RECENT DEVELOPMENTS IN CRIMINAL PROCEDURE: 2014-2015
By Tim Quigley
Author of Procedure in Canadian Criminal Law (2nd edition)
R. v. Fearon: The Supreme Court permits cell phone searches as an incident of
arrest:
In a case that will likely engender considerable controversy, R. v. Fearon,1 a majority of
the Supreme Court of Canada has fashioned a common law police power to search a cell
phone or similar digital device as an incident of lawful arrest.
As a jewellery merchant loaded her car, two men grabbed some bags containing jewellery
and left in a black vehicle. One of the men was armed with a handgun. The police were
called and, some time later, located and secured the getaway vehicle. They arrested the
two accused, F and C. While searching F as an incident to arrest, the police found a cell
phone. They searched the phone then and again about two hours later. In those searches,
they found a draft text message referring to the robbery and some photos that included
one of a handgun. The police obtained a warrant to search the vehicle and recovered the
handgun depicted in the photo. Some months later, they also obtained a warrant to search
the cell phone, although no new evidence was discovered. Although Fearon challenged
the admissibility of the warrantless cell phone search, he lost at trial, in the Court of
Appeal, and in the Supreme Court of Canada.
Writing for the majority in that Court, Cromwell J. established four conditions for such
searches in order to comply with section 8 of the Charter. First, the arrest must be lawful.
Second, the search of a cell phone or similar device incidental to arrest must truly be
incident to the arrest. This requirement must be strictly applied in order to meet the law
enforcement purposes, which, in this context, are to protect the police, the accused, or the
public, preserving evidence, and, where the investigation might otherwise be stymied or
significantly hampered, discovering evidence. Third, the nature and extent of the search
must be tailored to its purpose so that, in practice, only recently sent or drafted emails,
texts, photos, and the call log will generally be available. Other searches may be justified
in some circumstances. Finally, the police must make detailed notes about what was
examined on the device and how it was examined. These notes should include the
applications that were searched, the extent of the search, and the time, purpose, and
duration of the search. Keeping such records is important to later judicial review and to
help the police to focus squarely on the parameters of a lawful search incident to arrest.
The decision is in sharp contrast with the robust privacy protection the Court has
1
(2014), 15 C.R. (7th) 221 (S.C.C.).
previously provided for digital technologies otherwise.2 It is therefore important to keep
in mind that Fearon applies only to searches of cell phones that take place as an incident
of lawful arrest. That said, the third requirement, in particular, will prove troublesome in
practice, both in determining what is recent and in the qualification that sometimes more
extensive searches may be justified. There will also be issues about the adequacy of the
notes kept by police.
The Supreme Court Strikes Down Money Laundering and Terrorist Financing
Legislation as It Applies to the Legal Profession:
In Federation of Law Societies v. Canada (Attorney General),3 the Supreme Court of
Canada struck down some provisions of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act4 and regulations under the Act, the Proceeds of Crime (Money
Laundering) and Terrorist Financing Regulations.5 These laws were designed to prevent
the facilitation of money-laundering and financing terrorist operations by the use of
financial intermediaries. Together, the Act and the Regulations placed duties on financial
intermediaries, including lawyers, and required those financial intermediaries to collect,
record, and retain, inter alia, information that would verify the identity of individuals on
whose behalf they paid or received money. However, the Supreme Court held that, in
respect of lawyers, some of the provisions violate section 8 of the Charter because of the
inherent risks to solicitor-client privilege, for which there is an invariably high
expectation of privacy no matter the context.
Pre-Sentencing Credit Rule Contrary to Section 7 Charter Proportionality
Standard for Sentencing:
The Truth in Sentencing Act6 is somewhat in disarray as a result of judicial decisions. In
R. v. Summers7 and R. v. Carvery,8 the Supreme Court interpreted the Act to not require
exceptional circumstances in order grant 1.5:1 credit for pre-sentence custody. In doing
so, the Court pointed to both the effects on early release (remission, parole eligibility, and
statutory release) and the conditions on remand (harsh, overcrowded, dangerous and
lacking in rehabilitation programs) as militating against the Harper government’s attempt
to limit pre-sentencing credit to one day for each day on remand. Subsequently, in R. v.
Sararzadeh-Markhali,9 the Ontario Court of Appeal struck down the provision limiting
credit to 1:1 if the information has been endorsed to indicate that bail was denied due to
2
See, e.g.: R. v. Morelli (2010), 72 C.R. (6th) 208 (S.C.C.), R. v. TELUS
Communications Company (2013), 100 C.R. (6th) 221 (S.C.C.), and R. v. Spencer (2014),
11 C.R. (7th) 52 (S.C.C.).
3
(2015), 17 C.R. (7th) 57 (S.C.C.).
4
S.C. 2000, c. 17.
5
SOR/2002‑ 184.
6
S.C. 2009, c. 29.
7
2014 SCC 26.
8
2014 SCC 27.
9
(2014), 13 C.R. (7th) 30 (Ont. C.A.).
the accused’s criminal record. The case is now on appeal to the Supreme Court of
Canada but, if the Court of Appeal decision is upheld, this will be another blow to the
Truth in Sentencing Act.
Victim Surcharges: Courts Deal with the Repeal of the Hardship Discretion:
The Criminal Code provides for a victim surcharge that is placed on fines and other
dispositions.10 It is intended to be used for victims of crime programs established by the
provinces. The surcharge is set at 30 per cent of the fine. It was previously the case that a
fine surcharge could not be worked off on a fine option program but that a judge had the
discretion to refuse its imposition if undue hardship would be caused. Recent
amendments, however, removed the undue hardship exemption but permit the use of fine
options if the province has permitted it. Some judges have resisted the changes because
of the resulting hardship to impecunious offenders, particularly those with mental health
or other issues.11 Given the array of decisions and the uncertainty in the law on this issue,
it will be necessary for appellate courts, if not the Supreme Court of Canada, to provide
some clarity and resolutions of the constitutional arguments.
R. v. St-Cloud: The Supreme Court of Canada Bolsters the Tertiary Ground for
Denying Bail:
In a decision that has already been heavily criticized,12 R. v. St-Cloud,13 the Supreme
Court of Canada had occasion to consider once again what is referred to as the tertiary
10
If no fine is imposed, the surcharge is $100 for a summary conviction offence and $200
for an indictable offence.
11
In R. v. Flaro (2014), 7 C.R. (7th) 151 (Ont. C.J.), this was on the basis of cruel and
unusual in s. 12 of the Charter punishment. In R. c. Cloud, 2014 QCCQ 464 (C.Q.), it
was done on the basis of an interpretation of s. 731(1)(b) of the Code and the judge
imposed nominal $5 fines to reduce the surcharge. For comment on this issue, see: D.
Stuart, “Annotation” (2014), 7 C.R. (7th) 151; P. Healy, “Sentencing from There to Here
and from Then to Now” (2013), 17 Can. Crim. L. Rev. 291. In R. v. Williams (2013), 302
C.C.C. (3d) 315 (N.L.P.C.), it was held that amendments could not have
retrospective effect because that would violate s. 11(i) of the Charter. In R. v. Tinker
(2014), 11 C.R. (7th) 43 (Ont. C.J.), a violation of s. 7 of the Charter was found and the
amendment was struck down. In R. v. Michael, (2014), 12 C.R. (7th) 44 (Ont. C.J.), the
amendment was also struck down but this time due to a s. 12 violation. On appeal, this
was reversed: (2015), 20 C.R. (7th) 174 (Ont. S.C.J.). See also: T. Quigley, “Comment”
(2014), 12 C.R. (7th) 44, and R. v. Sharkey, (2014), 13 C.R. (7th) 66 (Ont. C.J.). But also
see: R. v. Javier, 2014 ONCJ 361 in which the Court declined to follow Michael. With
reluctance, in a subsequent case, R. v. Eckstein, 2015 ONCJ 222, Justice Paciocco, who
decided Michael, held that he was bound by Tinker but nonetheless pointed out areas of
disagreement with it. See also: R. v. Novielli, 2015 ONCJ 192 and D. Stuart,
"Comment" (20 C.R. (7th) 174.
12
D. MacAlister, “St-Cloud: Expanding Tertiary Grounds for Denying Judicial Interim
Release” (2015), 19 C.R. (7th) 344; M.B. Rankin, “R. v. St-Cloud: Searching for a Silver
ground for denying bail contained in section 515(10)(c) of the Criminal Code. Under the
rubric of maintaining confidence in the administration of justice, a court is required to
consider all of the circumstances but with particular emphasis on the apparent strength of
the Crown’s case, the gravity of the offence, whether a firearm was used, and whether the
accused is potentially liable for a lengthy sentence. The Court provided a summary of its
reasons:
A summary of the essential principles that must guide justices in applying s.
515(10)(c) is as follows:
• Section 515(10)(c) does not create a residual ground for detention that applies
only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a
distinct ground that itself provides a basis for ordering the pre-trial detention of an
accused.
• Section 515(10)(c) must not be interpreted narrowly (or applied sparingly) and
should not be applied only in rare cases or exceptional circumstances or only to
certain types of crimes.
• The four circumstances listed in s. 515(10)(c) are not exhaustive.
• A court must not order detention automatically, even where the four listed
circumstances support such a result.
• The court must instead consider all the circumstances of each case, paying
particular attention to the four listed circumstances.
• The question whether a crime is “unexplainable” or “unexplained” is not a
criterion that should guide the analysis.
• No single circumstance is determinative. The justice must consider the combined
effect of all the circumstances of each case to determine whether detention is
justified.
• This involves balancing all the relevant circumstances. At the end of this
balancing exercise, the ultimate question to be asked by the court is whether
detention is necessary to maintain confidence in the administration of justice. This
is the test to be met under s. 515(10)(c).
• To answer this question, the court must adopt the perspective of the “public”, that
is, the perspective of a reasonable person who is properly informed about the
philosophy of the legislative provisions, Charter values and the actual
circumstances of the case. However, this person is not a legal expert and is not able
to appreciate the subtleties of the various defences that are available to the accused.
• This reasonable person’s confidence in the administration of justice may be
undermined not only if a court declines to order detention where detention is
justified having regard to the circumstances of the case, but also if it orders
detention where detention is not justified.14
Lining” (2015), 19 C.R. (7th) 359; D. Stuart, “St-Cloud: Widening the Public
Confidence Ground to Deny Bail Will Worsen Deplorable Detention Realities” (2015),
19 C.R. (7th) 337.
13
(2015), 19 C.R. (7th) 223 (S.C.C.).
14
Ibid., at para. 87.
Unfortunately, in potentially increasing the incidence of denial of bail under the tertiary
ground, the Court appeared to ignore the horrible reality that pre-trial detention has
tripled over the past thirty years to the point where a majority of those in prison are those
who have been denied bail but who are constitutionally presumed innocent.15
The Court also provided guidance on the nature of bail reviews under sections 520 and
521 of the Criminal Code. The Court held that these sections do not confer an openended discretion on the reviewing judge to vary the initial decision concerning detention
or release. They do not establish a de novo proceeding, but a hybrid remedy. Exercising
the power of review will be appropriate in only three situations: (1) where there is
admissible new evidence, if that evidence shows a material and relevant change in the
circumstances of the case; (2) where the impugned decision contains an error of law; or
(3) where the decision is clearly inappropriate. Unfortunately, the new approach will
narrow the scope for bail reviews and, given the informal nature of almost all bail
hearings in busy provincial courts, the requirement that new evidence meet the standards
for the admission of fresh evidence on appeal may prove to be an insurmountable barrier
to proper review of bail decisions.16
R. v. Kokopenace: A Weak Response to Systemic Discrimination in the Jury
Selection Process:
Under the Criminal Code, the provinces may legislate eligibility requirements for juries
and establish the processes by which jury polls are compiled. Unfortunately, systemic
problems have arisen through the various provincial processes for compiling a jury poll,
most notably in Ontario. Even more unfortunately, the judicial response has been very
weak. In R. v. Kokopenace,17 the Supreme Court dealt with the serious
underrepresentation on the jury poll of Aboriginal people living on reserve in an Ontario
judicial district. To be representative, there should have been seven to eight times more
on-reserve Aboriginal people on the poll. Despite this, a majority of the Supreme Court
found no violations of sections 11(d) and (f) of the Charter, holding that the province
need only to have made reasonable efforts to compile a representative jury poll. The
decision means that few such challenges are likely to succeed, a pity when Aboriginal
people suffer the legacy of colonialism and exclusion that has resulted in alienation from
the justice system.18
15
Stuart, supra, note 12.
Stuart, supra, note 12.
17
(2015), 20 C.R. (7th) 1 (S.C.C.)]
18
See: T. Quigley, "Kokopenace: Charter Rights to Jury Representation for Aboriginal
Accused are Obliterated for Expediency" (2015), 20 C.R. (7th) 99. For comments on the
lower court decision (2013), 4 C.R. (7th) 67, see: T. Quigley, "Annotation" (2013), 4
C.R. (7th) 67; R. Cairns Way, "An Opportunity for Equality: Kokopenace and Nur at the
Supreme Court of Canada" (2014), 61 C.L.Q. 465.
16
R. v. Nur: The Supreme Court Strikes Down a Mandatory Minimum Sentence:
Although section 12 of the Charter protects against cruel and unusual punishment, it has
rarely been successfully applied to strike down mandatory minimum sentences. Until R.
v. Nur,19 our highest court had not applied section 12 to strike down any mandatory
minimum sentence since its inaugural case, R. v. Smith.20 This is so despite the plethora
of mandatory minimum sentences now available under the Criminal Code, Controlled
Drugs and Substances Act, other federal legislation, and, of course, some provincial
legislation.
The majority of the Court said that a challenge to a mandatory sentencing provision under
section 12 of the Charter raises two questions: first, whether the provision amounts to
cruel and unusual punishment in the sense of gross disproportionality for that accused;
and, if not, second, whether the provision would result in cruel and unusual punishment
for other offenders whose circumstances are reasonably foreseeable. The jurisprudence
in respect of this approach is long and settled, workable, and provides sufficient certainty.
The term “reasonable hypothetical” may be helpful but the focus remains squarely on
whether the sentence would be grossly disproportionate in reasonably foreseeable cases.
Fanciful or remote situations may be excluded because the exercise must be grounded in
experience and common sense. However, it is not necessary that the projected
application must be common or likely.
This approach to the second branch—the reasonable hypothetical—provides welcome
clarity and may signal more willingness by the Court to rule against mandatory minimum
sentences in future. The fear that the Court would simply follow in the wake of, for
example, R. v. Morrisey,21 in restricting what is considered a reasonable hypothetical
have been somewhat allayed by the decision in Nur.
Perhaps the strongest claim for the majority judgment is its rejection of the prosecutorial
discretion position advanced by Justice Moldaver speaking for the minority. His
argument that, in the case of a hybrid offence, a different framework must be adopted is
thoroughly rejected by Chief Justice McLachlin for the majority. One might have
thought that the argument that prosecutorial discretion could prevent cruel and unusual
punishment would have no traction at all since it was firmly rejected by the majority in
Smith. Nevertheless, the Chief Justice is forceful and clear in rebuffing the notion.22 In
particular, she is surely correct that resort to the doctrine of abuse of process to attack the
exercise of prosecutorial discretion is an illusion because the standard is so high. The
standard is so high in part because of Justice Moldaver’s judgment in R. v. Babos23 and
the failure to acknowledge this in his judgment in Nur is a weakness for his approach.
Chief Justice McLachlin similarly refused to accept the argument that parole and early
19
(2015), 18 C.R. (7th) 233 (S.C.C.).
(1987), 58 C.R. (3rd) 193 (S.C.C.).
21
(2000), 36 C.R. (5th) 85 (S.C.C.).
22
Supra, note 19, at paragraphs 85-98.
23
(2014), 8 C.R. (7th) 1 (S.C.C.).
20
decision could act in mitigation of what otherwise would be grossly disproportionate
sentences.24
Suing for Prosecutorial Misconduct:
In Henry v. British Columbia (Attorney General),25 the Supreme Court built on its
decision in Ward v. Vancouver (City)26 to hold that, in a Charter civil action for damages
for prosecutorial misconduct, it was not necessary to prove malice. The Court held,
however, that it is necessary to prove an intentional violation, in Henry, proof of
intentionally withholding information material to the defence. Thus, the Court struck a
middle ground between requiring malice and the much lower standard of negligence.
24
Supra, note 19, at paragraph 98.
(2015), 18 C.R. (7th) 338 (S.C.C.). See also: D. Stuart, "Comment" (2015), 18 C.R.
(7th) 338.
26
(2010), 76 C.R. (6th) 207 (S.C.C.).
25