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CANADIAN CRIMINAL PROCEDURE Professors Bob Aloneissi and Ed O'Neill 1

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CANADIAN CRIMINAL PROCEDUREProfessors Bob Aloneissi and Ed O'Neill


Lecture 1: Introduction and Overview of Criminal ProcedureWhat is Criminal Procedure?

- A catchall phrase used to describe the legal rules that make up the entire criminal process.- Since its introduction in 1982, the Charter has transformed the criminal process, pushing the rights of those

suspected and accused of crime to the forefront of public and legal discourse.

Overview of the Canadian Criminal Process1. Detection and Investigation

A) Section 9B) Section 8C) Section 10(a) and (b)

2. Initiating the ProcessA) Compelling Attendance in CourtB) Swearing the Information and Confirming or Issuing ProcessC) Arrest

3. Types of OffencesA) Indictable OffencesB) Summary OffencesC) Hybrid Offences

4. Intake ProceduresA) ArraignmentB) BailC) Prosecutorial DiscretionD) Disclosure

5. Pre-Trial ProceduresA) An Accused’s ElectionB) The Preliminary InquiryC) Pre-Trial Applications

6. Plea Bargaining and the Guilty Plea7. The Trial8. Sentencing9. Appeals

Herbert Packer’s 2 (Competing) Models of Criminal Justice- For Packer, the criminal process is best understood as a series of compromises or choices as between the

values that populate the two competing models he defines

1. Crime Control Model (“the assembly line”) 2. Due Process Model (“the obstacle course”)

- The main concern of crime control is theefficient repression of criminal conduct,which acts as a conveyor belt operated by thepolice and Crown to secure guilty pleas

- Emphasis on factual guilt (probably did it)

- Not the reverse of CC Model (does not denythe social desirability of repressing crime) justapproaches it with different values

- Accuseds are seen as vulnerable and in need ofprotection from the potential abuse of officialpower from investigation to appeal.


- Informal fact-finding procedures controlled bypolice and prosecutors are preferred overformal procedures overseen by the courts.

- Broad and largely unfettered police powersto detain, search and interrogate suspects, sothey can efficiently separate the innocentfrom the guilty as early as possible in theprocess

- The system should move the undoubtedlyguilty individuals as quickly as possibletoward conviction and punishment

- Real evidence should be admitted no matterhow it is obtained (even if collected illegallyor unconstitutionally)

- The search for truth should take precedenceover concerns about the manner in whichevidence was acquired (misconduct is not aconcern)

- Pre-trial release should be rare, as it onlyserves to discourage the timely resolution ofcharges by guilty defendants (pre-trialdetention persuades guilty plea)

- Limit appeals- Should resolve as many matters w/ guilty pleas- Trials are to be avoided b/c they are expensive

and an unnecessary drain on the system

- Focuses on quality control and fairprocedures. This is achieved by strictadherence to legal rules and procedures bypolice officers, prosecutors and judges.

- The process is an obstacle course operated bythe defence who are attempting to throw uproadblocks with the final goal of having thecharges withdrawn (argue the client’s rightshave been violated in some way)

- Emphasis on legal guilt (BRD)- Restraints on police power = “the means” are

just as important as “the ends” (protect therights of suspects)

- Release people before trial because they arepresumed to be innocent

- Guilty pleas are frowned upon for two reasonsand should be rare (prefer trials)

1. Preclude the discovery and remedyingof procedural irregularities

2. Risk that innocent persons might pleadguilty to obtain some advantage

- Trials are considered appropriate forums topursue claims of police and prosecutorialmisconduct (Charter breaches)

- Encourage appeals = ACs should have easyaccess to appellate relief

Impact of the Charter on Criminal Procedure (EXAM)Before the Charter

- Before 1982, individual rights in Canada were not found in any formal constitutional document. The BritishNorth America Act, 1867 did little more than facilitate Confederation

- The Canadian Bill of Rights of 1960 changed very little. Although it granted rights to those suspected andaccused of crime, as a mere federal enactment it lacked constitutional status.

- Prior to the Charter in 1982, courts used the principle of legality as an unwritten principle of justice toquestion the lawful authority of the action for interfering with an individual liberties

- The principle of legality – interference with an individual’s rights must be premised on express legalauthority; No crime or punishment can exist without legal grounds.

- Required that any legislative encroachment on an individual's common law rights of liberty or property beset out “plainly, if not in express words at least by clear implication and beyond reasonable doubt”

- This created 2 main drawbacks:1. Allowed the gov to infringe upon citizen’s liberty through clear legislative intention in statute

- War Measures Act → Used to stop lawful protests (intense, broad arrest and don’t need tocontact counsel)

2. Illegally obtained evidence was always admissible and thus the vindication of rights depended oncivil suits and police complaint procedures

- A combo of high costs and low damage awards deterred most potential civil claimants


The Introduction of the Charter- The Charter in 1982 changed the legal landscape from a crime control model to a due process model AND

included a remedies section (a right without a remedy is hollow - more power to the judiciary)- The SCC in Hunter v Southam saw the Charter as always being a limit on state power, never a source or

creating state and police power- In making this critical observation about the Charter’s purpose, the Court implicitly reaffirmed the

continued importance of the principle of legality- “Control the superior authority of the state” - Bev- “The judiciary is the guardian of the constitution” - Dickson

- The Charter's legal rights provisions (sec 7 to 14) impose constitutional restraints upon the investigativepowers of police, which are supplemented by guarantees aimed at ensuring fair treatment for individualsonce they are detained or charged with a crime throughout the criminal process

Starting Point is Section 7- Residual power when a claim under ss. 8-14

falls short- Provides procedural and substantive fairness

Everyone has the right to life, liberty and security ofthe person and the right not to be deprived thereofexcept in accordance with PFJs

Investigative Process Rights are Sections 8 to 10 Section 8 → The right to be secure againstunreasonable search or seizureSection 9 → The right not to be arbitrarily detained orimprisonedSection 10 → The rights triggered on arrest ordetention, including

(a) to be informed promptly of the reasonstherefor;

(b) to retain and instruct counsel without delay andto be informed of that right; and

(c) to have the validity of the detention determinedby way of habeas corpus and to be released ifthe detention is not lawful

Adjudicative Process Rights is Section 11 Ensures the right to fair treatment for any personcharged with an offence including

(a) to be informed without unreasonable delay ofthe specific offence;

(b) to be tried within a reasonable time; etc

Section 12 Everyone has the right not to be subjected to any cruelor unusual treatment or punishment

Immunity Right in Section 13 A witness “has the right not to have any incriminatingevidence so given used to incriminate the witness inany other proceedings, except in a prosecution forperjury or for the giving of contradictory evidence”

Interpreter Right in Section 14 A party or witness has the right of an interpreter

- The constitutional guarantees found in the Charter are not absolute. Every right or freedom in the Chartermay also be subject to any further limitations that the government is able to justify under section 1.


- As the pre-Charter experience illustrates, rights are hollow without meaningful remedies.- Remedies:

Section 24(1) Where a right or freedom has been infringed or denied,there is authority vested in courts of “competentjurisdiction” under section 24(1) to grant any remedy“the court considers appropriate and just in thecircumstances”

Section 24(2) Empowers courts to exclude unconstitutionallyobtained evidence if satisfied that, “having regard to allthe circumstances, the admission of it in theproceedings [could] bring the administration of justiceinto disrepute.”

Section 52 The Constitution is the “supreme law of Canada, andany law that is inconsistent with the provisions of theConstitution is, to the extent of the inconsistency, of noforce or effect”

- This discretionary exclusionary power positions the Charter in the middle ground between the conflictingextremes of Packer's due process and crime control poles = LOOK AT THE GRANT TEST

- Canadian courts are empowered to do two important things that were not possible before the Charter.1. Courts can now assess the adequacy of legislative enactments that interfere with fundamental

individual rights against minimum constitutional standards2. Criminal trial courts are now authorized to scrutinize investigations and prosecutions and ensure

they meet basic constitutional standards. The means which the police acquire evidence against anAC can be challenged and if a rights violation is made out the evidence may be excluded

Application of the Charter1. Applies to “Parliament and the government of Canada” and “to the legislature and government of each

province” and anyone who derives authority from the legislation or the state (police, AG’s, ministers, etc)- All legislation must comply with the Charter

2. Does NOT apply to private individuals- Private security guards are not gov agents nor employees and they are not subject to gov control;

while their work may overlap with gov interests in preventing and investigating crime, it cannot besaid the security guards were acting as delegates of the gov carrying out its policies or programs

3. Applies to Agents- The Charter applies to the actions of private individuals who assist police in response to a specific

direction or request because the individual becomes a state agent- State agency test: “Would the exchange between the AC and the informer have taken place in the

form and manner in which it did but for the intervention of the state or its agents?” (R v Broyles)4. The Charter will almost never apply outside of Canada

- If the Charter does not apply, then a remedy under the Charter is not available- R v Harrer → If an accused is arrested and investigated in the US and US officials don’t give the

accused a right to counsel warning as required by sec 10(b), this will have no effect on theadmissibility of that accused’s statement at their Canadian criminal trial


- R v Cook → Two Canadian police officers who travel to the US to interview a suspect for a murderin Vancouver were required to comply with the Charter

Jurisdiction over Criminal Procedure and Criminal Prosecutions- The federal and provincial governments share responsibility over criminal procedure1. Federal Constitutional Authority

- Sec 91(27) gives the Parliament of Canada exclusive authority over “Criminal Law, including…Procedure in Criminal Matters”

- Parliament alone has the power to define what constitutes a crime and establish the rules relating tothe operation of the criminal process

- CRIMINAL LAW = (1) valid criminal purpose (2) backed by prohibition and (3) has a penalty- Parliament also has the authority to establish, maintain, and manage “Penitentiaries” per s. 91(28)

- Offenders who are sentenced to a period of imprisonment of two years or more enter thefederal correctional system

- Parliament has the power to appoint SC justices per s. 962. Provincial Constitutional Authority

- Sec 92(14) gives exclusive authority on the provinces to make laws related to “The Administrationof Justice in the Province, including the Constitution, Maintenance, and Organization of ProvincialCourts, both of Civil and of Criminal Jurisdiction … ”

- Law enforcement is primarily the responsibility of the provinces per s. 92(14)- Broad responsibilities over the administration of criminal justice, including the court system, the

police, criminal investigation and prosecutions, and corrections- Responsible for introducing policing statutes (provincial police) and appointing Crowns- Sec 92(6) also gives the provinces authority over “Reformatory Prisons in and for the Province”

- Offenders sentenced to less than two years of imprisonment will serve their sentence inprovincial correctional facilities

- Section 92(15) enables the provinces to create penalties for violations of provincial statutes

Sources of Criminal Procedure1. Legislation (both federal and provincial)

- The Criminal Code, Controlled Drugs and Substances Act, YCJA- Criminal procedure falls exclusively under Parliament's constitutional authority and it is rare

for provincial legislation to have any direct bearing on the criminal process. However, there areareas where provincial legislation will overlap with federal criminal legislation.

- Ex: Each province has legislation regulating the licensing of motorists and registration of vehiclesand prescribing the rules of the road. At the same time, Parliament has seen fit to criminalizecertain activities associated with driving, creating offences such as dangerous and impaired driving

2. Rules of court- The appellate court, superior trial court, and provincial court create rules of court to manage

criminal proceedings before them3. Constitutional law

- The Charter → Rules flow not just from the Charter's express wording but also from theirinterpretation by the courts.

4. The Common Law- Judge made law through interpreting statutes and providing insight to sections of statutes with

legislative gaps (like a judge providing reasoning to understand the powers of s. 8)


- Judiciary should confine itself to incremental changes that are necessary to keep common law instep with the dynamic and evolving fabric of society; should leave those changes with complexramifications for Legislature.

- Best example: Creation of new power = Ancillary Powers Doctrine

The Ancillary Powers (Waterfield Test) (COMMON LAW - Shit comes from England)- The SCC has been quite willing to use its “common law” law-making authority to create new police powers- This law-making device involves two steps

1. Do the impugned actions of police fall within the scope of their broad duties under statute orthe common law?

- Duties come from both CL and statute (i.e. protect life)2. Assuming YES, is the act reasonably necessary to carry out that duty?

- Weigh the apparent benefits (law enforcement and public safety) against the interferenceswith individual liberty

- If the benefits are characterized as outweighing the costs, the action is “justifiable” and anew police power is born

- R v Dedman (1985 SCC)- Contentious decision (5-4 split) about random check-stops by police- The SCC transformed the Waterfield Test into a basis for recognizing and creating an entirely new

police power: the authority of police to conduct sobriety check-stops of motorists.- The law-making authority that Dedman recognized lay dormant for close to two decades where the

SCC refused to recognize new police powers leaving it to Parliament to create new legislativepolice powers

- R v Wong- Said “it does not sit well for the courts... to widen the possibility of encroachments on these

personal liberties. It falls to Parliament...”- R v Mann (2004 SCC)

- Re-visited the Waterfield Test (now the Ancillary Powers Doctrine)- The SCC used the ancillary powers doctrine to recognize an investigative detention and

protective search power- Since Mann, the Court has used the APD to recognize a number of unprecedented police powers

a. Power to ask drivers questions about alcohol consumption and request their participating insobriety tests without first complying with s. 10(b) (R v Orbanski; R v Elias)

b. Power to conduct criminal investigative roadblock stops where such stop is tailored to theinformation possessed by police, the seriousness of the offence being investigated and thetemporal/geographic connection b/w the situation being investigated and the timing and location ofthe roadblock (R v Clayton)

c. Power to use a drug-detecting dog to sniff at an individual as well as his or her belongings,where the police have reasonable grounds to suspect the individual is carrying narcotics, in order toconfirm or refute that suspicion (R v Kang-Brown; R v M(A)).

- R v MacDonald (2014 SCC)- Application of APD to safety searches (uses two-step Waterfield test)1. Does the action fall within the general scope of a police duty imposed by statute or recognized at

common law?- Yes = Common law police duty to protect life and safety


2. Does the action constitute a justifiable exercise of powers associated with the duty? In other words,is police action reasonably necessary? This requires weighing of a number of factors:

1. The importance of the performance of the duty to the public good2. The necessity of the interference with individual liberty for the performance of the duty3. The extent of the interference with individual liberty

- 4:3 held in balancing these three factors that safety searches do not violate sec 8 as long as thepolice have reasonable grounds to believe that the search is necessary to eliminate an imminentthreat to the safety of the public or the police and that the search is carried out reasonably

Lecture 2: Arbitrary Detention and ArrestGeneral Burdens of Proof

The Hierarchy of Grounds for Police Interference has 3 levels:Beyond a Reasonable Doubt = The ultimate burden of proof at trial (Crown)

↓Reasonable Grounds to Believe (RPG) = Highest level of police interference permitted (arrest)

SUBJECTIVE-OBJECTIVE TESTTriggers right to counsel (sec 10(b))

Ex: Allows for the police to demand submission of a breath sample for the intoxilyzerA fail on an MSD provides RPG

“An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds,of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead

any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that theperson charged was probably guilty of the crime imputed”

It is something less than proof BRD but something more substantial than reasonable suspicion↓

Reasonable grounds to suspect and RPG are similar in that they both must be grounded in objective facts butreasonable suspicion is lower standard as it engages the reasonable possibility, rather than probability of crime

↓Reasonable Suspicion

SUBJECTIVE-OBJECTIVE TESTEx: Investigative Detention (police are permitted to detain an individual in furtherance of their investigation)

In most cases will trigger 10(b) notification.Ex: Gives grounds for using a roadside screening device (MSD) which does not trigger a right to counsel but a

fail triggers RPG to demand a breathalyzer sample, which requires 10(a) and (b)↓

Rumour/InnuendoNo right of police interference, although they may choose to investigate.

- *Keep in mind about the new impaired driving law → Police can now pull anyone over for a “sobrietycheck” and demand the occupant of the vehicle to blow into a MSD (mandatory screening device) todetermine whether there is alcohol in the body of the occupant.

- At this point, no need to consult a lawyer and does not trigger sec 10… but a fail does

Section 9 = DETENTION- As Justice Iacobucci said, the heart of a free and democratic society is the liberty of its subjects.- A vital feature of individual liberty is the right to move freely without unjustified state interference.


- However, liberty is not absolute. Even in the freest of societies, public safety concerns will sometimesjustify state interference with an individual's freedom of movement

- Sec 9 of the Charter → Everyone has the right NOT to be arbitrarily detained or imprisoned

Pre-Charter- The prohibition on unlawful deprivations of liberty was known as the “principle of legality”- At common law, there was only one recognized means by which state officials could suspend an

individual's liberty = arrest- Today, arrest powers are derived exclusively from statute (CCC eliminated the CL rules of arrest)

The Charter- Sec 9 serves two important functions:

1. It permits constitutional scrutiny of the decision to detain in individual cases. Accordingly, when apolice officer detains or arrests, section 9 supplies a basis for assessing the constitutionality of thatencounter

2. Permits courts to assess the substance of statutory and common law powers authorizing detention.It prescribes minimum constitutional standards that must be met by any law empowering stateofficials to interfere with people's freedom of movement

- In R v Grant, the Court recognized that:- “The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state

interference… s. 9 guards not only against unjustified state intrusions upon physical liberty, butalso against incursions on mental liberty by prohibiting the coercive pressures of detention andimprisonment from being applied to people without adequate justification. The detainee's interest inbeing able to make an informed choice whether to walk away or speak to the police is unaffectedby the manner in which the detention is brought about…”

Elements of Section 91. State action (gov, police)2. Resulting in an individual being “detained or imprisoned” (back of a police vehicle, locking cell, police

surrounding a citizen on the street, etc)3. In an “arbitrary” manner.

- If each is established, the affected individual may apply for relief under one of the Charter'sremedial provisions

- Triggering Section 9 = IMPRISONMENT AND DETENTION- Imprisonment is straightforward (in prison = total or near total loss of liberty) so the more

contentious issue is “detention” (lots of grey area)- Absent detention, police enjoy considerable freedom in questioning suspects.- If the detention threshold is crossed, this triggers section 10

- First, if the police lack the requisite legal grounds to detain, s. 9 will be violated.- Second, detention also triggers informational duties under s. 10 where a detained suspect

MUST be informed of the reasons for detention (section 10(a)) and apprised of the right toconsult counsel (section 10(b))

R v Therens (1985 SCC)- Deals with detention (s. 9) and the application of s. 10(b) (right to retain and instruct counsel) to drivers

who are arrested and charged with impaired driving


- Facts: Police subjected a motorist to a breath demand. He was taken back to the police station, took andfailed a breathalyzer test, and was arrested. At the time of the demand, police did not inform him of hisright to counsel, which section 10(b) requires on “detention”

- Issue: Was the motorist detained at that time when demanding the breath demand but before hisarrest?

- Holding: YES it was a detention as to refuse would have resulted in a criminal charge. Any criminalliability for failure to comply with a demand or direction of a police officer must be sufficient to makecompliance involuntary.

- Breathalyzer was a violation of the motorist’s 10(b) rights- Was a breach, warranting exclusion of the breathalyzer certificate under 24(2)- Court recognized that a detention also arises when police assume “control over the movement of a

person by a demand or direction which may have significant legal consequence and prevents orimpedes access to counsel”

Therens Recognized Three Types of Detention (sec 9) (KNOW FOR THE EXAM)- Such detention triggers one’s right to know what they are being detained for and right to counsel (sec 10)- The grey area here is psychological detention- In Grant, the SCC reaffirmed the continued relevance of these three categories1. Physical Detention or Restraint

- Where police take physical control over a suspect by manually handling him or her in a mannerthat is more than fleeting or trifling (they restrain or detain them - need physical contact)

- Not Physical Detention Examples1. Not where police seen to block or prevent freedom of movement in a non-physical way2. A fleeting touch is probably not enough to result in detention (Grant)

- Physical Detention Examples1. Police officer grasps an individual’s arm (R v Hanano [2007] MBQB)2. Police officer handcuffs a suspect (R v Greaves [2004] BCCA)3. Police officer directs a person to the backseat of a police cruiser (R v Elshaw [1991] SCC)4. Police officer takes physical control of the suspect (R v Feeney [1997] SCC – AC detained

when police shook his leg and told him to get out of bed)5. Non-consensual searches of a suspect’s clothing or body (R v DeBot [1989] SCC)6. Non-consensual searches of a suspect’s personal belongings, if the search is performed in

the suspect’s presence (R v Rube [1992] BCCA)- Cases where pedestrians have argued that police positioned themselves or their vehicles to prevent

them from leaving have been decided by psychological detention (w/o legal compulsion)2. Psychological Restraint WITH Legal Compulsion

- IS THERE A LEGAL DUTY TO COMPLY WITH POLICE? This form of detention ariseswhenever a person may be punished for legally failing to comply with police directives.

- Examples1. Drivers are detained whenever police stop them for any purpose2. Drivers subject to breath sample demands are detained3. Legally compelled to stay and blow in a breathalyzer or you will get a refusal charge

3. Psychological Restraint WITHOUT Legal Compulsion- Where one thinks they are legally compelled to stay and comply with police requests, or that they

are detained, but legally are not or do not have any legal obligation to comply- A person is detained where they submit or acquiesce in the deprivation of liberty and reasonably

believe that the choice to do otherwise does not exist (or is suspended)


- Therens ruled that it is an Objective Test = Reasonable Person Standard- Accused’s evidence is relevant here for the court in understanding psychological restraint!- Whether the police believed subjectively they were not detaining a person does not matter

- The reality is that Parliament and the Courts say police are generally permitted to approach peopleand ask them questions without any particularized suspicion and without any need to inform themof their legal status or rights.

- However, people often assume that they need to comply with police officer directive and request,and thus, will generally go along with their requests

- There is an imbalance of power between the state and the public- **Turning point is when a suspect submits to police authority under the reasonable belief that they

have no choice otherwise**- When it comes to psychological detention, the challenge is the line between consensual and

coerced encounters- Grant Identifies a List of Relevant Factors

- Affirmed Therens’ three definitions of detention and the test is objective (24 yrs later)- TEST: Under Grant, the question is “whether the police conduct would cause a RP to

conclude that he was not free to go and had to comply with the police direction or demand”- The SCC subtly narrowed Therens definition's scope

- The Court stated that “not every trivial interference with liberty attracts Charterscrutiny” rather, only the person “whose liberty is meaningfully constrained hasgenuine need of the additional rights accorded by the Charter to people in thatsituation”

- Detention arises when the deprivation of liberty may have legal consequences- Objective Test

- The suspect’s circumstances and perceptions are both relevant in assessing thereasonableness of any perceived power imbalance between the individual and thepolice, and thus, the reasonableness of any perception that he or she had no choicebut to comply with the police directive.

- The claimant's testimony will be the best source of such evidence, but since the testis objective a claimant's failure to testify is not fatal to finding a detention (Lee)

R v Grant (2009 SCC)- Facts: Grant, a black man, was walking on the sidewalk of a Toronto street at midday when, according to

two plainclothes police officers, his manner and clothing attracted their attention. The plainclothes officersrequested that a nearby uniformed officer “have a chat” with Grant. The uniformed officer approachedGrant head-on and stopped directly in his path. The officer asked Mr. Grant “what was going on” andrequested his name and address. In response, Grant produced a provincial health card. Grant, behavingnervously, adjusted his jacket, prompting the officer to tell him to “keep his hands in front of him.” Bythis time, the two plainclothes officers had also approached, flashed their badges and stood behind theuniformed officer. Grant was asked if he was carrying anything that he “shouldn't have” and Grant admittedto being in possession of marijuana and a firearm. He was then arrested.

- Issue: Was Grant detained? Was his right to be free from arbitrary detention (s.9) and right to speak to alawyer (s.10(b)) violated?

- Holding: To determine if a reasonable person in the individual's circumstances would conclude that he orshe had been deprived by the state of their liberty, the court may consider the following factors:


1. The circumstances giving rise to the encounteras they would reasonably be perceived by theindividual - What was the officer’s purpose inapproaching or questioning the suspect?

- If the purpose was non-adversarial, thendetention is unlikely

- Ex: Whether the police were providing generalservices and inquiries

- Responding to an emergency call andassuming control over the scene to askif everyone is ok is not a detention

- Neighbourhood policing initiatives isnot a detention (it can cross the linehowever into detention)

- Ex: Police singling out an individual for a“focused investigation” or “focused suspicion”will often rise to a detention

2. The nature of the encounter = police conduct,including the language used, use of physicalcontact, the place where the interactionoccurred, duration, presence of others, etc.

- Longer the duration, more likely a detention- If a police officer grabs your arm, wrist, etc.,

much easier to establish detention but a merebrushing of a shoulder not so much

- Words used by the officer- Says “can I talk to you for a second to

ask a question” or “is everything ok”(not likely detention) versus STOP! orSTAY THERE! (likely detention)

- Actions used by the officer- A single forceful act or word may be

enough to cause a RP to conclude thathis or her right to choose how torespond has been removed

- Ex: No RP would feel free to walkaway after a police officer points athim or her and issues an authoritativecommand to “Get out of your car!”

3. The particular characteristics of the individualincluding race, minority status, age, and levelof education or sophistication.

- Someone who is young or much smaller in sizeor Indigenous or other minority, it is easier toestablish a detention (Lee)

- Application:- The preliminary approach and general questioning of Grant was not enough to trigger a detention

because “a RP would not have concluded he was being deprived of the right to choose how to act”- But a detention arose when the uniformed officer told him to “keep his hands in front of him.”- While in some cases such a statement might be viewed as a precautionary directive, here the

encounter was “inherently intimidating” by the arrival of two additional police officers who flashedtheir badges before taking up tactical positions, the fact that Grant was being singled out, theposing of probing, interrogative questions, and Grant's youth and inexperience

- The officers admitted that they had no legal grounds to have a reasonable suspicion to detain Grant,and therefore, the detention was arbitrary


- Grant makes it possible for general inquiries by police to become detention at some point. Wouldhave to look to the objective RP test in Grant to determine when this occurs in any given case

R v Suberu (2009 SCC)Facts: A police officer attended a liquor store (LCBO) in response to reports that two suspects were attempting touse a stolen credit card. On entering the store, the officer saw another police officer speaking with a store employeeand another man. At this point, Mr. Suberu walked past the officer toward the exit and told him, “he did this, notme, so I guess I can go.” The officer followed Mr. Suberu outside and said “wait a minute. I need to talk to youbefore you go anywhere.” While Mr. Suberu was seated in the driver's seat of a van, but turned outward, facing theofficer, there was a brief exchange during which the officer asked about Mr. Suberu's relationship to the man insidethe store, where the two men had come from and who owned the van. As they spoke, the officer received furtherinformation over his radio linking the van and Mr. Suberu to the use of a stolen credit card at other locations earlierin the day (Walmart). The officer then asked for Mr. Suberu's identification and vehicle ownership. As he did so, hesaw shopping bags inside the van from Walmart (plain view) and arrested Mr. Suberu.Issue: Applying the reasonable person standard of Grant, was Suberu psychologically detained without legalcompulsion to do so and was therefore entitled to a Charter caution?Holding: Would a reasonable person have felt compelled to stay?

- NO. The officer was trying to sort out the situation and reasonably believed Suberu was somehow involved- Ratio: Police can engage in preliminary questions without giving rise to section 9 or 10(a) and (b)***- When the officer said “wait a minute, I need to talk to you” there was no move to obstruct, the conversation

was brief, it was not demanding or aggressive (didn’t satisfy any of the three factors from Grant)- Suberu did not testify, thus, the personal characteristics aspect of the test could not be applied and there was

no evidence of whether Suberu felt subjectively that he could not leave- Shows how Grant and Suberu based on facts can lead to different results

R v Lee (2020) → Racialized minorities are more likely to feel detainedFacts: One evening, five young racialized men, including the 20 year old AC, were gathered in a private backyardof a townhouse when three police officers arrived. The young men appeared to be doing nothing wrong. They werejust talking. Two officers entered the backyard, without a warrant or consent. They immediately questioned the menand requested documentary proof of their identities. The third officer patrolled the perimeter of the property, thenstepped over the low fence enclosing the backyard and directed one of the men to keep his hands where he couldsee them. One officer questioned the AC, demanding that he produce ID and asking him what was in the satchel hewas carrying. The AC fled, was pursued and arrested, and found to be in possession of a firearm, drugs, and cash.Issue: Was Lee arbitrarily detained? = YESHolding:

- SCC held detention (psychological detention without legal compulsion) occurred the moment when thepolice entered the backyard

- The circumstances of the police entry into the backyard effected a detention that was both immediate andarbitrary. The officers came in without warning and without any reasonable suspicion of a crime (someonejust saying that drug dealing was happening wasn’t enough)

- Since they didn’t have reasonable suspicion, what they did was illegal.- Relevant Grant factors → The particular characteristics of the individual including race, minority status,

age, and level of education or sophistication- A RP imbued with the experiences that accompany the accused’s circumstances would conclude that there

was a detention from the moment the officers entered the backyard and started asking questions. Courtsmust appreciate that individuals in some communities may have different experiences with police thanothers and such may impact upon their reasonable perceptions of whether and when they are being detained


- At the detention stage, the analysis takes into consideration the larger, historic, and social context of racerelations between the police and the various racial groups and individuals in our society.

- The reasonable person in the shoes of the accused is presumed to be aware of this racial context.- All of the five men in the backyard were part of racialized groups and under the age of 20. Court concluded

that how they perceived themselves as racial minorities would have an effect in their mind whether theywere free to go or not when confronted by the police

- Interesting is that the accused, Lee, testified that he didn’t feel detained. However, the test is objective!!- Although having evidence from the accused about whether they felt detained is useful, it is an objective test- The SCC found that someone is “detained” when an ordinary person in the same situation would think that

they weren’t free to leave and had to comply with police demands.- Mr. Le was a member of a racialized community in a low-income area. Members of racial minorities and

people living in low-income areas often have more negative police contacts than other people do. Anordinary person stopped by the police many times before would think they had to do what the police said.

- The majority said Mr. Le was detained as soon as the officers entered the backyard.

R v Thompson (2020 ONCA)Facts: Police respond to a parking lot with a vague description of drug trafficking. They find an idling car, they boxit in with their cruisers, find 29 g of cocaine, a scale, and 18,000 dollars. 20 minutes after they blocked the vehiclein, the police inform the accused of his rights.

- The CA felt that these were serious breaches of sec 8 and 9. The police arbitrarily detained (psychologicaldetention) the accused the moment the first police cruiser parked directly behind his car because he couldnot choose to drive away until the police decided otherwise, even if he could have walked away.

- Question isn’t whether the accused intended to drive away, but if the police removed his freedom of choiceto do so.

Relate this back to Packer’s Models (Bob and Ed)- Ex: Car accident where the driver was drinking- Due Process

- People should be afforded the choice to make incriminatory statements and should be aware oftheir rights before making any admissions

- Focuses on the protections and safeguards of individual rights and liberties- Crime Control

- All evidence should be included regardless of violation of individual liberties- “Probably guilty”

- If the police want to avoid engaging these Charter rights there is a relatively simple solution → Tell theaffected individual in unambiguous terms that he is under no obligation to answer questions and free to go

Once Detention or Imprisonment is Satisfied, Need to Determine Whether IT WAS ARBITRARY- Once it is determined that police effected a detention, the next question is to ask if they acted lawfully in

doing so. A detention will be UNLAWFUL if:1. Most common are challenges directed at the decision to detain or imprison in specific

- Grant made clear that any unlawful interference with liberty is necessarily arbitrary andcontrary to sec 9 of the Charter

- Formal Requirements: Did police formally comply with the law? Is there a lawauthorizing the police to do what they did either via statue or the common law? Are thereany restrictions or limitations that the police must follow? Did the police overstep orgrossly exceed their limits?


- Bias: Can argue that the police acted for an illegitimate purpose- Sec 9 is also violated if an arrest is undertaken “because a police officer was biased

towards a person of a different race, nationality or colour, or that there was apersonal enmity between a police officer directed towards the person arrested”(very arbitrary)

- Ex: Racial profiling and stereotyping of Aboriginal and Black people2. Less common are challenges to laws authorizing detention or imprisonment.

- If the responsible law contains procedures that are arbitrary, it will violate sec 9- If a police officer detains or imprisons a suspect in compliance with an unconstitutional

law, then the resulting interference with liberty is by implication also unconstitutional- A detention not authorized by law is also arbitrary and violates sec 9- Legislation that mandates a loss of liberty without the need to consider any rational criteria

or standards has been held to operate “arbitrarily”

Police Detention and Arrest Powers- Where does the authority of police to interfere with people's freedom of movement come from?- Given that unlawfully interfering with liberty violates sec 9, assessing whether an officer acted lawfully in

carrying out a detention or arrest is essential in assessing the constitutionality of such encounters

(1) Detention Powers- The Ancillary Powers Doctrine recognizes new “common law” police powers, including detention powers

(2) The Power to Detain Motorists for Traffic Safety Purposes (MORE LEEWAY)- Police are empowered to pull over drivers for any motor vehicle safety reason – no individualized

suspicion necessary1. Proactive Stops → Police are empowered to stop vehicles at fixed-point check stops or through roving and

random stops to confirm the driver's sobriety, inspect driving documents (driver's licence, registration,proof of insurance) and examine the vehicle’s mechanical fitness without any reasonable suspicion

2. Reactive Stops → Police have the power to stop a motorist who they reasonably suspect to be impaired orwho they observe committing a traffic safety violation contrary to provincial traffic legislation

a. AB Traffic Safety Act- A driver of a vehicle shall, immediately on being signaled to stop by a peace officer, bring that

vehicle to a stop and furnish any info respecting the driver or the vehicle that the peace officerrequires and shall not start that vehicle until the driver is permitted to do so by the peace officer

(a) Checkpoint Traffic Safety Stops (Proactive Stops)- Such stops need not be based on any degree of suspicion that a particular motorist is in breach of the law.

R v Dedman (1985 SCC) (Case predates the Charter)- Facts: Dedman was pulled over randomly in accordance with a check-stop type program.- Issue: Whether or not the stop was unlawful as having been made without the requisite statutory or

common law authority, and if it was, if this should result in a dismissal of the charge?- The court recognizes that the random vehicle stop is a prima facie interference with the licensed liberty of

driving on a public roadway, HOWEVER applying the Waterfield test…- Part 1 is PASSED → The Court upheld random stops at sobriety checkpoints on the basis of the

duty of police to prevent crime and protect life and property by controlling traffic.- Part 2 is PASSED


- The Court acknowledged that checkpoint stops are entirely arbitrary and could thereforecause drivers some psychological discomfort but these effects would be minimized by thepublicity accompanying such programs, their “relatively short duration,” and the merelyslight inconvenience that they cause to motorists

- On the benefit side, the Court simply noted that due to “the seriousness of the problem ofimpaired driving, there can be no doubt about the importance and necessity of a program toimprove the deterrence of it.”

- Acknowledged that sobriety check stops involve an interference with liberty but relied on Waterfield togrant a new police a power at CL to conduct random stops at sobriety checkpoints

R v Hufsky (1988 SCC)Facts: Random roadblock scenario, no indicia of impairment, police at a fixed checkpoint who randomly stoppedthe accused. Hufsky argued his sec 9 rights were infringed and the statutory authority (ON’s Highway Traffic Act togrant police authority to conduct traffic stops) was arbitrary detentionHolding:

- The court finds that there was detention and that the detention was arbitrary because it was done completelyrandomly without the existence of any guiding principles - it did not specify any criteria for deciding whichdrivers to stop, leaving the police with absolute discretion and this is a problem

- “Discretion is arbitrary if there are no criteria, express or implied, which govern its exercise” (para. 13)- BUT the Court found the infringement upon an individual’s s. 9 rights is justifiable because of the gravity

of drunk driving and is therefore saved by s.1 (after Oakes analysis)

(b) Roving and Random Traffic Stops (Proactive Stops)R v Ladouceur (1990 SCC) (5-4)

- Facts: The police stopped the appellant's car at random in order to check his documentation. His licencehad been suspended and he was charged accordingly.

- Issue: The case turned on how far the Court was willing to go to hold that the authority to arbitrarily detainmotorists granted by Ontario's traffic legislation in Hufsky was justified under sec 1

- Holding: 5-4 decides to extend the power extended to police in Hufsky to roving vehicle stops- The sec 9 breach is saved by sec 1

- (i) There was a pressing and substantial concern to override the constitutional right;- (ii) The stops were rationally connected to the objective because they would enhance the

deterrence of drunk, unlicensed and uninsured drivers by increasing the threat of detection;- (iii) It was minimally impairing because the stops would be relatively short in duration and

required only the production of a few documents.- “must be of relatively short duration”, require “production of only few

documents”, driver is “generally questioned in own vehicle or at worst in thepolice cruiser” and “seldom a need to bring driver to station” – satisfies minimalimpairment

- Dissent:- The minority sees it as “a total negation of the freedom from arbitrary detention guaranteed by s. 9

of the Charter” – Justice Sopinka- Police are then able to stop any vehicle at any time without any reason (majority doesn’t take into

account racial bias, disproportionately target minorities and Indigenous peoples)- Majority downplays the risk of abusive roadside detentions and may result in officers acting on

unsubstantiated hunches


(c) Reactive Stops for Particularized Traffic Safety Reasons (Reactive Stop)- Where police acquire reasonable suspicion that a motorist committed or is committing some kind of

non-criminal infraction (i.e. broken mirror, broken windshield, running a red light)- Stops made for a legitimate, particularized reason are not arbitrary under s 9- If police exceed the scope of their lawful powers in a case, the detention will be arbitrary

(d) Limits on Traffic Safety Stops and Criminal Investigative Purposes1. Driving Related Inquiries Only

- The unfettered authority of police to conduct motor vehicle stops for traffic safety purposes createsa serious risk of abuse. During such stops, police MAY ONLY question the occupants of thevehicle about driving related matters “absent other grounds for the inquiry”

- The “other grounds” may come from1. Plain view or plain smell observations

- Absent these grounds, further criminal investigative inquiries by police incidental to a routinetraffic stop, will likely engage one or more of sections 8, 9, or 10(b)

- Police need not comply with section 10 when briefly detaining drivers for traffic-safety relatedinquiries because 10(b) is suspended

- If the police develop further grounds during the stop to exercise a different investigative power,they must be able to articulate the grounds and comply with Charter requirements for that power.

- Once police exercise powers to investigate other offences, compliance with section 9 and 10 isrequired (such as they see contraband plain view, then the investigation transforms from a trafficsafety stop to criminal one)

R v Mellenthin (1992 SCC)- When conducting a random roadside check-stop can the police interrogate a driver about matters

not related to the vehicle, its operation, and search the driver and vehicle?- At a check-stop Mellenthin is pulled over, police ask what is in the sandwich bag inside a brown paper bag

inside a gym bag in the passenger seat. Sees glass, asks to see it, sees vials of hash oil.- Check-stops are a permitted infringement upon s. 9 rights in response to reducing toll of impaired driving,

and do not extend beyond those aims- Without any reason to suspect that there were drugs in the bag, the police officer had NO right to conduct

an unfounded inquisition or unreasonable search

2. Scope of the Detention- Consider whether the police substantially altered the nature & extent of the detention from the

initial stop… And was this reasonably necessary?

3. A “dual purpose” can be permitted- R v Nolet held that police may harbour ulterior criminal investigative purposes during a traffic stop

if they are truly motivated by traffic safety concerns for the entirety of the traffic safety detention- The fact that they are simultaneously interested in discovering evidence of another offence will not

in itself invalidate the detention.- However, police must be careful not to exceed the limits of their traffic-safety powers.

R v Nolet (2010 SCC)Facts: A cop RANDOMLY stopped a truck to make inquiries authorized by provincial regulatory legislation.Connected to a law, so it’s lawful. After determining that the documents produced by the accused were inadequate,


the officer searched the vehicle under the authority of the same provincial statute. Inside the truck cab, behind thedriver's seat, the officer discovered a duffel bag. As relevant trucking documents were often kept in that manner,and at a touch, it appeared to contain paper, he opened it to find $115,000 bundled in small denominations. As thiswas typical of drug transactions, he arrested the accused for possession of the proceeds of crime. A search of thetruck incidental to that arrest revealed a hidden compartment containing 392 pounds of packaged marijuana.Holding:

- The fact that the officer had earlier suspected that the vehicle might be transporting illegal drugs, this didnot detract from the legitimacy of his search.

- Given the inconsistencies found in the relevant documentation, it was reasonable for police, relying on theauthority to search granted by the provincial regulatory statute governing commercial trucking, to lookinside the bag for documents that would help prove the suspected regulatory infractions.

- Comparing the situation with R v Ladouceur (2002 SKCA) (different from the other case)- Police set up a random stop program to detect both highway infractions and contraband. The

checkpoint was staffed not only with police, but also at times with sniffer dogs, customs andimmigration officials, wildlife officers, and law enforcement agents (LOLOL WHAT)

- The Court explained that this “was designed as a 'comprehensive check for criminal activity' … andwas therefore fatally flawed from the outset.”

(e) Case-by-Case Explication of Associated Powers- Police powers to detain motorists derive from:

1. Powers originating at common law (under the ancillary powers doctrine)2. Flowing from open-ended grants of authority under provincial traffic legislation and3. Criminal Code impaired driving provisions (suspect an impaired driver)4. In R v Orbanski & Elias (2005 SCC) the Court suggested that the scope of police power to make

impaired driving inquiries during roadside detentions should be decided by a “case-specific”reasonableness inquiry

R v Aucoin (2012 SCC)Issue: The legality of a police officer's decision to place a driver in the rear of a police cruiser while issuing minorvehicle infraction tickets to him. The officer testified he did so because it was late at night, the street was crowded(so the driver could have easily walked off) and the driver's vehicle was being impounded. However, before placinghim in the cruiser the officer felt it necessary to conduct a safety-search on him that revealed illegal drugsHolding:

- The Court concluded that it was not “reasonably necessary” to place the accused in the police cruiser- As backup officers were nearby, there were “other reasonable means” to address the detaining officer's

safety concerns: he could have simply waited a couple minutes for backup to arrive- Therefore, the detention of the accused in the cruiser was unlawful and violated s 9 (the resulting safety

search was also therefore unreasonable and a violation of s 8)

(3) Detention for Criminal Investigative Purposes- When police wish to interfere with an individual's liberty for the purposes of a criminal investigation, the

law usually demands greater justification than it does for regulatory matters (such as traffic safety)

(a) Investigative Detention- Prior to 1993, police had no power to detain short of carrying out a formal arrest.- This changed in R v Simpson (ONCA 1993)


- Simpson used the APD to recognize a power to briefly detain when police have “articulablecause” to believe that the person is involved in criminal activity

- The SCC approved this new police power in R v Mann (SCC 2004)- Court acknowledged that “police officers must be empowered to respond quickly, effectively, and

flexibly to the diversity of encounters experienced daily on the front lines of policing”- **The Court applied the ancillary powers doctrine to recognize an investigative detention power**- Investigate Detention → Police are empowered to briefly detain a person where they have

reasonable grounds to SUSPECT the individual is connected to a recently committed or stillunfolding criminal offence and the detention is reasonably necessary in all of the circumstances

- This will NOT be an arbitrary detention and thus not violate s. 9

- (i) REASONABLE SUSPICION TEST linked to a specific crime1. Reasonable suspicion requires “the police officer's subjective belief (that the individual is

involved in criminal activity) to be backed by objectively verifiable indications.”- It is something more than a mere or general suspicion and something less than a belief

based upon reasonable and probable grounds- General suspicion would attach to an activity or location, not a specific person- The assessment should be based only on the grounds in existence when the detention was

initiated = Ex post facto reasoning is not permitted2. Totality of the circumstances is considered to determine whether the standard has been met

- Beyond incriminating facts, the police must also consider exculpatory, neutral, or equivocalinformation — all information must be considered subject to the caveat that police areentitled to ignore that which they have good reason to believe is unreliable.

- What is NOT Reasonable Suspicion:- A suspect's presence in a “so-called high crime area” is not by itself a basis for detention- An individual who is nervous when approached by police does not, on its own, give rise to

reasonable suspicion.- Nor if a person chooses to assert his or her constitutional rights, for example, by walking

away from police, remaining silent, or refusing consent to search.- Someone making or failing to make eye contact, does not, at least on their own, support it- What IS Reasonable Suspicion:- Travelling under a false name or flight from the police, may give rise to reasonable

suspicion on their own- Odour of freshly-smoked marijuana emanating from a vehicle (since it may indicate either

that someone in the vehicle is in possession of the drug or that the driver is impaired)- Although the police are not entitled to search or arrest based only on an anonymous tip

predicting that a suspect will be in possession of contraband at a specified time and place,such a tip is sufficient justification for an investigative detention

3. Carding (on TWEN)- Voluntary, don’t have to answer the officer’s questions

- (ii) Protective Pat-Down Search Power (from an Investigative Detention)- R v Mann (SCC 2004)

- Held that where an individual is lawfully detained for investigative purposes, that personMAY also be subject to a limited protective pat-down search.


- The officer must believe on reasonable grounds that his or her own safety, or the safety ofothers, is at risk (more than reasonable suspicion which gives rise to an investigativedetention… so just because you have suspicion does not mean you have belief)

- It is a PROTECTIVE POWER → Police are only entitled to pat-down a suspect to ensurethat he or she is not carrying weapons.

- NOT intended as a means of searching for and gathering evidence

- (iii) Sections 10(a) and 10(b) of the Charter Incidental to Investigative Detention- R v Mann (SCC 2004)

- 10(a) in an investigative detention applies; the police must tell the person “in clear andsimple language” of the reasons for the detention.

- R v Suberu (SCC 2009)- Do the police have to convey 10(b) rights immediately upon investigative detention? YES- Subject to concerns for officer or public safety, police must tell people subject to

investigative detention “without delay” about their right to retain and instruct counsel upondetention and do everything required under section 10(b) to facilitate that right

- If they don’t, the detention can be argued to be arbitrary!!

- (iv) Duties on the Person Detained- A person subject to investigative detention is legally obligated to acquiesce to police authority and

remain with police until instructed that he or she is free to go. Failing to do so would arguablyconstitute the offence of obstructing police.

- BUT, the person is not obligated to answers the questions police ask- Such a duty would seem to depend on two preconditions.

1. The detention must be lawful (have the requisite grounds to suspect to detain)2. The detaining officer must have complied with section 10(a) and (b)

- (v) Use of Force Incidental to Investigative Detentions- Section 25(1) of the CC provides that police officers may use “as much force as necessary” when

“authorized by law to do anything” if the officer “acts on reasonable grounds” (can apply to theapplication of handcuffs if necessary)

- (vi) Length of Detentions- In R v Mann, the Court emphasized that investigative detentions “should be brief in duration” as

“investigation detention does not mean that the police can detain suspects indefinitely while theycarry out their investigation” (what this means in practice is still unclear)

- (vii) Moving the Detainee- R v Mann did not address whether and to what extent police might move someone subject to an

investigative detention- In cases involving the detention of motorists, the police routinely direct detainees to exit their

vehicles or place them in the back of a police cruiser (seems to be permissible)- The ONCA suggested it is permissible for police to move those detained a short distance (Penny

warns this may turn investigative detentions into de facto arrests so need to be cautious)

R. v. Mann (2004 SCC) → Investigative Detention & Search Incident to Detention


- Police officers responding to a break and enter call come upon Mann, who matches the description offered.Mann complies with their requests for identification and a search for weapons, where the police feel a softbag in his sweater and find marijuana. He is arrested and charged.

- The power to detain CANNOT be exercised on the basis of a hunch or it will become a de facto arrest.- SCC finds that the circumstances of Mann, applied to the Waterfield Test, that there is a power of search

incidental to investigative detention at common law:- PART A → The ability to detain suspects for the purposes of questioning falls within the duty of

police to protect life and property;- PART B → The duty to protect life will, where there are reasonable grounds to believe that there is

a risk to their own safety or the safety of others, give rise to to conduct a pat-down search- In this case, the reasonable grounds came from the fact that Mann met the description of the offender, who

they suspected could be carrying tools incidental to the break in which could pose a danger to them = Valid- There was no reason for the police officer to extend his search to include anything but weapons and thus he

was not justified in reaching into Mann’s pocket and pulling out the soft bag of marijuana = Invalid

(b) Roadblock Stops- Applying APD, in R v Clayton the SCC recognized that the police would occasionally be justified in

employing a roadblock for criminal investigative purposes- R v Clayton (2007 SCC)- Police were responding to a 911 call, which reported that 4 of about 10 “black guys” in a parking lot in

front of a “strip club” were openly displaying handguns. The caller identified 4 vehicles. The dispatcher putout a “gun call” and a number of police officers responded. Police arrived and positioned their vehicle atthe exit of the club’s parking lot. They noticed a car drive toward the exit of the parking lot. It was not oneof the four cars referred to by the 911 caller. The officers stopped the car. Farmer was driving the car andClayton was the only passenger. Both men were directed out of the vehicle for concern of officer safety.After exiting the car, Clayton took flight and was subdued by police; he was found to be in possession of aloaded handgun.

- Issue: Whether the use of a roadblock was permissible in these circumstances?- Holding (Abella J):

- The initial detention was seen as reasonably necessary to respond to the seriousness of the offenceand the threat to police and public safety due to the presence of potential prohibited weapons in apublic space… and the roadblock deployed was temporally, geographically and logisticallyresponsive to the total circumstances known by the police when it was set up.

- Applying APD, the SCC found the roadblock was a justifiable use of police powers associatedwith the police duty to investigate the offences described by the 911 caller and did not represent anarbitrary detention contrary to s. 9 of the Charter.

- The search was justified by safety concerns and incidental to their lawful investigative detentions- In deciding whether or not to employ a roadblock for criminal investigative purposes, the police

would be wise to consider1. The seriousness of the offence being investigated2. Any roadblock that is deployed is both temporally and geographically connected to the

situation that is being investigated.

(4) Arrest Powers- The big cases that you need to know for this area are Storrey and Feeney.- Police arrest powers have long been codified in Canada (there is NO common law arrest powers)


- Hallmarks of an arrest are a prolonged loss of one's freedom of movement (through acquiescence orphysical restraint) coupled with a marked reduction in autonomy and personal privacy

- R v Storrey (1990 SCC)- Issue was if the officer had the necessary reasonable and probable grounds to make the arrest?

a) The officer must subjectively have the RPG and,b) The court must objectively recognize that there was RPG (a RP in the officer’s shoes)

(a) Defining Arrest (and Keeping it Distinct from Investigative Detention)- An arrest “consists of the actual seizure or touching of a person's body with a view to his detention” OR the

pronouncing of “words of arrest” if “the person sought to be arrested submits to the process and goes withthe arresting officer.”

- The failure to use the word “arrest” is not determinative; rather it is the substance of the encounter thatmatters most — that is, the use of language that reasonably leads an individual to conclude that he or she isin police custody and not free to leave (R v Latimer 1997 SCC)

- Defining an arrest is important because...1. Properly categorizing a police-citizen encounter is key to assessing its legality under sec 9 because

police can conduct an investigative detention based on a lower standard (reasonable suspicion) thanthat required for an arrest (reasonable and probable grounds)

2. An arrest is one of the two events that trigger the rights set out in sec 10 (the other being detention)- Arrests are intrusive (and can be lethal)

- If the subject resists or attempts to flee, police are licensed to use as much force as necessary toeffect an arrest. In certain circumstances, they may even use lethal force (section 25(4) CC)

- Handcuffs to restrain those arrested is a standard police practice- An incidental search is also standard police practice, which can vary from a mere pat-down to

complete strip search (need additional RPG for strip search)- Important to Distinguish between an Arrest and Investigative Detention

- There is a risk that investigative detention, which is supposed to be brief and unintrusive, maybecome de facto arrests on the basis of a lower standard (reasonable suspicion)

(b) Citizen's Arrest- Section 494(1)(a) Anyone, police officers included, may arrest without warrant “a person whom he finds

committing an indictable offence”- “Finds committing” = apparently finds committing- “Indictable offences” = includes hybrid offences, but NOT summary conviction offences

- Section 295(1)(b) allows a warrantless arrest if there are reasonable grounds to believe that an individualhas committed a “criminal offence” and is escaping from and being freshly pursued by those with lawfulauthority to arrest

- Section 494(2) confers a warrantless power to arrest on owners or custodians of property if they findsomeone apparently committing a criminal offence in relation to that property.

- If an arrest is undertaken under any of these provisions, the person carrying out the arrest is then obligatedto “forthwith deliver the person to a peace officer”as soon as reasonably possible

(c) Arrests for Indictable Offences Based on Reasonable Grounds- Section 495(1) A peace officer may arrest without warrant

- (a) a person who has committed an indictable offence or who, on reasonable grounds, he believeshas 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 orcommittal…is in force within the territorial jurisdiction

- It licenses a proactive response, so that a police officer can arrest an individual who has taken thepreparatory steps toward committing a crime rather than awaiting its actual commission

- Section 495(1)(b) = Sole function is to bestow a limited power on police officers to arrest individuals whoare discovered committing or apparently committing summary conviction offences. If a police officer doesnot witness the offence then he must procure a warrant before carrying out an arrest

- Sec 495(1)(c) (outstanding warrants) = An arrest warrant issued in one province can be executed inanother province provided a justice in the second province has endorsed the warrant

- S. 495(2) is a limitation on s. 495(1)

(d) Arrests for Breach of the Peace (riots, tumults, actual physical violence, etc)- There is the power in section 31(1) of the CC to arrest any person a police officer or another peace officer

“finds committing” a “breach of the peace or who, on reasonable grounds, he believes is about to join in orrenew a breach of the peace.”

(e) Entering a Dwelling-House to Arrest: Feeney Warrants- A home is a person’s castle, so need RPG to enter (connects to section 8)- R v Feeney (SCC 1997)

- An 85 year old man was murdered, and distinctive cigarettes were left at the scene. Feeney wasspotted walking away from an accident involving the deceased’s car. The police go to his trailer,where there is no answer to their knock. They go in, find him sleeping, and wake him up.

- They tell him to get out of bed (detention) moving him to better light, they see blood and make thearrest. Excuses are given to the blood, but police also notice the cigarettes in the trailer.

- The Court held that sec 8 requires that, absent hot pursuit or exigent circumstances, before policeenter a residence to effect an arrest, they obtain prior judicial authorization for the entry

1. A Feeney warrant is time sensitive2. A Feeney warrant requires

a. RPG for the arrest of that person ANDb. RPG to believe that the person will be found at the address or dwelling house

- After Feeney, Parliament responded by enacting section 529 of the CC- The police will not require a warrant to enter a third party's residence, where the homeowner is present and

gives police informed consent to enter without a warrant- EXCEPTIONS

1. Hot Pursuit = Exists where the officer is in “continuous pursuit… so that pursuit and capture alongwith the commission of the offence may be considered as forming part of a single transaction”

2. Exigent Circumstances = Where a police officer has RPG to believe that the person to be arrestedis present in a particular residence, he or she can dispense with the need for prior judicial approvalto obtain a warrant. The CC lists two examples:

1. Where police have reasonable grounds to suspect that entry is necessary to preventimminent bodily harm or death;

2. Where they have reasonable grounds to believe that evidence relating to the commission ofan offence is present in the residence and entry is necessary to prevent its imminent loss ordestruction

- Police ust comply with an announcement requirement developed at common law. In the ordinary course,before forcing entry, the police are required to give

1. Notice of presence by knocking or ringing the doorbell,


2. Notice of authority, by identifying themselves as law enforcement officers and3. Notice of purpose, by stating a lawful reason for entry (i.e., “arrest warrant”)4. Minimally, they should request admission and have admission denied.

- The Feeney warrant provisions empower the justice issuing the warrant to authorize police to dispense withthe announcement requirement if satisfied that there are reasonable grounds to believe that priorannouncement of the entry would either expose the police or other person to imminent bodily harm ordeath, or result in the imminent loss or destruction of evidence

(f) The Duty Not to Arrest or to Release Following Arrest — Police Bail (discretion)- Once police decide that they have the required grounds to carry out an arrest, section 495(2) directs the

officer not to arrest for less serious indictable offences, hybrid offences, and summary conviction offences,if there are reasonable grounds to believe an arrest is unnecessary in the “public interest”

- In assessing the “public interest” an officer is directed to consider “all the circumstances” including:a. The need to establish identity,b. Secure or preserve evidencec. Prevent the continuation of the offence or the commission of some other crimed. If the person will fail to attend court in answer to the charge

- This is an ongoing assessment!- Sec 503(2) states “a peace officer or an officer in charge” may release someone charged with an offence,

with the exception of those serious offences listed in section 469 (i.e., murder), if the officer “is satisfiedthat the person … should be released.” The person can be released on a promise to appear, a recognizance,or an undertaking with conditions

Lecture 3: Search and Seizure (Most Complex Police Power)Introduction

- Privacy is a pillar of freedom, and is integral to human dignity and autonomy- Protecting privacy against unjustified state intrusion is an essential feature of liberty in any free society.- However, like the law-abiding, criminals value their privacy. As a result, the state will sometimes have

compelling reasons for invading privacy. Given this, an inevitable tension arises between our desire tomaintain privacy because of its importance to individual freedom and the state's interest in encroachingupon it in order to protect societal interests — especially law enforcement

- Sec 8 → “Everyone has the right to be secure against unreasonable search or seizure”

(1) Search and Seizure at Common Law- Limitations to the State’s power to search and seize have long been recognized- Semayne’s Case (Eng. 1604)

- “A person’s home is their fortress and castle”

(2) Search and Seizure Before the Charter- At early common law, the only basis for a warrant to enter and search was where there were good grounds

to believe that stolen property was secreted in a particular place. Otherwise, there was no official power toenter onto another person's property to search.

- Prior to the enactment of the Charter, only the principle of legality protected individuals- It did little for two reasons:

1. The courts were not empowered to evaluate the substance of laws that interfered with individualliberty or property interests. Parliament could cloak government officials with expansive andlargely unchecked authority to search for and seize evidence.


- Ex: “Writs of assistance” authorized police, in advance, to enter and search any place thatthey believed contained drugs. They were not required to subject any supporting grounds toreview by a neutral judicial official like a justice of the peace or a judge

2. Even when the police disregarded limits on their authority, there were rarely any consequences.- Civil lawsuits like Seymane's Case and Entick v. Carrington were rare and criminal courts

had no real means (such as a power to exclude illegally obtained evidence) to remedyrights violations.

(3) Purpose of Section 8- Hunter v Southam (1984 SCC)- The Combines Investigation Act permits officers to enter into and search any premises that the director

believes may contain evidence- The Act is a clear violation of sec 8 and introduces a new requirement for search warrants → An

unbiased 3rd party must grant them- The system of granting warrants must be conducted through prior authorization, not subsequent

validation (post facto analysis)- Section 8 (and the Charter asa whole) is a check on, and not a source of, state power- “The guarantee of security from unreasonable search and seizure ONLY protects a REP.”- “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 pace of the search, constitutes the minimum standard, isconsistent with sec 8 of the Charter, for authorizing search and seizure.” = WARRANT

- Probability of finding something is insufficient- Sec 8 is a balancing act between individual privacy interests and collective concerns

(4) Elements of Section 8- Three elements (need ALL three elements):

1. State action2. Constituting a search or seizure (a search/seizure is an examination/taking by the State that

constitutes an intrusion upon an individual’s REP - Evans)- Edwards is the leading case- Know Belnavis, Patrick, etc.

3. That is unreasonable

(5) What is a Search or Seizure? The Reasonable Expectation of Privacy Test- In deciding whether state action constituted a search or seizure, we need to determine whether it invaded an

individual’s OWN “reasonable expectation of privacy” (if not, no violation of sec 8)- Claimants must show that the state intruded into their reasonable privacy expectation — not that of another

person (Edwards)- What is Reasonable Expectation of Privacy?

- Ex: Sec 8 limits law enforcement's ability to covertly intercept people's telephone conversations.We reasonably expect that police will not be able to do this without a warrant. In contrast, we haveno REP that they will refrain from listening to us with their unaided ears as we speak into mobiletelephones at full volume in public places

- REP: The Totality of Circumstances Test- The test is simply a list of factors for courts to consider. The relevance and weight of these factors

depends heavily on the facts of each case (don’t exist in a factual vacuum) = LOOK BELOW- Edwards and Patrick


- The decision must be made from an ex ante perspective, without regard to the fact thatevidence of illegal activity was discovered (R v Wong)

- Ex Ante = Immediately before reasoning- Ex Poste Facto = After the fact reasoning (prohibited)

- Is a normative inquiry, not simply a descriptive one.- Whether it is “objectively reasonable” to expect that the authorities will not have free reign

to use an investigative technique to gain information about us.- The fundamental question for the courts is “whether giving their sanction to the particular

form of unauthorized surveillance in question would see the amount of privacy remainingto citizens diminished to a compass inconsistent with the aims of a free and open society.”

- While the existence of a subjective expectation of privacy may bolster an applicant's claim,its absence is not fatal.

R v Edwards (1996 SCC) (read this - apply on the exam)Facts: Edwards was a black man and was a drug dealer who hid drugs at his gf’s apartment. He was arrested fordriving without a license (so driving while suspended) and suspected to have swallowed drugs. The police went tohis gf’s and told her a bunch of lies to gain unwarranted entry into her apartment, including telling her that he haddrugs in her apartment and neither she nor her bf would be chargedIssue: Whether Edwards had a reasonable expectation of privacy in his gf’s apartment, and could argue sec 8Holding:

- The AC could not establish he had REP in his gf's apartment to engage sec 8. He stayed at the apartmentonly occasionally, did not contribute to rent, and lacked the authority to admit or exclude others

- Court finds that although AC had a key, he was nothing more than a privileged guest, therefore has noprivacy interest in her apartment and no standing = Protects people not places!!

- Introduces the Totality of the Circumstances Test:(1) Whether AC had a REP

a) Presence at the time of the searchb) Possession or control of the property or place searchedc) Ownership of the property or placed) Historical use of the property or iteme) Ability to regulate access, including the right to include or exclude others from the placef) The existence of a subjective expectation of privacy;g) The objective reasonableness of that expectation.

(2) If there was REP, whether the search was unreasonable intrusion on that right to privacy.

R v Patrick (2009 SCC) = Totality of the Circumstances Test (in relation to abandoned garbage)Legal Test:

(1) Did the Appellant Have a Reasonable Expectation of Privacy?1. What was the nature or subject matter of the evidence gathered by the police?2. Did the appellant have a direct interest in the contents?3. Did the AC have a subjective expectation of privacy in the informational content of the garbage?4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:

a. the place where the alleged “search” occurred; in particular, did the police trespass on theappellant’s property and, if so, what is the impact of such a finding on the privacy analysis?

b. whether the informational content of the subject matter was in public view;c. whether the informational content of the subject matter had been abandoned;


d. whether such information was already in the hands of third parties; if so, was it subject toan obligation of confidentiality?

e. whether the police technique was intrusive in relation to the privacy interest;f. whether the use of this evidence gathering technique was itself objectively unreasonable;g. whether the informational content exposed any intimate details of the appellant’s lifestyle,

or information of a biographic nature.(2) If There Was REP, Was the Search/Seizure by the Police an Unreasonable Intrusion?

R v Wong (1990 SCC)Facts: AC was running casinos in hotel rooms, where he would invite members of the public in. Police put anelectronic recording device in one of the rooms without a search warrant.ONCA found that since he was inviting members of the public in, Wong was not entitled to a REPHolding:

- Whether persons who were the object of an electronic search had a REP cannot be dependent on if thosepersons were engaged in illegal activities… If reliance were to be placed on such ex post facto reasoningand courts conclude that persons who were the subject of a search could not have had a REP because thesearch revealed that they were performing a criminal act, the result would inevitably be to adopt asystem of subsequent validation for searches

- The question must be framed in neutral terms = Whether in a society such as ours persons who retire to ahotel room and close the door behind them have a reasonable expectation of privacy

- SCC said just because there were members of the public in the hotel room does not give the state unfettereddiscretion to record what was going on (hotels are our homes away from home and have privacy there)

R v Dyment (1988 SCC)- A physician took a blood sample from the defendant, then gave it to police. This constituted a “seizure” but

not a “search” and this seizure violated the defendant’s reasonable expectation of privacy (no warrant)- Seizure → The taking of a thing from a person by a public authority without that person's consent.- SCC found, however, that not all non-consensual takings will be considered “seizures” under sec 8... “If I

were to draw the line between a seizure and a finding of evidence, I would draw it at the point at which itcan reasonably be said the individual had ceased to have a privacy interest in the matter allegedly seized.”

Applying the Reasonable Expectation of Privacy Test- There are different levels of expectations of privacy (exists on a spectrum)

- Highest in the home, then in a hotel, then in an office, then a vehicle, then a locker, etc

1. Persons- Invasions of people's bodily integrity almost always constitute a “search or seizure”- Such intrusions may cause physical and psychological harm and reveal sensitive information- There are two types of bodily searches:1. The taking from a person of his bodily substances for forensic analysis, impressions, and images

usually always an invasion of REP- The taking of fingerprints after an unlawful arrest violates sec 8 (R v Feeney)- Convicted offenders, however, have no REP that their identities, as inscribed in DNA extracted

from bodily substances, will remain secret from law enforcement (R v Rodgers)- Typically there is no REP in bodily substances that are not extracted by another person =



- Ex: Police do not violate sec 8 when they seize samples of suspects' discarded blood from apotential crime scene. Courts have typically found that suspects have “abandoned” thesubstance and relinquished any privacy interest in it

- Two Exceptions to Abandonment:1. Suspects may have a REP in the place from which the substance is seized.

- Police may not conduct a warrantless search of a suspect's home to seize discardedbodily substances for DNA analysis

2. Suspects may retain a REP in bodily substances discarded while in custody.- R v Stillman (SCC) = Majority held that a suspect in custody did not abandon a

tissue containing mucous when he threw it in the trash. Since he had refused tovoluntarily provide bodily samples, and since people in custody can do little toprevent the seizure of extruded bodily substances, the Court held that thewarrantless seizure of the tissue violated sec 8

- R v Arp = The accused discarded cigarette butts in an ashtray provided by thepolice while being interviewed at a police station. Court found the butts had beenabandoned and the accused had lost a REP over the butts.

2. Searches of a person's body and personal effects for evidence or weapons.- The probing of a person's body for evidence or weapons will almost always invade a REP- Any physical intrusion of the body (such as a frisk or “pat-down” search, strip search, bodily cavity

search, or swabbing of skin for evidentiary residue) will constitute a “search”

2. Private, Personal Property- Searches of items carried by or belonging to a person that conceal other personal property or info

will usually invade a reasonable expectation of privacy- Section 8 protects against searches of:

1. Bags (R v Mohamad 2004 ONCA)2. Wallets (R v Gregoire 2005 ABQB)3. Computers (R v Morelli 2010 SCC)4. Communications devices (R v Bacon 2010 BCPC)5. Diaries (R v M(D) 2000 ONSC, R v Shearing 2002 SCC)6. Business and financial records (R v Black 2002 NSCA)

- A police request for a driver's licensing documents during a traffic stop does not engage sec8 because there “is no such intrusion where a person is required to produce a licence that isa lawful condition of the exercise of a right or privilege.”

- But this requirement does not extend to passengers (unless charging passenger with likefailure to wear a seatbelt, then can ask for documents - R v Harris)

- Must demonstrate a proprietary or possessory interest (R v Belnavis)- R v Buhay

- The SCC held property placed in a bus depot locker attracts REP. Though the bus companyowned the locker and had the ability to open it at any time, the AC was entitled to expectthis would happen only if the items “appeared to pose a threat to the security of the depot”

- R v Cole- A teacher maintained a REP in personal data contained in his employer-issued computer- The ordinarily robust REP attaching to computer data was tempered by the employer's

clearly announced ownership of the device and its contents and right to monitor usage


- REP was not breached when staff inspected the computer during routine maintenance andsearched it for school safety reasons after child pornography was found.

- The teacher's REP was invaded, however, when the police examined the computer.Because the employer permitted teacher-issued computers to be used for personalpurposes, they often contained a wealth of deeply intimate information deserving ofsec 8 protection.

- Employers may still monitor devices and investigate work-related wrongdoing. And whensuch surveillance uncovers evidence of crime, police will typically be able to obtainwarrants to seize the evidence and conduct additional searches

- Can be anything that reveals information about a person (R v Tessling)- Biographical Core Test = Is the information inherently intimate?

- Garbage, phone, what one has in their home and purse, etc- What about investigative doggos? (R v Kang-Brown)

- The SCC held that canine sniffs invade a REP = NEED RS- Such sniffs reveal precise information about the interior contents of personal belongings- A well-trained dog will only signal (and spark a physical search by police) when contraband is

present. The fraction of innocent persons subjected to physical searches in these circumstanceswould be much lower than that associated with search warrants backed by RPG

- The revealed information forms part of the “biographical core” of information protected by sec 8(info relating to the “intimate details” of a person's “lifestyle and personal choices) so intrudes REP

- But why should a guilty person's interest in avoiding detection by the doggo be protectedunder section 8? The Court’s reluctance to give police an unfettered and powerful tool to enforcean arguably unwise law (the marijuana possession prohibition)

- Abandonment Principle = REPs in personal property may be lost through abandonment.- No REP in garbage put out for collection on street (R v Patrick 2009 SCC)

- SCC ruled that although the contents of household garbage may reveal intimate info, anyREP is extinguished by leaving garbage for collection at the perimeter of one's property.

- Courts have held that suspects have abandoned items when…- Suspects abandon property when they walk away from it in the presence of police and deny

ownership when questioned (R v B(L) 2007 ONCA)- Property abandoned when thrown away while being pursued by police (R v Nesbeth)- Property abandoned when left in police vehicle (R v Hilts 1997 ABPC)- Property abandoned when left in hotel room when checking out (R v Butterworth)

- There is a difference between “unattended” and “abandoned” property- R. v. M. (A.)

- SCC held that students did not abandon their privacy interests in the concealed contents ofbackpacks left unattended in the school gymnasium

- R. v. Fearon- The SCC held that the accused did not abandon his privacy interest in the contents of his

mobile phone by failing to enable password protection- May retain REP for lost or stolen property:

- Police recovered a stolen safe. The SCC held that while police were entitled to fingerprint the safeand examine it for the purposes of furthering the investigation of its theft, they violated sec 8 whenthey examined docs found in it for evidence that its owners were involved in tax fraud (R v Law)

3. Private, Real Property = Living and Commercial Places- But remember, the applicant must prove that their own REP was invaded (look at Edwards)


- Courts applying Edwards have rejected s. 8 claims made by1. Visitors (R v Nguyen 1996 ABQB)2. Landlords (R v Pugilese 1992 ONCA) and former residents (R v Brooks 1998 ONCA)3. Occupants’ children (R v G(L) 1996 ONPC)

- Applies to1. Home (obvious REP - get your ass a warrant)2. Hotel room (even when registered guest invites strangers to enter) (R v Wong)3. May also apply to commercial premises (Hunter v Southam) UNLESS invitation to enter has been

extended to members of the general public (R v Fitt)- Implicit Consent

- Despite the strong privacy interest in the home's interior, police may be able to gain limited accessto it based on the occupant's implicit consent.

- Police have an implied license to knock on the door – but is limited to those activities that arereasonably associated with the purpose of communicating with the occupant

- R v Evans- The defendant's REP was violated when police knocked on his door with the

intention of smelling for the odour of marijuana- If the police had knocked on the person’s door for the purpose of asking them

questions in regard to a car’s window being smashed the night before (this is alawful reason) and then had happened to smell marijuana, this would be lawful!

- R v MacDonald- A police officer exceeded the scope of the implied licence when he pushed the

front door open to get a better view of what was in the resident's hand in an attemptto gain evidence (but ended up being found lawful under APD)

- May be able to enter if they believe a crime has been/is occurring there – if they do not believeowner is the perp (Mulligan 2000 ONCA – police entered home that had clearly been broken into)

- May enter a home to ensure the safety of the occupants- Intrude only to extent necessary and in doing so may seize any evidence in plain view

- The zone of privacy attaching to the home extends to observations of its exterior and the areas surroundingit (people do not expect as much privacy in their backyards, pools and gardens as in the interiors of theirhomes, but they do use these areas for sensitive activities)

- But the SCC held in R v Patrick, that police did not invade the accused's REP by reaching over hisproperty line to obtain garbage left for collection

- Invasion of REP if unusual tactics used – fly over, drones looking into yards, etc.- UNLESS techniques or vantage points are normally available to public and does not reveal

info of the suspect’s biographical core- Installing device on power line to measure flow of electricity – no invasion of REP (R v

Gomboc) because it does not reveal intimate household details- Naked-eye observations of private property from conventional vantage points (i.e. public

roads) do not invade REP (R v Patriquen 1994 NSCA aff’d SCC)- Police can look from the street and if they something suspicious from the street (like

condensation) this is fair game and they can try and get a warrant (naked eye observation)- Naked-eye aerial surveillance of a residential garden at any altitude invades REP

- Aerial surveillance will engage s 8 if it enables close-range observations of a kind normallyunavailable to the flying public (R v Kwiatkowski 2010 BCCA)

- Use of infrared camera to detect high intensity lamps used for marijuana cultivation in enclosedstructure is NOT invasion of REP – no biographical core information revealed (R v Tessling)


- Electrical consumption records – maintained by the utility for billing purposes did not trigger s. 8because the information did not invade the homeowner’s biographical core (R v Plant 1993 SCC)

- Police can break in and plant a bug in someone’s home - EXCEPTIONAL

4. Vehicles- Vehicle interiors attract a reasonable expectation of privacy but subject to limitations- Does not attach to the vehicle but to the individual’s interest in the vehicle (R v Belnavis 1997 SCC)

- Driver will typically have an interest in the vehicle, but passengers may not- A passenger does not have REP if she does not have control over the vehicle, or if she has no

relationship with the car’s owner (R v Belnavis)- But where parties are driving long distance, sharing driving duties and expenses, each would likely

have an equal expectation to privacy- Also, husband and wife would have reasonable expectations of privacy in each others vehicles

- Consider nature of privacy interest = things in plain sight- Police have discretion to stop vehicles to investigate driving offences (recall proactive &

reactive stops)- The power to search a vehicle's interior as an incident of that investigation is initially limited to

observations of the driver for signs of impairment, the inspection of driving documents, and plainview observations of the interior (and they can use a flashlight)

- Given the regulated nature of driving, there is in effect no REP with respect to these intrusions- When acting with express legislative authority, the police are entitled to conduct searches tailored

to discovering evidence that may be necessary to prove reasonably suspected driving offences,even if the “predominant” motive for the search is to obtain evidence of unrelated criminal offences(Nolet)

- Police request for a driver’s licensing documents during traffic stop does NOT engage s 8 (R v Hufsky)- General rule – the requirement to produce documentary evidence does not extend to passengers

- Police asking a passenger's name for the purpose of conducting a CPIC check to ascertain the passenger’scriminal records violates section 8 (R v Harris 2007 ONCA)

- Police can only make such requests for the purposes of investigating offences leading to the stop, orfor charging passengers with traffic offences, such as failure to wear a seatbelt

R v Belvanis (1997 SCC)Facts: Three women are travelling in a car driven by the car owner’s girlfriend.Issue: Does a passenger in a vehicle have a reasonable expectation of privacy?Holding:

- Again, need to look at the totality of the circumstances laid out in Edwards.- No because the passenger had no relationship with the car's owner and exerted no control over the vehicle

Penney Commentary (Ed likes this):- Unfortunately, this approach is likely to foster an overly aggressive (and potentially discriminatory)

approach to the detention and searching of vehicles with multiple passengers.- Consider a police officer who conducts a legitimate, random vehicle stop. The car is expensive and is

occupied by several young, casually dressed, Aboriginal or African-Canadian men. There is no evidence ofcriminal activity, but the officer nonetheless conducts a thorough search of the car's interior, including theglove compartment, trunk and areas under the seats. Illegal drugs are found.

- The officer clearly exceeded his or her power to conduct an incidental search, thus violating the driver's sec8 right. At the driver's trial, the drugs would probably be excluded under sec 24(2)


- But according to Belnavis, unless the passengers can demonstrate a specific privacy interest in the vehicleor its contents, they can neither claim a section 8 violation nor seek to exclude the drugs.

5. Public Spaces- Visual surveillance of people in public spaces does not invade REP- Police are therefore entitled to watch us (whether covertly or openly) as we walk down streets,

drive along roads, and shop in stores- R v Wise (1992 SCC)

- Police used an electronic radio-tracking device on a vehicle without a warrant.- Crown argued that travelling on public streets doesn't give a REP- Court found the installation of a radio-tracking device on a vehicle constituted a search (a

blatant threat to privacy to document every moment) and intruded on REP

6. Third Party Records- Police often seek information about suspects from records kept by third parties.- The SCC rejected the notion that information voluntarily provided to others attracts no REP =

Records containing sensitive information will usually be protected under sec 8!- People have a reasonable expectation of privacy, for instance, in personal information possessed by

lawyers, therapists, health care providers, welfare agencies, and police.- The status of financial and other commercial records is less certain- R. v. Chehil

- Court held that police did not invade an airplane passenger's REP by obtaining information(his name, flight number, payment method and baggage allotment) from the airline that didnot expose intimate details of his lifestyle or personal choices

- R v Plant (1993 SCC)- Does accessing a citizen’s electricity consumption records violate a REP?- Designed to “protect a biographical core of personal information which individuals in a

free and democratic society would wish to maintain and control from dissemination to thestate.”

- Electrical bills don’t meet this standard, as they do not reveal intimate details aboutone’s lifestyle or private decisions

- Plant was decided before the government introduced legislation requiring that companiesdon’t release information without first obtaining consent

7. Communications- The privacy interest attaching to private communications is very strong!!!- After the Charter's passage, the SCC held that the covert interception of private conversations

invades a REP (R v Duarte) and exists even where one of the parties to the communication isaware of the interception

- Courts have also held that electronic text communications, such as emails and text messages, willnormally attract a REP

- Sec 8 does not protect the privacy of 911 calls (R v Robertshaw)- Police do not invade a suspects' REP when they surreptitiously record interviews with them- Police may not surreptitiously record prisoners’ telephone conversations (R v Williamson)- But where prisoners are warned that convos may be recorded (as is often the case) then sec 8 only

regulates the monitoring of those conversations; the recording itself does not invade a REP- The sender of messages can have a REP, but once it gets to the recipient it is open


R v Duarte (1990 SCC)Facts: Police had set up an apartment to use as a base for nabbing drug traffickers. They used electronicallyrecorded surveillance through the consent of one of the parties (an informer or police officer)Holding: While sec 8 does not protect people from the risk that their confidants will turn out to be informers, itdoes prohibit the state from arbitrarily making a “permanent electronic record” of their conversations

R v Spencer → Subscriber InformationFacts: Police determined that someone using an Internet Protocol (IP) address was trading child porn online. Usinga publicly available database, they traced the address to a service provider and requested the ID of the subscriberassociated with that address. The provider complied, allowing police to determine who was using the IP address atthe relevant time (the subscriber's brother)Holding: This piercing of the user's online anonymity, the Court reasoned, violated his reasonable expectation ofprivacy because it allowed police access to intimate details of his lifestyle and personal choices

Waiving the Right to Privacy: Consent Searches- Can waive right to privacy by consenting to a search = Makes the search REASONABLE- When one consents to police taking something, they otherwise have no right to take, one relinquishes his

right to be left alone by the state and removes the reasonableness barrier imposed by s 8 (R v Wills)- Burden of establishing a valid waiver will fall on the Crown- Three requirements for valid consent

1. Person giving consent must have valid authority to do so (must have proprietary interest in whatis being searched)

- The power of police to search by consent is only relevant if there is a REP in thecircumstances; if there isn’t, no need to get consent

- An employer cannot consent to a police search of an employee’s computer… it needs to bethe individual themself

- What about spouses? The ONCA has drawn a distinction between common areas, whereone might reasonably expect another co-resident to invite members of law enforcementinto and have a lower expectation of privacy, and more private spaces, like a co-resident'sbedroom or personal belongings that have a higher expectation of privacy

- According to the Court, these cases will boil down to two questions: “(a) would theaccused reasonably expect that his or her coresident would have the power to consent topolice entry into a common space, and (b) if so, did the co-resident actually consent?”

2. Must be voluntary- No intimidation, must have capacity (operating mind) to waive privacy right- Ex: An extremely intoxicated person may lack the capacity to give a valid consent

3. Must be informed- Person needs to make a meaningful choice and know what they are giving up

a. Compliance with 10(b) right to counsel and person who is arrested or detained orsubject to a search

b. The person must know they have the right to refusec. Must be aware of consequences that the info obtained can be used against the

person in a criminal charged. Need only disclose the purposes known to police at time consent was given

- Informed consent requires police to be forthright in their legal position- Can REVOKE consent anytime!!


- If no evidence has been located, a person can reassert their legal right to privacy – search ends- Once evidence is found, police may continue to search/seize – no longer require consent- A refusal of consent does not constitute grounds to believe an individual is concealing illegality

- R v Borden- The police had 2 ongoing sexual assault investigations. Borden agreed, via a signed consent form,

to provide a blood sample for one of the investigations. They did not tell him it would be used inanother case. Police needed to tell him that it would be used in another case.

- In order for the waiver of a right to be free from unreasonable search to be effective, the personpurporting to consent must be possessed of the requisite informational foundation for a truerelinquishment of the right. They must have sufficient information available in order to make thepreference of consenting or not consenting meaningful.

- The SCC held this non-disclosure violated the accused's section 10(a) right (obliges police toinform those detained of the “reasons” for their detention) AND undermined the validity of theaccused's consent for the taking of his blood.

- R v Arp- The police were entitled to use hair samples provided freely and unconditionally by Mr. Arp during

an earlier investigation when he became a suspect in a different investigation thirty months later- “…if neither the police nor the consenting person limit the use which may be made of the evidence

then, as a general rule, no limitation or restriction should be placed on the use of that evidence”

(6) When is Search or Seizure UNREASONABLE? (third step)- Everyone has the right to be secure against unreasonable search or seizure

1. Party seeking to justify warrantless search bears the burden of justifying it (the Crown)- To justify a search must use Collins Test (R v Collins 1987 SCC)

1. Authorized by law (common law or statute),2. The law is reasonable, and3. Search/seizure must be carried out in reasonable manner

- Need all three!- In Hunter v Southam

- Warrantless Search = PRIMA FACIE UNREASONABLE- The party seeking to justify a warrantless search (Crown) bears the burden of establishing

that it is “reasonable” under sec 8- Warrant (already judicially approved) = PRIMA FACIE REASONABLE

- Where the constitutionality of a search pursuant to warrant is challenged, the burdenremains on the party asserting the violation (usually the accused)

- Section 8 violations are almost never justified under section 1. Why?- Sec 8 protects the right against “unreasonable” searches or seizures. It is difficult to imagine how

an unreasonable search could nevertheless constitute a “reasonable limit” under section 1*How to Bring a Challenge to Reasonableness = Accused’s Position* (Collins)

1. The search or seizure must be authorized by a law;- Can come from statute or the common law = Ask is there a lawful authority?- R v Stillman

- The SCC held that the common law power to search incident to arrest did not authorizepolice to extract bodily substances from arrestees. Because no legislation authorized suchtakings either, the search violated sec 8

2. That law must itself be reasonable; AND


- If police act pursuant to a law found to be unconstitutional then their actions will be unlawful,unreasonable, and in violation of sec 8

- BUT… Reasonable reliance on search powers later determined to be invalid, however, will militatein favour of admitting unconstitutionally obtained evidence under section 24(2)

3. The search or seizure must be carried out in a reasonable manner (abuse)- Applicant may argue that police applied a valid search power in an unconstitutional manner- R v Collins

- Woman was in a bar and the police suspected she was about to swallow drugs so theyapproached her and grabbed her by the throat to prevent her from swallowing them (girlcoulda been eating nachooooos)

- Court found that in the absence of specific information affording RPG to believe thatCollins was concealing drugs inside her mouth (like if she was a drug dealer) it wasunreasonable for police to grab her by the neck to prevent her from swallowing them

- The search was thus conducted in an unreasonable manner

The Hunter Standards for Reasonableness (the Gold Standards)- Hunter established “default” minimum requirements for reasonableness of searches under sec 81. Prior Judicial Authorization (WARRANT), and

- A search should be authorized by warrant except in circumstances where it is not feasible- Warrants should be approved by someone who is impartial as between privacy and state interests,

warrants improve the odds that an appropriate balance will be struck between them2. Standard of Justification: RPGs

- From Hunter, it is not enough for police to have a “reasonable belief that evidence may beuncovered in the search” they must demonstrate that the discovery of evidence is “likely”

- NEED RPG on oath- This is a mixed subjective and objective standard (same as Storrey)- Crime has been committed, it is linked to a specific person, AND that evidence will be discovered

upon a search or seizure = This is the RPG (can’t be may be discovered, this is not enough)- Ex: Someone who was at an individual’s house and saw criminal evidence and the next day

went to the police, this is good grounds that evidence will be discovered (evidence istimely and first-hand)

- Searches incident to arrest/detention = Police can conduct warrantless searches incident to arrest ordetention (but strip searches need additional RPG)

Situations where Reasonableness Demands MORE than Hunter Requires- Police may need to satisfy additional prerequisites before obtaining a warrant or conducting a warrantless

search; or a judge may impose additional conditions on the manner of the search on the warrant1. Electronic Communications

- Interceptions with electronic communications should be conducted only when necessary to combatserious threats to the public order

- For wiretap, must comply with investigative necessarily under section 186(1) of the CC2. Professional Privilege

- The Hunter requirements may also be supplemented when a search threatens to disrupt aconfidential, professional relationship. Searches of lawyers' offices, for instance, may disclosedocuments protected by lawyer-client privilege

Situations Where Reasonableness Requires LESS than the Hunter Standards


1. CCC Search Powers Based on Reasonable Suspicion (but still need to be grounded objectively)- Hunches are not objectively reasonable- Reasonable suspicion (and no warrant) remains the standard for getting warrant to track vehicles

and other items not carried or worn (if carried or worn, then need RPG)- Acquiring the transmission data associated with telephone communications (including numbers and

locations of phones connected to the targeted phone) requires reasonable suspicion (sec 492.2)2. Driving Offence Searches (no warrants)

- Where an officer administers a screening demand (an ASD or sobriety ctest demand) withoutreasonable suspicion that a person has alcohol or a drug in your body = violation of section 8 and 9

- Police do not need to believe you are impaired or intoxicated. It is enough that the officerreasonably suspects that you have some alcohol or drug in your system for the screening demand

- Should the person fail the screening demand, in combo with other indicia, the police can demand abreath sample if they have RPG to believe the individual’s ability to operate a vehicle is impairedby drugs or alcohol

- However, police can now administer MSD without reasonable suspicion if the officer lawfullystops a driver.. And a fault would trigger RPG to demand samples

3. Common Law Search Powers- Police may also conduct a number of warrantless searches at common law, including searches

incident to arrest, safety searches, and canine sniff searches- The standard for arrest is RPG so can search without a warrant for search incident to arrest

4. Searches for Non-criminal Investigative Purposes- Often upheld both warrantless searches and searches based on standards lower than RPG

- A) Regulatory Searches- Courts permit random audits/inspections where they are minimally intrusive and necessary for

efficacy of these regulatory regimes (diminished REP)- The fact that some regulatory offences provide for imprisonment does not in itself demand prior

authorization on reasonable grounds- R v Jarvis 2002 SCC

- Tax authorities conducting conventional audits may use powers to require taxpayers toanswer questions and provide documentation freely

- BUT once the predominant purpose of the investigation becomes an inquiry into penalliability, they may no longer compel answers and must obtain warrants to seize documents

- B) Border Control and Public Transportation Networks- People crossing Canada’s borders have a diminished expectation of privacy (R v Simmons)

- Warrantless and suspicionless pat-down and luggage searches are authorized by customslegislation

- Strip searches require reasonable suspicion (but not prior authorization) (not the case inother strip searches scenarios that require RPG)

- Air travelers have diminished expectation of privacy in luggage, even on domestic flights- Random searches for threats to security or safety are allowed- Searches for other purposes must conform to Hunter standards

- BUT police need reasonable suspicion at bus stations when searching for drugs- R v Can Feel

- Two accuseds were goig to board a plane (EDM) and their cellphone and laptops weresearched, where child pornography was found.

- Can a phone be searched? No, the reasonable expectation of privacy is much higher for acell phone than luggage, etc.


- Not allowed to search cell-phones without a warrant- C) Prisons, Schools, and Workplaces

- Predominant Purpose Test = Must be a legitimate objective (other than gathering evidence of acriminal offence) such as for the safety of the community

- Weatherall v Canada- The SCC found that legislation authorizing suspicionless frisk searches and the inspection

of cells did not violate section 8 because prisoners have a reduced expectation of privacy- R v M.(M.R.)

- Schoolchildren have a diminished expectation of privacy while at school- Principal investigates info that a 13 y/o student was selling pot. He pulls the student into

his office for a meeting and a police officer is in attendance. Principal then conducts asearch, asking the student to turn out his pockets, lift pant legs, etc. Drugs were found andthe student was arrested.

- The Court concluded that the vice-principal was not acting as an agent of police and thatHunter's requirements did not therefore apply.

- In light of concerns for safety and discipline, teachers and administrators may conductwarrantless searches “if there are reasonable grounds (a teacher’s observations, info from acredible student) to believe that a school rule has been violated, and that evidence of theviolation will be found in the location or on the person of the student searched”

- R v M. (A.)- The exigencies of school safety and discipline DOES NOT justify the use of drug-sniffing

dogs of a student’s locker in the absence of reasonable suspicion- Students have no lesser expectation of privacy than others in relation to searches conducted

by police (or their dogs)

Statutory Search Powers- If the lawful parameters of these powers are exceeded then the police act unlawfully and violate sec 8- Sec 8 is similarly infringed if the conduct of the authorities is technically in compliance with the parameters

of a legislated power but the manner in which a search or seizure is carried out is unreasonable

(1) Searches in Exigent Circumstances- Impracticable to obtain a warrant under exigent circumstances- When there is an imminent danger of the loss, removal, destruction or disappearance of the evidence

if the search or seizure is delayed (a possibility that evidence may be lost is not sufficient)- Exigent circumstances will not arise if the police have deliberately structured their actions in a manner to

create the urgency that is then claimed as the justification for dispensing the warrant requirement- Police may seize evidence in plain view and search as an incident to any lawful arrest- Police may make a warrantless arrest inside a residence when in “hot pursuit” or to prevent “imminent

bodily harm or death” or the “imminent loss or imminent destruction of the evidence.”

(2) Conventional Search Warrants (section 487 of the Criminal Code)- The most frequently used warrant provision is sec 487(1)- Where it is impracticable for police to apply for a search warrant by attending in person before a justice, sec

487.1 allows an officer to apply for a warrant by telephone- Requires:A. Reasonable and Probable Grounds


- Sec 487(1) states a judicial officer may only issue a warrant if satisfied that there are reasonablegrounds, established upon oath, that an offence has been committed and that relevant evidence orcontraband will be found in the “building, receptacle or place” to be searched

- A mere tip from a confidential informant would never be enough nor an anonymous source- More generally, the Court has directed that the “totality of circumstances” must always be

considered in assessing the existence of RPG to search (the three Cs - R v DeBot)1. Credible – where is the information / tip based from; who was the source?2. Compelling – was the information predicting the commission of a criminal offence

compelling?3. Corroborated – was the information corroborated by a police investigation prior to

making the decision to search?- The results of a search or seizure cannot be used to assess whether or not there were RPG to justify

it (Hunter, Dyment)

B. The Warrant Application Process (ITO), Hearsay, and Confidential Informants- Police must set out their basis for the warrant1. A warrant application begins with a police officer (the “informant”) swearing an Information to

Obtain a Search Warrant (the “information” or “ITO”)- Informant must have RG ro believe that a crime has been committed and that the specified

items may afford relevant evidence of that crime and are in the place to be searched, theinformant must also set out his or her grounds for so believing before the judge intheir attempt to secure the warrant

- Can’t mislead the judge, need to present both favourable and unfavourable evidence- Is an ex parte application- It is permissible for the informant to rely on hearsay information in applying for a search

warrant (assessed on weight)2. Confidential Informants

- An informant may choose not to identify a particular source and instead identify such aperson as a “confidential informant” (protected by privilege)

- This causes concerns to the accused's right to disclosure of the information sworn to obtaina warrant so they can make full answer and defence… the court reviews whether and towhat extent the privilege applies

- If the Crown fears that the court's decision could compromise the confidential informant'sidentity, it has several options

1. May elect to reveal the informant's identity (with his or her consent)2. Treat the search as though it was warrantless and attempt to justify it on that basis3. Decide to stay or withdraw the charge(s) (important to protect their identities)

C. Manner of Execution of a Warrant- Police must comply with sec 29(1) which says “it is the duty of every one who executes a process

or warrant to have it with him, where feasible to do so, and to produce it when requested to do so.”- The warrant must be in possession by at least one of the executing officer- Allows the occupant of the premises to be searched to know why the search is being

carried out and that is has been authorized- Daytime execution of warrants is the rule (night searches requires specific authorization)- Before forcing entry, the police are required to give (“knock and announce”):

1. Notice of presence by knocking or ringing the doorbell;


2. Notice of authority, by identifying themselves as law enforcement officers; and3. Notice of purpose, by stating a lawful reason for entry (i.e., “search warrant”)

- Exigent circumstances may allow police to dispense with the “knock and announce” requirements(bear the onus of establishing on RPG that they were concerned about either the possibility of harmto themselves or occupants or the destruction of evidence)

- When executing a search warrant, the police may use reasonable force to gain entry to thepremises.

- Further, upon entry, the police are entitled to “control the premises” to ensure the safety ofthemselves and others and to prevent the destruction of evidence.

- Detention and search of persons- Police have no power specifically to detain or search anyone present – except to detain for

the purposes of safety and security; any search must be done under some other searchpower (plain view, search incident to arrest, etc)

- The police are not required to ignore other evidence that they happen to come across whileexecuting a search warrant because it is not mentioned in the warrant (plain view)

D. Challenging the Warrant and Searches Pursuant to Warrants- Search warrants are subject to a presumption of validity but can be rebutted- Can be challenged in two ways:

1. Writ of certiorari = Where a superior court judge can quash the warrant due tojurisdictional error

2. Charter Application = The evidence obtained by the search excluded by 24(2)- Two components to attack:

1. Facial Validity = Date, time, address etc.2. Sub-Facial Validity = Information in the warrant; the source of the information.

- False, misleading or unconstitutionally obtained information must be taken out ofthe ITO

- Want to excise as much information as possible.- What is left in the warrant – Judge will ask whether it amounts to RG. If not, it is

squashed.- Deference should be awarded to the warrant – Warrant should be upheld if the reviewing court

concludes that the authorizing judge COULD have granted the authorization.- Test: Whether there was reliable evidence that might reasonably be believed on the basis of

which the authorization could have issued (considers both facial and sub-facial validity)- A conclusion that an informant has acted in bad faith and misled the issuing justice will

often result in a warrant being quashed and the evidence acquired being excluded (goodgrounds for CE)

- The items to be searched need not be described with absolute precision in either the info orthe warrant but the items cannot be described broadly to authorize a fishing expedition

(3) Production Orders- A relatively new type of search and seizure power are production orders (producing documents)- Require preauthorization by a judge or justice

1. They apply only to third parties, and not persons under investigation2. Instead of empowering police to obtain the information specified in the order themselves, they

require third party to produce it to them


(4) General Warrants- Ed said not on exam, so no notes

(5) Plain View Seizures- The Plain View Doctrine → Police officers are not required to ignore evidence of criminality that they

unexpectedly happen upon- Police do not need a legal basis to make plain view seizures as items subject to the doctrine attract no

reasonable expectation of privacy- Preconditions of the Plain View Seizure Power (Common Law)

1. The officer must already legally be in the location at which he or she makes the plain viewobservation leading to the seizure

2. The discovery of evidence or contraband must be inadvertent. A “plain view” seizure cannot beplanned and its evidentiary nature must be immediately obvious. If the significance of the thingseized depends on further examination, then the plain view doctrine does not apply

- Sec 489(1) of the Criminal Code and sec 11(8) of the Controlled Drugs and Substances Act authorize apolice officer who is executing a warrant or who is otherwise lawfully present in a place and in execution ofhis or her duties to seize any thing the officer believes on reasonable grounds has been obtained by or usedin the commission of an offence or that will afford evidence in respect of an offence if in plain view.

- This essentially codified the Common Law Power- In R. v. Jones, the ONCA warned that the police's right to examine a computer for evidence of the crime

under investigation (fraud) did not carry with it freedom to rummage through its entire contents in search ofevidence of other crimes.

(6) Search and Seizure of Bodily Samples and ImpressionsA. Forensic DNA Samples

1. DNA Search Warrants- DNA warrants are only applicable to investigations of enumerated “designated offences”- Must have RG to believe that: (i) a bodily substance has been found that is associated with

the commission of the designated offence; (ii) a person was party to the offence; and (iii)DNA analysis will be probative to the issue of whether the bodily substance is associatedwith the donor

- Three acceptable methods for the extraction of DNA from the donor: (i) plucking hair, (ii)taking buccal swabs from the mouth and (iii) taking blood by pricking the skin with asterile lancet.

2. National DNA Data Bank- Upon a finding of guilt for primary designated offences (murder, sexual assault) a DNA

data bank order will automatically issue- Unless the judge is satisfied that the impact on the offender's privacy and security of the

person would be “grossly disproportionate to the public interest”

B. Breath and Blood Samples in Impaired Driving Context- Drinking and driving investigations rely on either breath samples or blood samples being seized,

blood or breathalyzer demand, blood sample warrant, etc- CAN’T FORCE SOMEONE - charge them under refusal- Reasonable suspicion that a driver has alcohol in their body to demand an ASD or other screeding

demand like a physical coordination test; if a fail is registered or they fail the test, this will provideRPG to conclude impaired driving = triggers samples


- Blood and breath sample requires RPG

C. Bodily Samples in Driving Under the Influence of Drugs- Urine sample requires RPG- Reasonable suspicion required to submit someone to a physical condrination test

D. Fingerprints and Other Bodily Impressions- The Identification of Criminals Act provides for compulsory fingerprinting and photographing

when a person is charged with or has been convicted of an indictable offence- For investigative purposes a justice of the peace or a PC judge may issue a warrant authorizing a

peace officer to obtain from a suspect a handprint, fingerprint, footprint, foot impression, teethimpression or “other print or impression of the body or any part of the body.”

(7) Interception of Private Communications (Part 5 CCC)- The surreptitious electronic surveillance of an individual by the state constitutes a search and seizure- The electronic interception of “private communications” (wiretaps) is prohibited unless:

1. Consented to by one of the parties to the communication2. Made by police pursuant to a court authorization3. Made by operators of communications networks in course of protecting those networks, OR4. Made by police to prevent one of the parties to the communication from causing immediate, serious

harm.- Devices

- A tracking device warrant = Reasonable suspicion- Tracking devices on a person = RPG

(8) Searches and Seizures in Relation to Drugs- Search warrants are commonly issued with respect to drug investigations (both the CC and CDSA)- Similar to section 487 warrants, police may seize items that are not specifically named in a CDSA warrant.- The partial codification of the “plain view doctrine” in the CDSA grants police the authority to seize

non-specified items if the officer believes on reasonable grounds the evidence relates to an offence- There are differences between CDSA search warrants and those under section 487 of the Criminal Code.

1. The CDSA gives police the authority to use “as much force as is necessary” in executing a warrant2. Police may search persons found in the place set out in the warrant if the police have “reasonable

grounds to believe” that individual has on their person any controlled substance, precursor,property or thing set out in the warrant

3. A CDSA search warrant may be executed at any time thereby avoiding the daytime only restriction

(9) Search and Seizure Powers in International investigations- Two pieces of legislation that provide for statutory search and seizure powers

1. Mutual Legal Assistance in Criminal Matters Act- Governs the process by which Canadian authorities receive from and provide assistance to

other countries in the gathering of evidence in criminal investigations- Governs searches and seizures made in Canada at the request of a state or entity

2. The DNA Identification Act- Allows for communication of info in the National DNA Data Bank to foreign states.

Common Law Search Powers


- APD used here- If the lawful parameters of these powers are exceeded, then the police act unlawfully and violate sec 8.- Sec 8 is similarly infringed if the conduct of the authorities is in compliance with the parameters of a

common law power but the manner in which a search or seizure is carried out is itself unreasonable.

(1) Search Incident to Arrest**- Three preconditions for a valid search incident to arrest (also is a discretionary power by police) (Caslake)

1. The person searched must have been lawfully arrested (Storrey)2. The search must be truly incidental to the arrest in the sense that it is for a valid law enforcement

purpose related to the reasons for the arrest; and- The purposes for the search must be

1. The discovery of an object that may be a threat to the safety of the police, theaccused or the public, or that may facilitate escape

2. Act as discovery of evidence against the accused3. To protect evidence from being destroyed

- Police must subjectively and reasonably believe that they are acting for one of thesepurposes (in addition to the lawful arrest)

- Where an individual is arrested while driving because of a warrant relating to outstandingtraffic fines, the scope of any incidental search will be limited to safety concerns and notextend to the discovery or preservation of evidence. This is because there is no offence forwhich the accused is being arrested and no justification to search for evidence.

- R v Caslake- Vehicle was towed to a garage from the police detachment. Six hours later the

arresting officer searched the vehicle and cocaine. The accused was charged- The officer testified that the search had not been undertaken to locate evidence but

the purpose of the search was to complete an inventory of the vehicle's condition asmandated by RCMP policy.

- Though this search could have been objectively justifiable as a search incident toarrest, the absence of the subjective mind of the officer doing the search was fatal

- This Court cannot characterize a search as being incidental to an arrest when theofficer is actually acting for purposes unrelated to the arrest! Need BOTHsubjective and objective criteria

3. The search must be conducted reasonably- The search ought to be objectively reasonable in the circumstances in light of the

justifications for search incident to arrest

(a) Search Incident to Arrest = Searches of the Person (from frisks to genital swabs)- The person of the individual arrested can obviously be searched incidental to a lawful arrest1. Pat Down (Frisk - most common)

- Cloutier v Langlois- “Relatively non-intrusive procedure” = Clothing patted down but not removed; no physical

force applied; lasts only a few seconds- Police can search for both weapons and evidence (search incident to arrest)

- As opposed to search incident to detention – where police can only search forweapons related to safety purposes

2. Bodily Impressions- R v Stillman


- Can’t incident to arrest take dental impressions or bodily samples (hair, blood, saliva urine)- Because the power to search incidental to arrest is predicated particularly on the need to

preserve evidence – bodily samples are usually NOT in danger of disappearing – the SCCrefused to expand the common law power to search incidental to arrest to include this

3. Strip Searches- A removal or rearrangement of all or some of the clothing so as to permit a visual inspection of the

person’s private areas – genitals, buttocks, breasts and/or undergarments.- R v Golden (1997 SCC)

- Strip searches DO NOT always require a warrant.- Because of its humiliating and degrading nature, strip searches have added safeguards- May only conduct a strip search following an arrest when, in addition to the grounds for a

lawful arrest, when…1. RG that weapons or evidence will be found2. Must take place in controlled environment of the police station and in privacy

(absent exigency)- Justifiable in the field where “there is a demonstrated necessity and

urgency to search for weapons or objects that could be used to threaten thesafety of the AC, the officers or other individuals - would have toarticulate these reasons”

3. Minimally intrusive – steps police can take to ensure minimal intrusiveness- Health and safety need to be taken into consideration when doing the search- Same sex; no more than officers needed; force needs to be minimal- If stopped for imparied driving, can’t strip search without RPG for it- Strip searches DO NOT INCLUDE body cavities

4. Penile Swabs- Use of a swab to collect evidence form the AC’s penis (only external, not a penetrative swab)- Cannot use this common law power to search incidental to arrest to acquire the AC’s DNA – that

requires a warrant for DNA as set out in Stillman- In Alberta, a warrantless search by way of a penile swab requires exigent circumstances (Saeed)- Evidence establishing that the time necessary to apply for a warrant would result in evidence

significantly deteriorating or disappearing that award will be required.- Arrest after a sexual assault could justify the swab, but an arrest days after the assault would not- Requires:

1. Arrest must be lawful2. Swab administered must be truly incidental to arrest for the purpose relating to the arrest

(to preserve or discover evidence)3. Must show additional RG that the swab will afford evidence of the offence the AC was

arrested for.4. Must be conducted in a reasonable manner

5. Body Cavity Searches (most intrusive)- Involves a physical inspection of the detainee's genital or anal regions- Constitutionally IMPERMISSIBLE- Only option is to conduct a passive “bedpan vigil” (shit it out) = Requires RG that accused in

possession of substance- Bodily cavity searches did not apply to searches of arrestees' mouths = Police can through the use

of a choke hold to prevent that person from swallowing the evidence and searching their mouth


(b) Search Incident to Arrest = Searches Beyond the Person1. Scope and Duration

- R v Caslake- “Delay and distance do not automatically preclude a search from being incidental to

arrest, but they may cause the court to draw a negative inference. However, that inferencemay be rebutted by a proper explanation”

- In this case, the SCC suggested that the six-hour delay in searching the vehicle would nothave been problematic. The problem with the search was not for any purposes related tothe arrest itself.

- Searches “incidental” to arrest may sometimes precede the arrest, provided that the authorities havethe requisite grounds to arrest at the time of the search

- Ex: If the police have RG to believe that the subject is in possession of a controlledsubstance, then they may search that person under the authority of this common law power.If a search reveals evidence or contraband that fortifies the officer's grounds, then the arrestcan follow. If it does not, then the police may decide to let the person go

- The search is only permissible where the police have the requisite reasonable andprobable grounds to arrest before embarking on the search

- The distance factor dictates the greater the physical separation between an arrest and the locationbeing searched, the more difficult it will be to justify a search as being “incidental” to that arrest.

- Ex: Where an individual is arrested while holding a bag, purse, etc., an incidental search ofsuch is justified by their physical proximity and connection to the person being arrested

2. Searches of Digital Devices- R v Fearon

- All seven justices of the Court agreed that cell phones without passcode protection have noless of a privacy interest than passcode-protected phones

- However, they held the search incident to arrest power included the authority to search thecontents of devices in the possession of the person arrested

- The majority found that the search of Fearon's cell phone was conducted subsequent to alawful arrest and was truly incidental to the arrest, as it was conducted to locate thehandgun, thus ensuring public safety; to locating the stolen jewelry, thus avoiding the lossof evidence; and to obtain evidence about the crime and any accomplices to the robbery

- This fucking case Morelli (think of crim moot) – searches of computers- Case involving child porn- SCC held that searching and seizing personal computers are invasive and persons have a

REP in their personal computers- Marakah – SCC held that a person could have a reasonable expectation of privacy in text messages

they have sent and were retrieved through a search of the recipient of the text.

3. Searches of Premises (Feeney Warrants)- R v Feeney

- Concluded that sec 8 required that before the police enter a dwelling to carry out an arrestthey must first obtain prior judicial approval.

- A judicial officer must assess:1. There are reasonable and probable grounds to arrest, and2. There are grounds to believe that the individual to be arrested will be located in the

place to be entered.


- Recognized this warrant requirement does not apply when the police are in “hot pursuit” ofsomeone who they have lawful grounds to arrest who then flees into a private dwelling

4. Searches of Automobiles (need a NEXUS)- When an accused is arrested while driving or riding in a car, a search of the entirety of the vehicle

may very well be justified. However, this will depend on the reasons for the arrest.- If the police arrest an individual for possession of a controlled substance (Caslake) the possibility

that drugs might be secreted within the vehicle will be enough to justify an extensive search,including closed compartments like the glove box and trunk, and inside bags or any other closedcontainers found within the vehicle

- In contrast if an arrest is undertaken because of an outstanding traffic warrant or for an offence thatdoes not in the circumstances justify a search to locate or preserve evidence, then once the person issecurely in police custody, a search of the vehicle would not seem to be justified because therereally is no evidence relating to the reasons for arrest that is in need of discovery and preservation

- Need a NEXUS that the officer has RPG that evidence can be found or preserved in the vehicle

(3) Search Incident to Detention- Where a person is lawfully detained for investigative purposes, that person may be subject to a LIMITED

protective pat down search if the officer believes on RG that his own or the safety of others is at risk.- I note at the outset the importance of maintaining a distinction between search incidental to arrest and

search incidental to an investigative detention. The latter does not give license to officers to reap the seedsof a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds,nor does it erode the obligation to obtain search warrants where possible.

- Police officers may detain an individual for investigative purposes if there are reasonable grounds tosuspect in all the circumstances that the individual is connected to a particular crime and that such adetention is necessary.

- In addition, where a police officer has reasonable grounds to believe that his or her safety or that of othersis at risk, the officer may engage in a protective pat-down search of the detained individual. Both thedetention and the pat-down search must be conducted in a reasonable manner. In this connection, I notethat the investigative detention should be brief in duration and does not impose an obligation on thedetained individual to answer questions posed by the police.

- R v Mann (2004)- Protective frisk search only- Facts: Mann matched the description of the suspect in the break and enter. Mann complies with a

pat down search. SCC said police officer is allowed to pat down the guy’s pockets – but when hedoes this, he hits something “soft” pulls it out and it’s a small bag of marijuana

- Court found this a breach of s. 8 because when you find something soft, it was not indicative of aweapon and you’re only allowed to search for weapons.

- You cannot search for evidence! You have not been found committing an offence. Only allowedto search for protective purposes.

- Search beyond a pat down is only justifiable where an officer feels something during the initialprotective search that raises reasonably based safety concerns

- The SCC applied the APD to recognize an investigative detention power at common law

(4) Use of Drug Sniffing Doggos = REASONABLE SUSPICION- In R v Kang-Brown and R. v. M. (A), the SCC held the use of trained dogs to detect the odour of illegal

drugs from a person or his or her belongings encroaches upon a REP and constitutes a search under sec 8


- Police can conduct ‘sniff’ searches based on ‘reasonable suspicion’ without prior judicial authorization(can’t use doggos randomly)

- M(A) – High school principal requested a “sniffer” dog- Kang-Brown – sniffer dogs at bus depot

- Majorities justified it as:- Less intrusive, a tool rather than a power; and the dogs simply alert rather than intrude

- Before police can use such dogs to sniff at an individual or his or her belongings (whether detained or not)they must possess reasonable grounds to suspect that the person is carrying narcotics on his or her personor inside his or her belongings.

- Police must also already be lawfully in the place of the “sniff” search – cannot enter a home with a dogto sniff for narcotics without a warrant.

- Reasonable suspicion need NOT be individualized – it can be generalized – for example, that drugs areroutinely trafficked through a particular location (airport, bus depot, etc.) would be enough to justify the useof drug detecting dogs to sniff persons

- If police lack grounds, the sniff will violate s 8 and the detention that facilitates that search will violate s 9- R v Kang-Brown (2009 SCC)

- Police see suspicious looking Kang-Brown at the Calgary bus depot, approach him (no detention)and question him. He gets jumpy, police bring a sniffer dog, dog indicates the presence of drugs,arrest made.

- Here, the police action was based on speculation. The sniff in this case was an unreasonable searchsince the officer did not have grounds for reasonable suspicion at the time the dog was called

- The use of an ancillary powers to create this common law power- R v A.M.

- Police conducted a sweep of a school after getting an invitation to do so by principle (random)- Students and parents had been made aware of this policy.- It was found that there was a REP and the searches were found to be unconstitutional.- Although a warrantless sniffer dog search is available where reasonable suspicion is demonstrated,

the sniffer dog search of the students' belongings in this case violated section 8- The dog sniff search was unreasonably undertaken because the police lacked any grounds for

reasonable suspicion and excluded the evidence = unreasonable search (not authorized by law)- The common law power to conduct a sniff search is based upon a reasonable suspicion

(5) Searches in Response to Disconnected 911 Calls and Other Emergencies- Using APD, police may enter private premises in response to a disconnected 911 call- R v Godoy (1999 SCC)

- Police responded to a residence from which a 911 call was made and the caller hung up.- At the residence, the appellant opened the door and reported, “there is no problem” but refused a

request by police to enter. The police responded by forcing their way inside. Once there, theyquickly acquired the required grounds to arrest the appellant for assaulting his wife.

- Limitations:1. Only to the protection of life and safety2. Only when necessary3. Must have RPG (always will with a disconnected phone call)4. Once they have entered the home, no right to conduct an extensive search.5. However, other illegal items in plain view are then fair game (i.e. bong on the table)


Lecture 5: QuestioningIntroduction

- General rule: People have the right to remain silent- Police simply are free to ask people questions, including both those not subject to any legal restraint and

those who are legally detained.- Police have no legal power to compel answers, unlike their powers with detention, arrest, search, etc- Exception: Subpoena – document that compels person to attend trial- Because the police do not have any legal powers to question people, they are forced to rely on

1. Persuade people to cooperate voluntarily OR2. Trick people into speaking with covert agents

- Questioning has FOUR key components:1. The common law confessions rule that require the Crown to prove that the defendants inculpating

statements were made voluntarily.2. “Mr Big” rules that prohibit the admission of statements of the accused induced by police that may

be unreliable or a product of unacceptable methods3. Sec 7 limits the ability of the police to use covert operatives to obtain statements from the suspect,

as well as prohibiting the state from using legally-compelled statements in some cases.4. Sec 10(a) and (b) obliges the police to tell people the reasons for their detention, their rights to

speak to a lawyer, and give them a reasonable opportunity to do so before questioning them.- No good can ever come from answering police questions. Exculpatory statements are not admissible,

whereas inculpatory statements are = GOOD ADVICE

The Common Law(1) The Common Law Confessions Rule

- Core of this rule is reliability of evidence and free choice- Ibrahim v The King (1914)

- The confessions rule is a long-standing CL doctrine designed to prevent wrongful convictions byexcluding unreliable confessions... It excluded only statements made by suspects because of “fearof prejudice or hope of advantage” held out by state authorities = OLD RULE

- This common law rule prohibits the admission of coercive statements made by suspects to the police, orother “persons in authority” unless the Crown can show, beyond a reasonable doubt, that the statementswere VOLUNTARY (in the voir dire) = NEW RULE

- Two elements:1. Statement must be shown to be VOLUNTARY beyond a reasonable doubt (VOIR DIRE)

- Focuses on the fact that individuals have the right to make the meaningful choice to make astatement or confession or not to

- Involuntariness may arise from one or more of the following (R v Oickle 2000 SCC)1. Threats or Promises (inducements; originated from Ibrhaim v The King)2. Oppressive Interrogation Techniques3. Operating Mind (diminished capacity)

- (4) Even if the confession is not excluded from the above three branches, a confession canalso be excluded due to police trickery that “shock” the community

- Mr. Big does not shock the community2. Statement was made to a PERSON IN AUTHORITY (VOIR DIRE)

Persons in Authority- If it’s a police officer, then easy they are a person in authority


- The confession rule only applies to statements made to persons known by the suspect to be in a position ofauthority over the arrest, detention, investigation, or prosecution (Hodgson, 1998 SCC)

- R v Hodgson (1998 SCC)- “Person in authority” = A relationship of agency or close collaboration between the receiver of the

statement and the police or prosecution AND that relationship was known to the accused- Facts: Hodgson is accused of sexually assaulting a girl he babysat. Upon being accused of this by the

family, the accused denied the incident, but he told them that he was sorry. The police were then called andhe was arrested.

- Issue: Are these people a person in authority? NO. Statements coerced by private individuals are notconsidered persons in authority

- However, private citizens could be persons in authority, but only if they were collaborating with theauthorities at the time the statements were made (not before)

- The “Reasonable Belief Test” = The accused reasonably believes the person receiving the statement/whothey are talking to is a person of authority

- Either acting as an agent of the police or prosecuting authorities and could therefore influence orcontrol the proceedings against him or her.”

- Endorses the “subjective plus objective” approach- Hodgson Test – Prosecution must show that:

1. The suspect believed that the questioner was an agent of law enforcement that could affectthe prosecution AND

2. The questioner actually was an agent of law enforcement- Ask: Would the exchange between the AC and the receiver of the statement take place, in

the form and manner which it did, BUT FOR the intervention of the state or its agents? Isthere a pre-existing relationship that transforms someone who would ordinarily be aprivate citizen into a person in authority/agent of the state?

- The fact that a private person may have general ‘influence’ on AC/proceedings doesn’t make them a personin authority!!

- R v T(SG) 2010 SCC: No evidence that the receiver of the confession (the CO’s mother) had ‘anycontrol’ over the prosecution or was ‘operating on behalf of the investigating authorities’

- R v Broyles 1991 SCC: Private persons are state agents only if their relationship with theauthorities is such that the relevant transaction was materially different from what it would havebeen had there been no such relationship.

Voluntariness- If statements are NOT voluntary, the truthfulness of the resulting statement may be unreliable – Oickle- The voluntariness inquiry is “contextual” having regard to “the entire circumstances,” including the

(objective) nature of the tactics used by police and the suspect's (subjective) reaction to those tactics- R v Oickle grouped the relevant factors under three distinct headings: (1) operating mind (diminished

capacity); (2) threats or promises; and (3) oppression

(a) Operating Mind (“diminished capacity”) = LOW THRESHOLD- A statement is not voluntary unless it is the product of an “operating mind”- Typically arises when the accused suffered from a cognitive deficiency when making the statement- R v Whittle

- To have an operating mind, the accused need only have “sufficient cognitive capacity to understandwhat he is saying and what is said,” including “the ability to understand a caution that the evidencecan be used against the accused” to their detriment


- Voluntariness does not require a thorough understanding of the consequences of speech. Suspectsneed not be capable of making “a good or wise choice or one that is in his or her interest”

- Though Whittle believed that voices in his head were commanding him to confess, the Court heldthat he was sufficiently aware of the consequences of speaking and had an operating mind

- Suspects affected by intoxicating substances, mental illnesses, intellectual disabilities, or biochemicalimbalances may still be capable of making voluntary statements

(b) Threats or Promises (inducements)- A statement will be involuntary if police improperly used threats or promises to induce the AC to speak- Not all threats or promises are improper = CONTEXTUAL APPROACH- TEST: If the will of the subject has been overborne by police inducements, threats, or promises, it is then

involuntary- Statements will lead to exclusion if “the inducements, whether standing alone or in combination with other

factors, are strong enough to raise a reasonable doubt about whether the will of the AC has been overborne”(R v Oickle citing Armshaw)

- Examples:a. The use or threat of physical violence = ALWAYS INADMISSIBLEb. A ‘quid pro quo’ is not necessarily enough to determine confession was involuntary (R v Spencer)

i. Must consider age, sophistication, threat/promise, and any other relevant circumstancesii. Must consider the strength of the inducement

c. An explicit offer by the police to provide lenient treatment in return for a confession is a verystrong inducement

i. “Charge will be of manslaughter if you confess to murder” – NOT ADMISSIBLEd. An offer of psychiatric help in exchange for a confession will require a contextual approach of

addressing the entire circumstances, and may not result in omitting the confession (Ewert)i. “We can get you the help you need if you confess” – Look at CIRCUMSTANCES

e. The threat or promise does not need to be aimed at the accused in order to have a coercive effectand will again require looking at the entirety of the circumstances. The key will be in determiningwhether the relationship is sufficiently close that “the immunity of one is of such vital concern tothe other that he would untruthfully confess to preserve it”

i. “I won’t charge your daughter if you confess” – NOT ADMISSIBLEf. Saying “it would be better if you confess” - LIKELY INADMISSIBLEg. Saying “it would be better if you told the truth” does not automatically result in an exclusion, only

a comprehensive look at the CIRCUMSTANCESh. Confessions that result from spiritual exhortations or appeals to the conscience or morality

(appealing to right and wrong) are admissible, because the officer is not offering anythingi. “You will feel better if you confess” is ADMISSIBLEii. “Do what is right” when the police said if the accused doesn’t confess, they will be

charging his friend as well is ADMISSIBLE

R v Spencer (2007 SCC)- In this case, the accused was told that he could not have a visit with his girlfriend until he confessed.- Courts perform a contextual analysis- The court found that this was a quid pro quo inducement, BUT that in the context of other factors and

performing a contextual analysis that this was not sufficient enough to render his statement inadmissible.- This was because Spencer was savvy and had experience dealing with the police.


(c) Oppressive Interrogation Conditions (Contextual Analysis)- Confessions may also be excluded if they were obtained in an “atmosphere of oppression” (Hibbons)

1. It arises when a suspect is detained or interrogated under “inhumane conditions”- Oickle = Depriving suspects of necessities such as food, clothing, water, sleep or medical

attention; denying them access to counsel; subjecting them to aggressive, intimidating orprolonged questioning; or confronting them with inadmissible or fabricated evidence.

- Failing to warn suspects about their right to silence and ignoring invocations of this rightmay also contribute to an oppressive atmosphere.

2. The use of trickery or deception may also yield oppression- Use of false evidence; being told you are being interviewed as a witness and not a suspect

(d) Police Trickery (shock the community)- In Oickle, the SCC said that even if a confession is not found to be involuntary, it may still be excluded if it

was obtained by trickery “so appalling as to shock the community”- The confession rule only applies to statements made to persons known by the suspect to be in a position of

authority over the investigation (a “person in authority”) but this does not extend to police trickery- Not shocking conduct:

1. Where undercover agents passively elicit statements from detained suspects,2. Where undercover agents obtain statements from suspects outside of custody (Mr. Big stings)

- Shocking conduct:- Examples are police pretending to be a lawyer or chaplain, posing as a fellow prisoner, or injecting

truth serum under the guise of giving medical care = All shocking

Evidentiary Issues(a) The Voir Dire

- Whenever the prosecution wishes to introduce a statement made by the accused to a person in authority, thetrial judge must hold a voir dire to decide its admissibility (determine its voluntariness)

(b) Proving Voluntariness: Recording and Cautioning- Electronic recording provides a generally reliable record to prove voluntariness

- Some courts find that where recording equipment is available but not used and police deliberatelyinterrogate, the failure to record will place a heavy burden on the Crown to prove voluntarinessbeyond a reasonable doubt (R. v. Moore-McFarlane)

- Cautioning suspects before questioning them helps prove voluntariness- (i) right to counsel; (ii) right to remain silent and (iii) statements may be used against them.

(c) Evidence Derived from Involuntary Confessions- Involuntary confessions may lead to the discovery of other evidence that may or may not be admissible.

1. Statements (the Derived Confessions Rule)- At CL, statements are excluded if “either the tainting features which disqualified the first

confession continued to be present or if the fact that the first statement was made was asubstantial factor contributing to the making of the second statement”

- Did the second confession would have been made but for the existence of the first?2. Physical Evidence (the St. Lawrence Rule)

- When an involuntary confession leads to the discovery of physical evidence, courts havehistorically admitted both the physical evidence and any portion of the confession that thephysical evidence corroborates


- So if the accused confessed involuntarily to knowing the location of a murder weapon thatwas subsequently found in the place that the accused described, both the accused'sknowledge of the location and the weapon itself would be admissible

Exam Tips:- Started with Ibrahim v The King which was modified by R v Oickle, added components- Voir dire is held to determine the admissibility of a statement- Test for who is agent of authority- Onus of proof is on the crown to proof voluntariness BRD- Bottom Line – A confession will not be admissible if it is made under circumstances which raise a

reasonable doubt as to voluntariness.

(2) The Mr. Big Rule- Courts have rejected claims that confessions from “Mr. Big” operations should be excluded as “dirty tricks”

that would shock the community- However, in R v Hart, the SCC recognized a new, common law evidentiary rule mandating the exclusion of

“Mr. Big” statements in certain circumstances- Mr. Big schemes are elaborate police investigations that are designed to trick suspects to give confessions- The police are operating the scheme with a dangerous amount of tunnel-vision in working towards getting

a confession with a strong theory about who committed the crime without knowing for sure- Canada and Australia are the only countries in the world that allow the use of these techniques- The reliability of the confessions taken from these schemes is tainted because there is an inducement.- The majority in Hart subjected “Mr. Big” confessions to two common law rules:

1. Such confessions are presumptively inadmissible.- To rebut this presumption, the prosecution must show (on a balance of probabilities) that

the confession's probative value exceeds its prejudicial effect (PV > PE)- This rule focuses on the confession's reliability and the fear that its admission could cause a

wrongful conviction2. Even if the prosecution rebuts the exclusionary presumption, the court may award a remedy

(such as the exclusion of the confession or a stay of proceedings) if the accused makes out anabuse of process on a balance of probabilities

- This part of the analysis focuses on the “behaviour of the state in eliciting the evidence”- Violence and threats are unacceptable- Capitalizing on vulnerable people

(3) Section 10 of the CharterSec 10 → Everyone has the right on arrest or detention

(a) To be informed promptly of the reasons therefor (told what you are being charged with)(b) To retain and instruct counsel without delay and to be informed of that right; and(c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention

is not lawful.- Purpose is to INFORM accused persons of their rights and receive advice

(1) Triggering Mechanism- These rights are triggered by an arrest or detention.

(2) Section 10(a)


- Everyone has the right on arrest or detention: (a) to be informed promptly of the reasons therefor- Three components:

1. Promptly: Unless there is an imminent risk to safety, police must provide reasons2. Reasons: If the reasonable person would understand in the circumstances why they are being

detained, you would have been found in the circumstances to know the reasons- Say what they are arrested for and why- Police do not need to use technical language – explain in simple and clear everyday

language why you are being detained3. Change: Continuing obligation to provide the true reason for the detention

- If the suspect’s legal jeopardy changes, they may have to be re-advised of this right- **S.10(b) cannot be adequately exercised if 10(a) is not done so first**

R v Evans (1991 SCC)- Arrested for a marijuana charge to being detained as a murder suspect- The Court held that the appellant was aware “that the focus of the questioning had changed and that he was

then being questioned with respect to the killings.”- Repeating the formalities of s.10(a) are not necessary, but giving the suspect an opportunity to get a lawyer

is important.- The question is whether what the AC was told, viewed reasonably in all the circumstances, was sufficient to

permit him to make a reasonable decision to decline his right to counsel under s. 10(b)

R v Borden (1994 SCC)- Police violated s. 10(a) when they failed to tell detainee who knew he was being held for one sexual assault

that they also suspected him of another. Borden agreed, via a signed consent form, to provide a bloodsample for one of the investigations. They did not tell him it would be used in another case.

- Once the police had detained for the second purpose, they had a duty to let the accused know about it

(3) Section 10(b)- Everyone has the right on arrest or detention: (b) to retain and instruct counsel without delay and to

be informed of that right; (DO YOU UNDERSTAND?)- One of most litigated areas of criminal law- Purpose: 10(b) prevents police from obtaining self-incriminating information from detainees until they

understand that they have a right to speak to a lawyer under the law and, if they choose to exercise thatright, that they are given a reasonable opportunity to do so

(a) What Information Must be Provided to Persons upon Detention?- Police must tell detainees that they have the right to “retain and instruct counsel”- Must inform they may speak to a lawyer and have the right to a lawyer of choice- Allowed to call another person (mom, sister, friend) to get the contact information for a lawyer

R v Brydges (1990 SCC)- The accused was read his 10(b) rights and expressed an interest in speaking with a lawyer but was

concerned that he could not afford to do so.- The cop was unsure about the availability of Legal Aid in MB.- The failure of the police to inform him about the existence of legal aid or duty counsel constituted a

violation of his s.10(b) rights and resulted in an exclusion of evidence and a subsequent acquittal.


- 10(b) requires that detainees be informed of any legal aid or duty counsel services available in thejurisdiction, even if they do not express any concern about being able to afford a lawyer (Brydges)

R v Bartle (1994 SCC)- Police have a duty to make the accused aware of the ability to contact legal aid or duty counsel for

immediate, preliminary legal advice, and to provide a 1-800 number (Bartle)- Accused was picked up for drunk driving, and was read the standard caution which now, because of

Brydges, included notifying him of the free legal advice of Legal Aid.- Arrested on a Friday night, the accused reasonably thought that the next time he could contact a lawyer

would be Monday morning. The police did not correct this assumption.- While it is possible to waive right to exercise s.10(b) rights, valid waivers are rare- The waiver must be established by the Crown and standard is high → Must show the intention to waive the

right was clear, unequivocal, and done with a full understanding of their rights.- It is possible to waive the right to be informed of the right to counsel but a waiver will only be effective

where there is “a reasonable basis for believing that the detainee in fact knows and has adverted to hisrights, and is aware of the means by which these rights can be exercised.” Thus, detainees who say that theyare aware of their rights do not thereby waive them (Bartle)

(b) When Must this Information be Provided?- Right to counsel “without delay” meaning “immediately upon detention” unless it is necessary for the

officer to first gain control over a dangerous situation- As with the section 10(a) warning, police must re-issue the section 10(b) caution when the nature of the

detention changes significantly- Police need not repeat the section 10(b) caution, however, when detainees are aware of the general extent of

their jeopardy

(c) What Degree of Understanding must Detainees Exhibit to be said to have been Informed of their Rights?1. Requires police to take reasonable steps to facilitate understanding when potential misunderstanding is

objectively evident- If police properly convey the information, they may assume that detainees understand it- The obligation to facilitate arises when it is apparent that comprehension is an issue (drunk,

cognitive deficits, language barrier) then police must take reasonable steps to facilitateunderstanding before attempting to obtain self-incriminating info (R v Baig)

2. The detainees' actual subjective capacity to understand their right to counsel (OPERATING MIND)- Regardless if the impairment was apparent to the police, defence can point to the subjective

experience of an impairment (language, consequences, mental health issues, drugs etc.)- No issues if AC is “capable of communicating with counsel to instruct counsel, and

understand the function of counsel and that he or she can dispense with counsel even if this isnot in the accused's best interests.”

- Section 10(b) requires that detainees be informed of their rights; it does not demand that they talkto a lawyer.

- As long as police ask detainees whether they understand the caution, this achieves a balancebetween the need for comprehension of the right to counsel and police's need for reliable evidence

(d) What is Required for Detainees to invoke their Right to talk to Counsel?- Once the right to counsel is conveyed and understood, the issue becomes whether it is invoked.


- If it is = Police must refrain from eliciting evidence from detainees until they have given them a“reasonable opportunity” to talk to a lawyer

- Yes = Yeah, yes, ah-uh- If not = They may proceed to question (acquire self-incriminating evidence) the detainee if there is

no indication the accused misunderstood or were incapable of asserting their rights- No = Silence, fuck you, maybe, ambigious reponses, being difficult, etc.

- Invocation requires a positive and clear assertion of the right to speak to a lawyer; section 10(b) does notrequire detainees to “waive” their right to consult with counsel for them not to invoke counsel

- TEST for INVOCATION: Invocation arises when police should have appreciated that the detainee wantedto talk to a lawyer. But courts have not required police to “read the mind” of the detainee.

(e) Once this Right is Invoked, what must Police do and refrain from doing to Facilitate Access to Counsel?- When detainees invoke the right to counsel, two police duties are triggered (R v Manninen 1987 SCC)

1. Police must provide a “reasonable opportunity” to exercise the right by giving detainees the meansand time necessary to talk to a lawyer

- This can take a while sometimes depending on the circumstances (being diligent)- Once the “reasonable opportunity” expires, police may proceed with such measures,

regardless of whether detainees have talked to a lawyer2. Police must cease “questioning or otherwise attempting to elicit evidence from the detainee.”

- DILIGENCE- Detainees who have invoked their 10(b) rights are entitled to speak to a lawyer of their choosing,

but they must be diligent in doing so- R v Ross

- Two detainees were unable to contact lawyers of their choosing at 2:00a.m. Before theycould call their lawyers' offices in the morning, police placed them in an ID line-up

- This violated section 10(b) because detainees have a “right to choose their counsel”- Not calling a different lawyer cannot be seen as a waiver of his right to retain- It is only if the lawyer cannot be available within a reasonable time that the detainee should

be expected to exercise right to counsel by calling another lawyer.- No urgency or compelling reason which justified proceeding with a line-up at that time- Reasons will exist to do so, as is the case with driving while impaired charges, where it is

required to gather a breath sample within two hours of the arrest- R v Smith

- AC was given the ability to call counsel at 9:00 p.m. Unable to find lawyer's home number,he chose not to try calling his office, telling police he would contact him in the morning

- By not attempting to call the office (and thereby possibly receiving information on how toreach his lawyer) he did not exercise reasonable diligence

- What is a “Reasonable Opportunity” to Contact Counsel?- Police must allow detainees to telephone a lawyer in PRIVATE, as soon as reasonably possible,

even if privacy is not requested.- The Crown must show that delays in providing access were reasonable in the circumstances- R v Taylor → Reasonable Opportunity- Police arrested and cautioned a suspected impaired driver at the scene of an accident. He did not

appear to have suffered injuries. After he invoked his right to counsel, EMS took him to hospital.Doctors confirmed he was fine, during which he consented to blood samples for medical purposes.Police were aware of his condition, but never attempted to facilitate his request to talk to a lawyer.


- Holding: The Court concluded that police violated 10(b) by failing to at least consider whetherthey could have given him private, telephone access before the first blood samples were taken.

- “Where the individual has requested access to counsel and is in custody at the hospital thepolice have an obligation under 10(b) to take steps to ascertain whether private access to aphone is in fact available, given the circumstances.”

- The fact that he was in an emergency room, she reasoned, was not dispositive.- However, for privacy issues, police are under no legal duty to provide their own cell phone

- TEST: All of the surrounding circumstances must be considered in deciding whether police haveprovided a reasonable opportunity or whether detainees have diligently exercised their right

A. Temporal factors, including the time of the initial detention and duration of the period between thedetention and the start of police attempts to elicit self-incriminating evidence is important (Ross)

B. The nature of detainees' efforts to contact counsel. Detainees who have doggedly pursuedcontact with counsel are more likely to succeed than those viewed as an obstructionist

C. The availability of duty counsel = Detainees will be given less time to consult with their chosenlawyers when duty counsel “has been available all along” (Ross)

- R v Prosper- Unavailability of duty counsel may extend the period of time during which police

are required to refrain from eliciting evidence from detainees- Where duty counsel services are available, detainees unable to contact their own

lawyer will at some point be expected to use themD. Circumstances of “urgency” or other “compelling reason” even if duty counsel unavailable

- This factor has been considered chiefly in impaired driving cases, where police attempt toobtain a breath or blood sample no later than two hours after the suspect last drove (to takeadvantage of an evidentiary presumption)

- An evidentiary presumption is not “a compelling or urgent circumstance” at least not“where duty counsel is unavailable to detainees who have asserted their desire to contact alawyer and have been diligent in exercising their 10(b) rights.” (Prosper)

- As long as someone is being reasonably diligent after invoking their right, they can take aslong as they need… even with impaired driving (Berensky)

- But where detainees could have talked to duty counsel, courts have often treated the twohour limit as an urgent circumstance abbreviating the reasonable opportunity period

E. Seriousness of the offence- R v Black found it was reasonable for the detainee to wait until the morning to try again, in

part because “the charge was alleged to be first degree murder.”- WAIVER→ THE PROSPER WARNING

- Before a “reasonable opportunity” expires, detainees who have not yet talked to a lawyer may“waive” their right to do so. This situation arises when detainees who have invoked their rightto counsel change their minds before talking to a lawyer

- Police may attempt to elicit incriminating information from them, but only after reminding them oftheir rights and ensuring that their waiver is fully informed and voluntary = “Prosper Warning”

- Prosper's purpose “is to ensure that detainees know what they are giving up when they abandontheir efforts to speak to counsel without delay”

- R v Fountain (ONCA)- Facts: Police offered an arrestee who tried to contact his preferred lawyer a choice b/w

waiting until morning to contact him or calling duty counsel now. After the arrestee chosethe former option, the officer began interrogating him without first giving a prosper caution


- Holding: Police must issue the warning whenever it is apparent that detainees are forgoingtheir “immediate right to counsel without delay”

- Police must give the warning whenever it is “apparent” (words or conduct) that detainees havechanged their minds about wanting to speak to a lawyer immediately

- To establish a valid waiver, the prosecution must show that detainees (Prosper)1. Indicated clearly and unequivocally that they no longer wished to talk to a lawyer, and2. Had full knowledge of their rights and appreciated the consequences of foregoing them,

including their rights “to a reasonable opportunity to contact counsel and of their obligationduring this time not to elicit incriminating evidence”

- What about the Diligence Rule?- The fact that a detainee could have done more to contact counsel before “giving up” should

not disentitle them to the Prosper warning = EVERYONE GETS THE WARNING- R v Willier (SCC 2010)

- AC spoke with duty counsel for three minutes after his arrest. Before being interviewed bypolice the next morning he called his lawyer of choice and left a message. He consultedagain briefly with duty counsel. Since he was unable to consult with his preferred lawyer,he argued the police should have given him the Prosper warning before questioning him

- The concerns animating a prosper warning do not arise when a detainee is unsuccessful incontacting a specific lawyer and simply opts to speak with another

- Unless a detainee indicates the advice he received is inadequate (i.e. that advice sucked,what a waste of time, etc, which would trigger Prosper) police may assume the detainee issatisfied with the right to counsel and are entitled to commence an investigative interview

R v Prosper (1994 SCC)- Facts: Cyril Prosper was pulled over by the police for driving erratically. The police noticed that he was

severely inebriated and arrested him. They read him his sec 10(a) and (b) rights and provided him access toa telephone and telephone directory to call a lawyer. He declined to call a lawyer in private practice as hesaid he could not afford it. He then agreed to take a Breathalyzer test.

- 10(b) imposes both informational and implementational duties on state authorities who arrest or detain aperson. The existence of a "holding-off" period flows from the implementational duties to give a detainee areasonable opportunity to contact counsel without delay

Informational Component Implementational Component

- The police must inform all detainees that theyare entitled to have an opportunity to contactcounsel immediately, and that their right to doso is not dependent on their ability to afford aprivate lawyer

- In those jurisdictions which provide freepreliminary legal advice, the police must alsoinform detainees of the existence andavailability of these services and of the meansby which such advice can be accessed(Brydges, Bartle)

- 10(b) requires that the detainee be given anopportunity to "retain and instruct counselwithout delay."

- If the detainee chooses not to contact counsel,no breach results

- If the detaineee choose to speak to counsel,duties on the police and the Ac are triggered

- If the legal system fails to provide the detaineewith the opportunity to consult counsel withoutdelay for whatever reason, breach of s. 10(b) isestablished.


- An additional informational obligation on police is triggered once a detainee, who has previously assertedthis right, indicates a change of mind and no longer wants legal advice. The police must at this point tell thedetainee of the right to a reasonable opportunity to contact counsel and of the obligation on the part of thepolice to hold off during this period.

- 10(b) right to counsel, however, must not be turned into an duty on detainees to seek advice of a lawyerApplication (two breaches):

- After asserting his right to counsel and trying repeatedly to contact a lawyer, the appellant was not informedwhen he changed his mind and agreed to take the breathalyser test that the police were required to hold offfrom their investigation until he had had a reasonable opportunity to contact counsel

- The police in fact failed to hold off administering the breathalyser tests and so failed to afford him thisopportunity. There were no urgent circumstances which justified the police in proceeding so precipitouslywith the breathalyser tests. The appellant acted with due diligence in trying to contact counsel.

R v Luong (2000 ABCA)- Ratio: It is only when a reasonable opportunity to exercise a right to counsel has been given and an

accused individual has been duly diligent in exercising it, that the issue of a valid waiver, and therequirement to give a “Prosper warning” arises.

- Eleven helpful steps…-

1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right hasbeen infringed or denied.

2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest ordetain a person.

3. The informational duty is to inform the detainee of his or her right to retain and instruct counselwithout delay and of the existence and availability of Legal Aid and duty counsel.

4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise hisor her right to counsel.

5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercisethe right (except in urgent and dangerous circumstances)”

6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he orshe has had that reasonable opportunity (again, except in cases of urgency or danger)”

7. A trial judge must first determine whether, in all of the circumstances, the police provided the detaineewith a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishingthat the detainee who invoked the right to counsel was provided with a reasonable opportunity toexercise the right.

8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the

trial judge consider whether the detainee, who has invoked the right to counsel, has beenreasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonablydiligent in the exercise of his rights

10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent inexercising it, the implementation duties either do not arise in the first place or will be suspended. In suchcircumstances, no infringement is made out

11. Once a detainee asserts his or her right to counsel and is duly diligent in exercising it (having beenafforded a reasonable opportunity to exercise it) and if the detainee indicates that he or she has changedhis or her mind and no longer wants legal advice, the Crown is required to prove a valid waiver of theright to counsel. In such a case, state authorities have an additional informational obligation to “tell the


detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on thepart of the police during this time not to take any statements or require the detainee to participate in anypotentially incriminating process until he has had that reasonable opportunity” (Prosper Warning)

(f) Police Questioning After a Detainee has Been Afforded a Reasonable Opportunity to Talk to a Lawyer?- Once detainees have been given a single reasonable opportunity to talk to a lawyer, police may question or

otherwise attempt to elicit evidence from them, even if they have not actually talked to a lawyer- Police are also not required to permit detainees' lawyers to be present during questioning

- Unlike the U.S.- Exception is the YCJA where a lawyer can be present during questioning

- But there are limited exceptions as a result of the SCC in R v Sinclair- Police must offer a second chance to talk to a lawyer (re-issue sec 10(b)) when “reconsultation is

necessary for the detainee to have the information relevant to choosing whether to cooperate withthe police investigation or not.”

1. When there is a “fundamental and discrete change in the purpose of the investigation, oneinvolving a different and unrelated offence or a significantly more serious offence than thatcontemplated at the time of the warning.” (R v Sinclair)

2. When police plan to subject detainees to “[n]on routine procedures, like participation in aline-up or submitting to a polygraph” (Sinclair)

3. Lengthy and persistent questioning is unlikely to either give rise to a section 10(b)violation or a right to re-consultation (Sinclair)

4. Police who become aware that a detainee may not have understood “the initial s. 10(b)advice of his right to counsel” must provide another opportunity for consultation (Sinclair)

5. An additional opportunity must be given if “police undermine the legal advice that thedetainee has received” (Sinclair)

- Section 10(b) prohibits police from “belittling an accused's lawyer with the expressgoal or effect of undermining the accused's confidence in and relationship withdefence counsel.” (R v Burlingham)

6. Offering a plea bargain to a detainee in the absence of his or her lawyer may violate section10(b) (Burlingham)

- In that case police pressure the accused to accept a deal on offer for a “short periodof time during which they know defence counsel to be unavailable.”

- 10(b) requires any plea bargain to be offered either to the accused's counsel or tothe accused while in the presence of his or her counsel, or to permit the AC tospeak to a lawyer about the plea bargain, unless the accused has expressly waivedthe right to counsel

- TEST: A right to re-consult must be “objectively observable.” It is not enough for the accusedto assert, after the fact, that he was confused (subjective not enough) absent objective indicatorsthat renewed legal consultation was required to permit him to make a meaningful choice as towhether to cooperate with the police investigation or refuse to do so (Sinclair)

R v Burlingham (1995 SCC)- Facts: Burlingham was arrested for two murders. Over a period of four days, he was interrogated by police

despite his continued request to see a lawyer. During the interrogation, the police made disparagingremarks about the accused's lawyer. They said the lawyer is untrustworthy and only cares about money,causing the accused to feel worrisome. The police aso later offered to reduce the charge to second degree


murder if Burlingham were willing to disclose the location of the murder weapon. Eventually, he agreedand took them to the location where he had hidden the gun

- The Crown, however, had not consented to the deal and did not follow through with the bargain. The trialjudge found that the deal was an honest mistake. However, since Burlingham did not have access to alawyer, his rights under section 10(b) were violated

- Holding: In a six to one decision, the SCC found the evidence should be excluded under section 24(2)and overturned the conviction.

- S.10(b) protects an accused from having his lawyer belittled with the express goal or effect ofundermining their confidence in counsel.

- The improper conduct with regards to the plea bargain constituted an infringement of s.10(b) as theofficers pressured the accused into accepting a deal without speaking to his lawyer.

- The breach by the police was sufficient enough to warrant an exclusion of the statement to thepolice and the gun that they found as a result

- Despite Burlingham, courts have allowed extensive post-arrest questioning, even when detaineesask to speak to their lawyers or tell police that they do not want to speak.

- In R. v. Singh, the courts upheld the confession obtained after the accused said that he wanted tospeak to his lawyer again eighteen times.

(g) When Can the Failure to Comply with Section 10 be Justified under Section 1 of the Charter?- Section 10(a)

- There have been no cases upholding limits on section 10(a) of the Charter- Section 10(b)

- Limits on section 10(b) have been justified in the context of motor vehicle stops- Police need not comply with section 10(b) in exercising powers to briefly detain motorists to

investigate driving related offences- R v Thomsen

- The right to counsel may be denied to drivers subject to breath alcohol screening demands(of course need reasonable suspicion)

- R v Orbanski; R v Elias- The Court has upheld the denial of the right to counsel to drivers questioned about their

alcohol consumption or asked to perform physical sobriety tests (of course need reasonablesuspicion)

- R v Therens- Rightly concluded that drivers subject to breathalyzer demands (after an ASD or screening

fail) must be informed of their right to counsel under section 10(b)- A positive result is not admissible at trial, but is admissible to prove that police had RPG

to demand a breathalyzer sample, which determines the alcohol concentration in a person'sblood and is admissible to prove impaired driving offences (need to 10(b) here)

- R v Caswell SCC 2016- Refusing to provide an ASD sample constitutes an offence and evidence of a refusal is

admissible notwithstanding the accused's s. 10(b) right to counsel is inoperative- Compliance with 10(b) is required before police question detained motorists or passengers about matters

unrelated to driving.

Section 7 of the Charter and Under Cover Questioning- Sec 7 → Everyone has the “the right to life, liberty and security of the person and the right not to be

deprived thereof except in accordance with the principles of fundamental justice”


- The SCC has interpreted sec 7 to protect a “right to silence” and against self-incrimination (R v Hebert)- When a detainee makes a statement to a person in authority, this right is subsumed by the confessions rule.- When detainees are questioned by non-undercover police, sec 7 does not offer any greater protection

against coercion than that provided by sec 10- Sec 7 does not apply to Mr. Big stings- The situation is different, however, when an undercover agent questions a detainee and elicits

information = CELLSHOTS- The confessions rule does not apply when suspects do not know that their questionnaires are

persons in authority- If a suspect speaks to a cellmate without eliciting behaviour, it is by their own choice they forgo the

right to remain silent and they have accepted the risk that this person may speak to the police anddoes not violate their right to silence

R. v. Hebert (1990 SCC)- Ratio: Sec 7 forbids covert state agents from actively eliciting statements from detained suspects- Facts: AC talked to a lawyer, who advised him to remain silent. Police then attempted to interview him, but

he refused to make a statement. He was placed in a cell with a cop posing as a fellow arrestee. The officerengaged him in conversation and he made incriminating statements.

- Because the statements were not made to a known “person in authority” and were made after he wasproperly cautioned, this trickery violated neither the confessions rule nor sec 10

- The “right to silence” is violated when detained suspects are duped into foregoing their rights to silence andcounsel by persons concealing their identity as law enforcement agents

- “Hebert Rule” Applies when Three Conditions are Met:1. The right applies only during detention because they are controlled by the State, not when suspects

are tricked into confessing to undercover agents before or after- Essentially when you are in a cell

2. The person eliciting the statement must be a state agent- Police, prosecutors, prison guards, etc- Private persons may also be state agents if their relationship with the authorities is such

that their interaction with the suspect was “materially different from what it would havebeen had there been no such relationship” with the authorities (Broyles)

- R v Broyles (SCC 1991)- Charged with killing his grandmother; circumstantial case against him- The accused's friend acted as state agent when, at the request of police, he wore a

recording device during his conversation with the accused. But for the police'sinvolvement, the conversation “would either not have occurred at all or else wouldhave taken a materially different course”

- The friend encouraged the accused to ignore his lawyer’s advice to remain silentand elicited the information. All of the evidence was excluded on the basis that thefriend became a state agent.

- Test: The question to be asked is “would the exchange between the accused andthe 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? (same test as a “persons inauthority” for the confessions rule)

3. The state agent must actively elicit the statement and not merely passively observe the suspect.- Two key factors:1. The form of conversation that takes place between the state agent and the suspect.


- Active elicitation arises when the conversation is akin to an interrogation, as whereagents initiate the conversation or ask leading questions

- But, the right to silence is not infringed when agents behave as they ordinarilywould in their adopted roles and are not eliciting statements

- R v Liew- The accused had a conversation with an undercover officer posing as his

partner in a drug transaction. The officer did not actively elicit thestatement as he neither strayed from his role nor “prompted, coaxed orcajoled the appellant to respond” = statement was good

2. The relationship between the agent and the suspect- The right to silence is more likely to be violated where the agent has exploited any

of the suspect's vulnerabilities, obligations or trust relationships

Lecture 6: Intake Procedures- Starting here, we have moved from the investigative stage (everything prior to here) to the adjudicative

phase, which is where the Court’s take over the police investigation.- Intake procedures transform a suspect/arrestee into AC/defendant- EXAM TIP: If asked what initiates the prosecution – the answer is the laying of an information

1. The Swearing and Laying the Information (the formal charging document - Section 504)- You can be arrested but not charged - it is different!- This is the document that charges someone with a criminal offence; its format is set out in Form 2

of the CC (is the same for summary, indictable, and hybrid offences)A. The information is sworn under oath before a “justice” (usually sworn by police but can be a

private person laying a private information)- Includes the name of the person charged, time, place, the offence, name of victims, etc- This procedure takes place on an ex parte (without the person to be charged in the

courtroom) and in camera basis (out of the public, in a court)- Requires that the informant make a sworn declaration that he has “personal knowledge” or

“believes on reasonable grounds” the person to be charged committed the offence(s)- The grounds supporting the charge are not necessary at this point- Informations are ordinary laid in person before a justice, but can also be made by any

telecommunications that produces a writing (email, fax, etc)B. Ministerial Function to Accept

- Absent some defect, the justice must receive the charge; there is no discretion to refuse itC. Once sworn, the person named therein is “charged” with an offence

- Starts the prosecutionD. Timing of the Laying of the information

- If police issue a police-issued process for compelling appearance (a promise to appear,recognizance, or undertaking) the information will be laid after the issue is done and beforepolice apply for a court order confirming the process they have issued

- If police arrest the accused and hold him or her in custody, the information will be laidafter the arrest and before the accused's first court appearance

- If the police seek to compel appearance through a court-issued process (a summons orarrest warrant) they will lay the information before applying for that process

2. Confirming or Cancelling Police Issue Process- Police should only hold a person in custody if they have reasonable grounds to believe that


1. The person's detention is necessary in the “public interest”2. The person will fail to attend court in answer to the charge

- If the police don’t hold a person in custody, but charge and arrest them nonetheless, they maycompel their attendance in court by:

1. An appearance notice2. A promise to appear (with or without conditions)3. A recognizance or undertaking entered into before an officer in charge (with or without

conditions)- Sec 505 of the CC requires the information charging the offence be “laid before a justice as soon as

practicable thereafter and before the time stated in the appearance notice, promise to appear orrecognizance issued to the accused for his attendance in court.”

- Failure to comply with 505 does not invalidate the information or result in a loss ofjurisdiction

- If the accused does not attend court = Noncompliance with sec 505 will obviate anycharge of failure to appear and preclude the court from issuing an arrest warrant

- If the accused does attend court = The deficiency in process becomes irrelevant and theinformation remains valid

- After information is laid, the justice's role shifts from ministerial to judicial in deciding toconfirm or cancel the process issued by police by conducting an in camera pre-inquiry

- Confirm = Where the justice “considers that a case for doing so is made out, whether theinformation relates to the offence alleged in the appearance notice, promise to appear orrecognizance or to an included or other offence” he or she is to confirm the process andendorse the information accordingly or to issue a summons a warrant instead

- Cancel = If a sufficient case is not made out, the justice is required to cancel theappearance notice, promise to appear or recognizance and cause the accused to be notified

- What is a case made out?- Evidence discloses a prima facie case of the offences alleged (all elements) (Whitmore)- RPG to believe the person committed the offence (Storrey)

3. Issuing a Summons or an Arrest Warrant- Police who decide to either not arrest or arrest and release a person they intend to charge must

obtain a summons from a justice to compel the person's attendance in court OR ask a justice toissue an arrest warrant

- This is done so that details of the warrant can be registered on CPIC- Once a warrant issues, any officer who encounters the individual can arrest him or her even

- Police seeking either order must first lay an information before a justice (explained above) andafter the information is received, the justice's role shifts from ministerial to judicial in decidingwhether to issue a summons or warrant

- Same as police issued processes, a summons or warrant should issue if the justice“considers that a case for so doing is made out” (same test as above)

- If a case is not made out, case law suggests that an officer may try again before a differentjustice with the benefit of additional evidence

- Section 507 = The court is supposed to issue a summons rather than an arrest warrant unless it hasreasons to believe it is in the public interest to issue an arrest warrant... (Budreo v R)

- Public interest is…a. Person is likely not to show up on court unless arrested


b. Fearing the person will continue to commit offences (esp. serious offences) beforetheir court appearance

- The issuance of an arrest warrant is appropriate where an AC who was issued a summons,appearance notice, promise to appear or recognizance fails to attend for fingerprinting, failsto attend court as required, or where an individual appears to be evading service

- A summons issues in Form 6- It indicates the offence charged and directs the accused to attend court at a time and date

specified and thereafter as required by the court- Sets out s. 509 for failing to attend to put AC on notice that compliance is mandatory- The summons must either be personally served on the person to whom it is directed or left

at their residence with an occupant who appears at least 16 years of age- An arrest warrant issues in Form 7

- Names the person to be arrested, briefly sets out the offence charged and orders that theperson named be arrested “forthwith” and thereafter brought before the court

- An arrest warrant remains in force until the person who is named in it is arrested appearsvoluntarily in court to answer to the charge

- OVERALL methods of getting AC to Court- Summons, Warrant, Promise to Appear (PTA), Recognizance, and an Undertaking

4. Issuing Process for Privately laid Charges (long history at common law)- “Anyone” may lay an information charging another person with an offence, including the police

and private persons (but always need RPG)- Privately laid charges provide an important check on state power (ignoring wrongdoing or is bias)- When a justice receives an information from a private complainant it must conduct a pre-inquiry.

- Takes place in camera and on an ex parte basis- Requires the judge to hear both the allegations of the informant and the evidence of

witnesses, and by permitting the Crown to be present to test the evidence- Only “a case for doing so is made out shall issue a summons or warrant.”- What is a case made out?

- Evidence discloses a prima facie case of the offences alleged (all elements)- Same as above

- If the judge decides against issuing a summons or warrant, a further pre-inquiry is barred for thesame or an included offence unless there is new evidence

- If the judge decides that a case for doing so is made out, a summons or a warrant may issue- The same principles that guide the choice between issuing a summons or a warrant for

police laid charges should apply equally in this context- Once the accused appears in court the private informant will be responsible for conducting

the prosecution, but in practice, the Crown exercises its authority to assume carriage ofsuch cases (also has the discretion over whether or not to proceed with the prosecution)

5. Taking Those Arrested before a Justice Within 24 Hours = THE 24 HOUR RULE- Section 503(1)(a) = Once arrested, a person who is not released must be taken in front of a justice

“without unreasonable delay” and no later than 24 hours- Absent a reasonable delay, a police officer who arrests someone does not have the qualified right to

wait 24 hours before taking them before a Justice (if there is time to bring the accused in, then itmust be done sooner than later)

- Sec 10(c) guarantees the right to go in front of a judge or justice – habeas corpus


- Reasonable delays that are allowed include1. Securing or preserving evidence,2. Fingerprinting and photographing,3. Conducting a line-up, interrogation

- If the accused is not released or taken in front of a justice in that 24 hour period, the detentionbecomes unlawful and means that s. 9 of the Charter is violated (arbitrary detention) and theaccused can then seek a remedy under s. 24(2) = AUTOMATIC BREACH

- To the extent the police have a good excuse for missing the deadline, such explanations isconsidered when deciding on the appropriate remedy under section 24

- Potential remedies:- Becomes a consideration for assessing the voluntariness of statements made- Evidence acquired as a result of the delay can be excluded under s. 24(2)- Sometimes a reduction in the sentence that would otherwise have been appropriate

- After an accused is taken to court any subsequent detention should be in a provincial remand centrepursuant to court order, not in police holding cells

- R v Riley- Accused held for over 30 hours, domestic assault case, the delay was systemic and ongoing- SCC (9-0) ordered a stay of proceedings

Lecture 7: Bail- Sec 11(e) of the Charter → Any person charged with an offence has a right: (e) not to be denied

reasonable bail without just cause- Other than determining guilt or innocence, whether an individual charged with a crime is released or

detained before trial is undoubtedly the most important judgment in the criminal process.- Those denied bail are held in maximum-security facilities, where personal searches, overcrowding and

lengthy lockdowns are common- Pre-trial custody may jeopardize a suspect's employment, result in a loss of residence, undermine personal

or family relationships and interfere with the ability to prepare a defence.- African and Aboriginal Canadians are more likely to be detained than others before trial- Implicates 2 Rights:

1. The right to bail2. The right to reasonable bail

- People are more likely to be found guilty if held in custody because it’s much easier to develop andorganize your case when you are not confined to custody.

History and Current Challenges- Bail underwent a change in 1970 with the Bail Reform Act that made a ton of changes to the CC- Prior to this reform police were holding 91-97% of those that could be released (Martin Friedland research;

also what the actual fuck police)- Findings were profoundly important for law reform in this area

a. Found POs overwhelmingly favoured arrest – decision to hold arrestees was too often driven bypaperwork avoidance and punitive mindset on part of some officers

b. Code gave virtually no guidance to judges in deciding whether or not to order release- Unfortunately, over the last three decades the percentage of accused persons who are held in custody before

trial has tripled. During that same period, there has been a corresponding decrease in the number of personsserving sentences post-conviction.


- For example, in 2009/2010, among the total custodial population, 58 per cent were in remand and theremaining 42 per cent were serving sentences.

Current Legislative Scheme- Part XVI (16) makes clear there is a legislated preference for pre-trial release over pre-trial detention- Derived from the Bail Reform Act 1970 and governed by Part XVI of the CC

1. 24 Hour Rule – Arrested persons not released must normally be brought before justice within 24 hours- W/o delay and as soon as possible; if not, automatic section 9 breach even if no bad faith

2. Justice will decide question of bail – Unless AC pleads guilty or is charged with 469 offence- If charged with 469 offence, justice must order AC detained in custody- AC wishing to be released must apply for release in superior court (QB)

3. Role of the Justices of the Peacea. Justice = Justice of the peace and provincial court judges

- To be appointed a JOP, there is no precondition to be a lawyer; have a law degree (this issome buuuuuuuuulllllllshit)

- Can cause problems and lead to more bail pretrial detentionsb. Makes bail determinations for all offences except s. 469 CC offences

4. In theory, our Legislative Scheme regarding Bail is very liberal – In practice, we have more peoplein jail that are presumed innocent (prior to trial) than people in custody that have been found guilty.

a. 42% of those in pre-trial custody Aboriginal.

(1) Presumption in Favour of Release and the Ladder Approach- The release of accused persons is the cardinal rule and detention the exception (R v St. Cloud)- Other than section 469 (exclusive jurisdiction offences) and 515(6) (reverse onus), there is a presumption

that an accused should be released on an undertaking without conditions.- Section 515(1): Obliges the justice to order an accused's (who is not charged with a section 469 offence

and does not plead guilty) unconditional release without conditions unless the Crown “shows cause” whyeither the accused's detention in custody or some more restrictive form of release is justified

- THE LADDER PRINCIPLE- Release is favoured at the earliest reasonable opportunity and... on the least onerous grounds- The Crown required to justify more restrictive forms of release up each rung of the ladder

1. An undertaking without conditions2. To an undertaking with conditions3. To a recognizance without sureties and without deposit of money, but with conditions4. To a recognizance with sureties and without deposit but with conditions with the Crown's

consent, to a recognizance without sureties but with a deposit of money in an amountdirected by the justice with conditions

- R v Antic- A presumption of a ladder step approach to bail (start with less intrusive conditions)- A recognizance with sureties is one of the most onerous forms of release

(2) Bail Conditions- STARTING POINT is release on an undertaking without conditions- Under the ladder approach, the burden is on the Crown to justify all conditions- The justice has discretion in ordering conditions- Conditions per sec 515(4) include:

- Report to a PO, remain in a jurisdiction, report change of address, not communicate with thevictim, surrender passport


- Impose conditions tailored to the specific allegations (ensuring safety of the victim, witness, etc)- Mandatory Legislative Directions per sec s. 515(4.1) of Conditions

- Crimes of violence, terrorism, criminal harrassment, drug crime, weapons, etc., the justice mustinclude a weapons, ammunition, and explosive prohibition unless they believe the condition isnecessary to security and safety interests

- Conditions must be clear and not ambiguous (or else read in favour of accused)- MUST REMEMBER → An accused is PRESUMED innocent at the bail...

- So need to be careful with conditions- Shouldn’t be onerous, only imposed if necessary, and only if a realistic chance of compliance

(3) Sureties- A surety is normally someone well-known to the accused, typically a family member, friend or employer,

who agrees to supervise the accused to ensure they attend court and comply with any conditions of release- It is an offence to offer or accept money to act as a surety- Approval of Sureties:

- Responsibility belongs to the court – but may be delegated to the Crown- Court may consider:

- Relationship Between Surety and AC: can they be expected to supervise and take action if AC failsto live up to conditions?

- Character of Surety: can they be entrusted to conscientiously discharge their responsibilities?- Financial Resources: can they satisfy the commitment?

- The surety's responsibilities continue until the accused is either discharged or sentenced UNLESS theywrite to the court they want to release their obligation under the recognizance

(4) Adjournments and Delays- Section 515(1) says an accused deserving of bail will be released within 24 hours of arrest- It is common, however, for the bail hearing to be adjourned.- Section 515(1) contemplates an adjournment at either party's request, the only limitation being that the AC

must consent to any adjournment longer than three clear days by the Crown- Prosecutors should offer some legitimate reason for an adjournment, which should not be granted merely

because it is requested- An AC may seek a lengthy adjournment for legitimate reasons, such as obtaining disclosure or developing

a bail release plan- It is incumbent on governments to provide resources (courtrooms, justices, prosecutors, and security staff)

to ensure that the Code's promise of a bail hearing within 24 hours of arrest is realized- Sections 9 and 11(e) are violated when an accused is forced to languish in custody awaiting a bail hearing

due to inadequate resources!!


- When 515(6) applies, the accused will be detained unless he or she shows cause why pre-trialdetention is not justified

- If an accused is released, the justice is required to provide reasons why- Examples:

1. An accused is charged with an indictable offence while already subject to an earlier releaseorder for another indictable offence

2. As offence that is alleged to have been committed for the benefit of a criminal organization


3. A specified terrorism offence4. Illegal weapons trafficking5. Importing or possession for the purpose of trafficking6. Failing to attend court7. If the accused is not ordinarily a resident of Canada, etc

2. Section 469 Offences Reversal- Section 522(2) = Where an accused is charged with a 469 offence, a judge in a superior court

shall order that the accused be detained in custody unless the accused shows cause why hisdetention in custody is not justified within the meaning of subsection 515(10)

1. Bail hearings for such offences are not automatic- When an accused charged with murder or another 469 offence is first brought to court, the

justice must order that the accused be detained in custody (section 515(11))- Only a superior court judge may order the accused's release and the accused must apply to

that court for a bail hearing, with notice to the prosecutor2. The reversal onus of proof to show why they should be released on bail

- Bail will be denied unless the accused “shows cause why his detention in custody is notjustified within the meaning of section 515(10)

- Appellate courts have held this reverse onus for murder under 11(e) as justified

Criteria Governing BailS.515(10) sets out the grounds of criteria for ordering an accused’s detention. An accused can be detained forone or more of the listed grounds = This is a “Show Cause” Hearing that the Crown bears to show why theaccused needs to be detained **KNOW FOR EXAM**

1. Primary Ground: s. 515(10)(a) – Allows for detention where it is “necessary to ensure his or herattendance in court in order to be dealt with according to law.”

- Considerations include whether the accused has roots in the community: how long have they livedin the community, a job, family, residence and friends all weigh in favour of release

- These considerations often work against people who are already marginalized: the homeless,unemployed, and socially isolated

- Sureties who are responsible members of the community who knows AC is important to consider- Past record of failing to appear while on bail is considered

- Recent prior convictions for failing to attend court weigh in favour of detention to court- Old records of failing to appear carry less weight

- How the accused responds once aware that the police are interested in making an arrest- If an accused takes flight and becomes a fugitive, this militates in favour of detention

- Being concerned about a failure to appear in court but that does not mean it is necessary!!- Concerned does not equate to necessary

2. Secondary Ground: s. 515(10)(b) – Allows for detention where it is “necessary for the protection or safetyof the public, including and victim or witness to the offence, having regard to all the circumstancesincluding any substantial likelihood that the accused will, if released, commit a criminal offence or interferewith the administration of justice”

- R v Morales- The “danger or likelihood that an individual will commit a criminal offence does NOT in

itself provide just cause for detention”- Bail is denied only for those who pose a “substantial likelihood” of committing an

offence or interfering with the administration of justice


- Look to the accused’s record and assess whether there is a substantial likelihood that they willcommit another criminal offence or interfere with the administration of justice

- A pattern of similar offences will weigh in favour of detention- Failing to attend court- Dated records carry less weight

- A further consideration is whether an accused is already on bail when charged- Places the burden on the accused to justify his or her release- If offence is similar, weigh in favour of detention

- If the nature of the offence is a serious personal injury offence and evidence seems overwhelming,can easily be rationalized as being in the interests of public safety

- Mental illness and addiction may favour detention if related to the offence (esp if violent)- Interfering with the administration of justice

- Influencing potential witnesses- Destroying evidence, connected to organized crime, etc

3. Tertiary Ground: s. 515(10)(c) (the most controversial ground) – Allows for detention where it isnecessary to maintain confidence in the administration of justice. Looks at:

i. The strength of the Crown’s case (nature and quantity of evidence)ii. The gravity of the offence (min and max sentences types)

iii. The circumstances surrounding the commission of the offence, including if a firearm wasused or the victim was vulnerable

iv. The fact that the accused is liable, on conviction, for a potentially lengthy term ofimprisonment or, in the case of an offence that involves, or whose subject-matter is, afirearm, a minimum punishment of imprisonment for a term of three years or more

- R v Hall (2002 SCC)- Denying bail to “maintain confidence in the administration of justice” is not a mere

'catch-all' for cases where the first two grounds have failed.- R v Saint-Cloud

- If ALL enumerated factors are made out, a detention order must follow

Interesting Penney Point on Bail- It is not a precondition for denying bail or imposing restrictive bail conditions that there be reasonable and

probable grounds to support the charge(s)- This sort of vetting occurs when police release an accused and seek confirmation of the process they have

issued to compel the accused's appearance in court. Inexplicably, there is no parallel procedure for thoseheld for bail hearings

- Parliament should require judicial confirmation of RPG to support the charge(s) as a condition for refusingbail or imposing restrictive bail conditions. Without such a requirement, the current scheme may be arguedas being unconstitutional

The Role of R v Gladue Principles- Bob’s opinion: There is a serious crisis here with respect to Aboriginal’s being denied custody.- Aboriginal persons are grossly overrepresented in pre-trial detention facilities due to their economic and

social marginalization (they make up 4-5% of the population)- Section 718.2(e) requires that judges exercise restraint when sentencing, “with particular attention to

circumstances of aboriginal offenders”- Courts have extended these principles to the context of bail


- Section 493.2 added in 2019 to give attention to Aboriginal (and other vulnerable groups) to considerGladue factors in bail

- R v Robinson- Gladue principles should be weighed in considering “the types of release plans, enforcement or

control procedures and sanctions that would, because of his or her particular aboriginal heritage orconnections, be appropriate in the circumstances of the offender and would satisfy the primary,secondary and tertiary grounds for release.”

- Many Aboriginal accused, factors that would usually favour detention, such as “a poor employmentrecord, substance abuse issues, and unstable family and community support” are “the very resultsthat flow from the Canadian history of colonialism, dislocation and residential schools... Failing toaccount for this reality would “serve to perpetuate systemic racial discrimination”

Evidence and Procedure at the Bail Hearing- A bail hearing is not a trial. Its purpose is to facilitate the timely release of those who are good candidates

for bail while ensuring that those who do not meet the criteria for release are detained- Sec 517 = If an accused requests it, a justice presiding at a bail hearing must impose a publication ban on

“the evidence taken, the information given or the representations made” and “the reasons given by thejustice” to release or detain

- Subject to limitations on questioning the accused regarding the offence with which he is charged, the justicemay “make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable”(to police, counsel, accused, etc)

- The Crown under 518(1)(c) prosecutor may, “lead evidence” to prove that the accused “has previously beenconvicted of a criminal offence,” “has been charged with and is awaiting trial for another criminal offence,”“has previously committed an offence under section 145” and “to show the circumstances of the allegedoffence, particularly as they relate to the probability of conviction of the accused”

- Questioning the Accused- Accused persons cannot be compelled to testify at their bail hearing- If they choose to testify, the questioning will be “on the accused as an individual: what kind of

person he or she is, and whether he or she is likely to be a danger for society or to appear at trial”- Thus, confined to character

- 518(1)(b) states the accused shall not be examined by the justice or any other persons except theircounsel respecting the offence... and no inquiry shall be made of the accused respecting thatoffence by way of cross-examination unless the accused has testified respecting the offence

- If the accused testifies “respecting the offence” the door is opened under 518(1)(b) and the Crownwill be entitled to cross-examine the accused

- If an accused says anything in his or her testimony to suggest, “that the wrong person hasbeen arrested or that the alleged offence is somehow excused or justified” then this shouldundoubtedly be sufficient to trigger the prosecutor's right to cross-examine

- The choice to testify at one's bail hearing may have implications for the accused at trial- An accused may be cross-examined at trial based on their testimony from the bail hearing- 518(1)(b) supplies an important protection = if its prohibition is transgressed (the Crown

asking about the offence when the AC did not bring it up) the resulting testimony cannot beused to cross-examine the accused at trial

Reviewing the Initial Bail Determination- The forum for a bail determination review will vary depending on whether a section 469 offence is charged- The rules respecting publication bans and questioning the accused apply equally on the bail review


A. Section 469 Offence Charged- A superior court judge initially has exclusive jurisdiction to decide whether to grant bail under 522- If the accused wants to have the decision reviewed, it can only be heard by the Court of Appeal

BUT is subjected to what the applicant is seeking in terms of relief- Question of Fact = Applicant seeks review on the basis of a change in circumstances, bring a

second bail application in the superior court- Question of Law = If applicant seeks review over the correctness of the initial decision, the CA

should conduct the review (not a matter of right, need leave from the acting chief justice (680))B. All Other Cases Involving Adult Accuseds

- Bail decisions may be reviewed at any time before trial on an application by either the accused orthe prosecutor (521(1))

- In most jurisdictions a superior court judge in QB conducts such reviews (from PC decision)- Wide range of review, including whether or not to order an accused person's release from custody,

the form of release, and any conditions imposed- A bail review may be brought after providing at least two days written notice to the other side- Unless ordered by the court, the accused is not required to be present at the review- If the judge adjourns the bail review, but if the accused is in custody, it can be for no longer then 3

days without his or her consent- R. v. St-Cloud

- The reviewing judge does not have an open-ended, de novo discretion to review the initialdetermination. Instead, the reviewing judge may intervene only where:

1. The original justice erred in law2. The impugned decision was clearly inappropriate (i.e., if the original justice gave

excessive or insufficient weight to relevant factors);3. There is new evidence that shows a material and relevant change in the case

C. Youth- Youth can ask for bail from the JP and then apply to the PC (a superior court acting as a youth

justice court) to hear the bail in an “original application”- The application will be considered new; there is no deference to the justice of the peace's original

decision… but does require two clear days' written notice to the opposing side- If a young person is charged with a 469 offence, the initial bail decision must be made by a youth

justice court judge. As a result, the court of appeal undertakes reviews of such decisions under 680

Revoking Bail Under Section 524- Permits police to arrest the accused without a warrant when they have RG to believe the accused has...

1. Contravened or is about to contravene a summons, appearance notice, promise to appear,undertaking or recognizance; or

2. Has committed an indictable offence while on any one of these forms of release- An accused who is arrested under these provisions must thereafter be taken before a justice

- If the accused was not on bail for a section 469 offence = Revocation hearing (decide whether todetain or to release but with new conditions)

- If the accused is arrested while on bail for a section 469 offence = Must order the accused to betaken before a superior court judge

Bail Pending Appeal on Conviction- Under section 679, an appellant may apply for release on bail pending the determination of his or her

appeal or an application for leave to appeal to the SCC


- A single judge of the CA hears the application . The applicant must establish, on a balance of probabilities(a) the appeal or application for leave to appeal is not frivolous; (b) they will surrender into custody inaccordance with the terms of the order; and (c) detention is not necessary in the public interest.

Constitutional Considerations- Section 11(e) → The right not to be denied reasonable bail without just cause- If a person charged with an offence is presumed innocent then how can detention before trial be justified?- R v Pearson (1992 SCC)

- The presumption of innocence operates throughout the CJS and is a PFJ under s 7 of the Charter- Its requirements at the bail stage are met when the requirements of section 11(e) are satisfied by

respecting the right of accused persons not to be denied reasonable bail without just cause.- Section 11(e) secures TWO rights

1. The right not to be denied release without just cause (the right to bail)2. The right to have such release subject to reasonable bail (reasonable terms)

- Could we argue that breaching section 11(e) = breaching section 7?- TEST: There will be “just cause” for denying bail where two conditions are satisfied:

1. Bail can be denied only in a narrow set of circumstances (in theory)2. The denial must serve to promote the proper functioning of the bail system = Section 515(10)

- The SCC says the reverse onus complied with section 11(e) because…1. It reversed the burden only in a narrower set of circumstances = Sections 469 and 515(6) (in the

Pearson case it was importing and trafficking cocaine)2. Those charged with such offences, given their profit motive, are more likely to reoffend and fail to

attend court (necessary for a proper functioning bail system) (drug offences)- Also, Murder

- Courts of appeal have also upheld the reverse onus applying to those charged with murder- “Shall order that the accused be detained in custody” unless the accused “shows cause why his

detention in custody is not justified within the meaning of 515(10)”- Reverse onus is upheld because the category of accused persons to whom the provision applies is

(1) narrow to satisfy the “just cause” requirement, and (2) the punishment for murder (automaticlife imprisonment) provides a considerable incentive to flee

Exam Takeaways:- Part 16 → Principle of restraint shall give primary consideration to release the accused at the earliest

possible time with the less onerous conditions- Supported in Zora, Antic, St. Cloud

- Section 498 = dealing with police officer release- If released on an undertaking with conditions, the AC can change them on first appearance- The Crown does not need to consent to this

- A lot of bail codification sections but we still have a problem with bail in Canada- There are a lot of people in prison- Shouldn’t have more people in custody awaiting trial than those awaiting sentence (60/40 split)- In tension with the presumption of innocence = Because of the presumption of innocence, there

should not be any punishment before a secured conviction!- Racism, systemic, overrepresentation problems

- Aboriginal overrepresentation (30% in custody, 45% women in custody are Indigenous)- Detained for mental health issues, addictions, etc

- Murder is its OWN ANIMAL (469 offence)- Cannot speak to bail on a murder charge in PC… has to done at QB


- Attempted murder is not included in this (that is still in PC)- Is also a reverse onus situation

Lecture 8: Prosecutorial FunctionIntroduction

- Crowns can do more work and make a difference for the AC than a defence lawyer (first line of defence)- Conduct the Crown’s case at preliminary hearings, trials, sentencing, appeals- Discretion to proceed, withdraw, or stay charges, enter plea agreements, proceed summary/indictment- Have lots of discretion and power with little external oversight- Unfortunately, overreaching by prosecutors has contributed to causing wrongful convictions- A Crown’s duty is to ensure that justice is done = the prosecutor's role is to be lil ministers of justice (yay)- R v Boucher

- Justice requires that prosecutors seek the truth in a fair and just manner (keeping in mind that somedefendants may be innocent) and respecting the legal and constitutional rights of the AC

- The purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury whatthe 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.- The role of prosecutor excludes any notion of winning or losing; his function is a matter of public

duty than which in civil life there can be none charged with greater personal responsibility.- R v Regan

- Prosecutors can still act an adversarial manner and prepare their cases as such- Prosecutors must balance their obligations as advocates with their duties as ministers of justice

Prosecutorial AuthorityA. Provincial Prosecutions

- Responsible to provincial Attorney General- Conducts majority of criminal prosecutions, including most offences in Criminal Code

B. Federal Prosecutions- Responsible to Federal AG- Most prosecutions of non-Code offences, including those under the Controlled Drugs and

Substances Act, Income Tax Act, and Immigration and Refugee Protection Act are conducted byfederal prosecutors

- Federal prosecutors are entitled to conduct the case even if the charges were laid by provincial lawenforcement officials (except Quebec and NB)

C. Both fed and provincial Crown can prosecute on the same facts (impaired driving with drugs in car)

Prosecutors’ Role in Criminal Investigations- Give legal advice to police during about the legality and constitutionality of investigations, help with search

warrants, etc., but should never help with the investigation- It is a constitutional PFJ under sec 7 that the AG, or anyone from his or her office, must act independently

of political considerations (Krieger v Law Society of Alberta)- R v Regan

- A Crown interviewed alleged victims to help them decide whether to become involved in the case,assess their credibility as witnesses, and prepare for a preliminary inquiry before charges were laid

- The accused argued that these interviews violated the principle of police independence andconstituted an abuse of process.


- SCC concluded that prosecutors' independence and objectivity are not compromised by conductingpre-charge interviews. Nor is it improper for prosecutors to discuss charges with police andrecommend whether charges should be laid

- Such interviews is helpful in sexual assault cases by helping to screen out “fruitless complaints”

The Decision to Prosecute(1) General Principles

- The most important decision that prosecutors make is whether to proceed with or discontinue charges.- Of all charges laid

- 5% result in an acquittal- 65% result in findings of guilty pleas- 30% are withdrawn or stayed (speaks to the fact we should have pre-charge screening)

- Vetting Charges- In most jurisdictions, the decision to charge a person with an offence is made by police (AB)- British Columbia, Quebec and New Brunswick, charges are typically approved by a prosecutor

before the information is laid- For some offences, the AG's consent is required before charges are laid (terrorism, adovacating

genocide, etc)- Pre-charge prosecutorial screening is superior to post-charge screening

- Charge screening is the process of reviewing the efforts of the investigative authorities anddeciding whether to proceed with the prosecution

- In the pre-charge screening jurisdictions, there are higher proportions of guilty findings andlower proportions of stays and withdrawals than in the post-charge jurisdictions

- Weeds out better the frivolous charges- In post-charge screening jurisdictions, charges destined for dismissal are discontinued at a later

stage in the process and may occur months after the charges are laid, expending scarce resourcesand causing undue stress on AC

- In practice it can take weeks or even months or before trial for this review to occur

(2) The Standard for Decision- Each charge may only go forward if:

1. The evidence meets a threshold of conviction that there must be a “reasonable likelihood ofconviction” AND

- In BC, it is “substantial likelihood” (need a strong case)- Ontario and Feds it is “prospect” (merely a prima facie case)- “Reasonable likelihood of conviction” = sufficient evidence to believe a reasonable jury,

properly instructed, is more likely than not to convict the accused of the charge(s) alleged- The prosecutor must believe that the standard is met (subjective) and that belief must be

reasonable in the circumstances (objective)- Can consider the admissibility of evidence, the weight likely to be given, the strength of

anticipated defences, improper motives and credibility of witnesses, etc.2. It is in the public interest to proceed

- Even if relevant threshold is met, AG must decide if it’s in the public interest to proceed- Can consider

- The seriousness of the offence,- The severity of sentence- Harm caused


- Degree of culpability- Accused’s circumstances and remorse- Existence of alternative measures- Victims, accused’s criminal record, time and resources, etc.

- These obligations occur throughout the entire prosecution (pre-trial, trial, appeal, etc.) and if any point thetwo requirements are no longer satisfied, the prosecution should end (think of Stony Plain trial)

(3) Withdrawals and Stays- Prosecutors who decide to discontinue a charge (including one laid by a private citizen) have two options.

1. They may withdraw it- A withdrawal terminates the prosecution of that charge- The decision to withdraw is a matter of prosecutorial discretion that courts may overturn

only in very limited circumstances2. Enter a prosecutorial stay of proceedings under section 579 (prov) or 579.1 (feds)

- These provisions empower the prosecutor to direct a stay to be entered, thereby ending theproceedings, at any time after the laying of the information and before judgment

- The decision to enter a stay is administrative, not judicial- This decision is subject to review only for an abuse of process- Unlike a judicial stay by the court or a withdrawal of charges, after a prosecutorial stay has

been entered, proceedings may be recommenced within one year

Prosecutorial Discretion in Proceeding with Charges and Plea Bargaining- A plea-bargain is an agreement between the accused and the Crown that the former will plead guilty to an

offence in exchange for a benefit such as the withdrawal of a more serious charge or a favourable sentencerecommendation (essential to the functioning of the CJS)

- Prosecutors may not engage in plea discussions over a charge that does not meet the threshold forprosecution (public interest & reasonable likelihood of conviction)

- Also improper for Crowns to renege on plea agreements (subject to review for abuse of process)

Review of Prosecutorial Decisions- Two types of decisions made by the Crown in criminal cases Krieger v Law Society of Alberta

1. Prosecutorial Discretion = “Prosecutorial discretion refers to the use of those powers thatconstitute the core of the AG’s office and which are protected from the influence of improperpolitical and other vitiating factors by the principle of independence.”

a. Very broadb. All bodies and courts should treat it with deferencec. Prosecutors' decisions may be reviewed both by the courts and law societies

2. Ordinary Discretion = Decisions of “tactics or conduct before the court”a. Decisions entirely unrelated to the laying or prosecuting of charges are unlikely to form

part of prosecutorial discretion and are therefore owed no special deference- Ex: Delaying evidence to the defence is not protected by prosecutorial discretion

b. Judges should not interfere in matters of trial strategy, unless this would work an unfairnessto the accused or cause a Charter violation

- Ex: Expressing opinion on witness credibility, alluding to facts not in evidence- There are three main forms of oversight

1. Judicial review in Criminal Proceedings


- Courts may intervene in matters of prosecutorial discretion that amounts to an abuse ofprocess and include (a) dishonesty, (b) an improper purpose, (c) a lack of objectivity, or in(d) bad faith = No deference is owed in these cases

- Nixon- Claimants bear the burden of proving an abuse of process and prosecutors are not

required to provide an explanation for decisions lying within their discretion- When applicants provide an “evidentiary foundation” for the abuse of process

claim, the Crown must typically provide an explanation for the impugned decision2. Professional Regulation (Law Society)

- Krieger v Law Society of Alberta- The law society had the authority to review and impose discipline on a prosecutor

for failing to disclose information to the defence (ordinary discretion)- “As the disclosure of relevant evidence is not a matter of prosecutorial discretion

but rather a legal duty,” = The law society had the jurisdiction to review it- Conduct falling within the proper scope of prosecutorial discretion = Cannot be

the subject of professional discipline (decisions made in bad faith does not fallwithin this scope)

3. Civil liability for the tort of Malicious Prosecution- Nelles v Ontario

- Liable for what amounts to “a fraud on the process of criminal justice and in doingso has perverted or abused his office and the process of criminal justice”

Exam Tips:- Principal of restraint is important (when to stay, withdrawn, take a lesser charge, etc)- R v Ing

- Asian kid comes to Canada with family with no problems or records. One day kid stabs his aunt,cousin, daughters, killing the aunt and cousin. Charged with murder and attempted murder

- Defence elected judge and jury, defence wanted to re-elect to judge alone- Prosecutor won’t consent to re-elect because he didn’t want to lose (improper purpose)

- R v Krieger- Crown in Edmonton was in a murder pre-elinary inquiry and delayed the disclosed evidence in the

murder trial. Defence reports him to the Law Society.- The Crown was disciplined by the AG, but can they be disciplined by the Law Society?- SCC said they are able to be disciplined by Law Society not withstanding discipline by the AG- Disclosure is so important, can’t hold it back!

- Case from Louisiana- After serving 30 years for a crime he didn’t commit, guy is acquitted after being on death row- All white jury, prosecutor held back exculpatory evidence, girlfriend had recanted her story,

defence lawyers didn’t hire experts, didn’t know how to subpoena, etc- The prosecutor, wrote a letter to the newspaper saying the man was innocent, prosecution was

unfair, and apologized for his role in prosecuting the man and hiding exculpatory evidence

Lecture 9: Disclosure, Lost Evidence, & Third Party RecordsIntroduction

- “Disclosure” refers to the rules and procedures governing the exchange of information between the parties(and occasionally third parties) to facilitate preparation for legal proceedings.

- In civil = all documents are submitted in advance to ALL parties so everyone knows the disclosure


- In criminal = there is asymmetrical system for disclosure where the Crown disclosesEVERYTHING and the defence does not

- Complete and timely disclosure benefits everyone involved in the administration of criminal justice- Helps protect the accused's right to make full answer and defence- It is essential to preventing miscarriages of justice- It stimulates early resolution of cases (lightens the court’s burdens of trials)

First Party Disclosure (Disclosure from the Crown to the Defence)A. Pre-Stinchcombe, the Crown had a duty to bring forward evidence of every material fact known to

them, whether favourable to the accused or otherwise.- Crown has duty to see that ALL available legal proof of the facts is presented fairly- The role of Crown excludes any notion of winning or losing – function is a matter of public duty- Fulfilled by the Crown either calling the evidence at trial or making the defence aware of it- In practice, the application was slippery and reflected what was the prosecution's subjective

perception of what was material (a lot of discretion in this regard) and sec 603 of the Code did notmandate the FULL disclosure of information (only particulars)

B. R v Stinchcombe (1991 SCC) (Landmark decision for disclosure obligations)- Facts: The Crown called a witness at a preliminary enquiry who gave evidence favourable to the

defence, they then refused to call them at trial because they were incredible.- Duty on the Crown to disclose all relevant information, both inculpatory and exculpatory- The right to make full answer and defence requires that an accused is entitled to receive, and the

Crown has a corresponding duty to provide, disclosure of all relevant information in the Crown'spossession or under its control relating to the charge

- Disclosure is not procedural discretion, but is a substantive constitutional right that may beenforced under the remedial provisions of section 24 of the Charter

- The duty to disclose extends to the police, who then have a duty to provide all relevant informationto the Crown, and the Crown has a obligation to request this information from the police

(1) What Must be Disclosed?- R v Taillefer; R v Duguay- “The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory,

subject to the exercise of the Crown's discretion to refuse to disclose information that is privileged orplainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonablypossible defences… all statements obtained from persons who have provided relevant information to theauthorities should be produced notwithstanding that they are not proposed as Crown witnesses”

- The relevance threshold is low. Unless the evidence of information is clearly irrelevant, the Crown shoulderr on the side of inclusion for disclosure

- The Crown's ability to withhold information in its possession: (i) privileged or (ii) by court order or statute- Have onus of showing privilege or the evidence is irrelevant- Certain information can be withheld, such as the names of informants, witnesses addresses, etc

(2) Timing of Disclosure- Disclosure should be provided BEFORE the accused is called upon to elect the mode of trial or to plead- Continuing obligation to disclosure throughout the entire process

- Disclosure is triggered by the defence making a timely request- Defence does not need to keep asking


- Staggered disclosure over a few months due to such factors as ongoing investigations and thepreparation of expert reports

- Should info come to light after all appeals have been exhausted by AC, Crown still has duty to disclose

(4) Crown’s Obligation to Preserve Evidence (Lost or Destroyed Disclosure)- A further duty on prosecutors and police to preserve and safeguard relevant evidence- Where the disclosure has been lost, sections 7 and 11(d) of the Charter will be violated unless the Crown

can show that the loss was neither deliberate nor the product of unacceptable negligence- In the latter case, consider whether the Crown and police took reasonable steps to preserve the evidence.- R v La (1997 SCC)

- When the Crown loses evidence that would otherwise have to be disclosed, they must present asatisfactory explanation as to why it was lost.

- If the explanation is reasonable, the responsibility to disclose has been satisfied.- If it is not reasonable, it could constitute a breach of the right to a fair trial, resulting in sec 7 relief- In determining reasonableness, the court considers the circumstances surrounding the loss.

a) Perceived relevance at the time of investigation.- As relevance increases, so does the degree of care for its preservation that is

expected by the Crown and policeb) Will the conduct arising from a failure to disclose constitute an abuse of process?

- Deliberate destruction, gross negligence- Risk the integrity of the justice system

- Even where the court finds that the evidence was not lost deliberately, it must go on to decide whether theloss has prejudiced the ability of the accused to make a full answer and defence.

- The accused must establish, on a BOP, that there is an “air of reality” to the position that the missingevidence would have materially assisted the defence

- It could result in a stay even if the police and Crown acted without males fides

(5) Judicial Review of Non-Disclosure- The withholding of information by the Crown is reviewable by the court- If the material is withheld on the basis of privilege or other prohibition on disclosure, thi must be made

known to the defence to give the AC the opportunity to challenge the claim (ex innocent at stake exception)- If claiming the disclosure is irrelevant, this must be shown by the Crown usually in a voir dire

Disclosure by the Defence- The defence generally has no obligation to disclose information to the Crown (take a pure adversarial

position) but this general rule is subject to a three important exceptions:1. Incriminating Physical Evidence

- Discussions about incriminating evidence are protected by solicitor-client privilege,physical evidence is not

- Murder weapons, sex assault tapes, etc.- How you turn it over is important, can have a separate lawyer disclose it to the Crown

without informing them who it comes from or belongs to (no obligation to assist)2. Alibi

- Although the defence is never obliged to disclose a defence, a failure to disclose an alibimay have negative consequences for the accused at trial

- An adverse inference may be drawn against the accused if the defence does not give theCrown timely and adequate notice of the alibi before trial


- The rationale for this rule is that false alibis are easily procured and difficult to disprove3. Constitutional Applications

- Charter notices must be filed with the Crown and the court (15 days before trial usually)- Must be served on Crown and filed at the Court- Notice should include: Nature of application (facts, legal grounds, relief sought)

4. Expert Evidence- A party must give notice to call an expert at least 30 days before trial- Include the name of the proposed witness, describe the area of his or her expertise in

sufficient detail to permit the other party to become informed about that area of expertiseand set out a statement of the qualifications of the proposed witness as an expert

Third Party Records- If the defence wants evidence in possession/control of a 3rd party, AC may have to apply for an order

compelling its production (if it will not be surrendered voluntarily)- The court will review the information and decide whether to release it, or part of it, to the defence

(1) The Common Law Regime - O’Connor and Non-Sexual Offences- If an accused is charged with a non-sexual offence, a court may order production of third party records

when the accused has met the common law test in R v O'Connor- This procedure applies to all records not in the possession of the Crown in non-sexual offences1. Personal records already in possession of the Crown have to be disclosed = Stinchcombe2. Two-Stage Process for Third Party Records = R v O’Connor

- Third party records can be very relevant and exculpatory1. An accused has the onus of satisfying a judge that the record is “likely to be relevant”

- There must be a reasonable possibility that the information is logically probative to anissue at trial or to the competence of a witness to testify or relevance of evidence (a witnesscan make or break a case - need to properly CE)

- The threshold can be satisfied by counsel's oral submissions standing alone2. AC will bring a written application supported by an affidavit setting out grounds for production

- The notice must be given to 3rd parties in possession of those documents as well as to thosewith a privacy interest in the records

3. Application made to TJ- If the accused is able to demonstrate likely relevance, the third party record holder may be

ordered to produce the records for inspection by the judge in order to determine whetherproduction should be ordered to the accused

- The judge would read it first, balance the salutary & deleterious effects of ordering therecords and make a decision.

- Considerations:- Necessity – for AC to make full answer/defence- Probative Value – of the record- REP – nature and extent of the privacy vested in the record- Prejudicial Effects – if production is prejudiced on any discriminatory belief / bias- Effect on CO – potential prejudice to CO’s dignity, privacy, or security

- It is now very difficult to access third party records in sexual offences. O’Connor is still the law, just notwith regards to sexual offences.

(2) Statutory Regime for Sexual Offences - Mills Applications


- In direct response to O’Connor, the legislature adopted the view that providing such records to thedefendant would deter complainants of sexual offences from reporting their experiences

- Parliament enacted “rape-shield” legislation (278-279) to govern applications by the AC for the productionof personal records relating to complainants or other witnesses in sexual offence prosecutions

- The legislation applies only if two prerequisites are met1. It applies to records containing personal information for which there is a REP

- Medical, therapeutic, counselling, employment, child welfare, social services records, aswell as personal journals and diaries

- Doesn’t pertain to records made by persons responsible for the investigation of the offence2. Applies only to prosecutions of the sexual offences enumerated in section 278.2

- Applies to third party records AND those first party records possessed by the Crown- If one of these prerequisites is not met, then Stinchcombe or O’Connor rules apply!!- Procedure

1. Formal Application- Notice should be provided at least 7 days before the hearing to the Crown, the person who

is in possession of the records or in control of the records, the COM or witness, etc.2. A hearing will be held in camera to determine whether to order the person who has possession or

control of the record to produce it to the court for review by the judge.- The AC bears the onus of demonstrating that the record(s) contain information that is

- (1) “likely relevant” to an issue at trial or to the competence of a witness- AC must point to some case specific evidence or information that is not

readily available to the defence or that has potential impeachment value- (2) That the production of the record is “necessary in the interests of justice”

- TEST: Requires a balancing of PV and PE on an accused’s right to make full answer anddefence AND the right to privacy/equality of the person the record relates to

3. Should the accused meet this initial threshold, the judge will then review the records to determinewhether, and to what extent, the records should be disclosed to the accused

- R v Mills (1999 SCC)- Challenges the constitutionality of the “rape shield” by Parliament = found to be constitutional.

Discipline Records of Police Witnesses- Crown has a duty to disclose disciplinary records relevant to the credibility of police officers where the

police misconduct could reasonably impact on the case against the accused- R v McNeil

- Disciplinary records of acts of misconduct and criminal investigation files in the possession of thepolice that do not fall within the scope of this first party disclosure category are governed by theO'Connor regime for third party production.

- The Crown will act as “gatekeeper” sorting out what should be disclosed to the defence incompliance with the Crown's obligation to share all relevant information

- Includes: Convictions, Charges, and Police Misconduct

Class- The Gomeshi rules in 278 (statutory regime) relating to sexual assault offences… defence evidence to bring

forward in advance (like text messages between the accused and the complainant)- Removes the ability to expose inconsistencies and let the Crown adjust the case- AB case said this is ridiculous and struck down


Lecture 10: Elections, Preliminary Inquiries, & Preferring the Indictment(1) Elections by the Crown

- Hybrid offences specify that a charge may be prosecuted by way of indictment or on summary conviction.- The choice of how to proceed belongs to the Crown and falls squarely within “prosecutorial discretion” and

as such is only reviewable for abuse of process (thus not subject to review otherwise)- The Crown's election will in turn determine the accused person's trial options- The Crown should declare explicitly whether it is proceeding on a hybrid offence summarily or by

indictment before the accused is asked to plead (R v Dudley)- Until Crown elects how to proceed on a hybrid offence, it’s treated as indictable (Interpretation Act)

Summary Election (less serious) Indictable Election (more serious)

- 12 month limitation period from the time theinformation was sworn and laid (the time whenthe subject-matter of the proceedings arose)(used to be 6 months)

- The accused will often consent to an out oftime summary prosecution to avoid either thesame charge being prosecuted by indictment(which will carry a much lengthier maximumpunishment)

- If the Crown fails to make a formal electionwithin the 12 months and where the matter hasproceeded to trial before a summary convictioncourt, it’ll be presumed that the Crown electedto proceed summarily

- Summary conviction offences be dealt with ina “summary conviction court” (PC)

- Unless the parties waive the 12 monthlimitation period, they will go via indictment

- If the Crown fails to make a formal electionbefore trial, they will be deemed to go byindictment

- Two circumstances in which a SC will havejurisdiction over a summary offence

1. Section 606(4) permits an accused inproceedings by indictment to plead notguilty to the offence charged but guiltyto another summary convictionoffence arising out of the sametransaction

2. Where an accused is charged with anindictable offence, section 662(1)permits a conviction for a summaryincluded offence in the indictableoffence where the Crown fails to provethat offence but does prove theincluded offence.

- If charge was not initiated within 12 months and proceeds to trial in summary conviction court:- If the out of time nature of the proceeding is discovered before the verdict is rendered:

mistrial, unless waived by agreement- If discovered after the verdict is rendered: appeal to summary conviction appeal court to set

aside the conviction on that basis- Where an accused is acquitted of an offence that was out of time, but nevertheless proceeded

to summary conviction trial without consent to forego the limitation period: Crown may NOTseek to overturn an acquittal

- Where AC has been put to the election regarding the mode of trial, it will be presumed that the Crown haselected to proceed by indictment AS LONG AS the proceedings take place in a court with jurisdiction overthe alleged offence

(2) The Accused’s Election- If Crown elects to prosecute a hybrid offence by summary of the offence is a straight summary conviction

offence = There is no election for summary offences = Always heard in PC judge-alone (a bench trial)


- If the Crown elects a hybrid offence by indictment or where the offence charged is a straight indictableoffence = An accused may have his or her own choices to make

- The accused elects their mode of trial after section 536(2) is read to them by a justice explaining the modes1. PC judge-alone (a bench trial - no prelim)2. SC judge-alone (may have a prelim in PC)3. SC with a judge and jury (may have a prelim in PC)

- Accused needs to make an election or else it is assumed to be judge and jury in QB- Election must be made in open court- If an accused is charged with multiple counts, he or she must make a single election applying to all of them- If multiple accuseds, the highest election will take placeA. EXCEPTIONS (where the accused has no choice of election)

- Absolute Jurisdiction Offences = Sec 553 offences are indictable offences where the accusedmust be tried in Provincial Court judge-alone (less serious indictable offences; no juries in PC)

- While the PC’s jurisdiction to try section 553 offences is absolute, it is not exclusive- Under section 468, the SC has jurisdiction to try any indictable offence, including those listed in

section 553 (such as if a 553 offence is attached to a 469 offence)1. Theft over 5k2. Obtaining money or property by false pretenses,3. Unlawful possession of property or proceeds of crime punishable by indictment,4. Defrauding the public,5. Mischief under s.430(4)6. Counseling or conspiracy to commit any of the above crimes,7. Keeping a gaming or betting house,8. Betting,9. Placing bets,10. Lotteries,11. Cheating at play,12. Keeping a bawdy-house,13. Fraud in relation to fares,14. Breach of recognizance,15. Failure to comply with a probation order.

- Exclusive Jurisdiction Offences = Sec 469 offences are automatic indictable offences where theaccused must be tried in a Superior Court and usually with a jury after an accused has had apreliminary inquiry in PC (the most serious indictable offences)

1. Treason,2. Alarming Her Majesty,3. Intimidating Parliament or a legislature,4. Inciting a mutiny,5. Seditious offences,6. Piracy,7. Piratical acts,8. Murder9. Accessory to treason or murder,10. Corrupting justice (bribery),11. Crimes against humanity12. Attempting any of the above crimes,13. Conspiring to commit any of the above crimes


- Our focus is on the election – the choice of what type of trial (jury or judge alone) and where (PC or QB)- Sympathies and complex legal issues will determine what election you take.- If a trial in a SC is elected, an AC or Crown are entitled to a preliminary inquiry should they request it- Sec 561 sets out the rights of re-election.

- Electing to proceed in the PC is the most flexible option, as it allows you to re-elect up to 15 daysprior to trial without the consent of the Crown.

Circumstances that Override Elections1. Intervention by Provincial Court Judges

a. A PC judge may transform a trial into a preliminary inquiry (Criminal Code s. 555(1))- Irrespective of AC’s election

b. This power can be invoked any time before AC enters its defence IF it appears to the judge that forany reason the charge should be prosecuted by indictment

- Applies only to indictable offences; cannot be invoked if summary or hybrid proceedingsummarily

2. Attorney General can direct a jury triala. If AC elects trial in provincial court or superior court without a jury, the AG may require a trial by

judge and jury in a superior court (s. 568)b. Only if the offence is one punishable with imprisonment of 5+ yearsc. It is a matter of prosecutorial discretion

3. A prosecutor may prefer a direct indictment for any offence (s. 577)a. May prefer a “direct indictment” for any offence “even if the accused has not been given the

opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but notconcluded, or a preliminary inquiry has been held and the accused has been discharged” (WILD)

b. A direct indictment sends an accused directly to trial in the superior court, thereby depriving theaccused of his or her election to have a preliminary inquiry

c. AC is deemed to have elected a trial by judge and jury and to not have requested a prelim inquiry(the accused may re-elect trial by superior court judge alone)

d. May be invoked even if prelim has commenced / been completed and the AC dischargede. Requires written consent of the Attorney General or Deputy Attorney General

Re-Elections- AC may change their election unless it would be impractical or impact the trial’s fairness (s. 561)- It can be done without the Crown’s consent where administratively feasible to do so

a. Can re-elect for a preliminary inquiry or superior court within 14 days of trialb. An accused who elected (or who was deemed to have elected) trial in the SC before a judge or a

judge and jury, may re-elect his or her mode of trial, other than trial before a PC judge, at any timebefore the completion of the preliminary inquiry or before the 60th day following the completion ofthe preliminary inquiry = *561*

c. If in SC, you can re-elect 60 days in advance after the preliminary inquiry before a SC trial date,can change mode of trial and this will be granted (as of right)

- The Crown’s consent is needed for dates closer to trial (exercise of prosecutorial discretion) (p. 524)- If granted, they can re-elect up to any time before trial- Need written consent by the Crown- Based on Crown discretion and only subject to review on an abuse of process- If a prosecutor perceives a tactical advantage from refusing consent is not an abuse of process- Must show that the decision was arbitrary, capricious or motivated by improper considerations


- If you elect to SC can’t go back to PC without Crown consent- But, with consent, can go back to PC… even if elected SC judge and jury

- Requirements: Written notice of desire to re-elect along with any required written prosecutorial consent- Re-electing before completion of preliminary inquiry – to the justice presiding at the prelim inquiry- Re-electing after completion of preliminary inquiry – to the judge/clerk of his original election- If AC originally elected provincial court – to the provincial court judge

- Elections and re-elections may be made in the accused's absence, as well as may be made in writing

Preliminary Inquiries (this bitch is a creature of statute)- Prelim inquiries are used to determine if there is sufficient evidence to order the AC to stand trial- NO CONSTITUTIONAL RIGHT TO A PRELIM- Is a valuable tool to the defence, as they can get an idea about the case being made against them- Perform a screening function to ensure the accused is admitted for trial as long as there is evidence- The modern preliminary inquiry is said to serve a DUAL PURPOSE

1. At a formal level, it helps to protect the AC from the ordeal of prosecution where the statelacks sufficient evidence to warrant a trial

- This is not about the discovery of guilt, and therefore there is no application of the beyonda reasonable doubt standard.

2. On a practical level, it gives the accused a measure of disclosure of the prosecution's case- An opportunity for the accused to discover the case to be made against them at trial.

- Operates like a trial = Judge resides, Crown presents, complainant is there, etc.

(1) A preliminary inquiry must be requested! And it only happens in PC before the trial in SC!- A preliminary inquiry only occurs if the accused or prosecutor requests one- The request must be made either when the accused is put to his or her election or by the Rules of Court- In cases with co-accused's, if one or more accused requests it, a prelim must be held to all of them

(2) Focus Hearing- Crown or AC requesting a preliminary inquiry must provide the opposing party and the court a statement

that identifies: (a) the issues on which the requesting party wants evidence to be given at the inquiry; and(b) the witnesses that the requesting party wants to hear

- This obligation does not apply to unrepresented accuseds- The parties may agree to limit the scope of the preliminary inquiry to specific issues

(3) Powers and Procedures- A “justice” will preside over the preliminary inquiry (either a justice of the peace of a PC judge)- Justices conducting preliminary inquiries have no inherent jurisdiction to hear constitutional issues- Section 537 gives the justice a lot of powers (adjourn, exclude public, change the location, etc)

(4) Publication Bans- A justice may (if application made by prosecutor) and must (if application made by defence) prohibit the

publishing of evidence taken at inquiry until AC is discharged or at the end of trial (s. 539(1))- There is an automatic ban prohibiting all cases of the publishing of the fact that an admission or confession

was tendered in evidence at the preliminary inquiry- This is to protect the fair trial rights of the accused and not be prejudiced by prospective jurors

(5) Not a Court of Competent Jurisdiction for Charter Purposes


- Can’t do shit under section 24(1) (2) or 52(1) or hear Charter breaches = Only PC and SC judges in a trial- BUT defence can ask police officers (under oath) about their answers to Charter matters (you said under

oath you didn’t read 10(b) at the inquiry, and provide that transcript at trial)- However, prelims DO APPLY TO THE CONFESSIONS RULE

(6) Witnesses and Evidence- Witnesses testify under oath or affirmation and the evidence is recorded- Section 545 empowers the justice to adjourn the proceedings and jail the witness for a period not exceeding

eight clear days if they refuse to cooperate- No inherent power to punish for contempt of court (proceeding isn’t court, it’s creature of statute)- The defence can cross-examine the Crown witnesses = Fundamental right

- CE of Crown witnesses can include evidence committal and their credibility- CE to lay the foundation for securing the exclusion of evidence or a Charter argument at trial

- After the Crown has finished calling its witnesses, the justice is obligated to hear the defence’s witnessregardless if they believe the Crown's evidence has crossed the threshold for committal

- If AC unrepresented – Justice must caution if presenting evidence b/c may be used against him at trial

(7) Application of the Rules of Evidence- Rules of evidence to determine admissibility at trial equally apply at the preliminary inquiry- Should exclude prejudicial, inadmissible, irrelevant evidence- The Confessions Rule = Must exclude statements by AC to persons in authority if they were not made

voluntarily (proof BRD that it is voluntary and is determined in a voir dire)

(8) Committal or Discharge- The preliminary inquiry's protective role stems from the justice's obligation to assess the adequacy of the

Crown's evidence in support of each charge.- Committal = Once the evidence has been taken by the judge, they can order the accused to stand trial for

this OR ANY OTHER OFFENCE THAT ARISES- Discharge = If the evidence does not pass the requisite test, they can also discharge the accused.- TEST: The test for a preliminary inquiry is the same for a directed verdict or non-suite motion, and is also

the standard applied in extradition hearings → Whether or not there is any sufficient evidence uponwhich a properly instructed reasonable jury could rationally conclude that the accused is guilty BRDfor each element of the offence charged

- A low standard- In applying this test, the justice is not permitted to weight the quality, credibility or reliability of the

evidence (this is for the trier of fact) (R v Deschamplain 2004 SCC)- Defence could prove perjury convictions, the complainant is a liar, etc. but the judge cannot assess

credibility only consider if there is evidence of the offence- Direct vs Circumstantial

- If there is direct evidence for every element of the offence, AC must be committed to trialregardless of the defence’s evidence

- For circumstantial evidence, the judge asks only whether the evidence, if believed, couldreasonably support an inference of guilt (R v Arcuri)

- Judge partakes in a limited weighing of evidence (cannot asses guilt, draw factualinferences, or asses credibility)

- In assessing circumstantial evidence, the judge must weigh all the evidence including thedefence evidence. This is not done in other cases.


- Judge cannot ask herself whether they would conclude the accused guilty- If any inference draws guilt than benefit of the doubt given to the Crown to proceed to trial

- Committal for “any other indictable offence in respect of the same transaction”- Section 548(1)(a) = Where the evidence is sufficient, the justice must commit the AC to stand trial

not only for the offence charged but any other indictable offence in respect of the same transaction- The additional offence must form a “component part” of the transaction that makes up the offence

charged in the information (can’t be solely a temporal connection)- An accused could very well emerge from the preliminary inquiry facing more charges than

when the hearing began (consideration if AC is undercharged to forego prelim)- Committal on Consent

- Section 549(1) = At any stage of a prelim, with the consent of the AC and the Crown, the justicemay order the accused to stand trial without taking or recording any or further evidence

(9) Judicial Review- There is no statutory right of appeal against decisions of a preliminary inquiry justice- It can be reviewed judicially (prerogative writ) if there was a jurisdictional error

1. Prohibition prevents a justice from proceeding where he lacks jurisdiction2. Mandamus orders the justice to do what he is legally required to do3. Certiorari (or judicial review) overturns a decision made in excess of jurisdiction

- Prerogative writs only issue to remedy jurisdictional errors or breaches of the principles of natural justiceNOT relief for legal errors

- Legal Errors warranting interventions:- If missing jurisdiction, identification, ruling on a Charter issue, an essential element of the offence

is missing, complete denial of a right to cross, reduring submissions from AC- A decision concerning the admissibility or sufficiency of evidence does not affect jurisdiction

(except if there is no evidence on an element of the offence)- Decisions may be judicially reviewed at any time before the indictment is lodged with the trial court at the

beginning of the accused’s trial (R v Chabot 1980 SCC)

(10) Re-Laying Charges after Discharge- Crown not able to charge the AC again with the same offence after a discharge for that offence- Unless the prelim judge made a significant legal error, the re-laying of a charge for which the AC was

discharged would constitute an abuse of process

(11) The Future of the Preliminary Inquiry (becoming rarer)- Since after Stinchcombe, accused persons now receive full disclosure and “the incidental function of the

preliminary inquiry as a discovery mechanism has lost much of its relevance.”- There is also no constitutional right to a preliminary inquiry- In 1994 Parliament increased the max summary conviction sentence for certain charged hybrid offences

from 6 to 18 months' imprisonment, which has enabled prosecutors to keep such charges in PC, therebyavoiding a preliminary inquiry and superior court trial, while still seeking significant jail sentences.

- Sentences under a mximum of 14 years will not have a preliminary inquiries

(11) Defence lawyers argue to keep preliminary inquiries as a tactical benefit- Ed said preliminary inquiries can be beneficial to help resolve cases once the Crown’s case is shown to

them… can encourage resolutions!


- Enables the defence to flesh out a Crown witness's story and commit the witness to a specific and detailedaccount. If a witness's testimony at trial conflicts with his or her evidence at the preliminary inquiry, suchinconsistencies will provide a basis for impeachment

- Preliminary inquiries are typically reserved for the most serious cases, where the stakes are high so the needfor judicial vetting of the adequacy of the prosecution's evidence is at its height

- The preliminary inquiry also serves an important role in preserving evidence for trial should a materialwitness abscond, become ill or die (preserve evidence)

Preferring the Indictment- An indictment is the document setting out the details of a charge facing an AC in QB (charging document)- It is not sworn (unlike an information) but is prepared by a prosecutor (signed on behalf of the AG) and

filed with the court before the accused’s first appearance.- While a criminal charge proceeds through the provincial court, the charging document before the court is

the information (whether the offence charged is summary or indictable)- Where a preliminary inquiry is held the presiding justice's decision to discharge or commit the accused to

stand trial is recorded on the information- If the accused foregoes a preliminary inquiry and elects a trial in superior court or has a preliminary inquiry

and is committed to stand trial by the presiding judge, the entire provincial court file (the information andall exhibits) is transferred to the superior court.

a. No preliminary inquiry = Crown can only include in the indictment only the charge from theinformation (and it’s included offence)

b. Preliminary Inquiry = Crown has more power; section 574 states they can include in theindictment (a) any charge on which the person was ordered to stand trial; or (b) any charge foundedon the facts disclosed by the evidence taken on the preliminary inquiry in addition to or insubstitution for any charge on which the person was ordered to stand trial

THE DIRECT INDICTMENT- Section 577 the AG may prefer a “direct indictment” = Requires the written consent of the AG- This sends an AC directly to trial in the SC and trumps any entitlement to a preliminary inquiry that an

accused might otherwise have (Crown may want the complainant to only testify once)- An indictment may be preferred “even if the accused has not been given the opportunity to request a

preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiryhas been held and the accused has been discharged.” = LOL WOW

- In deciding to authorize a direct indictment, the AG is not required to afford the AC a hearing/give reasons- Courts may intervene if the decision amounts to an abuse of process (R v LSJ)

Lecture 11: Charter RemediesIntroduction

- When a criminal procedure rule is breached, the person affected will often be able to seek a remedy- A right without a remedy is a hollow one (Ed likes, put on exam)- Three sources of remedies

1. Common law- Exclusion of involuntary statements (confessions rules)

2. Statute3. The Constitution

- Section 52 deals with challenges to the law itself (Constitution is the supreme law)- Strikedown the legislation as “having no force or effect”


- Section 24(1) and (2)- Challenge the discretionary acts of government agents

Two Preliminary Issues Before Seeking Remedies- Remedies are not automatic… must apply for it- Applicants for a particular remedy must have

1. Standing to apply for a remedy2. Apply to a court that has jurisdiction

(1) Whether the applicant has STANDING to apply for a remedy- Edwards

- Evidence that may have been obtained in violation of the accused's girlfriend's section 8 rightscould not be excluded at his trial (lmao sucks to suck)

- A remedy cannot be awarded for the violation of the rights of anyone other than the applicant- Only persons whose own Charter rights have been violated may seek remedies under 24(1) or (2)

- Food for thought: Unfortunately, this limits the capacity of courts to deter investigative abuses because thestanding rule permits police to obtain admissible evidence against a suspect who lacks a REP in thelocation searched by committing (potentially serious) violations of the section 8 rights of third parties

- Jones- AC did not need to admit he was the sender of the texts to succeed on his sec 8 Charter breach- Accused does not need to incriminate himself… can rely on the Crown’s theory that the text

messages belonged to Jones and he can say they were obtained in a breach of his Charter rights,rather than admitting they were his text messages (solves the conundrum)

- In limited circumstances, third parties may apply for section 24 remedies for violations of their own rightsarising from the trial of an accused

(2) Whether the court has authority to grant it (need competent jurisdiction)- The Court must have jurisdiction over the person, subject matter, and remedy

1. All superior courts (QB) = YES- Have inherent jurisdiction to grant remedies that cannot be ousted by statute- When the matter is before an inferior court (PC) the SC should decline to exercise its

discretion to award Charter remedies and intervene only if a trial court:- Has not yet been assigned- Lacks the power to order the remedy sought- Is implicated in the alleged violation

2. Provincial Criminal Trial Courts = YES- The preferred forum for granting Charter remedies- The decision to award or refuse a remedy may be made before or during trial and appealed

as a question of law under the usual Criminal Code procedures- Can only award criminal remedies NOT civil remedies- Accused can argue it at the trial in PC (summary conviction or indictment that’s been

elected into PC) or SC (elected indictable)3. Provincial Regulatory Offence Trial Courts = YES

- Provincial courts presiding over a provincial regulatory offence is a court of competentjurisdiction to grant remedies

4. Preliminary Inquiries = NO- R v Mills (SCC 1986)


- Preliminary inquiry courts and judges (who are still PC judges) do not havecompetent jurisdiction to grant Charter relief

- Preliminary inquiry justices may consider Charter values, however, in interpretingand applying their statutory powers

- They may exclude evidence obtained in violation of the confessions rule though5. Extradition Courts and Judges = YES (used to be no)

- Extradition judges, who are always SC judges, can grant Charter remedies (mostly stays)6. Administrative Tribunals = YES

- Unless enabling legislation states otherwise, admin tribunals ARE courts of competentjurisdiction under section 24 if they have the power to decide questions of law.

Procedure and Practice- In Alberta, the applicant must provide timely written notice to the Crown and the court of their intention to

apply for a Charter remed (Charter notice), if not, the application may be refused- 60 days before a QB trial and Charter notice is very detailed- 14 days before a PC trial and more skeletal notice- Can revise a Charter notice after submission- AC must provide a factual foundation for their claims to prove on a balance of probabilities (facts,

what the issue is, case law, etc) that a Charter breach happened and they are entitled to a remedy- Courts prefer waiting till the end of trial before deciding Charter claim to understand the entire context- However, it is not rare for the exclusion of evidence decision to be made prior to trial (in a voir dire)- Applications for exclusion under section 24(2) will rarely be entertained after the evidence is admitted- On appeal, trial judges' section 24 rulings will be afforded deference- Difficult to raise a Charter issue on appeal, should be doing it trial

Sec 24(1) of the Charter and Remedies(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 a remedy as the court considers appropriate and justin the circumstances.

- Very broad discretion! Rare to receive- To be meaningful, the remedy must vindicate the right- Common remedies are judicial stay of proceedings, cost awards, mitigation of sentence, return of

the item seized, trial process remedies, publication bans, sealing orders, disclosure orders, etc- Costs

- Costs awards in criminal cases are designed primarily to “discipline and deter misconduct”while indemnification plays a prominent role in civil costs awards

- Damages before the superior courts in a civil lawsuit brought against state actors whoallegedly perpetrated the violation (may be brought in conjunction with a tort claim)

- Damages not available in provincial courts- Evidence Remedies

- Evidence may be excluded under section 24(1) not connected to the acquisition of theevidence or when the Charter does not apply or for untimely disclosure

- Ex: Police obtaining statements from prov law (statutorily compelled statements; TSA)- Stays effectively halts the proceeding and does not allow it to be revived by the Crown

- The stay is rare (need the clearest of cases - it’s like an acquittal)- Can be awarded in both Charter and non-Charter cases- The ordering of a stay can be appealed to the superior court; the right exists in statute


- Judicial Stay of Proceedings is grouped into three categories:

1. Section 11(b) 2. Entrapment 3. Abuse of Process

- Is an automatic stay if thebreach is found

- Jordan and Morin- Can get other remedies in

addition to a stay

- Police inducing crimes thatwould otherwise not havebeen committed, police actin a mala fides nature,approach someone withoutreasonable suspicion (proofon a BOP) (Nuttel)

- Is an automatic stay (don’tneed to show its a clearestof cases)

- Don’t need to violate aCharter right

- Where the abuse involves theviolation of a Charter right,the stay is awarded undersection 24(1)

- Where it does not, it flowsfrom the court's inherent orimplied power to controlabuses of process

- May be ordered to remedytwo types of “prejudice”

1. Prejudice to the accused'sright to a fair trial or to make“full answer and defence”

2. Prejudice to the integrity ofthe justice system

R v Jewitt (1985 SCC)- Affirmed that there is a right of ordering a stay in order to prevent the abuse of process- Can order a stay proceedings where compelling an accused to stand trial would violate the community’s

sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatiousproceedings’, yet must only be exercised in the ‘clearest of cases’

R v O’Connor (1995 SCC)- Case was already addressed with regards to access to third party records (look above)- Issue also addressed is when non-disclosure by the Crown justifies an order to be stayed = NO- TEST: A stay of proceedings will only be appropriate when two criteria are fulfilled

1. The prejudice caused by the abuse in question will be manifested, perpetuated or aggravatedthrough the conduct of the trial or its outcome, and;

2. No other remedy is reasonably capable of removing that prejudice (needs to be a clearest of cases)

R v Regan (2002 SCC)- The premier of Nova Scotia is charged with sexual assault. The accused alleges various police and Crown

conduct that give rise to an application for a stay because one of the investigating officers made a statementto the media against police policy, charges were laid against the advice of the Director of PublicProsecutions, an assistant Crown attorney interviewed a police witness, Crown apparently ‘judge shopped’

- This did not rise to the level of abuse of process which is egregious, vexatious, oppressive or which wouldoffend the community’s sense of decency and fair play

- There is a very high threshold required for obtaining a stay

Nasogulak, 2010 SCJ- Charged with impiared driving, was fleeting, and resisted arrest. Cop punched in the head and the back

many times, leading to his rips being broken and lung being punctured. He needed emergency surgery.- Argued for a sentence reduction under section 24(1) and this was allowed


Section 24(2) of the Charter and Remedies(2) Where, in the 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 beexcluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute

- Grant (2009) changed the law on this section- The remedy is the exclusion of evidence and is the most frequently used remedy- The purpose of excluding evidence is not to punish the police, but to maintain the “integrity of, and

public confidence in, the justice system” (protect rule of law)- Applicant must show that: (R v Strachan (1988 SCC)

1. The evidence was obtained in a manner that offends the Chartera. The action violated the AC’s Charter rights,b. Obtained the impugned evidence, ANDc. There must be a connection between these two events (obtained in a manner)

2. The admission of the evidence would bring the administration of justice into disrepute.- Courts must assess the presence and strength of three types of connections

1. Causal = Evidence would not have been found “but for” the Charter breach2. Contextual (most important) = The practical, investigative relationship between these two events;

most importantly, whether they can be viewed as part of a “single transaction”3. Temporal = The lapse in time between the violation and the obtaining of the evidence

- The shorter the period between the events, the more likely a breach- Connections that are “merely 'remote' or 'tenuous' will not suffice- Focus on the entire chain of events during which the Charter violation occurred and the evidence obtained

R v Goldhart (1996 SCC)- Leading case on remoteness issue in context of 24(2)- Police got a search warrant for Goldhart’s residence after conducting an illegal perimeter search and

smelling marijuana. They arrested him and his accomplice, Mayer. Mayer pleaded guilty but Goldhartproceeded to trial. Goldhart succeeds in having the marijuana excluded at trial, but his accomplice, Mayer,who pled guilty undergoes a religious transformation and gives evidence against him on which he isconvicted. The accused's lawyer objected, asserting that Mayer's testimony was “obtained in a manner” thatviolated the Charter (illegal search) and should also be excluded under section 24(2)

- Though this testimony may not have been available “but for” the violation, the Court concluded that it wasnot “obtained in a manner” that violated the Charter

- The mere existence of a causal nexus was not sufficient (the causation link is too remote)- Courts must consider whether the discovery of the evidence was linked closely enough to the violation to

justify exclusion- The evidence was only “obtained” when Mayer decided to testify, not when police discovered him- Mayer's religious conversion and “sincere desire to cooperate” also severed the link between his testimony

and the unconstitutional search (no connection between the two events anymore)

R v Strachan (1988 SCC)- Court considered whether drugs found during a lawful search could be excluded because police violated the

defendant's right to counsel when he was arrested


- Though the search that discovered the evidence was lawful, the right to counsel occurred 1.45 mins afterthe drugs were found (unreasonable delay) and the Court found the drugs were “obtained in a manner” thatinfringed the Charter

- There was a temporal link (a link in time - the 1.45 minutes, part of a single transaction) to exclude theevidence from the search = LOOK AT THE ENTIRE CHAIN OF EVENTS = The violation and thediscovery of evidence occurs in the same transaction

- Previous approach was linear (evidence found prior to the breach would not be excluded)- A strictly causal analysis is too stringent.- New approach took a more temporal approach (consider the whole set of circumstances - exclusion can

occur even if the evidence obtained was before the breach or else open the door to police misconduct)- “Admission would signal to the police that non-compliance with with the Charter will not diminish the

prospect of conviction” - PENNEY- The SCC found the evidence was obtained in a manner that infringed the Charter.- However, they included the evidence stating the breach was inadvertent and was not part of a larger pattern

of disregard for Charter rights, no self‑incriminatory statements were elicited, and the accused was notmistreated. The admission of the marijuana would not render the trial unfair. Indeed, the exclusion of theevidence, not its admission, would tend to bring the administration of justice into disrepute.

R v Wittwer (2008 SCC)- The accused gave three statements to the police. The first two were given in ways that infringed his section

10(b) rights, which the police knew, so the police went back to him 5 months later for a third statement.- They did not tell the accused that his first two inculpatory statements were of questionable admissibility

and gave his right to counsel properly this time. Wittwer was questioned for 4 hours at this time. Afterdenying his involvement for so long, the police said just give it up you already confessed months ago.

- The issue is whether the third statement was tainted by the earlier Charter breaches.- The statement can only be tainted by the earlier admissions if the breach and the statement can be said to be

part of the same transaction or course of conduct (contextual connection)- Defence argued that despite a gap of 5 month, it is 1 transaction = confessing to the same crime and the

“give it up” statement likely influenced the AC to make the statement- Post-Compliance Statements

- The “obtained in a manner” issue often arises when, after a section 10(b) breach and obtaining aconfession, police belatedly fulfil their Charter obligations and obtain further admissions after theirinfringing conduct

- Subsequent confessions are seen as involuntary when (a) the tainting features disqualifying theearlier statements continue to be present or (b) the fact that the first statement was made was asubstantial factor contributing to the making of the second one

- The SCC was satisfied the connection was temporal, in the sense that mention of the first inadmissiblestatements was followed immediately by the appellant's statement to Sergeant.

- The connection is causal in that the impugned statement was elicited after more than 4 hours of resistanceby the appellant and as a result of the interrogator's reference to the [earlier] statement.

- The connection between the impugned statement and its inadmissible predecessors is contextual, in thatany prior gap between the two was intentionally bridged by the Sergeants association of one with the other

Assessing Disrepute- Whether the admission of the evidence would bring the administration of justice into disrepute?

1. R v Collins (1987)


- Introduced the “fair trial” theory - evidence that would affect trial fairness would generallybe excluded (examples on page 616-617)

- More favourable to the Crown’s position and inclusion2. R v Stillman (1997)

- Trial fairness is compromised by evidence that is conscriptive and non-discoverable (i.e.statements from the accused that led to the finding of something would be excluded)

- Excluded automatically, unless the Crown could prove the evidence was discoverable- More favourable to the defence and exclusion

3. R v Grant (2009) (this is the most accurate and should be followed)- Fair trial theory set aside- Main concern behind exclusion is the need to preserve public confidence in the rule of law

and administration of justice and its processes (police respecting the law)

R v Grant (2009 SCC)- Made a new test for the exclusion of evidence- The first branch of the test, determining whether or not a Charter breach occurred in the process of

gathering evidence (casual, contextual, temporal) remains the same- Grant’s rights under ss. 9 and 10(b) of the Charter were breached. The discovery of the gun was

both temporally and causally connected to these infringements.- It follows that the gun was obtained as a result of a Charter breach.

- In determining whether the admission of evidence would bring the administration of justice into disrepute,there are now 3 avenues of inquiry to BALANCE:

1. The seriousness of the Charter infringing state conduct (where an admission may send themessage that the justice system condones serious state conduct);

- Police acted in good faith when approaching Grant (thought they were acting lawfully andnot detaining him) and were not abusive in conduct

- No evidence that racial or discriminatory practices took place2. The impact of the breach on the Charter-protected interests of the accused (an admission

may send the message that an individual's rights count for little);- More than minimal but not severe (was coercive but not egregiously coercive)- The detention did not involve physical coercion- The fact the evidence was non-discoverable (the gun was derivative evidence) aggravates

the impact of the breach on Grant’s interest in being able to make an informed choice totalk to the police.

- He was in “immediate need of legal advice” and had no opportunity to seek it- No legal advice lead to the incriminatory statements- The gun was reliable and derivative evidence

3. Society’s interest in the adjudication of the case on its merits- Crown and society would not secure a conviction without the gun

- Impact of the breach on his Charter protected interests weigh in favour of exclusion, the publicinterest weigh largely to admission

- The gun belonging to Grant was derivative evidence (evidence produced after Grant told the police whichwas found to be an unconstitutional obtained statement) and was ADMITTED even though the policewould not have found the gun BUT FOR Grant’s incriminatory statements from the arbitrary detention

1. The Seriousness of the Charter Infringing State Conduct


- Involves assessing the blameworthiness of the conduct. The more severe or deliberate the state conductthat led to the Charter violation, the greater the need for the courts to disassociate themselves from thatconduct by excluding evidence.

- This focuses mostly on the state of mind of the police officer, but extends to include systemic orinstitutional failures in Charter compliance.

- The conduct will also be more serious where it is part of a larger pattern of Charter violations committedduring the investigation.

- There are three clear considerations that will colour the seriousness of the breach:

1. Blameworthiness of theConduct

- Good faith of the police areless serious (must bereasonable to considerinclusion - not a subjectivestandard)

- Bad faith or wilful conductare more serious

- Misleading/false evidencefrom the police concerningCharter compliance,

- Erroneous Crown advice(may or may notmitigating)

- Pattern of violations (morebreaches = more serious)

2. Degree of Departure fromCharter Standards

- Substantial or a technicalbreach of Charter rights,

- Racial profiling,- Abusive police conduct,- Exploiting the vulnerability

of the accused (mentallychallenged, young,intoxicated)

- If the police had objectivegrounds to suspect/believewrongdoing or lackedreasonable suspicion orreasonable grounds tobelieve all together

- Legal alternatives?

3. ExtenuatingCircumstances

- Need to prevent thedisappearance of evidence

- Exigent circumstances aidin inclusion

- Emergency where public orpolice safety is at stake

2. Gauging the Impact of the Charter Violation on the Protected Interests of the Accused- Here, we measure the extent the Charter breach actually undermined the interests protected by the right

infringed. The more serious the impact on the accused’s protected interests, the greater risk thatadmission of the evidence may signal to the public a disregard of Charter rights and bring theadministration of justice into disrepute.

- For section 8, the key consideration is the strength of the accused’s REP and the extent the policeinvaded it (body, home, computer invite a high REP; vehicles LESS)

- For section 9, the key consideration is how directly was liberty implicated (duration and magnitude ofthe detention whether physical or by psychological coercion)

- For section 10, the key consideration is whether the accused had the chance to speak to counsel beforeoffering incriminating statements (deprives AC the opportunity to make informed decisions about theirsituation and make meaningful decisions based on this information)

- The way the impact is assessed varies with the kind of evidence sought to be admitted

1. Statements- The degree of intrusion that occurs when

statements are unconstitutionally obtained ishigh because the statements by the accusedengage the principle of self incrimination

2. Bodily Samples- The degree of intrusion depends upon the

extent to which privacy, bodily integrity andhuman dignity are compromised given the


- Also improper questioning leads to reliabilityissues of statements

- Unconstitutionally obtained statements arepresumptively inadmissible

- However, spontaneous utterances following aCharter breach may be admissible if it can beshown the statement would have been maderegardless of the breach (not prompted fromimproper police question for example) but thisis not a strong reason for inclusion

nature of the samples and the manner inwhich they are secured

- Breath sample (less serious) v blood sample(more serious)

- Plucking a hair (less) v a strip search (more)- There is no presumption of exclusion, but it

should not be routinely admitted, either.

3. Non-Bodily Physical Evidence- Usually tied to section 8- The degree of intrusion is influenced by the

nature of the search or seizure that produces theevidence, and how compromising that search orseizure is of the privacy interests of the accused

- Homes and bodies have a higher REP then aplace of business and cars

- Body cavity or strip searches (Golden factors ofstrip searches assessing intrusiveness) are veryserious intrusions in comparison to pat down ora frisk search (large impact on human dignityand respect)

- Looking in cellphones = HIGH REP- Looking at documents discarded in the trash

even if a violation = arguable to be included

4. Derivative Evidence- Gun in the river, body in sewer- Although usually very reliable, this does not

grant automatic inclusion- Because derivative evidence comes from

unconstitutionally obtained statements, thedegree of intrusion will likely be significantunless it can be confidently concluded thatthere is a likelihood the evidence would havebeen discovered regardless of the violation

- Usually in favour of exclusion unless thepolice would have found it anyways

- Ex: Grant’s gun was not discoverable b/c thepolice would not have known about the gunBUT FOR Grant’s incriminating statements

- However, SCC let it in :(

3. Judging Society's Interests in an Adjudication on the Merits (if their guilty, their guilty)- Ed always concedes this factor in favour of inclusion- Three central factors exist in examining the impact of exclusion on the truth-seeking function

1. The reliability of the evidence,- Physical evidence considered to be almost always reliable (including breathe samples)- More concerned about statements by an accused (confessions, statements)

2. The importance of the evidence to the prosecution's case, and- Should the exclusion of evidence gut the Crown’s case, may lean towards inclusion if

the evidence is deemed reliable3. The seriousness of the offences charged

- Largely immaterial, as s. 24(2) rights are meant to be engaged across the board-

- Some courts say the third category will not be influential if the first two point to exclusion or admission- Exclusion of relevant and reliable evidence may undermine the truth-seeking function of the CJS and

render the trial unfair from the public’s perspective = bringing the administration of justice into disrepute- Courts are to consider the administration of justice in the long term, and not just the immediate impact on

how people view the justice system.- *In Harrison, the breach was so significant that the reliability of the evidence was outweighed*


R v Harrison (2009 SCC)- Police stopped a vehicle that looked suspicious because it did not have a front license plate. The police

stopped the vehicle and noticed it was an Alberta vehicle, where a front license plate was not required bylaw. The officer testified that he still chose to stop the vehicle. The officer ran the plate and saw the vehiclewas rented. He pulled over the driver and he could not produce a license. He searched the vehicle to lookfor the license plate. The discovery of a license is not necessary for a charge of disqualified driving.

- During the search, the officer found 33kg of cocaine as the result of an unconstitutional search of a vehicle.- Was not a true search incidental to arrest. Breaches were serious.

1. Seriousness of the Charter breach:- There was virtually no reasonable grounds for the initial traffic stop, he also did not need to

search the vehicle for a license to charge for disqualified driving- The violations were not deliberate, but reckless and showed an insufficient regard for rights- The evidence given by the police officer was misleading court testimony (lied)- Overall, a serious breach that weighs in favour of exclusion

2. Impact on the Charter protected interests of the accused:- While there is not a huge expectation of privacy while driving, it is impacted by the

absence of any reasonable basis for justifying the search;- There was no justification for the search, so the impact was significant, but not egregious.- Drivers have expectation to be left alone; if stopped, should be valid and legit traffic stops- Overall, weighs in favour of exclusion.

3. Societies interest in adjudication on the merits:- The evidence was highly reliable and crucial to the Crown’s case- Overall, weighs in favour of inclusion

- Court balances all three factors and finds that the breaches were very significant and would bring theadministration of justice into disrepute should it be admitted.

- Excluded all the discovered cocaine (Ed says this is remarkable as drug offences usually against exclusion)

Chapter 11: Informations and Indictments (Charging Documents)- What happens when stepping into a courtroom?- A prosecution begins when a police officer (or a private person) lays an information

1. The information = Trial in PC or preliminary inquiry2. The indictment (replaces the information) = Trial in SC

- Signed by the Crown (either elects to proceed by indictment or the offence is a mandatoryindictable) usually after the accused is committed to stand trial after a preliminary inquiry

- The Crown has the discretion to add or detract charges from the preliminary inquiry stagebefore the SC stage

- The Crown can prefer a “direct indictment” as well- Not sworn (like an information is)

- Each trial is concerned with ONLY ONE indictment or information- If there are two, then there are two trials- Propose = Give an accused adequate notice of the charges against them and prepare a defence

(1) A single information or indictment may include one charge or multiple charges against an AC ormany ACs OR charges against an accused can be distributed amongst several charging documents

- Joinder = The practice of including multiple counts in the same document


- A summary conviction offence cannot be tried by a judge and jury, even if it is alleged to have beencommitted during the same transaction as the indictable offence

- But, for judge alone trials, summary conviction and indictable offences may be tried together- Youths cannot be tried with adults (in co-accused trials)- Major exception is MURDER

- No offence may be included in the same indictment as murder unless it “arises out of thesame transaction” like sexual assault leading to a murder or if the accused consents

(2) Content of the charges (format is set out in Form 2)- Date, time, place of the offence, name of the accused, and the specified charge that is provided by

sufficient detail (needs to be particular) of the underlying transaction or circumstances- Should use “popular language” without “technical apartments”- Two Requirements:

1. Legal Sufficiency- Accused is given noticed of the legal elements of the offence (this includes

included offences of a charge)- AC must be able to clearly ascertain from the offence charged the charges for

which he risks conviction- Allegations of two separate offences arising from the same cause of conduct need

to be separated into the different offences in the charging document (R v Sharpe)2. Factual Sufficiency

- Accused has notice of the facts underlying the legal elements- Charging document must provide sufficient supporting detail of the underlying

transaction or circumstances- Must describe offence with sufficient precision

(3) Important to ensure that informations and indictments are filled out properly- If not, defence can argue it’s not valid- If a charging document is not particular to a charge, the court can order the Crown to “furnish

particulars” to meet the standard of factual sufficiency- Courts can order to quash or amend an indictment or information under section 601 if the

charge as written is prejudicial to the accused or is not supported by evidence against them- Amendment is preferred over quashing if appropriate

1. Amendment = Becomes part of the record and the proceedings continue2. Quash = Charge is void ab initio (treated as if it's never been laid) = Consequence is a new

information may be laid against the AC for same offence w/o triggering double jeopardy

(4) Division and Severance (severe the counts and accuseds)- Court may divide the charges if AC demonstrates prejudice from multiple transactions in one

count (s. 590(2))- Unless the court also severs it from the charging document, the charges will still be tried together- TEST: Interests of justice require severance.- If an accused claims the structure of the charges as prejudicial, can apply for 3 things:

1. Divide counts in a single charging document- Ex: One count of two thefts can be divided into two counts if the accused has two

distinct defences relating to two separate incidents2. Sever counts against one accused into separate charging documents


- If the accused has been charged with multiple counts, an accused can apply tosevere them into separate charging documents (prevent the TOF from seeingincriminating evidence relating to one charge but the other, to testify on one chargebut not the other, etc)

- Ex: Two counts of sexual assault that don’t relate to each other, can severe them(separate them into two different documents and trials to reduce prejudice)

- If the Crown argues that keeping multiple charges is intended to show SFE or amotive, the court may not severe the charges

3. Sever counts against one accused from those against co-accuseds- An accused can apply to be tried separately from a co-accused on one or more

counts, especially if 1 accused has one charge and the others may have a long listof charges (want to reduce prejudice as much as possible)

- An AC should not be severed unless he can show that a joint trial would cause aninjustice (R v Weir)

- Ex: If the accused wants to compel the co-accused testify (can’t compel an accusedto testify at their own trial)

- Ex: Evidence is admissible against one accused but not the other accused’s leads toseverance too

Lecture 12: Territorial and Temporal LimitationsExtraterritorial Limitations

- Starting point is section 6(2) of the Criminal Code = Cannot be convicted or discharged in Canada of anoffence committed outside of Canada

- It codifies the rule known as the principle of territoriality (comes from international law) that requires aState to only apply their laws within their territorial boundaries

- To make an offence subject to Canadian jurisdiction requires a “real and substantial” link between theoffence and Canada

- TEST: A significant portion of the activities constituting the offence must take place in Canada- A link between Canada and the 1) formulation 2) initiation OR 3) commission of the offence

- R v Libman- Accused was operating a fraud scam from a Toronto telephone room, where he directed his staff to

scam call American residents to send money to Central America- The accused received his shares of the proceeds and the money was brought to Canada- “Ample links here” to prosecute the offence in Canada

- R v Greco- Accused charged with breaching his probation order while in Cuba where he assaulted his wife- Convicted of breaching probation on “kpbgb” because Canada has an interest in ensuring

compliance with court orders, which provided a real and substantial link- Exceptions to the Principle of Territoriality

- Universal Jurisdiction- Countries are allowed to apply their criminal law extraterritorially under international law

for certain crimes of universal jurisdiction, considered to concern the whole of humanity.- Examples: piracy on high seas, genocide, crime against humanity, war crimes, conspiracy,

treason, torture, etc...- Nationality Principle

- A state may adjudicate actions committed by its own nationals abroad provided that theenforcement of the law takes place when they are within the State’s own borders


- Section 7 of the Criminal Code- So long as there is some nexus to Canada (section 7) then it can be prosecuted- Ex: Offences committed on an aircraft registered in Canada, acts of piracy, offences

committed in space, terrorism, conspiracy to commit an offence in Canada, etc.- If the accused is not a Canada citizen, the AG has 8 days to consent to the proceedings

once its commenced or else no prosecution can occur

Interprovincial Limitations- Section 487(1) states offences committed in one province cannot be tried entirely in another province- Exceptions:

1. Offences committed on the boundary between two territorial divisions or within 500 meters of sucha boundary can be tried in either province

2. Where an offence is committed in a vehicle or a vessel or an aircraft, it is deemed to be committedwithin any province/territory through which it starts, passes through during its journey, or ends

- R v Bigelow- Dad (in Alberta) and mom (in Ontario) shared custody of their child. The dad on one occasion

refused to return the child home in Ontario.- ON had jurisdiction to try the dad because the accused boarded the plane with their child in Ontario

and the dad’s keeping of the child in Alberta had an effect on the mom living in Ontario who wasdeprived of custody

- Where an offence begins in one province, continued in a different province, and completed withinanother, the offence can be tried in either of those provinces (elements of an offence spread out)

- Uses the same test of a “real and substantial” link- Transfer of Guilty Pleas

- Allows anyone who intends to plead guilty to an offence (other than one in 469 like murder) tohave the case dealt with in a province other than the province where the offence was committed IFthey have the AG’s consent where the proceeding was initiated

- Once the charge is transferred, the jurisdiction of the receiving province is contingent on theaccused pleading guilty otherwise it will be transferred back to the originating province

- The charge cannot be pled down in the receiving province- Nor can the accused proceed to trial in the receiving province

- Why wouldn’t a trial be able to transfer?- Witnesses are from the original jurisdiction so this would make it difficult for the Crown’s

case if they had to travel

Intraprovincial Limitations- General Rule = The offence should be tried in the city that the offence happened in (city members are

entitled to know what is going on if the offence is connected to a community, easier for witnesses, involvedpolice officers, families of victims and accused persons, etc)

- Section 470 gives all criminal courts in a province jurisdiction to try an indictable offence that wascommitted anywhere within the province

- Section 470(a) states that once an accused is found, arrested, or in custody within the territorial jurisdictionof the court, the court will have jurisdiction regardless of where in the province the offence was committed

- Transfer of Guilty Pleas- An accused charged with an offence other than an offence under 469 can have a charge dealt with

in any territorial court within the province other than where the offence happened if it is consentedby the AG


- Once the transferred is received, the accused must plead guilty (cannot plea down or go to trial)- Change of Venue (Move a trial out of province)

- Must make an application under section 599- The moving party must show that it would be “expedient to the ends of justice” to relocate the trial

to a different territorial division within the province- Judge has discretion to determine whether relocation is necessary to ensure a fair trial- Common where an accused is charged with a horrific crime in a small town that is public

and everyone knows about (too much prejudice)- Relocation is mandatory should the accused want to be tried in 1 of 2 Canada’s official languages if

the territorial division cannot provide it- Right to be tried in one of Canada’s official languages (s. 531) – MANDATORY if AC wishes to be

tried in official language and this cannot be complied with in that region

Temporal Limitations- Starts the day the OFFENCE HAPPENS not when the ofence is charged!!- Section 786(2) = For summary conviction offences no proceedings shall be instituted more than 12

months after the time the subject matter of the proceedings arose, unless the Crown and defence consent- Is this crime control legislation? Yes, 12 months was an extension from 6 months

- For the Crown, consenting to proceed summarily avoids a potential preliminary inquiry or a jury trial- For the defence, consenting to proceed summarily (on a hybrid offence) avoids the Crown re-electing to

proceed by indictment and be subject to a lengthier maximum sentence- Statute-Barred Offences

- Should a summary conviction charge be statute-barred before an adjudication on the merits, amistrial must be declared

- If this becomes apparent on a conviction appeal, the court must set aside the conviction- The Crown can law a new information and proceed by indictment (absent an abuse of process)- The Crown will be unable to prosecute a hybrid offence again when the court determines on an

appeal of an acquittal of a summary conviction election that the matter was statute-barred- The Crown cannot attempt to try the accused again on an indictment because it would be

prohibited by the principle of double jeopardy- However, it does not constitute a double jeopardy to prosecute the accused again after a

mistrial is declared or a conviction is set aside on appeal- Straight summary conviction offences that are statute-barred are usually dismissed

- Section 11(b) = The Right to be Tried within a Reasonable Time (Unreasonable Delay)- Justice delayed is justice denied - the timely adjudication of criminal matters serves the interests of

justice to the public, the victim, and the accused- Swift justice is the most powerful deterrent of crime- Remedy for a breach of 11(b) is always stay (even if not the clearest of cases)

R v Morin (1992 SCC)- The accused asked for the 1st available trial date, which was 14 months later. They brought a 11(b)

argument at that time.- Adopted the same factors to be considered in analyzing how long is too long:

1. The length of the delay;2. Waiver of time periods;3. Reasons for the delay, including

a. Inherent time requirements of the case,


b. Actions of the accused,c. Actions of the Crown,d. Limits on institutional resources,e. Other reasons for the delay; and

4. Prejudice to the accused.- Introduces judicial resources as a consideration in the application of 11(b) rights.- Institutional delays can add 8-10 months to the delay of getting to trial in Provincial Court. It starts to run

when both parties are ready but the system cannot accommodate them.

R v Jordan (2018 SCC)- Jordan served as a wake-up call to backlogs in the CJS (split 5-4 decision)- Found that the framework set out in Morin contributed to a culture of delay and complacency.- Developed a presumptive framework with hard deadlines (replaced Morin’s framework)

- 18 months for cases tried in provincial courts without preliminary inquiry- 30 months for cases tried in provincial courts after a preliminary inquiry or in superior courts

- Since the delay in trying Jordan had been 49.5 months, of which 44 were imputable to the Crown or tosystemic delays, his appeal was allowed and a stay of proceedings was entered.

- Two Steps:1. Calculate the total delay

- Start from the date of the laying of the information (it is sworn) that kick starts a criminalprosecution to the trial date

2. Subtract the defence’s contribution to the delay- Defence delays include (1) a delay is waived on the record by the defence for time periods,

and (2) a delay that is caused solely by the conduct of the defence such as requestingunnecessary adjournments when the Court and Crown is ready to proceed

- Defence delays are subtracted from the ceiling- An accused cannot slow the judicial process to their advantage

- If the delay falls below the presumptive ceiling, the defence has the onus to show that the delay isunreasonable and the defence made efforts to move it along

- If the delay exceeds the presumptive ceiling, the delay is presumptively unreasonable and the onus is on theCrown to establish “exceptional circumstances” to show the delay was reasonable

- Ex: Medical or family emergencies of the Crown, judge, witnesses, or inaccurate trial estimates thatresulted from good faith effort, lack of an alibi notice, unique complex cases with enormousdisclosure and evidence, etc.

- If it cannot, a stay will follow

Lecture 13: Pleas- Arraignment = The purpose of the arraignment is to make a public reading of the charges against the

accused and to inform the accused of the exact allegations before he decides on plea and election.- At arraignment, the defendant is called upon to enter a plea to all counts in a charging document- If the accused refuses to plea, the judge must direct a plea of not guilty- Where there is more than 1 count in the charging document, the AC must enter a plea with respect to each- It can be at the first appearance, any subsequent appearance, or immediately before trial. In a jury trial, for

example, the accused must be arraigned in front of the empanelled jury- Three types of pleas:1. Guilty


- Guilty plea carries admission that AC committed the crime charged, consents to convictionwithout trial - Relieves the Crown from having to prove guilt BRD

- Without guilty pleas, the system would collapse- Admission of the facts satisfying the elements of the offence- Crown can use the admissions made by one co-accused against another co-accused at their trial if

the admission is reliable- S. 606(1.1) – Court can ONLY accept guilty plea if court is satisfied

a. AC is making the plea voluntarilyb. That the plea is an admission of the essential elements of the offencec. He understands the nature and consequences of the plea ANDd. That the court is not bound by any agreement made between the defendant and the

prosecutor- If these conditions are not met, the guilty plea will be struck, and matter will proceed to trial**- After a guilty plea is entered, the Crown reads in the facts

- If the AC disputes any facts, an evidentiary hearing must be held- Aggravating facts beyond the essential elements of an offence that are disagreed on by the

AC, must be proven by the Crown BRD (stressed importance in class)- A guilty plea is presumed to be valid

- Accused can attempt on a BOP to demonstrate the guilty plea was not valid before thecompletion of sentencing (judge discretion)

- If sentencing has passed, a defendant can appeal to have the conviction quashed on thebasis of in invalid guilty plea (a judge has no jurisdiction to strike a guilty plea aftersentence has passed)

- Coercion or improper counsel can vitiate a guilty plea- Convenient pleas not allowed in Canada- Guilty pleas can be struck (not easy) = Discretion lays with the judge

- R v Anthony-Cook- Deference to joint submissions (but judge not bound to it)

- Section 606(4) = With consent of the Crown, the accused may plead not guilty to the offencecharged but guilty to any other offence arising out of the same transaction

- Ex: Robbery to mischief- Ex: Assault causing bodily harm to just assault

- Ed recommends getting written instructions for the guilty plea- Cheat sheet = Back of Martin’s CC there are a list of sentences, ancillary orders, etc.

2. Not Guilty- Set a trial date, accused elects mode of trial should that be necessary

3. Autrefois Acquit, Autrefois Convict, or a Pardon (very rare)- When AC elects a special plea, judge must rule on the matter before further plea

- If accepted, AC will be dischargedA. Double Jeopardy

- Defendants may not be prosecuted on charges similar to ones that they havepreviously been acquitted or convicted of (s 11(h) Charter, s. 607 Criminal Code)

- Only applies on a case that was “finally adjudicated” (not a withdrawal, which can berelayed after the fact and does not capture this rule)

- Can never be found guilty for the same offence twice (double jeopardy)B. Pardon

- The accused shows proof of pardon for the same offence


- A government decision to allow a person to be relieved of some or all of the legalconsequences resulting from a criminal conviction

C. Autrefois Acquit and Autrefois Convict- Cannot be raised at the preliminary inquiry- Acquit = Must state that he has been lawfully acquitted /discharged of offence charged in

the count AND indicate the time and place of the acquittal/discharge – does not applywhere first charge did not result in FINAL adjudication

- Convict = Must show final adjudication on prior charge on its merits AND that the matteris same (in whole or part)

- New count must be the same as the first trial, or have been implicitly included inthe first trial either in law or on account of the evidence presented

- Availability = On matters where the accused was found to be NCRMD or where a judgequashes an indictment after arraignment and plea on a SIMILAR charge

- Identity Test- To establish the matter in both charges is the same, could the accused have been

convicted at the first trial of the offence which he is now charged with?- If the charges are different in nature, the plea is not appropriate- It will apply if, despite the differences in the charges, the offences are the same

Res Judicata- Matter adjudged; not a special plea - it is a defence- The defence of res judicata (when relating to AC will be called "double jeopardy") prevent any convictions

being entered for the same factual transactions as a previous conviction- Onus on D to satisfy that the particular issue was decided in his favour in previous proceedings- Res Judicata is an umbrella term that covers concepts including autrefois acquit, autrefois convict and he

rights under s. 11(h) of the Charter- Two branches

1. Double Jeopardy (above)2. Issue Estoppel - Stops the Crown from relitigating an issue that has been determined in the

accused’s favour in a prior criminal proceedings

The Kienapple Principle- The rule against multiple convictions; an accused cannot be convicted for more that one offence arising out

of the same “delict” or else the accused could be punished twice for essentially the same offence- Can’t be convicted of both offences, a conditional stay has to be entered for one of them- If the accused does not appeal the conviction, than the conditional stay for the stayed Kienappled offence

becomes a permanent stay (like an acquittal)- Need a factual and legal nexus

- Factual Nexus = The same act of the accused undergrids each of the charges- Legal Nexus = No distinguishing element that goes to guilt contained in the offence for which a

conviction is sought to be precluded from the principle- Ex: Get caught by photo radar on one block and the next block over caught by photo radar again.- Ex: Accused is charged with impaired driving and impaired over 80 arising out of the same transaction- Ex: Robbery (theft + assault) and aggravated assault arising out of the same incident

Lecture 14: Jury Selection- Two views of the jury system


1. Great thing – Jury duty is the greatest duty a person can perform (crime control)2. Not so great – jury institutes mob rule; juries’ failure to understand the law or give reasons for their

decisions makes justice a fraud, undemocratic- Recall: AC charged with certain offences may elect to be tried by a judge and jury

a. Provincial court; 553 offences; and summary convictions = no jury allowedb. Indictable convictions that are not 553 offences = AC can elect for jury trialc. In 469 offences, such as murder = jury trial is mandatory, unless the parties consent to trial by

judge aloned. Section 11(f) of the Charter enshrines the a limited right to a jury trial for persons charged with an

offence where the maximum punishment is 5 years or more- The Role of Juries

- Follows the legal directives of judges, resolve factual disputes, and decide if the accused is guilty- Judge alone trials act both the trier of law and fact- R v Sherrat

- The “jury through its collective decision making, is an excellent fact finder; due to itsrepresentative character, it acts as the conscience of the community; the jury can act as thefinal bulwark against oppressive laws or their enforcement; it provides a means wherebythe public increases its knowledge of the CJS and it increases, through the involvement ofthe public, societal trust in the system as a whole”

- Jurors who have no legal experience help vindicate a legal position (the defence or Crown)

(1) Jury Selection- The law is designed to ensure the jury is impartial and representative of the community1. Assembling the Array (representativeness)

- Assemble a group of potential jurors to decide on representativeness- Governed by provincial legislation

- Must be the age of the majority, residents of the province, a Canadian citizen, etc- Also offers exemptions to jury duty

- Lawyers, politicians, law enforcement, judges- Persons convicted of offences- Physical, mental, linguistic difficulties, etc

- Jury service is MANDATORY for those selected to the array who are neither ineligible orexempted to serve (failure to respond to a summons is an offence under provincial statute)

- People are summoned by a court official, usually a sheriff, who choose people RANDOMLY froma representative database (like health insurance)

- The Crown or defence can challenge the partiality, fraud, or wilful misconduct of a court official ifthey don’t choose the array randomly under section 629

- R v Kokopenace- The lawful assembly of potential jurors require 3 elements:

1. Be representative of the community2. Is a random selection

- Everyone must have an equal chance of being summoned- Precludes efforts to achieve demographic equity (can’t plan for an inclusive group)- Crown successfully challenged an array on the grounds the sheriff intentionally

included 52 member’s of the accused’s race (R v Born with a Tooth)3. Adequate efforts to deliver notices to the people who have been randomly selected


2. Empanelling the Jury (impartiality)- Governed by section 631 to 644 of the Criminal Code- The second step is to select the group of 12 from the array to form the jury – ensures impartiality- Section 632 = The judge will “pre-screen” the prospective jurors summoned to the court for

1. Partiality (personal interest or relationship with a trial participant) and2. Hardship (child care) over obvious cases by having them identify themselves and they will

be excused- Non-obvious cases are dealt with under the “challenge for cause” process- Potential jurors will be selected one by one from those remaining in an array – They will have their

names, assigned numbers, and addresses written on cards. These cards will be randomly drawnfrom a box.

a. May be excused or stood aside by judge; successfully challenged for causeb. Alternate between Defence - Crown

- Defence lawyer looks for – people who are open-minded, independent thinkers, someone interestedin being there because there is a lot riding on the trial, therefore this ensures that the member of thejury will take it seriously

- Defence doesn't want people who are occupied by a similar profession. For ex: if it is a child sexualassault case, then you don’t want any child therapists

- The process continues until the judge decides that a sufficient number have been called to comprisea full jury (12 in a criminal trial) and alternates (usually 1 or 2 extra)

(2) Excusing and Stand Asides- Excusing: Prospective jurors may be excused on the grounds set out in s. 632

- Sworn jurors may be excused under this provision as well, at any time BEFORE the trial begins- Stand Aside: Instead of being excused, the judge may order a person to stand aside (for reasons of

personal hardship, etc...)- Those stood aside will only be called on for possible selection if the array is exhausted

(3) A Challenge for Cause- If prospective jurors are neither excused nor stood aside, both the prosecutor & defence may challenge

them for cause (ss. 635- 640)- Three stages:

1. The challenging party must show the judge that the claim has an “air of reality”- Potential jurors are presumed to be impartial (Sherrat)- Challenging party must show they are partial- Must be based on grounds in section 638(1) = page 719- Non-indifference (prejudiced) between the AC and the Crown (most common)- To covince a court to approve the challenge, the party must show (a) widespread bias that

exists in the community and (b) that some jurors may be incapable of setting aside thisbias, despite trial safeguards, to render an impartial decision = pg 721

- Racial bias, pre-trial publicity that is misleading, and offence based challenges (biasagainst people charged with certain crimes that the potential juror is not able to set aside)(look in other CAN)

- R v Koh- Took judicial notice of discrimination against visible minorities holding that

non-white accuseds have a right to challenge for cause without calling evidence


- Challenges are rarely accepted for generic natures of crimes including violence, drugs,sexual violence, etc.

- Challenges against specifics of a crime like a community street gang or police assaulted ananti-police advocacy group have been permitted

- Challenges based on bias against sex, homosexuality, HIV, have been refused- Challenge for cause happens more for addressing racism… horrific offences (like child

rape) have not been a challenge for cause thus far2. If air of reality is met, the challenging party can question the prospective juror about their

partiality- What do you know about this case? Where have you heard about it? Have you formed an

impression of the AC?3. Judge has discretion to allow or refuse the challenge

- Decision is made by the 2 jurors who were last sworn – The trial judge does NOT decidethe merits of challenges of specific jurors. (If 2 have not been sworn, the judge mayappoint any 2 persons present to decide the challenge)

(4) Removal and Replacement of Sworn Jurors- Jurors may be dismissed at any time on grounds of partility, personal hardship, or other reasonable cause

BEFORE the commencement of a trial- Jurors may be dismissed AFTER the trial begins IF they meet a limited set of criteria like illness or other

reasonable cause (personal hardship or potential partiality, etc...) (s. 644)- To do this, the judge should exclude the other juror members from the courtroom and conduct an

inquiry on the disputed juror in open court, on the record, and with counsel present to answerquestions but they should not be placed under oath or CE

- Jurors who have been discharged may be replaced any time before the jury has begun hearing evidenceby members of the array or stand asides or alternates

- The trial must commence with EXACTLY 12 jurors- Should evidence begin to be heard, jurors can go down to 10 at a trial but no less than that- If lower than 10, the judge must declare a mistrial

(5) Why a Jury?- Normally want a judge alone trial for a pure legal argument

- Identification for robberies should be for judges alone- If the law isn’t on your wide but the facts are (sympathetic circumstances) you want a jury

- Murder if you don’t have a good defence- Credibility contests should be a jury

Lecture 15: Trial Procedure- Rules of criminal procedure and evidence intersect in an adversarial setting- TJ is responsible for (i) managing the trial & (ii) controlling the procedure to ensure that the trial is

effective, efficient, and fair to both sides- R v Lifchus

- Accused's enter proceedings presumed to be innocent and he or she remains innocent until theCrown has proven their case BRD that the accused is guilty

- Reasonable doubt is based on common sense and reason (based on evidence before the court)- This is not absolute certainty


- If one believes the accused is probably or likely guilt, this is insufficient and must acquit- If there is a “nagging” feeling… the case has not been proved BRD

- Language Rights- The Code provides for an accused's right to a French or English language or bilingual trial- The judge and prosecutor will be required to know how to speak one of the official languages- If a jurisdiction is unable to comply with the language chosen, the trial can be moved- If there are co-accused's wanting different languages, the trial can proceed bilingually

- Publication Bans- Court proceedings operate on the presumption of openness (transparency)- The public has the right to attend court and the media has the right to disseminate info- The open court principle, however, may be curtailed by publication bans

1. Discretionary Bans2. Mandatory Bans

- A publication ban should only be ordered when1. It is necessary to prevent a serious risk to the proper administration of justice and2. The salutary effects of the publication ban outweigh the deleterious effects on the rights

and interests of the parties and the public1. Young Persons (under 18)

- Prohibits the publication of the name of a young person or any other information thatwould identify the young person

- No publication ban for a young person who receives an adult sentence2. Pre-Trial Stage

- Bail Hearing- If the accused asks for a publication ban at their bail hearing, the judge must

impose a ban on “the evidence taken, the information given or the representationsmade and the reasons given or to be given by the justice”

- Ban is NOT absolute – media may publish identity, comment on facts of offence,and application for bail

- Preliminary Inquiry- An order for a publication ban is mandatory if requested by the defence and

discretionary if the application is made by the Crown- Defence will always ask because don’t want to poison potential jurors and want to

safeguard the right to a fair trial- The publication ban on any evidence remains in effect until either (i) the accused is

discharged after a preliminary inquiry; or (ii) the end of the trial3. At Trial

- Some offences protect the identity of the complainants and witnesses (sexual assault)- May sometimes also protect the identity of the accused should it be obviously linked to the

complainant to help ensure the complainant is not identified- If witness/Crown applies for ban, information that discloses their identity can’t be

disclosed (s. 486.4(1))- In child porn cases – ban is automatic – Court MUST ban the identity of the persons

depicted and witnesses in the case regardless of whether a ban is applied for (s. 486.4(3))- In all other cases – upon application by the witness/victim/prosecutor, the judge MAY ban

the publication of information that could identify them IF the order is necessary for theproper administration of justice (s. 486.5(1))


- In jury trials – there cannot be publication or broadcast of any portion of the trial when thejury is not present (before the jury retires to consider its verdict)

- Exclusion of the Public or Media- The trial judge has discretion to exclude the public and the media from proceedings if it is in the

interest of public morals and the administration of justice- Exclusion of Witnesses

- A trial judge has a common law discretion to order the exclusion of witnesses during the trial.- Always want to exclude witnesses until it is time for them to testify (don’t want their testimony to

be tainted) and ask the judge to order the witness not to share their evidence when they are finished- Compelling Witness Attendance

- A subpoena compels a witness to court- A witness could quash a subpoena but must show they have no “material evidence” to give

- Testimony Outside the Courtroom or Behind a Screen- Certain witnesses may testify outside the courtroom or behind a screen in order not to see the

accused (unless doing so would interfere with the administration of justice)- Accused has to face their accuser; but an accuser may not want to see the accused- Such witnesses include

- Under the age of 18- Those who have trouble communicating (mental or physical disability)- Anyone else the Crown must satisfy to the judge that an order is necessary to obtain a

candid account from the witness of the acts complained of (like sexual assaults)- R. v. Levogiannis

- The screening of a complainant's testimony does not impair the accused's ability tocross-examine, since the screen does not obstruct the view of the complainant

- Adjournments- R v Darville- Where a party seeks an adjournment to procure the attendance of a witness, must show

1. The witness is a material witness2. The requester is not guilty of laches or neglect in securing the attendance of the witness3. If the adjournment is granted, there is a reasonable likelihood that the witness will attend

on the next occasion (witness warrant usually satisfied this branch)- Withdrawal of Counsel

- While an accused has an unfettered right to discharge his or her counsel at any time and for anyreason, a lawyer's wish to be removed from the record requires leave of the court (discretion)

- Reasons to be removed:1. If counsel requests removal for enough in advance of any schedule proceeding2. Ethical reasons, non-payment of fees, etc

The Trial Process- As part of the court's inherent jurisdiction to control its own process, a trial judge may exercise his or her

discretion to give directions to ensure a fair and orderly trial.- Presence of the Accused

1. Indictable Matters- An accused MUST be present in court during the whole of his or her trial but the court may

remove the accused if there is misconduct or they interrupt the proceedings


- An accused can attend certain court proceedings by way of a “designated counsel” butmust file this designation with the court - This allows the AC to be absetn duringadministrative parts of the proceedings except where…

1. Where oral evidence of a witness is taken;2. Where jurors are being selected;3. An application for a write of habeas corpus

- Accused MUST be present1. A plea of guilty2. Rendering sentence3. If the court orders otherwise

- A trial may continue in the absence of the accused where the accused simply absconds(flees) but the Crown must satisfy the judge that the accused voluntarily failed to appearfor the purpose of frustrating the trial, or with the intention of avoiding its consequences

2. Summary Convictions Matters- A defendant may appear personally as a self-rep or by counsel or agent- A “designated counsel” may appear on behalf of the accused on the date of arraignment

and enter a plea of not guilty (agent, SLS, counsel, a friend, etc)- When represented by an agent who is not a lawyer, the judge should ensure that the choice

is informed- Interpreters

- A constitutional right for a party or a witness of a proceeding to have an interpreter- However, it is not an automatic right… discretion of the judge if it is necessary (R v Tran)- The interpreter must be objective and unbiased- Where there is dispute over the interpreter's qualification, a trial judge should hold a voir dire to

determine whether the interpreter is sufficiently competent- Arraignment

- The trial begins with the person who is charged stand up and is “arraigned” (the formal pleading)- Consists of the charges being formally read to the accused to ensure: (i) that an accused is aware of

the exact charges when he or she elects and pleads; and (ii) that all parties to the proceeding havean understanding of the charges that are to be the subject-matter of the proceedings

- Indictable Charges- Read to the accused following their election- In a jury trial, arraignment occurs before the jury is selected in front of the jury panel

- Summary Conviction Matters- Read to the defendant by a clerk who is asked to plead guilty or not guilty

- Opening Statements- QB Trial

- Crown opens with an opening statement (introduction of self and general overview of thetrial and anticipated evidence) and is around 5-10 minutes usually

- Crown right to make an opening statement comes from the common law- Defence can make an opening statement when they open their case (after Crown loses

case) UNLESS there are special circumstances that impair the AC’s right to a fair trial, inwhich case it will occur right after the Crown’s address.

- PC Trial- Less informal and counsel tend not to give opening statements but you can

- Admissions at Trial- An AC may “admit a fact alleged against him for the purpose of dispensing with proof thereof”


- Admissions must be formally made = Once an admission is made, it is taken as conclusive proof- Counsel's informal acknowledgment that the Crown has proved an issue is not an admission

- Examination of Witnesses1. Direct Examination

- No leading questions EXCEPT on non-contentious matters for trial efficiency- The party who calls a witness will first question that witness at trial- Can CE a witness if they are declared hostile or adverse under ses 9 of the Evidence Act

2. Cross Examination - “A faithful friend in the pursuit of justice”- Protected by the constitution (the truth seeking function)- Must have a good faith basis, cannot harass or be repetitive

3. Re-Examination- Counsel can re-examine the witness, with leave of the Court, on matters that arose during

opposing counsel’s cross-examination and now need clarification or further explanation- It is NOT an opportunity to raise new facts or issues not previously covered in the DE- Can re-examine to rehabilitate credibility, such as prior consistent statements to rebut the

other party’s focus on impeachment (think of Sankoff’s notes in evidence)- Questioning of Witnesses by Judge

- Judges may ask questions of witnesses for clarification and amplification but should not usurp thefunction of counsel and should be made after counsel finishes their line of questioning

- Expert Evidence- An exception to the hearsay rule by allowing the evidence of an expert to be given by a report

accompanied by a solemn declaration of the person- Expert evidence MUST be qualified (Mohan) and requires NOTICE (section 657.3)

- At least 30 days before the beginning of the trial, the party must provide:1. The name of the proposed witness2. A description of the witness's area of expertise that sufficiently informs the other

party what their expertise is3. A statement of their qualifications

- The Crown must within a “reasonable period before trial” to provide to the defence: (i) a copyof the report; and (ii) if no report is prepared, a summary of the opinion anticipated to be given bythe proposed witness and the grounds on which it is based

- The defence is required to provide the Crown with that same material “not later than theclose of the case for the prosecution” (so can be during trial)

- Failure to comply with notice requirements = Adjournment is the minimum remedy for impropernotice but the judge is NOT empowered to refuse the expert from testifying

- Mental Disorder (Brian Hurley)- Includes two concerns (p 763)

1. If the accused is “unfit to stand trial”- All people presumed to stand trial unless the contrary is proved on a BOP

2. If the accused is NCR- An AC may not be found criminally responsible IF at the time of the offence he

suffered from a mental disorder that prevented him from either:- (i) Appreciating the nature and quality of a criminal act OR- (ii) Knowing that it was wrong

- Section 672 encompasses both NCRMD and fitness stand trial- Reply (after the Defence closes case) and Re-Opening the Crown’s Case


- At the close of the Crown's case, the AC is entitled to present a defence and the Crown may bepermitted with leave of the court to present “reply” or “rebuttal” evidence in response to newmatters raised by the defence

- Reply evidence is not an opportunity for the Crown to “split its case” and present furtherevidence!! (THANK YOU SANKOFF)

- The Crown cannot split their case “half and half” as it would leave the AC to defendthemselves without knowing all the evidence in a case against them

- Reply evidence = Admissible where the matter arises out of the defence's case, where it is notcollateral, and where the Crown could not have foreseen its development

- Ex: Alibi- Re-Opening the case = A trial judge may permit the re-opening of the evidence at any time before

sentence is passed (to either Crown or defence) but only if the proposed evidence is material andwhere the other side will not suffer any prejudice (R v Palmer)

- Final Submission and Closings- After all the evidence has been presented- If the defence does not call any witnesses, then it is entitled to present after the prosecution- If the defence, or any co-accused in a joint trial, calls witnesses, the defence must present first

- Charge to the Jury- In jury trials, at the conclusion of closing addresses both parties, a trial judge will provide

instructions to the jury before jurors begin their deliberations (R v Daley)- Judge (TOL) explains the relevant legal issues, elements of the offence, the burden of proof, the

possible verdicts, review of evidence, how the jury must make factual determinations (TOF)- Counsel can raise objections of the jury charge (lol damn)

- The Verdict1. Directed Verdict

- At the close of the Crown's case, an accused may decide to bring a motion for a directedverdict (also known as a “no-evidence” or “nonsuit” motion)

- The accused asserts the Crown has failed to make out a prima facie case to meet and theyshould therefore be acquitted without having to decide whether or not to call evidence

- TEST = Whether or not there is any evidence on each element of the offence uponwhich a reasonable jury properly instructed could return a verdict of guilty

- It is not the function to weigh the evidence, or test its reliability (Cinous; Fontaine)- Direct evidence – on every matter ensures no weighing of the evidence is required- Circumstantial evidence – the TJ must engage in a limited weighing of the evidence to

determine whether the evidence can reasonably support an inference of guilt (Accuri)2. Trial by Judge-Alone vs Jury Trial

- Judge Alone = Decision of guilt rests with the judge (both TOL and TOF) and mustprovide reasons whether orally or in writing (are subject to scrutiny)

- Jury Trial = Decision of guilt rests with the jury (TOF) but does not need to providereasons (no scrutiny)

- Despite this, jury verdicts are regarded as the “gold standard” in criminal law- The jury must be unanimous in its verdict, although it need not be unanimous in

the evidentiary route each juror takes to its decision- Should the jury remain deadlocked, the trial judge has the discretion to declare a

mistrial, discharge the jury and then direct that a new jury to try the case anew3. Mistrial


- An incident occurs at trial that poses “a 'real danger' of prejudice to the accused or dangerof a miscarriage of justice” that requires a judge to declare a mistrial

- Such as counsel saying inflammatory marks to the jury- Should be a measure of last resort and that the trial judge should first consider other

corrective means of remedying the situation- If a jury is hung (not anonymous) than there is a mistrial- In a jury trial, a judge retains a residual discretion to correct a mistaken verdict where the

jury did not render the verdict it intended

Lecture 16: Sentencing- This is the area in criminal law where counsel can be an effective advocate- Remember, most charges lead to guilty pleas- Crowns should be providing a reasonable and appropriate range of sentencing for an accused

Purposes and Principles and Sentencing = 718 of the Criminal Code(1) The main objectives and principles of sentencing (s. 718)

- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that haveone or more of the following objectives:

- (a) to denounce unlawful conduct;- (b) to deter the offender [specific] and other persons [general] from committing offences;- (c) to separate offenders from society, where necessary;- (d) to assist in rehabilitating offenders;- (e) to provide reparations for harm done to victims or to the community; and- (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to

victims and to the community

(2) PROPORTIONALITY is the fundamental principle in sentencing (s. 718.1)- Sentence must be proportionate to the gravity of the offence and degree of responsibly of the offender- First time offenders, criminal record, commiting crimes for necessities, etc

(3) A trial judge must take into consideration (s. 718.2)(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating

circumstances relating to the offence/offender (LOOK IN ANTHONY’S CAN)- Aggravating Factors- Crown has to prove aggravating factors BRD if alleging one that is not agreed by the defence

1. Motivated by bias, hate, prejudice (race, age, gender, nationality, etc)2. Abused a spouse or a family member3. Abused a young person4. Position of trust (theft by employee)5. Part of a criminal organization6. Terrorism offence7. Offence happened while offender was serving a sentence

- Mitigating Factors1. Early guilty plea (SIGNIFICANT; Crown no longer needs to prove case BRD)2. Remorse3. Age (youth is mitigating)


4. Spontaneous conduct5. Stigma with pleading guilty to an offence6. Role in the offence (lesser role is mitigating)7. Considers good character, family responsibilities, employment, mental health issues

(b) Sentencing by PARITY– A sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances (s. 718.2(b))

- Need not be identical – But must be within the reasonably outlined guidelines- Must have consistency – Can’t treat people too differently from each other

- We have guideline cases where the starting point, for example, in a sex assault case is Xyears – from there, you apply the sentencing principles and adjust the sentence accordingto the starting point

(c) TOTALITY Principle- Where consecutive sentences are imposed- The combined sentence should not be unduly long or harsh;- Can’t simply rack them up – you must be careful that put together, the sentence isn’t too harsh

(d) Depriving Liberty is a Measure of Last Resort!!!!!- An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the

circumstances (like fine, probation, etc) and…(e) All available sanctions other than imprisonment that are reasonable in the circumstances should be

considered for all offenders – with particular attention to the circumstances of aboriginal offenders- If imprisonment imposed – Shortest possible sentence to achieve the relevant objectives- Jail is the tool of last resort – Particularly as it relates to Indigenous offenders (account for

intergenerational trauma)- Case Example: Person was convicted of a very minor breach of the peace. In this case, he was

found guilty of a no-contact order. After conviction the Crown sought a disproportionately highsentence – tendered cases that were severe resulting in 5-8 years. Judge took an adjournment todetermine the appropriate sentence, and during the adjournment, the accused took his own life.

Criminal Records: Gaps and Jumps- A criminal record is considered an aggravating factor in sentencing; the content and recentness of the

criminal record will be relevant- Gap Principle = A long period of time between offences demonstrates an effort at rehabilitation- Jump Principle = Sentences for a repeat offender should increase gradually, rather than by large leaps

- Generally applied with less serious offences- Dramatic increase in violence or seriousness – Jump Principle has as no impact- Serious and violent offence – General deterrence & denunciation are primary sentencing principles

Types of Offenders1. Young Persons (YCJA)2. Aboriginal Offenders3. Dangerous and Long-Term Offenders4. Corporations