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Basic Principles and the Objectives of the Criminal Law and Sentencing

a)R. v. Gladue

  • It is the courts job to consider causal and historical factors which impact Aboriginal people

Limits of the Criminal Law: Morality, Consensual Sex,Marijuana and the Harm Principle

b)R. v. Malmo-Levine

  • The harm principle is not a constitutional pre-requisite to the enactment of criminal law
  • Harm principle: In the 19th century, the prevailing view was that criminal law was designed to enforce and protect (Victorian) morality – i.e. to restrain and punish that which is a serious violation of the laws of God and nature (i.e. immoral or sinful conduct). That view is often referred to as "the conservative view"

c)R. v. Labaye

  • Requires harm principle to justify enforcing morals in a diverse society

The Criminal Law, the Constitution, and Codification

d)Amato v. The Queen

  • s.8(3)common law not frozen in time at time of codification

e)Frey v. Fedoruk

  • Before s.9(a) was created, the SCC declined making new common law offences

f)Jobidon v. The Queen

  • Held the defendant guilty by applying the common-law principle that ‘no person can consent to an act causing bodily harm’ in their interpretation of the definition of assault in the Criminal Code

The Interpretation of Criminal Laws

g)Nova Scotia Pharmaceuticals

  • s.7laws can be void for vagueness
  • Principle of fundamental justice that law cannot be too vague

h)R. v. Heywood

  • If unreasonable limits are placed on an individual’s rights it is contrary to s.1 or in contradiction of s. 7 which guarantees a right to liberty unless restricted in a way that conforms with principals of fundamental justice; an overbroad law is inherently unjust

i)Canadian Foundation for Children, Youth and the Law

  • A law should be void for vagueness if it does NOT provide an adequate basis for legal debate and analysis, delineate an area of risk or is not intelligible

j)R. v. Paré

  • Strict construction can only be applied after a thorough contextual analysis has led to two reasonable meanings

Charter Rights

k)R. v. Oakes

  • Facts: impugned law put onus of proof on the defendant to prove they had no intent to traffic upon finding of possession
  • Held: Law held too broad, there is no rational connection between small amount of narcotics and the intent to traffic drugs
  • The government has the burden of proving, on a balance of probabilities, that the violations a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society
  • 3 step Oakes Test for Charter Rights
  • Was the violation prescribed by law?
  • No: Breach of Charter right not justified
  • Yes: apply Oakes test to see if breach was justified
  • Is the objective of sufficient importance to warrant overriding of a constitutionally protected right or freedom
  • No: Breach of Charter right not justified
  • Yes: Move on to next branch of the test
  • Proportionality Test: proportion to objective
  1. Is there a rational connection between the impugned law and the objective?
  1. No: Breach of Charter right not justified
  2. Yes: Move on to next step
  1. Is the impugned law minimally impairing of the right in question?
  1. No: Breach of Charter right not justified
  2. Yes: Move on to next step
  1. Do the good effects of the impugned law outweigh the bad effects of breaching the right?
  1. No: Breach of Charter right not justified
  2. Yes: No breach, violation justified under s.1

Exclusion of Evidence

If evidence is obtained in a way that infringed/denied any Charter rights or freedoms, then it would be excluded if its admission would bring the administration of justice into disrepute, s.24(2)

l)Collins/Stillman

  • Exclusion of evidence under s.24(2)
  • Issue: Youth killed a girl in a river. Police forced him to give plastic bite imprints, and stole his tissue from the garbage
  • Held: Body sample evidence must be excluded, but tissue from the garbage is okay
  • 3 step test for exclusion of evidence under s.24(2):
  1. Would admitting the evidence adversely affect the fairness of the trial?
  2. Is the evidence conscriptive? (ie, were they forced to incriminate themselves); if yes move onto discoverability, if no then there is no breach of Charter rights and evidence can be admitted
  3. Was the evidence discoverable? (ie, was there a possible way to discover is legally); if yes move onto next to steps, if no must exclude evidence
  4. Was the Charter breach serious?
  5. Would the exclusion of evidence bring the system of justice into greater disrepute than admitting it?

m)Buhay

  • Facts: Accused had a rented locker at a bus depot with pot in it, and security guard smelled the pot. He calls the police and they open it
  • Held: s.8 violation, evidence must be excluded under s.24(2)
  • Clarified and expanded on steps 2 and 3 of Collins/Stillman test
  • Relevant factors
  • Motivation
  • The possibility of using other means to obtain the evidence
  • Evidence which forms a crucial part of the crown’s case when the charges are serious should be admitted
  • The seriousness of the offence

n)Grant(CURRENT TEXT FOR EVIDENCE EXCLUSION)

  • Facts: Three officers on patrol, two in plain clothes and one in uniform. Grant was a young black man walking down the street. He looked at police while fidgeting and police though he seemed suspicious, so they started talking to him. Asked Grant his name and address, obstructed his path, and Grant admitted that he had pot and a gun
  • Held:Since the police were acting in good faith, and the evidence is reliable, even though there was a serious impact on the accused’s Charter rights, the evidence was admitted (evidence was conscripted and non discoverable)
  • Issue:Would a reasonable person who knows all the relevant circumstances and Charter rights believe that the admittance of the evidence would bring the justice system into disrepute?
  • Grant test for evidence exclusion
  1. The seriousness of the Charter infringing state conduct
  • Inadvertent/minor; deliberate disregard; good faith; extenuating circumstances; pattern of abuse
  1. The impact of the breach on the accused’s Charter rights
  • Denial of counsel; conscriptive evidence; discoverability; expectation of privacy
  1. Society’s interest in the adjudication of the case on its merits
  • Is the evidence reliable/important to the case

o)Application of Grant

  • Statements
  • Often excluded unless the breach is minor, due to reliability
  • Bodily evidence
  • Often admitted unless deliberate breach
  • Non-physical bodily evidence
  • Depends of the extent of interference with privacy
  • Derivative evidence
  • Depends on extent of the Charter breach affecting the informed choice to speak with authorities

p)Côté

  • Discoverability is important under current test for 24(2), but is not determinative of whether or not the evidence can be admitted
  • Discoverability is mainly relevant to the first two steps of the Grant test

Search and Seizure

s.8: everyone has the right to be secure against unreasonable search or seizure. S.8 rights are only triggered if the person had a reasonable expectation of privacy

  • Reasonable expectation of privacy
  • Examine the totality of the circumstances
  • Does the accused have subjective expectation and is this reasonable?
  • Does the person have ownership/control over the property?
  • Was the person present at the time of the search?
  • Was the property in a public or private place?
  • Intrusiveness

Place / Reasonable Expectation of Privacy / No (or lower) reasonable expectation of privacy
Person / Reasonable expectation of privacy in your own bodily samples (Stillman) / No reasonable expectation of privacy in garbage bags left for collection at the edge of your property (Patrick)
House / Reasonable expectation of privacy in private dwelling house (Feeney) Reasonable expectation of privacy for information regarding energy usage (Gomboc) / No reasonable expectation of privacy in someone else’s apartment (Edwards) No reasonable expectation of privacy in heat patterns radiating from house (Tessling)
Place of Business / Reasonable expectation of privacy against search and seizure of business records / Court can order business records (Thomson Newspaper)
Work Computer / Reasonable expectation of privacy in your work computer, especially if it is also used for personal use (Cole) / Work policies may reduce reasonable expectation of privacy in workplace computers (Cole)
Car / Owner/operator has reasonable expectation of privacy in closed areas (ie. glove compartment/trunk) (Belnavis) / No reasonable expectation of privacy in contents of the car where the accused is merely a passenger (Belnavis)
Public Place (ie, locker) / Reasonable expectation of privacy in a rented locker in a bus depot (Buhay) / There is a lower reasonable expectation of privacy in lockers and backpacks at school (R. v M) (can search without warrant based on reasonable suspicion)
Dog Sniffer / Lower reasonable expectation of privacy against dog sniffing in bus depot and school (can search without warrant based on reasonable suspicion) (Kang-Brown and AM)
Surveillance / Reasonable expectation of privacy that police will not secretly videotape inside a hotel room where the guest has invited strangers in (Wong) / No reasonable expectation of privacy for sexual activity in public washrooms (Lebeau and Lofthouse)
Communications / Reasonable expectation of privacy that private conversations will not be electronically intercepted (Duarte)

q)Tessling

r)Searches are authorized by law when:

  • S.487: A warrant may be obtained to search provided this procedure is followed
  • Suspicion or evidence that an offence has been committed
  • That there is reasonable or probable ground to believe that a search will provide evidence connected to the offence or will lead to the person who committed the offence
  • That there are reasonable and probable ground that items are intended to be used for an offence
  • Reasonable and probably grounds are objective, NOT subjective
  • Consider
  • Police knowledge; must be objective, not subjective (Simpson)
  • If the information came from an informant, are they reliable?
  • If the information is from an unnamed informant, it does not meet the objective test (Berger)
  • Being in a location where a crime was committed is not reasonable and probable grounds (Simpson)
  • S.487.1: A search warrant is obtained over the telephone from a JP
  • S.487.04/s.487.05/s.487.091: warrant for DNA analysis/obtaining impressions of body parts
  • S.487.11: can search without a warrant in exigent circumstances (safety concerns or concern for other officers which make obtaining a warrant impractical) (Chuaniuk)
  • S.489: things not mentioned in the warrant can also be seized if
  • The thing was obtained via an offence
  • The thing was used in an offence
  • Will afford evidence for an offence

s)Exceptions for warrant requirement

  • The power to search as an incident to a lawful arrest (Cloutier)
  • The power to frisk search a person as part of an investigative detention (Mann)
  • Enter and search dwelling in a lawful hot pursuit of a suspect
  • Enter and search dwelling to preserve life or prevent injury (Godoy)
  • Power to conduct a sniffer dog search in a public place with reasonable suspicion (Kang-Brown and AM)
  • Search by school officials of a student’s locker, backpack etc with reasonable suspicion (MR)
  • Order to produce business documents (Thompson)
  • Exigent circumstances, life or safety of others, potential for destruction of evidence (Grant)

t)R. v. Collins

  • A reasonable search is
  1. Authorized by law (either through a warrant or by common law)
  2. Law itself is reasonable
  3. The search is conducted reasonably

u)Hunter v. Southam

  • Clarifies question 2 of the Collins test: Was the Charter breach serious?
  • S.8, only applies if there is a reasonable expectation of privacy
  1. Must have prior authorization
  2. The pre-authorization must be given by an independent, impartial person in a judicial fashion
  3. And there must be reasonable and probable grounds “evidence of the offence will be found at the location of the search”
  • S.488: a warrant must be executed during the day, unless:
  • Justice is satisfied there are reasonable grounds for it to be executed at night
  • The reasonable grounds are included in the information
  • The warrant says it can be executed at night
  • If executed at night without these exceptions, it is a serious violation of Charter rights (Sutherland)
  • Once the warrant has expired, the officers are trespassing (Morann)
  • S.25: use of reasonable force is permitted
  • There must be a REAL threat of violence (Genest)
  • S.29: Officer must have warrant with them, and must produce it upon request
  • If there is a reasonable expectation to privacy and the criteria from Collins/Hunter are not met, then you must so a s.24(2) to see whether the evidence is admissible

Powers Incident to Arrest: Search a person that is being arrested

Search Ancillary to Arrest / Can Search / Can’t Searc
Person / If police have power to search someone, they have ancillary power to search them and take any property connected to the offence or any weapon (Cloutier)
Car / If arrested in your car the car can be searched if it’s reasonably connected to the offence (Caslake) / Cannot search the trunk of a car when stopped for speeding or arrested for unpaid fines (Belnavis)
Body Samples / Common law to search upon arrest does not apply to body samples (Stillman)
Frisk Search / (1) A power, not a duty (2) must be valid in pursuit of criminal justice (3) Must not be conducted in abusive fashion
Strip Search / Strip search is only reasonable when (Golden)
  1. Follows a lawful arrest
  2. Is for the purpose of finding evidence or weapons
  3. There are reasonable and probably grounds
  4. Is done in a reasonable manner (RBHS p.189)

Finger Prints / Can take without a warrant for persons charged with indictable offence (Beare & Higgins)

Investigative Detention

S.9: Right not to be arbitrarily detained/imprisoned

a)R. v. Grant

  • Facts: Black kid on street, police ask him what he is up, he looks suspicious so they surround him. He has gun under his coat
  • Issue: When does a detention occur? when do you apply s.9 and s.10
  • Held:Where the choice to just walk away has been taken away, whether by physical restraint or psychological compulsion, the individual is detained
  • Psychological compulsion test
  • Legal compulsion: If a person is legally required to comply with a police officer’s directions/demands, the person is detained because failure to comply with a lawful demand is an offence
  • If there is no legal requirement to complywould a reasonable person believe they have no choice but to comply? Objective test, with subjective factors
  1. The circumstances
  2. Nature of police conduct
  3. Characteristics/circumstances of the individual
  • Ratio: An individual is detained if they have or perceive that they have lost their ability to simply walk away from police who are questioning them
  • Dissent: Need to take into account what the police knew at the time, and also highlights problem of minorities feeling more than others that they can’t just walk away

b)R. v. Simpson

  • Facts: Officer observed accused exit a crack house and get into his car. Pulled car over, searched him and found cocaine
  • Is the detention lawful? Must have articulable cause for detention
  • Investigative detention Test
  • Must have “articulable cause” (an objective reasonable suspicion)
  • Articulable cause is a lower standard than reasonable and probable grounds
  • Investigative detention should be brief, and the detained does not need to answer questions (Mann)
  • Held: No reasonable suspicion because officer’s belief that it was a crack house was based on unknown source and unknown time, coming out of a criminal location is not enough for reasonable suspicion
  • Ratio: Investigatory detention is allowed if it is based on articulable cause, a narrow objective standard

c)R. v. Clayton (CURRENT TEST)

  • Facts: Police got 911 call that there are “ten black guys” with guns in a parking lot, with four vehicle descriptions given. Officers set up road block, and stopped accused because they were black, even though the vehicle did not match the description. Found guns on them after a frisk search
  • Expanded Simpson/Mannrecognized broad general common law power to stop for investigative purposes
  • Test: Needs to be reasonably necessary based on the totality of the circumstances
  • Nature of the situation (seriousness of the offence)
  • Information known to police about the crime/suspects
  • If detention is reasonably tailed to the offence
  • Balancing the public risk versus liberty of citizens

S.10(b): Right to instruction of counsel; engaged immediately upon detention

d)R. v. Suberu

  • Facts: Armed robbery, two suspects, one is arrested. Police arrive and the other suspect awkwardly walks away so the police follow him to talk to him. They realize he is the other suspect and then arrest him. Was the “talking” an investigative detention?
  • Issues:When do s.10 right engage?
  • Held: Right away
  • Ratio:A detention does not arise the moment police start talking to someone, they may start with preliminary questioning. If it is a preliminary investigation then there is no detention
  • Must use factors in Grant test to determine whether there is a detention
  • If there is no detention, it is merely a “preliminary investigation” and s.10(b) rights have not been triggered

Power Incidental to Investigative Detention

e)R. v. Mann

  • Facts: Accused is walking down street. Police officers are in the process of investigating a break and enter, and the accused matches the description. They stop him and pat him down. They feel something soft in his pocket. They remove it and it is marijuana
  • Investigative detention allowed in this case because he matched description and was near crime scene
  • Protective pat-down search allowed pursuant to investigative detention
  • Can do a pat-down search for weapons, but not for other evidence
  • Officer must believe on reasonable grounds that their safety or the safety of others is at risk
  • The search must be conducted in a reasonable manner
  • Held: Officers had reasonable ground to do pat down search, but went too far to see what the something soft in his pocket was. There were no reasonable grounds to proceed past a pat down search. Evidence was excluded under s.24(2) test.

Confessions: Common Law

It is first necessary to determine if the confession was voluntary at common law. If the confession is involuntary, it is inadmissible and therefore it is unnecessary to do a further Charter analysis. However, if the confession is deemed voluntary, a Charter analysis must be done to see if the accused’s rights have been breached, and if so, if the evidence should be admitted or excluded.

Case / Clarification / Ratio
Ibrahim/Boudreau / Original Rule / A confession is not admissible unless the Crown proves it is voluntary, not obtained by fear of prejudice or hope of advantage exercised or held out by a person of authority
Wray / Policy behind original rule / To avoid unreliable confessions
Rothman
An undercover cop pretending to be an inmate is NOT a person in authority
Does not consider that these confessions might be unreliable / Who is a person in authority?
Privilege against self-incrimination is not engaged until trial / Subjective testthe accused must believe the person is an officer or agent
dissent argues reliability and procedural fairness
Grandinetti / Who is a person in authority? / Must be an officer or agent
Hobbins / Oppressive police conduct / Oppressive police conduct can also render a confession involuntary
Clarkson
Accused was extremely drunk at the time of confession / Operating Mind / Accused must have an operating mind at time of confession and (1) understand what they are saying, or (2) understand the consequences of what they are saying
Whittle
Hearing voices does not prevent the accused from having an operating mind / Operating Mind Restriction / Restricted to the accused having sufficient cognitive capacity to understand what they are saying, including the ability to understand a warning that evidence can be used against them
Oickle
Mislead defendant saying a lie detector test was infalliable
Said they wouldn’t subject his girlfriend to polygraph if he confessed (she wasn’t a real suspect)
Much narrower: lies like this don’t overbear the choice to confess / NEW RULE
Not just any inducement/threat will do, it has to override accused’s ability to make a CHOICE
Was the CHOICE voluntary, rather than the confession / Crown must establish beyond reasonable doubt that accused’s CHOICE to speak to the authorities was voluntary, and not overborne by:
1. Threats/inducements
2. Oppressive circumstances
3. Lack of operating mind
4. Police trickery that would “shock”
Policy: balance rights with the need to investigate and solve crimes
Spencer
Accused was a sophisticated criminal who was actively bargaining with the police. He was clear, articulate, and knew what he was doing. Gave confession in exchange for his girlfriend not to be investigated. / Is the Oickle rule a change or just a restatement?
Majority held it was much more restrictive and thus changed
Minority: only a bit more restrictive, not changed / Majority: Oickle changes the law because it requires more than just threats or inducements, the threats or inducements have to be at such a level that the accused’s will is “overborne” and they will have no choice but to confesslost will to resist in totality of circumstances. However, this decision could be treated as fact specific
Minority: Oickle changes the law by holding that inducement or oppression only make the confession inadmissible IF there was a real “quid pro quo”ie. exchange

Confessions: The Right to Counsel