ARREST & DETENTION
Charter, s. 9: right not to be arbitrarily detained or imprisoned
Charter, s. 10: rights upon arrest or detention
Defined (Therens, as articulated in (R v Grant): “Detention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an
individual’s choice simply to walk away”; “A person is detained where he or she submits or acquiesces in the deprivation of liberty and reasonably believes that the
choice to do otherwise does not exist”. (Where choice to proceed on his way is removed by physical or psychological compulsion, there is a detention).
Defined (R v Whitfield): “Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is
not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer.”
Purpose of s. 9, Charter (R v Grant):
- To protect individual liberty from unjustified state interference (*autonomy)
- Charter rights are not engaged by delays that involve no significant physical
or psychological restraint.
Policy: concerned with power between the state and the person under its control.
Person who is detained should retain an informed and effective choice whether to
speak to authorities, consistent w/ overarching principle against self-incrimination.
Objective determination of whether free to go or had to cooperate (R v Grant)
Psychological constraints recognized by court as amounting to detention (R v Grant)
- Where subject is legally required to comply w/ a direction or demand (ie.
roadside breath sample)
- Where no legal obligation to comply w/ restrictive or coercive demand, but a
reasonable person in the subject’s position would feel so obligated
Therens Test: Factors to consider in whether individual has been “deprived of
choice” in a case where there is no physical restraint and no legal obligation: (R v
Grant)
- Circumstances giving rise to the encounter as would reasonably be perceived
by the individual: whether the police were providing general assistance;
maintaining general order; making general inquiries regarding a particular
occurrence; or, singling out the individual for focused investigation
- Nature of the police conduct (language, use of physical contact, place where
interaction occurred, presence of others and duration of encounter)
- Particular characteristics or circumstances of the individual where relevant
(age, physical statute, minority status, level of sophistication)
Detention (and arrest) triggers subsidiary rights (R v Grant):
- Charter, s. 10(a) – right to be informed of the reasons therefor
- Charter, s. 10(b) – right to retain and instruct counsel without delay and to
be advised of that right
- Charter, s. 10(c) – guarantees right to test the lawfulness of arrest or
detention by way of habeas corpus
Can lawfully resist arrest when arrest itself is unlawful; risky! (R v Biron)
Articulable Cause: Detention requires “articulable cause”: “objectively discernable
facts which give the detaining officer reasonable cause to suspect that the detainee
is criminally implicated in the activity under investigations.” (R v Simpson, p. 368)
>> articulable cause is a lower threshold than reasonable and probable grounds
req’d for arrest (R v Mann)
>> “articulable cause” AKA reasonable grounds to detain (R v Mann)
Was detention reasonable? Look at totality of circumstances underlying police
officer’s reasons for detention of individual (R v Mann) Factors from R v Clayton:
- Nature of the situation, how serious the offence is, what info is known to PO
about suspect or crime? Extent to which detention was reasonably
responsive/tailored to circumstances, include geographic and temporal scope
Law / Arbitrariness: a lawful detention is not arbitrary within the meaning of s.9
unless the law authorizing the detention is itself arbitrary. Conversely, a detention
not authorized by law is arbitrary and violates s.9 (R v Mann)
Ie. For detention to be non-arbitrary, it must be authorized by a law which is itself
non-arbitrary (R v Grant)
R v Grant
18-yr old; stopped by police near
school; had a gun + marijuana
R v Mann
Man searched who matched
description of a break-and-enter
R v Peck
Black 20-something male walking
down alley known for drugs
R v Clayton
Gun complaint outside club
Arbitrariness... look for criteria that govern its exercise or has it been authorized?
Modified Grant test for detention:
1. Does the search have legislative authority (framework)?
2. Was the law reasonable (charter violation?)?
3. Was the search/detention conducted in a reasonable manner?
Note: onus on accused to show violation of one of the 2 elements (balance of
probabilities)
>> Once potential problem established, onus shifts to gov’t to establish that it
was reasonable
Investigative Detention: A brief investigative detention based on reasonable
suspicion is lawful, implying that a detention in the absence of at least a reasonable
suspicion is unlawful (therefore arbitrary per s.9) (R v Mann) [Common law]
>> Reasonable suspicion based on objective view of totality of circumstances
*connection w/ ongoing crime (Mann)
- Investigative detention triggers s. 10 Charter rights (R v Suberu) ie. obligation
to inform detainee of rights “without delay”
- Search incidental to power of investigative detention is necessarily a
warrantless search where Crown has burden of proof to show
reasonableness (R v Mann)
- Where police believe crime has recently been committed, the police may
engage in preliminary questioning of bystanders w/o giving rise to a
detention under s.9 / 10 of Charter (R v Suberu)
- Protective pat-down when police believe safety at risk (R v Mann)
Waterfield test (as articulated in R v Mann) recognizes power of search incidental
to investigative detention at common law
1.
2.
Police powers are recognized as deriving from the nature and scope of
police duties? At common law, the preservation of the peace, prevention
of crime, and protection of life & property *public good
Balance between competing interests of the police duty and the liberty
interest at stake: was the conduct involved an unjustified use of power
associated w/ the duty? *extent that interference w/ rights is necessary
to carry out police duty?
Crown must prove that admission of evidence would not bring admin of justice into
disrepute, in order to rely on evidence found in a search or seizure grounded in the
common law power of search incidental to investigative detention… Buhay Test…
Buhay Test as articulated in (R v Mann): whether admission of evidence would bring
admin of justice into disrepute:
1. Fairness of the trail (nature of evidence, nature of right violated)
2. Seriousness of the breach (good or bad faith, obtrusiveness of the
search, expectation of privacy, existence of reasonable grounds)
3. Whether exclusion of evidence would adversely affect the admin of
justice (*social impacts of precedent? Policy considerations?)
S. 9 might be limited under s.1 as measures prescribed by law as can be
demonstrably justified in a free and democratic society (R v Hufsky, p. 364).
Example: narrow majority in Ladouceur upheld constitutionality of traffic stops w/o
justification pursuant to s.1 as the sweeping powers were req’d to respond to risks
of unsafe driving.
Met objective test of detention; Court found that it was an arbitrary detention. Officers acknowledged no
legal grounds / reasonable suspicion to detain the accused prior to his incriminating statements. “Hunch”
insufficient
No info that Grant involved in criminal activity
Moment of detention was when he was told to keep hands in front of him
Detention – reasonable grounds (matched description; close to crime). Note: high crime nature of a
neighborhood is not by itself a basis for detaining individuals
Search – reasonable grounds (possibility of possession of break-and-enter weapons) for protective pat-down
search. NOT reasonable to proceed beyond a pat down, invading privacy by searching soft pocket contents
>> seizure of marijuana was unlawful; evidence must accordingly be considered under s. 24(2) of the Charter
No reasonable grounds to suspect he was implicated in criminal activity; arbitrarily detained/searched by
police who found cocaine/cash >> evidence inadmissible (would disrepute admin of justice). S. 8, 9, 10
breaches
Reasonable detention acting in course of duty to investigate and prevent crime (given 911 complaint);
reasonable search (safety concerns due to nature of “gun complaint”); no Charter breaches
CC, s. 25 – Protection of Persons Administering and Enforcing the Law
o To be used as a shield, not a sword (Laskin dissent, R v Biron)
CC, s. 494 – Citizens’ arrest powers; R v Chen – Limits on s. 494:
o Any statutorily sanctioned conduct permitting force/restraint must use
least invasive force necessary
o S. 25 confirms: “as much force as is necessary”, not to be misconstrued
as a license for excessive force
- Amendment to CC in response to Chen: Citizen’s arrest section: within a
“reasonable time after the offence is committed” and only if person making arrest
believes it is not feasible in the circumstances for a peace officer to make the arrest.
CC, s. 495 – Police arrest powers
Power to arrest without a warrant, as construed from s. 450(1)(b) is given where
the peace officer himself finds a situation in which a person is apparently
committing an offence. Ie. Subsequent acquittal of the accused for the charge which
caused arrest does not deem the arrest to have been unlawful (R v Biron)
Crim Cheat Sheets – Johnson – Fall 2013 – Kaitlyn Kastelic
ESSAY COMPONENT
Crim Cheat Sheets – Johnson – Fall 2013 – Kaitlyn Kastelic
SEARCH & SEIZURE
Charter, s. 8: right to be secure against unreasonable search and seizure
Policy: balancing reasonable expectation of privacy (dignity, integrity, autonomy) vs.
gov’t interest in effective law enforcement.
General principle that a person’s liberty is not to be interfered w/ unless in
accordance with principles of fundamental justice (Grant)
Collins Test: Crown bears burden of demonstrating on a balance of probabilities
that warrantless search was reasonable (ie. warrantless search is presumptively
unreasonable). As articulated in R v Golden: A search will be reasonable within the
meaning of s. 8, Charter where:
1. It is authorized by law,
2. The law itself is reasonable, and
Balance individual`s rights (privacy) with gov’t interests (protecting
public safety and enforcing the law) R v Hunter
a) When should balance of interests be assessed?
b) Who must grant the authorization (Hunter: Judge or other neutral
and impartial party capable of acting judicially)
c)
On what criteria should balance of interests be assessed?
3. The search was conducted in a reasonable manner
If any of these criteria is answered in the negative, there has been a violation of s. 8,
Charter, and it will be necessary to consider whether the evidence obtained as a
result of the search should be excluded pursuant to s. 24(2), Charter.
- where person has reliably consented (Crown must prove consent on balance of
probabilities) (common law) (R v Young, p. 413)
- “Plain view doctrine” recognized by common law: permits warrantless seizure
where officer is lawfully on premises and article is immediately obvious (R v
Mellenthin, p. 413)
- Common law power to enter premises and stop vehicles w/o warrants in
response to 911 calls and to uphold public safety on roads (R v Hufsky, p. 413)
- By school officials of a student (not presumed unreasonable) where:
reasonable grounds to believe school rule has/is being violated and that
evidence will be found in location or on student (R v MRM)
R v Golden
Strip Searches = “removal or rearrangement of some or all of the clothing of a
person so as to permit a visual inspection of a person’s private areas, namely
genitals, buttocks, breasts (in the case of a female) or undergarments.” (R v Golden)
Pat-down is less intrusive; body cavity search is more intrusive (R v Golden)
“The more intrusive the search, the greater the degree of justification and
constitutional protection that is appropriate” (R v Golden)
In order to justify a strip search incident to arrest (R v Golden):
1. Necessary that arrest itself be lawful (reasonable and probable grounds)
2. Search must be incident to arrest (related to reasons for arrest itself)
- To search for evidence (reasonably assessing risk of disposal)
There must be a reasonable expectation of privacy in order for a “search” to have
- To search for weapons (safety concerns); generally a pat-down will suffice
- “Routine strip search” violates s.8 Charter w/o compelling reasons
occurred per s.8 of the Charter (R v MRM)
- Crown bears burden to prove reasonable and probably grounds on a balance of
Edwards Test (as articulated in R v Patrick): The totality of circumstances must be
probabilities (considered prima facie unreasonable)
considered in assessing the reasonableness of a claimed privacy interest:
Framework of how best to conduct a strip search incident to arrest  s.8 Charter:
1. Did the appellant have a reasonable expectation of privacy?
1. Can search be conducted at police station? Why / why not? Conducted in
>> Nature of subject matter gathered, direct interest? Subjective expectation of
manner to ensure health/safety of involved (strip searches in the field
privacy? Objectively reasonable expectation of privacy? Where did search occur?
are a greater privacy invasion; must prove urgency/necessity)
Was the info content in public view? Was the info content abandoned? Was such
2. Will it be authorized by a PO acting in a supervisor capacity?
info already in hands of 3rd parties? Was it subject to an obligation of
3. PO’s same gender as individual being searched?
confidentiality? Was police technique intrusive? Was use of evidence technique
4. # of PO’s involved in search are no more than necessary
objectively unreasonable? Did info expose any intimate details of appellant?
5. Minimum force necessary to conduct the strip search
2. If there was a reasonable expectation of privacy, was it violated by police
6. Carried out in a private area
conduct?
7. Conducted as quickly as possible; ensure that person is not completely
3. Was the appellant’s expectation of privacy objectively reasonable?
undressed at any one time
Protection of Reasonable Expectation of Privacy (Hunter)
8. Only visual inspection of arrestee’s genital/anal areas w/o contact?
Prior authorization
9. If visual inspection reveals presence in body cavity (not including mouth),
Reasonable probable grounds for search
give option of removing object himself or having object removed by a
Search conducted reasonably and within scope of warrant.
trained medical professional
No requirements if there is no reasonable expectation of privacy (R v Patrick)
10. Keep record of reasons for manner search was conducted
Edwards on People/Places (as cited in R v Hornick):
Charter, s. 24(1): “Anyone whose rights or freedoms, as guaranteed by this Charter,
1. Relief under s. 24(2) only available to a person whose Charter rights infringed
have been infringed or denied may apply to a court of competent jurisdiction to
2. All Charter rights (including s.8) protect people not places
obtain such remedy as the court considers appropriate and just in the
3. Accused must establish that personal right to privacy was violated
circumstances”. Ie. Stay of proceedings (R v SF)
4. 2 distinct inquiries: reasonable expectation of privacy and whether the search
Charter, s. 24(2): exclusion of evidence obtained where Charter rights violated.
conducted was unreasonable
“Where, in proceedings under subsection (1), a court concludes that evidence was
5. Reasonable expectation of privacy in totality of the circumstances…
obtained in a manner that infringed or denied any rights or freedoms guaranteed by
a. Presence at time of search
this Charter, the evidence shall be excluded if it is established that, having regard to
b. Possession or control of the property or place searched
all the circumstances, the admission of it in the proceedings would bring the
c. Ownership of the property or lace
administration of justice into disrepute.” (R v Gogol)
d. Historical use of the property or item
“Crown cannot rely on ex post facto justifications” (R v Gogol)
e. The ability to regulate access
- Maintaining integrity of and public confidence in the justice system (R v
f. Existence of a subjective expectation of privacy
Grant)
g. Objective reasonableness of the expectation
- Long-term effects (rather than immediate reaction to individual case) of
ALSO: Seriousness of crime (in Hornick, not a CC violation; was a Liquor Act offence)
admitting evidence ** systemic concerns
Warrant provisions, s.487 CC – versus s.8 Charter >> Searches by police may be
- Objective inquiry (what would reasonable person conclude re: admission
undertaken w/ authority of a warrant, issued by a judge under s.487 CC or through
of evidence)
some other legislation providing a warrant or warrant-like process
- To ensure evidence obtained through breach does no further damage
Warrantless searches >> may be authorized by legislation or common law rule
R v Grant – s 24(2) Exclusion of Evidence Analysis (see also Buhay test above)
- Search incident to a valid arrest (common law)
1. Seriousness of Charter-infringing state conduct
>> must relate to rasons for the arrest; arrest and detention must both be valid
2. Impact of the breach on the Charter-protected interests of the accused
(R v Golden)
3. Society’s interest in the adjudication of the case on its merits
- Search powers incident to investigative detention (R v Mann)
Social impacts of precedent? Policy considerations
A. IS IT A SEARCH?
R v Patrick
police inspection of garbage
Act of abandonment (threw garbage away) occurred prior to police intervention; no reasonable expectation
of privacy; did not constitute a S&S within the scope of s. 8; evidence was properly admissible
B. IS THE LAW REASONABLE?
Hunter v
S&S investigation for Combines
“ex parte application” = “from one party”; decided w/o presence of all parties to the controversy
Southam
Investigation Act violation
Authorization for search: must be reasonable and probable grounds to believe that an offence has been
committed and there is evidence to be found (not that there may be evidence)
Relevant section of Combines Investigation Act overtly inconsistent w/ s.8 Charter and of no force and effect
(b/c authorization only required “belief that there may be evidence”
R v Grant
Narcotic Control Act: warrantless
Violated s.8 for failure to require “prior authorization”. Rather than strike down s.10 of Act, Court “read it
search of places except dwelling
down” so that the power was only available in “exigent circumstances” where seeking a warrant is
houses where reasonable grounds to
impractical (imminent danger of the loss, destruction, or removal of evidence)
believe a narcotic would be found
R v Simmons
Customs Act provisions authorized
Survived a s. 8 scrutiny, b/c border searches engage a lesser expectation of privacy and relate to a
customs agents, on a “reasonable
heightened state interest of protecting borders.
suspicion” to search travellers
Rv
BC statute requiring prisoners to
Court found did NOT violate s.8 b/c prisoners have a lesser expectation of privacy and the state interest in
Fieldhouse
urinate under surveillance and face
maintaining order is compelling.
disciplinary sanctions for refusal
C. WAS SEARCH AUTHORIZED BY LAW?
R v MRM
school search of student w/
Higher expectation of privacy with respect to a “body” than with a “locker”
marijuana
Lower expectation of privacy at school than in normal circumstances
Difference btwn search by principal vs. PO (*relationship between principal-student)
TEST: If reasonable grounds to believe that a school rule has been or is being violated, and that evidence will
be found in location or on person of student – search by school officials of a student maybe undertaken.
“Neither feasible nor desirable that prior authorization be required in the case of a principal searching a
student”; absence of warrant will NOT create presumption of unreasonable search
Regarding reasonableness of search itself: distinction between “gun” and “gum”
>> Search was not unreasonable, no violation of s.8 rights
Crim Cheat Sheets – Johnson – Fall 2013 – Kaitlyn Kastelic
Detention? School authority ≠ detention; normal compulsion to obey school rules
>> Appellant was properly informed of s.10 rights upon arrest
R v AM
High School principal invited police
Dog sniffing did constitute a search WITHOUT proper grounds set out in MRM
to bring sniffer dogs to search school; Court assessed according to Collins test: 1. Not authorized by law (lacked grounds for reasonable suspicion);
no prior knowledge of drug presence
2. Reasonably well-educated guess by principal does not constitute reasonable grounds >> s.8 Charter breach
>> evidence inadmissible under s. 24(2) Charter (many searches = systemic failure to respect rights of
students)
Binnie (majority): lowered standard to reasonable suspicion to meet balance of opposing interests (*for
warrantless sniffer-dog searches): no physical contact required, dog does not disclose any other private info,
etc
Deschamps (dissent): agrees w/ reasonable suspicion standard; in this case: low reasonable expectation of
privacy in backpack + students know of zero-tolerance drug policy >> no breach of s.8 Charter
R v Kang
Common law authorization for police Court split!
Brown
to conduct sniffer-dog searches for
5 “reasonable suspicion” standard – 4 “reasonable and probably grounds” standard
general duty to investigate crime?
6 standard chosen not met (unreasonable search) – 3 standard chosen met (reasonable search)
R v Golden
Strip search; drug bust in Subway
Circumstances likely would have warranted a strip search @ police station; not on the field
Mmanner the search was conducted was unreasonable; breach of s.8 Charter; evidence excluded s. 24(2)
D. WAS SEARCH CARRIED OUT IN A REASONABLE WAY?
R v Gogol
Marijuana found during violent
Search: Despite warrant, search conducted in an unreasonable manner >> Property was needlessly and
search of house (w/ warrant)
intentionally damaged; unnecessary force = s.8 violation
Detention: Court found restraint and confinement of accused (handcuffed) clearly constituted a detention.
No grounds to justify detention = arbitrary detention (s.9 violation). No explanation of s. 10 rights (until much
later) = s. 10 violation >> exclusion of evidence through s.24(2) remedy
R v Hornick
liquor license investigation/bust at a
Male police officers entered party to investigate liquor license incompliance (entry to look for evidence was a
women’s bathhouse sexual
search). It amounted to a strip search because most women were undressed; reasonable expectation of
fundraiser
privacy from men entering; did not attempt to call/use female officers; no urgency; no arrests
>> Search was carried out in an unreasonable manner = s. 8 Charter violation
Temporal link between evidence found by undercover female PO’s and male entering to conduct
investigation; sufficient link to exclude all evidence acquired per s.24(2) AND stay of proceedings s.24(1)
R v SF
Two girls strip searched after arrest
No reason to subject girls to strip search; manner was unreasonable (naked; camera; unnecessary)
for robbery (occurred in past)
s. 8 violation >> remedy under s. 24(1) Charter for a stay of proceedings
R v Bond
Arrested (unlawfully) for public
Serious breach of her rights (s.8 violation)
intoxication; strip searched
>> granted a stay of proceedings under s. 24(1) Charter
R v Buhay
security guards who opened &
searched a locker at a bus terminal
S. 8 Charter did not apply; no reasonable expectation of privacy?
OTHER CHARTER SECTIONS
Charter, s. 1: guarantees rights & freedoms set out in the Charter subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society (as described in Hunter v Southam) >> Onus on person seeking to limit right or freedom to prove “demonstrably justified” (also see above)
Some rights can be limited if legislated, ie. taking a roadside sample if reason to suspect drinking & driving; can pull you over for a roadblock; etc.
Charter, s. 7 – right to silence (R v Grant, p. 358) **principle against self-incrimination
SENTENCING
Purposes of Sentencing – s. 718 (general deterrence, specific deterrence,
punishment, rehab)
CC sets legislative framework for sentencing powers: agg/mit factors (s. 718.2);
admissible evidence; burden of proof (*judicial discretion plays an important role)
S. 743: max term of 5 yrs imprison. if indictable offence fails to specify maximum
s. 787(1): max for summary conviction where unspecified is $ 2,000 fine or 6 mths
Sentencing options: alternative measures (s. 717); absolute discharge (s. 730);
conditional discharge (s. 730); suspended sentences (s. 731.1.a); fines (s. 734(1));
restitution (s. 738(1) + s. 739); victim fine surcharge (s 737(1)); probation (s.
731(1),(2)); conditional sentence of imprisonment (s. 742.1); imprisonment (s.
743.1); indeterminate sentence (s. 753(1); long term offender designation (s.
753(1)); additional orders / other
POLICING
Test for Reasonable Apprehension of Bias – McLachlin (R v RDS): What would an
informed person, viewing the matter realistically and practically – and having
thought the matter through – conclude? Would he think that it is more likely than
not that the decision-maker, whether consciously or unconsciously, would not
decide fairly? Grounds for this apprehension must be substantial.
Crim Cheat Sheets – Johnson – Fall 2013 – Kaitlyn Kastelic