlin – denies ―representativeness‖ is ever truly possible. Goal is to address impartiality.  Stuart: but clearly Crown manipulated jury selection strategically!   R v Williams obiter had opened up door to ―generic prejudice‖ –incl offences– if evidence. Although initially the courts were not open to the idea of offence-based challenges (Betker): a) rejection of Paciocco and Skurka‘s research (nice idea - but too anecdotal, no empirical studies); b) did not believe that there was generic prejudice against sex offenders [because of it‘s shocking nature] that would prevent jurors from being impartial; Moldaver J.A. later changed his mind in dissent in KA and said that there wasn‘t the same amount evidence needed to allow for offence based challenges after Williams [McLachlin J. talked about challenges based on generic prejudice against sex offenders] - BUT this stance by Moldaver was rejected by the majority! LEADING CASE: the notion of offence based challenges based on generic prejudice was ultimately rejected by McLachlin in Find:   i) says that the 2 step-test for challenges (first determine if potential for widespread prejudice; then determine if individual jurors incapable of setting biases aside) - are not watertight compartments!  Attitudinal: Have to establish that a widespread bias exists in the community o ―widespread‖ = belief must be sufficiently pervasive to raise possibility that it might be harboured by more than one juror o requires evidence, judicial notice, or trial events demonstrating a pervasive bias in the community  Behavioral: It has to be shown that some jurors are incapable of setting aside this bias, despite trial safeguards, to render an impartial decision o establishing link is a matter of proof, judicial notice, or reasonable inference ii) says Paciocco, Tanovich and Skurka‘s work is no good;  Does not establish widespread bias re SA.  Also rejects: victimization, strongly held beliefs, myths/stereotypes, emotional nature of offences.  None of the evidence therein is sufficient evidence for judicial notice of widespread bias. iii) says that racial prejudice is different than the other types of generic prejudice;  strong views about SA are not enough for behavioral bias differences: race impacts more directly; trial safeguards less effective re. race; bias re. offences are more likely to be overt, and thus cleansable by trial; iv) KEY: Challenge for cause should only be allowed where a realistic potential exists that some jurors might not be able to function impartially despite judicial (“cleansing”) processes:  Jurors swear to discharge function impartially  Jurors are instructed NOT to decide based on own personal views but listen to each other‘s views + evaluate their own inclinations in light of their own views + judge‘s instructions  Instructed that cannot convict unless they are unanimously satisfied of A‘s guilt beyond a reasonable doubt  ―This is not to suggest that an accused can never be prejudiced by the mere fact of the nature and circumstances of the charges; rather, the inference between social attitudes and jury behavior is simply far less obvious and compelling in this context, and more may be required to satisfy a court that this inference may be reasonably drawn‖ –p.897 But why not let people make offence-based challenges? Where is the harm? Some crimes are so shocking that some jurors may not be able to act impartial at all!  problem : ―slippery slope‖  where to draw the line? LHD got the idea of the ―twin myths‖ for the rape shield laws from one article. So why reject Tanovich/Skurka/Paciocco‘s work?