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Criminal Procedure Summary

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					Suzanne Amiel                                                                                                                                                                                                        Prof. Alana Klein
Criminal Procedure                                                                                                                                                                                                           Fall 2010

                                                        CRIMINAL PROCEDURE SUMMARY

                                                                                              TABLE OF CONTENTS

I. INTRODUCTION TO CRIMINAL PROCEDURE .................................................................................................... 4
              Kent Roach, “Due Process and Victims’ Rights: the New Law and Politics of Criminal Justice” ...................................................... 4
              Excerpt 1: National Council of Welfare Report – Justice and the Poor ........................................................................................................ 6
              Excerpt 2: National Council on Welfare Report – Justice and the Poor, “The Police and the Poor” .............................................. 6

II. JURISDICTION AND CLASSIFICATION OF OFFENCES .................................................................................... 6
      1. Jurisdiction of the Courts .......................................................................................................................................................... 6
      2. Classification of Offences .......................................................................................................................................................... 8
III. POLICE POWERS ...................................................................................................................................................... 9
   SOURCES OF POLICE POWERS ......................................................................................................................................................... 9
      1. The Principle of Legality ........................................................................................................................................................... 9
              Colet v. the Queen (1981 SCC) ......................................................................................................................................................................................... 9
         2. The Ancillary Powers Doctrine .............................................................................................................................................. 9
        Dedman v. the Queen (1985 SCC) .................................................................................................................................................................................. 9
        R. v. Mann (2004 SCC) ...................................................................................................................................................................................................... 11
    POLICE STOPPING POWERS: INVESTIGATIVE DETENTION ..................................................................................................... 11
         1. The Standard for Investigative Detention ..................................................................................................................... 12
              Mann (reprise) ..................................................................................................................................................................................................................... 12
         2. Defining Investigative Detention ....................................................................................................................................... 13
        R. v. Grant (2009 SCC) ...................................................................................................................................................................................................... 13
        R. v. Suberu (2009 SCC) ................................................................................................................................................................................................... 14
    POLICE STOPPING POWERS: ROADBLOCK AND STATUTORY STOPPING POWERS .............................................................. 15
         1. Roadblock Stops ......................................................................................................................................................................... 15
              R. v. Clayton (2007 SCC) .................................................................................................................................................................................................. 16
         2. Statutory Motor-Vehicle Stopping Powers .................................................................................................................... 16
              R. v. Hufsky (SCC 1988) ................................................................................................................................................................................................... 16
              R. v. Mellenthin (SCC1992) ............................................................................................................................................................................................ 17

IV. SEARCH AND SEIZURE ........................................................................................................................................ 17
  CONSTITUTIONAL FRAMEWORK OF SEARCH AND SEIZURE.................................................................................................... 18
        Hunter et al. v. Southam Inc. (1984 SCC)................................................................................................................................................................. 18
        R. v. Collins (1987 SCC) .................................................................................................................................................................................................... 19
    A REASONABLE EXPECTATION OF PRIVACY.............................................................................................................................. 20
        R. v. Edwards (1996 SCC) ............................................................................................................................................................................................... 20
        R. v. Tessling (SCC 2004) ................................................................................................................................................................................................. 21
    WARRANTS AND WARRANTLESS SEARCHES ............................................................................................................................ 23
         1. Search Warrants........................................................................................................................................................................ 23
              R. v. Morelli (2010 SCC) ................................................................................................................................................................................................... 24
              R. v. Bernard (Ont. SCJ 2009) ........................................................................................................................................................................................ 25
         2. Warrantless Searches .............................................................................................................................................................. 25
              R. v. Caslake (1998 SCC) .................................................................................................................................................................................................. 25
              R. v. Golden (2001 SCC) ................................................................................................................................................................................................... 26
              R. v. Godoy (SCC 1999) ..................................................................................................................................................................................................... 27
              R. v. Law (SCC 2002) ......................................................................................................................................................................................................... 28
              R. v. Buhay (SCC 2003) ..................................................................................................................................................................................................... 28
              R. v. Borden (SCC 1994)................................................................................................................................................................................................... 29
              R. v. Kennedy (2000 BCCA) ............................................................................................................................................................................................ 29
              R. v. Clement .......................................................................................................................................................................................................................... 29

V. ARREST, RIGHTS ON ARREST, AND RIGHTS DURING INTERROGATION ............................................ 29


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Suzanne Amiel                                                                                                                                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                                                                                                                                        Fall 2010

   ARREST ............................................................................................................................................................................................ 29
     1. What is an Arrest?..................................................................................................................................................................... 29
              R. v. Latimer (SCC 1997).................................................................................................................................................................................................. 30
        2. General Powers of Arrest: Citizen’s Arrest ..................................................................................................................... 30
              George S. Rigakos & David R. Greener, Bubbles of Governance: Private Policing and the Law in Canada .............................. 31
        3. Police Powers of Arrest ........................................................................................................................................................... 31
        4. Alternatives to Arrest/Post-Arrest Detention .............................................................................................................. 32
        5. Minimum Standards for Arrest ........................................................................................................................................... 32
              R. v. Storrey (1990 SCC)................................................................................................................................................................................................... 32
              R. v. Duguay, Murphy, & Sevigny (1985 OCA) ....................................................................................................................................................... 33
              R. v. Grant, reprise .............................................................................................................................................................................................................. 34
        6. Arrest Warrants ......................................................................................................................................................................... 34
              R. v. Feeney (SCC 1997) ................................................................................................................................................................................................... 35
        7. Use of Force in Arrest .............................................................................................................................................................. 36
              R. v. Nasogaluak (SCC 2010) .......................................................................................................................................................................................... 36
   RIGHTS ON ARREST ....................................................................................................................................................................... 37
     1. Section 10(a): Right to be Informed of the Reasons for the Arrest .................................................................... 37
              R. v. Evans (SCC 1991)...................................................................................................................................................................................................... 37
        2. Section 10(b): Right to Counsel .......................................................................................................................................... 38
       Renke, “The Right to Counsel and the Exclusion of Evidence” ..................................................................................................................... 38
       R. v. Suberu, reprise ........................................................................................................................................................................................................... 38
       Wightman & Mack, “Has Suberu Marked the End of Investigative Detention?”................................................................................... 38
       R. v. Bartle............................................................................................................................................................................................................................... 39
       R. v. Manninen (SCC 1987) ............................................................................................................................................................................................. 40
       R. v. Ross (SCC 1989) ........................................................................................................................................................................................................ 41
       R. v. Burlingham (SCC 1995) ......................................................................................................................................................................................... 41
       R. v. Sinclair (SCC 2010) .................................................................................................................................................................................................. 42
       R. v. Smith (SCC 1989) ...................................................................................................................................................................................................... 43
       R. v. Bartle, reprise ............................................................................................................................................................................................................. 43
       Clarkson v. the Queen (SCC 1986) .............................................................................................................................................................................. 44
   RIGHTS ON INTERROGATION........................................................................................................................................................ 44
        1. Distinguishing between the Voluntary Confessions Rule and the Right to Silence..................................... 44
              R. v. Hebert (1990 SCC).................................................................................................................................................................................................... 44
        2. The Section 7 Right to Silence ............................................................................................................................................. 46
              R. v. Singh (2007 SCC)....................................................................................................................................................................................................... 46
        3. The Voluntary Confessions Rule ......................................................................................................................................... 47
              R. v. Oickle (2000 SCC) ..................................................................................................................................................................................................... 47
   RIGHTS ON UNDERCOVER INTERROGATION.............................................................................................................................. 48
              R. v. Broyles (1991 SCC) .................................................................................................................................................................................................. 48
              R. v. Liew (1999 SCC) ........................................................................................................................................................................................................ 49

VI. PRE-TRIAL PROCEDURE: (PRELIMS), BAIL, DISCLOSURE ...................................................................... 49
  GENERAL PRE-TRIAL PROCEDURE ............................................................................................................................................. 49
              R. v. Dudley (2009 SCC) ................................................................................................................................................................................................... 50
   THE PRELIMINARY INQUIRY ........................................................................................................................................................ 51
              R. v. Hynes (SCC 2001) ..................................................................................................................................................................................................... 52
   JUDICIAL INTERIM RELEASE: I.E. BAIL ....................................................................................................................................... 52
     1. Introduction to Bail .................................................................................................................................................................. 54
              Toronto Star Newspapers Ltd. v. Canada (2010 SCC) ....................................................................................................................................... 54
        2. The Ladder Approach .............................................................................................................................................................. 54
              R. v. Anoussis (2008 QCCQ) ........................................................................................................................................................................................... 55
        3. Reverse Onus Provisions ......................................................................................................................................................... 55
              R. v. Pearson (1992 SCC) ................................................................................................................................................................................................. 55
        4(a). The Primary Ground for Detention: Flight Risk (s. 515(10)(a)) ................................................................... 56
              R. v. Parsons (2007 BCSC) .............................................................................................................................................................................................. 57
        4(b). The Secondary Ground for Detention: Public Safety (s. 515(10)(b)) ......................................................... 57
              R. c. Cantave (2008 QCCQ).............................................................................................................................................................................................. 57



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Suzanne Amiel                                                                                                                                                                                                Prof. Alana Klein
Criminal Procedure                                                                                                                                                                                                   Fall 2010

         4(c).The Tertiary Ground for Detention: Public Confidence in the Administration of Justice (s.
         515(10)(c)) ....................................................................................................................................................................................... 57
        R. v. Morales (1992 SCC) ................................................................................................................................................................................................. 58
        R. v. Hall (2002 SCC) .......................................................................................................................................................................................................... 58
    DISCLOSURE .................................................................................................................................................................................... 59
         1. Disclosure of Information in the Crown’s Hands ........................................................................................................ 59
              R. v. Stinchcombe (1991 SCC) ....................................................................................................................................................................................... 59
              Tanovich et al., “A Modest Proposal for Reciprocal Defence Disclosure” ................................................................................................ 61
              Davison, “A Reply to the Modest Proposal for Reciprocal Defence Disclosure” ................................................................................... 61
         2. Third Party Production of Information .......................................................................................................................... 61
              R. v. O’Connor (1995 SCC) .............................................................................................................................................................................................. 61
         3. Lost or Destroyed Evidence .................................................................................................................................................. 63
              Graeme G. Mitchell, “R v. La: The Evolving Right of Crown Disclosure and the Supreme Court Divided”............................... 63
              R. v. Carosella (1997 SCC) ............................................................................................................................................................................................... 63

VII. PLEAS AND PLEA BARGAINING ...................................................................................................................... 64
  PLEAS ............................................................................................................................................................................................... 64
        Adgey v. R. (1975 SCC) .................................................................................................................................................................................................... 64
        Khanfoussi c. La Reine (2010 QCCQ) ......................................................................................................................................................................... 65
        Stephanos Bibas, “Alford and Nolo Contendere Pleas”..................................................................................................................................... 66
    PLEA BARGAINING ......................................................................................................................................................................... 66
        J. Di Luca, “A Review of Plea Bargaining in Canada” .......................................................................................................................................... 66
        Ken Chasse, “Plea Bargaining is Sentencing” ......................................................................................................................................................... 67

VIII. CHARTER REMEDIES ........................................................................................................................................ 67
  SECTION 24(2): EXCLUSION OF EVIDENCE .............................................................................................................................. 67
        Steven Penney, “Taking Deterrence Seriously” .................................................................................................................................................... 68
        R. v. Grant (2009 SCC), reprise ..................................................................................................................................................................................... 68
        R v. Harrison (2009 SCC) ................................................................................................................................................................................................ 70
        R. v. Blacquier (2010 NBPC) .......................................................................................................................................................................................... 70
        R. c. Ferracane (2010 QCCQ) ......................................................................................................................................................................................... 70
        R. v. Archambault (2010 QCCQ)................................................................................................................................................................................... 70
    SECTION 24(1): OTHER REMEDIES ........................................................................................................................................... 70
         1. Remedies Generally .................................................................................................................................................................. 70
         2. Stays of Proceedings ................................................................................................................................................................ 71
              R. v. Keyowski (1988 SCC).............................................................................................................................................................................................. 71
              R. v. Power (1994 SCC)..................................................................................................................................................................................................... 71
              R. v. Regan (2002 SCC) ..................................................................................................................................................................................................... 71
              R. v. Tran (2010 OCA) ....................................................................................................................................................................................................... 72
         3. Costs................................................................................................................................................................................................. 73
              R. v. 934649 Ontario Inc. (2001 SCC) ........................................................................................................................................................................ 73
         4. Damages ........................................................................................................................................................................................ 73
              Vancouver (City) v. Ward (SCC 2010) ...................................................................................................................................................................... 73
         5. Reduction of Sentence ............................................................................................................................................................. 74
IX. JURY SELECTION ................................................................................................................................................... 74
  THE FUNCTION AND RISKS OF THE JURY SYSTEM .................................................................................................................... 74
              Lisa Dufraimont, “Evidence Law and the Jury: a Reassessment” ................................................................................................................ 74
    JURY SELECTION PROCEDURE...................................................................................................................................................... 75
      1. Qualifications to be a Juror ................................................................................................................................................... 75
      2. Overview of the Selection Procedure (R. v. Find) ........................................................................................................ 75
      3. Challenges to the Array .......................................................................................................................................................... 76
              R. v. Born with a Tooth (1993 Alta. QB) ................................................................................................................................................................... 76
         4. Challenges to the Poll .............................................................................................................................................................. 76
              R. v. Williams (1998 SCC)................................................................................................................................................................................................ 77
              R. v. Find (2001 SCC) ......................................................................................................................................................................................................... 78
         5. Interference with Jury Selection ......................................................................................................................................... 79
X. TRIALS AND TRIAL RIGHTS ................................................................................................................................ 79

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Suzanne Amiel                                                                                                                                                                                           Prof. Alana Klein
Criminal Procedure                                                                                                                                                                                              Fall 2010

  THE TRIAL STRUCTURE ................................................................................................................................................................ 79
    1. The Trial Timeline..................................................................................................................................................................... 79
    2. The Courtroom Players ........................................................................................................................................................... 80
  TRIAL RIGHTS................................................................................................................................................................................. 80
    1. The Right to Trial within a Reasonable Time: s. 11(b) ............................................................................................ 80
          Kent Roach, “Askov” .......................................................................................................................................................................................................... 80
          R. v. Morin (1992 SCC) ..................................................................................................................................................................................................... 81
      2. The Right to Counsel at Trial: s. 7 ...................................................................................................................................... 82

I. INTRODUCTION TO CRIMINAL PROCEDURE
Basic question of this course: what is the state allowed to do to investigate and prosecute criminal offences?

This question tries to resolve the Basic Tension in Criminal Procedure: the constraint of the use of State
power against individuals v. the interests of the public in effective law enforcement

Some theoretical approaches to criminal procedure:
Kent Roach, “Due Process and Victims’ Rights: the New Law and Politics of Criminal Justice”
 Herbert Packer has 2 models of the criminal justice system:
1. Crime Control Model
 Metaphor: high-speed assembly line conveyor belt, operated by police/prosecutors. The end product is a
    guilty plea.
 Primarily concerned with: efficiency
 Crime-control model looks to the legislature, as opposed to the courts, as its “validating authority”
 “Criminal sanction” is a positive guarantor of social freedom:
      o Employed for: protecting people/property from harm, promoting order and social stability
 Given limited law enforcement resources, criminal process must place a premium on speed and finality
 Police/prosecutors are the expert administrators of the criminal justice system: they should be allowed to
    screen out the innocent and secure the conviction of the rest with a minimum of occasion for challenge
 Most fact-finding in the crime control model is conducted by the police on the streets/at the station, not by
    judges in court
 The police are concerned with factual guilt – whether or not the accused committed the crime
      o Are not overly concerned with legal guilt – whether the accused can be shown to be guilty beyond
           a reasonable doubt, through admissible evidence, and after considering all accused‟s rights/defences
 Police should have broad investigative powers to arrest people for questioning
      o Only limits on police interrogations are those designed to ensure reliability of suspect‟s statements
      o Detained people should not be permitted to contact a lawyer, because this will slow down the
           process and only benefit the guilty
 Police should have wide powers to conduct searches because only the guilty have something to hide
 Illegally seized evidence should be admissible at trial
 Police misconduct should be taken seriously in disciplinary, civil, criminal proceedings (this is important
    for the rule of law)
      o But the criminal trial of a factually guilty accused is an inappropriate and indirect vehicle for
           addressing police and prosecutorial misconduct
      o The criminal should not go free because the constable has blundered
 Pre-trial detention is the rule to ensure the accused‟s presence at trial, to prevent future crime, to
    persuade the accused to plead guilty at the first opportunity
 The goal should be to terminate without trial every case in which there is no genuine doubt about the
    factual guilt of the defendant
 Trial judges should happily accept guilty pleas – should not inquire into the factual accuracy of the plea or
    whether the accused had any defences


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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

       o Should get a sentencing discount for saving resources by pleading guilty early
 Appeals should not be encouraged
2. Due Process Model
 Metaphor: obstacle course in which defence lawyers argue that the prosecution should be rejected because
    the accused‟s rights have been violated
 Primarily concerned with: fairness to the accused, “quality control”
 The validating authority for this model is the Supreme Court which interprets the constitution so as to
    restrict the powers of the State and give rights to the accused
 This model starts with scepticism about the morality and utility of the criminal sanction (especially in
    relation to victimless crimes)
       o Based on liberal values of primacy of the individual and the need to limit official power so as to
            avoid intrusive policing
 This model is concerned with the equality of all accused – they should receive equal treatment
       o Should all be represented by a lawyer
       o Should protect due process rights of all accused so most disadvantaged will be protected
 There should be numerous restraints on the police:
       o Want to minimize the informal fact-finding in the streets/stations
       o Police should not arrest or detain a person in order to develop their case
 Accused should be carefully informed about the right to be silent and the right to contact counsel
       o “There is no moment in the criminal process when the disparity in resources between the state and
            accused is greater than the moment of arrest”
 Any statements taken absent a clear and voluntary waiver by the accused of his rights should be excluded
    from trial
 It is up to the State to prove their case against a defendant without forcing him to cooperate in the process,
    or capitalizing on his ignorance of his legal rights
 Criminal trial of factually guilty accused must address violations of their rights because those
    subject to police abuse will not (as required by the crime control model) be able to bring separate
    civil, disciplinary, or criminal actions
 Strong exclusionary rules are necessary because much police abuse will never otherwise be remedied
 Accused should be detained awaiting trial only when absolutely necessary
 Neither the prosecutor nor judge should encourage guilty pleas
 Criminal trial, the culmination of the process, is concerned with legal guilt, not factual guilt
3. Criticisms of Packer
 Due process is empirically irrelevant: in minor cases, the cost of invoking one‟s rights is greater than the
    loss of the rights themselves
       o Due process rights are hollow symbols of fairness
       o The guilty plea is often in the interests of all criminal justice participants, including the accused
 Instead of restraining the state, illusion of due process enables and legitimates crime control
       o “Due process” is part of the rhetoric of justice – it is an idealized and publicly consumed version of
            the law that supports crime control by creating the illusion that accused are treated fairly
              In reality, it is the crime control model which the accused is actually undergoing
 Packer makes adversarial assumptions, which limit creative thinking about criminal justice
 Packer‟s models fail to take into account new knowledges about crime victimization
4. Victim-Oriented Models
 Punitive Model
       o This model is in a state of constant crisis: is always trying to respond to the inadequacies of crime
            control to protect victims
       o Rights of victims and rights of the accused are opposed in this system
       o The focus is again on factual guilt; tendency to stress also the innocence of victims
       o No recognition that there is overlap between the populations of victims and offenders
       o The language of victims‟ rights is a new symbolic and legitimating language for the same old

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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

         crime-control routine of enacting criminal laws, arresting, convicting, etc
   Non-Punitive: circle model of prevention/restoration

Some sociological considerations in criminal procedure:
Excerpt 1: National Council of Welfare Report – Justice and the Poor
 There is discrimination against the poor at every level of the criminal justice system
 For the same criminal behaviour, the poor are more likely to be arrested, charged, convicted, sentenced to
     prison for longer
       o Are less likely to be released on bail
       o Less likely to have a lawyer
 Practices that have biggest impact on criminalizing the poor = police deployment to low-income
     neighbourhoods and their use of their discretion in discriminatory ways
Excerpt 2: National Council on Welfare Report – Justice and the Poor, “The Police and the Poor”
 Police practices have the biggest impact on the disproportional representation of the poor in the criminal
     justice system
Who Commits Crimes?
 Contrary to popular belief, there is no direct established connection between poverty and crime
 The idea is really that everyone commits crimes, from all strata of society, but low-income people are
     much likelier to get caught and charged. Many reasons for this:
       o There is a connection between unemployment and crime, and they are a vicious cycle
       o Low-income people have to commit their crimes in public – high-income people generally do so in
            private (esp. corporate, white-collar crime, which is very hard to detect)
       o High-income people have alternate solutions than criminal justice for their blunders
Why Do the Police Arrest/Charge for Crimes?
 Low-income people are heavy users of police services for non-crime-related situations – so there are a
     disproportionate number of police in low-income neighbourhoods
       o The “official crime rate” has more to do with police activity than with actual crime activity
 Most liable to arrest are groups with least access to privacy: street people (mentally ill)
 People who are disrespectful in their interactions with the police are more likely to be arrested – those
     who show deference to the cops, have good social skills, show contrition for their acts are less likely
       o Means that white middle-class suspects who are educated and better informed, and more likely to
            hire a lawyer to institute complaints against the police, are treated with greater care and are almost
            never subject to police violence
 One of the most crucial factors in the police decision on whether to charge is whether the detainee has a
     police or criminal record – more determinative than the seriousness of the offence
 Two questionable government policies increase the criminalization of the poor:
       o Mandatory charges for domestic violence
       o War on drugs
***People in poor neighbourhoods are both over-policed and under-policed. High rates of crime; high rates
of victimization.

II. JURISDICTION AND CLASSIFICATION OF OFFENCES
1. Jurisdiction of the Courts

“Jurisdiction”
 Is the power of a court/tribunal/legal actor to act in a certain way
 Different kinds:
      o A. Legislative
      o B. Prosecutorial
      o C. Adjudicative

                                                                                                                  6
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010


A. Legislative
 Where do the rules about criminal procedure come from?
     o Federal Parliament has jurisdiction to legislate on criminal procedure by virtue of s. 91(27) of the
         Constitution Act, 1867. It is limited by ss. 7-15 of the Charter.
     o Police powers are found in CC and also the common law. They are also limited by the Charter.
             Police only have the powers given to them by law (criminal code, common law); they have no
               inherent special status by virtue of being a policeperson
             However, it seems that over time, in law and in practice, powers given to police have grown
               and are growing – general trend is towards expansion
             Police also have powers by virtue of consent – ex. police lineups are done on “consent” (are
               found nowhere in statute)
     o Source of pre-trial and trial procedure is also the CC, but it varies by province

B. Prosecutorial
 Federal prosecutors deal with CDSA, and other federal statutes (Immigration Act, Tax Act)
 Provincial prosecutors deal with CC offences and provincial offences
      o The reason for this split is historical – provinces had responsibility for prosecuting crimes at
          Confederation
 Provincial prosecutors can also be delegated prosecution of federal offences (drug offences in conjunction
    with CC offences)

C. Adjudicative
 What is the jurisdiction of the courts? Which court will hear which case? Is based on the classification of
    offences into different types.

a. Trial Courts

i. Provincial Courts
 Trial-level courts; hear the majority of criminal cases in Canada
 Judges always sit alone in these courts – no juries
 Created by s. 92(14) of the CA1867
 These courts are statutory courts: can only hear matters that are legislatively assigned to them
 Have absolute jurisdiction (cannot be challenged by the accused, but is not exclusive) over summary
     offences (s. 785) and certain, less serious indictable offences (s. 553)

ii. Superior Courts
 Have inherent jurisdiction
 Trial jurisdiction: all jury trials, exclusive jurisdiction over s. 469 offences (ex. murder)
 Appeal jurisdiction: summary offences which have been tried in provincial courts

Special Note: Quebec
 Quebec‟s provincial court (Court of Quebec) has a broader jurisdiction over indictable offences than other
   provincial courts
      o See s. 558 – if an accused elects to do so, will be tried by a judge alone
      o See s. 552 – defines “judges”  in the CML provinces, means a Superior Court judge; in QC,
          means a provincial court judge
           Exception: s. 469 offences
 Municipal courts also have the power to hear criminal offences in Quebec and Montreal

b. Appeals


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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010


   Appeals of summary convictions (heard in provincial court) go to superior court
   Appeals of indictable offences go to Court of Appeal (s. 675, 676)

2. Classification of Offences

i. Indictable Offences
 Parts XIX-XX CC
 Generally more serious offences
 If no maximum penalty is specified in the particular offence provision, it is 5 years in prison
 Most serious indictable offences are in s. 469 – within Superior Court jurisdiction exclusively
 Least serious indictable offences are in s. 553 – within provincial court jurisdiction absolutely
 For all other indictable offences, accused can elect whether to be tried before a provincial court judge, a
     superior court judge, or superior court judge/jury
      o This is a more complex procedure than is available for summary offences

ii. Summary Offences
 Part XXVI CC
 Generally less serious offences
 Are adjudicated in lower courts, with a simplified procedure (no prelim)
 Subject to 6-month statute of limitation
 If no maximum penalty is specified, default is 6 months, $5000 fine, or both
       o Except super summaries (generally hybrids) with higher maximum punishment of 18 months
 If an offence is not specified to be indictable or summary, it is assumed to be summary under the
     Interpretation Act, s. 34(1)(b)

iii. Hybrid Offences
 Can be tried as summary OR indictable – Crown chooses how to proceed

Different Modes of Trial for Different Offences
 Different modes of trial are available:
     o Can have a superior court judge, with OR without a jury; can have a provincial court judge alone
 People charged with indictable offences generally have a choice in their mode of trial – called the
    “election” (see s. 536(2)): they get to pick between all of the above choices
     o Some offences that are indictable have no available election (s. 553: less serious indictable offences).
         They are in the “absolute jurisdiction” of the provincial court (must be tried by a provincial court
         judge alone)
             This only means that the accused cannot challenge the jurisdiction – it is not a full privative
                clause precluding a prosecutor from bringing the case in Superior Court, and that court from
                hearing the case
     o s. 469 offences (the most serious indictable offences: ex. treason, murder) also have no election.
         They are in the exclusive jurisdiction of the Superior Court
             Provincial Court judge cannot hear the trial
     o s. 471 indictable offences have to be tried in front of judge/jury. But this provision is completely
         antiquated in light of s. 536, which gives accused the choice.
 Where do all the non-553, non-469 indictable offences go? To wherever the accused elects.
     o Remember special nature of QC: if the accused elects judge alone, it is a provincial court judge he‟s
         getting (see s. 558, 552).

***SEE CHART ON PAGE 46 OF COURSEPACK VOLUME 1.



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Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

III. POLICE POWERS

SOURCES OF POLICE POWERS

Police Duties & Police Powers
 Police duties: to maintain peace, order, and public security; to prevent and repress crime; to apprehend
    offenders (are now found in statute, but reflect duties of police at common law)
 Although police have a wide ambit to fulfil their mandates, they do not have unlimited powers
 Today, the Charter strongly constrains police action
 However, before the Charter, the courts used the principle of legality: the police have no powers not
    explicitly granted to them by law (statute or common law)

1. The Principle of Legality

   Police powers, until recently, were granted mostly by statute (establishment of new CML police powers
    was rare) – courts read these statutes restrictively if they constrain individual liberty or interfere with
    personal property
   Any ambiguities are resolved in favour of the person against whom the law is sought to be enforced

Example of the use of the principle of legality:
Colet v. the Queen (1981 SCC)
 Law gave BC police the power to seize, with a warrant, any or all firearms/weapons from someone who
    they have reason to think is dangerous
 Police got a warrant authorizing them to seize Colet‟s guns; entered on his property in order to do so;
    Colet resisted and is being charged with obstructing lawful authority
 SCC decided that the authority to seize granted by the law/warrant did not include the authority to search
    (i.e. enter) the property for that purpose
 It was most likely a legislative oversight that the law did not grant BC police the power to search the
    suspect‟s home in order to seize the firearms; but that failure cannot be remedied by giving the police a
    power that was not expressly conferred by the Legislature
Klein on Colet:
 Court refused to imply the right to search in the right to seize  strict construction of penal statutes in
    which any ambiguity is resolved in favour of the person whose rights are thereby being limited
 So at Colet, police powers = CML powers + statute (narrowly construed)
 Is the principle of legality unsatisfying to protect individual rights? Yes. Because it allows Parliament to
    give police the power to infringe rights as long as Parliament does so explicitly.

2. The Ancillary Powers Doctrine

   The SCC‟s approach to police powers has shifted significantly since Colet
   In Dedman, the Court accepted the ancillary powers doctrine, which finds police powers in the
    absence of explicit statutory authority if they fulfil a two-step test

The advent of the ancillary powers doctrine:
Dedman v. the Queen (1985 SCC)
Facts: RIDE program instituted by Ontario police had them pulling over random people and asking them for
their driver‟s license and proof of insurance. This was just to see if they could form a reasonable suspicion
that the driver was drunk. If so, gave them a breathalyzer. Dedman was randomly pulled over (officer had no
reason to believe the accused had committed/was committing an offence) – he failed to give the requested
breathalyzer. He is charged with refuse breath sample. He is arguing that his initial stop was unlawful.
Issue: Do the police have the authority (either statutory or common law) to randomly pull people over to see if

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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

they have been drinking? Holding: Yes, with dissent.
Reasoning:
Majority (Le Dain J. + 3):
 At common law, the principal duties of police officers are: preservation of the peace, prevention of crime,
    and the protection of life and property
       o Latter imposes the duty to control traffic
 Waterfield test for the existence of police powers at common law – i.e. the Ancillary Powers Doctrine:
       o 1. Does such conduct fall within the general scope of any police duty imposed by statute or
            recognized at common law?
       o 2. Does such conduct – albeit within the general scope of a police officer‟s duty – involve an
            unjustifiable use of powers associated with the duty?
 Test allows police officers to perform such reasonable acts as necessary for the execution of their duties
       o Any interference with liberty must be necessary to carry out the particular police duty
       o It also must be reasonable, with regard for the nature of the liberty interfered with, and the
            importance of the public purpose served by the interference
 Police officers have a duty to control traffic; this is an important public purpose; the random stop is a
    police action that is necessary and reasonable for carrying out that purpose  so there is common law
    authority for the random vehicle stop as part of the RIDE program
Dissent (Dickson C.J. + 2):
 It is a fundamental tenet of the rule of law that the police have limited powers; they are only entitled to
    interfere with the liberty or property of a citizen to the extent authorized by law
 Absent explicit or implied statutory authority, the police must be able to find authority for their actions at
    common law – otherwise they act unlawfully
 Police have wide duties but limited powers – they cannot use any means to achieve their ends; any means
    they use which interfere with individual liberty must be founded upon some rule of positive law
 The test proposed by the majority will justify illegal police practices whenever the benefit of police action
    seems to outweigh the infringement of an individual‟s rights
       o Sets a dangerous exception to the supremacy of law
Ratio: This case creates a way for courts to develop novel police powers through the ancillary powers
doctrine.
Commentary: The ancillary powers doctrine has rarely been used by the courts (except Godoy, to create a
limited police power to enter a dwelling after a 911 call). But see Mann.
Klein on Dedman:
 D‟s defence is that the police had no reason to stop him; not that he wasn‟t drunk, or they didn‟t have a
    reason to give him the breathalyzer. Idea is that they would have to drop the charge if they didn‟t have the
    right to stop him in the first place.
       o Court never decides this question, because they decide the stop was legal
 How do they decide the stop was legal? Waterfield test and the creation of the ancillary powers doctrine.
 Waterfield test for recognizing new common law police powers (how to find out if police had common
    law authority to do what they did):
       o Is there a prima facie unlawful interference with a person‟s liberty or property? If so, consider:
              1. Whether such conduct falls in the general scope of any police duty imposed by statute or
                 recognized at common law, and
              2. Whether such conduct, albeit within the general scope of the duty, involved an unjustifiable
                 use of powers associated with that duty
              Factors to consider under second branch: Was the action necessary? Was it reasonable? Was
                 it proportional? (consider nature and extent of the interference with liberty/property)
 This test is pretty broad – were the cops doing something vaguely associated with their job? Was it
    justified or reasonable?
 In Dedman, the court thinks the stop was reasonable because: driving is a licensed activity, the stop served
    its purpose, it was minimally interfering, the program was publicized


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Suzanne Amiel                                                                                  Prof. Alana Klein
Criminal Procedure                                                                                     Fall 2010

   Dedman does not sit well with the principle of legality
   There is a very strong dissent by Justice Dickson
      o Objection to the authority (Waterfield, random English case which developed the test in order to tell
          when a person is obstructing a police officer)
            Obscure nature of the case? Has been cited 6 times in UK, never in support of creating a new
                police power (and once to reject it)
            Application of the case to give police new powers?
      o Dickson is also worried about the slippery slope – which did not occur, actually. Dedman lay
          dormant for quite a while – was seen as a triumph of pragmatism over principle

Police’s power to effect investigative detentions was recognized under ancillary powers doctrine in this case:
R. v. Mann (2004 SCC)
Facts: Police got a call about a break-and-enter; got a suspect description and name (Parisienne). Mann was
walking down the street in the area, and matched the suspect‟s description exactly. Police stopped him; he told
them his name and DOB; they searched him and found drugs as well as his ID confirming that he was not who
they were looking for. He is charged with possession for the purpose.
Issue: Did the police have the power to stop him and search him without arresting him? Holding: In this case,
no. But investigative detentions and searches are valid exercises of police power in certain circumstances.
Reasoning:
 N.B. The second aspect of the Waterfield test requires a balancing of the competing interests of the
    police duty and the liberty interests at stake.
 Police duties and police powers are not necessarily correlative
 Investigative detentions are valid exercises of police power – detention must be viewed as reasonably
    necessary, based on an objective view of all the circumstances
 In addition, a power of search incidental to investigative detention does exist because it satisfies the
    Waterfield test
       o Police‟s common law duty to protect life and property may sometimes necessitate search upon
           investigative detention
       o The power to pat down someone who is investigatively detained does not exist as a matter of course
       o The officer must believe, on reasonable grounds, that his or her safety, or that of others, is at risk
Ratio: The Court recognized the power of the police to detain people for investigative purposes, and also that
the police have the power to search that person upon such detention in certain circumstances.
Klein on Mann:
 First SCC case to make reference to Waterfield since Dedman
 Was used to recognize a new police power: investigative detention (and power to search incident to
    investigative detention)
       o Before this case, no recognition by the courts that police have the power to detain someone without
           the reasonable and probable grounds necessary to arrest them
       o Allows people to be detained by police on less than reasonable and probable grounds
             Need SOME grounds though: “nexus”, “articulable cause”, “reasonable grounds to suspect”

   Critique: R. v. Kang-Brown – precedents such as Mann do not mean the court should always expand
    common law rules in order to address perceived gaps in police powers
      o Court has a law-making function, but it must be exercised appropriately

    ***THREE SOURCES OF POLICE POWERS: COMMON LAW, STATUTE, ANCILLARY POWERS DOCTRINE***

POLICE STOPPING POWERS: INVESTIGATIVE DETENTION

So, investigative detention was recognized by the SCC in Mann under the ancillary powers doctrine. Why was
it recognized? What is involved in the concept of “investigative detention”?


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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010


Reasons for Recognizing Investigative Detention as a Valid Police Power

   There is no statutory authority allowing police to stop people short of their power to arrest (to speak to
    them, to investigate, etc)
   Recognition of this power is both good and bad:
      o Good: helps investigations, makes it so that there are standards and rules governing this practice
            Police have indicated that it has helped them to be able to talk to people on the street without
               having to arrest them
            Once someone is investigatively detained, their Charter rights (s. 10(a), (b), s. 7, 13) come into
               effect to protect them
      o Bad: is a broader power than arrest, so it is an opportunity for police to abuse their discretion, be
          arbitrary

1. The Standard for Investigative Detention

   The standard required before a detention is legally permissible is: reasonable grounds to detain
      o Derived from the second branch of the Waterfield test
      o Any detention for which the police officer is not able to provide reasonable grounds will be
          considered arbitrary by the court, and therefore contrary to s. 9

This case outlines the standard for investigative detention: “reasonable grounds to detain”:
Mann (reprise)
Reasoning:
 The PO needs reasonable cause to suspect that the detainee is criminally implicated in either an
    ongoing crime or one that has been committed in order to detain them for investigative purposes
     o Clearly a lower threshold than the reasonable and probable grounds required for lawful arrest
     o But a hunch based on intuition gained by experience is not enough to satisfy it
 Standard: the detention must be viewed as reasonably necessary on an objective view of the totality of the
    circumstances, and officer has to suspect that there is a clear nexus between the individual to be
    detained and a recent or ongoing criminal offence
 The overall reasonableness of the decision to detain needs to be assessed against all of the circumstances:
    the extent to which the interference with individual liberty is necessary to perform the officer‟s duty, the
    liberty interfered with, and the nature and extent of that interference
Ratio: In order to detain an individual for investigative purposes, the PO needs to have reasonable grounds to
detain them – i.e. reasonable grounds to suspect they have been/are involved with a criminal offence.
Klein on Mann, reprise:
 On what grounds are POs allowed to stop someone and not have to let them go (without arresting them)?
     o REASONABLE GROUNDS TO SUSPECT THAT A PERSON IS CURRENTLY COMMITTING AN OFFENCE
          OR HAS COMMITTED AN OFFENCE
     o   The reasonable grounds to suspect has to be an objective suspicion; cannot just be a hunch
     o   See Mann, para. 34: detention has to be necessary, which needs to be assessed against an objective
         view of all the circumstances. Must consider extent of interference with liberty.
   Criticism of Waterfield and Mann:
      o Para. 20: “A detention for investigative purposes is, like any other detention, subject to Charter
           scrutiny. Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained.
           It is well recognized that a lawful detention is not „arbitrary‟ within the meaning of that provision.
           Consequently, an investigative detention that is carried out in accordance with the common law
           power recognized in this case will not infringe the detainee‟s rights under s. 9 of the Charter.”
      o The difficulty here is the definition of the word arbitrary – wasn‟t the stop in Dedman arbitrary?
           But it was decided to be a lawful stop.
             PROBLEM HERE: equating lawfulness with non-arbitrariness

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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

       o  A lawful detention is one for which the police have statutory/common law authority (get the latter
          by passing the Waterfield test‟s societal balancing branch – society‟s interest in catching criminals
          v. alleged criminals‟ rights).
            If it‟s not arbitrary for Waterfield, then it‟s not arbitrary for s. 9 says the Court in Mann
      o So never get to the s. 1 analysis (higher standard), because there will never be an infringement of s.
          9 as long as the power passes the Waterfield test
            So no minimal impairment will ever be considered
   Short of the RG to suspect, the detention is arbitrary; the police can still question people without those
    grounds; but they can‟t detain them

2. Defining Investigative Detention
 What qualifies as a detention? When is a person not merely being questioned, but detained?

R. v. Grant (2009 SCC)
Facts: Two officers were patrolling a problem area near a school in plainclothes and an unmarked car. They
spotted G, who was looking suspicious. Their uniformed colleague went to go talk to G. The two plainclothes
officers walked up as support, and identified themselves. Uniform asked G to keep his hands in front of him,
and asked if he had anything on him. G admitted to having some weed, and after prompting, a gun.
Issue: Was this a detention, and if so, was it arbitrary? Holding: Yes to both.
Reasoning:
Majority (McLachlin C.J. & Charron J.):
 Detention under ss. 9, 10 Charter means a suspension of a person’s liberty interest by:
     o Physical Restraint
     o Psychological Restraint, established where
           Person has a legal obligation to comply with the restrictive demand (ex. breath sample)
           Reasonable person would conclude, from the state conduct, that he or she had no choice but to
               comply. To consider:
                 Circumstances giving rise to the encounter as they would be perceived by the person: were
                    police providing general assistance, maintaining general order, or making general inquiries,
                    or singling out the individual for focused investigation
                 Nature of police conduct – language used, physical contact, location, presence of others,
                    duration of encounter
                 Particular characteristics of individual in question (minority status, age, physical size)
 The reasonable conclusion of detention by a person is determined objectively – police need to be able to
    gauge what constitutes detention, because they have to fulfil their attendant Charter obligations (s. 10)
     o But it is objective with regard to the circumstances of the person
 The balancing act to be made here: safeguard the notion of choice that is at the centre of the individual‟s
    liberty interest without impairing effective law enforcement
 The psychological detention possibility recognizes that it isn‟t realistic to regard compliance with police
    demands as truly voluntary; people assume they have to comply
     o Further recognizes that police tactics, even in the absence of physical restraint, might be coercive
         enough to effectively remove the individual‟s choice to walk away
 Police have to mindful, in light of possibility for psychological detention, that depending on how they act,
    the point may be reached where a person is detained – and at that point, they have to read them their rights
 In this case, G was detained because the point was reached where the police had taken control over him
    and were attempting to elicit information
 Before he was detained and made incriminating statements, the police had no reasonable grounds to detain
    him. Arbitrary and against s. 9.
Concurrence (Binnie J.):
 Detention should also take into account the perceptions of the police – it should matter if the person
    actually IS detained and not just whether they THINK they are


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Suzanne Amiel                                                                                  Prof. Alana Klein
Criminal Procedure                                                                                     Fall 2010

Ratio: Detention may be constituted by physical detention and psychological detention for the purposes of ss.
9 and 10 of the Charter.
Commentary: Grant‟s right to counsel (s. 10(b)) was also violated, because he was detained and not advised
of his right to retain/instruct counsel immediately. He proceeded to give incriminating information.
Klein on Grant:
 There are two kinds of detention:
       o 1. Physical Detention: when you are physically held and stopped from leaving
       o 2. Psychological Detention: when a person reasonably feels they have no choice but to stay put, are
           obligated to stay. This is an objective test. Court says two things might give a person that
           impression:
              a. If you will face legal sanctions for leaving
              b. Nature of police conduct and characteristics of the individual
 Binnie has a big problem with this test – because if a police is being nice to a person, they might not think
    they are being detained, and so therefore might not be
       o Thinks they should use an objective jeopardy test

R. v. Suberu (2009 SCC)
Facts: Crown‟s theory is that S and an associate were buying gift cards and merchandise at LCBOs and
Walmart on a stolen credit card. LCBO in Cobourg was warned by another LCBO that two people were buying
stuff on a stolen card – S and associate came into the Cobourg store and the police were called. As Constable
Roughley came into the LCBO, S was leaving – he caught up with him, asked him some questions, and then
received some information over radio linking S to the crime. Arrested him and gave him his rights to counsel.
Issue: Was Suberu in fact detained at any point? Holding: No, with dissent.
Reasoning:
Majority (McLachlin C.J. & Charron J.):
Recap of Grant
 “Detention” for the purposes of the Charter means a suspension of an individual‟s liberty interest by virtue
    of a significant physical or psychological restraint at the hands of the state
     o Psychological restraint means that a reasonable person would conclude that they no longer have the
          freedom to choose whether or not to cooperate with the police (objective determination)
 Onus is on applicant to show, in the circumstances, he was effectively deprived of his liberty of choice
 Line between no detention/detention is the line between general questioning/focussed interrogation
Application to This Situation
 The constable was just orienting himself as to the situation when he was talking to S – he hadn‟t yet zeroed
    in on him as someone whose movements must be controlled
     o He had to ask some preliminary questions in order to decide how to proceed
 Once he got the radio information linking S‟s van to the previous fraud, he then arrested him and gave him
    his rights to counsel
Dissent (Binnie J.):
 The fact that a police command is not justified according to law doesn‟t make it any less imperative in the
    eyes of a reasonable person
 On the basis of the claimant-centred approach endorsed by the majority, S was detained, because he was
    told not to go, while everyone else in the store was free to leave
Ratio: Police have some latitude to make preliminary inquiries without having to caution a person of their
rights.
Klein on Suberu:
 All Cst. Roughley knows when he gets to the LCBO is that there were 2 male persons trying to commit
    fraud; as he gets there, S is leaving – so Roughley says “wait a minute, I need to talk to you”
 Court decides S was not detained, on the criteria outlined in Grant (circumstances of situation, police
    conduct, characteristics of accused). Why?
        o Roughley had not physically restrained S; R wasn‟t being intimidating


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Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

   When we are setting our standard for investigative detention, need to set it high enough that police can still
    do their work – investigative detention CAN be effected upon acquiring reasonable grounds to suspect, but
    WILL be effected only when circumstances are objectively intimidating enough
   In this case, using the dissent‟s approach wouldn‟t really change anything – R wasn‟t intending to detain S,
    and he wasn‟t in much objective jeopardy until R got the radio call implicating the van
   What majority and dissent disagree about: before S should be cautioned about making incriminating
    statements, should he have to FEEL like he has to make them? Majority – yes. Dissent – no (sweet-talking
    cop concern).

Christopher Bird, “It’s Not a Post-Racial World: R. v. Suberu and the Failure of Objectivity”
 The reasonable person standard outlined in Grant needs to be adjusted for social positioning
 A white person told what Suberu was told might not think they are under arrest; because they tend to be
   more privileged and have reason to trust the police more
 A person that comes from a visible racial minority, that trusts the police less because of their racialized
   experiences with police, would likely (reasonably) assume they are suspect and detained
 The reasonable person standard has to remain fluid – the reasonable white person doesn‟t think what a
   reasonable black person thinks when stopped by cops

Klein’s Recap of Investigative Detention
 Before investigative detention was recognized as a police power, we were operating under the fallacy that
   people didn‟t need special rights before arrest
 Only upon arrest – for which police need reasonable/probable grounds (i.e. pretty sure you did something
   illegal) – did you require right to counsel, to remain silent, to be informed of the reason why
 But this fallacy neglected the low-level interactions between police and individuals that are coercive – the
   ones that no one actually feels like they can walk away from
 So in the place of Parliament reacting, courts gave people who are de facto detained rights associated with
   being detained (appropriateness?)
 How do we feel about the Charter, a government-limiting document, being part of the creation of new
   police powers (ex. s. 9 shaping the doctrine of arbitrariness)?
 Concerns with investigative detention:
    o Concern over the way this “protection” is given to people who are detained:
            Does this power of investigative detention actually stop police from harassing people, or
                encourage them to do so more?
    o Concern around the law of investigative detention swallowing the law of arrest – an investigative
        detention can become a de facto arrest:
            I.e. an investigative detention (standard = reasonable grounds to suspect) can lead to RPG for
                arrest (s. 495 CrC), effectively lowering the standard for arrest
            This is problematic because arrest entails bad consequences (full loss of liberty)
    o An investigative detention is attended by an incidental power of search – allowed to search if there is
        a risk to PO/public safety
 How do we know when detention comes into being – i.e. the moment when these rights and obligations
   crystallize? Several factors have to be looked at:
    o The reasonable person‟s perception of the existence of their choice to walk away – do they feel
        detained?
    o The conduct of the police – are they giving the impression they are detained?
    o The intentions of the police – do they think they are detaining?
    o Binnie J: the objective jeopardy a person is facing.

POLICE STOPPING POWERS: ROADBLOCK AND STATUTORY STOPPING POWERS

1. Roadblock Stops


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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010


R. v. Clayton (2007 SCC)
Facts: 911 call received saying that there were 10 black guys in the parking lot of a strip club, 4 of whom
were holding guns. The caller described the four cars that were in the parking lot. Police set up a perimeter to
stop whoever entered/exited the parking lot. Stopped a black Jag – not one of the cars described – with two
black men inside, Clayton & Farmer. Asked them to step out of the car – they initially refused, then complied.
Were also acting shifty. Clayton ran away, but was caught – they searched both and found firearms on both.
Issue: Was the roadblock a lawful act by the police? Holding: Yes.
Reasoning:
Majority (Abella J.):
 If the police conduct in detaining/searching Clayton/Farmer was a lawful exercise of their common law
    powers, then there was no violation of their Charter rights
     o Lawful detention is not arbitrary within the meaning of s. 9
     o Search done incidentally to lawful detention will not infringe s. 8 if it is carried out in a reasonable
          manner and there are reasonable grounds to believe that police or public safety issues exist
 The idea that a lawful detention is not arbitrary does not exempt the authorizing law (statute or common
    law) from Charter scrutiny – law authorizing detention is also subject to Charter scrutiny
 Common law on police powers is consistent with the Charter because it requires the state to justify the
    interference with liberty based on certain criteria (necessity, level of intrusiveness, etc)
 Whenever the use of a police power comes into question, need to justify its use in the context according to
    the Waterfield test
     o The duty of the court is to lay down the common law governing police powers of investigative
          detention in the particular context of this case
 Focus on the nature of the situation, including the seriousness of the offence, information known to the
    police at the time, extent to which detention was reasonably responsive or tailored to these circumstances
    (including geographic/temporal scope)
 Mann: searches incident to an investigative detention could be justified if the officer believes on
    reasonable grounds that his or her own safety, or the safety of others, is at risk
 In this case, police were justified in stopping all cars exiting the lot – were dealing with gun crime, the
    suspects matched the 911 call‟s description, were acting evasive
 The search was also justified, as the safety of the officers was at risk
Concurrence (Binnie J.+ 2):
 The “reasonably necessary” standard in Waterfield is not a Charter analysis – an asserted common law
    police power that is challenged on Charter grounds should be analyzed in light of Charter rights (ss. 8, 9)
    at stake and the countervailing public interest (s. 1)
 The majority‟s approach sidesteps the real policy debate
Ratio: The police have the power, when it is reasonably necessary, to put in place a roadblock to stop all cars.
Klein on Clayton & Farmer:
 The issue: was the initial roadblock an authorized police activity? Was it legal?
 Majority decides yes on the basis of the Waterfield test – this act was reasonably necessary
       o Mann: the detention was reasonably necessary because Mann fit the description of the suspect
       o The car doesn‟t fit the description – but the two guys inside it are black, is basically the reasoning
 Courts seems confused as to whether the cops would have had reason to stop every car, or only the cars
    matching the suspects‟ description
       o Should really be every car leaving the parking lot; the police response was well-tailored to the
           situation
 Does this case lower the standard for detention even more? Lower than reasonable suspicion?

2. Statutory Motor-Vehicle Stopping Powers

R. v. Hufsky (SCC 1988)


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Suzanne Amiel                                                                                      Prof. Alana Klein
Criminal Procedure                                                                                         Fall 2010

    Random stop in association with a program (RIDE-style) – s. 189 HTA authorizes random stops of cars to
     check for sobriety, licences, insurance, mechanical fitness of cars
 Le Dain J. decides for the majority that although the random checks violate s. 9, are justified under s. 1 
     so long as it was within the purposes stipulated in the legislation
My Commentary: Note that if this power were granted by the common law, it WOULDN‟T be a violation of
s. 9 – this is why Binnie J. is so annoyed that they aren‟t using a Charter analysis in Clayton. Abella‟s answer
would be that since it‟s common law, the judiciary is already developing it in accordance with the Charter.
Klein on Hufsky/Ladouceur:
     - In Ladouceur, a random roving stop was at issue (not a roadblock stop of all cars), and the court split
         5-4  greater chance for abuse and arbitrariness in a random roving stop
     - Majority felt it was a contravention of s. 9, but justified under s. 1
     - Sopinka J. for the dissent said the motorist was no longer free from arbitrary detention – a PO can
         stop you anytime to check if you have your registration on you, etc. NO freedom from arbitrary
         detention if you‟re in a car.

   The nervousness about random roving stops is the fear of racial profiling.

R. v. Mellenthin (SCC1992)
Facts: M was pulled over at a random roadside stop – complied with all the officer‟s requests for licence,
registration, insurance, etc without difficulty. PO saw a gym bag containing a baggie on the floor – asked M to
open it. When he complied, saw it was full of glass vials. PO formed the suspicion that drugs were in the car,
searched it, and found some cannabis resin.
Issue: Can the police, conducting a random roadside stop, in the absence of any reasonable grounds for doing
so, interrogate a driver about matters other than those related to the operation of the vehicle, and search the
driver and the vehicle?
Holding: Police can conduct a visual inspection of the car, but not ask questions not related to the car or its
operation, or search the car without reasonable grounds.
Reasoning (Cory J.):
 The visual inspection of the car with a flashlight does not constitute a search – is essential for protection
     of POs at roadside stops [if it’s not a search, why does it need to be justified with recourse to protection of
     police officers?]
 Subsequent questions and search were improper – the roadside stop program, to check for sobriety,
     licences, etc., should not be turned into a means of conducting interrogations or unreasonable searches
 M was detained – reasonably felt he had no choice but to answer the questions put to him by PO. This was
     not a consensual interrogation/search  this was an unreasonable search in contravention of s. 8
Ratio: The statutory right to detain individuals arbitrarily at roadblock stops does not include the right to
interrogate those drivers on matters unrelated to the purposes of the roadblock program, or search the cars.

IV. SEARCH AND SEIZURE
Sources of Power to Search and Seize Evidence
 1. Search warrant
    o s. 487 CC
 2. Warrantless search authorized by statute
    o See e.g. s. 447 (can seize a cockpit without a warrant!)
 3. Search incident to arrest (cml)
 4. Search incident to investigative detention (Mann)
    o Pat-down to check for weapons; safety concerns for police officer/public
 5. On consent
    o What constitutes valid consent?



                                                                                                                  17
Suzanne Amiel                                                                                      Prof. Alana Klein
Criminal Procedure                                                                                         Fall 2010

   These powers are constrained by s. 8, which if violated can operate to exclude evidence obtained by
    illegal search

CONSTITUTIONAL FRAMEWORK OF SEARCH AND SEIZURE

   All powers to search and seize, statutory or common law, must conform to Charter standards

s. 8 Charter         Everyone has the right to be secure against unreasonable search or seizure.

Hunter et al. v. Southam Inc. (1984 SCC)
Facts: The Combines Investigation Act, in s. 10(3) and s. 10(1), allows the Director of Investigations of the
Combines Investigation Branch to authorize his representatives to enter “on any premises on which the
Director believes there may be evidence relevant to the matters being inquired into” and search and take the
evidence. s. 10(1) says that someone from the Restrictive Trade Practices Commission has to authorize the
exercise of this power.
Issue: Do these sections authorize unreasonable search or seizure, and thereby infringe s. 8 of the Charter?
Holding: Yes.
Reasoning (Dickson J.):
 s. 8 deals with one aspect of the citizen‟s right to privacy – the right to be secure against encroachment
    upon the citizen‟s reasonable expectation of privacy in a free and democratic society
 So when s. 8 is in question, need to assess whether the public‟s interest in being left alone by government
    must give way to government‟s interest in intruding on individual privacy in order to advance the goals of
    law enforcement  is a balancing act
 This balancing of interests must take place before the search happens for s. 8 to have any real clout –
    needs to prevent unjustified searches, not just identify them once they happen
 So any law allowing search & seizure must have an attached system of prior authorization, generally
    in the form of granting a valid search warrant
     o This requirement puts the onus on the State to prove the superiority of its interest to that of the
         individual in the particular case
 Will not always be possible to get authorization before searching; but when it IS possible, it is a
    requirement for reasonable search
 A warrantless search is presumed to be unreasonable; but this presumption of unreasonableness is
    rebuttable by the State
 Does this Act in question have an appropriate prior authorization system?
     o Person authorizing the search needs to be able to assess the evidence to determine whether the
         standard for reasonable search & seizure has been met (see below)
     o Doesn‟t have to be a judge, but does need to be someone who can act judicially, impartially
     o In this case, the member of the Commission who authorizes is too involved in the investigation (or
         potentially could be) in order to act judicially – this system is not appropriate
 Even if this legislation did have an appropriate decisionmaker, it would still be invalid because the
    Commission member could satisfy themselves the decision of the Director was reasonable insofar as it
    may lead to the discovery of evidence  way too much latitude here; allows fishing expeditions
 s. 487 CC only authorizes a search warrant where there has been information upon oath that there is
    reasonable ground to believe that is evidence of an offence in the place to be searched
 The same standard applies here:
     o For a search & seizure to be authorized, need – at the minimum – reasonable and probable
         grounds, established upon oath, to believe that an offence has been committed and there is
         evidence to be found at the place of the search
Ratio: The minimum standard for authorizing a search and seizure is that of credible probability that evidence
of a criminal offence will be found in the place of search.
Klein on Hunter v. Southam:


                                                                                                                  18
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

   This is one of the most oft-cited cases in Charter litigation. Established that the Charter should be
    interpreted purposively, needs a large and liberal interpretation
       o Charter constrains government powers – does not expand them, or authorize any government action
   Dickson J.‟s judgment sets out purpose of s. 8: to protect the citizen’s reasonable expectation of privacy
       o This is a big deal: s. 8 of the Charter is our privacy right
       o Need to conduct a balancing act between government‟s ability to enforce its laws and the privacy
           expectations of its citizens
   What is the constitutional standard to authorize a search warrant? I.e. what procedure needs to be followed
    for government‟s interest to be allowed to outweigh the individual‟s reasonable expectation of privacy?
       o 1. Prior authorization where feasible, usually in form of a search warrant
             Warrantless searches are prima facie unreasonable
       o 2. Authorization granted by a neutral arbiter capable of acting judicially: based on
           reasonable and probable grounds, established on oath, to believe that an offence has been
           committed and that there is evidence to be found at the place of the search.
   In this case, the Director is not capable of acting judicially, and furthermore, the grounds stipulated by the
    Act are not good enough to satisfy this – they have the potential to authorize warrants on a standard lower
    than the constitutional standard

R. v. Collins (1987 SCC)
Facts: Cst. Woods and another PO had Ruby Collins under surveillance during the day – they arrested her
husband on its basis. Cst. Woods went into the bar in which RC was sitting, grabbed her by the throat (a
recognized tactic to prevent her swallowing the drugs they suspected she had), took her to the ground “with
considerable force”, told her he was a PO, and asked her to reveal what she was holding in her hand (heroin).
Issue: Was the search & seizure unreasonable in contravention of s. 8? Holding: New trial ordered.
Reasoning (Lamer J.):
 A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the
    manner in which it was carried out was reasonable.
 The claimant bears the burden of proof of showing that their Charter rights were infringed. In the context
    of s. 8, claimant needs to prove on the balance of probabilities that the search was warrantless, and the
    burden of proof shifts to the Crown to prove it was reasonable (also on the balance of probabilities).
 In this case, the search was without warrant. Crown needs to prove that the PO was within his statutory
    authority (s. 10 Narcotics Control Act, PO believes on reasonable grounds that there are drugs in the place
    that was searched), and he carried out the search in a reasonable manner
     o The throat hold would be reasonable only if the PO reasonably believed RC was a drug handler
 Evidentiary problem requires a new trial: on the basis of an unfounded objection by RC‟s defence
    counsel, the Crown was not able to establish that Cst. Woods had reasonable grounds to believe that RC
    had drugs, and was at risk of swallowing them.
Ratio: A search and seizure is reasonable if it is authorized by law, the law is reasonable, and the way the
search was carried out is reasonable.
Klein on Collins:
 What makes warrantless searches legal or illegal?
 Crown must prove a warrantless search is justified. Can do so by showing that it is:
       o Authorized by law
       o The law itself is reasonable
       o The manner in which the search is carried out is reasonable
 Court doesn‟t decide whether there are reasonable grounds in this case – says if there was reliable
    information given by a source, and very specific information about the necessity of the throathold, then it
    will be reasonable
 But not enough evidence here, because Cst. was wrongly stopped from answering those questions at trial.

To get from Hunter and Collins:


                                                                                                                19
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

   Purpose of s. 8 is to protect privacy of individuals from state intrusion
   Interest of privacy is limited to reasonable expectations of privacy (two elements: subjective expectation,
    reasonable expectation)
   Wherever feasible, prior individual authorization must be obtained by someone judging the case on its
    merits, not general discretion
   Person granting the authorization has to be satisfied on oath that there are reasonable and probable
    grounds that an offence has been committed, and that the search will lead to evidence of that offence
   If defendant establishes that a search was warrantless, burden falls on crown to prove that the search was
    authorized by law, the law was reasonable, and the search was executed in a reasonable way

A REASONABLE EXPECTATION OF PRIVACY

   The notion of a “reasonable expectation of privacy” determines whether there has been a search at
    all (Hunter, Collins)
   If the police obtain items, information, etc. in which there is no reasonable expectation of privacy, there
    has been no search and s. 8 is inapplicable

This case discusses the question of whether an accused has a reasonable expectation of privacy in the place
that was searched. Essentially, the Court is examining the accused’s standing to bring the s. 8 claim.
R. v. Edwards (1996 SCC)
Facts: Police received information that E was trafficking drugs. Saw him leave his girlfriend‟s place – pulled
him over, saw him swallow something, arrested him. Went to the gf‟s place, lied to her in order to obtain her
consent to enter her apartment, found $20,000 worth of crack-cocaine in the couch. She was arrested too,
although the charges against her were eventually dropped.
Issue: Did E have a reasonable expectation of privacy in his girlfriend‟s apartment? Holding: No.
Reasoning (Cory J.):
 Hunter v. Southam: s. 8 protects people, not places. s. 8‟s broad right to be secure from unreasonable
    search/seizure only protects a person‟s “reasonable expectation of privacy”
 Two questions to answer in a s. 8 challenge:
     o 1. Did the accused have a reasonable expectation of privacy?
           To be determined on a totality of the circumstances
           Relevant factors to consider: existence of a subjective expectation of privacy, the objective
               reasonableness of that expectation, ownership of the property/place, ability to regulate
               access to the place (i.e. exclude others)
     o 2. Was the search conducted reasonably by the police?
 The privacy right allegedly infringed must be that of the accused, not someone else (i.e. E, not his gf)
     o The invasion of someone else‟s privacy rights might be relevant at the second stage, reasonableness
         of the manner in which the search was conducted
 In this case, E did not have a reasonable expectation of privacy in his girlfriend‟s apartment – he was just
    a privileged visitor. He could not exclude people from the apartment.
Ratio: When considering territorial privacy interest, it is important that the person claiming a s. 8 violation be
the holder of the privacy interest.
Klein on Edwards:
 Court decides E does not have a privacy interest in his gf‟s apartment that was violated
     o It wasn‟t his apartment; he didn‟t pay rent there; didn‟t possess the apartment, exert any control over
         it; issue of his subjective expectation of privacy at his girlfriend‟s apartment wasn‟t determinative
 This case attracted a lot of controversy when it was decided. Why?
     o Because the Crown dropped the charges against the girlfriend – so she has no reason to challenge the
         possibly illegal search. And the Court decides that E doesn‟t have a privacy interest that he can
         challenge the search as infringing. So they still got to have their cake and eat it too, because they can
         search E illegally and still use the evidence to convict him.


                                                                                                                 20
Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

   The idea is that s. 8 protects PEOPLE not PLACES comes up in this decision
    o What about people that don‟t have homes? They therefore have no reasonable expectation of
        privacy?

R. v. Tessling (SCC 2004)
Facts: RCMP were informed that T was conducting a marijuana grow-op in his house. They used FLIR
technology, which takes an image revealing heat generation, to see if more-than-normal heat was being
emitted from the house. It was. They used the informants‟ intel and the FLIR picture to obtain a warrant to
search the house. N.B. FLIR technology cannot determine the source of the heat emission; it cannot see
through the walls of the house.
Issue: Was taking the FLIR picture of T‟s house an invasion of T‟s privacy? Holding: No.
Reasoning (Binnie J.):
 There are different types of privacy interests protected by s. 8 (they can overlap)
 1. Personal privacy  bodily integrity, the right to not have our bodies touched or explored to disclose
    anything we wish to conceal (protection against strip searches, bodily samples)
 2. Territorial privacy  protects the home, the space around the home, commercial space, private cars,
    even prisons. Doesn‟t contradict the idea that s. 8 “protects people, not places” – is an analytical tool to
    see if the expectation of privacy is reasonable
 3. Informational privacy  the claim of individuals, groups, institutions to determine for themselves
    how, when, and to what extent information about them is communicated to others
     o Protects a biographical core of personal information, intimate details of the lifestyle/personal choices
         of the individual
     o Plant: Established that not all information an individual may wish to keep confidential necessarily
         enjoys s. 8 protection (stuff in garbage cans = not private)
 Totality of the Circumstances Test for Whether s. 8 is Engaged:
     o 1. Was there a reasonable expectation of privacy?
           Consider: the subject matter of the alleged search, the accused‟s interest in the subject matter,
               subjective expectation of privacy, objective reasonableness of that expectation, the place where
               the “search” occurred, whether the subject matter was in public view, whether it had been
               abandoned, whether the information was already in the hands of third parties, etc.
           N.B. Expectation of privacy is a normative rather than a descriptive standard  suggestions
               that a diminished subjective expectation of privacy should result in a lowering of constitutional
               protection should be opposed
     o 2. If so, was it violated by police conduct in the particular case?
 In this case: no reasonable expectation of privacy, because the FLIR technology could not differentiate
    between different sources of heat  didn‟t reveal any information on its own, without a theory
    corroborated by other information.
Ratio: Whether the use of a given police technology constitutes a search or not will depend on the kind of
information it can gather about the accused.
Klein on Tessling:
 Paragraph 18 (not in coursepack): back in the day, when everyone lived in castles with moats around
    them, you could draw up your drawbridge and no one could come in, not even the King
     o But the King could see if there was smoke coming out of your chimney; so King can take note of that
 Is the heat emanating from the home the same as the smoke coming from the chimney? (Yes).
     o Or can we presume a subjective expectation of privacy in one‟s heat emissions? Court decides no.
     o These heat emissions don‟t tell us enough about a person‟s life for someone to have an expectation of
         privacy about them
 The more intrusive the technology used for the search is, the more reasonable an expectation of privacy
    would be concerning that information
 The court considers the privacy at issue in this case as informational, not territorial
     o It uses territorial-like factors to talk about informational privacy


                                                                                                               21
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

   The court refuses to pin itself down to a test for whether a person has a reasonable expectation of privacy
    in each of the above aspects  they just discuss factors
     o The court takes an “in all the circumstances approach”

See in the following cases where/in what a reasonable expectation of privacy is found:
R. v. Nolet (SCC 2010): Reasonable expectation of privacy in a truck bed, but a low one; it is a kind of mobile
home, but is subject to searches all the time for regulatory purposes.
R. v. Patrick (SCC 2009): Privacy analysis is laden with value judgments which are made from the
perspective of a reasonable, informed person who is concerned with the long-term consequences of
government action on protection of privacy. Privacy is normative, rather than descriptive (should, rather than
is). No privacy interest found in garbage bags that were put outside, within the property line of the accused;
evidence found therein led to a search warrant for the house, where an ecstasy lab was found.
R. v. Bellantyne (BCSC 2008): No privacy interest in a letter sent by a prisoner to his girlfriend.
R. v. Field (NWTR 1996): Reasonable expectation of privacy interest existed in an envelope the accused gave
to someone he knew to take on a plane. (Wrongly decided?).
R. v. Delaa (ABCA 2009): No reasonable expectation of privacy in gum spit out by the accused. He
abandoned it, was clearly disposing of it. Used by cops to get DNA to convict accused of 2 sexual assaults.
R. v. Nguyen (ABQB 2008): No reasonable expectation of privacy in the common areas of a condominium.
R. v. AM: No privacy interest in a backpack located in a gymnasium. It was sniffed out by drug dogs during a
search of the entire school by police officers, on invitation of the principal. The use of the sniffer dog brings
up interesting issues – does someone have a REOP in the smells being emitted from their bag? School is a
more public zone than a home. Security is a big concern here.

Spectrum of places you will  will not have privacy
 Body
 Homes & surrounding area
 Offices
 Cars
 Schools
 Prisons
 Airports

Is a search in violation of s. 8? Recap:




                                                                                                                22
Suzanne Amiel                                                                                                Prof. Alana Klein
Criminal Procedure                                                                                                   Fall 2010

                                                                                               Crown must
                                                                                             show: 1) Search
                                                                                            authorized by law


                                                                No: Search prima                 2) Law is
                                                               facie unreasonable               reasonable


                                                                                            3) Search carried
                                                                                                 out in a
                                                                                             reasonable way
                                    Yes. Was there a
                                       warrant?
           Was there a
                                                                                                 1) Prior
          State intrusion
                                                                                              authorization?
            on a REOP?
                                   No. No search, no
                                     s. 8 violation
                                                                                                2) Before a
                                                                Yes: Is the search
                                                                                              neutral arbiter,
                                                                 warrant valid?
                                                                                             acting judicially?

                                                                                              3) Based on RPG
                                                                                             (oath) evidence is
                                                                                                to be found?


WARRANTS AND WARRANTLESS SEARCHES

1. Search Warrants

A. Procedure for Obtaining a Search Warrant
    1. Police officer (known for the purposes of the warrant as an “informant”) swears an affidavit called an
       “information” in the structure of Form 1 in the CC
    2. The PO then brings the information before a judge or justice of the peace, who verify the contents of
       the information according to s. 487 CC

s. 487       Information for search warrant
             487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to
             believe that there is in a building, receptacle or place
                 (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has
                 been or is suspected to have been committed,
                 (b) anything that there are reasonable grounds 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, against this Act or any other Act of Parliament,
                 (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of
                 committing any offence against the person for which a person may be arrested without warrant, or
                 (c.1) any offence-related property,
             may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed
             or designated to administer or enforce a federal or provincial law and whose duties include the enforcement
             of this Act or any other Act of Parliament and who is named in the warrant
                 (d) to search the building, receptacle or place for any such thing and to seize it, and
                 (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or
                 make a report in respect thereof to, the justice or some other justice for the same territorial division in
                 accordance with section 489.1.
Note the police can do this by telephone if necessary – s. 489.1 (“tele-warrant”).

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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010


    3. Once the PO has executed the warrant, anything they have obtained must be brought before the justice
       who issued the warrant (if it going to be kept for trial).

B. The Standard for Obtaining a Search Warrant
 Hunter v. Southam Inc. and s. 487 both present particular requirements in order for a search warrant to be
    valid. Section 487 meets the Hunter standard.
 s. 487 doesn‟t require “reasonable and probable grounds” (only “reasonable”), but this second term has
    been read in by the courts
 The definition of this standard has been contentious
     o Warrants that do not meet it, however, are invalid and the evidence seized as a result susceptible to
         exclusion

R. v. Morelli (2010 SCC)
Facts: A computer technician arrived at M‟s house to install an internet connection. Saw child pornography
links in the favourites tab. Also saw a webcam pointed at where M‟s daughter plays. Went back the next day
to finish the job, and everything had been deleted and cleaned up. Grew concerned, reported it to the police.
The investigating officer consulted another PO from the technological crimes unit, and a PO who had
experience in these types of cases, who both told him that these “types of offenders” tend to gather their
materials, hoard it. The investigating officer got a search warrant on the basis of these suspicions.
Issue: Was this search warrant invalidly issued? Holding: Yes.
Reasoning:
 Before a search can be authorized, the police must provide: “reasonable and probable grounds, established
     upon oath, to believe that an offence has been committed and that there is evidence to be found at the
     place of the search” (Hunter).
 In reviewing the sufficiency of a warrant application, however, the test is: whether there was
     reliable evidence that might reasonably be believed on the basis of which the authorization could
     have issued.
      o The question is not whether the reviewing court would have issued the warrant itself
      o The question is rather whether there was sufficient credible/reliable evidence to permit a JP to find
          RPG to believe that an offence had been committed and that evidence of that offence would be found
          at the specified time/place.
 To conclude that M had downloaded CP, and still possessed it four months later, need to draw inferences
     based on “propensity reasoning”  assume that M is a type of person, and all these people have certain
     characteristics (hoarding behaviour), so M must do that as well
      o The problem with these assumptions is that they are devoid of factual basis
      o The officers who made these assumptions are not experts
 To allow this type of evidence to constitute RPG is to invite dependence on stereotype/prejudice in
     warrant applications
Ratio: Propensity reasoning does not meet the standard of reasonable and probable grounds to believe
evidence of a committed offence will be in a certain place.
Klein on Morelli: since the warrant had not been validly issued, this was a warrantless search and violates s. 8

C. Concerns about Validity of Warrants

Law Reform Commission of Canada, Working Paper: Police Powers – Search and Seizure in Criminal
Law Enforcement
 Commission took a random sample of issued warrants to check their legality
 Research results: there is a clear gap between the legal rules for issuing and obtaining search warrants and
   the daily realities of practice  60% were invalidly issued
 In many cases, the police did have an adequate factual basis for their initiative to search, but the problem


                                                                                                               24
Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

    was with adherence to procedures
   Do justice participants think of search warrants as a mere formality? This is the apprehension.
   Adherence to procedure varied locally, because of a lack of effective mechanisms to enforce the rules
   The search warrants in relation to commercial crime were much better – because these stand a greater
    chance of being challenged
     o Warrants are meant to protect all individuals whose rights might be infringed by an intrusion
        authorized under it  not just those who have the legal resources to challenge the intrusion

Examples of things that can be wrong with a search warrant:
R. v. Bernard (Ont. SCJ 2009)
 Description of things to be searched for is impermissibly vague & non-specific (no description, no period
    of time, no locations)  delegates discretion as to what to search and seize to the executing officers
     o Need to know what the police are looking for and why
 Included inflammatory statements about the accused which were meant to encourage the JP to see this
    person as the type that would engage in the criminal activity suspected – had no relation to the offence for
    which evidence was being sought here (counterfeiting)
 Affiant gave no background information on the confidential informants on whom he relied to form his
    grounds of belief – did not allow JP to assess their credibility
     o No indication of the CIs‟ source of knowledge or how current their information was

2. Warrantless Searches

A. Statutorily Authorized Warrantless Searches
 Two circumstances for there to be a statutorily authorized warrantless search:
     o 1. Exigent circumstances (imminent danger of the loss of evidence)
     o 2. Dangerous to obtain a warrant
 s. 117.02: search for firearms under exigent circumstances where grounds for a warrant exist, but one
    cannot be obtained in time
 s. 254(2)-(4): testing for alcohol in impaired driving offences

B. Searches Incident to Arrest

R. v. Caslake (1998 SCC)
Facts: C‟s car was parked on the side of a highway, and he was strangely standing in the middle of a field 40
yards away. Officer pulled up, got out of his car, asked C what he was doing. C said peeing, got in his car, and
peaced. Officer investigated the field, found 9lbs. of marijuana. Called RCMP and pursued C and arrested
him. RCMP searched the impounded car (without consent or a warrant) 6 hours later pursuant to an RCMP
policy to take inventory of all valuables in impounded cars, and found cocaine. C is charged with possession
of marijuana for the purpose of trafficking, and possession of cocaine.
Issue: Did the search of C‟s car violate his right to be free from unreasonable search/seizure under s. 8 of the
Charter? Holding: Yes.
Reasoning (Lamer C.J.):
 Hunter: s. 8 protects an individual‟s reasonable expectation of privacy
 Collins: 3 prerequisites for a reasonable search under s. 8:
     o 1. Search authorized by law
           Agents of the state can only enter onto or confiscate someone‟s property when the law permits
              them to do so  otherwise are constrained by the same rules of trespass/theft as everyone else
           A. Specific statute/common law has to authorize the search
           B. Search must be carried out in accordance with the procedural/substantive requirements the
              authorizing law provides
           C. Scope of the search is limited to the area/items for which the law granted authority to search


                                                                                                               25
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

            Failure to meet any of these 3 requirements means the search is not authorized by law
     o 2. Law itself must be reasonable
     o 3. Search must be carried out in a reasonable manner
 Warrantless searches = prima facie unreasonable  Crown has burden of showing a warrantless search is
    reasonable on the balance of probabilities
     o In this case, Crown is relying on the common law power of search incident to arrest
 Cloutier: the right to search incident to arrest arises from the fact of arrest on reasonable/probable grounds
     o Three important limits on the power to search incident to arrest:
            1. This power does not impose a duty
            2. The search must be for a valid objective in pursuit of the ends of criminal justice
                a. Safety of police, public, accused
                b. Protection of evidence from destruction
                c. Discovery of evidence that can be used at the arrestee’s trial
            3. The search must not be conducted in an abusive manner
 Most important limit on a search incident to arrest is that the search has to be truly incidental to the
    arrest  this means that the police have to be trying to achieve some valid objective connected to
    the arrest (see above for valid purposes)
     o Subjective element: police have to have one of the purposes of the search actually in mind
     o Objective element: officer’s belief that this purpose will be served by search is a reasonable one
            If search is for the purpose of obtaining further evidence, there must be some reasonable
              prospect of securing evidence of the offence for which the accused is being arrested
 This is not a standard of reasonable or probable grounds (the normal threshold that must be surpassed
    before a search can be conducted)  there just needs to a reasonable basis for the search
 In this case, the search is not truly incidental to the arrest, because it was subjectively undertaken for the
    purposes of complying with RCMP policy  not in order to gather further evidence (which would have
    been acceptable)
Ratio: There is a common law power of search incident to arrest; in order for this search to be valid, it has to
be truly incidental to arrest in the sense that the searching officer has to have any of the following purposes in
mind, and the search is reasonably connected to achieving it: protecting himself, protecting evidence, or
discovering more evidence.

What about strip searches incidental to arrest?
R. v. Golden (2001 SCC)
Facts: Cops suspected G of dealing crack-cocaine. They staked out, and then raided, a Subway restaurant
where G was seen doing deals. They arrested G, and proceeded to search him. Cop took G to a back room to
strip search him; saw that G was hiding drugs in a body cavity. G refused to release the drugs; it ended up that
G was violently strip-searched in the main Subway store, using dirty rubber gloves, in full view of several
police officers and a Subway employee. Some crack-cocaine was recovered from G‟s bodily cavity.
Issue: Does the common law “search incident to arrest power” include the power to strip search?
Holding: Yes, but not in this manner.
Reasoning (Iacobucci & Arbour JJ.):
 Very important to prevent unjustified strip-searches before they occur, because they involve a significant
     interference with personal privacy, and no remedy can adequately compensate the victim‟s harm
 There is a power to strip search that is incident to arrest – however, it is not to be carried out as a matter of
     routine policy
 In order for a strip search to be justified as incident to arrest:
      o 1. The arrest itself has to be lawful
      o 2. The search must truly be incidental to the arrest  i.e. the search must be related to the reasons
          for the arrest itself
            Can search for evidence related to the reason for arrest – but reasonableness of this search is
               governed by the need to preserve evidence/prevent its disposal by the arrestee


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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

            Can also search for weapons to ensure safety of police/others – but a frisk generally suffices
     o    3. Also need additional grounds pertaining to the purpose of the strip search
            Strip search is a more intrusive search, so a higher degree of justification is required to support
               the higher degree of interference with individual freedom/dignity
            The police must establish that they have reasonable and probable grounds for concluding that
               a strip search was necessary in the particular circumstances of the arrest
 4. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary
     that the strip search be conducted in a manner that does not infringe s. 8 of the Charter
      o Conducted at the police station when possible
      o Regard for health/safety of the accused
      o Authorization by a supervisor for the strip search
      o Conducted by person of same gender as accused
      o No more people present than necessary
      o Minimum of force used
      o Carried out in a private area
      o Done as quickly as possible
      o Accused not completely undressed at any one time
 Field strip searches can only be justified in exigent circumstances
 Because strip searches are of such an invasive character, have to be considered prima facie unreasonable
 In this case: arrest was lawful, strip search was related to the purpose of the arrest (drug bust), and the
     police were looking for evidence (drugs) related to the offence alleged
      o However, the manner in which it was conducted was wholly unreasonable; they could have waited
          until the police station (highly unlikely evidence would have been lost or destroyed), it didn‟t have to
          be done so forcefully
Ratio: The common law gives police officers the power to do a strip search incident to arrest; however, the
strip search has to be justified be reasonable and probable grounds to believe it‟s necessary, and has to be
carried out in a manner that is respectful of the accused and his/her rights.
Klein on Golden:
 Question: is the power to do a strip search part of the power to search incident to arrest?
 Here, there is no question that G had a privacy interest in his body – s. 8 is engaged
 There is clearly no warrant for this search  so need to use the Collins framework
      o 1. Search authorized by law?
      o 2. Is the law reasonable?
      o 3. Was it carried out reasonably?
      o Questions 1 & 3 are in issue in this case:
            1. Is the power to do a strip search included in the power to search incident to arrest?
            3. Was the way it was carried out abusive?
 Court decides that there is a power to do a strip search incident to arrest – but what are the limits/scope of
     this power? Needs to be related to the purpose of the arrest, like any search incident to arrest.
 The court conflates the inquiry into lawfulness and reasonableness of strip searches:
      o When strip search is lawful: it is cecessary, reasonable and probable grounds for the search exist
            N.B. THIS IS A HIGHER STANDARD THAN FOR REGULAR SEARCHES INCIDENT TO
               ARREST. In Caslake, can search incident to arrest if you have a “reasonable basis” to believe
               there is evidence related to the offence for which arrest was effected.
      o How strip search should happen: sanitary, at police station if possible, in private (no unnecessary
          people), opportunity to avoid the search given to accused, medical professional

C. Emergency Searches

R. v. Godoy (SCC 1999)
Facts: Two officers responded to an “unknown trouble call” (a 911 call disconnected before caller speaks) at


                                                                                                                 27
Suzanne Amiel                                                                                           Prof. Alana Klein
Criminal Procedure                                                                                              Fall 2010

G‟s. Knocked on the door, G answered. Cops asked if everything was okay; G said it was. Cops asked if they
could come in and look around, and G tried to shut the door. Cops forced their way into the apartment, found
G‟s wife crying – she had been punched in the face by G.
Issue: Do the cops have the power to search a home in response to a 911 call? Holding: Yes.
Reasoning (Lamer C.J.):
 Since the police have no statutory authority for this power, need to see if this power lies within their
    common law duties – have to see if it can be justified by the ancillary powers doctrine (Waterfield)
 1. Responding to 911 calls falls within police‟s common law duty to protect life
 2. The conduct – forcing entry into a house – does not involve an unjustifiable use of police powers
     o Police have to be able to do everything possible to rescue someone who might be in distress
     o “It only takes a modicum of common sense to realize that if a person is unable to speak to a 911
        dispatcher, they may be likewise unable to answer the door when help arrives”
 Court refuses to pronounce on the intersection between this power and the plain-view doctrine
Ratio: Police have the power, found under the ancillary powers doctrine, to search dwelling-houses in
response to an emergency 911 call.

D. Plain-View Searches

   When police are conducting a valid authorized search, they can seize evidence they weren‟t expecting to
    find under the plain-view doctrine, whether it relates to the offence they are investigating, or another
   They have this power under the common law, and to a certain extent, it is codified in s. 489

s. 489      Seizure of things not specified
            (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant,
            any thing that the person believes on reasonable grounds
               (a) has been obtained by the commission of an offence against this or any other Act of Parliament;
               (b) has been used in the commission of an offence against this or any other Act of Parliament; or
               (c) will afford evidence in respect of an offence against this or any other Act of Parliament.
            Seizure without warrant
            (2) Every peace officer, and every public officer who has been appointed or designated to administer or
            enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of
            Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of
            duties may, without a warrant, seize any thing that the officer believes on reasonable grounds
               (a) has been obtained by the commission of an offence against this or any other Act of Parliament;
               (b) has been used in the commission of an offence against this or any other Act of Parliament; or
               (c) will afford evidence in respect of an offence against this or any other Act of Parliament.

The SCC hasn’t laid out a definitive test on plain-view searches. They discuss the concept in these cases:
R. v. Law (SCC 2002)
 Plain-view doctrine: evidence that comes within the view of a “lawfully positioned” officer may be
    admissible if it is discovered inadvertently
 Held not to apply to the contents of a opened safe found in a field used to prosecute a tax offence – the
    documents had to be deciphered before they could be used as evidence
R. v. Buhay (SCC 2003)
 The plain view doctrine requires, perhaps as a central feature, that the police officers have prior
    justification for the intrusion into the place where the plain view seizure occurred
 Held not to apply to the contents of a locked bus depot locker brought to the police‟s attention by a
    Greyhound security agent because it smelled like marijuana

E. Searches on Consent

   Consent was previously conceptualized as a source of the power to search

                                                                                                                         28
Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

   Now, in light of s. 8, is more conceptualized as waiver of one‟s right to be free of unreasonable search or
    seizure – what you let people see, you no longer have a reasonable expectation of privacy in

R. v. Borden (SCC 1994)
Facts: B was arrested for sexually assaulting a woman in a motel in December. He cooperated fully with the
police, and gave them samples of his hair and blood for them to test. They had him sign a consent form saying
they could use this sample for their “investigations” (plural). He was unaware, however, that they were also
investigating him for a different sexual assault (in October), which his DNA revealed he had perpetrated.
Issue: Did getting B‟s bodily samples without telling him which investigation they were for violate his s. 8
rights? Holding: Yes.
Reasoning (Iacobucci J.):
 A seizure occurs whenever there is a non-consensual taking of an item by the state in respect of which the
    citizen has a reasonable expectation of privacy – no seizure occurs if it is consensual
 They did obtain valid consent from B in relation to the first charge (motel assault) – the issue is whether B
    also consented to have his blood seized for the October offence? The answer is no.
 Some awareness of the consequences of the waiver of one‟s rights is required for it to be valid – the force
    of the consent given must be commensurate with the significant effect which it produces (i.e. no
    protection from s. 8)
 Person purporting to consent must have the requisite informational foundation for the true relinquishment
    of the right
 It was incumbent on the police in this case to make clear to B they were treating his consent as blanket
    permission to use the sample for other offences in which he was a suspect
Ratio: Waiver of s. 8 rights (i.e. consent to a search/seizure without lawful authority) must be informed
consent to be valid – i.e. the person consenting has to understand the consequences of the consent.
Commentary: B‟s right under s. 10(a) was also violated in this case because he was not informed of the
reasons for his detention.
R. v. Kennedy (2000 BCCA)
 A cop was pursuing someone who was fleeing; noticed an open door. Talked to the owner of the house
    (K), and obtained his permission to enter the house for the purposes of seeing whether the fugitive was
    within the house (K said: “Okay, yeah”)
 Once in this house, cop noticed all the signs for a marijuana grow-op. Got a search warrant and found one
    in the basement (where the marijuana grow-ops are always mistakenly found ).
 This search was on consent, decides the court. K knew he could refuse his consent to the cop, but let him
    in anyway.
R. v. Clement
 C gave his permission that the cops search his car – they found evidence (handgun, mask) linking him to
    several robberies.
 Court decides C consented to the search because he knew that he could refuse.

V. ARREST, RIGHTS ON ARREST, AND RIGHTS DURING INTERROGATION

ARREST

1. What is an Arrest?

   Whitfield (1970 SCC): an arrest is an actual seizure, or touching of a person‟s body, or pronouncing the
    words of arrest
    o Hallmarks of arrest are the accused‟s loss of freedom (through acquiescence/physical constraint), a
        marked reduction in their privacy
   What is the difference between arrest and detention?
    o It seems to be the extent of police power over you

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Suzanne Amiel                                                                                           Prof. Alana Klein
Criminal Procedure                                                                                              Fall 2010

     o    Can move the accused around if they are arrested; probably can‟t move them in the case of detention

De Facto Arrest

R. v. Latimer (SCC 1997)
Facts: Police had good evidence that L had killed his disabled daughter. They went to his house, asked him to
get into the back of the police car, told him he was detained, read him his rights, and told them they would be
taking him to the station to ask him some questions. L asked to change his clothes – they said yes, but they
would have to accompany him because he was now in custody.
Issue: Was L‟s detention at his farm arbitrary and contrary to s. 9? Holding: No.
Reasoning (Lamer C.J.):
 RCMP officers who attended at L‟s farm put him under “de facto arrest”. This arrest was lawful because
     officers had RPG to arrest.
 A lawful de facto arrest is not contrary to s. 9.
 An arrest consists of either:
      o 1. Actual seizure or touching of a person’s body with a view to his detention, or
      o 2. Pronouncing of the “words of arrest” to a person who submits to the arresting officer
            We do not have a definition of the “words of arrest”: but it is clear that it is not a narrow
               definition; other words than “arrest” will suffice
            What counts is: the substance of what the accused can reasonably be supposed to have
               understood, rather than the formalism of the precise words used
 L‟s strongest argument: no arrest occurred because the officers deliberately chose not to arrest him
      o Notwithstanding officers‟ intention, their conduct had the effect of putting L under arrest
      o Their words and conduct, and L‟s submission clearly indicates arrest
Ratio: A de facto arrest can also be lawful if it is made on the appropriate grounds.
Klein on Latimer and De Facto Arrest:
 How did the court conclude L was under de facto arrest? It‟s not the words that are determinative, it is the
     substance of the encounter
      o The person under de facto arrest needs to believe that they are not free to leave
 N.B. This case is before the cases on investigative detention
 Cops were pretty sure Latimer was guilty of murder; they have their reasonable and probable grounds to
     believe L had committed an indictable offence (i.e. to arrest)
      o This colours their interaction with the accused
      o The description of L is that he was resigned to being arrested

2. General Powers of Arrest: Citizen’s Arrest

Anyone has the power to arrest under certain circumstances (when the citizen FINDS someone committing an
offence):
s. 494     (1) Any one may arrest without warrant
                (a) a person whom he finds committing an indictable offence; or
                (b) a person who, on reasonable grounds, he believes
                   (i) has committed a criminal offence, and
                   (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
             (2) Any one who is
                (a) the owner or a person in lawful possession of property, or
                (b) a person authorized by the owner or by a person in lawful possession of property,
             may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that
             property.
             (3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the
             person to a peace officer.
*Note that the property offence in 494(2) can be either indictable or summary.

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Suzanne Amiel                                                                                              Prof. Alana Klein
Criminal Procedure                                                                                                 Fall 2010


The notion of citizen’s arrest has taken on new relevance in Canada with the rise of private security agencies:
George S. Rigakos & David R. Greener, Bubbles of Governance: Private Policing and the Law in
Canada
 A security officer can make lawful arrests as a citizen or agent of a property owner under s. 494
 Security officer‟s power to arrest is no different than that of any other ordinary citizen
 Under subsection 494(1), security agent must see the essential elements of the offence being committed
 Can also arrest someone without seeing the offence committed – if they reasonably believe that an offence
    has been committed, can arrest (s. 494(2))
     o The reasonableness of the belief becomes the standard
 In Lerke, ABCA decided that the power of arrest – regardless of who uses it – is subject to Charter
    scrutiny, because it is always the exercise of a governmental function
     o However, courts have consistently expected a lower level of constitutionality from security guards

3. Police Powers of Arrest

   Police have a much broader power to arrest people
     o The PO does not have to see the accused committing an offence
     o Just has to believe, on reasonable and probable grounds, that the person has committed, is
         committing, or will commit an indictable offence
     o PO can also arrest someone they find committing a summary offence
   Biron (1970): interpreted “finds committing an offence” as APPARENTLY committing an offence
     o This was so that if someone is found not guilty at the end of their trial, that finding doesn‟t invalidate
         their lawful arrest

s. 495       Arrest without warrant by peace officer
             (1) A peace officer may arrest without warrant
                 (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has
                 committed or is about to commit an indictable offence;
                 (b) a person whom he finds committing a criminal offence; or
                 (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or
                 committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial
                 jurisdiction in which the person is found.
             Limitation
             (2) A peace officer shall not arrest a person without warrant for
                 (a) an indictable offence mentioned in section 553,
                 (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on
                 summary conviction [hybrid offences], or
                 (c) an offence punishable on summary conviction,
             in any case where
                 (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances
                 including the need to
                    (i) establish the identity of the person,
                    (ii) secure or preserve evidence of or relating to the offence, or
                    (iii) prevent the continuation or repetition of the offence or the commission of another offence,
             may be satisfied without so arresting the person, and
                 (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail
                 to attend court in order to be dealt with according to law.
             Consequences of arrest without warrant
             (3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting
             lawfully and in the execution of his duty for the purposes of
                 (a) any proceedings under this or any other Act of Parliament; and
                 (b) any other proceedings, unless in any such proceedings it is alleged and established by the person

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Suzanne Amiel                                                                                           Prof. Alana Klein
Criminal Procedure                                                                                              Fall 2010

                 making the allegation that the peace officer did not comply with the requirements of subsection (2).

4. Alternatives to Arrest/Post-Arrest Detention

   The Bail Reform Act, 1970 was a response to high rates of post-arrest detention
     o The problem with post-arrest detention: all other things being equal, people detained pre-trial are
          more likely to be convicted
            Why? Cannot mount their defence properly (less access to their lawyer), psychological bias of
                judge/jurors when they see an accused come in from prison for their trial, they are likelier to
                plead, financial issues of not earning money while in jail
   Part of this Act was a reform of arrest powers
     o See s. 495(2) above: just because a PO can arrest, doesn‟t mean they should  if they don‟t need to
          (for reasons of preservation of evidence, public safety, etc), POs are directed not to arrest a person
          charged with a less serious indictable (s. 553), hybrid, or a summary conviction offence
            I.e. Unless it‟s necessary in the public interest, nobody should be detained
     o N.B. There are very few consequences if the PO doesn‟t release as directed under s. 495(2)  see s.
          495(3) (the “paper restriction”): the PO is deemed to be acting within their duties
   If the PO doesn‟t arrest the accused pursuant to s. 495(2), they give them an appearance notice instead
     o This is not an arrest
     o See s. 496
   If an accused is arrested for one of the offences listed in s. 496(a)-(c), then they should be released as soon
    practicable with an appearance notice:
     o s. 497: PO should release the accused (with an appearance notice) as soon as is “practicable”
            Exceptions: public interest (with regard to need to establish the identity of the person, preserve
                evidence, ensure safety of victim, prevent continuation of offence), reasonable belief the person
                won‟t come to court
            The incentive of police officers to release is lessened by the limited consequences for not
                releasing (see s. 497(3))
     o s. 498: OIC should let the accused go as soon as practicable (with appearance notice/recognizance)
            Same exceptions as s. 495/497, same escape clause for PO who doesn‟t release
   The idea is that as the process goes along, the reasons to detain are disappearing (identity, evidence, flight
    risk, taken care of)
   These all apply to arrests without a warrant. If the accused has been arrested with a warrant, see s. 499
     o The language is that the PO/OIC “may” release, and have stronger ability to impose conditions on the
          recognizance if one is entered into
   Result of the discretion given to POs under these sections is arbitrariness of application. White people are
    released much more often than black people with similar charges, similar criminal records.

5. Minimum Standards for Arrest

A. Statutory Standard: Reasonable and Probable Grounds

   s. 495(1) permits a police officer to arrest a person without a warrant if he believes on reasonable grounds
    that the person has committed or is about to commit an indictable offence
   What does this standard mean in practice? What constitutes reasonable and probable grounds?

R. v. Storrey (1990 SCC)
Facts: The 3 victims were driving home to their native US when a car cut them off and forced them to stop.
The two assailants got out of the car and attacked the 3 victims, punching them and slashing them with a
knife. One victim was hospitalized, two others taken to the police station. They both said the car which cut
them off was a Thunderbird, and picked out a man named Cameron from a photo line-up. Cameron, however,
wasn‟t in the jurisdiction at the time of the assault. Officer in charge looked in the division‟s “persons under

                                                                                                                        32
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

investigation file” and Storrey came up as owning a Thunderbird, and looking almost identical to Cameron.
Officer felt he had RPG to arrest Storrey; he issued a bulletin and S was found a week later. Cops held him at
the station until the victims could come pick him out of a line-up.
Issue: Did this arrest violate S‟s s. 9 rights? Holding: No.
Reasoning (Cory J.):
 s. 495(1) requires the police to have reasonable and probable grounds to believe that S had committed
    the agg. assault before they could arrest him
     o This is the standard because it strikes a balance between the individual‟s right to liberty and the need
          for society to be protected from crime
 Police do not need anything like a prima facie case for conviction before they act – they need to have
    made what investigations were reasonable and practicable in the circumstances
 It is not sufficient that the police officer personally believed he had RPG to make an arrest; must
    also be objectively established that those reasonable and probable grounds did in fact exist
 Criminal Code requires the subjective belief by the PO; these grounds must also be justifiable from an
    objective point of view
Ratio: In order to arrest someone without a warrant, a police officer must have reasonable and probable
grounds to believe that the person committed an indictable offence. They must have a subjective belief in
those reasonable and probable grounds, and those grounds must be objectively justifiable as well.
Commentary: N.B. the CrC only requires “reasonable grounds” – the case law has consistently added the
requirement that they also be probable.
Klein on Storrey:
 This case is important because it sets out what is required for RPG:
     o Subjective belief of PO not enough
     o It has to be objectively established that RPG existed
            “A reasonable person, standing in the shoes of the police officer, would have believed that
               reasonable and probable grounds to arrest existed”
 Court concludes that if an arrest is lawful, it is not arbitrary. If it is lawful, it is a constitutionally
    compliant arrest.
 Remember Hunter v. Southam: in deciding if a search/seizure is constitutional, they take the standard set
    out in s. 487 of the CC and raise it to the level of a constitutional standard
     o A search that satisfies the requirements of s. 487 is presumptively constitutional
 Compare here: are we elevating s. 495 to the constitutional standard? Are we going to say that if you don‟t
    satisfy s. 495, you have a Charter violation of s. 9?
     o This is the question in the Duguay case

B. The Constitutional Dimension

s. 9 Charter         Everyone has the right not to be arbitrarily detained or imprisoned.

R. v. Duguay, Murphy, & Sevigny (1985 OCA)
Facts: A break-in occurred. The victims said they had seen D, M, and S drinking in their neighbours‟
backyard before they left the night the break-in occurred. D, M, and S came back to the neighbours‟ house
while the police were investigating; victims pointed them out. The cops testified that they found this to be
RPG for arrest. Put them in the back of the squad car, took them to the station, and inculpatory statements
were secured from all three. Cops admitted the sole purpose of the arrest was to fingerprint and interrogate the
accused, and to see whether they committed the break-in or not.
Issue: 1) Is this an unlawful arrest? 2) If so, is it arbitrary within the meaning of s. 9? Holding: 1) Yes. 2) No.
Reasoning (MacKinnon A.C.J.O.):
 The trial judge decided the police officers did not have RPG to arrest the three accused; OCA accepts.
 Cannot be that every unlawful arrest necessarily falls within the words “arbitrarily detained” in s. 9
     o For example, the grounds upon which an arrest is made may fall “just short” of constituting


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Suzanne Amiel                                                                                  Prof. Alana Klein
Criminal Procedure                                                                                     Fall 2010

         reasonable and probable cause
     o   Or, the arresting officer may have mistakenly but honestly thought they had RPG to arrest
     o   In these circumstances, although the arrest may be unlawful, it could not be said to be arbitrary, in
         the sense of without reason or capricious
 The issue of whether an accused was arbitrarily detained depends on two considerations:
     o 1. Particular facts of the case
     o 2. The departure from the standard of reasonable and probable ground, and the honesty of the
         PO’s belief in RPG, and the basis for that belief
 In this case, the arrest is clearly arbitrary, being for an improper purpose. The POs did not have RPG, nor
    did they honestly believe they had it. Violation of s. 9.
Ratio: Although an arrest may be unlawful, it is not therefore necessarily arbitrary for the purposes of s. 9.
Klein on Duguay:
 Court decides that this arrest contravened the accused s. 9 rights
 But they go out of their way to say that just because an arrest is unlawful DOES NOT MEAN that it is
    arbitrary for the purposes of s. 9
     o PO might have had a sincere belief that they had RPG to arrest – and objectively, maybe their
         reasons fell just short of RPG

Grant seems to overrule Duguay on this point:
R. v. Grant, reprise
 s. 9 guarantees that the state may not detain arbitrarily, but only in accordance with the law
 A lawful detention is not arbitrary within the meaning of s. 9 (unless the law itself is arbitrary)
 Conversely, a detention not authorized by law is arbitrary and violates s. 9
 Earlier suggestions that an unlawful detention was not necessarily arbitrary have been overtaken
    by Mann
     o The concern in earlier cases is that an arrest made on grounds falling just short of RPG should not be
         considered arbitrary
     o Mann says that a “reasonable suspicion” will allow investigative detention
 This approach mirrors the framework used in Hunter and Collins  for a search to be reasonable, it has to
    be authorized by a law which is reasonable. Now, for a detention to be non-arbitrary, it has to be
    authorized by a law which is itself non-arbitrary.
Klein on Grant:
 Does Grant overturn Duguay? The court says that any arrest not authorized by law is arbitrary within the
    meaning of s. 9. The court has changed its tune on what constitutes arbitrariness.
     o Seem to say that if it is not lawful, it is arbitrary.
     o Raises the statutory standard to the level of constitutional standard.
     o This mirrors the approach in Hunter
 If Duguay happened now, what would the analysis of the SCC be?
     o Big s. 9 Violation: criminal code is the presumptive constitutional standard
           No RPG = no statutory justification for arrest under s. 495
           No statutory justification for arrest = unlawful arrest
           Unlawful arrest = arbitrary + violation of s. 9 + unconstitutional
     o No s. 9 Violation – argument to be made (not likely to hold sway)
           We have a situation of “reasonable suspicion” which is enough for investigative detention
           Have to argue that this was not an arrest, but an investigative detention
           The argument doesn‟t hold up on the facts of these case – they brought the suspects to the
             station, interrogated them, it was not “brief”
               We don‟t know where the Mann line is, but we know this is way over it

6. Arrest Warrants



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Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

   Police have such broad discretion to arrest without a warrant that they tend not to use warrants
   Police only need to get warrants if:
     o Arresting someone for a summary conviction they didn‟t witness (s. 495)
     o Arresting someone within a dwelling-house (Feeney)
          N.B. Dwelling-house probably doesn‟t have to belong to the suspect
          But does it have to be one in which they have a reasonable expectation of privacy? Unsure.

R. v. Feeney (SCC 1997)
Facts: Frank Boyle was found dead in his home on June 8, at 8:20am. His car was found run off the road. F
had not only crashed a different stolen car at the same place earlier that same day, but had been seen walking
away from the scene of the second accident at 6:45am. Police learned F got home at 7:00am after a night of
drinking. Police went to F‟s trailer, knocked on the door, and said “Police.” There was no answer, and so
officer entered the trailer with his gun drawn, woke up F, and said “I want to talk to you.” They put him under
arrest, and later obtained a confession from him. They searched the trailer, and found a bloody shirt and
cigarettes that were the victim‟s brand. At trial (and appeal), F was convicted of second degree murder.
Issue: Did the police need an arrest warrant to enter F‟s house and lawfully arrest him?
Holding: Yes, with dissent.
Reasoning:
Majority (Sopinka J. + 4):
Pre-Charter Law of Arrests in Dwelling-Houses
 Warrantless arrest in a dwelling-house following forcible entry is permissible in following circumstances:
     o 1. Officer believes RPG for the arrest exist; objectively speaking, RPG exist
     o 2. Officer has reasonable grounds to believe the person sought is within the premises
     o 3. Proper announcement is made
            Except in exigent circumstances, police should give notice of presence by knocking or ringing
               the doorbell; give notice of authority by identifying themselves as law enforcement; give notice
               of purpose by stating lawful reason for entry
            Before forcing entry, police should request admission and have it denied
     o Authority: Eccles v. Bourque, Landry, s. 495 CrC, Storrey [N.B. this is not the order of the steps set
          out in the case, but it‟s the order that makes sense]
 In this case, no objective RPG for the arrest for murder existed. Announcement may not have been
    sufficient, but is unnecessary to decide.
Post-Charter Law of Arrests in Dwelling-Houses
 The introduction of the Charter means that the above test for warrantless arrests no longer applies – it is
    too expansive in light of the Charter‟s emphasis on privacy (Hunter)
     o The purpose of the Charter is to prevent unreasonable intrusions on privacy, not label them after
 In general, the privacy interest outweighs the interest of the police  warrantless arrests in
    dwelling houses are prohibited
     o This makes the law of arrest concordant with the law on search and seizure
     o Need prior authorization to enter somewhere and seize THINGS, so should need prior authorization
          to enter somewhere and seize PERSONS
     o Warrant for arrest in dwelling-house is especially necessary in light of the power to search incident to
          arrest: if you could just enter and arrest, could search the house incident to arrest without a warrant
            But Hunter held that warrantless searches are prima facie unreasonable
            So a warrant is required to make an arrest in a dwelling-house
 One exception to the prohibition of warrantless arrests in dwelling-houses: cases of hot pursuit. Other
    exigent circumstances may constitute exceptions in the future.
 Arrest warrant alone is not sufficient in the case of an arrest made in a dwelling-house, says majority (?!)
     o Sopinka J. wants a new type of warrant read into the Code for arrests in dwelling-houses (!)
 The following requirements must be met in order for an arrest in a dwelling-house to be legal:
     o 1. A warrant must be obtained on RPG to arrest and to believe person is within the premises
     o 2. Proper announcement must be made before entering

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Suzanne Amiel                                                                                  Prof. Alana Klein
Criminal Procedure                                                                                     Fall 2010

Dissent (L‟Heureux-Dubé J. + 2):
 Agrees with trial judge that officers had RPG to arrest F – the combined effect of all the circumstances
    makes RPG
 Reasonable and probable grounds is a common-sense concept which should incorporate the experience of
    the officer
 LHD thinks that exigent circumstances justifying a warrantless arrest in a dwelling-house existed here:
     o The requirement of giving notice of purpose before entry into the house is hollow if it has to be made
         in such a way that the reason for giving it would be defeated – F was sleeping, couldn‟t admit the
         officers  need to tell him that it‟s police, and he‟s under arrest while he‟s awake!
     o In this case, it would be extremely impractical for the cops to get a warrant (were in small
         community, far away from police station/court); the time it would take would be plenty for the
         evisceration of the evidence that was found.
Ratio: Warrantless arrests executed in dwelling-houses are illegal.
Klein on Feeney:
 Sopinka for the majority didn‟t think the POs had RPG to arrest F
 The case could have been dealt with on that basis; but majority goes on to say much more
     o Sopinka decides that in light of the Charter and Hunter, there is a prohibition on warrantless arrests
         within dwelling-houses
     o One exception that he recognizes: hot pursuit
     o He doesn‟t recognize a general “exigent circumstances” exception – he says any murder or serious
         charge investigation could be considered exigent circumstances
 LHD in dissent has a problem with that; what would this entail for police officers? For law enforcement?
     o May lose the bloody shirt; the cigarettes
     o But on the facts of this case, the POs didn‟t know there was a bloody shirt in the trailer that would
         have risked being destroyed IF they had waited for a warrant
 In direct response to Feeney, Parliament enacted s. 529.3(1) in 1997
     o Creates a much broader exigent circumstances exception that Sopinka was willing to  to prevent
         suspect from hurting anyone, disposing of evidence
     o There has been no constitutional challenge to this section on the basis of s. 8

7. Use of Force in Arrest

See s. 25 CC.
R. v. Nasogaluak (SCC 2010)
Facts: N was involved in a high-speed chase with the cops; when he finally stopped, at police gunpoint, he
was punched several times as he was pulled out of the car, and then again when he was on the ground. His ribs
were broken and he suffered a collapsed lung that required emergency surgery. No record was made of the
force used during arrest, or the drawing of the weapon; no effort was made to get N any medical attention. N
was given a conditional discharge at trial for the Charter breaches he suffered at the time of his arrest.
Issue: Was N‟s sentence lawfully reduced as a remedy for the excessive use of force by the police?
Holding: Yes, cannot reduce the sentence below the statutory minimum.
Reasoning (LeBel J.):
 While police are permitted to resort to force in order to complete an arrest/prevent an offender from
    escaping custody, allowable degree of force is constrained by: principles of proportionality,
    necessity, and reasonableness
 s. 25 CC:
     o s. 25(1): PO justified in using force to effect a lawful arrest, provided he is acting on RPG and used
         only as much force as was necessary in the circumstances
     o s. 25(3): PO is only permitted in using a high degree of force if he believes it is necessary to protect
         himself or another from D/GBH. Belief must be objectively reasonable.
 Police have to make quick decisions in the field – they have to be judged in light of the exigent


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Suzanne Amiel                                                                                             Prof. Alana Klein
Criminal Procedure                                                                                                Fall 2010

   circumstances in which they work
  In this case, the force was excessive on any standard. A breach of s. 7 is easily made out on the facts.
  A judge can reduce a convict‟s sentence on the basis of Charter breaches that occurred during arrest
    o However, can do so on the basis of sentencing principles  no need to appeal to s. 24(1)
    o Furthermore, s. 24(1) cannot be invoked to give a sentence that is less than the statutory minimum
Ratio: Use of force permissible in arrest is judged on principles of proportionality, necessity, reasonableness.
Novel aspect of this case is that it’s a Charter violation if the PO uses too much force (s. 7).

RIGHTS ON ARREST

   The moment of arrest or detention marks the point at which the power disparity between the police and
    accused shifts strongly in favour of police  so this moment is also when several of the accused‟s rights
    come into effect
     o ***So it is important to define what constitutes arrest or detention

s. 10        Everyone has the right on arrest or detention
Charter          (a) to be informed promptly of the reasons therefor;
                 (b) to retain and instruct counsel without delay and to be informed of that right; […]

1. Section 10(a): Right to be Informed of the Reasons for the Arrest

   The right to be informed of reasons for arrest pre-dates the Charter  see s. 29(2) CC (this applies to
    citizen‟s arrests as well!)
     o Has been rendered redundant for police by s. 10(a)

R. v. Evans (SCC 1991)
Facts: Evans was developmentally delayed (borderline retardation). The police knew E was mentally
deficient. He was brought in on a charge of trafficking in narcotics. The police admitted at trial that the central
purpose of arresting him was to obtain information in relation to a murder that they thought his brother was
involved in. During the interview, E became the prime suspect in the murder. The police did not advise E that
he was now being detained for murder or reiterate his right to counsel. By the end of the interrogations, E had
confessed to the murder and was convicted at trial.
Issue: Was E‟s s. 10(a) right violated by the police officers? Holding: No, with dissent on this point.
Reasoning:
Majority (McLachlin J.):
 The right to be promptly advised of the reason for one‟s arrest is founded on the notion that you do not
    have to submit to an arrest if you don‟t know the reasons for it
     o Also, can only exercise your right to counsel in 10(b) in a meaningful way if you know the extent of
         your jeopardy
 The exchanges between E and the police suggest that E knew he was being investigated for murder (“I
    never killed no one”)
 “When considering whether there has been a breach of s. 10(a) of the Charter, 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. The question is whether what the accused was told, viewed
    reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable
    decision to decline to submit to arrest, or alternatively, to undermine his right to counsel”
Dissent (Sopinka J.):
 The purpose of s. 10(a) is to allow an accused to immediately undertake his or her defence, including what
    reply to make – if any – to the accusation
 The officers knew that E was of subnormal intelligence: he, of all people, should not be required to
    deduce from the interrogation that what he was charged with had changed
     o The POs had a responsibility to explicitly state the true ground of his continuing arrest

                                                                                                                         37
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

Ratio: Whether an accused has been informed of the reasons for arrest is judged on the substance of what they
can be reasonably supposed to have understood in all the circumstances of the case.
Klein on Evans:
 Majority doesn‟t find there was a violation of s. 10(a), but finds there was a violation of s. 10(b);
    concurrence finds there was a violation of both
 Majority: what is the purpose of s. 10(a)?
     o Do not have to submit to an arrest that you don‟t know the reasons for: this is an interesting
         comment, and does not seem to be true in practice
     o Allows you to undertake your defence right away
     o Makes s. 10(b) meaningful – need to know what you‟re charged with to get good legal advice
     o McLachlin says a reasonable person in E‟s position would understand that the position has changed
           Doesn‟t take individual circumstances into account, really
 Sopinka, in dissent on this point, says some people might be able to deduce from what was said by the
    POs that the situation had changed – but Evans was not one of these people

2. Section 10(b): Right to Counsel

A. Purpose of the Right to Counsel

Renke, “The Right to Counsel and the Exclusion of Evidence”
 The Crown is well-funded and staffed, and its prosecutions are supported by the police
 Defence counsel equalize the adversarial contest; ensure that the accused‟s rights are taken seriously,
   charges are pursued fairly, rules of evidence are observed, advocate on behalf of the accused
 The right to counsel is a practical and moral necessity

   Purpose of the right to counsel is to balance the power differential that is created upon detention/arrest

B. Timing of the Right to Counsel

R. v. Suberu, reprise
Issue: What does “without delay” mean in s. 10(b)?
Reasoning (McLachlin C.J. & Charron J.):
 Once engaged, s. 10(b) imposes both informational and implementational duties on the police
     o Informational: detainee must be informed of the right to retain and instruct counsel without delay
     o Implementational: requires the police to provide the detainee with a reasonable opportunity to do so
           Police must also refrain from eliciting incriminating evidence from the detainee until they have
              had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived their
              right to do so
 Purpose of s. 10(b): to ensure individuals know their right to counsel & have access to it, in
    situations of legal jeopardy where they are vulnerable to the exercise of state power because they
    are suffering a significant deprivation of liberty; to guard against involuntary self-incrimination.
     o The concerns about self-incrimination and interference with liberty that s. 10(b) seeks to address
         arise as soon as detention is effected
 The phrase “without delay” must be interpreted as “immediately” upon detention
 But the definition of detention, “as understood in these reasons,” gives police leeway to engage members
    of the public in non-coercive, exploratory questioning without necessarily triggering detention
     o So s. 1 doesn‟t need to be invoked to allow police to fulfil their duties
Ratio: The phrase “without delay” in s. 10(b) means immediately upon detention.
Wightman & Mack, “Has Suberu Marked the End of Investigative Detention?”
 At trial and in the court of appeal, both courts ruled that there was an investigative detention, but there
    was no right to counsel during such a period


                                                                                                                 38
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

   SCC said there was no investigative detention, but there is a right to counsel if there had been one
   What will happen to investigative detention? Is it “nullified”? If the police have to tell people about their
    right to counsel every time they are detained for the purposes of investigation, the police are also
    presumably required to stop questioning the detained until they have an opportunity to speak to counsel
 The police will likely no longer rely on investigative detention as an investigatory tool – will either be
    more likely to arrest, or attempt to remain in the Charter-free zone set out by Suberu (where they have no
    right to search the accused, and their safety is therefore compromised)
Klein on Suberu:
 The right to counsel arises immediately upon investigative detention
 Crown counsel would really strongly have objected to this
     o This defeats the purpose of investigative detention (people are going to stop talking as soon as you
         tell them they might want a lawyer for the conversation that is about to ensue)
 How does the majority assuage the police? Tells them they won‟t take too expansive of a view of
    detention!
 Critique: So police will detain less, question preliminarily more (no need for Charter cautions).
     o Wasn‟t the reason the Court recognized investigative detention to regulate it? To make sure people in
         jeopardy were read their rights? Now that won‟t happen.

C. Overview of the Components of the s. 10(b) Right to Counsel

   s. 10(b) doesn‟t get everyone a lawyer, it gets everyone this: a reminder and a means if requested

    1. Informational Component
           a. Duty to inform detainee of right to retain and instruct counsel without delay, and of existence
              and availability of legal aid counsel
                    i. Not a duty to provide counsel; duty to inform about public services that exists
           b. Generally mere recitation is enough, unless there are special circumstances making it such
              that the accused does not understand (high standard for “special circumstances”)
    2. Implementational Component
           a. If detainee invokes the right, must provide a reasonable opportunity to do so (absent exigent
              circumstances)
           b. Refrain from eliciting information from detainee until they have had that reasonable
              opportunity (absent exigent circumstances)
                    i. Police must stop asking questions until the right has been properly exercised
    3. Limitations
           a. Detainee must be reasonably diligent in pursuing right to counsel
                    i. Have to assert their right, and have to act diligently in pursuing it
           b. Detainee may waive the right to counsel
                    i. This is a very high standard
                   ii. Just talking – and giving incriminating statements – is not considered a waiver

D. The Informational Element of the Right to Counsel

R. v. Bartle
Facts: B was pulled over and failed his breathalyzer. PO advised B that he had the right to retain/instruct
counsel, to free advice from a legal aid lawyer, and that he could apply for legal aid. B didn‟t know that there
were duty counsel lawyers available to talk to him as soon as he got to the station, and made incriminating
statements while they were still at the roadside.
Issue: Do detained/arrested persons have the right under s. 10(b) to be advised of the existing services for
free, immediate legal advice available in the province? Holding: Yes, with dissent.
Reasoning:
Majority (Lamer C.J.):

                                                                                                                39
Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

   Purpose of 10(b): allow the detainee to make informed choices about how to exercise all their other rights,
    such as right to silence
 Section 10(b) imposes the following duties on state authorities who arrest someone:
     o A. Informational Duty:
            1. To inform them of their right to retain/instruct counsel without delay, and of the
               existence and availability of legal aid/duty counsel
     o B. Implementation Duty [triggered by detainee indicating desire to exercise their right]:
            2. If a detainee invokes the right, to provide them with a reasonable opportunity to do so
            3. To refrain from eliciting evidence until they have had that reasonable opportunity
            (One big exception: in urgent or dangerous situations, no duty to refrain)
     o C. Limitations: the right to counsel is not absolute.
            Detainee must invoke the right
            Detainee must be reasonably diligent in exercising the right
            Detainee can waive the right
     o In circumstances where the detainee does not understand, mere recitation of the right to counsel is
          not enough  authorities have to explain further
            There can be no waiver unless the defendant has understood the right they are waiving
 Brydges
     o The accused‟s 10(b) rights were violated because the POs did not inform him about legal aid and
          duty counsel
     o As part of the informational component of s. 10(b), the accused has the right to be informed of the
          existence and availability of applicable systems of duty counsel and legal aid in the jurisdiction, and
          how to access them
 In this case, B was not properly informed of his rights – B was confused about whether he had to apply for
    legal aid, when he could use the right, etc.
Dissent (L‟Heureux-Dube J.):
 It is desirable to inform someone about the legal aid services available, but it is not a constitutional
    requirement, because the existence of these services is not a constitutional requirement
Ratio: The informational duty imposed on police by the accused‟s s. 10(b) right to counsel means the police
have to tell a detainee they have a right to counsel, and inform them about any legal aid or duty counsel
services in their jurisdiction.
Klein on Bartle:
 Takeaway: detainee has a right to full disclosure of what resources are available to him in his situation
 Also, police are entitled to assume that people understand the standard caution (in the absence of obvious
    disability or language difficulties)
 N.B. Court in no way provides a minimum standard of what the state should provide in terms of legal aid
    – if a province were to abolish legal aid, they wouldn‟t run afoul of s. 10(b)

E. The Implementational Element of the Right to Counsel

R. v. Manninen (SCC 1987)
Facts: M is arrested for armed robbery of a Mac‟s Milk in Toronto. They advise him of his rights to counsel,
and he says he wants to see his lawyer. However, the cops keep questioning him for six more hours before
they give him the opportunity to talk to his lawyer, even though there was a phone available. M makes
incriminating statements.
Issue: Did the cops violate their duty to implement the accused‟s right to counsel? Holding: Yes.
Reasoning (Lamer J.):
 When the accused indicates that they would like to avail themselves of their right to legal advice, the
    police have a correlative obligation to facilitate contact with counsel and to stop asking questions until
    the accused has had a reasonable opportunity to talk to a lawyer
     o So the accused can learn how to exercise their right to silence, amongst other things


                                                                                                               40
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

   Not only did the police not offer the use of the phone, but they kept asking the accused questions after he
    said he wanted to talk to his lawyer
 There were no urgent circumstances in this case justifying the continuation of the interrogation
 There was no implied waiver by M of his right to counsel just because he answered questions; he
    requested to talk to his lawyer, and the request was denied. He likely felt he must answer the questions.
Ratio: The cops have a duty to a) give the accused a reasonable opportunity to contact counsel and b) stop
asking questions until that is done.

Do you have a constitutional right to contact the lawyer of your choice?
R. v. Ross (SCC 1989)
Facts: Three minors were arrested for a break and enter which had been witnessed by four people. The
detainees tried to phone their counsel, but received no answer (2:00am). One was asked if he wanted to phone
another lawyer, and he said no. A police line-up was conducted at 3:00am – none of the accused were advised
that they didn‟t have to participate.
Issue: Were the accuseds‟ rights to counsel under s. 10(b) violated? Holding: Yes.
Reasoning:
 Police neither gave the detainees a reasonable opportunity to contact counsel, nor did they refrain from
     eliciting evidence from them in the meantime.
 Accused or detained persons have a right to choose their counsel
      o Only if the chosen lawyer cannot be available within a reasonable time is the defendant
           expected to exercise their right to counsel by calling a different lawyer (to be diligent in their
           exercise of right)
      o It was reasonable to at least wait until office hours (daytime) before trying to elicit info
 Once the accused has asserted their right to counsel, police have to refrain from making the accused make
     a decision or participate in a process that would adversely affect their trial (until they have had a
     reasonable opportunity to exercise their rights)
 The police effectively forced the accused to participate in a line-up without legal advice on whether they
     should assent, how a good line-up is run, consequences of refusing to participate
 There was no urgency or compelling reason to do so
Ratio: The right to counsel is the right to counsel of choice, within reasonable limits.

R. v. Burlingham (SCC 1995)
Facts: B charged with murder. Police subjected him to an intensive, manipulative interrogation. Questioned
him despite his repeated reassertion he would not speak unless he talked to his lawyer. They also constantly
denigrated the integrity of defence counsel, saying he only wanted money, was on vacation, was not loyal or
committed, etc. Furthermore, they offered to charge B with second-degree instead of first degree murder in
exchange for his cooperation, and said the offer would expire before his counsel would be available to advise
him on it (honest mistake by police: Crown counsel had only authorized police to offer B a plea bargain for
second-degree, not a lesser charge that he could contest at trial). B succumbed to the pressure: confessed, told
them where they could find the gun, agreed to go to the murder site.
Issue: Were B‟s rights to counsel infringed? Holding: Yes.
Reasoning (Iacobucci J.):
 Several ways in which B‟s right to counsel was denied:
     o 1. Police repeatedly questioned him after he told them he wouldn‟t talk without his lawyer
     o 2. Denigrated defence counsel with the express purpose of undermining B‟s confidence in his lawyer
           This undoes the purpose of the s. 10(b) right
           After all the badgering, the accused did not fully understand his right to counsel under s. 10(b) –
              was under the impression that a lawyer could not help him
     o 3. The plea bargaining in the absence of counsel was far too important an issue (especially on such a
         serious charge) to force the accused to do it without legal advice from his counsel of choice
           s. 10(b) does not guarantee a right to counsel of choice at all times, but in this situation the offer


                                                                                                                 41
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

             should have been made/kept open when/until defence counsel was available
            s. 10(b) mandates the Crown/police to tender an offer of a plea bargain to either the accused‟s
             counsel or to the accused in the presence of counsel – it is a constitutional infringement to place
             the offer directly with the accused, especially if only leaving it open for a short amount of time
Ratio: Have a right to counsel of choice; police cannot go after counsel as a means of breaking down the
accused.
Klein on Burlingham:
 The court took issue with the belittling of the lawyer – undermines 10(b): cannot tell the accused that
    consulting counsel is futile  this interferes with their implementational duty
 Also, only offering the plea bargain when lawyer was unavailable interferes with B‟s rights
     o For something as important as a guilty plea, B needs to be able to talk to his lawyer to decide if he
         wants to take it – not being able to talk to him violated his s. 10(b) rights
          Is this a bit of a stretch? What does resolution have to do with arrest/detention?

This is a new case on the right to counsel:
R. v. Sinclair (SCC 2010)
[from the headnote]
Facts: After being arrested for murder, S was advised of his rights to counsel and spoke to his lawyer twice on
the phone. He was interviewed by the police for several hours; police confirmed he had a right to silence, but
refused to allow S to consult with his lawyer again despite several requests made by S. In time, S implicated
himself in the murder; went back to his cell and made further incriminating statements to a cell plant.
Issue: Was S‟s s. 10(b) right to counsel violated? Holding: No, with dissent.
Reasoning:
Majority (McLachlin C.J. & Charron J. + 3):
 s. 10(b) does not mandate the presence of counsel throughout a custodial interrogation
 An initial warning, plus a reasonable opportunity to consult counsel when the detainee invokes the right,
    satisfies 10(b).
 A request to consult counsel again, without more, is not enough to re-trigger the right to counsel
 To re-trigger the right to counsel, need a change in circumstances such that the choices facing the
    detainee have changed enough so that he requires new advice so he can make an informed decision
     o Ex. new procedures, change in the jeopardy faced by accused, reason to believe accused did not
          understand the initial advice of the right to counsel
 This does not undo the rule that confessions must still be voluntary to be admissible
 A rule saying that police must retreat whenever the accused says they want to talk to their lawyer doesn‟t
    strike the right balance between rights of the accused and public interest in crime investigation
Dissent 1 (Binnie J.):
 A detainee is entitled to a further opportunity to consult with counsel where his request falls within the
    purpose of s. 10(b) (i.e. actually needs legal advice, is not just delaying/distracting the interrogation)
     o Things to consider: length of previous consultation with lawyer, length of the interrogation, extent of
          information (true or false) given to accused in the course of interrogation, mental and physical
          condition of the detainee
 The interrogation trilogy of Oickle, Singh, and Sinclair means that an accused can be locked in an
    interrogation room for several hours and interrogated in the face of requests to talk to a lawyer or
    invocations of the right to silence
 Rights during an interrogation are always harder to administer than no rights – the criminal justice system
    would be very easy to run if there were no Charter. But tough.
Dissent 2 (LeBel, Fish JJ. + 1): Need to be able to effectively consult counsel in order to protect accused‟s
right to silence, right against self-incrimination, presumption of innocence.
Ratio: The accused does not have a continued right to counsel throughout the interrogation; they have a right
to consult with a lawyer when they are arrested, and then when circumstances change such that they require
new advice.


                                                                                                                42
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

Klein on Sinclair:
 Majority: Right to counsel is not a right to have ongoing consultations throughout
    o US Miranda: not only have a right to caution, but a right to have counsel present throughout any
        interrogation
    o Miranda is distinguished in Sinclair: our right to counsel arises upon detention, not as in the States
        once the accused is in police custody – so it makes less sense for our right to counsel to include right
        to presence of counsel throughout
 Dissent: Binnie says the majority has hollowed out the right to counsel
 All three reasons differ on the content of the right to counsel, and when they think it kicks in
    o Majority: at the beginning
    o Binnie: consultation when things change
    o LeBel: right to counsel throughout

F. Waiver

Loss of the Right to Counsel by Lack of Diligence in Exercising It:
R. v. Smith (SCC 1989)
Facts: S was arrested for robbery at 7pm. Only once at the station at 9pm did he indicate he wanted to talk to
his lawyer. The cops gave him a phone book and a phone; upon seeing only the office number in the phone
book, accused didn‟t even try to call his lawyer and decided to wait until morning. Cops suggested he call to
see if there was a cell phone or alternate number listed on the voicemail; accused declined. He was
questioned, and indicated he wanted to speak to his lawyer; was not permitted to call, and eventually made
incriminating statements.
Issue: Did S lose his right to counsel by failing to exercise it diligently? Holding: Yes, with dissent.
Reasoning:
Majority (Lamer J.):
 An accused is not permitted to needlessly delay an investigation with impunity by not exercising the right
     to counsel which they have invoked (delay perhaps resulting in the loss of evidence)
 S should have at least tried to call his lawyer – his failure to do so is fatal; cannot discharge his burden of
     proving it was impossible for him to contact his lawyer when the police offered him the chance to do so
 An arrested person who has had a reasonable opportunity to contact counsel but was not diligent in using
     it cannot expect the officers to suspend their investigation when they finally feel like being diligent
      o The cops were entitled to continue the interrogation despite S‟s request.
Ratio: It is possible to lose one‟s right to counsel by not availing oneself of the opportunities to contact
counsel when they are given by the cops.
Klein on Smith:
 This case shows that an accused has to be reasonably diligent in pursuing their right to counsel
      o If you don‟t pursue the right, you lose it
 This sounds very similar to saying that you do not want the right
 This stands in contrast to the very high standard for explicit waiver of the right to counsel
 There is a potential conflict between these two ways of losing your right to counsel

Waiver of the Informational Component:
R. v. Bartle, reprise
 Valid waivers of the informational component of s. 10(b) will be rare
 The validity of a waiver of a procedural right 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
 In the case of the informational component of 10(b), full knowledge means that the person has to
    know already the information they have a right to receive
 The accused saying that they don‟t want to hear the caution is not enough; saying they know their rights is


                                                                                                                43
Suzanne Amiel                                                                                  Prof. Alana Klein
Criminal Procedure                                                                                     Fall 2010

    also not enough
   The validity of waivers of the informational component should only be recognized in cases where it
    is clear that the detainee already fully understands his or her s. 10(b) rights, fully understands the
    means by which they can be exercised, and adverts to those rights
   The simplest way police can ensure people know their rights is by reading them the standard caution; but
    if someone does not understand standard caution, police have a duty to go further and explain it

Waiver of the Implementational Component:
Clarkson v. the Queen (SCC 1986)
Facts: C was extremely drunk. C‟s husband had been shot. The police attended and found Mr. C dead, and
Mrs. C in hysterics. C was charged with murder; they brought her in, read her the standard caution, and then
proceeded with the interrogation. C‟s aunt, who was present, told C to wait for a lawyer; C brushed her off. C
made incriminating statements.
Issue: Did C waive her right to counsel? Holding: No.
Reasoning (Wilson J.):
 In the US, the waiver of a right to counsel must be made with an apprehension of the nature of the
    charges, the statutory offences included within them, the range of allowable punishments thereunder,
    possible defences and mitigating circumstances
 In Canada, standard is not so high: in order to be valid and effective, a voluntary waiver must be
    premised on a true appreciation of the consequences of giving up the right
 Here, must at least wait until she is sober until she can truly waive the right to counsel
Ratio: Accused only has to have a “true appreciation of the consequences” of giving up their right to counsel
in order for their waiver to be valid.

RIGHTS ON INTERROGATION

   Sections 10(a) and 10(b) are not the only rights that the accused benefits from during detention and
    interrogations by the police  there are two other rules which protect the accused during interrogation:
     o 1. Voluntary Confessions Rule
            Any statements made to a person in authority must be voluntary
            Concern was traditionally reliability: we do not want innocent people to be convicted with
                false confessions
     o 2. Section 7 Right to Silence
            Concern is the fundamental rights of the accused (guilty OR innocent)
   These two rules are incredibly hard to distinguish from one another

1. Distinguishing between the Voluntary Confessions Rule and the Right to Silence

R. v. Hebert (1990 SCC)
Facts: H was arrested for robbing a hotel. He was advised of his right to counsel, whom he contacted. After
exercising his right to counsel, H was interrogated. He stated that he did not want to make a statement. He was
then placed in a cell with an undercover PO. H made various incriminating statements to the cell plant.
Issue: What are the scopes of the confessions rule v. the s. 7 right to silence?
Reasoning (McLachlin J.):
 Right to silence is rooted in two common law concepts: voluntary confessions rule, privilege against self-
    incrimination. Is also informed by other Charter rights.
i) The Voluntary Confessions Rule
 Two undercurrents to this rule: coerced confessions are unreliable, and no one is bound to accuse himself
 First approach (Ibrahim): the VCR is only a negative, objective right. The accused has a right not to be
    tortured or coerced into making a statement to a person in authority. We do not want unreliable
    statements.


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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

    Second approach: “voluntariness” is not only objective. If a person is to truly have a choice, they must be
     aware of their options/alternatives. The rationale for this rule is fairness to the accused, the proper
     administration of justice.
 Rothman: statements may be excluded where
      o The conduct of persons in authority to whom the statement was made may have rendered it untrue
      o Conduct of the authorities means admitting the statement would bring the administration of justice
           into disrepute
ii) The Privilege Against Self-Incrimination
 This has been raised to a constitutional rule in s. 11(c) and s. 13 of the Charter
 The accused‟s right not to give evidence against himself applies at the trial stage, rather than the
     investigatorial stage
      o Relies in part on the Crown‟s obligation to prove their case
 The protection conferred by a legal system which grants the accused immunity from incriminating himself
     at trial, but offers no protection with respect to pre-trial statements, would be illusory
 Summary of these two rules: the confessions rule and the privilege share a common theme  the right of
     the individual to choose whether to make a statement to the authorities or to remain silent
iii) Right to Counsel – s. 10(b)
 The point of the right to counsel is to ensure that the accused knows how to exercise their other rights,
     especially their right to silence
 Suggests that the right to silence is not just the right to be free of violence/coercion, but is a positive right
     to make a free choice as to whether to remain silent or speak to the authorities
The Purpose and Scope of the Right to Silence under the Charter
 The scope of the s. 7 right to silence is: secures to the detained person the right to make a free and
     meaningful choice as to whether to speak to the authorities or remain silent
      o Suspect must have an operating mind; focus is very much on the conduct of the authorities
 Limits to the s. 7 right to silence:
      o This right applies only after detention
      o Police can question the accused in the absence of counsel
      o Police can persuade (short of denying the suspect of a right to choose, or of an operating mind)
           suspects to talk
      o This right does not affect a choice to speak freely to fellow cell mates
 When the police use subterfuge to interrogate an accused after he has advised them that he wishes to
     remain silence, they are improperly eliciting information that they were unable to obtain by respecting the
     suspect‟s constitutional right to silence
      o In the absence of eliciting behaviour by the police, there is no violence of the right to silence
Ratio: The right to silence means that the suspect has a right to make a free and meaningful choice as to
whether to speak to the authorities or to remain silent.
Klein on Hebert:
 Why didn‟t Hebert rely on the voluntary confessions rule?
      o Because have to subjectively believe the person to whom you‟re confessing is a person in authority
      o H was talking to a cell plant: he didn‟t know it was a cop
 H relied on s. 7 right to silence instead.
 Question: is s. 7 broader than the voluntary confessions rule? Answer: Yes.
      o VCR is concerned with reliability – coerced confessions are not reliable confessions.
      o S. 7 of the Charter is concerned with something OTHER than reliability***
             Protect individual freedoms
             Protect rights such as right to silence, right against self-incrimination
             Concerned with propriety of police practices
      o Precludes anything that would effectively deprive the person of a choice whether to speak or not
      o When looking at this right, consider:
          1. Whether the detainee has operating mind


                                                                                                                 45
Suzanne Amiel                                                                                       Prof. Alana Klein
Criminal Procedure                                                                                          Fall 2010

         2. Whether the accused had a right to counsel
         3. Was there any other police conduct which effectively and unfairly deprived the suspect of the
             right to choose to choose whether to speak
     o This right begins applies upon detention to deal with imbalance of power created thereby
   Walker: in this case, the SCC for the first time carves out a distinct place for the operation of the s. 7 right
    to silence  in cases of police trickery. Since the accused voluntarily confessed, but did not choose to do
    so to the police, but his cellmate, his right to silence was infringed.

                                         Voluntary Confessions Rule                   s. 7 Right to Silence
Source                                 Common law                              Charter (s. 7)
Applicability                          Anytime                                 Only upon detention/arrest
Evidence Obtained                      Automatically inadmissible              Admissibility determined by s.
                                                                               24(2) of the Charter
Traditional Concern                    Reliability of evidence                 Rights of the accused
Burden/Standard of Proof               Crown must prove voluntariness          Accused has to prove Charter
                                       beyond a reasonable doubt               breach on a balance of
                                                                               probabilities (burden shifts to
                                                                               Crown for admissibility)
Applies to Interrogations By           Persons in authority                    Agents of the State

2. The Section 7 Right to Silence

R. v. Singh (2007 SCC)
Facts: Victim was killed by a stray bullet while standing in the doorway of a pub. S was identified as being
the shooter in a photo line-up. Another witness identified someone in a picture in the pub on the night of the
shooting as S. A PO took another picture of S the next day, and identified the man in that picture (i.e. S) as the
man in the pub picture. S was given proper Charter warnings, and spoke to his counsel. He invoked his right
to silence 18 times during the ensuing interrogation; each time, the interrogating officer confirmed S did not
have to say anything. S finally admitted that he was in the pub the night of the shooting, he identified himself
in the second picture, and the first picture in the pub the night of the shooting.
Issue: Were these admissions and self-identifications obtained in violation of the s. 7 right to silence?
Holding: No.
Reasoning (Charron J. + 4):
 S argued that his s. 7 right to silence requires the cops to stop trying to elicit information once the detainee
     asserts their right to silence
      o This does not strike the right balance between the rights of the accused and the state interest in the
          effective investigation of crime
      o It is in society‟s interest that police attempt to tap the suspect as a source of information
 The overlap between s. 7 right to silence the VCR became an issue during the trial/appeal:
      o VCR provides more protection than the s. 7 right to silence because: applies any time, the Crown
          bears a high burden of proof for voluntariness, and a finding of involuntariness results in the
          automatic exclusion of the evidence
      o This is not in conflict with the s. 7 right to silence
      o In cases where an obvious person in authority is interrogating a person who is in detention, the
          confessions rule effectively subsumes the constitutional right to silence (because the two tests are
          functionally equivalent)
 Section 7 goes beyond VCR in cases of detained statements to exclude many that would otherwise meet
     the voluntariness rule
      o Section 7 also supports exclusion of derivative evidence that the common law would have received
      o The two rules do not subsume one another entirely
 In this case, police persistence to continue the interview, despite repeated assertions by the detainee that


                                                                                                                   46
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

    he wishes to remain silent, may well raise a strong argument that any subsequent statement was not the
    product of free will  however, in this case, the trial judge investigated this issue and did not make such a
    finding
Ratio: The right to silence is functionally equivalent to the voluntary confessions rule when a suspect is
overtly being interrogated by a person in authority.
Klein on Singh:
 The right to silence is not a right not to be spoken to
 The voluntary confessions rule and the right to silence are not distinct when the suspect is knowingly
    talking to a person in authority

3. The Voluntary Confessions Rule

R. v. Oickle (2000 SCC)
Facts: O was being investigated for 8 counts of arson. He agreed to take a polygraph test. He was fully
advised of his rights to silence, to counsel, that he was free to leave at any time (not yet under arrest). He was
told the results of the polygraph were not admissible in court, although anything he said during the interview
was admissible. He failed the test. O was then questioned for about 1.5 hours; he finally confessed to one
arson. He was placed under arrest, taken to the station (obviously upset), and questioned for about 5 more
hours. He was allowed to sleep, and then helped the police do a re-enactment.
Issue: Were the confessions involuntary? Holding: No, with dissent.
Reasoning (Iacobucci J.):
 Overriding concern of the criminal justice system: innocent people must not be convicted. False
    confessions play a huge role in wrongful convictions.
     o Voluntary confessions rule must take account of when false confessions occur.
 The overriding concern of VCR is no longer reliability; it is voluntariness. It is jeopardized when:
     o 1. Threats/promises (do not need to be aimed at accused; if they are aimed at someone close enough
          to the accused to encourage the accused to lie to save them the harm, this is sufficient for exclusion)
            Threats of torture – unacceptable
            Promises of leniency – unacceptable
            Offer of psychiatric assistance in exchange for a confession
            Language like “it would be better if you confessed” is discouraged
            Moral or spiritual inducements are generally acceptable (outside of PO‟s control)
            This is a contextual analysis, conducted in light of all the circumstances
                 Must remember that police have to convince the suspect to confess somehow; this will only
                     become inappropriate when there is a reasonable doubt as to whether those tactics overbore
                     the will of the suspect
     o 2. Oppression
            If the police create conditions distasteful enough, suspect may confess in order to escape them
            For example: deprivation of food, water, sleep, medical attention; denying access to counsel;
               excessively aggressive, intimidating questioning for a prolonged period of time
            Police use of non-existent evidence (this is not grounds alone for exclusion – but needs to be
               considered)
     o 3. Operating Mind
            The accused must know what they are saying and that they are saying it to police officers who
               can use it to their detriment
     o 4. Other Police Trickery
            This is a distinct inquiry
            Its objective is the preservation of the integrity of the criminal justice system
            Consider if the police conduct in question would shock the conscience of the community
Ratio: The voluntary confessions rule was much expanded in this decision.
Klein on Oickle:
o Some of the factual conduct of the police was in question in this case:

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Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

o   Police conducted a polygraph test – exaggerated its validity: the court says this is ok
o   Police mentioned the possibility of bringing his girlfriend in for questioning. This could have been a threat
    grounding a violation of voluntariness, but Court says here no: there was a lack of a causal connection
    between the threat and the confession – confession two hours later – court says you have to consider
    context. Threat has to overbear person‟s will.
o   Looked like there might have been a „package deal‟ offered – had this been proven it would have
    grounded a violation of the voluntary confession rule
o   They minimized the seriousness of the offence, but this did not amount to an offer of leniency, in the
    court‟s view
o   The dissent said the exaggeration of the polygraph‟s accuracy amounted to conduct that shocks the
    conscience of the community

RIGHTS ON UNDERCOVER INTERROGATION

   Undercover interrogations do not engage the voluntary confessions rule because the suspect does not think
    they are talking to a person in authority
   In Hebert, SCC created the s. 7 Charter right to silence arising out of a factual context in which an
    undercover police officer elicited incriminating statements from a suspect in a jail cell
     o Sidenote. The SCC failed to refer to the context of detention itself:
            Confinement makes people particularly susceptible to undercover ops, because they are in a
                situation of high anxiety
   Under what circumstances are undercover interrogations conducted while the suspect is detained going to
    run afoul of the s. 7 right to silence?

R. v. Broyles (1991 SCC)
Facts: B was accused of murdering his grandmother. He didn‟t crack under police interrogation. Police
enlisted the help of B‟s friend, Todd: wired him and got him to go see B while in pre-trial detention. B made
some incriminating statements to his not-so-good friend Todd.
Issue: Was the elicitation of these statements a breach of s. 7? Holding: Yes.
Reasoning (Iacobucci J.):
 The purpose of the right to silence is to prevent the state from using its power to subvert the right of an
    accused to choose whether or not to speak to the authorities
 The right to silence will only be infringed where it was the informer who caused the accused to make the
    statement, and where the informer was acting as an agent of the state at the time
 The Test for a s. 7 Violation in the Context of Undercover Operations:
     o 1. Was the evidence obtained by an agent of the State?
           Would the exchange between the accused and the informer have taken place, in the form
              and manner in which it did take place, but for the intervention of the State or its agents?
                Only if the exchange between the informer and the suspect is materially different from what
                   it would have been if the informer had no relationship with the State, can this be answered
                   with a “yes”
                A relationship which develops between the State and the informer after the conversation
                   can have no effect
           If yes to this question, must proceed to second step of the test
           If no, this ends the inquiry. No s. 7 violation.
     o 2. Was the evidence actively elicited?
           There will be no violation of the right to silence if the suspect volunteers the information
           General Question: Is there a causal link between the conduct of the state agent and the
              making of the statement by the accused? Factor to consider:
           A. Nature of the exchange
                Was the exchange akin to an interrogation?


                                                                                                                48
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

               Or was the conversation flowing naturally?
             B. Nature of the relationship
               Did the State agent exploit any special characteristics of the relationship to extract the
                   statement?
               Was there a relationship of trust between the State agent and the accused?
               Was the accused obligated or vulnerable to the State agent?
               Did the State agent manipulate the accused to bring about a mental state in which the
                   accused was more likely to talk?
 In this case, it is clear that Todd was a State agent (would not have gone to see B otherwise, and would
    not have been able to get an “open visit” without the police‟s help), and the questions were actively
    leading and interrogatory.
Ratio: This case sets out the test for when an undercover interrogation conducted while the accused is in
custody will violate the accused‟s right to silence.

R. v. Liew (1999 SCC)
Facts: L was arrested as part of a cocaine deal which included an undercover police officer. They were put in
the same interview room; L started the conversation, and the PO asked “What happened?” as well as stated
that they “got his fingerprints on the dope.” L made incriminating statements in reply.
Issue: Were these incriminating statements “elicited” such that L‟s right to silence was violated?
Holding: No, with dissent.
Reasoning:
Majority (Major J. + 7):
 PO is obviously a state agent
 Nature of the exchange: PO‟s statements “picked up the flow and content of the conversation naturally”
      o The PO‟s conduct was not the functional equivalent of an interrogation
      o The PO did not direct the conversation in any manner that prompted, coaxed, or cajoled L to respond
 Nature of the relationship: none to speak of whatsoever
Dissent (Lamer C.J.): Disagreement as to the interpretation of the facts. Finds elicitation.
Ratio: Illustration of the application of the Broyles test.

VI. PRE-TRIAL PROCEDURE: (PRELIMS), BAIL, DISCLOSURE

GENERAL PRE-TRIAL PROCEDURE

1. An Information is Laid
 The actual act of formally filing a charge against an accused is called laying an information.
     o Consists of a sworn statement from an informant (generally a PO)
     o It is put before a justice, who signs it (when the judge signs it, then the person is formally charged)
     o See s. 504 CrC
            This section explicitly refers to indictable offences, but it also applies to hybrid offences (s.
               34(1)(a) Interpretation Act), and also to summary offences (s. 795 CrC)
 How does an information come to be sworn?
     o If an arrest happens via judicial process (i.e. a warrant), they are charged before they are caught
     o If an arrest happens on the spot, the information is sworn after
     o In most provinces, charges are laid by the police on their own authority without talking to the
        prosecutors
            Three exceptions: Quebec is one of them (NB and BC the two others). Crowns see the file
               before the charge is laid and screen it for RPC.
            Most people think this is a better system
 If a person is released by PO/OIC, the information is brought “as soon as practicable” to be signed by a
    judge, anytime before their first appearance (s. 505)

                                                                                                                 49
Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

   Charge Screening:
     Prosecution lays (QC/BC/NB) or continues with (everywhere else) charges when:
           1. There is a reasonable/likely prospect of conviction
           2. It is in the public interest to continue with prosecution
     Torts for malicious prosecution: prosecutor can be susceptible to an action in tort if it pursues
       prosecution where there is clearly no reasonable prospect of conviction

2. Accused Is Brought Before a Justice
 According to s. 503(1), after arrest an accused must be brought before a justice within 24 hours, or as soon
    as possible
     o This is only if the police officer/OIC doesn‟t release the accused pursuant to s. 503(2)
 The appearance before a justice is called a first appearance
     o Marks the beginning of the judicial interim release process (bail)
     o Also the start of disclosure and disclosure obligations

3. For Hybrid Offences, Crown Elects How to Proceed
 Before the trial begins, the Crown must communicate their election to the defence and the court

R. v. Dudley (2009 SCC)
Fish J.:
 Hybrid offences are crimes that may be prosecuted by indictment, or on summary conviction
     o In Canada, the choice is the Crown‟s to make
 Where the trial has proceeded before a summary conviction court without an express election, it will be
    presumed the Crown has elected to proceed summarily
 When the Crown elects or is presumed to elect summarily, the proceedings must be instituted (i.e. the
    information sworn) within six months of the alleged offence date (s. 786 CrC)
 What happens to a hybrid offence on which the Crown has proceeded summarily if the prescription period
    ran out before the information was sworn?
     o When it is discovered before adjudication on the merits, mistrial should be declared unless the parties
         agree to waive the limitation period
           This consent creates the jurisdiction of the court over statute-barred summary conviction
              proceedings (this works with prescribed straight summary offences as well)
           An accused may want to do this to avoid the Crown re-electing by indictment (Crown can do
              this with prescribed straight summary offences if they find a related hybrid/indictable offence
              under which to charge the accused)
           This waiver is characterized as the waiver of a privilege of the benefit of an expired statute of
              limitations
     o When discovered after verdict, only the convicted can appeal and the conviction should be set aside
     o In EITHER case, the Crown may proceed afresh by indictment unless this would amount to an abuse
         of process (this cannot occur in straight summary offences)

4. For Indictable Offences, The Accused Elects a Mode of Trial
 For indictable offences other than those in s. 469 and s. 553, accused has an option to elect their mode of
    trial (s. 536(2)). They can choose:
     o A trial by a provincial court judge alone
     o A trial by a superior court judge alone (s. 558)
     o A trial by a superior court judge and jury
 EXCEPT:
     o If charged with s. 469 offence, no option to choose a provincial court judge alone  only have the
          choice between a superior court judge OR a superior court judge and jury



                                                                                                               50
Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

     o    If charged with s. 553 offence, no election to be made because can only be tried by a provincial court
          judge alone.
   If the accused does not choose, they are tried by a superior court judge and jury
   QUEBEC EXCEPTION:
     o Accused cannot choose a QC Superior Court judge alone, unless they are charged with a s. 469
          offence
     o This is because the definition of “judge” in QC means a provincial court (Court of Quebec) judge,
          while in all the other provinces, it means a superior court judge

THE PRELIMINARY INQUIRY

   A prelim is a hearing before a provincial court judge in which it is determined if there is sufficient
    evidence to warrant proceeding to trial
     o Purpose was previously to protect the accused from unnecessary trial.
     o But the standard for sufficiency of evidence to go to trial is so low, that it doesn‟t really fulfil its
         filtering function
     o The role of prelims has altered somewhat to become a discovery tool – possibility for defence to see
         the strength of the Crown‟s case
   Are available when the accused is charged with a non-s. 553 indictable offence and elects to be tried by a
    superior court judge alone or with a jury (in QC, by a provincial court judge alone or a superior court
    judge with a jury)  see ss. 536(2), (4)
     o Are not available for offences proceeding summarily
     o 1997 amendments to CrC created super-summary offences (higher penalty of 18 months)
             There is no possibility of a prelim for these offences
   In 2002, the CC was amended to limit the availability of prelims:
     o Have to be requested by prosecution or defence (s. 535, s. 536(4)), who have to outline the issues
         they want addressed (s. 536.3-5)
     o Judges were given wide discretion to control the extent/scope of the prelim (s. 537)
   Prelim operates like a mini-trial, and at the end the judge makes a decision as to whether there is
    “sufficient evidence to put the accused on trial for the offence charged” (s. 548(1))

The Standard for Committal to Trial: R. v. Arcuri (2001 SCC)

   Whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a
    verdict of guilty. Is there any admissible evidence which could, if believed, result in a conviction?
   The test is the same whether the evidence is direct or circumstantial
   Direct evidence: if the judge determines that the Crown has presented direct evidence as to every
    element of the offence charged, the accused must be committed to trial
   Indirect evidence (or not direct evidence as to every element of the offence): can the remaining
    elements of the offence be inferred from the circumstantial evidence?
     o The judge must weigh the evidence, assessing whether it is reasonably capable of supporting the
          inferences the Crown is asking the jury to draw
             The judge has to engage in a LIMITED weighing of the evidence; if the inferences are
                 unreasonable, the case won‟t go to trial; if they are reasonable, then it can go to trial
             It‟s only if it requires UNREASONABLE inferences that a case brought on circumstantial
                 evidence should not go to trial
     o Judge does not ask himself whether he would convict the accused
     o Judge only asks whether the evidence, if believed, could reasonably support an inference of guilt
   Defences are not considered at a preliminary inquiry
   If there is shoddy, or Charter breach, direct evidence on every element of the offence, it goes to trial



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Suzanne Amiel                                                                                             Prof. Alana Klein
Criminal Procedure                                                                                                Fall 2010

Criticisms of the Prelim

   Prelims have come under attack in recent years:
     o Disadvantages:
            No longer useful as a discovery tool (in light of Stinchcombe)
            Costly
            Seldom result in a discharge for the accused
            Subject witness to unnecessary arduous ordeal because have to testify twice
     o Advantages:
            Get more disclosure at a prelim, even with Stinchcombe

Prelim judges do not have jurisdiction to determine Charter violations:
R. v. Hynes (SCC 2001)
McLachlin C.J.:
 A prelim is a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial
     o Protection of the accused is a central concern
 It is conducted like a trial with respect to the presentation of evidence  judge has power to rule on
    admissibility issues
     o But it is not a trial – the judge has no power to grant remedies
 The accused argues that the prelim judge has the power to exclude evidence that offends the Charter
     o Prelim judge is supposed to assess “admissible” evidence
     o Would enhance the screening mechanism function of the prelim
 Court disagrees – we do not want the prelim to become a forum for trying Charter breaches and granting
    remedies  would undermine the expeditious nature of the prelim
     o Prelims would become longer, more complex, more costly
     o Would have to go over and relitigate it all at trial anyway

   N.B. The Crown can, in very rare cases, skip a prelim requested by the accused and go straight to trial by
    preferring the indictment (direct indictment) (s. 577 CrC)
     o Need permission of Attorney General of the province
   Would do so in cases where: an accused was wrongly discharged at a prelim, new evidence is discovered
    after a prelim discharged the accused, to ensure public confidence in the administration of justice, when
    necessary to avoid multiple proceedings, etc.

JUDICIAL INTERIM RELEASE: I.E. BAIL

s. 515      (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in
Cr.C.       section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted,
            order, in respect of that offence, that the accused be released on his giving an undertaking without
            conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in
            respect of that offence, why the detention of the accused in custody is justified or why an order under
            any other provision of this section should be made and where the justice makes an order under any other
            provision of this section, the order shall refer only to the particular offence for which the accused was taken
            before the justice.
            (2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows
            cause why the detention of the accused is justified, order that the accused be released
               (a) on his giving an undertaking with such conditions as the justice directs;
               (b) on his entering into a recognizance before the justice, without sureties, in such amount and with
               such conditions, if any, as the justice directs but without deposit of money or other valuable security;
               (c) on his entering into a recognizance before the justice with sureties in such amount and with such
               conditions, if any, as the justice directs but without deposit of money or other valuable security;
               (d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without
               sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing

                                                                                                                         52
Suzanne Amiel                                                                                               Prof. Alana Klein
Criminal Procedure                                                                                                  Fall 2010

                with the justice such sum of money or other valuable security as the justice directs; or
                (e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not
                ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into
                a recognizance before the justice with or without sureties in such amount and with such conditions, if any,
                as the justice directs, and on his depositing with the justice such sum of money or other valuable security
                as the justice directs.
                […]
            (3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows
            cause why an order under the immediately preceding paragraph should not be made.
            (4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the
            following things as specified in the order:
                (a) report at times to be stated in the order to a peace officer or other person designated in the order;
                (b) remain within a territorial jurisdiction specified in the order;
                (c) notify the peace officer or other person designated under paragraph (a) of any change in his address or
                his employment or occupation;
                (d) abstain from communicating, directly or indirectly, with any victim, witness or other person
                identified in the order, or refrain from going to any place specified in the order, except in accordance
                with the conditions specified in the order that the justice considers necessary;
                (e) where the accused is the holder of a passport, deposit his passport as specified in the order;
                (e.1) comply with any other condition specified in the order that the justice considers necessary to ensure
                the safety and security of any victim of or witness to the offence; and
                (f) comply with such other reasonable conditions specified in the order as the justice considers desirable.
            Condition prohibiting possession of firearms, etc.
            (4.1) When making an order under subsection (2), in the case of an accused who is charged with
                (a) an offence in the commission of which violence against a person was used, threatened or attempted,
                (a.1) a terrorism offence,
                (b) an offence under section 264 (criminal harassment),
                (b.1) an offence under section 423.1 (intimidation of a justice system participant),
                (c) an offence relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs
                and Substances Act,
                (d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited
                weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive
                substance, or
                (e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection
                21(1) or 22(1) or section 23 of that Act that is committed in relation to on offence under subsection 20(1)
                of that Act,
            the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow,
            prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive
            substance, or all those things, until the accused is dealt with according to law unless the justice considers that
            such a condition is not required in the interests of the safety of the accused or the safety and security of a
            victim of the offence or of any other person.
                […]
            (6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the
            accused’s detention in custody is not justified, the justice shall order, despite any provision of this
            section, that the accused be detained in custody until the accused is dealt with according to law, if the
            accused is charged
                (a) with an indictable offence, other than an offence listed in section 469,
                (i) that is alleged to have been committed while at large after being released in respect of another
                indictable offence pursuant to the provisions of this Part or section 679 or 680,
                [… the other reverse onus provisions …]
            (10) For the purposes of this section, the detention of an accused in custody is justified only on one or
            more of the following grounds:
                (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with
                according to law;
                (b) where the detention is necessary for the protection or safety of the public, including any victim of or


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Suzanne Amiel                                                                                              Prof. Alana Klein
Criminal Procedure                                                                                                 Fall 2010

               witness to the offence, having regard to all the circumstances including any substantial likelihood that
               the accused will, if released from custody, commit a criminal offence or interfere with the
               administration of justice; and
               (c) if the detention is necessary to maintain confidence in the administration of justice, having regard
               to all the circumstances, including
                  (i) the apparent strength of the prosecution‟s case,
                  (ii) the gravity of the offence,
                  (iii) the circumstances surrounding the commission of the offence, including whether a firearm was
                  used, and
                  (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or,
                  in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of
                  imprisonment for a term of three years or more.

s. 11(e)    11. Any person charged with an offence has the right
Charter     (e) not to be denied reasonable bail without just cause

1. Introduction to Bail
 The idea of pre-trial detention sits uneasily with the presumption of innocence
 The rule is now release – the Crown bears the burden of “showing cause”
     o If the Crown believes the accused‟s liberty should be limited in the pre-trial phase (either by
         complete detention, or conditions), the Crown bears the burden of showing the necessity of that
         limitation with reference to the three grounds of denying bail (on a balance of probabilities)

This case outlines the history of bail in Canada:
Toronto Star Newspapers Ltd. v. Canada (2010 SCC)
Deschamps J.:
 Martin Friedland‟s 1965 report: showed that existing bail procedures resulted in the detention of many
    individuals whose attendance could have been secured by less restrictive means, and also the relationship
    between pre-trial detention, conviction, and custodial sentences
 Ouimet Report (1969):
     o Initial period after arrest is determinative
     o Pre-trial incarceration can lead to: loss of employment, inability to fulfil family obligations
         (weakening of familial/social ties)
     o Conditions of pre-trial detention unsatisfactory
     o Detention  negative impact on chances of acquittal, increased sentence
     o Incarceration results in permanent stigma, regardless of later acquittal
     o Recommendations:
           Police officers should be able to release people
           Onus placed on prosecution to justify detention
           Publication bans should be granted at the request of the accused
           Limited grounds should be identified for refusing bail
           Release should be the rule, and custody the exception
     o Most of these recommendations were implemented in the CrC via the Bail Reform Act of 1970
 The constitutional right to bail is also today recognized in s. 11(e) of the Charter

2. The Ladder Approach
 Section 515(1) and (2)(a)-(e) present a list of the options available for limiting the liberty of the accused,
    ascending in increasing order of severity
 In section 515(3), the ladder approach is set out: onus is on the Crown to demonstrate why the measure
    they are seeking should be preferred over the less severe measure immediately preceding it, using the
    primary, secondary, and tertiary grounds
     o Has to show why their measure would not only be effective, but why others would be ineffective


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Suzanne Amiel                                                                                       Prof. Alana Klein
Criminal Procedure                                                                                          Fall 2010

   Basic rule: the least onerous conditions of release should be preferred

R. v. Anoussis (2008 QCCQ)
Facts: A was going for bail; the prosecutor requested a deposit of $500. Judge Healy interrupted, and asked
why the cash deposit was necessary. Prosecutor made submissions.
Issue: Is the cash deposit necessary? Holding: No.
Reasoning (Healy J.):
 If the prosecution does not show cause for detention, a person must be granted interim release on the
    least onerous conditions unless the prosecution shows cause to justify more onerous conditions
     o Although the ladder principle is enshrined in the Code, it is not strictly followed in practice
 Cash should be an exceptional condition of release because:
     o Disadvantages accused persons of lesser means
     o Hasn‟t been shown that it helps bring people back to court
 The matter is different if the accused consents to the imposition of a cash condition (or any other) – is a
    waiver of a procedural protection put in place for their benefit
     o There is a pattern of routine proposal and acceptance with conditions: if defence counsel
          opposes, their client will stay in custody longer, it may jeopardize release in general
     o Repeated practice has overtaken both the letter and policy of the law
 Cash conditions would be acceptable in cases where there is a record of breach, or the charges are breach
Ratio: The ladder principle requires the prosecution to show why any condition for which they are asking is
necessary, and why less onerous conditions would not be sufficient.
Klein on Anoussis:
 Crown was seeking $500 cash bail. Judge Healy had a problem with it because Crown did not discharge
    its burden of showing cause for this level of severity (this step of the ladder)
 Nothing here to suggest that the accused is a flight risk, or would pose danger to community, no threat to
    the justice system. None of the three grounds are demonstrated.
     o Strictly speaking, according to 515(1), this means the accused should be released on a simple
          undertaking
 Nevertheless, Judge would have imposed something more stringent: why?
     o s. 515(3) says that there only has to be a show cause hearing for (b)-(e), NOT FOR (a)
            Justice is permitted to make an order without the showing of cause under (a)
     o Is there a conflict between s. 515(1) and 515(2)? It‟s arguable.
     o Basically, conditions can be (and are) routinely imposed
 Judge says that cash bail should not be routinely imposed without cause. But it is.
 Is this illegal? No. It is contrary to the Code, it‟s unfortunate, unfair, contrary to the liberty interest of the
    accused. Nonetheless, we accept it. Because it is not the court‟s place to get involved in tactical decisions
    of counsel, which is part of practice of criminal law.
     o Basically, because it‟s on CONSENT, and counsel is acting the best interests of their clients (is
          frequently in client‟s interests to accept terms, including cash bail, which Crown wouldn‟t be able to
          get in a bail hearing)
     o There‟s a right to waive the right to a show cause hearing

3. Reverse Onus Provisions
 There are some circumstances in which the Code creates an exception to the Crown‟s onus to show cause
    for detention  these flip the ladder approach upside-down, requiring the accused to show why they
    should be released (rather than Crown having to show why they should not)
     o See ss. 515(6) and 522(2)

This case upheld the constitutionality of a reverse-onus provision:
R. v. Pearson (1992 SCC)
Facts: P was charged with five counts of trafficking in narcotics. He was detained at a bail hearing that was


                                                                                                                   55
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

run under a reverse onus provision (s. 515(6)(d)).
Issue: Is the reverse-onus provision a violation of ss. 7, 9, 11(d), or 11(e) of the Charter?
Holding: No, with dissent.
Reasoning:
Majority (Lamer C.J. + 2):
Charter Generalities
 The presumption of innocence is a principle of fundamental justice under s. 7 – it protects the
    fundamental human liberty and dignity of any person accused by the State of criminal conduct; is an
    animating principle of the criminal justice system
     o It has a specific manifestation in s. 11(d) – guarantees presumption of innocence at trial
     o And it has a more general manifestation in s. 7
 Certain deprivations of liberty/security of the person may be in accordance with the principles of
    fundamental justice where there are reasonable grounds for doing so (not just guilt)
 However, the claim in this case does not have to fall under s. 7, because it fits under s. 11(e)
     o S. 11(d) and (e) are parallel rights: 11(e) entrenches the presumption of innocence at the bail stage,
          while 11(d) does the same at the trial stage
 Section 11(e) enshrines two separate rights:
     o “just cause” refers to the right to obtain bail
     o “reasonable bail” refers to the terms of the bail
In This Case
 Section 515(6)(d) is an exception to the basic entitlement to bail contained in s. 11(e) – this is a possible
    denial of bail, and it must be with “just cause” in order to be constitutionally justified
 There are two main “just causes” which justify this denial of bail:
     o First, the offence singled out is drug trafficking: is linked to organized crime, is a violent crime,
          raises the general level of criminality in society, offence committed systematically, is highly lucrative
     o So, the nature of trafficking justifies a denial of bail because:
            Is very lucrative, so creates incentives for an offender to continue this criminal behaviour, even
                after arrest and release on bail
            Marked danger the accused will abscond rather than come back to court in these cases (drug
                traffickers have a lot of money, and foreign contacts)
 In response to the argument that this provision treats small-time drug traffickers too harshly in order to
    catch the big-time ones: the small-time dealer will normally have no difficulty justifying their release
     o The onus the provision imposes is reasonable because it requires the accused to provide information
          which he is most capable of providing
 Conclusion: there is just cause for this denial of bail, so the provision does not violate s. 11(e)
Dissent (McLachlin J.):
 Her main concern is that this section does not distinguish between large-scale commercial drug
    traffickers, and the small-time guys
     o With respect to the small time guys, who do not earn that much money, and are clearly not flight
          risks because they likely do not have the means, this provision amounts to a denial of bail without
          just cause  violation of s. 11(e)
 It is not clear that a person lower-down on the drug chain will be able to prove that they are not part of a
    criminal organization
Ratio: Reverse-onus bail provisions are constitutional if there are good reasons for reversing the onus.
Klein on Pearson:
 The number of reverse onus provisions have grown since this decision; based on this decision, it‟s
    difficult to see how a constitutional challenge to them would be successful
     o Since this case, there have been no successful challenges to RO provisions

4(a). The Primary Ground for Detention: Flight Risk (s. 515(10)(a))



                                                                                                                 56
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

R. v. Parsons (2007 BCSC)
Facts: P was a truck driver; he was pulled over for an inspection. While they were inspecting his truck, he
went to the bathroom and never returned. The customs agents found 61 kilos of cocaine in the truck. P knew
the police were looking for him, but he just went home to Alberta and stayed there until the police came to get
him. He was detained on the primary grounds because he posed a significant flight risk because of the nature
of the offence (availability of cash), having no ties to BC, and his failure to surrender himself to police. He
applied for bail review.
Issue: Was P properly detained on the primary ground? Holding: No.
Reasoning (Bruce J.):
 The provincial court judge failed to give due consideration to the security represented by the large surety
     bail offered by a person ordinarily resident in BC
 Accused also has strong family ties to Alberta; he went home there instead of leaving the country after the
     inspection leading to a warrant for his arrest
 Accused has no criminal background, and has held lawful employment for many years
 These are all mitigating factors, and any flight risk posed by the accused can be sufficiently managed by
     releasing him on the proposed bail with strict terms
Ratio: Flight risk is assessed on the basis of the strength of the bail plan.

4(b). The Secondary Ground for Detention: Public Safety (s. 515(10)(b))

R. c. Cantave (2008 QCCQ)
Facts: C‟s apartment and that of his girlfriend were searched; discovered two guns, loaded, and evidence
showing that C was a drug dealer.
Issue: Should he be detained on the secondary grounds? Holding: Yes.
Reasoning (Healy J.):
 Accused has a significant criminal record – proof of recidivism
 He was already on a no-weapons order and had two guns, loaded, in his possession
 Healy J. takes note that guns are becoming a big problem in Montreal – has detained on gun charges in
    two other cases this week, because of the level of danger posed to the community by firearms
 Several factors need to be taken into account to decide the question of detention on secondary grounds:
     o Nature of the infraction
     o Pertinent circumstances surrounding the accused (prior events)
     o Probability of conviction
     o Degree of participation of the accused
     o Relationship of the accused with the victim
     o Profile of the accused (employment, mode of life, criminal record, familial situation, mental state)
     o Conduct of the accused
     o Danger that the release of the accused poses for the community
 Cumulative effect of these elements determines whether detention is necessary for public safety
 In this case, it is necessary, especially in light of the likelihood of re-offence and the danger associated
    with firearms
Ratio: This case sets out a list of factors to consider when deciding to detain on the secondary grounds.

4(c).The Tertiary Ground for Detention: Public Confidence in the Administration of Justice (s.
515(10)(c))

   The tertiary ground is very controversial
   The history of the tertiary ground:
    o Before s. 515(10)(c) existed in its current form, s. 515(10)(b) included two different concepts 
        public safety (which it still covers today), and the “public interest”
            The court could deny bail if “the detention is necessary in the public interest”


                                                                                                                 57
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

     o    This ground to deny bail was struck down in Morales

R. v. Morales (1992 SCC)
Lamer C.J.:
 Pearson: there is just cause for denial of bail under s. 11(e) of the Charter if the denial can occur only in a
    narrow set of circumstances and if denial is necessary to promote the proper functioning of the bail system
 The “public interest” basis for pre-trial detention in s. 515(10)(b) violates s. 11(e) of the Charter because it
    authorizes detention in terms which are vague and imprecise
     o The authorities do not establish any “workable meaning” for the term public interest
     o The concept imports a standard that is completely discretionary
     o The term provides no guidance for legal debate
     o Allows the court to order imprisonment whenever it sees fit
 The “public interest” basis for denial of bail in section 515 is struck down

Parliament introduced an early form of s. 515(10)(c) five years after Morales. It was challenged in this case:
R. v. Hall (2002 SCC)
Facts: H is accused of trying to cut off his second cousin‟s wife‟s head; he is charged with first degree
murder. There is very strong forensic evidence against him. He applied for bail. This occurred in a small
community, which was fearful after this crime occurred.
Issue: Is s. 515(10)(c) unconstitutional? Holding: No [not the part of it that survives today – another part
which was vague is cut out by the Court]; with dissent.
Reasoning:
Majority (McLachlin C.J. + 4):
 The trial judge detained the accused on the tertiary ground, finding insufficient evidence for the primary
    or secondary grounds: fear prevailed in the community, offence was grievous, Crown‟s case was strong.
 The accused‟s argument is that the first two grounds for denying bail suffice and the third ground serves
    only to permit denial of bail for vague, unspecified reasons
 There may be some circumstances, like the case at bar, in which the accused is neither a flight risk, nor
    poses a danger to the public, but detention is necessary to preserve public confidence in the administration
    of justice
 To allow an accused to be released in the community in the face of a heinous crime and overwhelming
    evidence may erode the public‟s confidence in the justice system
 The confidence of the public in the justice system is important for the rule of law
 This law is not vague or overbroad: the four factors to consider in the provision provide a solid guide of
    what the inquiry is to be based on  the reasonable community perception of the necessity of denying
    bail through the objective lens of the four listed factors
 This ground for detention ought to be used sparingly
Dissent (Iacobucci + 3):
 Laws authorizing pre-trial detention must be scrutinized in light of the fact that they violate the
    presumption of innocence
 Iacobucci J. sees the third ground as subsumed by the first two – cannot imagine a situation where bail
    would be necessary that is not covered by a) and b).
 b) public safety is broad enough to encompass any type of threat to public safety, not just one arising from
    the accused
     o McLachlin specifically rejects this in her judgment; b) only refers to a threat to public safety arising
          from the accused (has always been treated that way in jurisprudence)
 The factors listed in c) lead towards detention on the other two grounds
     o Strength of the prosecution‟s case, potential for lengthy imprisonment  flight risk
     o Gravity of the offence, circumstances surrounding it  public safety
 How would confidence in the administration of justice be promoted by detaining an accused who is not at
    risk of absconding, and who is not a threat to public safety?


                                                                                                                58
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

   This provision revives the public interest ground for bail denial struck down in Morales
   In this case, if the crime was so arbitrary and unexplained, this would be evidence towards detention on
    the secondary grounds (H may become violent again for no reason)
Ratio: Bail may be denied if the release of the accused would bring the administration of justice into
disrepute, having regard to the strength of the Crown‟s case, the gravity of the offence, the circumstances, and
the potential for significant punishment.
Commentary (Stuart & Harris): Although it was stated by the majority that this ground should be used
sparingly, empirical evidence shows that it has not been used so.
Me Hennyson on Hall:
 The SCC in Hall cut out the first two phrases of s. 515(10)(c): “on any other just cause being shown, and,
    without limiting the generality of the foregoing”  too vague
 What was the reason denying bail to Hall? General feeling of fear in the community.
     o What about the presumption of innocence? Just because the community is “afraid” or feels less
         confident in the justice system because a bail is granted, does that mean bail should be denied?
 What is the limitation on the “public” point of view – it isn‟t the actual public the judge is imagining; it is
    a public that is fully informed as to the presumption of innocence
     o The reasonable person that the dissent imagines is different from the majority‟s
     o Justice Iacobucci says that a public fully informed as to the presumption of innocence wouldn‟t have
         any fears besides flight or re-offence – fails to see how confidence in administration of justice can be
         increased by detaining someone who poses no risk of flight/re-offence
 In this vein, the majority makes clear that this ground should not be raised often
     o 515(10)(c) is supposed to catch things that don‟t fall in a + b
 N.B. SCC waited for horrible facts to rule on s. 515: so they could justify it with an appropriate example
 Why might judges cringe at the use of the tertiary ground?
     o Are talking about the strength of the case
           Talk about it in 515(10)(b) [has been read in] to infer that the person is likely to be dangerous
           In (c), you‟re talking about it to infer GUILT – this is uncomfortable
     o The tertiary ground therefore operates differently than the secondary ground with respect to the
         presumption of innocence
           The tertiary ground violates it much more deeply
     o Also, in relation to gravity of the offence (insofar as it takes it into account), the tertiary ground
         makes the presumption of innocence operate differently with each different offence

   Note the new references to firearms in s. 515(10)(c): amended in 2007 to address gun crime

DISCLOSURE

   Importance of the disclosure issue: where the Crown does not disclose, wrongful convictions result

1. Disclosure of Information in the Crown’s Hands

   Prior to Stinchcombe, the only law which required Crown to disclose its case to accused was s. 603 CC
     o Not the most effective tool for disclosure
     o Timing issue: the disclosure obligation only begins after accused has been committed to trial,
         whereas Stinchcombe begins before you elect mode of trial/before they plead not guilty
     o It is not an ongoing obligation on the Crown
     o Only covers: the indictment, accused‟s own statement, and “the evidence” (in Stinchcombe, it is
         anything that could be relevant, which is different from “the evidence.” Evidence is only what the
         Crown is planning to call.)

R. v. Stinchcombe (1991 SCC)


                                                                                                                59
Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

Facts: S was a lawyer charged with breach of trust, theft, and fraud. Crown did not disclose the prior
inconsistent statements of his former secretary, despite S‟s requests for disclosure.
Issue: What information does the Crown have to disclose to the defence?
Holding: Everything that is not clearly irrelevant or subject to privilege.
Reasoning (Sopinka J.):
 There is a fundamental difference between the role of the prosecutor and the role of defence counsel:
     o Prosecutor has a duty to make sure that all available legal proof of the facts is presented; it is not their
          job to secure a conviction
     o Defence counsel has no obligation to assist the prosecution and is entitled to assume a purely
          adversarial role toward the prosecution
 “The fruits of the investigation which are in the possession of counsel for the Crown are not the property
    of the Crown for use in securing a conviction, but the property of the public to be used to ensure that
    justice is done”
 Overriding concern: failure to disclose impedes the ability of the accused to make full answer and defence
    (this is a principle of fundamental justice under s. 7)
     o This principle is the means by which our system ensures that innocent people are not convicted
 See p. 13-14 of the coursepack for a list of material to which the accused is entitled: copy of their criminal
    record, any statements they made to a person in authority, access to any exhibits, copies of witness
    statements, electronic recordings
 The obligation to disclose is not absolute: it is subject to Crown discretion extending to both withholding
    of information and timing of disclosure
     o Withholding: respecting privilege, protecting informers/witnesses
     o Timing: early disclosure may sometimes impede the completion of investigation
 The discretion of the Crown in disclosure is reviewable by the trial judge, who must be guided according
    to the reasonable possibility that the failure to disclose could impair the right of the accused to make full
    answer and defence
 Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead
 The obligation to disclose is triggered by the accused‟s request for information
 Crown is under a general duty to disclose all relevant information; Crown does not need to disclose
    what is clearly irrelevant
     o Crown must disclose even information which it doesn’t intend to introduce at trial
     o No distinction between inculpatory/exculpatory evidence should be made
Ratio: The Crown must disclose to the defence all information that is not clearly irrelevant to the case.
Klein on Stinchcombe:
Why was there opposition to full Crown obligation to disclose?
     Defence will be able to tailor their evidence to what Crown is proposing for the court‟s consideration
     Crown doesn‟t want to put informants or witnesses at risk
              o Court says disclosure remains within discretion of the Crown, so there is some scope for
                  timing your disclosure with that in mind. Also, there is informer privilege.
     Efficiency: too time consuming to disclose everything
              o Court says time will be saved elsewhere: will bring out truth sooner, the pleas and
                  withdrawals that will occur will occur more quickly
What did Stinchcombe say about the obligation to disclose?
     Disclosure anchored in right to make full answer/defence, but it is itself its own constitutional right
     There has to be a request for disclosure
     Crown has to advise unrepresented of the right to disclosure
     Obligation is ongoing
     All relevant info should be disclosed: only that which is clearly irrelevant may be excluded. Low
         standard for relevance.
     Doesn‟t address whether there is a similar obligation of disclosure in summary conviction cases
     Doesn‟t say whether it only applies to things in the Crown‟s possession, or also includes things in


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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

       possession of third parties
Three major issues since Stinchcombe
   1. Whether there should be any reciprocal obligation on the defence
           o Concerns about self-incrimination
           o Note: They do need to give the Crown enough time to investigate alibis, where they are
                seeking Charter relief, or where they are calling expert evidence
           o Not the responsibility of the accused to help the Crown make out its case (but it is the job of
                the Crown to help the accused make out its case)
   2. What to do with information that is in the hands of third parties
           o Production, which is part of discovery
   3. What to do with lost or destroyed evidence

Disclosure by the Defence: a Correlative Obligation?

   There is currently no general obligation on the part of the defence to disclose any evidence to the Crown

See these two different views on the matter:
Tanovich et al., “A Modest Proposal for Reciprocal Defence Disclosure”
 The disclosure obligations currently lying on the defence: timely pre-trial notice of an alibi defence
 Defence should be required to disclose to the Crown: names and statements of witnesses they propose to
    call; notice of any defence that will be presented; reports of experts whom the defence intends to call
 Trials without ambushes are better vehicles for seeking the truth
 Only in rare occasions does the Crown have more resources than defence to gather information; the
    obligation should be reciprocal because the “power imbalance” is illusory
Davison, “A Reply to the Modest Proposal for Reciprocal Defence Disclosure”
 Stinchcombe does not mean that the defence should now have to reciprocate with disclosure: that case
    merely recognized an obligation the Crown already had; furthermore, such an assumption fails to
    recognize the different roles of Crown/defence
 Full defence disclosure would only make sense in a system where reconciliation and healing were the
    main objectives  but not in our current adversarial system
 In our current system, defence disclosure would expose the accused to a greater chance of conviction;
    goes against the principle that a person does not have to help prosecute themselves

2. Third Party Production of Information

   Disclosure refers to divulgation of material within the Crown‟s possession
   Release of information that is held by others is known as “production”
     o Note that production is not about admissibility at trial; it is about the defence‟s preparation of their
         case
   Stinchcombe left open the issue of production, and it was dealt with in the following case:

R. v. O’Connor (1995 SCC)
Issue: When can the accused obtain production of therapeutic records from third party custodians of such
documents?
Reasoning:
Majority on This Issue (Lamer C.J. & Sopinka J., dissenting as to outcome):
Records in the Possession of the Crown
 Complainant enjoys no privacy interest in the records held by the Crown.
 Their waiver of the confidentiality of such documents (must be fully informed – Crown onus to warn of
    possibility of disclosure) to further the prosecution means that these records must be disclosed according
    to the rule in Stinchcombe, whenever they are not clearly irrelevant.


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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

 Relevance is presumed where the records are in the hands of the Crown
Records in the Hands of Third Parties
 The competing rights: full answer and defence (accused) v. privacy (complainant)
 FIRST STAGE: Accused must establish “likely relevance” of the records
     o Accused brings formal written application for production
           Supported by an affidavit setting out the specific grounds for production
     o Notice must be given to third parties in possession of documents; persons who have a privacy interest
         in the records
     o Accused must subpoena the custodian and the records to ensure their attendance in court
     o Test for “likely relevance”: presiding judge must be satisfied that there is a reasonable possibility that
         the information is logically probative to an issue at trial or the competence of a witness to testify
 SECOND STAGE: Judge must balance full answer/defence and privacy
     o If “likely relevance” is established, the records must be produced to the court
     o Judge examines them, decides whether and to what extent they should be produced to the accused
     o Factors to consider:
           Extent to which record is necessary for accused to make full answer/defence
           Probative value of the record
           Nature an extent of reasonable expectation of privacy in the record
           Whether production of record would be premised on any biased belief
           Potential prejudice to complainant‟s dignity, privacy, or security of person created by production
     o Trial judge has the power to: order a publication ban, an exclusion order, to protect privacy interests
         when production is ordered
Dissent (L‟Heureux-Dubé J. + 3):
 Impose a higher burden on the accused to establish why the records in question are important
 The trial judge should consider the complainant‟s competing interests before they order production even
    to the court, not only when they are ordering production to the accused
Ratio: Two-stage test for when production of records held by third parties should be made to the accused.
Klein on O’Connor:
 Procedure for third-party production: O’Connor
     o Defence subpoenas the third party to a pre-trial motion
     o Has to convince the judge that something in the third party‟s hands is likely relevant to the case
     o Step 1 = Production to the judge (standard = “likely relevance”)
     o Step 2 = Judge determines whether disclosure should be provided to the defence
           Balancing exercise:
                Privacy rights of complainant (dissent suggests equality rights)
                Full answer/defence rights of defendant
           Things to consider: Whether production of the evidence would rely on stereotypes; potential
              prejudice to complainant‟s dignity, security of the person.
           Dissent relies on two other factors not accepted by the majority:
                Societal interest in encouraging reporting of these offences
                Societal interest in encouraging victims of these offences to seek treatment
           Majority says there are other ways of dealing with this concern for reporting: can be dealt with
              at the admissibility stage
 Legislative response = s. 278.1ff. CrC, which agrees with the dissent in O’Connor. There was a
    constitutional challenge to these, but these provisions were upheld, saying there was enough discretion in
    the scheme.

   Bill C-46 (now ss. 278.1ff) was enacted by Parliament to counter the effect of O’Connor; it enacted, only
    within the context of sexual offences, the dissent‟s view (effectively overturning O’Connor)
    o These provisions were upheld in R. v. Mills (1999 SCC):



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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

             Majority analyzed each provision individually, in light of the right to full answer and defence
              set out in ss. 7, 11(d), and the right to privacy set out by s. 8, and the equality rights in s. 15
           Concluded they were constitutional because they gave enough discretion to judges to balance
              these rights in each case
   There are now three different sets of rules for production of records:
    o 1. Stinchcombe for anything in Crown‟s hands
    o 2. s. 278.1 for production of records held by third parties for sexual assault offences (codifying
        dissent in O’Connor)
    o 3. Majority in O’Connor for production of records held by third parties for all other offences

3. Lost or Destroyed Evidence

Lost evidence:
Graeme G. Mitchell, “R v. La: The Evolving Right of Crown Disclosure and the Supreme Court
Divided”
 Facts: the initial interview between a police officer and a complainant was lost by the police.
 Court concluded that no infringement of s. 7 had been manifested
 Three-step inquiry for lost evidence:
     o 1. Did Crown non-disclosure breach an accused‟s right to disclosure guaranteed by s. 7?
     o 2. If not, did Crown non-disclosure amount to an abuse of process?
     o 3. If not, and in any event, has Crown non-disclosure infringed an accused person‟s right to make full
         answer and defence?
     o If any of these questions are answered yes, there is a presumed Charter breach
 #1 is presumed breached if the Crown cannot explain the loss or disappearance of the evidence
     o Things to consider:
            Was there unacceptable negligence on the part of the police/prosecution?
            When was the evidence lost, how relevant was it?
     o If the Crown‟s explanation is acceptable, there is no Charter infringement
     o If it is inadequate, there is a breach and it must be remedied by s. 24(1)
Klein on La:
 Accused has to prove actual irreparable prejudice – cannot just say that the loss of the evidence could
    have harmed them in the abstract, has to prove that it actually did harm their case
     o AND there has to be unacceptable negligence involved in the loss

Destroyed evidence:
R. v. Carosella (1997 SCC)
Facts: C was the victim of sexual assault by a teacher in the 1960s. She went to a sexual assault crisis centre
to get information about how to press charges, etc. She had an 1½ hour interview with a caseworker, which
was the first rendition of the events given to another person. The centre shredded the notes. The caseworker
cannot remember the contents of the interview.
Issue: Is this destruction of evidence a breach of the accused‟s right to full answer and defence? If so, how
may this be remedied? Holding: Yes to the breach; remedy is a stay of proceedings (with dissent).
Reasoning:
Majority (Major J. + 4):
 There is no alternative remedy which would cure the destruction of the evidence but a stay
 If the prosecution were continued, the integrity of the judicial system would be compromised
 Confidence in the administration of justice would be undermined if the courts were to condone conduct
    designed to defeat the processes of the court
Dissent (L‟Heureux-Dubé + 3):
 Disclosure is a concept which binds only the Crown, not the public at large
 The documents requested fell outside the normal scope of Crown disclosure; so the accused is going to


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Suzanne Amiel                                                                                          Prof. Alana Klein
Criminal Procedure                                                                                             Fall 2010

    have an uphill battle proving that their non-production will violate their right to full answer/defence
   There is no actual harm to the accused here; the motive behind the destruction of the notes do not provide
    the prejudice necessary to cause an unfair trial
Ratio: If evidence is purposely destroyed by a third party, that will likely result in a stay for the accused.
Klein on Carosella:
 Court treated this case as a Crown disclosure issue, not a third-party production issue
 The issue in this case was the fact that the sexual assault centre‟s deliberate policy was to destroy records
 Should it really matter how the notes came to be destroyed? Shouldn‟t it only matter whether there is
    prejudice by their lack? In Carosella, the court presumes that there was something relevant in the
    destroyed records because of the gross negligence leading to their destruction
 AK feels as though this case is best confined to its facts

VII. PLEAS AND PLEA BARGAINING

PLEAS

   Approximately 85% of criminal charges result in a guilty plea

Jenish & Driedger, “Homolka’s Plea Bargain Revealed”
 This deal raised a number of long-standing public concerns – scepticism about the justice system
    o But these pleas and sentences are essential to keep the system working

Pleas in General
 Once the Crown and accused have elected how to proceed, and the accused has been arraigned, the
    accused can plead
     o Two common pleas: guilty or not guilty
          “Not guilty” does not mean that the accused is saying they didn‟t do it – they are just not
             relieving the Crown of their burden to prove their case
          A guilty plea is a formal admission of the constitutive elements of the offence – accused admits
             that they committed the actus reus with the necessary mens rea  they admit the “truth of the
             charges”
     o Three special pleas: autrefois acquit, autrefois convict, pardon
          Accused has previously been acquitted, convicted, or pardoned
 The judge taking the plea has to make sure it is made voluntarily – see s. 606 CrC:

s. 606      Pleas permitted
Cr.C.       (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized
            by this Part and no others.
            Conditions for accepting guilty plea
            (1.1) A court may accept a plea of guilty only if it is satisfied that the accused
               (a) is making the plea voluntarily; and
               (b) understands
                  (i) that the plea is an admission of the essential elements of the offence,
                  (ii) the nature and consequences of the plea, and
                  (iii) that the court is not bound by any agreement made between the accused and the prosecutor.
            Validity of plea
            (1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met
            does not affect the validity of the plea.

Adgey v. R. (1975 SCC)
Facts: A pleaded guilty. After the plea of guilty was entered, A got a chance to explain the circumstances


                                                                                                                      64
Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

surrounding the offences; these indicated he might not be guilty after all.
Issue: Did the trial judge err in law in not striking the guilty pleas? Holding: No, with dissent.
Reasoning:
Majority (Dickson J. + 2):
 There are two stages in plea proceedings at which the trial judge can exercise discretion:
     o 1. When the plea is entered  TJ does not have to accept the plea
     o 2. When evidence on facts/charges is heard  TJ can direct that a plea of not guilty be entered, or
         permit the accused to withdraw his original plea and enter a new one
           This might occur if the evidence shows that the accused cannot admit a fact essential to the
              offence, or misapprehended the effect of a guilty plea, or never intended to plead guilty at all
 An accused may change his plea if he can satisfy the appellate court that there are valid grounds for his
    being permitted to do so
 In this case, such grounds do not exist
Dissent (Laskin J.):
 If an accused is unrepresented, this is material to the duty that lies upon the TJ in relation to guilty pleas
 An appellate court should set aside a guilty plea if:
     o 1. Accused did not understand the nature of the charge
     o 2. Accused did not unequivocally plead guilty to the charge
     o 3. The accused, on the facts offered in support of the charge, could not in law have been convicted
         for the offence charged
     o The first two go to voluntariness; the last goes to factual accuracy of the plea
 Effect of a guilty plea: relieves the Crown of its burden to prove guilt beyond a reasonable doubt; accused
    abandons his non-compellability as a witness, his right to remain silent
 Real problem in this case: the TJ‟s failure to make any inquiry at all as to whether the accused understood
    the charges, appreciated the consequences of the guilty plea, and whether his plea was unequivocal
Ratio: Appellate courts have a fairly broad discretion to strike guilty pleas; however, will only do so if the
voluntariness of the plea is questioned, or the facts that can be admitted to do not constitute the offence.

Khanfoussi c. La Reine (2010 QCCQ)
Facts: K is trying to have his pleas stricken for lack of voluntariness. Said he just wanted to get out of jail
when he plead.
Issue: Should his plea be stricken? Holding: No.
Reasoning (Healy J.):
 There are two principles in tension in striking a guilty plea:
 1. The accused‟s right to the presumption of innocence and to make full answer and defence
    o In making a guilty plea, the accused formally admits the truth of the accusations to the court
            In so doing, submits himself to sentencing
    o Only a free, voluntary, enlightened plea constitutes a valid renunciation of the presumption of
         innocence  a declaration of this state of mind is sufficient to prove it, however
            It is not the Court‟s responsibility to inquire further into the accused‟s reasons for pleading
            It is only the appearance that matters (admission of a margin of error here)
 2. The finality of judicial procedures, which contributes to public confidence in administration of justice
 There is nothing showing that the voluntariness of K‟s plea should be questioned here
Ratio: It is the appearance of voluntariness of the plea that matters for the court.

Judge Healy on the Quality of Guilty Pleas:
 When a guilty plea is made, the quality of the guilty plea is absolutely critical
 It is important for the judge to be satisfied that the plea is VOLUNTARY, it is made without PRESSURE,
   or PROMISE/INDUCEMENTS to accused
 Healy J. thinks it is the judge‟s responsibility to explain to an unrepresented accused the extent of his
   jeopardy if they are going to plead


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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

   See s. 606 CrC  plea inquiry is set out. But s. 606(1.2) completely voids the section of any effect.
   Procedure of the plea:
     o Intention to plead
     o Is it voluntary?
     o Plea is not yet accepted
     o Someone will then read the charges and the facts – the accused is admitting to these as well.
   Even if you go through the process, can you be sure that the plea is genuine?

Stephanos Bibas, “Alford and Nolo Contendere Pleas”
 Coursebook note: an accused who does not wish to proceed to trial in Canada only has the option of
    pleading guilty (admitting the essential elements of the offence)
     o There is a type of plea that waives the right to trial but does not admit guilt (I plead guilty, but I do
         not admit that I did it) that exists in the US  “no contest” plea
 Alford plea: defendant pleads guilty while simultaneously protesting their innocence
 Advantages: efficient, constitutional means of resolving cases. Is a lesser evil, way to empower defendants
    within a flawed system. Innocent defendants should be free to use pleas to enter advantageous plea
    bargains without having to lie.
 Disadvantages: undermine the key values associated with admissions of guilt. It is wrong to punish people
    that say they are innocent without a trial verdict that contradicts that statement. Public can doubt the
    justice of the system. Should only punish people known to be blameworthy.
     o Admissions of guilt in open court are firmer basis for conviction, repentance, closure

PLEA BARGAINING

J. Di Luca, “A Review of Plea Bargaining in Canada”
 Defining Plea Bargaining:
     o Agreement by an accused to plead guilty in exchange for some benefit
     o More broadly understood, any discussion whereby the defence and Crown counsel discuss the
        evidence in a criminal prosecution with a view to achieving a disposition on some or all of the issues
     o It is a process where by means of concessions by the accused, they hope to receive some form of
        favourable treatment
 The Types of Plea Bargaining:
     o Explicit: explicit negotiations between Crown and defence counsel where they discuss the accused
        pleading guilty to something in exchange for a benefit
     o Implicit: accused pleads guilty without any negotiated benefit, hoping for a sentencing discount
     o Charge Bargaining: have charges reduced/some withdrawn if accused pleads guilty
     o Fact Bargaining: accused pleads to an agreed (edited) statement of facts that makes the circumstances
        surrounding the offence less aggravating/more mitigating
     o Sentence Bargaining: length/type of sentence is negotiated for, the aim being a “joint submission”
 The Arguments in Favour of Plea Bargaining:
     o Necessity and efficiency: the system has become dependent on guilty pleas to keep it moving. If
        everyone went to trial, the court system would need 20 times more resources than it has.
     o Accused person‟s best interests:
           Get a lower sentence (is this really a punishment for those that choose to go to trial? “trial
               penalty”)
           Are certain about the outcome
           Avoid the cost of the trial (financial/emotional)
           Avoid embarrassment of public hearing
           Avoid stigma associated with more serious offences (if charge bargaining took place)
     o Efficiency of prosecution administration
     o Interests of society: if people are pleading guilty, police, prosecutors must be doing their job right


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Suzanne Amiel                                                                                                Prof. Alana Klein
Criminal Procedure                                                                                                   Fall 2010

              But: trial is a good way to check the use of State power. Police/prosecutorial abuses do not get
               discovered if people plead
    o Victims‟ interests: avoid trauma of a trial
            But: victims may feel marginalized by the plea bargain system
 The Arguments Against Plea Bargaining:
    o Theoretical: objective of criminal justice system is to search out the truth; adversarial trial, with all of
        its procedural protections, is the way to do this
            Plea bargaining circumvents this process because it encourages innocent to say they are guilty
    o Plea bargains violate the open court principle – take place behind closed doors
Ken Chasse, “Plea Bargaining is Sentencing”
 The “trial penalty”: it is the difference in sentence offered at trial (higher) and that offered upon plea
   bargain (lower)
    o The accused is punished for exercising their constitutional right to have a trial
 The Crown‟s “recommendation” for sentence in a guilty plea is more than a recommendation  it is more
   often than not accepted by the Court
 See page 85 of the coursepack for a list of the results of the guilty plea system we now have in place
 All of these factors combined increase the probability of wrongful convictions

Guest Lecture on Plea Bargaining
 1987 Law Reform Commission: plea bargaining was not a legitimate practice, “something for which a
   legitimate criminal justice system has no place”
    o This began to change slowly
 Over 85% of cases today are settled by plea bargain
    o N.B. Criminal justice system would not work if every single case went to trial
    o This is why the validity, informed nature, fairness of the plea is central
    o The sense of fair play is vital: it is important that both parties respect what they agreed to
 The defence and the Crown generally plea-bargain in private – accused isn‟t there, victim is definitely not
   there, sometimes officer in charge is there (but many prefer not)
    o Because it‟s a matter of law; not a matter of emotions
 Language of “what the offence is worth” (in terms of punishment)
 Plea bargaining is not a “deal”; it is a negotiation permitted by law  its goal is a joint submission on
   sentence, from which judges cannot depart without good reasons (although they can depart from it)
    o Sometimes the judge will actually give less than a joint submission
 To take note of – oftentimes, avoiding a trial can be a good thing:
    o Defence: accused embarrassed
    o Crown: trauma of forcing victim to testify
 Experience is what counts in plea bargaining: have to know what‟s fair, what‟s consistent

VIII. CHARTER REMEDIES

s. 24 Charter        Enforcement of guaranteed rights and freedoms
                     (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
                     may apply to a court of competent jurisdiction to obtain such remedy as the court considers
                     appropriate and just in the circumstances.
                     Exclusion of evidence bringing administration of justice into disrepute
                     (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a
                     manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall
                     be excluded if it is established that, having regard to all the circumstances, the admission of it in the
                     proceedings would bring the administration of justice into disrepute.

SECTION 24(2): EXCLUSION OF EVIDENCE


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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

   Before the Charter, the answer to the question “Should the criminal go free because the constable has
    blundered?” was generally “No.”
     o Could make a complaint with police ethics commission
     o Could sue in civil court for damages
   So the exclusionary rule in the Charter is pretty new
   Section 24(2) does not require that evidence obtained in violation of Charter rights be automatically
    excluded  must be excluded only if its inclusion would bring the administration of justice into disrepute

Does the exclusion of evidence even deter Charter infringements by State actors?
Steven Penney, “Taking Deterrence Seriously”
 Justifications for excluding illegally obtained evidence:
    o 1. Condonation rationale: avoids judicial approbation of police misconduct
    o 2. Corrective justice rationale: compensates a victim of a police violation
    o 3. Deterrence rationale: deters constitutional violations
 Condonation rationale was put forward by the SCC in Collins
    o Exclusion of illegally obtained evidence is not a remedy for police misconduct; it is to avoid the
        further disrepute the justice system would be brought by associating itself with such evidence
    o This rationale can be dismissed pretty easily: the justice system is brought into way more disrepute
        by allowing factually guilty people to go free than by admitting illegally obtained evidence
    o The “inherently unseemly” tinge to using illegal evidence in a proceeding is outweighed by letting
        criminals off the hook
    o The real problem with admission is that it is a lost opportunity for deterrence  this rationale is just a
        proxy for the deterrence rationale
 Corrective justice rationale is also indefensible
    o In the vast majority of cases, whatever harm the accused suffered is way less significant than the
        benefit they will be getting from the exclusion of evidence
    o This rationale gives the accused a windfall – gives them too much compensation for the violation of
        their rights
 Deterrence rationale is the only one capable of supporting the exclusion of illegally obtained evidence
    o There is disagreement whether exclusion of evidence deters police – the law may be too complex for
        them to understand, they may not know about the suppression of evidence they have collected, they
        may fail to understand why it was suppressed if they do know about it
    o But some empirical evidence shows that exclusion of evidence does deter police from illegally
        obtaining evidence in violation of rights, although it is necessarily limited
    o In addition, the proportion of convictions lost because evidence is excluded is pretty low (large in
        absolute terms  burden on society)

This is the case where the SCC updated its approach to s. 24(2):
R. v. Grant (2009 SCC), reprise
Issue: When must evidence obtained in violation of a person‟s Charter rights be excluded?
Reasoning (McLachlin C.J. & Charron J.):
 Evidence obtained by means that violated Charter rights must be excluded when its admission would
    bring the administration of justice into disrepute. What does that mean?
 Overview of the Approach:
     o The phrase “bring the administration of justice into disrepute” must be understood in the long-term
          sense of maintaining the integrity of, and public confidence in, the justice system
            Focus is prospective
            Focus is societal  not aimed at punishing police, or providing compensation for the accused
                The emphasis is on systemic concerns
     o Inquiry is objective: the perspective is that of a reasonable person, informed of all relevant
          circumstances and the values underlying the Charter


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Suzanne Amiel                                                                                  Prof. Alana Klein
Criminal Procedure                                                                                     Fall 2010

   BRANCH 1: Seriousness of the Charter-Infringing State Conduct
     o The more severe or deliberate the police conduct in question, the more the Court needs to dissociate
         itself from evidence obtained thereby
     o The concern under this branch is not to punish police/deter Charter breaches (although this may be a
         happy consequence) – concern is to preserve public confidence in the rule of law
     o Minor/inadvertent violations of the Charter are less serious (and tending towards exclusion) than are
         wilful or reckless violations
     o Need to keep in mind extenuating circumstances which may justify Charter breaches
     o Take into account good faith/bad faith of State actors (ignorance of Charter rights is not equal to
         good faith)
 BRANCH 2: Impact on the Charter-Protected Interests of the Accused
     o Must evaluate the extent to which the breach actually undermined the interests protected by the right
         infringed
 BRANCH 3: Society‟s Interest in an Adjudication on the Merits
     o Would the truth-seeking function of the criminal trial process be better served by admission of the
         evidence, or by its exclusion?
     o Reliability of the evidence is an important factor in this line of inquiry
     o Importance of the evidence to the prosecution‟s case is another factor
     o (Seriousness of the offence is a factor that could cut both ways)
 Certain Types of Evidence:
     o Statements made by the accused:
           Only if the statement survives scrutiny under VCR does the s. 24(2) remedy of exclusion arise
           The analysis above supports a presumptive general, although not automatic, exclusion of
               statements obtained in breach of the Charter
           Branch 3 reliability is an issue here
     o Bodily evidence:
           The seriousness of the police conduct/impact on accused‟s rights (probably s. 8, right to privacy,
               bodily integrity, dignity) can vary greatly on the facts
           Reliability is generally pretty established in cases of physical evidence
           Where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused‟s
               privacy, bodily integrity, and dignity is high, bodily evidence will be excluded notwithstanding
               relevance and reliability
     o Non-bodily physical evidence:
           This is most often in cases of s. 8 violations – depends on the facts for the first two branches,
               branch 3 reliability will not be an issue (physical evidence)
     o Derivative evidence: physical evidence discovered as a result of an unlawfully obtained statement
           The police conduct in question is the conduct in obtaining the statement that led to the evidence
           The impact of the breach on the accused is lessened if the derivative evidence was independently
               discoverable (i.e. little causal connection between statement and finding real evidence)
           This kind of evidence is reliable
Ratio: Where reliable evidence is discovered as a result of a good faith infringement that did not greatly
undermine the accused‟s protected interests, the trial judge may conclude in favour of admissibility.
Deliberate and egregious police conduct that severely impacted the accused‟s protected interests may result in
an exclusion, nothwithstanding the reliability of the evidence.
Klein on Grant:
 Under previous tests, there was much more attention paid to the type of evidence collected, rather than the
    context in which it was collected
 Focus is now on wrongful state behaviour, and getting at the truth (right against self-incrimination
    receding into the background, along with the question of “conscriptive evidence”)
 The main point: court distancing itself from wrongful police behaviour, but not disciplining it. Is a
    concern for the administration of justice, NOT slapping hands of police.


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Suzanne Amiel                                                                                      Prof. Alana Klein
Criminal Procedure                                                                                         Fall 2010

See how Grant is applied in the following cases:
R v. Harrison (2009 SCC)
Facts: H was pulled over by a cop by mistake. Cop continued to pull H over because he was embarrassed.
When he did pull him over, found out that he was driving under a suspended license; arrested him for that;
searched the car “incident to arrest” for driving while suspended and found 35kg of cocaine.
Issue: Is this evidence admissible under s. 24(2)? Holding: No.
Reasoning: The first branch is the most important here. The breach of ss. 8, 9 was extreme; H knew he had no
reasonable grounds to stop H; everything he did after that was in “blatant disregard” of Charter rights. The
impact on H‟s liberty/privacy was significant but not egregious. The evidence was reliable.
R. v. Blacquier (2010 NBPC)
Facts: B was pulled over for driving erratically. He couldn‟t even stand. The cop tried to read him his rights,
but B said “blah, blah, blah.” At the station, B said he wanted to speak to a lawyer; cop couldn‟t recall if he
said a specific lawyer, and put duty counsel on the line for him. B said he didn‟t want to talk to the lawyer.
Breath samples were taken.
Issue: Is this evidence admissible under s. 24(2)? Holding: No.
Reasoning: B‟s s. 10(b) right to counsel was violated. The Charter-infringing conduct was serious. The
impact on B‟s interests was significant because he did not end up getting legal advice. The evidence is reliable
and central to the Crown‟s case. This decision is made on the first two factors.
R. c. Ferracane (2010 QCCQ)
Facts: F drove his car off the road and abandoned it. The cops were called to the scene, and tried to locate F.
Eventually got his address, and went to check he was okay. While on his property, couldn‟t help but notice
there was a marijuana grow-op in the basement. The conduct at issue is that one of the cops kneeled and
looked in basement window. On the basis of all the evidence, got a warrant, searched the house, arrested F.
Issue: Is this evidence admissible under s. 24(2)? Holding: Yes.
Reasoning: This decision is made on the basis that the grow-op was independently discoverable from the
Charter-infringing conduct. It was so obvious it was practically on the lawn. The cops had enough grounds to
get the warrant without peeking in the window. Cops were also in good faith. The evidence is reliable, and the
offence is serious. There is a high expectation of privacy in a dwelling house, but in light of all the factors, the
evidence is admitted.
R. v. Archambault (2010 QCCQ)
Facts: A & S were under investigation for crimes related to firearms. Police finally got enough evidence to get
a search warrant of an establishment they had under surveillance (where A & S would frequently go). They
were waiting for the telewarrant to come through, when they saw A & S leave the building – arrested them.
Waited for the warrant to come through (five hours) before they let them call their lawyers.
Issue: Is any of the evidence ensuing from the warrant, etc, admissible? Holding: No.
Reasoning: Police had grounds for the arrests, and the warrant. The real violation here is of s. 10(b). This
decision is made on the basis of branch 1: the State conduct is very egregious – the police purported to
“suspend” the accused‟s right to counsel for 5 hours, when there were no exigent circumstances (such as the
protection of the investigation, or evidence from destruction).

SECTION 24(1): OTHER REMEDIES

1. Remedies Generally

   Doucet-Boudreau v. Nova Scotia (Minister of Education) (2003 SCC, per Iacobucci & Arbour JJ):
    o The language of s. 24(1) gives the court a wide and unfettered discretion
    o This provision for remedy of Charter breaches must be interpreted in a way that gives a full,
        effective, and meaningful remedy to Charter violations
          A right is only as meaningful as the remedy provided for its breach
    o Courts must craft responsive and effective remedies in order to promote the purpose of the right and
        the remedy
   Any court of competent jurisdiction may rule on a Charter motion and give Charter relief:

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Suzanne Amiel                                                                                      Prof. Alana Klein
Criminal Procedure                                                                                         Fall 2010

     o    This includes superior courts, provincial level trial courts, but not preliminary inquiry courts

2. Stays of Proceedings

   The most common s. 24(1) award is a judicial stay of proceedings: an order from the court preventing the
    prosecution from continuing
   R. v. Jewitt (1985 SCC, per Dickson C.J.): stay of proceedings is a stopping/arresting of a judicial
    proceeding by direction or order of a court
   Stays are generally used as a remedy for abuse of process and unreasonable trial delay (see below for
    the latter)

This case helps to define abuse of process:
R. v. Keyowski (1988 SCC)
Wilson J.:
 A stay should be granted where compelling an accused to stand trial would violate those
    fundamental principles of justice which underlie the community’s sense of fair play and decency
    OR where the proceedings are oppressive or vexatious
 This is power to be exercised only in the “clearest of cases”
 The issue in this case is whether a series of trials (this is the third, after 2 juries could not agree on a
    verdict) constitutes an abuse of process on its own, without the need for prosecutorial misconduct
 There is no need for abuse of process (oppressive/vexatious proceedings) to require misconduct or
    improper motive by the prosecution

This case offers more clarity on what a stay is and when it should be an available remedy:
R. v. Power (1994 SCC)
L‟Heureux-Dubé J.:
 Where an affront to fair play and decency is disproportionate to the societal interest in the effective
    prosecution of criminal cases, then administration of justice is best served by staying the proceedings
 A stay is available in the “clearest of cases” – when there is conduct on the part of the State that so shocks
    the conscience of the community and is so detrimental to the proper administration of justice that it
    warrants judicial intervention

This case discusses the “residual category” for abuse of process and sets out the legal test for a stay:
R. v. Regan (2002 SCC)
Facts: Nova Scotia‟s former premier, Gerald Regan was charged with 18 counts of rape, attempted rape,
indecent assault, and unlawful confinement involving 13 women. Regan was successful in having 7 of the
counts stayed because the “Crown prosecutor was out to get him.”
Issue: Did the State conduct in this case warrant a stay? Holding: No.
Reasoning (Lebel J.):
Abuse of Process
 Abuse of process will often impede the accused‟s right to a fair trial (O’Connor: lost evidence)
 But there is a residual category of abuse of process in which the individual‟s right to a fair trial is not
    implicated: it just refers to a situation in which a prosecution is conducted in such a manner as to connote
    extreme unfairness or vexatiousness
 Even in these cases, the prospective nature of the stay as a remedy (see below) must still be satisfied
 When dealing with an abuse which falls into the residual category, a stay of proceedings is generally only
    appropriate when the abuse is likely to continue to be carried forward (this will be rare)
Stay of Proceedings
 A stay of proceedings is one remedy to an abuse of process
 A stay of proceedings will only be appropriate when 2 criteria are met:
     o 1. The prejudice caused by the abuse in question will be manifested, perpetuated, or


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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

         aggravated through the conduct of the trial, or by its outcome, and
     o 2. No other remedy is reasonably capable of removing the prejudice.
 Where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay,
    a third criterion may be considered: balance the interests that would be served by granting the stay
    against the interest society has in having a final decision on the merits
 Note: criteria 1 says a stay is a PROSPECTIVE rather than a RETROACTIVE remedy; it does not merely
    redress a past wrong – it aims to prevent the perpetuation of a wrong into the future
Ratio: Abuse of process is when the prosecution of an accused is oppressive or vexatious (does not
necessarily have to adversely affect their right to a fair trial). A stay of proceedings will be an available
remedy for abuse of process in the circumstances set out above.

Klein on the Test for a Stay of Proceedings for Abuse of Process:
 1. Is there abuse of process? Abuse of process may be established where:
    o 1. The proceedings are oppressive and vexatious and
    o 2. Violate the fundamental principles of justice underlying the community’s sense of fair play
        and decency
    o Most often abuse creates an unfair trial, but there is a residual category where abuse of process does
        not implicate the right to a fair trial, but this will be “exceptional”
    o Examples of things that will create abuse of process (by creating an unfair trial): delay, disclosure,
        tampering with evidence, destruction of evidence
 2. Do we need a stay? Only in the “clearest of cases” (Jewitt, Keyowski, Power, Regan)
    o A stay will only be appropriate where two criteria of met:
           1. 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
           2. No other remedy is capable of removing that prejudice
    o If it unclear whether the abuse itself is sufficient to warrant a stay, then balance interests:
           3. Balance the interests that would be served by the granting of a stay against the interest that
              society has in having a final decision on the merits

This case grants the accused a stay for police brutality:
R. v. Tran (2010 OCA)
Facts: T was involved in a crew that committed a series of home invasions where gratuitous brutality was
inflicted upon the victims. T turned himself in to the police. The trial judge found that on the drive from one
station to another, he was threatened; once at the station, he was beaten for invoking his right to silence. His
jaw was broken, and he suffers lasting effects (migraines, trouble eating). He was denied medical attention,
and the officers responsible lied to the other officers about his injuries and cleaned up the blood in the
interview room. They also perjured themselves on the voir dire. After the voir dire in which the trial judge
found these facts, Crown counsel continued to invite one of the offending officers to sit at the counsel table.
Upon defence request, trial judge ordered the PO not to sit there; PO continued to be involved with witnesses
throughout the rest of the trial. T requested a stay for this police and prosecutorial misconduct; the trial judge
cut his sentence in half instead.
Issue: Is this one of the “clearest of cases” where a stay would be appropriate? Holding: Yes.
Reasoning (Epstein J.A.):
 T‟s ss. 7, 12 rights were clearly violated. The question is what remedy is appropriate?
Stays of Proceedings
 Mack: SCC states that the judiciary should resort to a stay when necessary to communicate that it will not
     condone state conduct that transcends what our society perceives as acceptable
      o Objective of a stay as a remedy is to maintain public confidence in the legal/judicial process
 Tobiass: where the Crown has rendered the proceedings unfair OR acted so as to adversely affect the
     integrity of the administration of justice (the residual category), a stay is warranted on the Regan test
      o If a past abuse were serious enough, then public confidence in the administration of justice could be
          undermined by the mere act of carrying forward the prosecution (i.e. the harm is not ongoing, but it

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Suzanne Amiel                                                                                      Prof. Alana Klein
Criminal Procedure                                                                                         Fall 2010

         becomes ongoing)
Application to this Case
 The conduct here was egregious: T had turned himself in; there was no need for force; he was severely
    beaten for invoking his Charter rights; the police officers tried to cover it up (lying to officers, destroying
    evidence, perjuring themselves); Crown invited one of them to sit at the counsel table after a finding of
    misconduct by the TJ (cavalier attitude to police brutality); etc
     o To make matters worse, there is no evidence of any effective response to the police brutality here –
         the investigation into the cops was closed without any finding of misconduct.
 This conduct, as it continued into the trial, could have rendered a reasonable person to think trial fairness
    was compromised; furthermore, it seems this falls into the residual category where continuing with the
    prosecution at all would bring the administration of justice into disrepute.
Ratio: The stay is an available remedy for police misconduct breaching Charter rights.
Klein on Tran:
 Did the OCA find that the fairness of Tran‟s trial had been compromised by the police/Crown behaviour
    in this case? Kind of. Trial fairness was an issue, but court classified this as a “residual category” case.
 Tobiass (cited in Tran): court finds that some police abuses are bad enough that even trying that person
    afterwards, even in an acceptable and fair manner, is tinged by this abuse
     o But this will be rare: “it is conceivable, we suppose”
 Does the police abuse rise to this Tobias level in Tran? OCA says yes. Trial judge jumped to third step of
    balancing interests too fast (he said stay was not warranted because of the seriousness of the offence). It
    was clear on the first two steps of the test that a stay was warranted.
     o There are some abuses that will never be balanced out by competing societal interests
 Tim Bottomer says: society loses both ways. Both the police responsible AND Tran got off for
    committing horrible offences. Basically, we need to find a way to discipline police for their abuses, all the
    while making sure accused don‟t get away with awful shit too.

3. Costs

R. v. 934649 Ontario Inc. (2001 SCC)
Facts: Co. was charged under a provincial act for failing to comply with safety requirements on a construction
project. Crown failed to disclose something, despite repeated defence requests. Justice of the peace acting as a
trial judge under the Provincial Offences Act held that this was a Charter violation, and made a cost award.
Issue: Is a cost award an available remedy in provincial offence court? Holding: Yes.
Reasoning:
 Cost awards to discipline untimely disclosure are a vital part of enforcing standards of disclosure
      o Are partly compensatory, partly punitive
 Untimely pre-trial disclosure will not merit a stay (availability of alternate remedy of ordering disclosure),
     cost awards are the effective remedy to control abuse of process and rectify the harm
 Cannot deprive provincial courts of the ability to grant this remedy, and thus control disclosure failures.
Ratio: Cost awards are an available remedy under s. 24(1) for untimely disclosure by the Crown.

4. Damages

Vancouver (City) v. Ward (SCC 2010)
Facts: W attended a ceremony at which the Prime Minister (Jean Chretien) was to be present. Vancouver
police had received intelligence that someone was going to try to throw a pie at the PM; obtained a
description. At the ceremony, W was wrongly identified as the would-be pie-thrower (didn‟t match the
description). He was arrested, brought to the division, strip searched (not too invasively) by corrections
officers, and held in a cell for 4.5 hours. His car was also impounded. Police released W when they didn‟t
have enough evidence to get a warrant to search the car, or charge him with attempted assault. Trial judge
decided that W‟s s. 8 rights (to be free from unreasonable search or seizure) were violated and awarded him


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Suzanne Amiel                                                                                    Prof. Alana Klein
Criminal Procedure                                                                                       Fall 2010

damages.
Issue: When may damages be awarded under s. 24(1) of the Canadian Charter of Rights and Freedoms?
Holding: When it is appropriate and just in the circumstances.
Reasoning (McLachlin C.J.):
 Summary - the process for gaining constitutional damages is:
       o Show there is a Charter breach
       o Show that damages would be an appropriate and just remedy
       o Burden shifts to government to present countervailing factors
             Other remedies available
             Good governance considerations
       o Quantum of damages
 Language of 24(1) is broad, granting large discretion – fetter on this discretion is the requirement that
    remedies be “appropriate and just”. Money damages can fall under this broad discretion
 The purposes that constitutional damages must serve are:
       o Compensation of the person harmed (personal loss, intangible harm)
       o Vindication of the right
             Breaching Charter rights harms society; decreases faith in constitutional protections
       o Deterrence of future breaches by state actors in general
 Even if damages are functionally justified, State can show they would be inappropriate in the
    circumstances, or unjust:
       o Can show there are other remedies available that are appropriate (ex. declarations)
       o Can demonstrate the damages will negatively impact good governance
 If these are not found convincing, must assess quantum of damages: each function of damages must be
    considered and allotted the appropriate amount
       o Compensation must restore person to their position if breach had not occurred
       o Vindication/Deterrence depend on egregiousness of breach
 Damages have to be fair BOTH to claimant AND the state, because ultimately society as a whole is
    compensating the claimant
 In this case, W‟s s. 8 rights were infringed. Damages are an appropriate remedy (no tort action available)
    because they would serve the functions of compensation for harm, vindication of right, deterrence
       o In this case, compensation is the big factor: strip searches are very humiliating, and this one was
          unnecessary (no weapons, not a violent offence, no mingling with prison pop)
       o No countervailing factors
       o $5000, as awarded by trial judge
Ratio: Damages are available under s. 24(1) for breaches of individuals‟ Charter rights by state actors.

5. Reduction of Sentence

   R. v. Nasogaluak (SCC 2010): reduction of a sentence under s. 24(1) is technically possible, but it is
    unnecessary to resort to it. Can use the flexible sentencing regime in s. 718 in order to achieve the same
    result.

IX. JURY SELECTION

THE FUNCTION AND RISKS OF THE JURY SYSTEM

Lisa Dufraimont, “Evidence Law and the Jury: a Reassessment”
 Trial juries are panels of ordinary people chosen at random; are supposed to be representative of the wider
    community
 Jury is a lay institution: outside the control of professional judges, their role is to find material facts and
    apply the rules of law explained by the judge

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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

   Juries deliberate in secret; they are not required to give reasons for their decisions, and are not accountable
    for them in any way
   The jury is in decline; but the institution retains a systemic importance because many of the most
    important criminal cases are jury trials
   The Advantages of the Jury:
     o 1. Are good finders of fact:
           Group deliberation leads to a thorough consideration of issues
           Collective recall: more evidence is remembered by the jury than any single juror
           Diverse knowledge and life experiences enrich decision-making; diverse biases are cancelled out
     o 2. Temper the law on behalf of the community:
           Juries can moderate or even ignore the law to protect individuals against state oppression, or
              mete out justice in a way that conforms to community values
           Freedom to apply the law flexibly, reflecting fairness and equity (soften a good law)
                Ex. Latimer
           Jury nullification: refusal to apply the law to factually guilty people (repudiating bad law)
                Ex. Morgentaler
     o 3. Educate the Public/Legitimize the System:
           Allows people to participate in the administration of justice
   The Risks Associated with the Jury:
     o 1. Bias: ability of jurors to be impartial might be compromised by pre-existing biases
     o 2. Lawlessness: rule of law may be compromised by juries that refuse to apply it
     o 3. Incompetence: juries may not be able to apply the law as well as a professional judge
     o I.e. juries may come to wrong decisions
   Ways to control risks to accuracy of jury verdicts:
     o Are mostly prospective – we try to prevent jurors from flouting their duty; we do not make them
         accountable for doing so
     o Jurors take an oath
     o Bias is controlled through the jury selection process (also: change of venue)
     o Trial judge instructs the jury
     o Rules of evidence limit the information that reaches the jury
     o Judge‟s power to review the evidence and comment on its value

JURY SELECTION PROCEDURE

   At the appellate level, the facts are so often a given already – so we forget that they are “decided”
   Jury is the body that determines what is true and not true based on its everyday experiences
     o So who gets to do this? Who are the people who decide who is credible and who is not?
   We spend a lot of time thinking about how juries are selected in order to be able to do this properly
   NOTE: it is very well accepted that prejudice plays a huge role in the jury selection process. Which ones
    do you think they will have based on the preconceptions you have about them.

1. Qualifications to be a Juror

   In each province, a Jury Act or Juror‟s Act sets out specific requirements for eligibility as a juror
   See e.g. s. 3 Juror’s Act (QC): juror must be a Canadian citizen, of age, on the list of electors
     o See s. 4: cannot be a lawyers, police officers, a person who does not speak English or French, etc.

2. Overview of the Selection Procedure (R. v. Find)

The entire process is designed to ensure jury impartiality. It randomly assembles a pool of appropriate
candidates from the greater community. The goal is a representative jury pool.


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Suzanne Amiel                                                                                                Prof. Alana Klein
Criminal Procedure                                                                                                   Fall 2010


    1. STAGE ONE: Pre-Trial Process [governed by provincial legislation]
          a. A “panel” / “array” of prospective jurors is organized to be the pool from which the jury
             will be selected (200-300 people)
    2. STAGE TWO: In-Court Process [governed by federal legislation (ss. 626-644 CC)]
          a. Selection of the jury from prepared panel, which occurs in open court, with accused present
          b. Exclusion of Members of the Jury Pool:
                  i. Judicial Pre-Screening: judge excuses those who identify themselves as having
                      uncontroversial bias (ex. related to accused) or personal hardship – s. 632
                 ii. Challenge of a Juror by Crown/Defence:
                          1. Peremptory Challenges (limited number; no reason necessary) – s. 634
                          2. Challenges for Cause (must prove the grounds of cause) – s. 638(1)
                                  a. Tried by two previously sworn jurors (s. 640(2))

3. Challenges to the Array

s. 629               Challenging the jury panel
                     (1) The accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud
                     or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned. […]
s. 630               Where a challenge is made under section 629, the judge shall determine whether the alleged ground of
                     challenge is true or not, and where he is satisfied that the alleged ground of challenge is true, he shall
                     direct a new panel to be returned.

R. v. Born with a Tooth (1993 Alta. QB)
Facts: Crown challenged the array on the grounds of partiality and wilful misconduct because the Sheriff
included 200 random prospective jurors and 52 aboriginal prospective jurors in the array, because the accused
is aboriginal.
Issue: Is this array “void” for partiality? Holding: Yes.
Reasoning (O’Leary J.):
 Sherratt: there are two fundamental elements of the criminal jury system  impartiality and
     representativeness
 Representativeness is guaranteed by ensuring that the pool is representative of the whole community, and
     then selecting jury panels form the pool on a random basis
 Artificially skewing the composition of a jury panel to accommodate the demands of a distinct segment of
     Canadian society would compromise the integrity of the jury system
 The value of the system would be eroded if the composition of jury panels could be manipulated,
     regardless of how well-intentioned the practice might be
 “There is no provision in the present law for jury panels which are „tailor-made‟ to suit the race, national
     or ethnic origin, religion, sex (etc) of accused persons”
Ratio: Picking a panel on the basis of the accused‟s race, in order to ensure that some members of the jury
will be of the same race, is inappropriate.

4. Challenges to the Poll

Certain prospective jurors may be excluded from the jury.

A. Judicial pre-screening allows the judge to excuse certain jurors for fairly uncontroversial reasons:

s. 632               The judge may, at any time before the commencement of a trial, order that any juror be excused
                     from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or
                     any challenge has been made in relation to the juror, for reasons of
                        (a) personal interest in the matter to be tried;
                        (b) relationship with the judge presiding over the jury selection process, the judge before whom

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Suzanne Amiel                                                                                               Prof. Alana Klein
Criminal Procedure                                                                                                  Fall 2010

                        the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective
                        witness; or
                        (c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that
                        the juror be excused.

B. Peremptory challenges allow Crown and defence to exclude certain jurors for whatever reason they want,
but only get a limited number:

s. 634               (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause
                     pursuant to section 638.
                     (2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to
                        (a) twenty peremptory challenges, where the accused is charged with high treason or first degree
                        murder;
                        (b) twelve peremptory challenges, where the accused is charged with an offence, other than an
                        offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment
                        for a term exceeding five years; or
                        (c) four peremptory challenges, where the accused is charged with an offence that is not referred to
                        in paragraph (a) or (b).

C. Challenges for Cause

s. 638(1)            (1) A prosecutor or an accused is entitled to any number of challenges on the ground that
                        (a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a
                        ground of challenge where it appears to the court that the description given on the panel
                        sufficiently designates the person referred to;
                        (b) a juror is not indifferent between the Queen and the accused;
                        (c) a juror has been convicted of an offence for which he was sentenced to death or to a term of
                        imprisonment exceeding twelve months;
                        (d) a juror is an alien;
                        (e) a juror, even with the aid of technical, personal, interpretative or other support services
                        provided to the juror under section 627, is physically unable to perform properly the duties of a
                        juror; or
                        (f) a juror does not speak the official language of Canada that is the language of the accused or the
                        official language of Canada in which the accused can best give testimony or both official
                        languages of Canada, where the accused is required by reason of an order under section 530 to be
                        tried before a judge and jury who speak the official language of Canada that is the language of the
                        accused or the official language of Canada in which the accused can best give testimony or who
                        speak both official languages of Canada, as the case may be.
                     (2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).
Note that there is no limit to the number of challenges for cause that may be made.

   Most often, challenges for cause have been on the basis of extensive pre-trial publicity
   However, the most controversial ground for a challenge for cause is bias

R. v. Williams (1998 SCC)
Facts: W is aboriginal and charged with robbery. During jury selection, he tried to challenge jurors for cause
on the basis that they were racist against aboriginal people.
Issue: What is the process by which to challenge jurors for bias?
Reasoning (McLachlin J.):
 “Lack of indifference” in s. 638(1)(b) means: juror‟s beliefs affect the way s/he discharges the jury
    function in a way that is unfair to the accused
     o Aim of challenging biased jurors is ensuring a fair trial for the accused (s. 11(d))
     o Juror bias can affect the way they assess witness credibility, the worthiness of the accused, the


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Suzanne Amiel                                                                                     Prof. Alana Klein
Criminal Procedure                                                                                        Fall 2010

         propensity of the accused to commit a crime, the credibility of the Crown (favourable)
    The problem is ascertaining when a juror may be biased (not indifferent between Crown/accused)
    Canada presumes jury candidates to be indifferent or impartial until that presumption is displaced.
     The process to displace it is:
     o Step 1. Is there a realistic possibility of juror partiality?
           This step is where the judge determines if s/he will permit challenges for cause
           Question is whether there is reason to suppose that jury pool may contain people who are
               prejudiced, and whose prejudice might not be capable of being set aside on directions from the
               judge. A reasonably generous approach is appropriate.
           Accused just needs to show a widespread prejudice exists in the community (no specific links
               to the trial are needed) – can do so with evidence, or ask the judge to take judicial notice
     o Step 2. Will specific candidates be able to act impartially?
           Defence here questions potential jurors to see if they harbour prejudices against people of the
               accused‟s race (if so, will they will be able to set them aside)
           Judge should confine this step to few questions, and tightly control follow-up questions.
Ratio: Canada assumes that jurors are impartial until the accused proves that there is a realistic possibility that
the jury pool contains people that are not indifferent, and that certain candidates exhibit that bias and will not
be able to set it aside.

R. v. Find (2001 SCC)
Facts: F is charged with 21 counts of sexual assault on three complainants aged 6 to 12. Prior to jury
selection, defence applied to challenge jurors for cause. TJ denied the application. F was convicted on 17
counts and appealed on the ground that the TJ erred in not allowing the challenge application.
Issue: Did the nature of the charges against the accused give rise to the right to challenge jurors for cause on
the ground of partiality? Holding: No.
Reasoning (McLachlin C.J.):
 The aim of the jury selection system: a fair trial. But a fair trial should not be confused with a perfect trial.
 Challenges for cause which will increase delays and intrude on jurors‟ privacy should be avoided.
 When should challenges for cause be granted under s. 638(1)(b)?
     o Accused must show a realistic potential that the jury pool may contain people who are not impartial,
         in the sense that even upon proper instructions by the TJ, they may not be able to set aside their
         prejudice. Has to satisfy the court on two matters to do so:
     o 1.Widespread bias exists in the community (existence of a material bias; attitudinal component)
     o 2. Some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an
         impartial decision (potential to affect the trial process; behavioural component)
 There is an assumption in Canada that the trial process can “cleanse the bias” that jurors may bring with
    them: swear an oath, opening addresses informing jury of their grave task, rules of procedure/evidence
    emphasize verdict depends on the evidence and the law, the TJ‟s instructions, guilt must be established
    beyond a reasonable doubt, knowledge of the presumption of innocence
 However, if an accused can overturn this presumption, the right to challenge jurors flows therefrom
 In this case, the accused argues that
     o The incidence of victimization means there are some victims of sexual assault in the jury pool, or
         friends thereof, who will be biased against the accused
     o The offence of sexual assault brings out strongly held views, emotions, that bias people against the
         accused in a case about sexual assault on children
     o The court basically says that they cannot take judicial notice of these facts; they are not proven nor
         obvious; furthermore, juries are not expected to be indifferent towards crimes  they should deplore
         child sexual abuse
     o No evidence of widespread bias
 Even if the accused could prove this widespread bias, there is no basis for the belief that the trial process
    would be unable to cleanse the jurors of this bias:
     o Unlike racial prejudice, which operates so as to connect the prejudice directly to the accused,

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Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

        prejudice against “sexual assaulters” does not mean the jury will think accused is guilty of the crime
     o  Racial prejudice is also not as amenable to “cleansing” – it operates largely subconsciously, less
        likely to be acknowledged by the holder
 The case for widespread bias is tenuous; even if proven, the link to actual juror behaviour is speculative,
   leaving the presumption that it would be cleansed by the trial process firmly in place.
Ratio: Not all forms of prejudice are amenable to judicial notice; some must be proven. If proven, does not
mean that the link to juror behaviour is obvious.

5. Interference with Jury Selection

   R. v. Latimer: Crown counsel and an RCMP officer prepared a questionnaire for jurors, asking them their
    views on a number of issues (religion, abortion, euthanasia, etc). 30 questionnaires were filled out by
    prospective jurors in a pool of 198 prospective jurors; 5 ended up serving on the jury. This was a “flagrant
    abuse of process” and necessitated a new trial.
   In Barrie, Ontario, Crowns were getting information from the police about prospective jurors, and not
    disclosing it to the defence. Raises fair trial concerns; privacy concerns for jurors.

X. TRIALS AND TRIAL RIGHTS

THE TRIAL STRUCTURE

1. The Trial Timeline

    1. Pre-trial conference
          a. Meeting to clarify issues/admit facts
          b. Encourages collaboration between the parties and improves the efficiency of the process
          c. s. 625.1
    2. Pre-trial motions
          a. Publication bans (s. 486)
          b. Charter motions for exclusion of evidence can be done via pre-trial motion (as well as voir
               dire during the trial)
    3. Jury selection
    4. Trial
          a. Crown’s opening statement
          b. Presentation of the Crown’s case
                     i. Crown attempts to prove all elements of charged offences beyond a reasonable doubt
                    ii. Does so by presenting witnesses (even physical evidence must be presented through
                        the testimony of a relevant witness)
                             1. Examination-in-chief of witness by Crown
                             2. Cross-examination by defence counsel
                             3. Re-examination to elaborate on issues that came up on cross-ex
                   iii. Close of Crown’s case
                             1. Opportunity for accused to present a motion for directed verdict
          c. Accused’s choice of calling evidence
                     i. No obligation to present evidence
                    ii. Runs the same way as the Crown if they choose to do so
          d. Closing statements
          e. Jury instructions in jury trials
                     i. Judge goes over all the evidence and provides guidance on points of law
                    ii. Jury will then enter into deliberations
          f. Verdict and Sentencing


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Suzanne Amiel                                                                                        Prof. Alana Klein
Criminal Procedure                                                                                           Fall 2010

                         i. Once the trier of fact has reached a verdict, court will reconvene and it will be read
                        ii. Sentencing can occur right away (with reasons)
                       iii. Sentencing hearing occurs later if necessary, with submissions by the parties

2. The Courtroom Players

   The Crown Attorney (Crown Policy Manual)
     o The role of the Crown is “a cornerstone of the criminal justice system”: strong advocates for
        prosecution AND Ministers of Justice responsible for fair operation of the criminal justice system
          System has to be fair to: accused, victims, public
     o R. v. Boucher (SCC):
          “the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what
              the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel
              have a duty to see that all available legal proof of the facts is presented; it should be done firmly
              and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor
              excludes any notion of winning or losing; his function is a matter of public duty”
     o R. v. Cook (SCC):
          Crown cannot adopt a purely adversarial role towards the defence
          Crown‟s job is to vigorously pursue a legitimate result to the best of its ability
     o Crown is more “part of the court” than an ordinary advocate
     o Counsel‟s responsibilities are public in nature; their actions/demeanour are fair, dispassionate,
        moderate; no signs of partisanship; open to the innocence of the accused
   See R. v. Brown: judge declared a mistrial on the basis of the Crown‟s opening statements that stated the
    Crown‟s charging policies and duties not to prosecute people they believe are innocent
     o Trial‟s fairness was irreparably compromised because Crown conveyed a personal belief in the
        accused‟s guilt, and gave them factual information which was not in evidence

   Defence Counsel (Skurka & Stribopoulos, “Professional Responsibility in Criminal Practice”)
    o The defence counsel‟s role is to advance the legal interests of the accused
    o In contrast the Crown, the defence lawyer‟s function is wholly partisan to their client
          They must raise every defence or technicality supported by the evidence, regardless of counsel‟s
            opinion of merit
          Must perform this duty regardless of guilt or innocence of the accused
    o Defence counsel has a parallel obligation to the court to be candid, honest, respectful – defence
        counsel is an officer of the court and has a positive duty not to mislead the court
    o Counsel also has a duty to maintain the client‟s confidences

TRIAL RIGHTS

1. The Right to Trial within a Reasonable Time: s. 11(b)

s. 11(b)             11. Any person charged with an offence has the right
                     (b) to be tried within a reasonable time.

NOTE: A s. 11(b) violation automatically triggers a stay of proceedings!

Kent Roach, “Askov”
 Askov suffered a 23-month delay between committal for trial and trial
 He argued his charges should be stayed for unreasonable delay under s. 11(b) of the Charter
 The political context: judges in Peel district were in a political struggle with the government to have more
   judges appointed and more courtrooms built
 Trial judge allowed the stay; OCA reversed; SCC overturned OCA, emphasizing that all accused persons

                                                                                                                     80
Suzanne Amiel                                                                                        Prof. Alana Klein
Criminal Procedure                                                                                           Fall 2010

    have a right to have their trial within a reasonable time, guilty OR innocent
   OCA had a crime-control outlook (imagining the guilty person waiting for trial); SCC had a due-process
    outlook (imagining the innocent person waiting for trial)
   SCC‟s mistake: they set a time limit on how long it should take for a trial to get underway  6-8 months
     o This led to something like 50,000 charges being stayed (or withdrawn by prosecutors)
   There was an outcry by victims and their families (esp. drunk-driving organizations)
   The government responded not by pouring resources into the system, but by encouraging efficiency at the
    trial courts – get „em in, get „em out
     o The due process victory of Askove had provoked forces that would lead to more efficient crime
          control and sympathy for victims

   Askov aftermath led to the quickest turnaround in SCC history: Morin
    o But the two differ mostly in tone, not content

                     ASKOV (1990)                                              MORIN (1992)
1. Length of delay                                         1. Length of delay
2. Explanation of delay                                    2. Waiver
   a) Crown conduct                                        3. Reasons for delay
   b) System/Institutional delays                             a) Inherent time requirements
   c) Conduct of accused                                      b) Actions of the accused
3. Waiver                                                     c) Limits on institutional resources
4. Prejudice to accused                                    4. Prejudice to accused

R. v. Morin (1992 SCC)
Facts: M was charged with drunk driving. She made her first appearance on February 23rd, 1988 and asked for
the earliest trial date. The trial was set for March 28, 1989. On her trial date, she brought a motion to stay the
proceedings pursuant to s. 24(1) of the Charter, arguing that the 14-month delay in bringing her to trial
violated her right under s. 11(b) of the Charter.
Issue: Was M‟s right to a trial within a reasonable time under s. 11(b) violated? Holding: No.
Reasoning (Sopinka J.):
 Purpose of s. 11(b): protection of the rights of the individual accused
     o Security of the person: anxiety/stigma of criminal proceedings
     o Right to liberty: pre-trial detention or restrictive bail conditions
     o Right to a fair trial: fresh evidence
 For a s. 11(b) analysis, the period to be scrutinized is the date of the charge to the end of trial; the length
    of time may be shortened by subtracting any periods of delay that have been waived
 Then see if this delay is unreasonable; the accused has the legal burden of proof throughout
 The Factors to be Considered in Analyzing How Long is Too Long:
     o 1. The Length of the Delay
           If this length is found to be unexceptional, no inquiry is necessary
           Only if the delay appears unreasonable here, is the rest of the inquiry conducted
     o 2. Waiver of Time Periods
           If accused waived in whole/part their right to complain of the delay, this may solve the matter
           Waiver must be clear & unequivocal, with full knowledge of the rights being waived
           If the waiver is “implicit,” it needs to be with conduct that demonstrates the above; if the mind
                of the accused hasn‟t turned to waiver and is not aware of what their conduct signifies, this is not
                waiver
     o 3. The Reasons for the Delay, including
           a. Inherent Time Requirements of the Case
                  Complexity of the trial


                                                                                                                    81
Suzanne Amiel                                                                                   Prof. Alana Klein
Criminal Procedure                                                                                      Fall 2010

                Intake requirements: bail, retention of counsel, administrative paperwork, disclosure
                Need for a preliminary inquiry
           b. Actions of the Accused
                All pre-trial motions take time; if accused brought many, has to expect this will delay trial
           c. Actions of the Crown
                Adjournments requested, failures in disclosure, motions
           d. Limits on Institutional Resources
                This is the period that stars to run when the parties are ready for trial but the system cannot
                   accommodate them
                We live in a world of scarce resources; but trials must be held within a reasonable time
                There is a limit to the delay that can be tolerated on account of resource limitations
                8-10 months  NOT A STRICT GUIDELINE
           e. Other Reasons for Delay
     o 4. Prejudice to the Accused
           Prejudice to the accused can be inferred from long delay
           Parties may bring evidence to support/rebut the presumption of prejudice
 In this case, the problem was institutional limitations (12-month delay); parties were ready for trial within
    six weeks. 12 months is long; but accused suffered no prejudice  no s. 11(b) violation
Ratio: New, weaker test for s. 11(b) violation.
Klein on Morin:
 The test in Morin did not really change the factors set out in Askov; put them in different order which
    reflected the Court‟s more wishy-washy and apologetic approach
 Another subtle change between Askov and Morin:
     o Askov: virtually irrebuttable presumption of harm to the accused from unreasonable delay
     o Morin: inference of harm, which is stronger the longer the delay
 Critique of Morin: does the accused now have to show some kind of prejudice in order to get a stay for
    unreasonable delay? Under Askov, prejudice was assumed. Under Morin, it arguably needs to be proved.
 Does the accused now have to be diligent in pursuing a trial within a reasonable time? On the facts in
    Morin, seems like it! This is a BIG change from Askov (the Court finds significance in the fact that M did
    not avail herself of the Crown letter sent out asking if people wanted earlier court dates).

What about delay between the commission of the offence and trial?
 In R. v. L (WK) (1991 SCC), accused was charged with a variety of sexual offences against his daughter
  ranging over a 28-year period. Accused argued that the 30-year delay between commission and trial
  violated his s. 7 and 11(d) rights.
 Fairness of a trial is not necessarily affected by a long passage of time – this needs to be proven
 Court said there is no statute of limitations on indictable offences; court cannot create one
 Delay is common in cases of sexual abuse; victims need to be psychologically ready

2. The Right to Counsel at Trial: s. 7

   s. 10(b) ensures a right to consult counsel upon detention; it does NOT provide a general and universal
    positive obligation on the State to provide counsel for trial (Prosper)
     o Unlike in the US, in Canada there is no “right to an attorney” for anyone facing criminal charges
   What Canada does have is provincial legal aid programs, funded jointly by the federal and provincial
    governments
     o Gives people below a certain income level free counsel
   What about people who are not eligible for legal aid but still cannot pay standard legal fees?
     o They are pretty much out of luck, unfortunately.
   The court does have the power under s. 7 to appoint counsel if the accused lacks the means to retain
    counsel, and lack of counsel would render the trial unfair (R. v. Rowbotham)

                                                                                                               82
Suzanne Amiel                                                                                  Prof. Alana Klein
Criminal Procedure                                                                                     Fall 2010

     o   In these cases, the trial judge has to stay the proceedings until counsel for the accused is provided
           This is clearly an appropriate remedy under s. 24(1) of the Charter
           When it is exercised, either Legal Aid or the Crown has to step up and fund counsel for the
              accused
     o Factors to consider in giving this remedy: complexity of the trial, seriousness of the offence, mental
         capacity of the accused (generally, however, if all these factors are going in the same direction, the
         person is eligible for legal aid)
     o This is now called a Rowbotham application (and the stay is a Rowbotham order when it is accepted)
   How is this power of the court reconciled with the fact that s. 10(b) does not provide a positive right to
    state-funded counsel? (G.(J.))
     o s. 7 does not provide an absolute right to state-funded counsel at all criminal hearings
     o It provides a limited right to state-funded counsel to ensure a fair hearing
     o Three conditions for this to be given:
        1. Person must have applied for and been denied legal aid
        2. Judge must decide that this person lacks the means ($) to employ counsel (despite the finding of the
        legal aid officials)
        3. Case is sufficiently complex to warrant the appointment of counsel, taking into consideration the
        capacity of the accused to comprehend the issues before the court
   Criminal Code Provisions that allow judges to appoint counsel
     o ss. 672.24, 672.5, 684, 694.1




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