Contents
A. POLICE POWERS .................................................................................................................................................................. 6
Justifiable Use of Police Powers .......................................................................................................................................... 6
The Waterfield Test | Ancillary Powers Doctrine ............................................................................................................ 6
Summary of Stage Two in Clayton ............................................................................................................................... 6
Detention ............................................................................................................................................................................ 7
Section 9 of the Charter - “Everyone has the right not to be arbitrarily detained or imprisoned” .................................. 7
Psychological Compulsion (Therens) ........................................................................................................................... 7
Powers of Detention........................................................................................................................................................ 7
Ancillary Police Power and Detention ......................................................................................................................... 7
Investigative Detention ....................................................................................................................................................... 7
Reasonable Grounds and Reasonable Suspicion ............................................................................................................. 8
Searches .............................................................................................................................................................................. 8
Section 8 of the Charter - “Everyone has the right to be free from unreasonable search and seizure”.......................... 8
Search Fundamentals (Hunter) .................................................................................................................................... 8
Search Incident to Investigative Detention ..................................................................................................................... 9
Safety Searches ........................................................................................................................................................... 9
Search Incident to Arrest ................................................................................................................................................. 9
Strip Searches (Golden) ................................................................................................................................................... 9
Consent Searches [see also 10(b)] ................................................................................................................................. 10
Plain-View Doctrine ....................................................................................................................................................... 10
Unknown Trouble Calls (Godoy) .................................................................................................................................... 10
Investigating Tips (Debot) .............................................................................................................................................. 10
Challenging a Warrant (Garofoli) ................................................................................................................................... 10
Garofoli Procedure .................................................................................................................................................... 11
Computer Searches ....................................................................................................................................................... 11
Cell Phones ................................................................................................................................................................ 11
Subscriber Information .............................................................................................................................................. 11
Arrest................................................................................................................................................................................. 12
Warrantless Arrest for Indictable Offences [s 495(1)(a)] ............................................................................................... 12
Warrantless Arrest for Summary Offences [s 495(1)(b)] ............................................................................................... 12
Arrest for Outstanding Warrant [s 495(1)(c)] ................................................................................................................ 12
When Not to Arrest [s 495(2)] ................................................................................................................................... 12
Power to Issue Arrest Warrant ...................................................................................................................................... 12
Citizens’ Arrest [s 494] ............................................................................................................................................... 13
Arrest - Breach of Peace [31(1)] ................................................................................................................................ 13
Feeney Warrants [s 529] ............................................................................................................................................... 13
Interrogations .................................................................................................................................................................... 13
Common Law Confessions Rule (Voluntariness) ............................................................................................................... 13
Factor One: Operating Mind...................................................................................................................................... 14
Factor Two: Inducements .......................................................................................................................................... 14
Factor Three: Oppression .......................................................................................................................................... 14
Factor Four: Community Shock ................................................................................................................................. 14
Evidence from Involuntary Confessions and “Derived Confession Rule” ...................................................................... 14
Section 7 of the Charter - “Right not to be deprived of life, liberty and SofP except in accordance with PFJ” .............. 14
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Undercover Agents (Hebert).......................................................................................................................................... 14
Mr. Big ........................................................................................................................................................................... 14
Reid Technique of Interrogation and Alternatives..................................................................................................... 15
Section 10(a) and 10(b) of the Charter .............................................................................................................................. 15
Waiver of Right to Counsel ............................................................................................................................................ 15
Re-Consultation ............................................................................................................................................................. 15
The Three “Trump Cards” - Binnie (Sinclair) .............................................................................................................. 15
Young People [YCJA s 146]............................................................................................................................................. 16
B. COURTS AND OFFENCES .................................................................................................................................................... 16
Offences ............................................................................................................................................................................ 16
Elections ........................................................................................................................................................................ 16
C. PRE-TRIAL PROCESS ........................................................................................................................................................... 16
Intake and Release Pending Bail ........................................................................................................................................ 16
Getting Someone to Court [ss 496-501] ........................................................................................................................ 17
The Information............................................................................................................................................................. 17
Indictment ..................................................................................................................................................................... 17
Bail ..................................................................................................................................................................................... 17
Bail in the Code .............................................................................................................................................................. 17
The Bail Hearing ............................................................................................................................................................ 18
Evidence at Bail Hearings .......................................................................................................................................... 18
Adjournment [s 516] ................................................................................................................................................. 18
Principles and Guidelines for Bail Provisions in a Contested Hearing (Antic) ............................................................ 18
Sureties.......................................................................................................................................................................... 19
Section 11(e) of the Charter - the right not to be denied reasonable bail without just cause ...................................... 19
Denying Bail [515(10)] ................................................................................................................................................... 19
Bail Reviews ................................................................................................................................................................... 19
Revoking Bail (s 524)...................................................................................................................................................... 20
Bail Pending Appeal (s 679) ........................................................................................................................................... 20
Preliminary Inquiry ............................................................................................................................................................ 20
Evolution of Preliminary Inquiry .................................................................................................................................... 20
Reasons to Override a Preliminary Inquiry Request (SJL) .......................................................................................... 20
Conduct of Preliminary Inquiry ...................................................................................................................................... 21
Sufficiency of Evidence .................................................................................................................................................. 21
Bill C-75 ..................................................................................................................................................................... 21
Disclosure .......................................................................................................................................................................... 21
Right to Full Answer and Defence ................................................................................................................................. 22
Exceptions to Disclosure ............................................................................................................................................ 22
Disclosure Disputes - Chaplin ........................................................................................................................................ 22
Establishing a Charter Breach ........................................................................................................................................ 22
Defense Obligations .................................................................................................................................................. 23
Production - Third Party Records ...................................................................................................................................... 23
The O’Connor Regime .................................................................................................................................................... 23
Steps in the O’Connor Process................................................................................................................................... 23
Mills Regime (ss 278.1-278.91)...................................................................................................................................... 23
Basic Mills Rule - s 278.2(1) ....................................................................................................................................... 24
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Steps in the Mills Procedure ...................................................................................................................................... 24
Insufficient Grounds - s 278.3(4) ................................................................................................................................... 24
Information in Possession of Other State Agency - McNeil ........................................................................................... 25
D. PROBLEM SOLVING COURTS ............................................................................................................................................. 25
Mental Health Court.......................................................................................................................................................... 25
Requirements for Admission ......................................................................................................................................... 25
Fitness to Stand Trial/Assessment Orders ..................................................................................................................... 25
Bail ................................................................................................................................................................................. 25
MHC Diversion ............................................................................................................................................................... 26
Other Functions of MHC ............................................................................................................................................ 26
Eligibility Based on Offence ....................................................................................................................................... 26
Gladue Court ..................................................................................................................................................................... 26
Gladue and Bail.............................................................................................................................................................. 27
Gladue Diversion ........................................................................................................................................................... 27
Plan of Care ................................................................................................................................................................... 27
Gladue Reports .............................................................................................................................................................. 27
Sentencing Circles ......................................................................................................................................................... 27
Drug Treatment Court ....................................................................................................................................................... 28
E. TRIAL PROCESS .................................................................................................................................................................. 28
Judicial Pre-Trial ................................................................................................................................................................ 29
Judicial Pre-Trial Form ................................................................................................................................................... 29
Juries ................................................................................................................................................................................. 29
Jury Selection................................................................................................................................................................. 29
Empanelling the Array ............................................................................................................................................... 30
Empanelling the Jury ................................................................................................................................................. 30
Ontario .......................................................................................................................................................................... 30
Representation .............................................................................................................................................................. 30
Challenge for Cause [ss 635-640] .................................................................................................................................. 30
Challenge for Pre-Trial Publicity ................................................................................................................................ 31
Challenge for Racial Bias ............................................................................................................................................ 31
Peremptory Challenge [s 634] ....................................................................................................................................... 31
Removal/Replacing Jurors ................................................................................................................................................. 31
Court Set Up ...................................................................................................................................................................... 31
Witnesses ...................................................................................................................................................................... 31
Adjournment ................................................................................................................................................................. 32
Security Concerns - Counsel Table ................................................................................................................................ 32
Security Concerns - Shackling ........................................................................................................................................ 32
Other Issues............................................................................................................................................................... 32
Summary Conviction Trial.................................................................................................................................................. 32
Trial by Indictment ............................................................................................................................................................ 33
Jury Instructions ............................................................................................................................................................ 33
Beyond a Reasonable Doubt ..................................................................................................................................... 33
Opening Statements ...................................................................................................................................................... 33
Examination....................................................................................................................................................................... 33
Expert Evidence (657.3)............................................................................................................................................. 33
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Defense's Case............................................................................................................................................................... 34
Directed Verdict ............................................................................................................................................................ 34
Final Submissions .......................................................................................................................................................... 34
Charge to the Jury ......................................................................................................................................................... 34
Motions at Trial Process .................................................................................................................................................... 34
Agreed Statement of Fact.............................................................................................................................................. 34
Pre-Trial Motions ........................................................................................................................................................... 34
Motions Heard Before Trial Date................................................................................................................................... 35
Procedural Orders ..................................................................................................................................................... 35
Pre-Trials Motions at Start of Trial............................................................................................................................. 35
Mid-Trial Motions .......................................................................................................................................................... 36
How to Bring a Motion .................................................................................................................................................. 36
The Voir Dire.................................................................................................................................................................. 36
F. SENTENCING ...................................................................................................................................................................... 36
Sentencing Indigenous Offenders ................................................................................................................................. 37
Overarching Principle (718.1) ........................................................................................................................................ 37
Other Principles ......................................................................................................................................................... 37
Section 725 ........................................................................................................................................................................ 38
Organizations................................................................................................................................................................. 38
Guilty Plea ..................................................................................................................................................................... 38
Plea Inquiry ................................................................................................................................................................ 38
Lesser Included Offences........................................................................................................................................... 39
The Joint Submission ..................................................................................................................................................... 39
The Pre Sentence Report (s 721) ................................................................................................................................... 39
The Gladue Report .................................................................................................................................................... 39
Types of Sentences ........................................................................................................................................................ 39
The Discharge (s 730) ................................................................................................................................................ 39
Suspended Sentence (s 731) ..................................................................................................................................... 40
Probation Terms.................................................................................................................................................... 40
Reformatory Sentence .............................................................................................................................................. 40
Intermittent Sentence (s 732) ................................................................................................................................... 40
Conditional Sentence (s 742) ..................................................................................................................................... 40
Penitentiary Sentence ............................................................................................................................................... 41
Ancillary Orders ......................................................................................................................................................... 41
Pre-Trial Custody (s 719) ............................................................................................................................................... 41
Specialty Plea Courts ..................................................................................................................................................... 41
Crown Actions on Guilty Plea ........................................................................................................................................ 41
Defence Actions on Guilty Plea...................................................................................................................................... 41
Stages to Discuss Plea................................................................................................................................................ 42
G. Appeals ............................................................................................................................................................................. 42
Summary Conviction (ss 812-840) ..................................................................................................................................... 42
How to Appeal ............................................................................................................................................................... 42
Release Pending Appeal (s 816)................................................................................................................................. 42
Indictable Appeals ............................................................................................................................................................. 42
Defense Appeals (s 675) ................................................................................................................................................ 42
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Indictable Crown Appeals (s 676) .................................................................................................................................. 43
Process ...................................................................................................................................................................... 43
Release Pending Appeal (s 679)................................................................................................................................. 43
Fresh Evidence and the Appeal (Palmer)........................................................................................................................... 44
Not Available at Trial ..................................................................................................................................................... 44
Ineffective Assistance of Counsel Allegations ................................................................................................................ 44
Powers of Court of Appeal (s 686) ..................................................................................................................................... 44
Court Powers on Defense Appeal .................................................................................................................................. 45
Partial Appeals ........................................................................................................................................................... 45
Court Powers on Crown Appeals ................................................................................................................................... 45
Sentence Appeals .......................................................................................................................................................... 45
Other Appeals............................................................................................................................................................ 45
Supreme Court of Canada ................................................................................................................................................. 45
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Criminal Procedure
A. POLICE POWERS
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Police powers come from statute (Criminal Code, CDSA, Highway Traffic Act, Trespass Act) and common law
Since Charter, courts primarily define scope of police powers through Charter challenges as opposed to civil suits
Creation and delineation of police powers requires court to balance interests (i.e. liberty. policing, order); clash
between courts as protectors of individual rights and being able to give police enough power to do their jobs
o Cloutier: Common law has spearheaded the protection of individual freedoms […] "no member of the
executive can interfere with the liberty or property of a British subject except on the condition that he can
support the legality of his action before a court of justice" (Eleko). This fundamental role of guardian of
freedom and property continued and expanded with the advent of the Charter […] " The role of the courts
is to map out, piece by piece, the parameters of the fence" (Morgentaler).
o Dedman: Police […] have limited powers and are only entitled to interfere with the liberty or property of
the citizen to the extent authorized by law […] social and legal, and indeed, political, principle upon which
our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public
restraint, save as the law provides otherwise [INTERPLAY OF COMMON LAW AND CHARTER]
Justifiable Use of Police Powers
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Waterfield: Duty of police to prevent/investigate crime is limited if it interferes with individual person or property
Dedman: Interference with liberty only justifiable where necessary for carrying out a particular police duty; must
be reasonable with regard to nature of liberty interest and importance of public purpose served by interference
Clayton: Depends on totality of circumstances; intrusion must not be greater than reasonably necessary
Simpson: Law imposes broad general duties on police but provides with limited powers to perform those duties
The Waterfield Test | Ancillary Powers Doctrine
Test to determine the limit of police authority to interfere with a person's liberty or property: Consider what constable was actually
doing and whether conduct was prima facie an unlawful interference with liberty or property. If so, consider whether such conduct falls
within the general scope of any duty imposed by statute or recognised at common law and whether such conduct, albeit within the
general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
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Was police conduct prima facie interference with liberty? [If no, there is no issue]
If yes: (1) Did conduct fall within general scope of any duty imposed on officer by statute or common law?
o To enforce the law, protect the public, investigate crimes, etc. (look to statues and our expectations)
If yes: (2) Did impugned conduct amount to unjustifiable use of police powers associated with duty? Consider:
o Duty being performed;
o Extent to which interference with liberty necessary to perform duty;
o Importance of performance of duty to public good;
o Nature of liberty interfered with; and
o Nature and extent of interference [subjective and objective determination at second stage]
▪ Clayton: Consider nature of situation; seriousness of offence; information known to police about
suspect or crime; and tailoring to meet circumstances, including temporal or geographic scope
NB: liberty interest can change with location (home/car/prison) but this usually doesn’t come up in the analysis
Summary of Stage Two in Clayton
• Pre-Clayton necessity analysis did not include seriousness of offence, post-Clayton we balance seriousness of risk
to public/individual safety with liberty to determine if police conduct is more intrusive than reasonably necessary
• At stage 2 we also look at how necessary policy action was to meet duty in context of how serious the crime was
• S8 violation (search not tailored, police have no general power to stop/search) justified because of danger of guns
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Detention
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Considerations: police need power to detain to investigate crimes and detect criminals // liberty is at the heart of
a free and democratic society // people should be free to move about without state intervention → balance
There is no pre-existing common law duty to detain; scope has been determined in the context of s9 rights
Section 9 of the Charter - “Everyone has the right not to be arbitrarily detained or imprisoned”
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Guides police power to detain, purpose is to protect individual liberty from unjustified state interference (Grant)
“Detained”: persons confronted by state authority may generally continue on their way, detention occurs where
choice to continue has been removed by significant physical or psychological compulsion (Grant; Mann; Suberu)
“Imprisoned”: connotes “total or near-total loss of liberty” (Grant)
“Arbitrary”: any unlawful interference with liberty is arbitrary (s9 is also the mechanism to question lawfulness)
o Detention is not arbitrary if authorized by law and law authorizing detention is, itself, not arbitrary (Grant)
NB: Difference between detention and delay - only when you cannot leave are you detained
Psychological Compulsion (Therens)
• (1) Subject legally required to comply with direction or demand (e.g. pulled over under Highway Traffic Act) OR
• (2) Submits or acquiesces in deprivation of liberty and reasonably believes they have no choice to do otherwise
o Determined objectively and contextually based on totality of circumstances; focus is on state conduct in
legal and factual context and how conduct would be perceived by reasonable person
▪ Person must have felt detained, feeling must be objectively reasonable based on circumstances
• Consider: circumstances giving rise to encounter as reasonably perceived by individual; nature of police conduct;
circumstances and characteristics of individual; stage of investigation; nature of questions posed (Grant; Moran)
o Not unreasonable to think that if an officer is willing to unlawfully detain them that is it not worth raising
their rights, etc. until after the fact; most people “feel detained” by most police interactions
• Can demonstrate subjective detention through testimony (useful - Suberu) but also inferences from evidence
Powers of Detention
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(A) Statutory Powers to Detain: e.g. s216 of Highway Traffic Act, police may pull people over (usually pretty clear)
(B) Common Law Ancillary Power: Waterfield/Dedman; investigative detention (Mann; Clayton)
(C) Powers of Arrest: Criminal Code
Ancillary Police Power and Detention
• Whether police are acting within common law power to detain is determined by application of Waterfield test:
o Was police conduct prima facie interference with liberty?
o If yes: (1) Did conduct fall within general scope of any duty imposed on officer by statute or common law?
o If yes: (2) Did impugned conduct amount to unjustifiable use of police powers associated with duty?
• Dedman: Power to detain in RIDE program; balance of public interest and intrusion in favour of police power
Investigative Detention
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Evolution of Waterfield and Simpson calls for investigative detentions to be premised upon reasonable grounds
Detention must be reasonably necessary on objective view of totality of the circumstances, informing officer’s
suspicion that there is a clear nexus between individual to be detained and a recent or on-going criminal offence
Simpson: Police have duty to investigate crime but articulable cause test requires officer identify constellation of
objective factors that led them to believe person was engaged in the specific crime being investigated
Mann: Police derive limited powers of investigative detention from duties but must have reasonable grounds to
suspect in all the circumstances individual is connected to particular crime and detention is necessary
o Relevant factors will depend on the circumstances, not identified by the courts
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Reasonable Grounds and Reasonable Suspicion
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At the front end of the assessment, there must be reasonable grounds to support the officer’s reasonable
suspicion that the particular individual is implicated in criminal activity under investigation
o Reasonable suspicion is more than a hunch but less than reasonable or probable grounds
Reasonableness of detention must also be assessed against all circumstances to meet second prong of Waterfield
o Consider: duty being performed, extent to which interference with liberty necessary to perform duty;
importance of performance of duty to public good; nature of liberty interfered with
Per Waterfield, police will always be able to detain where there are reasonable grounds to suspect person has
been involved in a particular crime (Court used Waterfield to identify succinct tests in particular circumstances)
Searches
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Any search without a warrant is presumptively unreasonable (state bears onus of justifying warrantless search)
Hunter: Minimum standard for a search is reasonable and probable grounds established upon oath to believe an
offence has been committed and there is evidence to be found at the place of the search
Warrantless searches may still be lawful pursuant to statutory authorization or ancillary powers doctrine
o Collins: (1) search authorized by law + (2) law reasonable + (3) search carried out in reasonable manner
Section 8 of the Charter - “Everyone has the right to be free from unreasonable search and seizure”
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Hunter: S8 protects our reasonable expectation of privacy, serves as a limitation on police powers (“from”)
“Unreasonable”: suggests situations where expectations will not be reasonable compared to state interests that
infringe privacy, assessment must be made in each situation if privacy interest must give way to state interest
o Did the respondent have a subjective expectation of privacy?
o If so, was the expectation objectively reasonable?
Assessment must be made prior to search because privacy interest cannot be restored post-unreasonable search
Determined on totality of circumstances, depends on nature of privacy interest asserted (e.g. Buhay, bus station)
o (1) The accused’s presence at the time of the search (not determinative)
o (2) Possession or control of the property or place searched (can control without ownership)
o (3) Ownership of the property or place,
o (4) Historical use of the property or item,
o (5) Ability to regulate access,
o (6) Existence of a subjective expectation of privacy,
o (7) The objective reasonableness of the expectation
LeBlanc: Abandoned items have no reasonable expectation of privacy (may be different in custody - Stillman)
Kang-Brown; M(A): drug sniffing dogs can conduct searches based on reasonable suspicion because less intrusive
Search Fundamentals (Hunter)
• Search or seizure will be presumptively unreasonable unless it is conducted pursuant to prior authorization;
obtained from an independent arbiter acting judicially; based upon evidence under oath establishing R+P grounds
• Reasonable and Probable Grounds: state interests in detecting and preventing crime prevail over individual at the
point where credibly based probability replaces suspicion (R+P is a higher standard than belief or suspicion)
o Must be both R+P that offence has been committed and there will be evidence in place to be searched
o Officer must believe it is more likely than not, and must be reasonable for officer to believe this
▪ R+P grounds NOT dispensed with in situations of exigency
• Prior Judicial Authorization: where feasible, prior judicial authorization must be sought; even in situations of
exigency search is prima facie unreasonable → puts onus on state to justify intrusion before it happens
• Decision Maker: not necessarily a judge; someone exercising adjudicative function, neutral and impartial arbiter
o In Ontario, JPs authorize search warrants, production orders, tracking warrants (per Code, CDSA) but
anything above and beyond (i.e. general warrant) is done by Superior Court Judge (mostly out of custom)
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Search Incident to Investigative Detention
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Because detention requires reasonable suspicion (Mann) and search requires reasonable and probable grounds
(Hunter) there is no general power to search incident to a lawful detention based on suspicion alone
o Police by definition do not have reasonable and probable grounds if they have detained an individual
rather than arrested them; power to conduct safety searches does not depend on detention
Limited power to search incident to investigative detention when individual or public safety is at risk
Mann: Not incidental in all circumstances; duty to protect life may give rise to power for pat down search if officer
believes on reasonable grounds that individual or public safety is at risk, must be confined to locating weapons
o Necessarily warrantless and therefore presumptively unreasonably unless justified under Waterfield; both
detention and pat down search must be conducted in a reasonable manner
Aucoin: Any search that arises from an unlawful arrest or detention will automatically be unlawful
o When an officer changes level of detention to further affect liberty/privacy they must have justification
Safety Searches
• MacDonald: Generally unplanned, typically warrantless but must still be authorized by law (Waterfield test)
o Peterkin (footnote): Police can conduct safety searches if there are reasonable grounds to believe that
their safety or the safety of the public is at stake (connotes probability), not at risk (connotes possibility)
• Safety searches only reasonable if necessary; once safety is not/no longer at risk the infringement must end
• Test for whether police can conduct safety searches is whether there are reasonable grounds to believe that their
safety or the safety of the public is at stake. Reasonable grounds always means reasonable and probable grounds.
Search Incident to Arrest
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Cloutier: Common law power to search incident to arrest arises from the fact of the arrest itself, which must be
premised on reasonable and probable grounds, allows police to secure evidence and ensure safety
Not every arrest needs to be accompanied by search, must be done for valid objectives related to criminal justice
o Discovery of objects which could harm police, accused, public; facilitate escape; evidence
Caslake: Search is only justifiable if purpose of search is related to purpose of arrest, must be truly incidental
o Objective and subjective elements measured on reasonableness (not R+P), e.g. in the circumstances was
it reasonable to check if person might be armed; nexus between crime and search is not always clear
Per Hunter: unless safety concerns or concerns that evidence will be destroyed, should wait to get a warrant
o Depends on nature of arrest: can search person, often car or bag, cannot seize bodily substances because
no risk of evidence being lost and elevated privacy interest attached (Stillman)
▪ Distance and time do not automatically preclude search (Caslake)
Strip Searches (Golden)
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Hierarchy of privacy, more intrusive searches require more justification and attract more constitutional protection
o (1) May only be conducted as incident to lawful arrest for purpose of discovering weapons in detainee's
possession or evidence related to reason for arrest
o (2) Police must establish reasonable and probable grounds (on balance of probability) justifying strip
search in addition to reasonable and probable grounds justifying arrest
▪ Mere possibility person may be concealing evidence or weapon is not sufficient
o (3) Necessary that strip search be conducted in a manner that does not infringe s8
o Any strip search will be degrading, but can minimize harm; can never remedy an unjustified strip search
o Need to be cognizant that there are certain groups that are disproportionately affected by this
Distinction between strip search incident to arrest and for safety in custodial setting
o May be necessary but cannot be conducted as a matter of routine (Flintoff; Muthuthamby)
Factors to assess constitutionality of strip search: conducted in manner that respects health and safety of all;
authorized by supervisor; performed by person of same gender (not challenged yet); fewest officers present
possible; minimum force (not “no force”); conducted in private; conducted as quickly as possible; arrestee never
fully undressed; minimum physical contact; given option to remove secreted object him/herself
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Consent Searches [see also 10(b)]
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Wills: If lawfulness of a search is based on consent, Crown must ensure that consent is informed and voluntary
o (a) There was a consent, express or implied;
o (b) Giver of consent had the authority to give the consent in question;
o (c) Consent was voluntary (per Goldman) and was not the product of police oppression, coercion or other
external conduct which negated the freedom to choose;
o (d) Giver of consent was aware of nature of police conduct to which he was being asked to consent;
o (e) Giver of consent was aware of right to refuse to permit police to engage in conduct requested; and,
o (f) Giver of consent was aware of potential consequences of giving consent (jeopardy)
Not required to suspend a lawful search until accused accesses counsel unless lawfulness of search is dependent
on the detainee’s consent, because it must be informed consent
Plain-View Doctrine
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Police not required to ignore items they happen upon, can seize illegal items in plain view without a warrant
o Officer must be in that place lawfully (Buhay)
o Must be in plain view – that is not needing further inspection (which would require warrant) (Law)
o Can only search a house without a warrant if there are emergency or exigent circumstances
Unknown Trouble Calls (Godoy)
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Intrusion must be limited to protection of life and safety - authority ends there, no further permission to intrude
Ordinarily speaking police need a warrant to enter a house, but if they are already in the home for a valid
purposes and have reasonable and probable grounds for arrest they don't have to get a Feeney warrant
Investigating Tips (Debot)
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Reasonable and probable grounds to search are established the police have received compelling information and
where that information is based on a tip the source was credible and the information was corroborated
Compelling: sufficiently specific to warrant attention and not based on rumours, gossip, bald-statements, etc.
o Garofoli: whether tip contained sufficient, whether source was disclosed, indicia of informer’s reliability
o Reputation of suspect only relevant where based on interactions with police as opposed to hearsay
Credible: based on the source of the information (i.e. anonymous tip compared to police informant)
o Consider motivations and incentives, want to false statements made for own benefit or vindictiveness
Corroborated: police must perform surveillance wherever possible to remove the risk of innocent coincidence
Considered together when considering if totality of circumstances meet the standard of reasonable and probable
grounds; weakness in one area may be compensated by others (but hard to imagine this in practice)
Same factors considered when asking for warrant and making warrantless search (if circumstances don’t allow)
Challenging a Warrant (Garofoli)
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Application to set aside warrant made to trial judge in court of competent jurisdiction pursuant to Charter
ITO (Information to Obtain) and affidavits sealed by authorizing judge but can be unsealed on request of Crown
o Accused needs to access packet to know basis of search in order to challenge warrant
If warrant is quashed the search becomes prima facie unreasonable and the onus shifts to the Crown to justify
Grounds for review: absence of minimum constitutional requirements (Collins, Hunter v Southam)
o Not given under oath to a person capable of acting judicially
o No reasonable and probable grounds found
o No prior authorization
Standard of review: after amplification, voir dires, and excised information, is there sufficient evidence under
which the authorizing justice could have justified the warrant (use Debot criteria wherever informants are used)
o Reviewing judge may disagree with result but can only set aside if there are no grounds for authorization
Defense may only cross-examine affiant with leave at discretion of trial judge to allow full answer and defence
o Basis must be shown that this will elicit testimony to discredit one of the preconditions of authorization
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Garofoli Procedure
• (1) Upon opening packet, if Crown objects to disclosure of any material, an application should be made suggesting
nature of the matters to be edited and basis therefor. Only Crown counsel will have the affidavit at this point.
• (2) Submissions from accused. If trial judge believes accused will not be able to appreciate nature of deletions
from Crown submissions and edited affidavit, judicial summary to general nature of deletions should be provided.
• (3) After hearing counsel for the accused and reply from Crown, trial judge should make a final determination as
to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
• (4) After the determination has been made in (3), the packet material should be provided to the accused.
• (5) If Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
• (6) If editing renders the authorization insupportable, Crown may apply to have trial judge consider so much of
excised material as is necessary to support authorization. Trial judge should accede only if satisfied accused is
sufficiently aware of nature of excised material to challenge it in argument or by evidence. Judicial summary of
excised material should be provided if it will fulfill that function. If Crown is dissatisfied with extent of disclosure
and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
o Crown may argue all informant information should be edited out because it is suggestive of their identity,
and defense is given a summary only; can make it difficult to see reasonable and probable grounds
▪ (6) is controversial (Crown and judge look at redacted areas together); if judge is satisfied based
on Crown's summary that defense has enough information then it's allowed
▪ If Crown goes to (6) they have conceded R+P grounds, so if judge isn’t convinced from the
summary etc. then it is quashed
Computer Searches
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•
•
•
Spencer: Content of computers and cell phones protected by s8 but test must be modified to consider:
o (a) Subject matter being searched;
o (b) Claimant's interest in the subject matter;
o (c) Claimant's subjective expectation of privacy in the subject matter; and
o (d) Whether the subjective expectation of privacy is objectively reasonable in all the circumstances
Morelli: Hard to imagine search more intrusive, extensive, invasive as personal computer - huge privacy interest;
limiting a search to a physical place is meaningless in the context of computer searches
Vu: Must satisfy issuing justice officers have reasonable grounds to believe any computer they will discover will
contain things they are looking for, BUT need not establish reasonable grounds to believe computers will found
o If computer is found but not included in warrant police may secure it but must get a warrant to search it
Cole: Computers that are reasonably used for personal purposes regardless of where they are located contain
private information; work place policies may diminish expectation of privacy but do not remove it completely
o Subject matter of search is the informational content of the computer rather than the computer itself
Cell Phones
• Fearon: Cell phones are used to conduct crime and have value in search incident to arrest, but carry same privacy
interests as computers; search of cell phone incident to arrest restricted:
o Nature and extent of search must be tailored and truly incidental to arrest
o Search is only valid if investigation will be stymied or hampered without prompt search of cell phone
o Officers must make detailed notes of what and where they searched
▪ Tailored in theory but in practice encompasses almost anything, courts are lax for street crime
• Marakah: Reasonable expectation of privacy in communications including texts found on someone else’s phone
Subscriber Information
• Subject matter of the search: with reference to nature of the privacy interest potentially compromised, an
individual’s online activity in the home
• Nature of the privacy interest:, privacy as secrecy/confidentiality, privacy as control, privacy as anonymity
• Reasonable expectation of privacy: intimate or sensitive activities online conducted with expectation of
anonymity, a request by a police officer that an ISP voluntarily disclose such information amounts to a search
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Arrest
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Whitfield; Latimer: Arrest consists of either:
o (1) The actual seizure or touching of a person’s body with a view to his detention, or
o (2) The pronouncing of “words of arrest” to a person who submits to the arresting officer:
“Words of arrest”: substance of what accused can reasonably be supposed to have understood, rather than the
formalism of precise words used; what the accused was told, viewed reasonably in all the circumstances (Latimer)
(1) Warrantless Arrests → s495
o Warrantless Arrest: presumptively lawful, and burden on Applicant to establish otherwise (s 495(3))
(2) Power to Issue Warrant for Arrest → s 507 - Indictable → s 788 - Summary
Warrantless Arrest for Indictable Offences [s 495(1)(a)]
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•
•
Officer may arrest without warrant a person who has committed indictable offence or who, on reasonable
grounds, he believes has committed or is about to commit an indictable offence
Storrey: requires reasonable and probable grounds for arrest, subjectively to officer and objectively viewable
o Nelles: Honest belief in guilt of accused based upon a full conviction, founded upon reasonable grounds,
of existence of a state of circumstances which, if true, would reasonably lead any ordinarily prudent and
cautious man to the conclusion that the person charged was probably guilty of the crime imputed
Lewis (cocaine at the airport): most anonymous tips will not yield arrest because it cannot sustain R+P grounds
Warrantless Arrest for Summary Offences [s 495(1)(b)]
•
•
Officer may arrest without a warrant a person whom he finds committing criminal offence (Biron; Roberge)
o Must be subjectively and objectively apparent that person committing offence;
o Officer must witness the offence
NB: everything not listed as a summary offence is prima facie indictable, very few straight summary offences
Arrest for Outstanding Warrant [s 495(1)(c)]
•
Officer may arrest without warrant a person in respect of whom he has reasonable grounds to believe that
warrant of arrest is in force within the territorial jurisdiction in which the person is found (Frazier v Purdy):
o Subjective and objective grounds
o Officer need not have warrant on him/her (and ignore territoriality)
When Not to Arrest [s 495(2)]
• For: (a) indictable offence listed in s 553; (b) hybrid offence; or (c) summary offence IF
o (d) he believes on reasonable grounds that public interest, including the need to: (i) establish the identity
of the person; (ii) secure or preserve evidence relating to offence; OR (iii) prevent continuation or
repetition of offence, or commission of another offence may be satisfied without arrest, AND
o (e) he has no reasonable grounds to believe that without arrest person will fail to attend court.
• i.e. officer cannot arrest if it is not necessary for public safety etc. and to make the person appear in court
Power to Issue Arrest Warrant
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•
•
•
Indictable (s 504): Any one […] may lay an information in writing and under oath before a justice…
o Warrants (s 507): conducted ex parte; justice must hear the allegation, justice may hear evidence under
oath/affirmation; just can issue warrant for arrest or summons
Summary (s 788): officer relays information to justice who may issue a summons or warrant
o Officer relays R+P grounds (information) to JP, which gives the court jurisdiction over offence; form of
release (summons, arrest warrant) gives jurisdiction over person → need both
Information must be sworn to be properly before the court, if not the court has no jurisdiction over the offence
If they were not properly remanded to court only recourse is to issue bench summons, some JPs won't do that
Arrest is the first process in getting someone before the court - police have to bring individual to courthouse as
soon as practicable but definitely no longer than 24 hours (liberty interest, bc not convicted of anything)
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Citizens’ Arrest [s 494]
• (1)(a): Anyone may arrest without a warrant a person “he finds committing an indictable offence” (Biron)
• (1)(b): Anyone may arrest a person they have reasonable grounds to believe has committed a criminal offence or
anyone who is being freshly pursued by those that have power to arrest
• (2): Owner of property may arrest without a warrant a person committing an offence on or in relation to property
• (3): Upon arrest must deliver to a peace officer (i.e. as soon as is reasonably practicable in all the circumstances)
• Cunningham: Everything applicable to police is applicable to citizens’ arrest (must be Charter compliant) because
you are taking on a government function (realistically most people wouldn't go any further than detention)
Arrest - Breach of Peace [31(1)]
• Allows an arrest of a person committing a breach of the peace or who on reasonable grounds the officer believes
is about to join in or renew a breach of the peace (includes riots)
• No charges arise from this arrest power; necessarily never brings anyone to court absent other charges
o Question is how to raise other challenges if you never get to court and search incident to lawful arrest
Feeney Warrants [s 529]
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•
Police need warrant before entering house to effect an arrest or it’s a violation of s8; need reasonable grounds
for arrest and reasonable grounds to believe person in the house
o Police must announce presence and knock on door/ring doorbell
o Must identify selves as officers
o Notify occupants why there
o If request admission and admission denied then can use force to enter
▪ Can dispense with notice in exigent circumstances or safety issues with notice
Exigent circumstances - if proper grounds to arrest with a warrant and reasonable grounds to believe person is in
dwelling house and R+P grounds to suspect entry into dwelling house is necessary to prevent imminent bodily
harm/death or R+P grounds to believe entry will prevent destruction of evidence → can enter
Interrogations
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Governed by common law confessions rule and the Charter – ss10(a), 10(b) and 7
Power to interrogate is critical to law enforcement, but too much power to interrogate risks false confessions
o Stress-compliant confession: confess because of the adverse interpersonal pressures of the interrogation
o Coerced-compliant confession: physical harm until accused confesses, or make some kind of promise
o Non-coerced compliant confession: cause the accused to become confused and doubt their memory
o Coercive persuaded confession: person is persuaded of their own guilt
Detained individuals have to listen to police questions but they are not obliged to respond
Common Law Confessions Rule (Voluntariness)
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Prohibits admission at trial of statements made to police or other “persons in authority” unless prosecution
proves BRD that statements were “voluntary” to avoid false confessions and wrongful convictions
o One of few times judge must intervene if parties don’t raise issue, may go through voir dire or similar
Hodgson; Broyles: Rule applies to persons in authority (police and anyone accused believes is acting as an agent of
the police or prosecuting authorities and therefore could influence or control the proceedings against him)
Ahmed: Recording statements is best practice (ONCA has used stronger language than the SCC)
Before interrogating suspects, police typically inform detainees of:
o (a) Their right to counsel;
o (b) Their right to remain silent; and
o (c) The fact that their statement(s) may be used against them.
A failure to caution militates against voluntariness but does not lead to automatic exclusion
Oickle: Involuntariness arises from: Lack of operating mind; threats or promises; oppressive interrogation
conditions; methods that would “shock the conscience” of the community → CROWN MUST PROVE ALL FOUR
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Factor One: Operating Mind
• Accused needs to understand content of what they are saying and the implications of saying it; can’t make active
choice if don't know what might happen by making that choice
• Whittle: Need “sufficient cognitive capacity to understand what he or she is saying and what is said” including the
ability to understand a caution that the evidence can be used against the accused
o Low standard, intoxication, mental illness, intellectual disabilities may not undermine voluntariness
Factor Two: Inducements
• Not all threats or promises will be improper, critical factor is whether it’s a quid pro quo in exchange for
confession, consider strength of inducement given the specific context; did cause confession but for inducement
o Threats of physical violence and offers to procure lenient treatment are always improper
• Moral inducements are considered voluntary, appeal to moral fibre as opposed to external inducement is allowed
Factor Three: Oppression
• Inhumane conditions created by depriving necessities such as food, clothing, water, sleep, medical attention,
access to counsel, aggressive or prolonged questioning, confronting with inadmissible or fabricated evidence
o None of the above factors are determinative, contextual analysis is required - was entire environment so
oppressive that it caused the confession (consider no water during a short interview vs six hour interview)
Factor Four: Community Shock
• A voluntary confession may still be excluded if it was obtained by trickery “so appalling as to shock community”
• Police have leeway but things like pretending to be a lawyer or spiritual advisor is considered reprehensible
Evidence from Involuntary Confessions and “Derived Confession Rule”
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•
•
Confessions lead to subsequent statements and derivative evidence; may lead to discovery of admissible evidence
Statements excluded if tainting features which disqualified the first confession continued to be present or if the
fact that the first statement was made was a substantial factor contributing to making second statement [I(LR)]
o Macintosh: would second confession have been made “but for” the existence of the first considering:
▪ Time span between statements; whether accused spoke to lawyer and police made efforts to
facilitate; and whether police disabused suspect of any prior threats or promises
NB: mind language, it's not proven to be involuntary but rather NOT proven to be voluntary BRD
Section 7 of the Charter - “Right not to be deprived of life, liberty and SofP except in accordance with PFJ”
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•
Principle against self incrimination, protects right to silence “right to choose” whether to speak to authorities
Singh: When a statement is made to a person in authority, this right is subsumed by the confession rule because if
you concede voluntariness it means that when you finally decided to talk it was because you actually wanted to
o S7 right to remain silent does not confer a right not to be spoken to by authorities
Distinct results: if Crown hasn't met voluntariness burden statement is automatically excluded, whereas if you go
through s7 the court goes to remedies (in many ways voluntariness is broader and more robust)
Undercover Agents (Hebert)
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•
Confessions rule does not apply when detainees don’t know that they are speaking to a person in authority
S7 forbids covert state agents actively eliciting statements from detained suspects if three conditions are met:
o (1) Right applies only during detention, not when suspect tricked into confessing to undercover agents
o (2) The person eliciting the statement must be a state agent; (relationship) and
o (3) The state agent must actively elicit the statement and not merely passively observe the suspect.
Mr. Big
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Confessions are presumptively inadmissible: often include bad character evidence so prejudicial value skyrockets
and there are many reasons people would admit things they didn't do in this circumstance
Crown must prove on a balance of probabilities that probative value of evidence outweighs prejudice
o Probative value focus on reliability (threats/inducements of crim organization)
o Prejudice relates to bad character
Since Mack and Hart, police have moved away from typical Mr. Big to similar scenario with a legitimate company
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Reid Technique of Interrogation and Alternatives
• Most widely used police interrogation technique in North America, criticized for leading to false confessions
o Confrontation – forceful accusations, presenting evidence (real/fake), interruptions
o Minimization – sympathy with implication that confessing will result in leniency
• Strategic Disclosure of Evidence Approach: interviewer withholds certain pieces of evidence from suspect in an
attempt to catch them in a lie. Lies may be exposed if they are unaware of the evidence against them
• Asking Unanticipated Questions: used when two or more suspects are interviewed individually about their joint
involvement in a given crime, focus is looking at inconsistencies in behavioral cues, usually about benign topics
Section 10(a) and 10(b) of the Charter
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•
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Right to be informed of reasons for arrest/detention, and right to retain and instruct counsel without delay and to
be informed of that right allow detainees to make informed, voluntary choices in their interaction with police
o Suberu: triggered immediately upon detention or arrest (but not before)
10(a): Requires police tell subject in clear and simple language about every offence they are being investigated for
and any significant change in nature of their investigation so that they understand general extent of jeopardy)
10(b): Protects accused from making uninformed decisions, some clear rules on what it covers and requires
o Police duty to tell detainees they may speak to lawyer, availability of free legal aid/duty counsel services
o Police have to help detainees exercise their right to counsel (or duty counsel) if so desired
o The detainee should be advised “without delay” and thereafter if the jeopardy changes
o Have to take reasonable steps to access information (i.e. call my mom who knows the lawyer's number)
o Must wait reasonable amount of time but eventually may proceed (time based on seriousness of crime)
o Issue is meaningful advice (but Sinclair, once you have advice you're out of luck and can’t access more)
o Reasonable steps to facilitate understanding when potential misunderstandings are objectively evident
and it requires detainee exhibit a basic level of understanding before choosing whether to talk to counsel
o If a detainee wants to speak to counsel the police MUST refrain from eliciting evidence until the detainee
has been given a “reasonable opportunity” to talk to his lawyer for advice
o Once the reasonable opportunity expires, the police can question the detainee (i.e. private conversation)
o Once permitted to exercise the right, detainees must also be “reasonably diligent” in exercising the right
o All of the “surrounding circumstances” will be considered in both contexts
Waiver of Right to Counsel
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•
Detainees could “waive” their right to counsel. The Crown must show:
o (a) Detainee indicated clearly that they no longer wished to talk to a lawyer and
o (b) Made this decision with full knowledge of their rights and the consequences
Once waived, the police should caution the detainee (“Prosper warning”)
Re-Consultation
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10(b) is “one time matter with a few exceptions”; once reasonable opportunity is provided, police can continue
questioning even if detainee hasn’t spoken to counsel, not required to permit counsel to be present
o (1) Police must offer a second chance to permit the detainee to re-consult with counsel when there is an
objectively observable change in the circumstances such that the detainee could make the decision
o (2) A chance to re-consult is afforded when the police subject the detainee to non routine procedures
such as line ups, polygraphs etc. or
o (3) Where the detainee makes it clear that he didn’t understand the advice.
Generally once you have your advice police can continue with interrogation as long as it is otherwise lawful, but if
something changes to make it such that your decision to cooperate is no longer informed you can re-consult
The Three “Trump Cards” - Binnie (Sinclair)
• Oickle affords police latitude in extracting confession without offending confession rules respecting voluntariness;
• Singh allows endurance contest between detainee and interrogator despite repeated assertions of right to silence
• Sinclair permits police deny second consultation with counsel unless there is significant change in circumstances
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Young People [YCJA s 146]
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Statement are inadmissible unless Crown proves BRD that: (a) The statement was “voluntary”; and (b) The
interviewer has “clearly explained” in language appropriate to the age and understanding that (c) Young persons
can waive their rights to consult a parent/adult but standard is very high
o (i) No obligation to make a statement; (ii) Statement could be used against them; (iii) Right to consult
counsel and parent/adult; (iv) Statement must be made in presence of adult they choose otherwise
Failure to comply does not automatically result in exclusion of the statement
B. COURTS AND OFFENCES
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Ontario Court of Justice (OCJ): statutory court that handles criminal and family matters; absolute jurisdiction for
553 offences and may try defense electable indictable offences per 554 (not 469) per process in 536(2)
o Judges appointed by province; do almost all criminal trials except murder or treason; sit on appeal from
JP decision on provincial/bylaw matters; might handle provincial offences if a death is involved, for ex.
o Justices of the Peace do not handle criminal trials or sentencing; sign warrants, run bail court, bylaws, etc.
Superior Court of Justice (SCJ): generalist trial court with inherent jurisdiction flowing from the Constitution that
hears indictable offences per 468 and all 469 offences and appeals from certain offences from OCJ
o Judges appointed by federal government but administered by province; can go judge alone or by jury
Court of Appeal (CA): court of inherent jurisdiction that hears appeals on indictable matters
o Provincial (who handle Criminal Code charges) and federal prosecutors (who handle CDSA, IRPA, etc.)
Federal Court (FC): hears matters of national security and appeals from tribunals, including inmate appeals
Offences
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S 468: all indictable offences to SCJ
S 469: every court of criminal jurisdiction can try any indictable offence except those listed here [done in SCJ]
o S 469 offences must be tried by jury unless defense and Crown agree to judge alone (except murder)
S 471: unless otherwise stated all indictable cases are jury trials (vast majority of offences are tried without juries)
o S11(f) of the Charter: right to jury trial only if max penalty is 5 years or more
S 553: absolute jurisdiction to OCJ
S 554: may elect to hear indictable offences other than s 429 in SCJ or OCJ
S 787(1) maximum penalty for summary offence is $5000 fine and/or 6 months unless otherwise specified
Effectively three types of indictable: absolute jurisdiction (OCJ); defense electable (OCJ or SCJ); jury (SCJ)
Elections
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S 561 – re-election for defense electable offences
o If Crown consents, defense can re-elect any time - likely to agree to drop a prelim
o If Crown doesn't consent, can do it up to 14 days before prelim and within 14 days of prelim ending
S 565 – deemed election (if someone does not elect they will be deemed to have elected judge and jury)
S 598 – absconding accused (lose your right to a jury trial)
S 577 – direct indictment
o There are benefits to proceeding through summary conviction but Crown and Defense must BOTH AGREE
Code is silent on timing for Crown but must consider statute of limitation if summary (6 months)
If co-accused elect different modes of trial the person who has asked for a judge and jury wins
C. PRE-TRIAL PROCESS
Intake and Release Pending Bail
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After police make arrest under 495 the law demands they turn their minds to release, must consider: public
safety, trustworthiness of individual, preservation of evidence, and must know identity of the accused
Person who is not an ordinary resident of Ontario governed by different rule (ss 497-499)
S 503(1): If not released from station must be taken before a justice without delay and within 24 hours (or ASAP)
16
Getting Someone to Court [ss 496-501]
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Can issue an appearance notice
o S 501 outlines content: name of defendant; offence charged; date, time and address of court date; date,
time and location for prints (prints are only done on a different day if you are released from the station)
o S 502 provide for an arrest warrant if no show for fingerprints
Can issue a promise to appear
Can give a summons
Can enter into a recognizance or undertaking
o Allowed terms (not entering a certain area, having contact with certain people) but they must have a
connection to the offence (there is a mechanism to ask court to revisit terms officer has given)
▪ i.e. if there is an assault police automatically put in a no contact term contrary to wishes, or may
include terms not to consume but judges consider problem of criminalizing addiction
Forms 9 and 10 - forms to be complied with and that are used to get people to the court
The Information
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•
•
Charging document in OCJ, drafted by officer and issued by JP; includes key aspects of allegations, name of
accused, date, jurisdiction of offence, names of alleged victims
o Often see long informations where one offence makes several different charges but good Crown will cull
Must be laid as soon as practicable and before first appearance date - date that it is sworn is the key date
Information comes with person if they have been held in custody for bail hearing, officers must draft right after
arrest to be ready for court; if not held for bail hearing the information might not be sworn until later
o s11(b) starts ticking the day the information is sworn, not the day of the arrest
Indictment
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•
•
•
Charging document (not Information) drafted by Crown, heard in SCJ; linked to offences person will stand trial on
S 581 (form of indictment): single transaction per count (“on or about DATE committed X, AND on or about DATE
committed Y” rather than "on or about DATE committed X and Y"), no specific language required
o Legal sufficiency: only one offense per count
o Factual sufficiency: enough info to give you notice about the crime you're charged with
Defense can bring motion to add particulars (s 587), but since Charter/disclosure requirement this never happens
S 601 allows information to be amended or quashed (will be changed if there is no prejudice to defense)
Bail
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Antic: Prior to 1972 bail was largely discretionary with very few rules, eventually people complained with
sufficient strength to lead to Bail Reform Act; SCC described as an "enlightened system of pre-trial release"
Current system of bail doesn't have a close resemblance to Bail Reform Act, Antic represents slow swing back left
Arresting officer has a choice to release accused from the station pursuant to ss 496-499 or 503(2)
When accused appears before JP they are entitled to apply for bail or judicial interim release pending trial
Bail in the Code
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515(2) outlines forms of release, including cash bail (for people not ordinarily resident), 515(2.1) deals with surety
515(4) lists conditions available, including to remain in province, not communicate, deposit passport
o Any other condition justice deems necessary for victim/public safety and proper functioning of system
o 515(4.1) weapons condition is mandatory in certain offences unless found not required
o 515(4.12) non communication with specific offences, mandatory re specific offences
515(5) where prosecutor shows cause, why accused should be detained, then detain pending trial
515(12) if already detained JP can still place restrictions on communication with victim, witness, etc.
515(6) reverse onus bail issues: relate to only a small number of offences and to some circumstances, but those
small number of offences are the ones that the vast majority of people are charged with (i.e. drug offences)
o Pearson dealt with trafficking, justified on the basis that ordinary bail provisions won't function
appropriately for sophisticated drug dealers with large amounts of money and ability to flee
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The Bail Hearing
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Show cause hearing (because one party or the other has to show cause one way or another)
Most applications for bail made in OCJ before judge or JP except for 469 offences (per s 522 must before SCJ)
Ordinary bail hearings governed by s 515, whether or not dealing with run of the mill or serious offences etc.,
o S 515(11) says accused charged with s 469 offence will be detained until dealt with by application in SCJ
Generally burden is on Crown, court must release without conditions unless Crown proves necessary and needed
o Antic: start at lowest rung and the Crown has to convince that to release something more is needed
o If not released on own recognizance with no conditions, s 515(2) says released with conditions or with
sureties unless Crown shows cause why accused should be detained or more conditions are necessary
Judge or JP decide bail: some argue layperson understands community and risk of release better, but evidence
that trials are protracted by JPs, whereas judges cut through the chaff (see College Park system)
Gladue principles apply at bail hearing stage, s 718.2(e) makes imprisonment a last resort and has a remedial
purpose for indigenous offenders, imbalance arises from bias and from an institution less likely to approve bail
o Robinson: bail problem in relation to Aboriginal accused, application of Gladue requires consideration of
any unique systemic or background factors played role in bringing accused to court
o Hope: restorative justice even at bail hearing stage
Evidence at Bail Hearings
• s 517 publication ban: mandatory when proposed by accused, requires notice/submissions if proposed by Crown
o Temporary until trial completed; deemed constitutional (Toronto Star) and now pretty much automatic
• S 518 types of evidence at bail hearing: JP or judge can ask questions of witnesses; accused can testify but can't
be cross-examined on offence unless opens door 518(10)(b) (sometimes they want to and its very persuasive)
• Can use prior convictions and can receive any evidence that is credible or trustworthy (hearsay admissible)
• Usually read in synopsis/background facts, but still adversarial and justice may require credible evidence (Villota)
Adjournment [s 516]
• Hudson: When an accused appears in court and is not prepared to embark on a bail hearing within specified time
frame should not have to consent to detention in order to facilitate moving case along
o Before getting to set date court, getting disclosure, setting trial date, old system had hurdle of dealing
with bail first, so people would have to consent to detention and then apply for bail review
• S 516 permits JP before or at any time during s 515 proceedings and on application from prosecution or accused,
to adjourn and remand to custody; adjournment is not to exceed three clear days without consent of accused
Principles and Guidelines for Bail Provisions in a Contested Hearing (Antic)
1. Accused are constitutionally presumed innocent, corollary to that is the constitutional right to bail
2. 11(e) guarantees right not to be denied bail w/o just cause and the right to bail on reasonable terms
3. Save for exceptions, unconditional release on an undertaking is default position when granting release (515(1))
4. Ladder principle articulates manner in which alternative forms of release are to be imposed; release is favoured at
earliest reasonable opportunity and having regard to statutory criteria for detention on the least onerous grounds
5. If Crown propose alt form of release, must show why necessary; more restrictive = greater burden; justice cannot
impose more restrictive form unless Crown has shown necessary w regard to statutory criteria for detention
6. Each rung of ladder must be considered and rejected before moving to more restrictive form of release; where
there is disagreement it is error of law to order more restrictive w/o justifying decision to reject less onerous
7. Recognizance w/ sureties is one of the most onerous forms of release; surety should not be imposed unless all
less onerous forms considered and rejected
8. Not necessary to impose cash bail if they or sureties have reasonably recoverable assets and are able to pledge
those; recognizance is functionally equivalent to cash bail and has same coercive effect, under (2)(d) or (e) cash
bail should be relied on only in exceptional circumstances where recognizance is unavailable
9. In case of above, amount must not be set so high it effectively amounts to a detention order; judge or justice is
under positive obligation to inquire into ability of accused to pay
10. Terms of release imposed under 515(4) may only be imposed to the extent they are necessary to address
statutory criteria. Not imposed to change or punish accused
18
Sureties
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•
•
•
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People close to accused who pledge money and commit to ensuring their follow conditions of bail (issue is not the
quantum but how much losing it would affect that particular surety)
o If accused breaches bail or doesn't attend court, Crown often applies for forfeiture of funds under s 771
Sureties act as such until trial but may opt out at any point without reasons (result is new bail hearing for accused)
Overreliance on sureties is an ongoing issue, can lead to guilty pleas if people are refused bail or forced into
onerous bail program; the more offences you have, the less likely you are to get bail in the future
Antic: Demanding a surety is one of the most onerous forms of release and should be last resort; ladder principle
Tunney: Court should hold initial hearing to determine whether or not surety is even necessary in circumstances
o NB: effect of bifurcated hearing is that Crown has already conceded release
Section 11(e) of the Charter - the right not to be denied reasonable bail without just cause
•
•
Morales: denial of bail must occur in a narrow set of circumstances and must be necessary to promote the proper
functioning of the bail system and must not be taken for any purpose extraneous to the bail system
If someone is denied bail, which happens before any determination of innocence or guilt, it means they can be in
custody for as long as three years pending their trial; detention leads to an increased risk of guilty pleas
Denying Bail [515(10)]
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•
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•
515(10) detention is justified only if one of three grounds are met: primary, secondary tertiary
Primary Ground [515(10(a)]: flight risk, justice must make sure the accused appears before trial →consider type
of offence, penalty, strength of Crown case, ties to community, prior convictions for flight
o Commission on systemic racism found lack of employment and homelessness increased risk of detention
under primary ground, since then bail program and other supports developed to help
Secondary Ground [515(10)(b): apprehension of further offences being committed on bail → only captures those
who pose substantial likelihood of doing so and only where substantial likelihood endangers of public
o Consider criminal record, if accused is already on bail, if accused is already on probation, nature of
offence, strength of Crown's case, presence/absence good surety and/or plan of release (McGowan)
▪ Youth record can be used in an adult bail hearing, although some youth records must be purged
Tertiary Grounds [515(10)(c)]: detention when necessary to maintain confidence in administration of justice,
having regard to the apparent strength of the Crown’s case, the gravity of the offence, circumstances surrounding
the commission of the offence, and the potential for lengthy imprisonment
o Hall: struck out portion "on any other just case being shown and without limiting the generality of the
foregoing" but validity of balance of 515(10)(c) upheld
o St. Cloud: man charged with extremely violent assault on video, detained on tertiary grounds
▪ ONCA said tertiary grounds are a last resort, SCC said it should be considered in every single case
although in all likelihood it won’t be relevant in most cases
Bail Reviews
•
•
•
•
•
•
•
Two bases for review: new evidence/change in circumstances or error in law (leads to bail de novo)
o Bifurcated again - argue new evidence/change or error - then judge decides anew using factors from 515
S 525 allows for administrative reviews after 90 days if indictable or 30 if summary
S 523(2)(c) can review at any time with consent of Crown, (b) on completion of prelim inquiry, (a) at trial
S 520 governs accused application for review (where ordered detained or released on onerous conditions)
S 521 governs circumstances where prosecution can apply if accused has been wrongfully released (more rare)
Rule 20 of SCJ Rules: provide party with two clear days of notice; bring affidavit of applicant, affidavit of proposed
surety (if applicant is the accused), transcripts, copy of all exhibits from original hearing
o Affidavit of accused must include particulars of charge and dates for hearings; where applicant lived for
past 3 years; where he is going to live upon release; applicant’s employment past 3 years; where
Applicant proposes to work if released; form of release proposed; terms of release Applicant seeks
o Where the Applicant is the prosecutor can file additional material by affidavit.
Certiorari deals with jurisdictional error - almost never happens
19
Revoking Bail (s 524)
•
•
•
May issue arrest warrants if R+P grounds to believe accused has/will breach bail or committed indictable offence
Hearing to determine breach of offence, and if so bail must be revoked; becomes reverse onus - 515(10)
Bifurcated hearing, first establish r+ p grounds of breach or commission, then hold a new bail hearing
o If accused meets onus justice may release on new recognizance with appropriate terms.
o Same rules of procedure and evidence for initial bail hearings apply
Bail Pending Appeal (s 679)
•
Single judge in Court of Appeal hears application, burden on applicant to establish on BOP that
o Appeal not frivolous
o Applicant will surrender in accordance with terms of order
o Detention not necessary in public interest
Preliminary Inquiry
•
•
•
•
•
•
Optional hearing held by a justice of the provincial court available where an adult is charged with an indictable
offence and elects to be tried by the Superior Court and one is requested by either the accused or the Crown
o (1) To determine whether there is sufficient evidence to send accused to trial [548(1)]
o (2) To provide accused a means of discovering case against herself (ancillary purpose)
▪ Judicially inspired expansion, came before Charter right to disclosure (clarified in Stinchcombe)
Extra procedural step that determines if there is enough evidence to send the accused to trial
Witnesses are called to give evidence under oath before a Preliminary Inquiry Justice
Originally an investigative step, evolved into an inquiry into sufficient evidence before being put through a trial;
19th c. England was a safeguard against unwanted and unwarranted trial, which continues in Canada today
Benefits for Accused: Ask questions not already asked by police; probe credibility of witnesses; pin down Charter
issues; raise statements and voluntariness issues; pin witnesses on crucial points; potential discharge without trial
Drawbacks for Accused: Disclose strategic vantage point; time consuming, especially if accused is in custody; not
always useful if there is already good disclosure; cost factor
Evolution of Preliminary Inquiry
•
•
•
Crown used to have to lead evidence on every essential element of offence to commit; broad and unfocused
Several decisions imported Garofoli reasonable basis leave test (in Dawson) and Parliament amended CC
o S 536(4.1): has to be requested by Crown or accused in writing, issues must be focused; can have one or
more focus hearings to discuss everything from accuracy of transcripts to the scheduling of witnesses
S 577: allows Crown to override PI request, to prefer direct indictment, without reasons
o In order to review Crown’s decision to override you must demonstrate it was improper or abusive
Reasons to Override a Preliminary Inquiry Request (SJL)
• (1) delays in the trial could deprive the accused of the right to be tried within a reasonable time;
• (2) the physical or psychological health of witnesses, their age, their safety or that of their relatives, and the
difficulties involved in having witnesses testify more than once;
• (3) preservation of integrity of Crown’s evidence (ex. protecting informants and ongoing police investigations);
• (4) a risk that evidence could be destroyed;
• (5) public safety reasons;
• (6) need to avoid multiple proceedings caused, for example, by delays in making arrests;
• (7) accused was wrongly discharged following PI because of errors, or new evidence has been discovered;
• (8) PI would be unreasonably costly, complex or long, or inappropriate because of nature of issues or evidence;
• (9) the alleged offence is so controversial that it is in the public interest to try the case as quickly as possible; and
• (10) certain guidelines set out additional, broader criteria, such as the need to maintain public confidence in the
administration of justice, the public interest, or the fact that the case is notorious or of particular importance to
the public, that the direct indictment is the most appropriate procedure in the circumstances, or that there is a
special need to expedite proceedings.
20
Conduct of Preliminary Inquiry
•
•
•
•
•
•
•
May be judge or JP but almost exclusively run by judges; statutory, powers flow s 537: adjournment, remanding,
etc.; NO: ordering disclosure (Charter), ruling on Charter applications (Mills, Conway - not competent jurisdiction)
o Although they can't rule on disclosure issue they can grant adjournment, which is the remedy
Common law evidentiary exclusion rules apply: Crown has to prove a statement is voluntary BRD to rely on it
537(1)(i): allows justice to regulate the course of the inquiry in any way as long as it is in accordance with justice
s 539(1): Publication ban is similar to bail in s 517, automatic at instance of accused and discretionary at Crown
540(1): authority to govern and limit PI, most importantly right to cross examination preserved under 541(1)(a)
o Once process is engaged, accused has the right to make full answer and defense; this extends to the right
to explore credibility of witnesses even if this is irrelevant to PI’s ultimate function (ancillary function)
Ability to receive otherwise inadmissible evidence (540(7)-(9)) - controversial, but judge not obligated to accept it
548 - order to stand trial
Sufficiency of Evidence
•
•
•
Judge shall commit accused to trial if there is any evidence on all the essential elements of the offence upon
which a reasonable jury properly instructed could return a verdict of guilt (Shephard v USA)
o Test is extremely low because PI judges don't weigh quality of evidence, don't make findings of credibility
If direct evidence found on every element of the offence judge must commit; in the case of circumstantial
evidence, if inferences are reasonably drawn that evidence is as compelling as direct
o Arcuri - although PI judges can't weigh direct evidence, they do have to with circumstantial - considering if
the evidence is reasonably capable of supporting the inferences being relied upon (not mere speculation)
If they commit on evidence where reasonable jury could not find guilt they commit jurisdictional error (s 548)
Bill C-75
• Only an adult accused of a crime punishable by life imprisonment would be able to request a preliminary inquiry
and judge would also be able to limit the issues to be explored and the witnesses to be heard
• Theoretically reduce number of PIs while ensuring they are still available for those accused of more serious
offences, free up court time and reduce the burden on some witnesses and victims, esp. sexual assault,
• Rational basis referring to SJL, there is a reason to limit PI to ensure accused gets their right to a speedy trial
o If we do away with PI for basic offences this will move things through the system
• Most cases that go to PI as it is are for life offences, Crown election to proceed summarily already gave them the
ability to take away preliminary inquiry, and they can also prefer indictment if this were taking too long
o Amendment probably doesn't take away something that couldn't already be taken away
• Accused losing tool of cross-examination; absent full investigation/ability to cross examine you'll never find truth
• Undeniable from this legislation is that anyone charged with a sexual assault except for the most egregious
(aggravated) will not have a PI, same for sexual interference, sexual offences in relation to minors, really has
affected those types of offences to a much greater degree than anything else
Disclosure
Disclosure is a copy of the evidence that the Crown and police have collected to prosecute your case. It is given to you
because it is your constitutional right to know the evidence that will be used against you.
• Anything the Crown has about that case, whether you call it evidence or not:
o Officer's notes; synopsis (read at a bail hearing if there is a guilty plea, but it's not evidence); photographs,
witness statements, patrol car recordings, expert reports, crime scene data, etc.
• Stinchcombe: disclosure is a legal duty and not a matter of prosecutorial discretion; Crown must disclose “all
relevant information” to the defense that is in their possession or control; obligation is an ongoing responsibility
o Crown need not disclose “clearly irrelevant” information; Crown is not entitled to determine relevance, so
better question is not "is this relevant" but "is this clearly irrelevant" - phrasing catches more material
“Relevance”:
Information is relevant for the purposes of the Crown's disclosure obligation if there is a reasonable
•
possibility of the information being useful to accused in making full answer and defense - Chaplin, Girimonte
21
Right to Full Answer and Defence
Stinchcombe: concern that failure to disclose impedes the ability of the accused to make full answer and defense. This
common law right has acquired new vigour by virtue of its inclusion in s.7 of the Charter as one of the PFJ… The right to
make full answer and defense is one of the pillars of criminal justice to ensure that the innocent are not convicted”
• Right to full answer and defence arises from s7, which protects due process and a fair trial; if you fail to make
disclosure you violate accused's s7 right because they don't know the case raised against them
• Girimonte: full answer and defence encompasses right to meet case presented by prosecution, advance case for
defense, and make informed decisions on procedural and other matters which affect the conduct of the defense”
o i.e. whether to go to trial, have a preliminary inquiry, trial with jury, trial alone; any defense election
• Stinchcombe: Because the point is to make an informed decision you need disclosure before you make an
election; obligation to disclose is triggered by arrest (Crown incentivized to disclose earlier to avoid delay)
• Question becomes how much is enough, defense given some leeway to request before setting trial date
o ex. 911 calls aren’t requested until trial date is set because its expensive; unless accused is adamant they
didn't have a controlled substance the analysis won't be released until close to trial
Exceptions to Disclosure
• Crown need not disclose:
o Information beyond its control (if it’s not in your possession you can’t disclose it)
▪ NB: For the purposes of disclosure the Crown and police are indistinguishable
▪ No duty on police to investigate e in a particular way but a good Crown will go through files ask
police to get anything that is missing to prove case BRD, could hurt their case
o Where the material is clearly irrelevant
o Privileged information
o Information falling under Mills regime
▪ Crown must notify defense of its existence and defense has to make application if they want it
• McNeil: Crown’s exercise of discretion in fulfilling obligation reviewable by Court
• Disclosure may be delayed out of the necessity to protect witnesses or complete an investigation (Egger, Chaplin)
Disclosure Disputes - Chaplin
•
•
•
Where the defense contends that identified and existing material ought to have been produced:
o Crown must justify non-disclosure by bringing itself within an exception to general rule
o If everyone agrees it exists the Crown has to show why it is not disclosable, that it is clearly irrelevant
Where the defense contends material whose existence is in dispute ought to have been produced:
o Defense must establish a basis which could enable the judge to conclude there is in existence further
material which is “potentially relevant”; defense has to prove it exists (on BOP) before they can demand it
o If defense establishes this, then Crown must justify continuing refusal to disclose
Girimonte: Only judge presiding over trial, or SCJ judge, may review Crown’s disclosure decisions; Preliminary
Inquiry judge cannot determine disclosure application (no jurisdiction for Charter)
o If before trial date set can either go to PI without disclosure or to SCJ as a separate and discrete motion
Establishing a Charter Breach
•
•
•
Right is to full answer and defense, not disclosure, applicant must show on BOP that:
o Right to full answer and defense infringed and must show “actual prejudice” - O’Connor; Bjelland
Usually arguments arise when disclosure comes too late, defense wants stay of proceedings or other remedy
o Remedies: an adjournment (if disclosed mid-trial), recall witnesses (if info impacts what you would have
asked), mistrial (if damage is so prejudicial)
o Lawyers have tried to ask for the evidence to be excluded (Bjelland) but SCC has said that they won't
willingly order the exclusion of otherwise admissible evidence merely because of a disclosure breach
To establish Charter breach for lost evidence defense must establish on BOP it was lost because of negligence OR
that the lost evidence, even if not due to negligence, prejudices ability to make full answer and defense
22
Defense Obligations
• Courts have low tolerance for bad faith from the defense, disclosure is a protection, not a sword (Dixon)
o You can ask for an adjournment if you made an honest mistake but you can't get a stay of proceedings
because the Crown didn't give something the defense knew about but didn't ask for
• Defense must act responsibly in requests for disclosure, and not simply embark on ‘fishing expedition’ - Girimonte
• Defense must bring any failure to disclose to trial judge’s attention at earliest opportunity - Stinchcombe; T(LA)
Production - Third Party Records
•
Things defense counsel wants that are not in Crown's possession (like medical records); Crown isn't obligated to
get something merely because the defense has asked for them
The O’Connor Regime
•
•
•
O'Connor governs production of third-party records where legislative scheme in ss 278.1-278.91 does not apply
(1) Applicant must demonstrate “likely relevance”:
o ‘Likely relevant’ = reasonable possibility that information is logically probative to an issue at trial or the
competence of a witness to testify(test is low because defence obviously cannot see records)
o ‘Issue at trial’ includes material issues, evidence relating to witness credibility, reliability of other evidence
▪ McNeil: significant, but not onerous, burden; if met, production to court may be ordered
(2) Judge determines whether, and to what extent, records to be produced to accused:
o Must balance salutary and deleterious effects of ordering production by considering:
▪ (a) extent to which record necessary for accused to make full answer and defense;
▪ (b) probative value of record in question;
▪ (c) nature and extent of reasonable expectation of privacy vested in record;
- [(d) whether production would be premised upon discriminatory belief or bias; and,
- (e) potential prejudice to complainant’s dignity, privacy, or security of person)]
o McNeil: If record is “clearly irrelevant”, applicant has no interest to balance; if it is “relevant”, accused’s
right to make full answer and defense will, “with few exceptions”, tip the balance in favour of production
▪ Production can be tailored to protect privacy without impairing answer and defense: publication
ban; bar spectators for sensitive evidence; redactions; limits on use, etc.
Steps in the O’Connor Process
• (1) Accused obtains subpoena duces tecum pursuant to ss 698(1) and 700(1) of the Criminal Code
• (2) Accused serves and files application (with affidavit), showing “likely relevance”:
o Notice given to: crown; party in possession of document; and party with privacy interest in document.
▪ Party has standing and can come to court to argue their records
• (3) O’Connor application brought before trial judge application may be heard prior to trial
• (4) If likely relevance test met – judge inspects and does balancing
Mills Regime (ss 278.1-278.91)
•
•
•
•
In response to underreporting, Mills regime governs production of records in enumerated offences, largely sexual
S 278.1: any form of record that contains personal information for which there is a reasonable expectation of
privacy; inc: psychiatric, therapeutic, counseling, education, employment, child welfare, adoption and social
services records, personal journals and diaries, records containing personal info where production or disclosure of
is protected by any other Act; does not include records made by investigators or prosecution of the offence
o Listed records are presumptively protected (RC); whether reasonable expectation of privacy exists
depends on nature and duration of relationship between complainant and record maker (SG)
S 278.2(2): applies if in possession of prosecutor unless expressly waived the application of the scheme
S 278.2(3): if not in the possession or control of the prosecutor, prosecutor shall notify the accused that the
record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents
o Unlike O’Connor, Mills does not permit judge view record prior to ordering its production; Judge has to
balance before it is produced to court, and before it is produced to defence
23
Basic Mills Rule - s 278.2(1)
• No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of:
o (a) an offence under:
▪ s 151 (sexual interference)
▪ s 152 (invitation to sexual touching)
▪ s 153 (sexual exploitation)
▪ s 153.1 (sexual exploitation of person with disability)
▪ s 155 (incest)
▪ s 160 (bestiality)
▪ s 170 (parent or guardian procuring sexual activity)
▪ s 171 (householder permitting sexual activity)
▪ s 172 (corrupting children)
▪ s 173 (indecent acts)
▪ s 211 (transporting person to bawdy house)
▪ s 271 (sexual assault)
▪ s 272 (sexual assault w/ weapon, or CBH
▪ s 273 (aggravated sexual assault)
o ...except in accordance with ss 278.3-278.91
Steps in the Mills Procedure
• 278.3(1): accused must make an application to the judge before whom the accused is to be, or is being, tried
o 278.3(3): application must be made in writing and set out
▪ (a) particulars identifying the record that the accused seeks to have produced and the name of
the person who has possession or control of the record; and
▪ (b) the grounds on which the accused relies to establish that the record is likely relevant to an
issue at trial or to the competence of a witness to testify.
• 278.3(5): accused shall serve the application on: prosecutor, person who has possession or control of record,
complainant or witness, and on any other person to whom, to the knowledge of the accused, the record relates
o At least seven days before hearing... or any shorter interval judge may allow (usually shorter)
o Under Mills regime the MAG pays for the complainant's lawyer
• 278.4: Judge shall hold a hearing 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 (to protect privacy)
o Person with possession or control of record, complainant or witness, and any person to whom record
relates may make submissions, but are not compellable as witnesses.
• 278.5: Judge will review evidence if likely relevance is established and it is necessary in interest of justice,
o Look to probative value v. prejudice
o Necessity to make full answer and defense
o How private is record
o Interest in encouraging reporting sex offences
o Discriminatory beliefs
• 278.6: Where judge has ordered production, shall review it in the absence of the parties to determine whether
the record or part of the record should be produced to the accused
• 278.7: Judge determines whether record will be produced by balancing probative and prejudicial effects
o S 278.7(3): judge can place restrictions on document to protect witness’ privacy
Insufficient Grounds - s 278.3(4)
•
•
•
Accused prevented from relying on “bare assertion” of any of these factors (trying to prevent phishing)
Accused may rely on listed factor where there is evidentiary or informational foundation to suggest they may be
related to likely relevance to issue at trial or competence of witness to testify but cannot rely on recent complaint
(Batte): Where records relate to complainant’s credibility, to be relevant, must either provide defense with
information not already available to them; or have potential impeachment value
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Information in Possession of Other State Agency - McNeil
•
•
•
Defense will fight for disclosure because of the burden in your favour, and vice versa for Crown
Crown can't ignore being put on notice
o Crown Counsel Duty to Inquire
o Police have duty to assist with disclosure
o All state agencies are not Crown entities for purpose of disclosure
o Bridging the gap between disclosure and third party records
o Crown and police should disclose police disciplinary records that could have bearing on trial
▪ McNeil reports run for all officers in case, court assess for relevance; if the defense wants one
that is held back they have to apply for that
o Mix between disclosure and production, once vetted and not admitted it becomes third party production
Don’t need a third party application for witness's criminal record because it’s easily accessible by police
D. PROBLEM SOLVING COURTS
•
•
Related to the people that come before them, often treatment based: mental health and drugs
Gladue is not a treatment court, but is there to address another problem in the system
Mental Health Court
•
•
Prior to MHC there were specialized programs for MH parties, i.e. diversion, need for differential treatment
Started May 1998 in Toronto, now across Ontario but no set protocol so they vary across jurisdictions
o Depends on the needs of the community; process changes depending on who is in charge(judge driven)
o In Toronto our courts have partnerships with places like CAMH; different partnerships in different districts
will shape how they function, what they do, guides protocols
Requirements for Admission
•
•
•
(a) The accused suffers from a mental disorder or developmental delay that contributed to the offence
(b) There are no public safety concerns
(c) There is a reasonable prospect of conviction (otherwise you would just be dropping the charges)
o Can't be paternalistic, good intentions can’t clash with liberty; Crown obligation is to withdraw
Fitness to Stand Trial/Assessment Orders
•
•
•
Can be dealt with quickly because psychiatrist are present, send hospital and set up assessment right from court
o Reduces delay and time spent in custody, better address needs of mentally ill, to stop the revolving door
Swain: the system cannot try someone who is unfit to stand trial, at its core our system believes that all persons
must be engaged in their process and their presence requires mental presence as well
Taylor test: do you know what you’re charged with, what it means to be charged, potential consequence, and
what judge, lawyer, and Crown does; fitness does not require you act in your own best interest
o Low test because consequence of being unfit means trial is held in abeyance, accused remains in custody
▪ If you are found unfit the court will often make a treatment order and if you become fit you get
your bail hearing; if you remain unfit after 60 days your case goes to Ontario Review Board and
they decide whether they decide if you remain in custody or in hospital until you are fit
Bail
•
•
Resources to work out a plan of release on the spot: numerous MH workers, social workers; access to
housing/counselling/treatment facilities; special bail program, trained duty counsel on MH issues
o Judge – with special MH knowledge
o Crowns – specially trained
Can address bail in same court as fitness hearing; judge can release because there is comprehensive plan in place
25
MHC Diversion
•
•
•
Diverting out of the system, most involve someone doing something that results in their charges being stayed
o (1) Need approval
o (2) Once approved – plan created
o (3) Person is monitored for a period of time
o (4) Once stable and in programs Crown stays the charges - s 579 of CC
Not an outright dismissal, Crown legally has a year to bring the case back when stayed (but never does); stay says
that there is no public interest in continuing prosecution as long as this person is doing well
Crown has final say on diversion, with input from MH worker, defense counsel, victims (depending on offence)
o We also have diversion in Gladue but the thing they have to do comes after the stay of the charges
Other Functions of MHC
• Guilty pleas (same benefits of bail) - increased knowledge and access to community assistance
• Short and simple NCR hearings: psychiatrist is in the building; no need to delay to get schedules; have a
judge/Crown/lawyers who know the area well; have forms to get person to hospital
Eligibility Based on Offence
• Certain offences always ineligible for MH diversion:
o murder, manslaughter, infanticide, criminal negligence causing death;
o causing death or bodily harm by dangerous or impaired driving;
o any offence causing serious bodily harm;
o simple impaired driving or driving with a prohibited blood alcohol concentration;
o offences involving firearms;
o criminal organization offences;
o kidnapping;
o spouse/partner offences
o child abuse;
o offences involving child pornography
o sexual offences inc. sexual assault, interference and exploitation, invitation to sexual touching and incest;
o specific hate offences
o home invasions;
o perjury
• Certain offences presumptively eligible for diversion (i.e. If they fit the Crown goes to three other factors):
o theft and possession under $5,000
o joyriding
o mischief under $5,000
o fraud and false pretenses under $5,000
o food, travel and accommodation frauds
o causing a disturbance
• Vast majority of offences involve crown discretion, Crown must consider:
o Circumstances of the offence, circumstances of the accused, and needs of community, including victim.
Gladue Court
•
•
•
Response to Gladue: special court, bail and guilty pleas, no set model
Gladue reports are used, Gladue after care workers, Aboriginal bail program
Focus on restorative justice; judicial notice; moral blameworthiness based on context, connected to background
o Years of dislocation - led to high unemployment, lack of opportunities, lack of education, substance
abuse, loneliness and community fragmentation
o Discrimination
o Aboriginal persons are more adversely affected by incarceration because of the above factors and less
likely to be rehabilitated by incarceration
o Restorative justice – and its role in aboriginal community very important for interpreting s 718.2(e)
26
Gladue and Bail
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•
•
•
•
Start with Indigenous overrepresentation in courts/jails and look at every option that isn't incarceration
o Bottom line is to be as open minded and flexible as possible to work out some form of release that still
satisfies bail requirements in the Code (typically focused on the primary and secondary grounds)
Many people don't have family/community support in Toronto that they might elsewhere for a variety of reasons,
have to come up with plans involving community organizations, agencies like Aboriginal Legal Services
Hallmarks of success for bail almost always work against Indigenous persons, which is the definition of systemic
discrimination, so you have to turn to other factors to address risk
o Principles are like Antic - have to resist the temptation for asking for the most surety possible, often these
onerous terms are just setting people up to fail on administrative or relatively minor issues
Crown often very concerned about secondary grounds but consider: it's common for Indigenous peoples to plead
out and then they serve their term and are back in the community but we're suddenly not concerned about risk
Because the Crown and defense work in tandem in a more fulsome way in Gladue Court, often they can ask police
for more information about a certain offence and work together to decide not to pursue some, etc.
Gladue Diversion
•
•
•
Aboriginal diversion through Aboriginal Legal Services; charges are stayed up front as soon as paper work is signed
Accused takes responsibility for offence and acknowledges they will be expected to go before Aboriginal council
o Onus on the Crown to be working towards that goal
Might not be impacting the overrepresentation of Indigenous peoples in the court system to a huge degree, but it
is responsible for less convictions and more creative release plans, etc.;
o Perhaps the efficacy of this program isn't best measured by reducing visits to the court in some sense
because things like addiction and childhood trauma are hard to overcome
Plan of Care
•
•
Document prepared by Indigenous court workers who meet with individual before court, ask the accused about
what issues they might be facing and put together a letter saying they have discussed various treatment options
o They know the information will be shared with Crown, but it's them identifying their issues and needs
When they come to court Crown can consent to bail, typically with terms of no weapons and to make best efforts
to follow plan of care (latter isn’t really enforceable but sort of by design, programs might not always be available
Gladue Reports
•
•
•
•
Specialized pre-sentence report ordered by defense when client is pleading guilty to assist with sentencing
Typical pre-sentence report is written by a probation officer, looks at background, criminal antecedent, lives, etc.
o Gladue report is written by Gladue officer, in addition to the above factors it includes information about
systemic factors, background, etc.
When the sentence is not going to be light, and if the Crown and defense are not in agreement, they will have to
talk about all of this in court, so the good thing about the Gladue report is that it's all written out
o It's not always perfect, sometimes make written reports to the judge rather than read it aloud
Only for a sentence of 6 months or more; takes 6-8 weeks to get it so if defense is pretty sure they won't be
getting a long sentence it might just not be worth it in terms of how long it takes
o Mara emphasized that it can be helpful to the person in terms of healing but it's obviously their choice
Sentencing Circles
•
•
•
Discuss issues and verdict but instead of just being delivered to the accused, everyone is present and gets to talk
about the offence, the seriousness, person's background, what's happened since the offence, where to go next
o Open with a smudge, use a talking stick or sweetgrass
Difference is remarkable, can see the Crown shift and can see the accused feeling like they've been heard, etc.;
Can function differently depending on community, in Toronto there isn't a single community to rely on for elders
and has to be built for urban community
27
Drug Treatment Court
•
•
•
•
•
•
Revolving doors on trafficking offenses and possession, need to address underlying issue of addiction
For serious addicts only, applies to drug offences and CC offences:
o Non violent offences
o Trafficking in small amounts of cocaine, heroin…
o Prostitution related offences
o Property related offences
Crown decides if allowed in, process for admission includes:
o Application
o Questionnaire
o Assessment
o Interview by TDTC judge
o Plead guilty to offence(s) [not diversion]
o Released on bail – conditions relate to program involvement
▪ Probationary period (30 days); if it's not working, guilty plea goes away but if they get through 30
days of the program the plea is locked
Intense program
o Individual and group counselling
o Random urine tests
o Weekly court attendances
▪ Understand that in beginning people will struggle; don’t sanction for use but sanction for lying
Graduation:
o Need to be conviction free for 3 months
o Need to be responding to treatment (abstinent for at least 3 months)
o Need stable housing
o Need work/school/volunteer/training in place
Majority of people don't graduate, most of the people in this program are the most serious addicts in the city and
often have some trauma, typically only take medium to high risk clients with a fair amount of criminal history
o If you don't graduate, the Crown can follow through with original sentence but generally amend sentence
E. TRIAL PROCESS
•
•
JUDGE ALONE:
o Crown can make an opening but don't have to
o Defense usually doesn't make an opening after Crown but can apply to
▪ Usually have to promise to call evidence if they will do that
o Crown calls witnesses and presents their entire case
▪ Examination in chief, cross exam, re exam of everyone
o When case is closed defense can bring application for directed verdict
o If not, they can decide to call evidence (same process as Crown)
o Crown can give reply evidence
o Closing submissions… if defense calls evidence they go first, and vice versa
JURY:
o Crown always opens for jury
o Defense frequently applies for opening at front end but may do back end
o Crown calls witnesses, etc.
o Only difference is at the end there is closing addresses
o If defense has called evidence they go first, then Crown, and vice versa
o No reply (Important for defense to decide to call evidence or not; determines who gets last say)
o Charges to the jury, and they return with verdict
▪ Can come back with questions, lawyers can make submissions to answer
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Judicial Pre-Trial
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•
•
Once accused has preliminary inquiry (or waives/does not request) they will be committed to stand trial in SCJ
Day determined depending on nature of the charges - complex charges only have one day of the month that
these charges are remanded to, and there is another assignment court that all the other matters are remanded to
o Post Jordan, people are paying attention to those adjournments, Crowns now have a book with the
availability of SCJ pre-trial dates, can be set up before first appearance at SCJ or just shortly after
On the first appearance in a Superior Court you have to appear, if client is in custody they will be remanded
o There are no video appearances, only in person for Superior Court (not the case at OCJ)
o If retained, you can file designation of counsel (client designating counsel to appear on their behalf)
o Everybody is robed in the Superior Court by default, although there are certain exceptions (in the Ontario
Court of Justice you are not permitted to be robed)
Geared towards resolution, so people turn their minds to the issues and deciding if the case needs to go to trial;
saves resources and also allows judge to say applications have no merit or chance of success and urge not to bring
o Judge can apply pressure to one party or another to concede issues or abandon if they don't have merit
o At least persuasive power to manage expectations → if SC judge tells Crown there is no reasonable
prospect of conviction Crown will speak to superiors and seriously consider what was said
▪ Can come back and respectfully disagree, but the opinions of judges really matter
Judge has five days to look at both forms in advance of the pre-trial conference… the consequences of not turning
your mind to the issues to be addressed at trial (failure to fill out forms) are significant, and addressed in (5)
o Basically you can't show up at trial bringing a motion, opposing counsel will object and it won't be heard,
absent very compelling circumstances you can't bring something new regardless of any prejudice
Judicial Pre-Trial Form
•
•
Form 17 re: Rule 28 of Criminal Proceedings, and s 625.1 of Code (has undergone many changes through years)
Wasn’t always required, could be 12-15 in queue; havoc in system because unclear when would be resolved, etc.
o Form devised by Durnam J to anticipate how long trials would take, to focus what was going to be done,
and to make sure that if a case will be resolved it will be resolved now, and not on the eve of the trial
Juries
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•
•
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S11(F): right to a jury trial if max penalty 5 years or more; roots in distrust of power and government
Today, it depends where pendulum is swinging socially and politically (i.e. fresh off the heels of strict conservative
government we might go judge alone, whereas with more liberal policies we might swing towards juries)
o Depends on judge and case as well (in overwhelming cases the accused's only hope might be a jury)
s 92(14) of Constitution Act gives power to the province to administer justice, includes making legislation around
juries; in Ontario that is the Juries Act, hand in hand with Criminal Code
S 626 of Code deals with the qualifications of the jury → in accordance with the laws of the province, no person
disqualified on the grounds of sex, etc.… tells us very little in terms of who can be a juror
o S 626.1 - any judge can empanel a jury (doesn't have to be the trial judge)
Juries Act → cannot have criminal record, be a judge/officer/court official or lawyer/student at law, or non citizen
Jury Selection
•
•
Need 12 jurors; can have alternatives (alternates will be sent home if they are all there by the end of the case)
o Not told that they can be excused so that they focus on the evidence
o Talisman clause allows judge to order deputy to go into the community and grab anyone who appears to
be the right age, not excused by the Juries Act, and bring them back to court
Stand Aside: member of a jury array who has requested an exemption but, instead, has been instructed by judge
to “stand by” until all other members of the jury array are first called and, therefore, might never be considered
o S 633 - judge has jurisdiction to stand aside a potential juror until go through panel
▪ Prosecutor used to have similar power until Bain, 1992
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Empanelling the Array
• Getting hundreds of people together to pick the jury, broader group from which select panels and then actual jury
o Must be randomly selected (more likely to get people from various backgrounds, concerned with
ensuring jury rolls are not tainted in any respect), must generally represent community
▪ PROCESS: Make jury roll → select panels randomly from roll from which juries will be selected
Empanelling the Jury
• S 631 - panel is brought into a large room and names are put in a drum and randomly selected
• S 632 allows judge to pre-screen jurors (often but not always in small groups) and exclude for hardship; personal
interest; relationship with parties; any other reason judge sees fit
o Some judges like to divide into twenty so can't learn from the successful excuses of others
• S 626.1 – judge in jury trial need not be judge who selected jury
• S 631(6) – judge can order publication ban on identities of jurors
Ontario
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•
•
•
(1) Prepare jury roll of the community - figure out who is eligible to serve and sending notices to people selected;
(2) Select names from jury roll to make up panels - all come to court on a certain day, put into different panels
(3) One or more panels used to select 12 people
Municipal enumeration provides names (if on reserve we used to use Federal data but stopped in 2000; since
then ad hoc process to send questionnaires to persons living on reserve)
Representation
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Scientology: Right to representative jury is NOT ABSOLUTE → process that is a means to select an impartial jury
Help achieve representation by random selection
o Cannot intentionally exclude distinctive group, cannot use exclusionary databases to form jury roles
Most people on reserve did not return the questionnaire and therefore were not part of the jury roles, return rate
in 2002 is 15% for Indigenous people, in 2008 it's at 10% (many potential reasons but lists are also wrong)
o 2007, the person in charge of putting together roles noticed and tried to address by sending out 50%
more rolls to reserves and talking to the band leaders, but still many people did not return
Kokopenace - Jury Act does not violate s 11(d) and 11(f) of Charter even though Indigenous persons are underrepresented on juries, rights not so broad so as to demand full representation
o SCC held: question is whether state provided fair opportunity for broad cross section to participate in jury
process - reasonable efforts to compile jury roll from lists that draw upon a broad cross section of society
and to deliver jury notices to those selected; when process is followed the jury roll will be representative
▪ 11(d) is limited to its effect on independence and impartiality, a problem with representativeness
that does not affect these is fine → arises through deliberate exclusion of a group or the
appearance of partiality, even if exclusion is not deliberate (form neither form existed here(
▪ 11(f) is broader, legitimizes jury's role as conscience of community and promotes trust in system,
the absence of representativeness will automatically undermine 11(f), but if it is unintentional
exclusion it is the quality of the state's effort with regards to the jury roll that is important
Challenge for Cause [ss 635-640]
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Two stage process: widespread bias exists in community and some jurors may be incapable of setting aside bias
o (a) establish air of reality to need question - labouring against a presumption that jurors are impartial
o (b) ask questions as permitted by trial judge, question must be approved in advance
Not a fishing expedition but not limited to exceptional circumstances - an important step in ensuring a fair trial
Can never ask question based on offence (i.e. are you biased because it’s a drug offence, violent offence, etc.)
Can always seek to ask a question about widespread biases if you have the evidence to show it exists
If allowed, need triers (i) - rotating triers is the norm unless defense asks for jurors to be excluded (Noureddine)
Jury selection is part of trial, failure to use rotating triers unless order under 640(2.1) is made voids conviction
o Two people selected as triers and cannot be jurors themselves; as people are selected as jurors they
replace the triers and this rotates (juror one becomes trier one, juror two trier two, juror three trier one)
30
Challenge for Pre-Trial Publicity
• Sherratt: to merely ask the question as to whether or not jurors could be biased based on what they've read you
need more than fact of reporting allegations, need to show there has been biased reporting
o Often requires: biased reporting, reporting on defendant’s bad character, speculation in media on
guilt/innocence of defendant, also consider timing of reports and how breadth of reporting
Challenge for Racial Bias
• Parks - interpreted as meaning that you had to call same social science evidence every time of challenge for cause
• Williams - evidence of wide spread bias enough for first hurdle, can take judicial notice of bias from other cases
• Type of questions permitted: would your ability to judge the evidence in this case without bias, prejudice or
partiality be affected by the fact that the person charged is a black accused?
o Short of being a white nationalist no one will admit this, plus biases are typically subconscious
• Hypothesis that the asking in and of itself can engender feelings of hatred or repulsion against defense and results
in more convictions according to at least one study, asking is actually counter productive
o Better thing to do would be to prep entire array about the question in advance and ask them privately
one by one, let them think about their response and engage in some introspection
Peremptory Challenge [s 634]
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•
•
Defendant and prosecution can excuse jurors for any cause whatsoever, but only a limited number
o First degree murder – 20
o Any offence where max penalty more than 5 years – 12
o Any other offence – 4 (5 year max or less)
o If co-accused – Crown gets sum of all accused (i.e. a murder with 3 accused, each accused has 20 and the
prosecution has 60)
o If judge wants alternates each party gets two extra challenges
▪ S 635 – defendant goes first – then alternate, registrar keeps track
Proper to challenge based on their job, name, address - not allowed to seek any other information (Latimer)
Concern that party will challenge jurors on racial lines - question of proof for biased challenges is impossible, and
even if you could how could you stop the defendant from doing that (different if prosecution is doing that)
o Gayle: Crown has a duty to make sure jury is impartial, representative, and competent, and must abide by
Charter; court should intervene if Crown's use of peremptory challenge is at odds with Charter
o Don't need to be justified but per Bouche it is inappropriate for Crown to seek conviction at any cost
Removal/Replacing Jurors
•
•
If before trial use s 632 (go to talismen, stand asides, or alternates) etc. because no evidence has been heard yet
If trial has begun use s 644 (can't replace jury with people who haven't heard the evidence)
o Make inquiry in absence of other jurors
o Can replace jurors before trial begins
o Trial must commence with 12 jurors
o Once heard evidence cannot replace
o If less than 10 jurors then mistrial - which is why judges want stand-by jurors
o Alternates hear all the evidence, stand asides are only there until the trial starts
Court Set Up
Witnesses
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•
•
The only way to get evidence to court is by way of a judicial order (witnesses, documents, etc.), usually takes the
form of a subpoena, and its contents etc. are governed by 697-708 of the Code
S 527 allows for a judge’s order to be obtained to be served on a jail to command someone in custody to come to
court and to return to place of detention after finished in courtroom
If someone comes to the judge has the jurisdiction to order them into the witness box but has to be basis
31
Adjournment
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•
•
•
Criminal courts have jurisdiction to adjourn but not on a whim, particularly if prosecution is seeking adjournment
Darville (1954) enumerated considerations in granting adjournment in the context of witness not showing up:
o (1) does the witness who is not in court on that day have material evidence to give;
o (2) is it likely that the witness will attend on the next occasion;
o (3) is the moving party guilty of any laches (unreasonable delay)?
Overriding concern is whether or not prejudice to opposing party can be compensated (esp. if accused in custody)
o Court may ask Crown to offer bail so the accused is not prejudiced by the adjournment, prejudice has
been substantially allayed and the court is likely to grant at least short adjournment
If adjournment is not granted and Crown can't prove case because of lack of evidence they will either withdraw or
arraign the accused, and the accused will be acquitted; balance throwing away cases and prejudice to accused
Security Concerns - Counsel Table
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•
Recommendation #86 of Inquiry… should be entitled to sit with counsel, should be referred to by name
o Some judges refer to them as the accused out of ease, others really work to use their names
Judges in Toronto are polarized on placement issue (GC) in light of the recommendation of the inquiry; current
state of the law is that it is within the discretion of trial judge to determine where accused sits
o AG generally holds that an accused in custody should not sit at counsel table, that's where the issues arise
Onus on accused (not in the case law) → defence discusses prejudice, inquiry recommendations, distraction, etc.
GC talks about the dock being the centre of the courtroom and this was true at one point, but not anymore →
often at the back or to the side, surrounded by plexiglass, some look like kennels with a series of prisoners docks
Security Concerns - Shackling
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•
•
McNeill: Court of Appeal court said every accused who comes before the court should presumptively appear
unfettered, and it is only if the prosecution can prove on a BOP that it is necessary to shackle that this will happen
o Rarely done today (i.e. no one makes a motion); depends on the practices of the jurisdiction → people in
Toronto are routinely uncuffed but in Oshawa they are never uncuffed as the policy of the courthouse
Brown - as a rule accused is not restrained because it may suggest to jury that judge thinks they are dangerous
and not to be trusted, also an affront to dignity and decorum of proceedings, can inhibit ability to communicated.
o Also found moral prejudice exists when a person of colour is brought into a courtroom in these kinds of
constraints, even if we say that the jury can disabuse themselves of any initial prejudice
o Ultimate decision must be made by the judge, cannot defer to the wishes of law enforcement officers
o Judge is entitled to take into account any misconduct etc.
To avoid wasting time, highlight this in Form 17 forms so prosecution turns their mind to it and bring application
o Otherwise they may seek an adjournment to get records, etc. (there is no straight procedure)
Other Issues
• S 46.1 - support people, s 46.2 - testimony behind a screen, or even out of the country
• Generally accused has the right to full examination and defense and cross examination but there are limits
• S 591 - governs the process and the power of the court to sever either counts or accused from an indictment
o Offense arising out of the same transaction ought to be tried together, and co-accused ought to be tried
together, generally speaking to avoid conflicting verdicts, which throws off the administration of justice
o Strong policy rationale for trying people and issues together, but when accused is charged with different
assaults against different complainants (just totally different crimes) these should be tried separately
Summary Conviction Trial
•
•
Summary conviction trials don't involve juries
Procedure governing begins at s 785, different interpretations and definitions in relation to this particular section
o S 800 says who can appear before a summary conviction court
o 800(2) gives students the ability to speak at summary conviction trial
o 800(2) puts into statute ability of accused to make full answer and defense…
32
Trial by Indictment
Jury Instructions
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•
•
Trial judges have to make sure the trial is fair to both sides
Although juries may be the trier of fact, the judge remains the trier of law
Judges will routinely instruct juries throughout the trial process
o In Watt's manual of jury instructions there are introductory, mid-trial, and final instructions
Beyond a Reasonable Doubt
Starr: BRD is an important part of the system. A reasonable doubt is not an imaginary, far fetched, or frivolous doubt. Not based on
sympathy for or prejudice against anyone in the trial. It is a doubt based on reason and common sense. Based on the evidence or lack
of evidence. Not enough to believe accused is probably or likely guilty - in those circumstances you must find accused not guilty. Proof
or probably or likely guilt is not proof of guilt BRD. But also nearly impossible to prove anything to a degree of absolute certainty and
Crown counsel is not required to do so. If at the end of the case based on all the evidence, or its absence, the credibility and reliability of
witnesses, you are not sure the accused committed the offence you should find not guilty.
• The burden of proof is an instruction given at the beginning and end, at least, in many different ways
• Recall bail cases, the presumption of innocence is also the golden thread that runs through the common law;
•
most fundamental tenet in a criminal trial is that the prosecution must prove guilt BRD
o Hand in hand with presumption of innocence is the concept of displacing that presumption
A doubt that is based on reason and common sense and logic, means that something might reasonably be true
o Lawyers can play with this knowing that the jury will be instructed: in the future will you be able to sleep
at night knowing that you did the right thing? That's the level of certainty you want
Opening Statements
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Beginning of the trial where accused is arraigned, true beginning where jury is placed in charge of the accused
Accused stands, registrar of the court reads the indictment and asks how the accused pleads
Prosecution makes an opening statement, describes what their case is and what evidence they will call
o Criminal Code doesn’t provide for any authority for Crown to make an opening statement but the practice
is so engrained that it is now a de facto right in the common law
o At 651(2) the defense's ability to make an opening statement is prescribed for; in Fatima Watt said 651(1)
absence to permit a contemporaneous defense opening is not fatal, but authorities support
contemporaneous openings especially also in issues where there is prosecutorial resistance to application
Jurors are better informed if they learn issues at the outset and what is not contested, apt to appreciate evidence,
less overwhelmed by detail, more likely to understand why so few questions are asked
o Helps jury focus and hit on the important issues in long trials, good tactical reasons
o Most defense lawyers don't do this, Grill always makes application to open contemporaneously
S 655 - accused may admit facts alleged against to dispense with proof; prosecution will resist this, don't want
accused to make an admission which prevents them from calling a strong emotional witness
o Contemporaneous opening and ability to make admissions go hand in hand
Examination
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•
Witnesses called after opening addresses; party calling first witness may only ask open ended questions, not
entitled to cross examine own witness or ask leading questions → opposing counsel may ask leading questions
Moving party entitled to re examine - restricted to explain/ clarify new facts or to rehabilitate witness credibility
o Can sometimes re-cross-examine after a re-examination (sur cross examination), but need permission
and can only be in relation to new things brought up in re examination
Expert Evidence (657.3)
• Special requirements for admission of expert evidence, governed by Code
• Prosecution has to give notice of intention to call and what the evidence will be through an expert report
• Accused has to give notice in terms of general area expert will testify in, and their CV, but not the exact nature of
the evidence they will be giving (allows prosecution to prepare in at least some way, for trial efficiency)
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Defense's Case
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•
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If at the end of the Crown's case, where you haven't brought a contemporaneous opening, the defense will
decide if they want to open to the jury - call evidence if any, and Crown calls reply evidence
Crown needs leave of the court to do so and it needs to be in relation to new matters raised by the defense
o If the Crown had the evidence at the beginning of the case and should have reasonably anticipated these
defenses the court will not allow Crown to call new evidence
o Also has to be related to evidence that's not collateral to main issues, like reliability
Often Crown brings most of the evidence and the defense would just be repeating the same thing
o Only really if you’re calling a lot of evidence and it will take some time, want to tell the jury what puzzle
will look like before they have all the pieces; if you’re only calling the accused it can look like coaching
Directed Verdict
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•
•
•
At common law, the accused can bring a motion for a directed verdict at the end of the Crown's case
Motion for directed verdict in front of a trial judge is the same test that applies to the preliminary inquiry:
o Whether or not the reasonable jury properly instructed could find the accused guilty
If you can convince trial judge the prosecution has failed to bring evidence in relation to a necessary element of
the offence you will be successful (ex. Mazlik brought no evidence in relation to his connection to the residence)
o Can bring it if you think it might work, but not where you would lose credibility with a frivolous motion
Very possible this could be thrown out at prelim, but there are good reasons strategically for the defense to wait,
and more often the issue is that the evidence is presented differently
Final Submissions
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•
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Defense goes first, if any of the accused have called evidence
If none of the accused have called evidence the Crown goes first
There is no right of reply in a closing address
Charge to the Jury
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•
Usually after pre-charge conference, judge asks counsel what they think should be in the charge
Jury typically gets a copy of the judge's charge (not of the Crown or defense's addresses) - booklet to explain the
law to the jury; can be overwhelming, can question value for the administration of justice
After the judge has charged the jury, will ask counsel if they have submissions and if they do and the judge is
convinced the judge will bring jury back in for further instructions
Juries inevitably have questions about evidence or law etc., they'll be called back in and recharged
If deadlocked, judge will exhort them, they are in the best position to call this than anyone because they are
hearing the evidence, tells them to listen to each other and try again (mistrial if no verdict is reached)
Motions at Trial Process
Agreed Statement of Fact
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•
•
Written document where certain facts are admitted and put to writing, filed as an exhibit at trial (most effective
at start); can get rid of a bunch of witnesses, narrows the trial a lot
Can help judge understand and respond to issue, but need to be sure you know what you’re agreeing to
o White: put together agreed statement of fact that asserted certain things and each lawyer had a different
interpretation of what was being agreed to because statement was sufficiently ambiguous
▪ Turn you mind to what you will argue in light of the statement and clarify with opposing party
Admission differ from agreed statement of fact, more fulsome (we agree on the following, we admit X Y Z)
Pre-Trial Motions
•
A lot of trials are resolved in pre-trial motions, outcome of motion will affect the trial; should discuss pretrial
motions at judicial pretrial when you are estimating time for trial, take into account what motions will be placed
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Motions Heard Before Trial Date
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11(b) Charter: tried in a reasonable time → if that has been violated the only remedy is a stay of proceedings
o Must be argued 60 days before trial in OCJ, no set time in SCJ but set by JPT judge well in advance of trial
(rule 27) , if the trial won't happen you should be able to give time to another case
Disclosure → defense can't prepare without disclosure or third party records, so must bring with enough time to
get material and incorporate into preparation (if you wait until date of trial you won't be able to proceed on time)
Severance (ss 589 and 590) of counts ( if you are charged with multiple things) and parties (if people are charged
together) → result is different trials, so must be brought well in advance of trial or else something will be delayed
o Joinder for defendants on different informations must be done in advance so they know when trial date is
Particulars (587) - not as important because of disclosure
Amending/quashing info (601)
Quashing committal to stand trial → if discharged Crown might apply for an order that it go back to prelim judge,
saying they erred by discharging defendant… Superior Court has no power to commit so need to go back to PTJ
o If defense thinks judge erred they will apply to quash well in advance of trial, if successful there is no trial
Garofoli - Cross-examination of affiant → ITO often contains privileged information and therefore redactions
when ITO is disclosed to defense, end up with complicated process on how to deal with these
o Garofoli applications to say that some of these redactions are unfair and should be dropped or, even if
they are fair, if there is not enough there to justify a warrant can ask for Step 6 to look at unredacted
o Need leave to cross examine affiant
▪ Can result in needing more time, changing the landscape of trial, etc.
Change of venue → lawyers might say publicity and bias has been so bad that there is no way this person can
have a fair trial in the same jurisdiction and the remedy they want is to move elsewhere
o Don't happen when judge alone because judges are presumed to be able to put this aside
o Rarely granted because general view is juries can do their job and just knowing about case is not enough
▪ Result is going elsewhere, need to find court time somewhere else and do it well in advance
▪ In vast majority of cases where publicity is a concern they go judge alone, but because murder
must have a jury unless Crown consents it is in those cases we see these applications
If Crown wants to call similar fact evidence that requires adding witnesses etc. that should be done in advance
Procedural Orders
• Often day of but sometimes slightly earlier
o Shackling not done until day of because you don't know if officers will be difficult about it until it happen)
o You might know some in advance but still argue the day of (like a publication ban in a sexual assault case)
• Publication bans of: evidence, identity of witness, identity of young person
o Some might be more contentious and need to be done ahead of time to give everyone notice
• Exclusion of witnesses (don't want witness's evidence tainted by someone else's) usually done at the start of trial
o Defendant has a constitutional right to be present at trial and hear evidence, cannot be cross-examined
on fact that they heard all Crown evidence but can be cross-examined on the order of defensive evidence
▪ Can never use someone's constitutional right against them, when it comes time for defense to
call evidence they can control the order of the witnesses they call and so always call client first
Pre-Trials Motions at Start of Trial
• Most Charter motions (some charter issues addressed after trial, i.e. lost evidence)
• Voluntariness
• Other suspect (need leave of the court to present another suspect, need air of reality to assertion)
• Scopelitti - often in a murder defendant will claim self defense, and in order to establish an air of reality to that
effect they will call evidence about the deceased being a bad guy, record of violence, etc.
o Because they aren't there to defend themselves you need to apply to the court to hear that evidence
• Some hearsay issues - may be dealt with mid trial as it arises but sometimes we know we'll need it (e.g. if the
witness is dead and you want their statement) - apply a few days ahead of time
• s 276 - application to cross examine complainant on prior sexual history (will change with Bill C-51)
• Screens for vulnerable witnesses, testimony by CCTV, or support person or dog
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Mid-Trial Motions
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•
Most hearsay issues - witnesses don't know the rules and often say something they ought not to have said
because someone else told it to them, or start talking about bad character of accused, deal with as they arise
Prejudicial v probative issues, some you know will happen but can't decide ahead of time, like…
o EXPERT EVIDENCE - experts are different from other witness because they're allowed to give their opinion
within their area of expertise (lay people aren't allowed to give opinions except in small discrete areas)
▪ Often scientists or social scientists with areas of knowledge outside legal sphere, judges and
lawyers can misuse or be lead astray, host of wrongful convictions based on expert evidence
• Voir dire to determine if they can testify, person seeking opinion evidence must establish
that person has the appropriate expertise, they are not biased, evidence is not otherwise
excluded, probative value outweighs prejudicial effect, and relevant to fact at issue
▪ When there is no jury the judge makes a ruling, where there is a jury issues like qualifications can
be dealt with in front of a jury issues like “is this even science?” are heard in their absence
• s 657.3 - NOTICE REQUIREMENTS
o NCR is a third plea, and this can come at three different points in the trial:
▪ (1) Defendant can plead they are NCR when put to their plea on arraignment - Crown can either
consent or say there will be a trial on this issue, but effectively conceding event occurred
▪ (2) Defendant can plead not guilty at trial but during course of trial they present evidence that
they did not have the necessary intention because of a mental illness, then Crown can raise NCR
• Crown cannot raise otherwise (Swain - unconstitutional for Crown to raise NCR unless
defendant puts it at issue because people are so biased against the mentally ill)
▪ (3) After a finding of guilty, bifurcated hearing - can then bring entrapment or NCR hearing
• If someone is found guilty either the Crown or the defense can raise it, then there is a
separate hearing about whether NCR applies
• Person raising the issue has the burden
How to Bring a Motion
•
•
•
Put it in writing and file it with the court, provide evidence, and file with enough time that opposing party can
respond and so you're not ambushing them - notice is the best way to make trials fair
Rules of Court - different courts have different rules, Ontario more broad and Superior more detailed
o Outlines what you need to file and when, are all online
Blom allows the court to consider prejudice and how it can be remedied, more often than not the remedy of not
allowing the motion is not the just remedy
o Average judge won't hold an accused complainant or witness accountable for a lawyer's mistake
The Voir Dire
•
•
If calling evidence on a motion you enter into a voir dire when evidence is presented and submissions are made
o This is not evidence at trial - unless all parties agree and tell the judge (not available for jury trial)
▪ Blended voir dire, evidence is part of trial proper if admissible and both parties consent
If you run a blended voir dire the Crown's case is being run blended but the defense's isn't, so normally the Crown
will call the police officers and their evidence relevant to the Charter issues all goes in
o Rules of evidence for trial apply
o Party bringing application calls evidence
o In OCJ or if in SCJ and no jury often hold blended voir dire and trial
F. SENTENCING
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•
Individualized process but appellate courts give general range of sentence, cannot go outside range unless unique
or exceptional circumstances justify it (McDonnell)
General rules around sentencing found in ss 716-751 of code: Parliament has dictated general rules about
sentencing, when alternative measures can be used, the use of police records
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Purposes and Principles of Sentencing
718: Protect society, contribute to respect for the law, and maintenance of a just, peaceful
and safe society through denunciation, deterrence, separation of offender from society,
rehabilitation, reparations, and/or promoting personal responsibility
(R v Priest - initial sentence intended to deter crime in community)
Core Principles
Proportionality: 718.1, sentence must be proportionate to the gravity of the offence and
the degree of responsibility of the offender (R v Priest - sentence was too harsh)
Parity: 718.2(b) sentence similar to similar offenders, offences, circumstances
Restraint: 718.2(d) no jail if less restrictive sanctions may be appropriate
Aboriginal Offenders: 718.2(e) all available, reasonable, sanctions other than
imprisonment considered for all offenders, especially Aboriginal offenders
Secondary Principles
718.2(a) aggravating and mitigating factors considered
718.2(c) if combining sentences, combined sentence shouldn’t be too long or too harsh
Sentencing Indigenous Offenders
Gladue Principles
Judge must consider (a) systemic or background factors [through judicial notice and pre(guidelines for application sentencing report] and (b) culturally appropriate sentencing and sanctions
of 718.2(e))
Gladue Report is a right of all Indigenous offenders, often not exercised
R v Ipeelee: Gladue Principles apply for all crimes, regardless of nature or severity (ex LTO),
offenders need not establish direct causal link between background factors and crime
Rationales for Gladue
718.2(e) is remedial in nature, in recognition of diverse approaches to justice, to
ameliorate overrepresentation in prison, and to encourage appropriate sanctions
Criticisms & responses (In Sentencing is not the answer - need to address social and economic conditions first
R v Ipeelee)
This accounts to a race-based discount
Contrary to parity principle (718.2(b))
Rothstein dissent indicates different views about how Gladue should be applied and appropriateness more generally
Purposes
Overarching Principle (718.1)
•
•
•
Sentence imposed must be proportionate to gravity of offence and moral culpability of the offender (Ipeelee)
Problem when the mandatory minimum sentence is greater than what it ought to be according to this
o Parliament could presumably add exception for gravity of offence and moral culpability of offender where
judge has to explain why exceptional circumstances exist in that case
▪ Strong message but leaves room for rare individuals who fall out of that range
It's an eye for an eye, punishment should never be more grave than the crime and the harm caused
Other Principles
• 718.2 - non-exhaustive list of aggravating or mitigating factors
• Totality: multiple sentences for separate offences run consecutively; total sentence shouldn’t be crushing on the
individual, judge should consider all appropriate sentences and take last sober look, can reduce sentence
o Take into account that different offences are committed, and also the other principles of sentencing
• Restraint (718.2(e)): all sentences other than imprisonment must be considered, especially for Aboriginal accused
o Batisse, Priest: restraint principle requires sentencing judge consider all sanctions apart from
incarceration and where incarceration must be imposed, the term should be as short as possible and
tailored to the individual circumstances of the accused
▪ We shouldn’t be gratuitous with sentencing, especially for first time offenders
• Aggravating and Mitigating Factors (718.2) must be outlined, calling evidence is almost always necessary where
accused admits elements of offence but not the aggravating factors (Gardiner)
• If in dispute crown must prove a factor beyond a reasonable doubt because it will affect sentencing
o S 724(3) all other disputed facts must be proved by party seeking to rely on the fact on a BOP
• Statutory aggravating factors s 718.2
37
Section 725
•
•
•
Allows sentencing court to consider facts of other offences of outstanding charges
Allows sentencing court to consider facts forming of the circumstances of the offence that could constitute a
basis for a separate charge
o Convoluted and rarely made reference to, works where an accused is charged with seven counts of
trafficking but only plead guilty to one, Crown reads facts in relation to other incidents
Also allows the court to take into account completely separate and different offences accused has committed that
they might be on bail for or haven't even been arrested for
Organizations
•
•
•
Also subject to criminal sanctions (see 718.2(1))
Deterrence is the motivating factor
Typically fines obviously but can receive probation orders
Guilty Plea
•
•
•
•
Must be sufficient facts before the court that are at least substantially correct before court will accept guilty plea
If not they must strike it, set trial date, or go to another judge to see if the disagree
Usually prosecutor will read in the facts when accused pleads guilty, judge will turn to defense for confirmation
o Don't have to agree to everything but at least substantial elements (substantially correct) - agree that the
essential elements of the offence can be proven
▪ Guilty pleas are trials where all essential elements of offence have been admitted
Defense is allowed to call evidence as well, 723(1) - codification of common law procedures of sentencing, court
has wide powers to regulate proceeding and allows for introduction of hearsay evidence, allows for submissions…
o These things never happen, usually a fait accomplis
Plea Inquiry
• Before any guilty plea may be made the trial judge will conduct pre-plea inquiry to ensure guilty plea is informed
o S 606 - NO PLEA CAN BE TAKEN WITHOUT A PLEA INQUIRY – Court can only accept a guilty plea if satisfied
that accused is making plea voluntarily and [etc.]
• Failure to inquire does not affect validity of the plea, but its an affront to the process if people are found guilty of
crimes they didn’t commit and this is a way we avoid this
o Situations where people plead guilty to get out of jail or to make sure charges are withdrawn against their
spouse, or for some other reason that doesn't have to do with guilt
• Sometimes formally, depends on the judge - should include the content of 606.1 and more:
o You want to plead guilty?
o You understand the charges against you?
o Your decision to plead guilty is free & voluntary? No improper threats or promises? You are not being
improperly pressured to plead guilty?
o You understand that by pleading guilty you are giving up your right to a trial?
o You understand that a guilty plea is an admission of the essential elements of the offence(s) with which
you are charged?
o Are you aware of the Crown position on sentence?
o You understand that I am not bound by the positions taken by counsel with respect to your sentence?
o You understand that upon conviction for this offence there is [mandatory minimum sentence, driving
prohibition, driving suspension, firearm prohibition, DNA order, sex offender registry order, immigration
consequences etc.]?
o I am satisfied that the accused understands the nature & consequences of the plea & can be arraigned.
• If court is satisfied they will have accused arraigned and take guilty plea
• When someone tries to quash guilty plea there are often allegations that lawyer didn’t act properly so important
for defense lawyers to make a record of these instructions
38
Lesser Included Offences
• s 662 can plead guilty to or be found guilty of lesser included offences (ex. assault causing bodily and assault)
o Judges and juries can make these decisions, juries need to be informed of all lesser included offences
The Joint Submission
•
•
•
Guilty pleas are often the result of negotiation between prosecution and defense
Trial judge – not bound by it but may only interfere with it if:
o Outside range
o Wrong in law
o Would be contrary to public interest
▪ If none of those are present and the judge decides to sentence offender the way they see fit, it
will be overturned at court of appeal
Want predictability in the system, if people who are pleading guilty don't think they are getting a sure thing they
will stop pleading guilty and it will grind the system to a halt - need good reason not to accept a joint submission
The Pre Sentence Report (s 721)
•
•
Pre-sentence report is prepared by a probation officer with an aim to inform the court about the offender, his/her
needs and ability/willingness to comply with court orders
o Out of custody – takes about 6 weeks, in custody – 10 days
Can be valuable for court depending on who writes it, their experience, how they feel about the accused - some
defense lawyers resist filing these orders from probation officers and try to guide this themselves
o Time consuming task and lawyers don't always have ability to do that - duty counsel certainly does not
The Gladue Report
• Prepared by staff at Aboriginal Legal Services of Toronto
• Gives aboriginal background of offender
• Highlights historical/systemic factors affecting not just offender but his/her family
• Very helpful to court and often to offender
Types of Sentences
•
•
•
Non-Custodial in Criminal Code:
o Discharge – absolute and conditional
o Suspended sentence and probation
o Fine (s 734)
Penal in criminal code
o Reformatory sentence
o Reformatory sentence + (a fine or probation)
o Conditional sentence + (fine or probation)
o Penitentiary sentence
▪ 2 years in penitentiary can get probation, 2 years + a day you cannot
Restitution at 738-9
The Discharge (s 730)
• Not a criminal record - not a conviction for any offence, automatic pardon after set period of time
o Absolute discharge without conditions and consequence, expunged from record after one year
o Conditional discharge depends on completing probationary term, then discharge becomes permanent
▪ Remains on the record longer than an absolute discharge → expunged after three years
• In practice CPIC is more interested in updating criminal offences than taking things off
• Court considers if it is in the interest of the accused (i.e. if it wouldn't assist in rehabilitation or deter them) and
would it be contrary to the public interest (this is more important, usually where the fight is)
o Not available if max sentence by statute is 14 years or more; not available if min sentence
39
Suspended Sentence (s 731)
• Criminal record, no jail - where there are no minimums the court can suspend and recommend released on
probation, criminal record but no jail
• If breached accused can be resentenced (never happens), instead charged and sentenced for breach
Probation Terms
• Can be imposed in addition to fine or custodial disposition of two years or less, 732.1
• Three mandatory conditions, judge may order optional conditions under 732.2
o Must keep peace and good behaviour
o Abstain from communication with victims, witnesses, go to specified places, etc.
o Appear before court when required and notify court/probation officer of change of name, address, job
▪ Many optional conditions, not exhaustive but many listed, common terms:
• Reside at; No contact; Attend counselling; Sign releases; Boundary restrictions
• Any term imposed must be for rehab purposes.
• Any term imposed must be connected to offence
• Cannot impose treatment terms
• Cannot force to take medication
Reformatory Sentence
• 2 years less a day
• Can also give probation or fine but not both (i.e. not jail + probation + fine)
• Reformatories - are all max security except for speciality ones like
o Ontario Correctional Institute, St. Lawrence Valley, Algoma
▪ Judge can make recommendations to go to these places but they are just recommendations
Intermittent Sentence (s 732)
• Only available if 90 days or less, if second sentence takes over 90 days it converts to straight time
• Usually allowed for reasons of childcare or employment
Conditional Sentence (s 742)
• Reformatory sentence served in community, brought in 1996 as panacea for filled jails but slowly clawed back
• Proulx: conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous
offenders, offenders serve a sentence under strict surveillance in the community instead of going to prison
o Liberty constrained by conditions in s 742.3; in case of breach offender is brought before a judge (742.6)
o If offender cannot provide a reasonable excuse for breaching conditions, judge may order him or her to
serve the remainder of the sentence in jail
o Because it is served in the community, it will generally be more effective in terms of rehabilitation,
reparations, and promotion of a sense of responsibility in the offender
o Also a punitive sanction capable of achieving the objectives of denunciation and deterrence
• 742.1 of the Code lists six criteria court must consider in deciding whether to impose a conditional sentence:
o (1) offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
o (2) the offender must not be convicted of an offence that is statutorily barred from the imposition of a
conditional sentence. Ex. conditional sentence not available for a serious personal injury offence – which
is defined in s.752 of the criminal code as an indictable offence involving the use of violence or attempted
use of violence or an indictable conduct endangering or likely to endanger the life or safety of another
person or likely to inflict severe psychological damage upon another person or indictable sexual offence…;
o (3) the offender must not be convicted of a terrorism offence or a criminal organization offence
prosecuted by indictment and punishable by a maximum of ten years or more of imprisonment
o (4) the court must impose a term of imprisonment of less than two years;
o (5) safety of community would not be endangered by offender serving sentence in the community; and
o (6) a conditional sentence would be consistent with the fundamental purpose and principles of
sentencing prescribed in ss 718 to 718.2 of the Criminal Code.
40
Penitentiary Sentence
• 2 years or more, if given a 2 year sentence judge can give probation but not if 2 years plus a day
• Different security levels
• Consecutive vs concurrent sentences - rule of thumb is that separate delicts require consecutive sentences, but
offences that form part of the same transaction can be sentenced concurrently
o 719(1) - time at large from term of imprisonment - sentence commences when it is imposed
Ancillary Orders
• S 109 AND 110 - firearm prohibition orders (109 is mandatory and 110 is discretionary) - court will usually impose
for many offences especially if offence was violent, even if weapon was not used
• DNA - some offences have mandatory DNA order, some are considered second designated offences where court
has discretion not to impose (court might not order for lesser offences but considered akin to fingerprint now)
• Free standing restitution
• Forfeiture orders
• Peace bonds 810
Pre-Trial Custody (s 719)
•
•
Court can consider any time in custody to limit sentence
Used to be 2:1 (two days in prison for every one in custody) but changed to 1:1 to a maximum of 1.5:1 in 2008
o 1:1 has been held to be unconstitutional, so de facto is 1.5:1
Specialty Plea Courts
1.
2.
3.
4.
5.
GUILTY PLEA COURT
MENTAL HEALTH COURT
GLADUE COURT
DRUG TREATMENT COURT
DOMESTIC VIOLENCE COURT
Crown Actions on Guilty Plea
•
•
•
•
•
•
Submit photos of injuries
Submit criminal record
If related offences point them out
Victim impact statements (s 722)
Know range of sentences
Articulate which objectives of sentencing are at play and why
o Sometimes even if offence and gravity are admitted Crown will want judges to look at image, judges
object to this but Crown does it for effect
Defence Actions on Guilty Plea
•
•
•
•
•
•
•
•
Interview your client → an obstruction of justice to allow accused to submit guilty plea if you know they are doing
it for reasons other than guilt
Interview secondary sources
Get psychiatric work up
Get treatment information
Reference letters
Know range of sentence normally imposed
Justify the sentence you want → had it gone to trial, show how remorseful they are, that can be very powerful if
there are defenses they could have used but plead guilty anyway
Highlight weakness in crown’s case at trial
41
Stages to Discuss Plea
• At bail stage
• In plea court when ever you want
• At crown pre-trial
• At JPT
• On day of trial/prelim
• ½ way through the trial
G. Appeals
•
Neutral lenses for rehabilitation, recognize that some of our markers of rehabilitation are founded on privilege
o Remorsefulness
o Insight into behaviour (leads to change)
o Are they willing to work with community agencies available to them (as long as culturally appropriate)
o Ability to actually identify change, what it might look like for them
Summary Conviction (ss 812-840)
•
•
•
Every person in the justice system has the right to review the decision by the trial judge
Election impacts where appeal is heard - Summary conviction appeals are always heard by the Superior Court
S 813 sets out who can appeal - broad right to appeal
o Used to be close to a trial de novo, didn't call new evidence but judge would replace decisions; more
structured now, rules about how to do and who can appeal etc.
How to Appeal
•
•
•
•
•
•
•
File notice of appeal within 30 days of when matter is finished (i.e. from sentence or from finding of not guilty)
Extension of time to file may be granted by the court
o Defense more likely to get one because they don't know the law
o Usually Superior Court is more lenient than Court of Appeal
Can include stays: e.g. impaired driving results in an automatic one year driving prohibition as minimum penalty,
when they file appeal will often file application to stay driving prohibition
o Often granted, meaning they can drive until the appeal is heard o Can ask for other stays like bail pending appeal same day as sentence, stays of conviction
Must order transcript of lower court proceedings and file with court
If defendant is appealing they have to pay, if Crown is appealing they pay
o Legally cover the cost - in Superior Court more often than not you have a set date court, appellant has to
file factum 22 days before and respondent no later than 7 days before
Appellant must file factum (where date set before factum filed) 22 days before appeal is being set to be heard
Respondent must file factum 15 days after receipt of appellant factum and not later than 7 days before hearing
Release Pending Appeal (s 816)
• Basis to release same as basis to release on indictable appeals
Indictable Appeals
•
Heard in the Court of Appeal, no matter where election at trial (superior court appeal jurisdiction is limited)
o Statutory court, all powers outlined in the criminal code
Defense Appeals (s 675)
•
Accused has right to appeal conviction on following basis:
o Question of law
o Question of fact or mixed fact and law
o Any other ground with leave of the court
42
▪
•
Basically you can just appeal, even if you can argue judge got evidence appeal will be granted, our
system believes in right of review and code gives defendant broadest appeal rights imaginable
Less appeal rights when it comes to sentences - accused can appeal sentence with leave of the court (per Code)
o In practice, court doesn't want two stage process and combines leave to appeal sentence and sentence
appeal, you ask for leave to appeal sentence and argue for appeal in the same factum
o Almost always grant leave to appeal but may deny sentence appeal because they've already heard it
▪ Appeal conviction and seeking leave to appeal sentence. Files factum with reasons for both
appeals. Court of appeal always has to give reasons for denying or granting an appeal (can be
short). If they are denying the conviction appeal they will outline errors alleged, why there were
none, why dismissed. Then turn to sentence appeal, if they are going to deny it they will say leave
to appeal sentence is granted but sentence appeal is denied after giving reasons.
- Give reason for everything except for why they will grant leave to appeal sentence
Indictable Crown Appeals (s 676)
•
•
•
•
Much more restricted than defense, can appeal acquittal or NCR (basically any verdict contrary to what they
asked for) on question of law alone
Has led to a host of appellate decisions about when a mistake of fact can become an error of law
o Would think that judge getting evidence wrong is a mistake of fact, but finding of not guilt because of
wrong facts is unjust, so there are cases where errors of facts can become errors in law
Misapprehending evidence which on its face sounds like a mistake of fact is actually a legal error
o Though it looks like they have less room to appeal, the way mistake of fact is defined is so narrow that
they can appeal most things because you can transfer almost any factual error to legal error
Can appeal sentence with leave of the court
Process
•
•
•
•
•
Notice of appeal must be served and filed in accordance with rules (30 days), judge can extend time if appeal is
not frivolous and always intended to appeal
o Anyone can appeal by right but lose that right after 30 days, so if there is no merit you are denied
o Will have to file an affidavit or merit with errors of judge, or charge to jury, or reasons for judgments
along with affidavit so court deciding leave application can assess the merits by seeing the judges reasons
▪ Need not be an overwhelming case for review, the test isn't that high - not hearing the whole
appeal, may not have all the transcripts - just a threshold test, need to establish SOME merit
Intention requirement prevents appeals based on unanticipated consequences of conviction, we need finality
o Usually will file an affidavit that you didn't know you could appeal, or you were in jail and traumatized,
couldn't get a hold of lawyer, etc. something to explain why you didn't get on this in time
▪ Generally if you are only a month or so out the Crown will consent, but if a year they might not
▪ ASIDE: if self-rep you can get forms in jail, inmate appeals by volunteers, mechanism set up
Then consider if you need to deal with sentence, you want to seek bail pending appeal probably
Appellant must order and file transcripts
o Appeal date not set until appellant's factum filed
o Appeal deemed perfected once appellants factum filed and court will give date
Respondent factums must be filed no later than 10 days before the week in which the appeal is heard
Release Pending Appeal (s 679)
• Must show appeal has some merit (also done by affidavit of merit by lawyer) and must show accused is releasable
(will surrender when required, detention not necessary in public interest)
• Applicant is no longer presumed innocent
• Appellate court also has jurisdiction to suspend prohibition orders (i.e. a driving prohibition) pending appeal
• Court of Appeal almost never calls sureties, rely on affidavit
• Process: file notice of appeal, get date for bail pending appeal, file affidavit of merit outlining legal opinion of
grounds for appeal, affidavit from sureties, affidavit from applicant, argued in front of single member of OCA
43
Fresh Evidence and the Appeal (Palmer)
•
•
•
•
Asking for fresh evidence indicates the trial was fine except that an important piece of evidence was missed
Normally appeal only includes trial transcripts and exhibits, can introduce fresh evidence in limited circumstances:
ask was this avail at trial? If it was not, was trial lawyer diligent or not in getting it? Would it have the verdict?
o Not available at trial (explain why)
o Miscarriage of justice
▪ ONCA may consider including fresh evidence if it was available at trial but its exclusion resulted in
a miscarriage of justice (i.e. a false finding of guilt)
o Ineffective assistance of counsel allegations
▪ Normally this argument will fail, court will find you/your lawyer made a tactical decision not to
include certain evidence and you don’t get another kick at the can because that tactic failed
Usually introduced by affidavit but opposite side gets opportunity to cross-examine (usually takes place in an
examiners office and not in open court)
ONCA rarely hears evidence in their courts – lawyers instead file affidavits of what that evidence is and set up
discovery time (resembles civil procedure more than criminal in that respect)
Not Available at Trial
•
Book time in examiner’s office and the exam of the evidence takes place there and filed to court; take package of
fresh evidence (affidavit and cross-exam transcripts, along with all trial transcripts) then write factum
o Include:
▪ Why did not have at trial? What diligent lawyer did/not do or how come to light now/why? How
this evidence is credible, reliable? and; How affect the verdict?
o Opposing side will write factum either:
▪ Contesting evidence; or
▪ Likely accepting this fresh but: Not affect verdict or Not credible or Not reliable and therefore not
affect verdict; Argument then becomes usefulness of evidence and how not affect trial
Ineffective Assistance of Counsel Allegations
•
•
•
•
•
ONCA has a process to address issue of in assistance of counsel claims, recognize claims are often unfounded,
defendant’s lawyer has to give notice to the trial lawyer of the allegations so they can respond
If you want to advance a claim that you told your lawyer something and they didn't do it you have to waive
solicitor client privilege on those issues
o Some debate about how much is waived, by and large try to limit but often talking about entire conduct
of defense and so have to waive all of it
Trial lawyer can file own affidavit to defend themselves (NB: trial lawyer is a witness for the Crown unless they
concede that they messed up, and then the become a witness for the defense)
Appellant also writes affidavit outlining position and everyone goes to examiner’s office where appellant is
crossed about their allegations (by Crown) and lawyer crossed if they want to defend themselves (by defense)
Test for being ineffective is high that even a really bad lawyer will likely not be found negligent, Court of Appeal
may find a mistake but not one bad enough to have interfered with trial
o Evidence has to be missed not because of tactical decision but because they failed to look into it
Powers of Court of Appeal (s 686)
•
•
Can allow appeal from conviction/NCR where
o Unreasonable
o Error of law
o Miscarriage of justice
Can deny appeal where
o No error in law
o Error in law but verdict would have been the same (some errors in law are pretty minor)
o While not properly convicted on one count was properly convicted on other counts
44
Court Powers on Defense Appeal
•
•
•
•
•
•
Quash conviction and either order new trial or order an acquittal be entered
o Sometimes you will need new evidence to know what would have happened if the error was corrected
o If verdict is unreasonable and they were found guilty the only viable remedy on appeal is an acquittal,
makes no sense to order a new trial
Some errors of law lead to the court finding that there is now no evidence which will also lead to an acquittal
o i.e. if only issue at trial was s 8 and excluding gun, if appeal finds a violation that trial didn't and evidence
ought to be excluded there is now no evidence and they will enter an acquittal
o If they decide the judge found no violation and therefore did not go through 24(2) analysis and there isn't
therefore evidence to decide it here they can order a new trial on that issue
In an error of law, more often than not a new trial will be ordered because don’t know the impact on the ultimate
finding of guilt if there was no error
If the verdict was unreasonable always an acquittal
If error is something that it renders a verdict impossible will enter acquittal
May also enter a stay for Charter violation if there is a proper record for it and its viewed as appropriate outcome
Partial Appeals
• Where court finds conviction improper on one count but proper and lawful on others they may substitute the
verdict originally given for proper verdict and either impose proper sentence themselves or send back
Court Powers on Crown Appeals
•
If appeal from acquittal granted court may
o Order a new trial or
o Except where verdict is that of a judge and jury enter a verdict of guilty on the count that should have
been convicted but for the error in law and either pass sentence or send back to trial judge to sentence
Sentence Appeals
•
Court shall consider the fitness of the sentence and may on such evidence it sees fit to receive or require
o Vary the sentence
o Dismiss the appeal
Other Appeals
• Highway traffic, trespass, bylaws, etc. - provincial or municipal trials are heard by Justice of the Peace
• Appeals go to the Ontario Court of Justice; appeal from Court of Justice goes to Court of Appeal (skip SCJ)
o Need leave of Court of Appeal, argued before a single judge, and if granted appeal is argued before panel
• Summary conviction appeals to Superior Court, then appeal from SC to Court of Appeal with leave
Supreme Court of Canada
•
•
Appeal from conviction allowed on an error of law as of right if a judge on Court of Appeal dissents (right to
appeal if dissent), otherwise need leave to appeal but only on question of law
o Leave to SCC is hard, don’t care about frivolity alone - also care about whether it is of national significance
o Even if you can identify error SCC may still reject it, when you prepare your leave application you have to
identify why it matters nationally (e.g. if there are conflicting decisions across the country or this impacts
women's privacy rights at the forefront of politics right not)
Attorney General may appeal if there is a dissent in the Court of Appeal or if leave granted on a question of law
45
Contents
Introduction to Police Powers ............................................................................................................................................... 48
R v Waterfield (1963) - Ashworth, UK ............................................................................................................................... 48
R v Clayton (2007) - Abella ................................................................................................................................................ 48
R v Simpson (1993) - Doherty, ONCA ................................................................................................................................ 48
R v Mann (2004) - Iacobucci .............................................................................................................................................. 49
R v Grant (2009) - McLachlin and Charron ........................................................................................................................ 49
R v Suberu (2009) - McLachlin and Charron ...................................................................................................................... 49
Police Power to Search .......................................................................................................................................................... 50
Hunter v Southam (1984) - Dickson .................................................................................................................................. 50
R v Caslake (1998) - McLachlin .......................................................................................................................................... 50
Cloutier v Langlois (1990) .................................................................................................................................................. 50
R v MacDonald (2014) - LeBel ........................................................................................................................................... 51
R v Lee (2017) - Weiler, ONCA ........................................................................................................................................... 51
R v Peterkin (2015) - Watt, ONCA ...................................................................................................................................... 51
R v Golden (2001) - Iacobucci ............................................................................................................................................ 51
R v Aucoin (2012) - Moldaver ............................................................................................................................................ 52
R v Wills (1992) [Doherty, ONCA] ...................................................................................................................................... 52
R v White (2015) - Huscroft, ONCA.................................................................................................................................... 52
Search Warrants .................................................................................................................................................................... 52
R v Garofoli (1990) - Sopinka ............................................................................................................................................. 52
R v Debot (1989) - Lamer................................................................................................................................................... 53
R v Godoy (1999) [Lamer].................................................................................................................................................. 53
Cyber Searching..................................................................................................................................................................... 54
R v Vu (2013) - Cromwell ................................................................................................................................................... 54
R v Spencer (2014) - Cromwell .......................................................................................................................................... 54
R v TELUS (2013) [Abella] .................................................................................................................................................. 54
R v Fearon (2014) .............................................................................................................................................................. 55
R v Marakah (2017) - McLachlin ........................................................................................................................................ 55
Arrest..................................................................................................................................................................................... 56
R v Storrey (1990) - Cory ................................................................................................................................................... 56
R v Feeney (1997) - Sopinka .............................................................................................................................................. 56
Interrogations ........................................................................................................................................................................ 56
R v Oickle (2000) - Iacobucci.............................................................................................................................................. 56
R v Singh (2007) - Charron ................................................................................................................................................. 57
R v Sinclair (2010) - McLachlin and Charron ...................................................................................................................... 57
46
R v Hart (2014) - Moldaver ................................................................................................................................................ 58
Intake and Release Pending Trial ........................................................................................................................................... 58
R v Hudson (2011) - Trotter, OSCJ. .................................................................................................................................... 58
R v Hall (2002) - McLachlin ................................................................................................................................................ 59
R v Villota (2002) - Hill, OSCJ.............................................................................................................................................. 59
R v Antic (2017) - Wagner.................................................................................................................................................. 59
R v Tunney (2018) - Di Luca, OSCJ ..................................................................................................................................... 60
Preliminary Inquiry ................................................................................................................................................................ 60
R v Arcuri (2001) - McLachlin............................................................................................................................................. 60
R v Munoz (2006) - Ducharme, OSCJ ................................................................................................................................. 61
Disclosure Motions and Third Party ...................................................................................................................................... 61
R v Stinchcombe (1991) - Sopinka ..................................................................................................................................... 61
R v McNeil (2009) - Charron .............................................................................................................................................. 62
R v O'Connor (1995) - L'Heureux-Dube ............................................................................................................................. 62
R v Quesnelle (2014) - Karakatsanis .................................................................................................................................. 62
Pleas and Specialty Courts ..................................................................................................................................................... 63
R v Gladue (1999) - Cory and Iacobuccis ........................................................................................................................... 63
R v Ipeelee (2012) .............................................................................................................................................................. 63
R v Swain (1991) - Lamer ................................................................................................................................................... 64
Superior Court, Pre-Trial Process, JPTs, Introduction to Jury Selection ................................................................................. 64
R v Blom (2002) - Abella, OCA ........................................................................................................................................... 64
Jury Selection ........................................................................................................................................................................ 64
R v Parks (1993) - OCA ....................................................................................................................................................... 64
Trial Process .......................................................................................................................................................................... 65
R v Fatima (2006) - Watt, OSCJ .......................................................................................................................................... 65
R v McNeill (1996) - OCA ................................................................................................................................................... 65
R v GC (2013) ..................................................................................................................................................................... 65
Sentencing ............................................................................................................................................................................. 66
R v Gardiner (1982) ........................................................................................................................................................... 66
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Cases
Introduction to Police Powers
R v Waterfield (1963) - Ashworth, UK
Facts: Lynn drove Waterfield’s car into a wall. Police wanted to examine car (was connected to a crime committed earlier
that day) but Waterfield told Lynn to drive the car away because the police had no right to impound it. Lynn reverse and
made slight contact with PCB and then drove at PCW on Lynn’s advice. Lynn was charged with dangerous driving and
assaulting PCW in due execution of his duty and dangerous driving, and Waterfield was charged with counselling Lynn to
commit assault and inciting him to drive dangerously.
Issue: Was PCW executing his duties as a constable in attempting to detain the car? Were the police entitled to examine
the car without making a charge or an arrest?
Result: Appeals against the convictions of assault allowed.
Reasons: Police were not acting in due execution of their duty at common law, since their general duty as police to
preserve evidence for use in court did not authorize them to prevent the car’s removal. The Road Traffic Act did not
confer statutory power to detain a car when it has already been established that the police have no right to detain.
Ratio: The general duty of police to prevent/investigate crime is limited when it involves interference with the person or
property of a private person.
Waterfield test (ancillary power doctrine): police conduct that interferes with individual liberty must (a) fall within the
general scope of statutory or common law police powers and (b) be a justifiable use of powers associated with that duty.
R v Clayton (2007) - Abella
Facts: 911 call identified group of men flaunting handguns and described cars. Police set up surveillance and stopped a car
(which didn’t match the description) with Farmer and Clayton (wearing gloves). Both initially refused to leave the car.
Farmer stepped out first and was searched. Clayton ran but was quickly subdued and found with a loaded fun. Trial judge
held initial stop was lawful but further detention and search violated ss 8 and 9, but that the nature of the breaches were
reasonable. Both convicted of carrying a concealed weapon and possessing a loading prohibited firearm.
Issue: Was the initial detention of the respondents by way of a roadblock of all vehicles (irrespective of the type of
vehicle) constitutional?
Result: Appeal should be allowed and the convictions should be restored. Police lawfully exercised their common law
powers when they detained and searched accused.
Reasons: If police powers interfere with Charter, powers must: exist at common law, authorize interference with Charter,
and be authorized under s 1. Police have common law power to stop vehicles to question the occupants. Accused were
arbitrarily detained under s 9 but protecting society from guns is a pressing and substantial public purpose and a blockade
is minimally impairing, and therefore this constitutes a reasonable limit under s 1. Searches incident to an investigative
detention can be justified in the presence of safety risk; did not violate s 8 because police had sufficient suspicion.
Ratio: Waterfield modification for Charter claims: (a) does the power claimed by the police exist at common law; (b) does
the common law power authorize police interference with Charter rights; (c) can the interference be authorized under s.1
of the Charter. Police powers must also be exercised reasonably in the totality of the circumstances
R v Simpson (1993) - Doherty, ONCA
Facts: Police patrolled area by a suspected crack house and observed the accused leave with a woman, and followed and
stopped them based solely on that. Accused indicated he had previously been in trouble “for theft and a knife”. Officer
noticed a bulge in accused’s pant pocket, touched it, asked accused to remove it. Turned out to be a baggie of cocaine,
accused charge with possession for purpose of trafficking.
Issue: Was the detention a justifiable exercise of police powers?
Result: Appeal should be allowed. The detention was both unlawful and arbitrary.
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Reasons: Officer admitted stop was to develop grounds to arrest for drug-related offences by questioning/looking around
vehicle. Detention not authorized under statute (Highway Traffic Act confers power to stop a car to enforce driving laws
and promote safety). Detention not authorized by common law (no articulable cause, detention was based on information
of unknown age told to another officer; no good reason to believe information was reliable or to suspect accused).
Ratio: In the absence of statutory authority, officers must have an articulable cause for detention. Articulable cause refers
to a constellation of objectively discernable facts which give reasonable cause to suspect detainee is implicated in an
investigated crime. Something between institution and grounds required to support an arrest will suffice.
R v Mann (2004) - Iacobucci
Facts: Officers approaching a reported b+e stopped M, who matched the description of the suspect. During pat down,
police uncovered a bag of marijuana and several other small, empty baggies. M was arrested and charged with possession
of marijuana for the purpose of trafficking.
Issue: Was this a lawful detention? Was officers’ search of M’s pockets a reasonable exercise of police power?
Decision: Appeal should be allowed and the acquittal restored.
Reasons: Officers had reasonable grounds to detain M and conduct a protective search, but no reasonable basis for
checking pocket - this is an unreasonable violation of reasonable expectation of privacy. When reaching into pocket,
search shifted from safety to detection and collection of evidence, absent reasonable grounds.
Ratio: Police may detain if reasonable grounds to suspect in all the circumstances individual is connected to particular
crime and detention is reasonably necessary on an objective view of the circumstances. At minimum, detainees must be
advised of reasons for detention. Detention should be brief to comply with s 10(b). Investigative detentions do not impose
obligation to answer questions. If officer has reasonable grounds to believe in safety risk, may make protective pat-down.
Dissent (Bastarache and Deschamps): “articulable cause” is preferable to “reasonable grounds”. Search did violate s. 8 but
evidence should be included - not conscriptive, search carried out in good faith, and closely related to a legal search.
R v Grant (2009) - McLachlin and Charron
Facts: Officers monitoring area near schools with a history of criminality. W and F in plainclothes drive past accused and
find him suspicious. G in uniform initiated exchange with accused, and W and F join and block path to question. Accused
reveals possession of weed and a gun, and officers arrest, search and seize. Appeal found detention was arbitrary but
accused moving gun from one place to another fell within definition of “transfer” in Code, justifying a conviction.
Issue: What constitutes detention? Were accused Charter rights violated? If so, is admission of gun permissible?
Result: Appeal should be allowed on the trafficking charge and an acquittal entered, dismissed on all other counts.
Reasons: Psychological detention where person has legal obligation to comply with restrictive demand or reasonable
person would conclude no choice but to comply. Accused psychologically detained when asked to keep hands in front and
officers obstructed his path. Arbitrary detention and denied right to counsel, breached ss. 9 and 10(b). However gun
evidence would not bring the administration of justice into disrepute (good faith, not most serious impact on liberty, etc.)
Ratio: Test for detention - circumstances giving rise to encounter as they would reasonably be perceived by the individual;
nature of the police conduct, including the language used; particular characteristics or circumstances of the individual,
where relevant. Factors for deciding whether or not to exclude evidence - seriousness of the Charter-infringing state
conduct (consider also if breach was in good faith); impact of the breach on the Charter-protected interests of the
accused; society’s interest in the adjudication of the case on its merits (reliability of the evidence)
R v Suberu (2009) - McLachlin and Charron
Facts: R responded to call about stolen credit card, two male suspects. Based on short conversation with S, car matching
description of car, and shopping bags in back, R advised S of reason for his arrest and cautioned right to counsel. S argued
he was detained as soon as he was told to wait and engaged in questioning and R’s failure to inform him of his 10(b) right
at that time constituted a Charter breach
Issues: Was S detained as soon as R told him to wait? What is the timing of 10(b) rights after detention?
Decision: Appeal should be dismissed.
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Reasons: 10(b) duties triggered at the outset of an investigative detention but onus is on applicant to objectively show he
was deprived of his liberty of choice. S was delayed but not detained; a reasonable person in the circumstances (Grant)
would have concluded initial encounter was preliminary investigative questioning falling short of detention. Detention
crystallized when R received more information and this coincided with his arrest.
Ratio: Police can ask exploratory questions of an individual without there being a detention. The phrase “without delay”
for the purpose of s. 10(b) must be interpreted as “immediately”, due to the vulnerability of the detainee in relation to
the state (subject only to safety concerns and s. 1 limitations).
Police Power to Search
Hunter v Southam (1984) - Dickson
Facts: Search of businesses under s 10 of Combines Investigation Act (allows search with authorization from Restrictive
Trade Practices Commission). Charter proclaimed after authorization made but before search had begun; H unsuccessfully
sought interim injunction pending trial of whether search violated s 8. Alberta Court of Appeal ordered all documents
sealed as an interim measure. Appeal from finding that s. 10 of Act is inconsistent with Charter.
Issue: What are the requirements under s 8 for reasonable search and seizure (i.e. what does unreasonable mean)?
Result: Appeal should be dismissed.
Reasons: s 10 of CIA inconsistent with the Charter because fails to specify an appropriate standard for the issuance of
warrants and appropriate arbiter to issue them.
Ratio: Warrantless search is prima facie unreasonable under s 8. Party seeking to justify warrantless search bears onus of
rebutting presumptive unreasonableness. Authorization must be granted by neutral and impartial third party. Minimum
standard consistent with s. 8 is reasonable and probable grounds established upon oath to believe an offence has been
committed and that there is evidence to be found at the place of the search.
R v Caslake (1998) - McLachlin
Facts: RCMP arrested accused for possession; several hours later conducted unauthorized search of car pursuant to police
policy and found $1400 and two packages of cocaine. Officer had neither a search warrant nor the accused’s permission,
testified he was not searching for evidence but rather conducting an “inventory search”.
Issue: What are the boundaries of search incident to arrest?
Result: Appeal should be dismissed. Caslake’s rights violated but on balance evidence should not be excluded under 24(2).
Reasons: Incidental to arrest, police must have a purpose for valid search incident to arrest in mind and belief that this will
be served must be reasonable. Sole reason for search was to comply with inventory policy, which falls outside the bounds
of the legitimate purposes of search incident to arrest. However, evidence should not be excluded be because it was nonconscriptive and breach was not serious (unobtrusiveness of search, low expectation of privacy in the area searched,
existence of reasonable and probable grounds, and good faith of police).
Ratio: For a search incident to arrest to be lawful it must be truly incidental to the arrest in question, i.e. there must be an
objectively valid reasonable purpose connected to the search and the search must subjectively be carried out for this
purposes. Delay and distance may cause the courts to make a negative inference about a search being incidental, but this
inference can be rebutted with a reasonable explanation for the delay/distance from the arrest. If search is for evidence,
must be a reasonable prospect of securing evidence of the offence for which the accused is being arrested.
Cloutier v Langlois (1990)
Facts: C (lawyer) stopped by two officers for speeding. Based on unpaid tickets, officers arrested him and performed a
frisk in public view before taking him into custody. C had drugs in pocket, was highly agitated and abusive. C filed a private
information against the officers for assault, dismissed by trial judge but reversed by Court of Appeal on the basis the
search was unnecessary and had no basis in law.
Issue: What is the scope of the power of the police to search a person who has been lawfully arrested?
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Result: Appeal should be allowed.
Reasons: At common law police may frisk a person who has been lawfully arrested if there is legitimate reason. Heated
nature of encounter led to legitimate purpose, officers conducted themselves in non-abusive and proportionate manner.
Ratio: Police have discretion to perform frisks but must be able to point to legitimate reason for search (e.g. to protect
safety of themselves or others or to collect evidence they have reason to believe is on accuses); must be non-abusive;
physical and psychological constraint must be proportionate to objectives sought and other circumstances of situation.
R v MacDonald (2014) - LeBel
Facts: Police responded to noise complaint, when M opened door noticed something “black and shiny”, pushed door and
identified it as a handgun. Restricted firearm, loaded, registered to M. Provincial Court held s 8 rights were not violated
and found him guilty; Court of Appeal held police properly executed common law power to search without a warrant
because safety was at stake, but acquitted due to honest but mistaken belief licence extended to Halifax.
Issue: What are the constitutional bounds of police searches conducted to ensure the safety of police or the public?
Result: Appeal should be dismissed.
Reasons: Officer had reasonable grounds to believe M was armed and dangerous, search was necessary.
Ratio: Safety searches do not violate s 8 as long as officer has reasonable grounds to believe the search is necessary to
eliminate imminent threat to safety of public or police and search is carried out reasonably. Mann test can be used by
officers to determine when threshold is met.
R v Lee (2017) - Weiler, ONCA
Facts: Police received call of an armed Asian man near mall. Found car and approached appellant, performed pat down
and search of vehicle but did not find a gun; opened trunk and found 23 kilos of cocaine.
Reasons: Search of the trunk was not authorized because police all testified they did not believe they had grounds to
obtain a warrant, but was authorized by common law
R v Peterkin (2015) - Watt, ONCA
Facts: P entered backyard as police were investigating static 911 call. Searched and found gun, ammunition, two phones,
cocaine, $275 in cash. Police said P’s actions seemed like he had a gun, P argued warrantless safety search was unlawful.
Issue: Was the warrantless safety search following the investigative detention lawful?
Result: Appeal should be dismissed.
Reasons: To be lawful investigative detention and safety search incidental to it must satisfy Waterfield (i.e. fall within
general scope of duty and involve justifiable use of powers). Second prong of Waterfield is reasonable suspicion investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances, and be
reasonable. Police were discharging common law duty when responding to 911 call, P’s entry to backyard entitled him to
detain him for potential breach of Trespass to Property Act. Drawing on MacDonald, police had legitimate reasons to fear
for safety (P’s body language), accumulation of factors supported a reasonable believe that their safety was at stake.
Ratio: Safety searches are justifiable following investigative detention if police have reasonable belief there is a safety risk.
R v Golden (2001) - Iacobucci
Facts: Police set up observation post across from sandwich shop. Officer testified he saw two transactions between G and
others, circumstances suggested it was cocaine. Pat down, then visual inspection down G’s pants at top of stairs by public
washrooms. Found baggie but unable to retrieve, forced G to bend over table and pulled pants down all the way. One
officer held legs while he was face-down on the floor, another attempting to retrieve baggie. In the process of trying to
get baggie, G accidentally defecated. Strip searched again at station. Found guilty of possession but acquitted on assault.
Issue: Is a strip search included in the common law power to search incident to a lawful arrest?
Result: Appeal should be allowed. The accused's conviction should be overturned and an acquittal entered.
Reasons: Strip searches are only constitutionally valid at common law incident to lawful arrest for purpose of discovering
weapons in the detainee's possession (safety and preservation of evidence). In addition to grounds justifying arrest, police
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must establish reasonable and probable grounds justifying strip search. Must also be conducted in a manner that does not
infringe s 8. If there is no prior judicial authorization for the strip search, several factors should be considered in deciding
whether and how to conduct such a procedure. Should generally only be conducted at the police station.
R v Aucoin (2012) - Moldaver
Facts: A was pulled over because his licence plate was registered to another vehicle. Police smelled alcohol on A's breath
and performed a breath test; breached limit. Officer put A in the back of his vehicle while he wrote a summary offence
ticket. Officer conducted a pat down prior to this and found ecstasy and cocaine in A's pockets.
Issue: The impropriety of a police officer searching and detaining a person in the back of a police vehicle while preparing
traffic offence tickets.
Result: Appeal dismissed
Reasons: Aucoin searched for safety in order to put him in cruiser but detention was unjustified and therefore so was
search. There was no reason to put him in the cruiser, therefore it was actually unlawful.
R v Wills (1992) [Doherty, ONCA]
Appeal by the accused from his conviction on a charge of impaired driving causing death. Breath sample consent.
R v White (2015) - Huscroft, ONCA
Facts: W lived in a condo and was visited by P, who was under GPS surveillance by police. Police entered W's condo on
three occasions, as a result of observations, police obtained warrant to enter W's unit. At trial W successfully excluded the
results of the search on the basis that it violated section 8 and Crown appealed.
Reasons: Lower courts found no expectation of privacy in common areas of multi-unit buildings. SCC held reasonable
expectation of privacy is context-specific, not amenable to categorical answers. White had reasonable expectation of
privacy in the common areas and thus entry constituted a violation of s 8: did not have absolute control over access to the
building but it was still reasonable for him to expect security system would exclude strangers, including the police.
Ratio: The fact that a relatively large number of people may have access to a building’s common areas need not eliminate
a reasonable expectation of privacy; an expectation of privacy may be attenuated in particular circumstances without
being eliminated.
Search Warrants
R v Garofoli (1990) - Sopinka
Facts: G charged with conspiring to import cocaine; evidence derived from private communications intercepted pursuant
to wiretap authorizations. Trial judge refused to order opening of sealed packets, Court of Appeal found appellant was
entitled to sealed packets. Affidavits edited to protect confidential information and then released. Concluded trial judge's
refusal to permit G to access affidavits did not result in miscarriage of justice and upheld conviction.
Issue: A number of things, but mostly whether the authorizing judge's failure to include a minimization clause resulted in
authorization of an unreasonable search and seizure in violation of s. 8 of the Charter.
Result: Appeal should be allowed.
Reasons: Accused is entitled, subject to editing, to see contents to enable full answer and defence. Statutory provisions
authorizing wiretaps must conform to minimum constitutional requirements under s 8. Application for review should be
made to the trial judge. If reviewing judge concludes authorizing judge could have granted authorization then he should
not interfere. Hearsay statements of an informant can provide reasonable and probable grounds to justify a search, but
evidence of an informer's tip by itself is insufficient. Reliability of a tip is assessed re: totality of circumstances; results of
search cannot ex post facto provide evidence of the reliability of the information. Courts have the power to edit, balancing
relevance of identity of informer to accused's case against prejudice to informer and public interest in law enforcement.
Leave to cross-examine affiants granted at discretion of trial judge when necessary for full answer and defence. Accused
must establish a basis for the view that cross-examination will oppugn the existence of one of the preconditions for the
authorization. G has shown a basis for cross-examination; in view of the degree of reliance by the police on the informer
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in this case, if the informer is discredited then the factual basis for the authorization is undermined. Since G was not able
to cross-examine, there should be a new trial.
Ratio: Statutory provisions authorizing wiretaps must conform with s 8. "Reviewing judge does not substitute his or her
view for that of the authorizing judge. If […] reviewing judge concludes that the authorizing judge could have granted the
authorization, then he or she should not interfere […] their sole impact is to determine whether there continues to be any
basis for the decision of the authorizing judge."
Garofoli Application: defence motion to exclude evidence collected under a search warrant.
Garofoli Procedure:
1. Upon opening packet, if Crown objects to disclosure of any material, an application should be made suggesting
nature of the matters to be edited and basis therefor. Only Crown counsel will have the affidavit at this point.
2. Submissions from accused. If trial judge believes accused will not be able to appreciate nature of deletions from
Crown submissions and edited affidavit, judicial summary as to general nature of deletions should be provided.
3. After hearing counsel for the accused and reply from Crown, trial judge should make a final determination as to
editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
6. If editing renders the authorization insupportable, Crown may apply to have trial judge consider so much of excised
material as is necessary to support authorization. Trial judge should accede only if satisfied accused is sufficiently
aware of nature of excised material to challenge it in argument or by evidence. Judicial summary of excised material
should be provided if it will fulfill that function. If Crown is dissatisfied with extent of disclosure and is of the view that
the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
R v Debot (1989) - Lamer
Facts: Reliable informant told police appellant and two others (all known to police) were going to take delivery of speed
being brought into the area. Information obtained in conversation with one of parties to the deal. Officers intercepted
and searched vehicle after it left house where transaction was to occur, told appellant he had reasonable and probable
grounds to believe he had drugs on him and proceeded with a warrantless search per Food and Drugs Act. Ordered to
“spread eagle” and empty his pockets; quantity of speed was found. Placed under arrest and advised of right to counsel.
Issues: Reasonableness of the search under s 8, right to counsel under s 10(b).
Result: Appeal dismissed.
Reasons: Right to counsel derives from arrest and detention, not from being searched; detainee should be informed of
right to counsel immediately upon detention. Police are not obligated to suspend search incident to arrest until detainee
has opportunity to retain counsel. Denial of right to counsel will render search unreasonable in exceptional circumstances
but evidence may be excluded if there is temporal link between infringement and discovery of evidence, and if admission
of evidence would bring administration of justice into disrepute.
Wilson: Tips must be compelling; source must be credible; information must be corroborated. Totality of circumstances,
each factor is not a separate test. Where police rely on anonymous tip or untried informant the quality of the information
and corroborative evidence may have to be such as to compensate for inability to assess credibility of the source.
Whether a denial of the right to counsel renders a search unreasonable depends on the source of authority for the search
(failure to advise of right to counsel detracts more from the reasonableness of a warrantless search than a search subject
to prior authorization) and the invasiveness of the search. Failure to accord appellant his 10(b) rights militated against the
reasonableness of the warrantless search and the minimal nature of the invasion of his privacy from the frisk militated in
favour of its reasonableness.
Ratio: Test for dealing with tips: Was the information predicting the commission of a criminal offence compelling? Where
that information was based on a "tip" from a source outside the police, was that source credible? Was the information
corroborated by police investigation prior to making the decision to conduct the search? Factors are to be balanced
together in the "totality of the circumstances" to determine if the evidence meets "the standard of reasonableness".
R v Godoy (1999) [Lamer]
Facts: 911 "unknown trouble" call traced to G's house, high priority. G told officers there was no problem and tried to
close the door but officer blocked with foot and entered. Found wife injured and sobbing, arrested G for assault. Relevant
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charge is for assaulting officer in the course of his duties. G claims officers had no right to enter house and therefore were
not acting in course of duties.
Issue: Did the police officers have the authority to enter the apartment?
Result: Appeal dismissed.
Reasons: Police Services Act recognizes general common law duty to protect life. Police had a duty to enter premises
based on circumstances (where there are reasonable and probable grounds police are allowed to enter private dwelling).
Conduct was not unjustifiable, as they entered to make sure woman was not in serious danger. Once they found the
injured woman, they had the right to arrest Godoy, premised not on call but on subsequent investigation.
Ratio: Reaffirms Waterfield. Also police generally have a duty to protect life, prevent crime, and preserve peace. A general
distress call is not enough evidence to enter a private area, but corroborating evidence following that is.
Cyber Searching
R v Vu (2013) - Cromwell
Facts: Warrant authorizing search of residence for theft of electricity, including documentation ID-ing owners and
occupants. ITO indicated police intended to search for "computer generated notes" but did not specifically refer to
computers or authorize the search of computers. Police found marijuana, two computers, cell phone. Search of devices
revealed appellant was the occupant.
Issue: What is the legal framework for searching devices discovered in the process of a search under a warrant?
Result: Appeal should be dismissed.
Reasons: Computers give access to almost unlimited universe of information users cannot control, may not be aware of,
may have tried to erase, are not meaningfully located in place of search. Must be treated as a "separate place" - only a
specific, prior authorization to search a computer found in the place of search ensures authorizing justice has considered
full range of distinctive privacy concerns. Police must satisfy justice of reasonable grounds to believe computers will
contain what they are looking for. If police find a computer in the process of a search but lack specific authorization to
search it they may seize it but must obtain a separate warrant to search data. This search was unlawful, but state of law
was uncertain and search was otherwise reasonable manner, violation was not serious and there was clear societal
interest in adjudicating charges on their merits. Did not step outside the purposes for which the warrant had been issued.
Ratio: Privacy interests at stake with computers require they be treated to a certain extent as a "separate place". You
need a specific, prior authorization to search a computer found in the place of search.
R v Spencer (2014) - Cromwell
Facts: Police identified IP being using to access and store child pornography. Without prior judicial authorization, police
obtained subscriber information ISP pursuant to PIPEDA that led them to accused. S charged and convicted of possession
of child pornography and acquitted on a charge of making it available; Appeal set aside acquittal and ordered new trial.
Issue: Was the accused's subjective expectation of privacy reasonable?
Result: Appeal should be dismissed. Order for a new trial is affirmed.
Reasons: Reasonable expectation of privacy based on nature of interest at stake and statutory/contractual framework.
Informational privacy in the context of Internet usage is understanding privacy as anonymity, engaged by request to link
IP address to subscriber. Contractual/statutory framework is relevant but not determinative, here supports expectation of
privacy. Search for subscriber info triggers constitutional protection, requires a reasonable law or exigency. Conduct of
search violated Charter, but police were acting by what they reasonably thought were lawful means. Offences are serious,
so exclusion of evidence would actually bring the administration of justice into disrepute.
Ratio: Informational privacy in the context of Internet usage is the understanding of privacy as anonymity. Police don't
have a right to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law.
R v TELUS (2013) [Abella]
Facts: T makes copies of all subscriber SMS sent and stores in database for brief time (unusual). Police obtained general
warrant and assistance order under ss 487.01 and 487.02 requiring T to provide copies of messages sent or received by
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two subscribers received during a two-week period on a daily basis. T applied to quash general warrant arguing this
constitutes an interception of private communication and requires wiretap authorization. Application was dismissed.
Issue: Can general warrant authorize prospective production of future text messages from service provider's computer?
Result: Appeal should be allowed and the general warrant and related assistance order should be quashed.
Reasons: General warrant provision (487.01) is residual and precluded where judicial approval is available under the Code
or another federal statute. Cannot be used to circumvent more specific or rigorous pre-authorization requirements. Part
VI exists to protect individual privacy interests in communications by imposing rigorous safeguards, interpretation not
dictated by technology in use. S 8 must also remain aligned with technological developments. Focus on acquisition of
informational content and individual's expectation of privacy at time communication was made. If Telus didn't have
database police would have needed authorization under Part VI; since most other providers don't have a database, this
provides manifest unfairness to Telus users.
Ratio: Text messages are private communications and even if they are stored on a service provider's computer, their
prospective production requires authorization under Part VI of the Criminal Code.
R v Fearon (2014)
Facts: Two men, one armed with handgun, robbed merchant as she loaded car with jewellery. Police located and secured
getaway vehicle and arrested F and C. During pat down, F’s cell phone was found and searched (and again within two
hours). Found text messages corroborating involvement and photos, including one of a gun. When police obtained
warrant to search vehicle they recovered gun used in robbery and depicted in photo. Months later police applied for and
were granted warrant to search contents of phone - no new evidence was discovered. On a voir dire trial judge found
search of cell phone incident to arrest had not breached s 8, admitted photos and messages.
Issue: Can police search a cell phone as part of a search incident to a lawful arrest?
Result: Appeal dismissed.
Reasons: Common law power to search incident to lawful arrest permits search of cell phones and similar devices found
on suspect but modification of existing common law framework due to unique privacy risk. Subject to same reasonable
and probably requirements. Nature and extent of search must be tailored to its purpose, in practice this means only
recently sent or drafted emails, texts, photos, and call log will generally be available. Police must take detailed notes of
what they examined on device and how they examined it. Initial search of the cell phone which disclosed all of the
evidence used at trial breached F's s 8 rights: were incidental to arrest, for valid law enforcement purposes, and
appropriately linked with offence, but lacked detailed evidence about precisely what was searched, how and why. Despite
breach, evidence should not be excluded because specific invasion was not particularly grave.
Ratio: Four conditions must be met in order for search of a cell phone or device incidental to arrest to comply with s 8: (1)
Arrest must be lawful; (2) Search must be truly incidental to the arrest; (3) Nature and extent of the search must be
tailored to its purpose; (4) Police must take detailed notes of what they have examined on the device and how they
examined it. When faced with uncertainty, police should choose course of action that is more respectful of accused's
potential privacy rights, but an honest mistake reasonably made is not state misconduct.
R v Marakah (2017) - McLachlin
Facts: M sent texts to accomplice W regarding illegal transactions in firearms. Police obtained warrants to search both
homes, seized both of their phones, searched and found incrimination text messages. Charged M and sought to use texts
as evidence at trial. M argued messages were obtained in violation of s 8. Majority of Court of Appeal agreed M had not
expectation pf privacy in messages recovered from W's phone and did not have standing to argue against admissibility.
Issues: Do you have a reasonable expectation of privacy in text messages recovered from someone else's phone?
Result: Appeal allowed, convictions set aside and acquittals entered.
Reasons: Texts in some cases attract reasonable expectation of privacy and be protected under s 8, assessed on totality of
circumstances. Must establish direct interest in subject matter of search, subjective expectation of privacy in that subject
matter, and that subjective expectation was objectively reasonable (in order to grant standing to argue admissibility).
Subject matter of text search is electronic conversation between sender and recipient, not its components. M had a
reasonable expectation of privacy over contents of W’s phone and had standing, making the search against him
unreasonable and texts were presumptively inadmissible and excluded.
Ratio: Robust “zone of privacy” in the digital sphere protected from state intrusion. Test for reasonable expectation of
privacy (Cole): (1) applicant must identify the subject matter of the breach; (2) applicant must demonstrate a direct
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interest in the impugned subject matter; (3) Applicant must demonstrate subjective expectation that subject matter
would remain private; (4) Applicant must demonstrate subjective expectation of privacy was objectively reasonable.
Objective reasonableness is based on place search, private nature of subject matter, and control over subject matter.
Arrest
R v Storrey (1990) - Cory
Facts: En route to Michigan, three Americans attacked by unknown assailants departed. Reviewed photos, created a
composite, described car. Detective concluded there were reasonable and probable grounds to arrest S because he
looked like photos and had history of violent crime. Put out APB, arrested 6 days later, formally charged 18 hours after
arrest due to detective’s desire to have victims ID in a line-up. While in custody, obtained warrant to search his car. S's
associate G was in line-up but not ID'd and was released.
Issue: Did the arrest and detention of S constitute a breach of s. 9?
Result: Appeal dismissed, order of new trial confirmed.
Reasons: S arrested without a warrant for aggravated assault. 495(1) allows for arrest where officer believes on R&P
grounds a person has or is about to commit indictable offence. 503(1) allows police to detain upon arrest without a
warrant for up to 24 hours before being brought before justice. R&P grounds are even more important where arrest is
made without warrant, must be objectively established. Here, possession of relatively unusual car ID'd by victims in which
he had been stopped by police several times; past record of violence; visual similarity. Nothing in arrest to raise suspicion
of bias. Arrest cannot be made solely to assist investigation but police can continue investigation subsequent to arrest.
Elapsed time of detention was not unreasonable, especially bc of how hard S was to find.
Ratio: Police may arrest without a warrant where they have reasonable and probable grounds to believe the accused has
committed the offence. Accused has to be brought before justice in a timely manner.
R v Feeney (1997) - Sopinka
Facts: F asleep in trailer, police knocked, said "police", entered with gun drawn. F's shirt was bloody. Arrested and read
rights; F confirmed he understood (ish). Shirt seized. Tried to call lawyer several times and left a message. Before seeing
lawyer F compelled to take breathalyzer, fingerprinted, interviewed twice, warrant obtained for shoes, cigarettes, money,.
At interview F said he should have lawyer but interview continued; admitted to hitting/robbing B, leading to warrant.
Issue: Did the police violate s 8 in their investigation? Did police violate s. 10(b) in their investigation?
Result: Appeal allowed.
Reasons: Arrest in Home: Post-Charter, privacy interest paramount, warrantless arrests in dwelling houses prohibited. To
prevent unreasonable intrusions (Hunter), would be anomalous to not require prior authorization to intrude. Would allow
warrantless searches if accompanied by arrests (Cloutier). Requires prior judicial authorization of entry.
Initial Search: Search performed w/o warrant or legal authority and not incident to lawful arrest.
10(b): Detention began when officer woke F, rights violated there forward. Caution given did not satisfy informational
requirements. Not given reasonable opportunity to exercise rights and police did not cease questioning (Manninen).
Warrant: Police cannot rely on warrant issued on basis of info obtained through prior Charter violations (Kokesch, Grant).
Search and interviews violated ss 8 and 10(b). Artificial to distinguish constitutionality of second search from initial entry.
Fingerprints: Bodily search and seizure, high expectation of privacy and cannot be compelled. Procedures incidental to
and following unlawful arrest which impinge on reasonable expectation of privacy will generally breach of s 8.
Ratio: Warrantless arrests in dwelling houses are prohibited. A legal arrest for an indictable offence in a private dwelling
must meet these requirements: (1) A warrant must be obtained on the basis of reasonable and probable grounds to
arrest and to believe the person sought is within the premises in question; (2) Proper announcement must be made
before entering (re: Landry). An exception to this rule occurs where there is a case of hot pursuit.
Interrogations
R v Oickle (2000) - Iacobucci
Facts: During investigation of eight fires, accused agreed to polygraph. Informed of rights to silence, counsel, to leave at
any time, and that interpretation of polygraph was not admissible but anything he said was. Failed test and questioned.
Confessed to setting fire to fiancée's car, but not others. Provided statement, appeared distraught. Arrested and warned
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of rights, questioned on camera at station. Police said he could call a lawyer but could not leave, eventually confessed to
setting seven of eight fires. Police took written statement. Placed in cell to sleep at 2:45, officer noticed he was awake at
6:00 and asked if he would agree to a re-enactment. Given Charter warning, secondary warning, and advised he could
stop at any time. Charged with seven counts of arson.
Issue: Common law limits on interrogation, specifically whether police improperly induce confessions through threats or
promises, atmosphere of oppression, or other tactics that could raise reasonable doubt as to voluntariness of confessions.
Result: Appeal allowed, the convictions should be restored.
Reasons: Common law confessions rule focuses on reliability and voluntariness. Consider all circumstances and ask if it
gives rise to reasonable doubt as to voluntariness (e.g. threats or promises, oppression, operating mind, police trickery).
Inducements are improper if strong enough to raise reasonable doubt. Operating mind requires accused know what he is
saying and that it may be used to his detriment. (1) Confession should be excluded if the police deception shocks the
community; (2) Even if not rising to that level, the use of deception is a relevant factor in the overall voluntariness
analysis. Voluntariness is a factual finding, only overturned for palpable and overriding error.
Ratio: Because of justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is
made under circumstances that raise a reasonable doubt as to voluntariness. A finding regarding voluntariness is
essentially a factual one and should only be overturned for a palpable and overriding error.
R v Singh (2007) - Charron
Facts: S was arrested for second degree murder in the shooting death of an innocent bystander killed by a stray bullet.
Advised of 10(b) and privately consulted with counsel. During two interviews with police, accused stated on numerous
occasions he did not want to talk but officer persisted. Did not confessed but made admissions which, taken with other
evidence, became probative of issue of identification at trial. On voir dire to determine admissibility, trial judge held
admission came freely and did not result from police systematically breaking down operating mind or undermining his
right to silence. Probative value of statements was held to outweigh their prejudicial effects.
Issue: S 7 Charter right to silence.
Result: Appeal should be dismissed.
Reasons: Modern expansive view of confessions rule includes right of detained person to make a meaningful choice
whether or not to speak to authorities. Focus is on police conduct and its effect on accused's ability to exercise free will.
Voluntariness is determinative of s 7 issue since it requires court scrutinize whether detainee was denied right to silence;
in such circumstances confessions rule effectively subsumes constitutional right to silence because the tests are
functionally equivalent. Where statement has voluntariness inquiry, application alleging violation of pre-trial right to
silence under s 7 cannot succeed. If accused can show on BOP statement was obtained in violation of right to remain
silent, the Crown cannot prove voluntariness BRD. Under both common law and Charter, police persistence in continuing
an interview, despite repeated assertions by detainee that he wishes to remain silent, may raise a strong argument that
the statement was not the product of a free will to speak to authorities but it does not necessarily mean this.
Ratio: It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states he
does not with to speak to police. Voluntariness is determinative of the s. 7 issue since it requires the court scrutinize
whether the detainee was denied his right to silence; in such circumstances the confessions rule effectively subsumes the
constitutional right to silence because the two tests are functionally equivalent.
R v Sinclair (2010) - McLachlin and Charron
Facts: Arrested for murder, S advised of right to counsel and twice spoke by telephone with lawyer. Later interviewed by
officer for several hours, stated throughout that he had nothing to say about investigation and wanted to speak to lawyer
again. Officer confirmed right to silence but refused to allow to speak with lawyer again, and advised he did not have right
to have lawyer present. S implicated himself and was placed in cell with undercover officer, made further incriminating
statements. S later participated in a re-enactment.
Issue: The nature and limits of the right to counsel under 10(b). Does a detainee have the constitutional right to further
consultations with counsel during the course of the interrogation.
Result: Appeal dismissed.
Reasons: Purpose of 10(b) is to support detainees' right to choose whether to cooperate or not by giving access to legal
advice; achieved by requiring they be informed of right to counsel and given opportunity to consult counsel if they so
request. Does not mandate presence of defence counsel throughout custodial interrogation or continued presence of
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counsel throughout interview process. In most cases, initial warning and reasonable opportunity to consult counsel is
sufficient. A request to consult counsel again, without more, will not retrigger the right. Only triggered by change in
circumstances that suggests choice faced by detainee has been significantly altered (e.g. new procedures, change in
jeopardy, reason to believe detainee may not have understood initial advice of right to counsel - categories are not
closed). Must be objectively observable. Police tactics short of such a change may result in Crown being unable to prove
BRD that subsequent statement was voluntary, rendering it inadmissible, but it does not follow that 10(b) procedural
rights have been breached. S doesn’t fall into any of the above categories.
Ratio: Detainees must be informed of right to counsel and given an opportunity to consult counsel if they request. Police
must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the
investigation make this necessary to serve the purpose underlying 10(b).
R v Hart (2014) - Moldaver
Facts: H was suspect in drowning deaths of twin daughters, but police lacked evidence. Recruited into “Mr. Big”
operation; at the time, H was unemployed and socially isolated. Became friends with officers, paid more than $15,000.
Operation culminated with interview where H was interrogated and ultimately confessed to drowning his daughters. Two
days later, H went to scene of drowning with undercover officer and explained how he had pushed daughters into the
water; arrested shortly thereafter.
Issue: Admissibility of confessions under Mr. Big operations.
Result: Appeal dismissed.
Reasons: Suspects confess during pointed interrogations in the face of powerful inducements and veiled threats, can lead
to unreliable confessions. Evidence that accused willingly participated in crime sullies character. Major risk of wrongful
convictions. Operations do not engage right to silence because accused is not detained and confessions rule is inoperative
because accused does not know Mr. Big is police. Admissibility Onus: confessions treated as presumptively inadmissible,
overcome where Crown can establish on BOP probative value outweighs prejudicial effect based on circumstances and
markers of reliability. Abuse of Process: so abusive police conduct is not forgiven if reliable confession is secured, doctrine
guards against state misconduct that threatens integrity of system and fairness of trials. Police cannot overcome will of
accused and coerce confession, use violence or threats, prey on accused's vulnerabilities. Here, Crown has not met onus.
Ratio: Two pronged framework to determine admissibility: (1) New common law rule of evidence - where the state
recruits an accused into a fictitious criminal organization and seeks to elicit a confession from him, any confession made
to the state during the operation should be treated as presumptively inadmissible; (2) To fill the gap that might suggest
abusive police conduct will be forgiven so long as a demonstrably reliable confession is ultimately secured, the doctrine of
abuse of process says police cannot be permitted to overcome the will of the accused and coerce a confession.
Intake and Release Pending Trial
R v Hudson (2011) - Trotter, OSCJ.
Facts: H consented to detention before JOP (no adequate release plan). Later applied under s 520 to "review" and set
aside detention order, but JOP had only given effect to the consent to be detained. SCJ essentially conducting bail hearing
under guise of bail review. Toronto practice is that accused is forced to agree to a detention order that can only be set
aside by the Superior Court rather than being permitted to postpone exercising their right to a bail hearing to a more
advantageous time. When people consent to their own detention (i.e. there is no contested bail hearing) judges in the
Superior Court are asked to conduct bail hearings under s 515 which is a function assigned by legislation to another court.
Issue: Procedural implications for a detained person who is not ready for a bail hearing
Result: Application dismissed on its merits. On the issue of the forum:
Reasons: In the case of offences not listed in s 469, bail hearings are to be conducted by a "justice" under s 515; for
offences listed in s 469, bail hearings are to be conducted by judges of superior courts of criminal jurisdiction pursuant to
s 522. There are established avenues by which original bail decisions may be challenged or reconsidered in light of
changed circumstances: non 469 offences, Code provides review at behest of both accused (520) and Crown (521) in a
superior court of criminal jurisdiction; 469 offences in the Court of Appeal in accordance with s 680. It is not open to a
person charged with a 469 offence to bypass the OSCJ and go to Court of Appeal to obtain bail, should not be open to a
non 469 offence to bypass Court of Justice and have what is essentially an original bail hearing under 520.
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Ratio: Proposed approach - when accused is not ready for bail hearing within a specified time frame, they should not be
forced to consent to detention to facilitate moving the case along, since these take time and effort to set aside. Justice of
the peace or judge should adjourn the hearing sine die and allow case to move forward in normal course. If accused wants
bail hearing they may serve notice on Crown and court. In the meantime accused is entitled to disclosure and to set a date
for trial in normal course. If it is deemed that someone is abusing the system, the judge or justice of the peace may insist
the accused have a bail hearing or encourage accused to adjourn it sine die.
R v Hall (2002) - McLachlin
Facts: H charged gruesome murder, compelling evidence linking him to crime including his blood around the home,
footprint impressions, video of H wearing shoes that match those seized. A lot of media attention and public concern,
general sense of fear that there was a killer at large. Denied bail on s. 515(10)(c), trial judge argued city looks to courts for
protection and public fear was a consideration, the offence was grievous and horrific, and Crown's case was strong.
Issue: Is 515(10)(c) unconstitutional on the ground that it violates the presumption of innocence and the right not to be
denied reasonable bail except for "just cause"?
Result: Appeal dismissed. "On any other just cause being shown and, without limiting the generality of the foregoing" is
unconstitutional and should be severed. The remained is constitutionally valid.
Reasons: Opening phrase of 515(10)(c) is vague and unconstitutional ("any just cause") but balance plays vital role in
preserving bail system and good administration of justice, is neither unduly vague or overbroad. S 11(e) rests on
presumption of innocence but recognizes just cause may exist for denying liberty to accused pending trial. Open-ended
judicial discretion to refuse bail is unconstitutional but Parliament clearly intended to permit bail to be denied where (a)
and (b) are not met but it is necessary to maintain confidence in the administration of justice, having regard to four
specific factors objectively (not a catchall). Overlap between relevant factors does not negate distinctiveness.
Ratio: A provision that allows bail to be denied on basis that accused's detention is required to maintain confidence in the
administration of justice is neither superfluous nor unjustified. It serves a very real need to permit a bail judge to detain
accused pending trial for the purpose of maintaining the public's confidence if the circumstances of the case so warrant.
R v Villota (2002) - Hill, OSCJ
Facts: In separate judicial interim release hearings the respondents were ordered released on bail. Court ordered V
released on recognizance of $5000 with father as surety and terms including house arrest with limited exemptions,
without input of counsel. V subsequently charged with possession and breaching a term of recognizance. L(M) released
with parents and aunt as sureties, based on release of co-accused, with a promise to appear. AG argues JOPs exceeded
jurisdiction because Crown was improperly denied opportunity to be heard.
Issue: Was it a jurisdictional error for the justices of the peace to reach a decision on the ultimate issue in the respective
judicial interim release hearings without allowing the Crown an opportunity to advance argument on the issue of release?
Result: Applications are dismissed
Reasons: Bail implicates ss 11(e) and 7; bail is not a privilege and judicial interim release should only be withheld where
necessary. Where bail is unjustly denied there is a miscarriage of justice. Unjustified detention includes unreasonably
prolonged custody awaiting a bail hearing. Lack of resources is not an answer to government imperilling constitutional
rights. Crown are quasi-judicial officers and therefore duty-bound to protect the rights of the arrested person. In bail
hearing there is a need to resolve the tension between fairness and efficiency
Ratio: Accused cannot be denied bail without reason and only where necessary.
R v Antic (2017) - Wagner
Facts: A charged with several drug and firearms offences. Ontario resident but spends a lot of time in Michigan and has no
assets in Canada, denied release based on flight risk. Review judge would have released with cash deposit and surety
(worried A would abscond if risk was only "mere pledge" of $10,000 from grandmother) but 515(2)(e) only permits this if
accused is from outside province or does not ordinarily reside within 200km of place in custody. Second review rejected.
Third bail review judge found 515(2)(e) violates 11(e) and held geographical restriction unconstitutionally denied A bail,
severed and struck down. Ordered A's release with a surety and cash deposit of $100,000. A raised sufficient funds after
over a year in pre-trial custody.
Issue: Does s. 515(2)(e) infringe right not to be denied reasonable bail without just cause under s. 11(e) of the Charter?
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Result: Appeal allowed.
Reasons: Pre-trial detention (515(10)) justified by flight risk, public safety, public confidence in administration of justice. In
most cases it is presumed that the accused should be released and will not be detained unless Crown can show on basis
of statutory criteria that detention is warranted. Right to reasonable bail relates to terms of bail including quantum of any
monetary component and other restrictions. Cash bail is a limited alternative to a pledge that should not be imposed
where accused persons or their sureties have reasonably recoverable assets to pledge. Bail judge erred by requiring a
cash deposit with surety even though A had offered a surety with a recognizance. Justices and judges should not
undermine bail scheme by speculating that requiring cash will be more effective "Ladder principle" (515(3)) requires least
onerous form of release on an accused unless Crown shows why that should not be the case.
Ratio: 11(e) encompasses right not to be denied bail without just cause and right to reasonable bail. Accused is presumed
innocent, state intrusion should be as minimal as possible, and any intrusion beyond the minimum must be justified. The
Ladder Principle is a central part of bail. Recognizance with sureties is one of the most onerous forms of release.
Principles and Guidelines for Bail Provisions in a Contested Hearing
a. Accused are constitutionally presumed innocent, corollary to that is the constitutional right to bail
b. 11(e) guarantees right not to be denied bail w/o just cause and the right to bail on reasonable terms
c. Save for exceptions, unconditional release on an undertaking is the default position when granting release (515(1))
d. Ladder principle articulates manner in which alternative forms of release are to be imposed; release is favoured at
earliest reasonable opportunity and having regard to statutory criteria for detention on the least onerous grounds
e. If Crown propose alt form of release, must show why necessary; the more restrictive, greater the burden; justice
cannot impose more restrictive form unless Crown has shown necessary w regard to statutory criteria for detention
f. Each rung of ladder must be considered individually and rejected before moving to more restrictive form of release;
where there is disagreement it is error of law to order more restrictive w/o justifying decision to reject less onerous
g. Recognizance w/ sureties is one of the most onerous forms of release; surety should not be imposed unless all less
onerous forms considered and rejected
h. Not necessary to impose cash bail if they or sureties have reasonably recoverable assets and are able to pledge
those; recognizance is functionally equivalent to cash bail and has same coercive effect, under (2)(d) or (e) cash bail
should be relied on only in exceptional circumstances where recognizance is unavailable
i. In case of above, amount must not be set so high it effectively amounts to a detention order; judge or justice is
under positive obligation to inquire into ability of accused to pay
j. Terms of release imposed under 515(4) may only be imposed to the extent they are necessary to address statutory
criteria. Not imposed to change or punish accused
k. Where bail review is applied for, court must follow process in St. Cloud
R v Tunney (2018) - Di Luca, OSCJ
Facts: T released with surety and conditions following Crown onus bail hearing. Crown was seeking surety bail and without
appropriate release plan T should be detained. Defence requested justice first rule on whether surety was even needed
before requiring proposed surety to testify, but justice did not grant that request; Justice differentiated Antic "on the
facts". T applied for bail review (Crown consented to vary T's bail, including removing the surety).
Issue: “Near automatic” use of sureties.
Reasons: Widespread overuse of sureties criticized for delays in bail system, undermining presumption of innocence,
undermining right to reasonable bail. Places unfair and unjust burden on accused to prove why a surety is not required.
Sureties are the option of last resort before an accused person is ordered detained.
Ratio: Antic is binding precedent. Where Crown bears onus on bail hearing, a surety release is one of most stringent forms
of release that should only be considered where all lesser forms of release fail to satisfy concerns raised by evidence.
Preliminary Inquiry
R v Arcuri (2001) - McLachlin
Facts: A charged with murder of M, a close friend. M found dead from gunshots in his car. Some evidence linking A, some
not. At preliminary hearing Crown's case was entirely circumstantial: pack of the same brand of gum, shirt and pants
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about his size, shoes tied the same way, guns in residence, car matched S's description. A called two witnesses whose
testimony was arguably exculpatory by suggesting lack of opportunity.
Issue: Can preliminary inquiry judge "weigh the evidence" in assessing whether it is sufficient to warrant committing an
accused to trial?
Result: The appeal should be dismissed
Reasons: S 535 provides for preliminary inquiry to assess evidentiary basis for charge of indictable offence. Ss 540-1
requires justice to hear Crown evidence witnesses of the accused. S 548(1) states that after all evidence has been taken,
justice shall commit accused to trial if there is sufficient evidence and discharge if no sufficient case is made out. Where
Crown has not presented direct evidence for every element of offence, question is whether remaining elements may
reasonably be inferred from circumstantial evidence. Judge must weigh circumstantial evidence in the sense of assessing
whether it is reasonably capable of supporting inferences Crown asks jury to draw. Judge can only direct acquittal if there
is no evidence capable of supporting conviction as to an essential element of the offence, has no authority to weigh and
consider quality of evidence to remove from jury's consideration. Where Crown's evidence is/includes circumstantial
evidence, judge must engage in a limited weighing to determine whether a reasonable jury properly instructed could
return a verdict of guilty
Ratio: Preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury,
acting reasonably, to convict, and as a corollary must weigh the evidence in the limited sense of assessing whether it is
capable of supporting the inferences the Crown asks the jury to draw. This does not require judge to draw inferences
from facts or assess credibility, but rather whether evidence taken as a whole could reasonably support a guilty verdict.
R v Munoz (2006) - Ducharme, OSCJ
Facts: M charged with conspiracy to murder and counselling to commit indictable offence while incarcerated with alleged
conspirators. Sole witness at prelim was I, disreputable. Testified to conversation about depositing $1000 to M's lawyer.
Issue: Did preliminary inquiry justice exceed jurisdiction in finding there was evidence of a conspiracy?
Result: The application should be allowed
Reasons: Witness only made five specific references to M. No evidence money came from F, what M was to do in
exchange, that M had knowledge of conspiracy, or that M did anything in furtherance of the conspiracy. Inferential gap
can only be bridged by evidence. There was none before prelim judge, so exceeded jurisdiction drawing inference that
necessarily required impermissible speculation. Preliminary inquiry determines whether there is sufficient evidence to
commit an accused to trial (s 548(1)), same question as for a directed verdict: evidence that could return verdict of guilty.
Reasonable inference is a conclusion that may, not must, be drawn in the circumstances. Primary facts must be
established by evidence; if they are not, any inferences will be the product of impermissible speculation. If proposed
inference cannot be reasonably and logically drawn from established primary facts it is impermissible speculation. Scope
of review of a committal is extremely narrow, only where justice has acted in excess of jurisdiction.
Ratio: Inferences must be able to be reasonably and logically drawn from a fact or group of facts established by the
evidence. An inference that does not do this is conjecture and speculation.
Disclosure Motions and Third Party
R v Stinchcombe (1991) - Sopinka
Facts: Crown alleged S (lawyer) had wrongfully appropriated property he held in trust for A (client). At issue is nature of
relationship between S and A. S's former secretary (L) was Crown witness at prelim and gave evidence favourable to
defence. L interviewed again by RCMP. Defence informed of tape's existence but not of content. Crown opted not to call
L, defence moved for an order to call or to disclose contents. Crown only said L was not worthy of credit.
Issue: Crown's duty to disclose.
Result: Appeal should be allowed and a new trial ordered.
Reasons: Crown was not justified in refusing disclosure on ground that witness was not worthy of credit; credibility is TBD
by trial judge after hearing evidence. Failure to disclose impaired right to full answer and defence. Fruits of investigation
are property of public to ensure justice is done. Absolute withholding of info can only be justified by legal privilege which
excludes from disclosure, reviewable on ground that it is not a reasonable limit. Defence must make judge aware ASAP of
any failure to disclose to avoid a new trial. Initial disclosure should occur before accused is called upon to elect mode of
trial or plead. Subject to Crown discretion, all relevant information must be disclosed, whether inculpatory or exculpatory
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and whether Crown intends to introduce into evidence or not. Discretion is reviewable by trial judge who guided by
principle information should not be withheld if there is reasonable possibility this will impair full answer and defence.
Crown discretion is reviewable by trial judge who guided by principle information should not be withheld if there is
reasonable possibility this will impair full answer and defence.
Ratio: Crown has a duty to disclose all relevant information to facilitate full answer and defence.
R v McNeil (2009) - Charron
Facts: Constable H was main witness against M on drug charge, decision turned on H's credibility. After conviction M
learned H was engaged in drug-related misconduct that led to ongoing internal disciplinary proceedings and criminal
charges. On appeal, investigatory entities and federal Crown resisted production. Court drew distinction between criminal
files and disciplinary records. Former attracted no expectation of privacy and so ordered their production. H subsequently
pleaded guilty to one of the charges; evidence of conviction admitted on M's appeal and M's convictions were set aside
Issue: Accused's motion for production of police disciplinary records and criminal investigation files relating to the Crown's
main police witness in the case against him. Does the "Crown" for disclosure purposes encompass other state authorities?
Result: Appeal allowed and order in court is set aside. The application having become moot, Court makes no further
order.
Reasons: First party disclosure under Stinchcombe extends only to material in possession or control of Crown. Necessary
corollary is obligation of police to disclose all material pertaining to investigation to Crown. For this purpose, police act on
first party footing. Records and files that do not fall within scope of first party disclosure package governed by O'Connor:
(1) applicant must demonstrate information is likely relevant; (2) court weighs positive and negative consequences of
production (balancing third party's privacy interest with full answer and defence). A finding of true relevance puts third
party records in same category for disclosure purposes as fruits of the investigation (i.e. if third party record was in
Crown’s file, would there be basis under Stinchcombe to not disclose). Accused's interest in disclosure will generally
outweigh residual privacy interest held by third parties, especially in respect of criminal investigation files concerning third
party accused. Court must ensure production order is carefully tailored to meet exigencies of the case and nothing more.
Ratio: As a corollary to duty to disclose under Stinchcombe, police have a duty to disclose to Crown all material pertaining
to its investigation. Under the second stage of the O'Connor test, if the targeted record is pertinent to some element of
the case against the accused, that record falls into the same category as the fruits of the Crown's investigation against the
accused for disclosure purposes. Residual privacy interests require the Court to tailor production orders to meet the
exigencies of the case and nothing more.
R v O'Connor (1995) - L'Heureux-Dube
Facts: O'Connor charged with rape and indecent assault of four Indigenous women at a residential school in BC. During
pre-trial process, judge ordered disclosure of all records of therapists, counselors, psychologists, psychiatrists who had
treated complainants in relation to sexual assault or sexual abuse.
Result: Appeal dismissed.
Ratio: The medical and counselling records of a complainant in a sexual assault case that are held by a third party can be
disclosed by order of the judge if they meet two requirements: (1) The applicant must establish, without seeing them,
that the records are likely to be relevant to the case; (2) The judge must review the records and decide whether to
disclose them based on the balancing the right to make full answer and defence, and the right to privacy.
R v Quesnelle (2014) - Karakatsanis
Facts: Q charged with sexual assault. Before trial, Q made application for disclosure of police occurrence reports involving
complainant but not made in the course of the investigation of the charges against Q. Trial judge ruled occurrence reports
at issue were "records" under Mills regime, specifically s 278.1. Q applied for disclosure pursuant to s 278.3. Trial judge
dismissed application and Q was ultimately convicted.
Issue: Does the Mills regime apply to police occurrence reports prepared in the investigation of previous incidents
involving a complainant or witness and not the offence being prosecuted. Do these unrelated police occurrence reports
count as "records" as defined in s. 278.1, such that the statutory disclosure limits apply.
Result: Appeal is allowed, order for a new trial is set aside, and conviction is restored.
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Reasons: Mills regime (278.1-278.91) permits disclosure of private records relating to complainants and witnesses in cases
involving particular offences only where a record is likely relevant and its disclosure necessary in the interests of justice.
Whether document counts as records depends on (1) whether contains personal information for which there is
reasonable expectation of privacy and (2) whether it falls into exemption for investigatory and prosecutorial documents.
Police occurrence reports count are subject to the Mills regime because of sensitive nature of information frequently
contained. Engages "informational privacy" and dignity interests. May discourage victims from coming forward..
Ratio: Exemption for investigatory and prosecutorial records contained in s 278.1 does not strip the protection of the Mills
regime from police occurrence reports. Mills regime applies to police occurrence reports that are not directly related to
charges against accused because individuals involved in a criminal investigation reasonably expect personal information in
police reports will not be disclosed in unrelated matters.
Pleas and Specialty Courts
R v Gladue (1999) - Cory and Iacobuccis
Facts: G accused of second-degree murder of fiancé, pled guilty to manslaughter. Had been arguing and insulting one
another when incident occurred. Both were drunk. Both were Indigenous. Sentenced to three years’ imprisonment.
Issue: Were the new sentencing provisions in s 718.2(e) of the Code given ample consideration?
Result: Appeal dismissed.
Reasons: Looked at how trial judge arrived at sentence: G had already started rehabilitation, apologized to victim's family,
acknowledged her wrong. Court determined that restorative justice is very important and applies to G even though she
does not live on reservation because bigger problem is disproportionate number of Indigenous peoples in jail. 718.2(e) is
remedial in nature. Some crimes are serious enough to deserve traditional punishment. Allowing a new trial solely on the
basis of status would not be in public interest.
Ratio: When sentencing an Indigenous offender, court must consider unique systemic or background factors which have
played a part in bringing offender before court and types of sentencing procedures/sanctions which may be appropriate
in the circumstances for the offender because of particular Indigenous heritage or connection. Rationale is to ameliorate
overrepresentation and encourage restorative approaches or others that are more culturally relevant, legitimate, legible.
Gladue Report: information based on interview with offender, family, research on nation and culturally relevant
programming, etc. presented to sentencing judge. May also consider appropriate sentencing procedures and sanctions.
Conducted by neutral third party. Every Indigenous person has the right to a Gladue Report before sentencing but they
are not obligated to participate. Judge must account for the report if its presented, or else it’s a legal error.
R v Ipeelee (2012)
Facts: Both cases concern Indigenous men with long criminal records, histories of substance abuse, significant systemic
disadvantages charged with breaching LTSOs.
Issues: Whether and how the Gladue principles apply to sentencing decisions for breaches of an LTSO.
Decision: Allowed offender’s appeal in Ipeelee and dismissed Crown’s appeal in Ladue.
Reasons: Different cultural views of justice require different sentences to achieve same result. Gladue interprets 718.2(e)
as encouraging remediation for overrepresentation in imprisonment through sentencing analysis that notes
systemic/background factors and appropriate procedures and sanctions to provide context for case-specific information.
Systemic factors shed light on moral blameworthiness – constrained circumstances diminish moral culpability. Need not
establish a causal link between systemic factors and offence. Parity principle is not useful because there is no other group
in Canada whose history compares with Indigenous peoples, current levels of criminality are tied to the legacy of
colonialism. Sentencing judges have must 718.2(e) and consider Gladue factors no matter the seriousness of the
offence. LTSO regime properly understood is supposed to protect the public but also rehabilitate and reintegrate the
offender, a long exit ramp from prison to help the offender tackle the offensive behaviour. In order to do this we have to
be concerned with cultural sensitivity.
Ratio: Gladue principles have been widely misinterpreted. Gladue sentencing always applies to the sentencing of
Indigenous offenders regardless of the severity of the crime.
Gladue sentencing applies full stop
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R v Swain (1991) - Lamer
Facts: S charged with assault and aggravated assault on wife and young children. Was allegedly "clearing his family of evil
spirits". Found not guilty by reason of insanity and placed in mental hospital to be held at the pleasure of Lt. Governor.
Issue: Challenge to common law rule permitting Crown to adduce evidence of an accused’s insanity and s 542(2) which
allowed for indeterminate detention of an accused found NCR.
Result: Both the common law rule and Code provision found unconstitutional.
Reasons: Objective criminal liability rule allowed Crown to raise evidence of insanity over and above accused’s wishes in
some cases (1) to avoid conviction of insane people who don’t raise defence and (2) to protect public. Dual objectives
could be met without unnecessarily limiting Charter rights if existing common law rule were replaced with rule that would
allow Crown to raise independently the issue of insanity only after trier of fact had concluded accused was otherwise
guilty. Also safeguards right to control defence. Accused would still have the option of raising evidence of insanity at any
time during the trial. Where an accused chooses to raise evidence which puts his or her mental capacity for intent into
question, the Crown can raise the issue. Crown's ability to raise evidence of insanity in these circumstances is necessary to
give jury a complete picture of accused's mental capacity. Crown's ability to raise evidence of insanity is not inconsistent
with accused's right to control defence because issue has been raised by the accused's conduct of his or her defence.
Ratio: Crown can only independently raise the issue of insanity after the trier of fact find the accused guilty of the offence.
If the accused raises evidence which puts mental intent into question, Crown may raise evidence of insanity.
Superior Court, Pre-Trial Process, JPTs, Introduction to Jury Selection
R v Blom (2002) - Abella, OCA
Facts: Accused charged with impaired driving. Challenged admissibility of statement made at scene. Notice of Charter
challenge was skeletal and mentioned only 10(b). Crown argued did not comply with Rules of Ontario Court of Justice in
since there was no affidavit and that Crown was prejudiced because it did not have adequate time to prepare a response.
Trial judge agreed, accused not permitted to argue rights under s 7 would be violated if statement were admitted.
Issue: Failure to abide by rules of notice etc. for Charter challenges.
Decision: The appeal by the accused should be allowed.
Reasons: Purpose of procedural rules is to facilitate fair and expeditious determination of Charter issues by ensuring
neither party is taken by surprise both have adequate notice of factual and legal basis for application. Trial judge is
required to determine what course of action is required by purpose of the rule. If there is no prejudice, inadequate notice
should not prevent consideration of Charter application. If there is prejudice, court must consider whether something less
drastic than refusing to consider argument can be done to alleviate prejudice. Here, Charter argument was not factually
complex and was on undisputed facts, not novel from a legal perspective.
Ratio: Non-compliance with the rules is not necessarily fatal. Must consider whether any prejudice actually arose and, if
so, if there are less drastic means than not hearing the challenge.
Jury Selection
R v Parks (1993) - OCA
Facts: Accused, a black drug dealer, convicted of manslaughter of a white drug user. Trial judge refused to permit defence
counsel to ask prospective jurors (1) whether their ability to judge witnesses without bias, prejudice, or partiality would
be affected by the fact that the witnesses were involved in drugs and (2) whether this would be affected by the fact that
the accused was a black Jamaican immigrant and the deceased was a white man. In refusing to permit the questions, the
trial judge relied on the "presumption" that duly chosen and sworn jurors can be relied on to do their duty and decide the
case on the evidence without regard to personal biases and prejudices.
Issue: Accused’s right to challenge for cause based on racial bias.
Result: The appeal should be allowed.
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Reasons: Dismissed questions about drugs and nationality. Proposed inquiry involved single question focused on specific
issue (as opposed to attempt to obtain favourable jury, indoctrinate jurors, gain insight into personalities). Accused's right
to challenge for cause is essential to constitutional rights to fair trial and trial by jury. In supervisory function, judge must
determine (a) whether proposed questions are relevant to juror's potential partiality and (b) whether there is realistic
potential for existence of partiality on a ground sufficiently articulated. A partial juror is one who is biased and who will
discriminate based on that bias. Proposed line of questioning must address both attitudes and behaviour flowing from
attitudes; biases only render juror partial if they impact duty to make decision based on evidence and law. Counsel may
address realistic possibility that potential jurors would discriminate against a black accused because of race. Better course
to permit the question in all such cases where the accused requests the inquiry.
Ratio: Acknowledged that defence may always address realistic possibility of racial partiality. Questions must address the
attitudes and behaviours flowing from those attitudes, partiality is not merely bias but acting on bias.
Trial Process
R v Fatima (2006) - Watt, OSCJ
Facts: Accused of killing K's daughter (F's stepdaughter). K seeks directed verdict of acquittal on first degree murder,
arguing no evidence of planned and deliberate murder. F seeks directed verdict of acquittal on first and second degree
murder based on absence of motive. Prosecution argues a reasonable jury properly instructed could find both parties
guilty of planned and deliberate first degree murder.
Issue: What standard guides directed verdicts?
Result: Each application was dismissed.
Reasons: Issue is not whether jurors will draw inferences necessary to found a conviction, but whether evidence adduced
is capable of supporting required inferences prosecutor relies on. Same standard as at preliminary inquiry under s 548(1)
when deciding whether to order an accused to stand trial: is there any evidence upon which a reasonable jury properly
instructed could return a verdict of guilty (US v Shephard). Must be evidence for each element of the offence. Where
evidence is circumstantial the relevant inquiry is whether the evidence as a whole if believed could reasonably support
the inferences required (Arcuri).
Ratio: Directed verdict decided on same standard as going forward at prelim inquiry: is the evidence adduced capable of
supporting the required inferences on upon which the prosecutor relies?
R v McNeill (1996) - OCA
Facts: Accused in handcuffs and leg shackles, defense argued it was unnecessary to remain in handcuffs for whole time.
Result: Appeal is allowed. Judge failed to exercise his jurisdiction.
Reasons: Preliminary inquiry judge has jurisdiction to determine issues affecting liberty of a prisoner within courtroom.
Judge may exercise discretion per particular circumstances of each case. Balance should be struck between duty to ensure
safety of all participants and prevent escape, and need to maintain dignity of prisoner in the context of presumption of
innocence. Views of security personnel should be given weight but ultimate decision lies with the presiding judge.
Ratio: The preliminary inquiry judge has the jurisdiction to determine issues affecting the liberty of a prisoner within the
confines of the courtroom, balancing security and prisoner's dignity.
R v GC (2013)
Facts: GC charged with four offences. Although no specific security concerns related to GC, police submit that should not
be at counsel table for security reasons
Issue: Should an accused person be permitted, on application, to sit at counsel table?
Result: Application is denied
Reasons: Based on divergent judicial views on the issue, accused should be seated in the dock during the trial. In
discretion of trial judge to be determined in the interest of a fair trial and court security. Discretion of court is not
overridden by security officers or consent of the parties. Onus is on the defence to establish that the accused should sit
outside the prisoner's box. The fact that there is no evidence of any particular security concern does not determine the
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issue. Gervais: customary position is in dock, does not violate Charter unless precludes making full answer and defence.
Ratio: Accuse presumptively seated in the dock but defence may apply to sit at counsel table. In Court’s discretion.
Sentencing
R v Gardiner (1982)
Facts: Accused charged with several crimes in connection with incidents of domestic violence. Entered guilty plea and
sentenced to conditional discharge with two years of supervised probation, concurrent on both charges.
Issue: Was the sentence fit to the crime?
Result: Appeal should be allowed. Sentence imposed set aside and substituted with a two-year suspended sentence with
supervised probation on the same terms imposed by the sentencing judge.
Reasons: Sentencing judge's decision is entitled to a high degree of deference. Error in principle by failing to give sufficient
weight to general deterrence resulted in a sentence that was demonstrably unfit. Circumstances of offence were serious.
Because of mitigating factors (time passed) circumstances did not warrant reincarceration.
Ratio: Sentences must be proportional to crimes.
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