CHARTER OF RIGHTS AND FREEDOMS
SUMMARY
- s1: guarantee of rights and freedoms, recognizing reasonable limits
- s7: life, liberty and security of person
- s8: search or seizure
- s9: detention or imprisonment
- s10: arrest or detention (RIGHT TO COUNSEL!)
- s11: proceedings in criminal and penal matters (BAIL!)
- s24: enforcement of guaranteed rights and freedoms, exclusion of evidence bringing admin of
justice into disrepute
s1 “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society”
s7 “Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice”
s8 “Everyone has the right to be secure against unreasonable search or seizure”
s9 “Everyone has the right not to be arbitrarily detained or imprisoned”
s10 “Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if
the detention is not lawful”
s11 “Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence
(b) to be tried within a reasonable time
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal
(e) not to be denied reasonable bail without just cause
(f) … military law
(g) … offence scope
(h) …acquittal
(i) …time delay
s24(1) “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and
just in the circumstances”
(2) “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner
that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if
it is established that, having regard to all the circumstances, in the admission of it in the proceedings would
bring the administration of justice into disrepute”
EXCLUSION OF EVIDENCE
Context
The test to determine whether evidence obtained through a Charter violation should be included as per
s24(2) of the Criminal Code was originally set out in Collins/Stillman; however, this original test often led to
the exclusion of evidence based on whether it was conscriptive and non-discoverable without considering
the seriousness of the breach or the implications for the administration of justice by excluding the evidence.
Overtime the SCC decided to adopt a new approach, which is discussed in R v Grant (2009).
Rule (Grant)
Key question: would a reasonable person, informed of all the relevant circumstances and the values
underlying the Charter, conclude that the admission of evidence would bring the administration of justice
into disrepute.
To determine the answer to this question court must balance three lines of inquiry (LOOK AT CHART!!)
1. Seriousness of the Charter-infringing state conduct
2. The impact of the breach on the Charter-protected interests of the accused
3. Society’s interest in the adjudication of the case on its merits
After considering all three lines of inquiry, the court must balance its’ assessments and decide whether the
evidence should be admitted or excluded pursuant to s24(2). During this process of balancing the primary
focus of the court should be whether exclusion or inclusion would bring the administration of justice into
disrepute by considering implications for justice in the present as well as the long term.
Key Examples
See chart re: forms of evidence
R v Harrison (SCC, 2009): Driving when cocaine found in the car, cocaine admitted at lower levels BUT
SCC did not admit it b/c of the seriousness of the police officer’s breach outweighed reliability of evidence.
Even though the crime is serious, the accused was driving the speed limit and appeared to be following the
law therefore should not have been pulled over and the search was unwarranted and cannot include
evidence.
SEARCH AND SEIZURE
Context
Section 8 of the Charter guarantees that “everyone has the right to be secure against unreasonable search
and seizure”. As discussed in Hunter v Southam, in order to determine whether s8 guarantees have been
violated the court must first determine whether A had a reasonable expectation of privacy and if so, whether
the search and seizure in this case were reasonable.
Rule
Step 1 - When does a person have a reasonable expectation of privacy?
H v S s8 comes into play only if person has a ‘reasonable expectation of privacy’  if no reasonable
expectation state can violate s8
Must look at ‘totality of circumstances’ (Edwards)
Court tends to consider a variety of factors incl but not limited to:
 The type of property interests (personal, property, info)
 Whether accused believes (subjectively) that they have a REP and whether the
A’s expectations are reasonable
 If property: does A have ownership or control of property, present at time of
search, in a public or private place
Look to case law:
o
o
-
Reasonable Expectation of Privacy
Personal
Stillman [15]… R.E.P. in your own bodily samples
(blood, salvia, hair, etc.)
No [or lower] Reasonable Expectation
of Privacy
Patrick [20]… no R.E.P. in garbage bags left for
collection at the edge of one's property.
House
Feeney… R.E.P. in private dwelling house
Edwards [16(2)]… no R.E.P. in girlfriend's
apartment
Gomboc [19]… R.E.P in information as to electricity
usage captured by a DRA
Tessling [17]… no R.E.P. in heat pattern radiating
from house
Personal Computers:
REP Morelli, 2010 SCC 8
Place of Business
Hunter v. Southam [11-12]… R.E.P. against search
and seizure of business records
Thomson Newspaper Ltd.[22]… distinguished
Hunter v. Southam in regard to an order to produce
business records (as opposed to an entry and
search)
Work Computers:
Cole, 2002 SCC 53 where personal use if permitted
or reasonably expect REP although workplace
policies may “reduce” the degree of expectation
*reduce REP may relate to expectation in
workplace
Car
Belnavis [16(3)]… owner/operator has R.E.P. in
closed areas (glove compartment/trunk etc.)
Public Place
Buhay [15]… accused had R.E.P. in rented locker
in bus depot
Belnavis [16(3)]… no R.E.P. in the contents of the
car where the accused is merely a passenger in the
car
R. v. M.(M.R.) [21]… lower R.E.P. for high school
students re backpacks, lockers etc. (i.e. search by
school officials without warrant based on
reasonable suspicion.
Kang-Brown and A.M.[18]… lower R.E.P. against
dog sniffing in bus depot and school (i.e.
warrantless sniffer dog search based on
reasonable suspicion.
Surveillance
Wong [16]… R.E.P. that police will not
surreptitiously video surveil the accused's hotel
room where he has invited strangers to come and
gamble
LeBeau and Lofthouse [Ont.C.A. 1988]… no R.E.P.
(even though guards posted) for sexual activity by
persons in a public washroom
Communications
Duarte [23]… R.E.P. that private conversations will
not be electronically intercepted
Step 2 – If there was a REP then was Search and Seizure Reasonable
The SCC in Collins held that a reasonable search and seizure must be authorized by a statute or common
law, that the law authorizing the search must be reasonable and that the search must be carried out in a
reasonable manner.
A – Authorized by Statute?
Prior Approval (Warrant) if feasible, granted by an independent party acting judicially and only
where RPG exist to believe evidence will be found in place searched (H v S)
Note: As per Hunter v Southam all warrantless searches are prima facie unconstitutional unless it is
not feasible to obtain a warrant
Note: standard for RPG lower if state security at risk, higher if search involves invasion of bodily integrity
If there is not a warrant
- H v. S identifies not necessary to obtain warrant if impractical due to exigent circumstances (life
in danger) pursuant to s487.11
- accused waive s8 rights and consent to search?
o This must be voluntary
o A must be informed of true purpose of the search to consent and waive rights
- Search of travelers at borders (R v Simmons)
- Administrative regulatory searches (R v Simmons)
- Risk evidence will be destroyed (Grant)
If not an exception and H v S violated then engage in s24(2) analysis to see if evidence can be excluded or
not
CONSIDER – IF WARRANT:
- Were all procedures for issuing warrant followed WAS WARRANT REASONABLE
o Does warrant indicate: place to be search, name of owner, things to be searched for,
suspected offence for which search is being conducted, RPG that search will find evidence?
o NOTE: post H v S standard of RPG can be reduced to reasonable suspicion if:
 drug-sniffing dog search in public places and schools: Kang-Brown and A.M.;
 students by school officials for contraband, regulatory or disciplinary purposes: R. v.
M. (M.R.);
 demand for a sample of breath for a roadside alcohol screening test;
 weapons search incidental to an investigative detention: R. v. Mann (SCC, 2004)
[examined later under Arrest/Detention];
 warrants to use electronic trafficking devices (s. 492.1), dial number recorders (s.
492.2) [since these techniques are less intrusive than conventional searches, the
-
lower standard of "reasonable suspicion" is very likely constitutional under s. 8: see
R. v. Wise (SCC, 1992).
When engaging in search CARRIED OUT REASONABLY
o S29: have warrant with PO when feasible and produce on request
o S488: executed during the day (unless authorized otherwise in warrant)
o CL: requires for PO if feasible announce presence, identify self as PO, give reason for
search, request entry
 BUT r. v. Cornell provides can enter home without knocking or announcing entry
(court divided on this – see Ferg’s notes p2)
o S25 permits reasonable use of force to administer law (incl. searches)
B – Authorized by Common Law?
The main common law powers of search
(1) the power to search a person as an incident to a lawful arrest, [Cloutier]’
- power to search a person and vehicle without a warrant (if vehicle reasonably related to
offence) as an incident to lawful arrest (Cloutier, Belnavis, Caslake)
(2) the power to frisk search a person as part of a "investigative detention", [Mann]
(3) enter and search dwelling if in lawful hot pursuit of a suspect,
(4) enter and search dwelling to preserve life or prevent injury, [Godoy]
(5) enter and search a dwelling to make an arrest pursuant to an arrest warrant [see Landry as
modified by Feeney], and
(6) power to conduct a warrantless sniffer dog search in a public place based on reasonable
suspicion [Kang-Brown and A.M.].
CRITIQUE of Search and Seizure Process
- Law Reform Commission of Canada study showed 60% of search warrants issued in 1980 were
defective b/c
o No RPG in information
o Specific place to search or items to be seized not specified
o IN 1994: showed 39% invalid (usually because no RPG)
o In 2000: higher rate of error
- Even if a warrant is technically invalid, a PO who executes warrant in good faith and had
sufficient info to justify warrant even if not in the information, the court will likely admit any seized
evidence (R v Harris 1996) BUT some courts might exclude evidence if search warrant was
‘careless’ (R v Hosie 1996)
ARREST AND DETENTION
Can arrest without a warrant if RG to believe A has committed (is committing or is about to commit)
an indictable offence s495(1)
Ancillary Power – Rules
IF POLICE HAVE POWER TO ARREST
Arrest powers include or trigger a number of ancillary powers (these powers only kick in IF there is first the
power to arrest)
o power to enter and search a dwelling house without a warrant to effect an arrest
 Pre- Charter: In Landry
 Police had power to forcibly enter and search (if necessary) without consent in
order to arrest person as long as:
o RPG person sought is in the house
o Provided proper announcement made before entry (as long as it doesn’t
create danger for PO)
 Post- Charter Feeney (limits Landry)
 Power of warrantless entry to arrest must be cut back b/c of charter so even there
are RPG to arrest need to limit police power given privacy interests
 Unless it is an emergency to prevent harm or destruction of evidence (s529.3),
should always attempt to get a warrant prior to arrest if there are RPG to arrest
(telewarrant is ok!)
o power to search without warrant incidental to arrest
 can search an arrested person for evidence and weapons (do not need RPG for search)
(Cloutier)
 if car A is using is reasonably connected to offence, PO may seize it without a warrant as
an incident to the arrest (Caslake)
 Caslake: if accused arrested in vehicle for ppt then can search vehicle for more
drugs
 BUT!
 If accused stopped for speeding or unpaid traffic tickets search of trunk is not
justified or authorized b/c it wouldn’t aid wrt reason why stopped (Belnavis)
o If lawfully arresting or detaining person in car/home/etc can seize evidence of any crime that is in
plain view
Power of Entry Separate and Apart from Arrest Powers
o common law power to forcibly enter residence without a warrant to prevent death or injury
 R v Godoy: CL policy duty to protect life and liberty justifies forced entry if there is a 911
call which is interrupted
WHEN IS THERE A DETENTION?
Context
unless police have lawful authority to arrest or detain, individual has right to walk away – “where this choice
has been removed – whether by physical or psychological compulsion – the individual is detained” (Grant)
Rule
Forms of detention: physical detention, legal compulsion psychological detention, no actual legal
compulsion psychological detention (see Outline)
To determine if detention under “no actual legal compulsion psychological detention” (Grant)
- the circumstances giving rise to the encounter as would be reasonably perceived by the individual
o CONSIDER GENERALITY OF PO CONDUCT: whether PO were providing general assistance,
maintaining general order, making general inquiries regarding a particular occurrence, or
singling out the individual for focused investigation
- The nature of the police conduct
o Language used, use of physical contact, place where the interaction occurred, presence of
others and the duration of the encounter
- Particular characteristics of circumstances of the individual where relevant
o Age, physical stature, minority status, level of sophistication
Examples of Charter Detention according to Grant:
- Medical Emergency: not a detention b/c non-adverserial role, assisting injured
- Accident or Crime Scene: bystanders at a scene of the accident are not detained BUT if police zero in
and indentify bystanders as potential suspects then might be detained
o Police can ask general questions and citizens entitled to refuse to answer and continue on their
way (JJ Harper, Grant, Suberu)
- Proactive Preventative Neighborhood Policing: not detention if general inquiry BUT once become
“inherently intimidating” then detention
o When say “Hold on – I need to ask you a question”  it is a detention in Grant, not a detention
in Suberu
o In Grant: blocked path, flashed badge, ordered to keep hands in front, racialized youth
o In Suberu: officer’s words were initial not follow up, Suberu did not initially refuse to stop, PO
didn’t zero in on Suberu as suspect yet just attempting to orient to scene, PO did not attempt to
search – interacted was polite and unstrained
- Note: Binnie (dissent in Grant): racialized and marginalized groups “ even more so than others…may
feel unable to choose to walk away”
Once detention is proved then accused Charter Rights of s9 and s10 kick in!
- Suberu: have right to counsel without delay once detained so PO must inform of s10b rights upon
detention
INVESTIGATIVE DETENTIONS
Context
Concept of ID originally, narrowly construed in R v Simpson and though expanded in R v Mann, the power
of ID was remained to some extentent relatively narrow; however, through Clayton this power of ID has
become a fairly broad and general police power.
Rule
To justify an investigative detention:
-
Consider whether ID justified as reasonably necessary based on totality of circumstances (Clayton)
o 1. nature of the situation (incl. seriousness of offence)
o 2. info known to police about crime/suspects
o 3. whether geographic/temporal scope of ID is reasonably tailored to offence
 look at geographical scope: generally should be relatively contained but no explicit limit
 look at temporal scope
 ID should be brief (Mann)
o 4. stop is no more instrusive than ‘reasonably necessary’  must balance risk to public and
liberty of citizens since this is a broad general power
 Detainee is not obliged to answer police questions (Mann)
 At minimum – accused should be told of reasons for detention under Charter s10(a)
(Mann)
Police have the power to:
- set up roadblock of all vehicles leaving parking lot b/c risk of handguns to the public (Clayton)
- ID warranted if individuals fit general description of suspects EVEN if vehicle was not one of the
vehicles identified (Clayton)
- Frisk or protective patdown search justified as part of ID if reasonable grounds safety at risk (Mann)
o In Mann justified b/c accused of B&E and logically possible had B&E tools that could be used as
weapons
o In Clayton justified b/c possession of weapons (handguns)
Police do not have the power to:
- search beyond protective pat-down is not reasonable – cannot start searching for evidence (Mann)
o search and seizure of marijuana not reasonable
Criticisms of ID – even if ID might be necessary in particular cases this power should be construed as
narrowly as possible in order to recognize and respond to the potential abuse of powers that may be
exacerbated through ID
- line btwn being able to leave and feeling compelled to stay
- creates higher risk by expanding police powers that ID will target marginalized groups
o people from the street
o racial profiling (Brown)
- racial and social profiling and ID
o difficult for accused to prove on BOP real reason for police stop
o investigative stops often don’t result in charges therefore legitimacy is rarely reviewed by courts
UNLESS complain is lodged through court system but this is timely, expensive and because of
what marginalized groups have been treated by the courts unlikely to be accessed
o low standard of ‘reasonable suspicion’ creates space for police to lie
o leads to distrust of police and loss of faith in fairness of system
o what necessary means is open to PO’s discretion (Mann – frisk search)
CONFESSIONS
Context
Original confessions rule discussed in Ibrahim required Crown to prove beyond a reasonable doubt that the
confession was voluntary; however, overtime this rule was altered by case law. In Oickle, SCC discusses
modern confessions rule which is then affirmed, further interpreted and applied in Spencer.
Rule
TODAY, For a confession (statements made by A to PIA) to be valid Crown must prove (Oickle):
Note: If accused does not believe they are talking to a person in authority then not a voluntary confession
(confession not admissible in Rothman b/c thought inmate)
1. Crown must prove beyond a reasonable doubt that the confession was voluntary by looking at:
a. Threats, inducements, oppressive circumstances
b. operating mind
i. Whittle 1994: restrictive operating mind “requires that the A knows what they are
saying and that it may be used to their detriment”
1. A doesn’t need higher cognitive capacity to make good reasonable choices
2. Clarkson 1986: more broad understanding of operating mind
c. police trickery that “would shock the conscience of the community” prohibited
2. look at threats, inducements and oppressive circumstance in relation to one another (do not
examine separately) to see if accused right not to speak overborne
a. to be overborne:
i. for an inducement to be overborne look to see if “quid pro quo”
1. ex. Spencer: withholding right to visit gf is an inducement but not enough
to have overborne A’s freewill  MUST meet higher standard of strength
of inducement and whether A “had an effective choice and whether his or
her will was overborne” – BUT note Spencer = savvy criminal
a. prior to this “keeping gf out of it” would have been considered an
inducement (Oickle)
ii. oppressive circumstances incl. deprivation of food, water, clothing, sleep, medical
attention, questioned aggressively for a long period of time, presented with
fabricated evidence (Oickle)
IF CONFESSION IS INVOLUNTARY PER OICKLE/SPENCER – INADMISSIBLE under CL; do not need to
look at Charter.
IF CONFESSION IS VOLUNTARY PER OICKLE/SPENCER – MIGHT BE OBTAINED BY VIOLATING THE
CHARTER, such as a violation of s7 or 10b so confession would be inadmissible if it brings the
administration of justice into disrepute under s24(2)
RIGHT TO COUNSEL
- Sinclair 2010 : one consult with lawyer = sufficient right to counsel prior to interrogation unless material
change in circumstances
- Brydges 1990: should consider “all circumstances of the case” for whether s10(b) rights actually
asserted
- Manninen 1987: Not just a right to counsel but if detained right to facilitate that contact and cease
questioning until reasonable opportunity to retain and instruct counsel
RIGHT TO SILENCE – discussed in Hebert and Singh
- Hebert: police can continue to question A after received s10(b) rights and asserts right to remain silent
- Singh: 18 assertions of right to remain silent does not render a statement involuntary