1
Table of Contents
Introduction ................................................................................................................................................. 17
Jurisdiction 469, 553, 536 ....................................................................................................................... 17
Bail and Reverse Onus ........................................................................................................................ 18
536. (1) Remand by justice to provincial court judge in certain cases............................................... 19
Adversarial Process..................................................................................................................................... 19
Smythe ..................................................................................................................................................... 19
Smythe: Crown discretion in Hybrid Election .................................................................................... 19
Cunliffe v BC Law Society ...................................................................................................................... 19
Murray case ............................................................................................................................................ 20
577. Direct indictments ....................................................................................................................... 20
Reciprocal Disclosure ......................................................................................................................... 20
657.3 (1) Expert testimony................................................................................................................. 20
Packer Article – Two Models of the Criminal Process ........................................................................... 20
Police Powers .............................................................................................................................................. 21
S.8(3) Common law principles continued & S.9 No Common Law Crimes ...................................... 21
S. 43. Correction of child by force ...................................................................................................... 21
R v Landry 1986 ...................................................................................................................................... 22
S. 495. (1) Arrest without warrant by peace officer ........................................................................... 23
Landry Test: Prior to Feeney 1997, 4 steps to determine police power to enter dwelling-house to
effect arrest - after Feeney 4 steps continue to apply ......................................................................... 23
S. 529. (1) Including authorization to enter in warrant of arrest ........................................................ 24
R. v. Dedman 1985 .................................................................................................................................. 25
Dedman - Waterfield Test – Justification for police action - nature and scope of police duty +
powers associated with the duty – from Dedman ............................................................................... 28
Entrapment .................................................................................................................................................. 29
Mack v R 1988 ........................................................................................................................................ 29
Mack: Entrapment Test: ...................................................................................................................... 29
Indictment ........................................................................................................................................... 32
HYBRID Example S. 271 (Sexual Assault), S. 266 (Assault)............................................................ 33
2
S. 787. (1) General penalty – Summary Convictions; S. 173. Indecent Acts – Pure Summary
Convictions ......................................................................................................................................... 33
S. 579. (1) Attorney General may direct stay..................................................................................... 34
R. v. Barnes 1991 .................................................................................................................................... 34
Search and Seizure ...................................................................................................................................... 36
Colet v. R 1981........................................................................................................................................ 36
Colet: Prior to s.117.04.01 and s.487, warrant to “seize” did not include power to search premises . 37
S. 487. (1) Information for search warrant......................................................................................... 37
Zevallos 1987 .......................................................................................................................................... 38
Zevallos Rule: Warrant not Subject to Collateral Attack Pre-Trial .................................................... 38
Part XXVI — Extraordinary Remedies – Application of Part, S. 774............................................... 39
Five potential Prerogative Remedies, s.774 ........................................................................................ 39
R v Wills 1992 ......................................................................................................................................... 39
Wills Test: High Waiver Standard for Consent, to ensure fair treatment of individuals (DUI) .......... 41
R. v. Mellenthin 1992 .............................................................................................................................. 42
Mellenthin Test: When Random Stops exceed their jurisdiction; Not a General Search Warrant...... 43
Gillis v R 1982 ........................................................................................................................................ 44
Gillis: Proper Attack on Search Warrant Pre-Trial Certiorari – Jurisdictional – 4 corners ............... 44
R v Debot 1990........................................................................................................................................ 44
Debot Standard: Test of Evidence to be relied upon by the police to justify a warrantless search ..... 45
Search and Seizure (Constitutional) ............................................................................................................ 45
Hunter v Southam 1984 .......................................................................................................................... 45
Hunter: Prior Authorization Required for Valid Search and Seizure; Presumption Subject to Rebuttal
............................................................................................................................................................ 46
Collins v R 1987 ...................................................................................................................................... 49
Collins Factors for Test of Reasonable Warrantless Search ............................................................... 50
Collins Factors for Exclusion of Evidence under 24(2) ...................................................................... 52
R v Stillman 1997 .................................................................................................................................... 52
Stillman Test for Excluding Evidence under 24(2) ............................................................................. 54
R v Grant 2009 ........................................................................................................................................ 54
Grant Test: Revised Approach for Excluding Evidence under 24(2) ................................................. 56
R v Genest 1989 ...................................................................................................................................... 56
3
Genest: When Direct Attack on Warrant is possible Pre-Trial – Information Must be Accurate....... 58
R. v. Evans 1996...................................................................................................................................... 59
Evans: Common Law Implied Licence to Approach for Normal Communication, Not More........... 60
R. v. Buhay 2002/3 .................................................................................................................................. 60
Buhay: Reasonable Expectation of Privacy is Contextual .................................................................. 61
R. v. Lising 2005 ..................................................................................................................................... 62
Garofoli Test for Showing a Basis for the Cross-Examination of an Affiant ..................................... 63
R v Cornell 2010 ..................................................................................................................................... 64
Cornell: Absent Exigencies, Police Must Announce Before Forcing Entry....................................... 65
R v Morelli 2010 ..................................................................................................................................... 65
R v Morelli 2010 – ITO should not mislead, requires sufficient grounds ........................................... 66
Search of the Person.................................................................................................................................... 68
Laporte and the Queen 1972................................................................................................................... 68
Laporte: No Jurisdiction to Issue Warrant to Search Body Under Statute or Common Law ............. 69
Laporte: Prerogative Remedy Confined to Jurisdictional Error ......................................................... 69
R v Brezack 1949 .................................................................................................................................... 69
Cloutier v Langlois (1990) ...................................................................................................................... 70
Cloutier: Confirms Power to Search Incident to Arrest; Reasonable Balance ................................... 71
R v Greffe 1990 ....................................................................................................................................... 74
Greffe: Vitiating 10b “[i]mproper advice can vitiate or infringe the Charter right to counsel.” ........ 76
R v Golden 2001...................................................................................................................................... 78
Golden: Strip Search Incident to Arrest subject to Reasonableness and Exigencies, otherwise Prima
Facie Unreasonable ............................................................................................................................ 79
Golden: Guidelines for Conduct of Strip Searches from English Legislation .................................... 81
Wiretap........................................................................................................................................................ 83
R v Finlay 1985 ....................................................................................................................................... 83
S. 184.2 (1) Interception with consent ............................................................................................... 87
S. 185. (1) Application for authorization ........................................................................................... 87
Finlay, Duarte: Test to Authorize Wiretap – Ss 185, 186 .................................................................. 87
S. 186. (1) Judge to be satisfied ......................................................................................................... 87
R. v. Lising 2005 supra ........................................................................................................................... 88
Search (Privacy) .......................................................................................................................................... 88
4
United States v Knotts (1983) ................................................................................................................. 88
Knotts: Even with beeper, no reasonable expectation of privacy in movements of car...................... 89
R v Duarte and Sanelli 1990 ................................................................................................................... 89
Duarte: The Rule for Wiretap Authorization...................................................................................... 92
R v Wong 1990 ........................................................................................................................................ 92
Wong: Hotel Surveillance, Application of Duarte; No common law power for unauthorized video
surveillance, not in Code, but no bad faith.......................................................................................... 94
Wong: Test of Reasonable expectation of privacy: 2 issues ............................................................... 94
Privacy and Technology ............................................................................................................................. 95
R. v. Tessling 2004 .................................................................................................................................. 95
Tessling: With new Technology (FLIR) - reasonable expectation of privacy must also be objectively
reasonable – this is major battle ground in many s.8 cases [para 43] ................................................. 99
R v Gomboc 2010 .................................................................................................................................... 99
Gomboc - Accused’s electricity consumption not confidential or private information which he
entrusted to utility company .............................................................................................................. 101
Kang-Brown 2008 ................................................................................................................................. 101
Kang-Brown: S.8 standard is “reasonable suspicions” NOT Speculation without prior judicial
authorization ..................................................................................................................................... 102
R. v. M (A.) 2008 ................................................................................................................................... 103
R v M. (A.): Common Law power to search requires Reasonable Suspicion, Not Speculation;
Expectation of privacy in backpack is reasonable ............................................................................ 104
R v M. (A.): Indicia of Subjective and Objective Reasonable Expectation of Privacy ..................... 106
Arrest and Detention; Arrest ..................................................................................................................... 109
R v Pilcher 1981.................................................................................................................................... 109
504. In what cases justice may receive ............................................................................................. 109
Part XVI - 507. (1) Justice to hear informant and witnesses............................................................ 110
S. 601. (1) Amending defective indictment or count ....................................................................... 110
Pilcher: Peace Officer Laying Information Must be able to Swear that he believes Information to be
True; Duty to Inform Himself ........................................................................................................... 111
R v Jeffrey 1976 .................................................................................................................................... 111
Jeffrey: justice must “hear” substance underlying the information; not just mere reading of
allegation in information ................................................................................................................... 112
R v Stenning 1970 ................................................................................................................................. 112
5
R. v. Stenning (1970), 11 C.R.N.S. 68, [1970] 3 C.C.C. 145 (S.C.C.) — A peace officer investigating
a possible unlawful entry was engaged in the lawful execution of his duty whether or not he was
technically a trespasser on private property: ..................................................................................... 112
S. 270. (1) Assaulting a peace officer .............................................................................................. 113
Knowlton v R 1973 (Waterfield) ........................................................................................................... 113
S. 495. (1) Arrest without warrant by peace officer ......................................................................... 114
R v Biron 1976 ...................................................................................................................................... 115
Biron: Right to Resist: Final para: an individual if not being arrested lawfully has the right to resist,
but only without excessive force. ...................................................................................................... 115
R v Evans 1991...................................................................................................................................... 115
Evans: To arrest without warrant, police need subjective and objective reasonable grounds (S.495);
otherwise accused has right to resist, not guilty of Assault .............................................................. 115
R v Gamracy 1974 ................................................................................................................................ 117
Gamracy: S.29.2 – Duty to Disclose Warrant satisfied by Minimum of Telling Accused of its
Existence ........................................................................................................................................... 117
S. 29. (1) Duty of person arresting ................................................................................................... 117
R v Smith 1990 ...................................................................................................................................... 117
Smith: Valid 10b Waiver Requires Understanding of Jeopardy, Assessed on “all the circumstances.”
.......................................................................................................................................................... 119
R v Storrey 1990.................................................................................................................................... 119
S. 503. (1) Taking before justice ...................................................................................................... 121
Storrey: Arrest Without Warrant requires R & P grounds, subjectively and objectively ................. 121
R v Feeney 1997 .................................................................................................................................... 122
Feeney: In general, warrantless arrests in dwelling-houses are prohibited, + Landry Factors ......... 124
S. 529. (1) Including authorization to enter in warrant of arrest ...................................................... 125
Arrest and Detention; Detention ............................................................................................................... 126
R v Therens 1985 .................................................................................................................................. 126
Therens: When “Detained” there is a 10b Right to Counsel ............................................................ 127
R v Bazinet 1986 ................................................................................................................................... 128
Bazinet – Detention – Therens, then whether demand/direction results in liberty debrivation ........ 129
R v Moran 1987 .................................................................................................................................... 130
Moran: 7 Factors Relevant to Determining Detention ..................................................................... 131
R v Duguay 1985................................................................................................................................... 131
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Duguay: Test of “Arbitrary:” Continuum; reasonable grounds, honest but mistaken belief, no
grounds.............................................................................................................................................. 132
R v Simpson 1993 .................................................................................................................................. 133
Simpson: Dentention must first be based on “articulable cause,” reasonable suspicion, then
Waterfield or it is arbitrary ................................................................................................................ 134
R v Mann 2004 ...................................................................................................................................... 137
Mann: Waterfield Gloss on Brief Investigative Detention, Warrantless Search, caution not
necessarily required, 10b issue not settled yet .................................................................................. 139
R v Grant 2006, 2009 ............................................................................................................................ 142
Grant: Psychological detention established where person has legal obligation to comply, or no
realistic choice .................................................................................................................................. 144
R. v. Harrison, [2009]........................................................................................................................... 146
Harrison: Revised framework for exclusion of evidence under s. 24(2) – 3 Grant Criteria ............ 146
R. v. Suberu, [2009] .............................................................................................................................. 146
Suberu: What is Detention – Fact Specific – Not always at the Beginning of Encounter ................ 147
Suberu 2009; Confirms ManninenThe Meaning of “Without Delay” in Section 10(b) of the Charter
.......................................................................................................................................................... 147
Police Interrogation and the Charter ........................................................................................................ 149
R v Hebert 1990 .................................................................................................................................... 149
Hebert: Right to Silence; Police Cannot do indirectly what they cannot do directly ....................... 151
R v Manninen 1987 ............................................................................................................................... 152
Manninen: 2 duties after 10b caution: provide opportunity and cease questioning until exercized . 153
LECLAIR and ROSS v. R.1989 ......................................................................................................... 154
Leclair & Ross v R: Inability to contact lawyer immediately not same as Waiver ........................... 155
Smith v R 1989 ...................................................................................................................................... 156
Smith v R: Accused must be Diligent in Exercise of 10b Rights ...................................................... 157
R v McKenzie ........................................................................................................................................ 157
McKenzie: Issue: meaning of “elicit;” - causal link between conduct of police and incriminating of
statement ........................................................................................................................................... 157
R v Brydges 1990 .................................................................................................................................. 158
Brydges: Must ensure accused has full understanding of Right to Counsel “now” – Caution ReWorded.............................................................................................................................................. 159
Clarkson v R 1986................................................................................................................................. 161
Clarkson v R: 10b includes “awareness of consequences” - Intoxication ........................................ 162
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R v Evans 1991...................................................................................................................................... 162
Evans: 3 Police Duties to Inform Detainee of Right to Counsel ...................................................... 164
R. v. Whittle (1994) ............................................................................................................................... 165
Whittle: Same Test for competency to exercise right/ fitness for trial: Operating Mind .................. 167
R v Oickle 2000 ..................................................................................................................................... 168
Oickle: Confession inadmissible if circumstances raise reasonable doubt of voluntariness ............ 170
R v Suberu 2007 (Ont. C.A.) ................................................................................................................. 172
Suberu OCA: 10b applies to detention (Therens), Some “brief interlude” Countenanced ............... 173
R v Sinclair 2010................................................................................................................................... 173
Sinclair: Section 10(b) does not mandate the presence of defence counsel throughout a custodial
interrogation ...................................................................................................................................... 173
BAIL ......................................................................................................................................................... 174
Holland: “The Verdict on Bail Court,” Toronto Star, Sept. 27, 1992 ................................................... 174
R v Thompson 1972............................................................................................................................... 174
The Bail Reform Act provides a complete code dealing with "judicial interim release".................. 175
Re Powers and the Queen 1972 ............................................................................................................ 175
The Approach: S.515, the accused to be released on his giving an undertaking without conditions 176
[Current Provisions]: Judicial Interim Release ................................................................................. 176
The “Ladder Approach:”................................................................................................................... 176
Reverse Onus .................................................................................................................................... 177
R. v. Perron (1989) ............................................................................................................................... 179
R v Perron 1989: just because it’s a 469 offence doesn’t mean that they cannot establish right to bail
.......................................................................................................................................................... 180
Re Keenan and the Queen 1979 ............................................................................................................ 181
Keenan: No jurisdiction to order medical treatment when on bail ................................................... 181
R v Garrington 1972 ............................................................................................................................. 181
R v Garrington 1972: Bail cannot be so prohibitive as to create de facto detention order ............... 181
R. v. Pearson (1992) ............................................................................................................................. 181
R v Pearson 1992: reverse onus in 515(6)(d) doesn’t offend charter because liberty is still possible.
.......................................................................................................................................................... 182
R. v. Morales, [1992] ............................................................................................................................ 182
Morales: Strikes down “public interest” ground to deny bail: void for vagueness .......................... 184
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R. v. Hall, [2002] .................................................................................................................................. 184
Hall: Strikes Down “Any other just Cause.” .................................................................................... 186
R v Villota 2002 (Ont. S.C.J) ................................................................................................................ 186
Part XXV – Effect and Enforcement of Recognizances – S. 770. (1) Default to be endorsed ........ 187
R. v. LaFramboise 2005 OCA ............................................................................................................... 190
Procedure on Appeals – S. 680. (1) Review by court of appeal ...................................................... 190
R v Klymchuck 2008 OCA..................................................................................................................... 190
Klymchuk: Multiple Appeals, “Public Interest” balances enforceability and reviewability ............. 191
S. 679. (1) Release pending determination of appeal....................................................................... 192
Abuse of Process ....................................................................................................................................... 192
R v Rourke 1978 .................................................................................................................................... 192
R v Jewitt 1985 ...................................................................................................................................... 196
R v Young 1984 ..................................................................................................................................... 197
R v Keyowski 1986 ................................................................................................................................ 198
R v Keyowski 1988(2) ........................................................................................................................... 199
Keyowski 1988 (2) – Follows Rourke, Young; Affirms Jewitt; The Test for Abuse of Process ...... 199
R. v. Mitchelson (1992) ......................................................................................................................... 200
Mitchelson: Keyowski applied – series of trials can constitute abuse of process .............................. 200
Part XXVII – Summary Convictions – (Time Constraints) - 786. (1) Application of Part ............. 201
“Alternative Charges” – Over 80 v Impaired driving – Ss. 253 (a) or (b) ........................................ 201
Re Parkin and the Queen 1986 ............................................................................................................. 202
Parkin: Abuse of Process to attempt change to Indictment over information, due to limitation after
jeopardy attached and in light of deliberate choice earlier to proceed summarily ............................ 203
Part XXVII – Summary Convictions – S. 786. (1) Application of Part ........................................... 203
S. 601. (1) Amending defective indictment or count ....................................................................... 204
R. v. Jans (1990) ................................................................................................................................... 204
Jans: Crown Re-Election to cure Mistake (limitation period) is Discretionary where no prejudice,
before jeopardy attaches.................................................................................................................... 204
R. v. O'Connor (1995) ........................................................................................................................... 205
O’Connor: CL Doctrine of Abuse of Process, Subsumed into Charter Principles; requires showing
.......................................................................................................................................................... 206
S. 278.1 Definition of “record” ......................................................................................................... 209
9
R. v. Ng (2003) ...................................................................................................................................... 211
Ng: Judge Shopping: Accused Bares Burden of Showing Abuse in Exercise of Crown Discretion 213
S. 561. (1) Right to re-elect .............................................................................................................. 215
S. 568. Attorney General may require trial by jury........................................................................... 215
R v Nixon 2011 SCC ............................................................................................................................. 216
Nixon: Is Repudiation of plea an abuse of process, contract, undertaking? No: Discretionary ....... 216
Preliminary Hearing .................................................................................................................................. 216
Criminal Code Provisions ..................................................................................................................... 216
Part XVIII procedure on preliminary inquiry – ss. 535, 536, 537, 539, 541, 548, 549 .................... 216
Caccamo v R, SCC 1976 ....................................................................................................................... 220
Caccamo v R SCC 1976 - This was a pre-charter case - Sole purpose of preliminary to satisfy judge
that sufficient evidence to put accused to trial, Crown has discretion to present only evidence for
prima facie case................................................................................................................................. 221
R. v. Patterson, [1970] S.C.R................................................................................................................ 221
R. v. Patterson 1970 - No power at preliminary hearing for defence to require production of witness
statement ........................................................................................................................................... 222
R. v. Persaud (1989)(OCA) ................................................................................................................... 222
S. 676. (1) Right of Attorney General to appeal .............................................................................. 222
R v Persaud 1989 – No right to appeal from preliminary hearing – only prerogative remedy ......... 223
Re Cover and the Queen 1988 OCA ..................................................................................................... 223
R v Cover 1988 - Accused has right to use preliminary to test Crown’s case .................................. 224
U.S. v. Sheppard, S.C.C. (1977)............................................................................................................ 224
U.S. v Sheppard SCC 1977 – Test for Committal to Trial – Still good law – Arcuri Adds Nuance. 224
R. v. Arcuri, S.C.C. (2001) .................................................................................................................... 224
R v Arcuri SCC 2001 – Test Same in Circumstantial case, limited weighing of possible Inferences
.......................................................................................................................................................... 225
R. v. Hynes, [2001] SCC ....................................................................................................................... 226
R v Hynes 2001 - Hynes is the authority that prelim judge can’t rule on Charter issues. ................. 228
Disclosure ................................................................................................................................................. 228
R. v. Savion (1980), OCA ..................................................................................................................... 228
Part XX – Procedure in Jury Trials and General Provisions – S. 603. Right of accused .................. 229
S. 541. (1) Hearing of witnesses ...................................................................................................... 229
R. v. Savion (1980), OCA – Defence entitled to Production of his own Statement (s.603) .............. 230
10
R. v. Arviv (1985), OCA ........................................................................................................................ 231
R v Arviv 1985 stands for Crown power of direct indictment ........................................................... 232
R. v. Stinchcombe (1991), SCC ............................................................................................................. 233
R v Stinchcombe 1991 - Crown has obligation to disclose all relevant information ......................... 234
Part XIV Jurisdiction - Rules of Court – S. 482. (1) Power to make rules ...................................... 236
Crown Policy Manual – Disclosure ...................................................................................................... 236
Practice Memorandum - Disclosure ...................................................................................................... 236
R. v. McNeil, [2009] 1 S.C.R ................................................................................................................ 237
R v McNeil 2009 Defence should always make a “McNeil Disclosure” request. ............................. 238
S.603 Right of Accused .................................................................................................................... 238
Guilty Plea, Plea Bargaining, and Included Offences ............................................................................... 239
“The Ordering of Justice” – Ericson and Baranek 1982 ....................................................................... 239
R v Adgey 1973 – New Section added after Adgey: Plea Inquiry: Pleas S.606 - Part XX – Procedure
in Jury Trials and General Provisions ............................................................................................... 239
R v Adgey 1973 SCC ............................................................................................................................. 240
R v Adgey 1973 SCC Point: Whether an inquiry must be held. This case is the good example of why
the 606 was added to the code. ......................................................................................................... 241
R. v. Rajaeefard (1996), OCA ............................................................................................................... 241
R. v. Rajaeefard (1996), Point: the trial judge should play no role in a plea bargain discussion...... 242
R. v. Naraindeen (1990), OCA .............................................................................................................. 243
S.606 (1) Please Permitted (4) Included or other offence ................................................................. 244
R. v. Naraindeen (1990), OCA - Point: Judge has discretion to agree to lesser and included or another
offence. The crown must agree. ........................................................................................................ 244
R. v. Gardiner (1982), SCC .................................................................................................................. 244
R. v. Gardiner (1982), Codifying the Gardner decision: S.724 & Purpose and Principles of
Sentencing – S. 718 - Part XXIII ...................................................................................................... 245
R v Hansen 1977 (Man. C. A.) .............................................................................................................. 246
R v Hansen 1977 - S. 723 Parties able to Comment prior to Sentence - Example of when a guilty plea
can be withdrawn .............................................................................................................................. 247
R v Antoine 1984 (Que. C. A.)............................................................................................................... 247
A plea inquiry was not mandatory. There is a burden on the accused to show that the plea should be
set aside. Note 606 1.1. .................................................................................................................... 248
R. v. Wood (1976), (Alta. C.A.) ............................................................................................................. 248
11
R. v. Wood (1976) – Judge should not plea bargain – appeals of sentence ....................................... 249
R. v. Walton (1973), (N.B.C.A) [Accused Appeal of Sentence] 675. (1) Right of appeal of person
convicted ........................................................................................................................................... 249
[Crown Appeal of Sentence] 676. (1) Right of Attorney General to appeal .................................... 250
S. 662. (1) Offence charged, part only proved ................................................................................. 250
R. v. Walton (1973), S. 662 – Different Ways in which a Lesser and Included Offence can be Found
.......................................................................................................................................................... 251
Point: Lesser and included offences can be useful for pleas and for trials ....................................... 251
R. v. McDowell, [1977], (Alta. C.A.) .................................................................................................... 251
S. 348. (1) Breaking and entering with intent, committing offence or breaking.............................. 252
S. 581. (1) Substance of offence - General Provisions respecting Counts ....................................... 252
R. v. McDowell, [1977] - There are three ways in which one offence may be included in another.. 253
R. v. Luckett (1981), SCC...................................................................................................................... 253
S. 343. Robbery................................................................................................................................. 253
R. v. Luckett (1981), SCC - Point: Assault and theft would be included offences - as described in the
enactment creating the offence. ........................................................................................................ 254
R v Eizenga 2011 OCA ......................................................................................................................... 254
S. 606. (1) Pleas permitted ............................................................................................................... 254
R v Eizenga 2011 OCA - Now that we have plea inquiry, much harder to reverse a plea. .............. 255
Rules of Court ........................................................................................................................................... 255
The Tests ................................................................................................................................................... 256
Adversarial Process............................................................................................................................... 256
Smythe: Crown discretion in Hybrid Election .................................................................................. 256
Police Powers ........................................................................................................................................ 256
Landry 1986 Test: Prior to Feeney 1997, 4 steps to determine police power to enter dwelling-house
to effect arrest - after Feeney 4 steps continue to apply ................................................................... 256
Dedman 1985 - Waterfield Test – Justification for police action - nature and scope of police duty +
powers associated with the duty – from Dedman ............................................................................. 256
Entrapment ............................................................................................................................................ 257
Mack 1988: Entrapment Test: ........................................................................................................... 257
Search And Seizure ............................................................................................................................... 257
Colet 1981: Prior to s.117.04.01 and s.487, warrant to “seize” did not include power to search
premises ............................................................................................................................................ 257
12
Zevallos 1987 Rule: Warrant not Subject to Collateral Attack Pre-Trial ......................................... 257
Wills 1992 Test: High Waiver Standard for Consent, to ensure fair treatment of individuals (DUI)258
Mellenthin 1992 Test: When Random Stops exceed their jurisdiction; Not a General Search Warrant
.......................................................................................................................................................... 258
Gillis 1982: Proper Attack on Search Warrant Pre-Trial Certiorari – Jurisdictional – 4 corners .... 258
Debot 1990 Standard: Test of Evidence to be relied upon by the police to justify a warrantless
search ................................................................................................................................................ 259
Search and Seizure Constitutional ........................................................................................................ 259
Hunter 1984: Prior Authorization Required for Valid Search and Seizure; Presumption Subject to
Rebuttal ............................................................................................................................................. 259
Collins 1987: Factors for Test of Reasonable Warrantless Search .................................................. 259
Collins 1987 Factors for Exclusion of Evidence under 24(2) ........................................................... 259
Stillman 1997 Test for Excluding Evidence under 24(2) .................................................................. 260
Grant Test 2009: Revised Approach for Excluding Evidence under 24(2) ...................................... 260
Genest 1989: When Direct Attack on Warrant is possible Pre-Trial – Information Must be Accurate
.......................................................................................................................................................... 260
Evans 1996: Common Law Implied Licence to Approach for Normal Communication, Not More 261
Buhay 2002/3: Reasonable Expectation of Privacy is Contextual .................................................... 261
Garofoli Test (Lising 2005) for Showing a Basis for the Cross-Examination of an Affiant ............ 261
Cornell 2010: Absent Exigencies, Police Must Announce Before Forcing Entry............................ 262
R v Morelli 2010 – ITO should not mislead, requires sufficient grounds ......................................... 262
Search of the Person.............................................................................................................................. 262
Laporte 1972: No Jurisdiction to Issue Warrant to Search Body Under Statute or Common Law .. 262
Laporte 1972: Prerogative Remedy Confined to Jurisdictional Error .............................................. 262
Cloutier 1990: Confirms Power to Search Incident to Arrest; Reasonable Balance ........................ 263
Greffe: Vitiating 10b “[i]mproper advice can vitiate or infringe the Charter right to counsel.” ...... 263
Golden 2001: Strip Search Incident to Arrest subject to Reasonableness and Exigencies, otherwise
Prima Facie Unreasonable................................................................................................................ 263
Golden 2001: Guidelines for Conduct of Strip Searches from English Legislation ......................... 263
Wiretap.................................................................................................................................................. 264
Finlay 1985, Duarte: Test to Authorize Wiretap – Ss 185, 186 ....................................................... 264
Search (Privacy) .................................................................................................................................... 264
Knotts 1983: Even with beeper, no reasonable expectation of privacy in movements of car ........... 264
13
Duarte 1990: The Rule for Wiretap Authorization........................................................................... 265
Wong 1990: Hotel Surveillance, Application of Duarte; No common law power for unauthorized
video surveillance, not in Code, but no bad faith .............................................................................. 265
Wong 1990: Test of Reasonable expectation of privacy: 2 issues .................................................... 265
Privacy and Technology ....................................................................................................................... 265
Tessling 2004: With new Technology (FLIR) - reasonable expectation of privacy must also be
objectively reasonable – this is major battle ground in many s.8 cases [para 43] ............................ 265
Gomboc 2010 - Accused’s electricity consumption not confidential or private information which he
entrusted to utility company .............................................................................................................. 266
Kang-Brown 2008: S.8 standard is “reasonable suspicions” NOT Speculation without prior judicial
authorization ..................................................................................................................................... 266
R v M. (A.) 2008: Common Law power to search requires Reasonable Suspicion, Not Speculation;
Expectation of privacy in backpack is reasonable ............................................................................ 266
R v M. (A. 2008): Indicia of Subjective and Objective Reasonable Expectation of Privacy ............ 266
504. In what cases justice may receive ............................................................................................. 267
507. (1) Justice to hear informant and witnesses ............................................................................. 267
Arrest and Detention: Arrest ................................................................................................................. 268
Pilcher 1981: Peace Officer Laying Information Must be able to Swear that he believes Information
to be True; Duty to Inform Himself .................................................................................................. 268
Jeffrey 1976: justice must “hear” substance underlying the information; not just mere reading of
allegation in information ................................................................................................................... 268
R. v. Stenning (1970), 11 C.R.N.S. 68, [1970] 3 C.C.C. 145 (S.C.C.) — Waterfield - A peace officer
investigating a possible unlawful entry was engaged in the lawful execution of his duty whether or
not he was technically a trespasser on private property: ................................................................... 268
Biron 1976: Right to Resist: Final para: an individual if not being arrested lawfully has the right to
resist, but only without excessive force. ........................................................................................... 268
Evans 1991: To arrest without warrant, police need subjective and objective reasonable grounds
(S.495); otherwise accused has right to resist, not guilty of Assault ................................................ 269
Gamracy 1974: S.29.2 – Duty to Disclose Warrant satisfied by Minimum of Telling Accused of its
Existence ........................................................................................................................................... 269
Smith 1990: Valid 10b Waiver Requires Understanding of Jeopardy, Assessed on “all the
circumstances.” ................................................................................................................................. 269
Storrey 1990: Arrest Without Warrant requires R & P grounds, subjectively and objectively ........ 269
Feeney 1997: In general, warrantless arrests in dwelling-houses are prohibited, + Landry Factors 269
Arrest and Detention: Detention ........................................................................................................... 270
14
Therens 1985: When “Detained” there is a 10b Right to Counsel.................................................... 270
Bazinet 1986 – Detention – Therens, then whether demand/direction results in liberty debrivation 270
Moran 1987: 7 Factors Relevant to Determining Detention ............................................................ 270
Duguay 1985: Test of “Arbitrary:” Continuum; reasonable grounds, honest but mistaken belief, no
grounds.............................................................................................................................................. 271
Simpson 1993: Dentention must first be based on “articulable cause,” reasonable suspicion, then
Waterfield or it is arbitrary ................................................................................................................ 271
Mann 2004: Waterfield Gloss on Brief Investigative Detention, Warrantless Search, caution not
necessarily required, 10b issue not settled yet .................................................................................. 271
Grant 2006: Psychological detention established where person has legal obligation to comply, or no
realistic choice .................................................................................................................................. 271
Harrison 2009: Revised framework for exclusion of evidence under s. 24(2) – 3 Grant Criteria ... 272
Suberu 2009: What is Detention – Fact Specific – Not always at the Beginning of Encounter ....... 272
Suberu 2009; Confirms ManninenThe Meaning of “Without Delay” in Section 10(b) of the Charter
.......................................................................................................................................................... 272
Police Interrogation and The Charter .................................................................................................... 272
Hebert 1990: Right to Silence; Police Cannot do indirectly what they cannot do directly .............. 272
Manninen 1987: 2 duties after 10b caution: provide opportunity and cease questioning until
exercized ........................................................................................................................................... 273
Leclair & Ross v R 1989 : Inability to contact lawyer immediately not same as Waiver ................. 273
Smith v R 1989: Accused must be Diligent in Exercise of 10b Rights ............................................. 273
McKenzie 2002: Issue: meaning of “elicit;” - causal link between conduct of police and
incriminating of statement ................................................................................................................ 273
Brydges 1990: Must ensure accused has full understanding of Right to Counsel “now” – Caution ReWorded.............................................................................................................................................. 274
Clarkson v R 1986: 10b includes “awareness of consequences” - Intoxication ............................... 274
Evans 1991: 3 Police Duties to Inform Detainee of Right to Counsel ............................................. 274
Whittle 1994: Same Test for competency to exercise right/ fitness for trial: Operating Mind ......... 274
Oickle 2000: Confession inadmissible if circumstances raise reasonable doubt of voluntariness ... 275
Suberu 2007 OCA: 10b applies to detention (Therens), Some “brief interlude” Countenanced ...... 275
Sinclair 2010: Section 10(b) does not mandate the presence of defence counsel throughout a
custodial interrogation....................................................................................................................... 275
BAIL ..................................................................................................................................................... 276
The Approach: the accused be released on his giving an undertaking without conditions ............... 276
15
[Current Provisions]: Judicial Interim Release ................................................................................. 276
The “Ladder Approach:” ................................................................................................................... 276
Reverse Onus .................................................................................................................................... 277
R v Perron 1989: just because it’s a 469 offence doesn’t mean that they cannot establish right to bail
.......................................................................................................................................................... 278
Keenan 1979: No jurisdiction to order medical treatment when on bail .......................................... 278
R v Garrington 1972: Bail cannot be so prohibitive as to create de facto detention order ............... 278
R v Pearson 1992: reverse onus in 515(6)(d) doesn’t offend charter because liberty is still possible.
.......................................................................................................................................................... 278
Morales 1992: Strikes down “public interest” ground to deny bail: void for vagueness ................. 278
Hall 2002: Strikes Down “Any other just Cause.” ........................................................................... 278
Klymchuk: Multiple Appeals, “Public Interest” balances enforceability and reviewability ............. 278
Abuse of Process ....................................................................................................................................... 278
Keyowski 1988 (2) – Follows Rourke, Young; Affirms Jewitt; The Test for Abuse of Process ...... 279
Parkin: Abuse of Process to attempt change to Indictment over information, due to limitation after
jeopardy attached and in light of deliberate choice earlier to proceed summarily ............................ 279
Jans: Crown Re-Election to cure Mistake (limitation period) is Discretionary where no prejudice,
before jeopardy attaches.................................................................................................................... 279
O’Connor: CL Doctrine of Abuse of Process, Subsumed into Charter Principles; requires showing
.......................................................................................................................................................... 279
Ng: Judge Shopping: Accused Bares Burden of Showing Abuse in Exercise of Crown Discretion 279
Mitchelson: Keyowski applied – series of trials can constitute abuse of process .............................. 279
Parkin: Abuse of Process to attempt change to Indictment over information, due to limitation after
jeopardy attached and in light of deliberate choice earlier to proceed summarily ............................ 279
Nixon: Is Repudiation of plea an abuse of process, contract, undertaking? No: Discretionary ....... 279
Preliminary Hearing .................................................................................................................................. 280
Caccamo v R - This was a pre-charter case - Sole purpose of preliminary to satisfy judge that
sufficient evidence to put accused to trial, Crown has discretion to present only evidence for prima
facie case ........................................................................................................................................... 280
R. v. Patterson 1970 - No power at preliminary hearing for defence to require production of witness
statement ........................................................................................................................................... 280
R v Persaud 1989 – No right to appeal from preliminary hearing – only prerogative remedy ......... 280
R v Cover1988 - Accused has right to use preliminary to test Crown’s case ................................... 280
U.S. v Sheppard SCC 1977 – Test for Committal to Trial – Still good law – Arcuri Adds Nuance. 280
16
R v Arcuri SCC 2001 – Test Same in Circumstantial case, limited weighing of possible Inferences
.......................................................................................................................................................... 280
R v Hynes 2001 - Hynes is the authority that prelim judge can’t rule on Charter issues. ................. 280
Disclosure ................................................................................................................................................. 281
R. v. Savion (1980), OCA – Defence entitled to Production of his own Statement (s.603).............. 281
R v Arviv 1985 stands for Crown power of direct indictment ........................................................... 281
R v Stinchcombe 1991 - Crown has obligation to disclose all relevant information ......................... 281
R v McNeil 2009 Defence should always make a “McNeil Disclosure” request. ............................. 281
Guilty Plea, Plea Bargaining, and Included Offences ............................................................................... 281
R v Adgey 1973 – New Section added after Adgey: Plea Inquiry: Pleas S.606 - Part XX – Procedure
in Jury Trials and General Provisions ............................................................................................... 281
R. v. Rajaeefard (1996), Point: the trial judge should play no role in a plea bargain discussion...... 281
R. v. Naraindeen (1990), OCA - Point: Judge has discretion to agree to lesser and included or another
offence. The crown must agree. ........................................................................................................ 282
R. v. Gardiner (1982), Codifying the Gardner decision: S.724 & Purpose and Principles of
Sentencing – S. 718 - Part XXIII ...................................................................................................... 282
R v Hansen 1977 - S. 723 Parties able to Comment prior to Sentence - Example of when a guilty plea
can be withdrawn .............................................................................................................................. 282
R. v. Wood (1976) – Judge should not plea bargain – appeals of sentence ....................................... 282
R. v. Walton (1973), S. 662 – Different Ways in which a Lesser and Included Offence can be Found
.......................................................................................................................................................... 282
R. v. McDowell, [1977] - There are three ways in which one offence may be included in another.. 282
R. v. Luckett (1981), SCC - Point: Assault and theft would be included offences - as described in the
enactment creating the offence. ........................................................................................................ 282
R v Eizenga 2011 OCA - Now that we have plea inquiry, much harder to reverse a plea. .............. 282
17
Introduction
Crim Pro Monday august 29 – First Class – Justice Rick Libman
Rick.libman@rogers.com August 31 – 2nd Class
Jurisdiction 469, 553, 536
469 - Part XIV – Jurisdiction – s. 469
469. Court of criminal jurisdiction — Every court of criminal jurisdiction has jurisdiction to try an indictable offence
other than:
(a) an offence under any of the following sections:
(i) section 47 (treason),
(ii) section 49 (alarming Her Majesty),
(iii) section 51 (intimidating Parliament or a legislature),
(iv) section 53 (inciting to mutiny),
(v) section 61 (seditious offences),
(vi) section 74 (piracy),
(vii) section 75 (piratical acts), or
(viii) section 235 (murder),
(b) Accessories — the offence of being an accessory after the fact to high treason or treason or murder,
(c) Corrupting justice — an offence under section 119 (bribery) by the holder of a judicial office,
(c.1) Crimes against humanity — an offence under any of sections 4 to 7 of the Crimes Against Humanity
and War Crimes Act;
(d) Attempts — the offence of attempting to commit any offence mentioned in subparagraphs (a) (i) to (vii),
or
(e) Conspiracy — the offence of conspiring to commit any offence mentioned in paragraph (a).
Provincial absolute jurisdiction + all summary conviction offences in provincial courts
553 - Part XIX – Indictable Offences – Trial Without a Jury s. 553
553. Absolute jurisdiction — The jurisdiction of a provincial court judge, or in Nunavut, of a judge of the Nunavut
Court of Justice, to try an accused is absolute and does not depend on the consent of the accused where the accused is
charged in an information
(a) with
(i) theft, other than theft of cattle,
(ii) obtaining money or property by false pretences,
(iii) unlawfully having in his possession any property or thing or any proceeds of any property or
thing knowing that all or a part of the property or thing or of the proceeds was obtained by or
derived directly or indirectly from the commission in Canada of an offence punishable by
indictment or an act or omission anywhere that, if it had occurred in Canada, would have
constituted an offence punishable by indictment,
(iv) having, by deceit, falsehood or other fraudulent means, defrauded the public or any person,
whether ascertained or not, of any property, money or valuable security, or
(v) mischief under subsection 430(4),
where the subject-matter of the offence is not a testamentary instrument and the alleged value of
the subject-matter of the offence does not exceed five thousand dollars;
(b) with counselling or with a conspiracy or attempt to commit or with being an accessory after the fact to
the commission of
(i) any offence referred to in paragraph (a) in respect of the subject-matter and value thereof
referred to in that paragraph, or
(ii) any offence referred to in paragraph (c); or
(c) with an offence under
(i) section 201 (keeping gaming or betting house),
(ii) section 202 (betting, pool-selling, book-making, etc.),
(iii) section 203 (placing bets),
(iv) section 206 (lotteries and games of chance),
(v) section 209 (cheating at play),
(vi) section 210 (keeping common bawdy-house),
18
(vii) [Repealed 2000, c. 25, s. 4.]
(viii) section 393 (fraud in relation to fares),
(viii.1) section 811 (breach of recognizance),
(ix) subsection 733.1(1) (failure to comply with probation order),
(x) paragraph 4(4)(a) of the Controlled Drugs and Substances Act, or
(xi) subsection 5(4) of the Controlled Drugs and Substances Act.
536. (1) Remand by justice to provincial court judge in certain cases — Where an accused is before a justice other than a
provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction under section 553,
the justice shall remand the accused to appear before a provincial court judge having jurisdiction in the territorial division in
which the offence is alleged to have been committed.
(2) Election before justice in certain cases — If an accused is before a justice charged with an indictable offence, other than an
offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under
section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following
words:
You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary
inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a
judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and
jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed
to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or
the prosecutor requests one. How do you elect to be tried?
(3) Procedure where accused elects trial by provincial court judge — Where an accused elects to be tried by a provincial
court judge, the justice shall endorse on the information a record of the election and shall
(a) where the justice is not a provincial court judge, remand the accused to appear and plead to the charge before a
provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been
committed; or
(b) where the justice is a provincial court judge, call on the accused to plead to the charge and if the accused does not
plead guilty, proceed with the trial or fix a time for the trial.
(4) Request for preliminary inquiry — If an accused elects to be tried by a judge without a jury or by a court composed of a
judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a
court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on
the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482
or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.
(4.1) Endorsement on the information — If an accused elects to be tried by a judge without a jury or by a court composed of a
judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a
court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall endorse on the
information and, if the accused is in custody, on the warrant of remand, a statement showing
(a) the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be;
and
(b) whether the accused or the prosecutor has requested that a preliminary inquiry be held.
(4.2) Preliminary inquiry if two or more accused — If two or more persons are jointly charged in an information and one or
more of them make a request for a preliminary inquiry under subsection (4), a preliminary inquiry must be held with respect to all
of them.
(4.3) When no request for preliminary inquiry — If no request for a preliminary inquiry is made under subsection (4), the
justice shall fix the date for the trial or the date on which the accused must appear in the trial court to have the date fixed.
(5) Jurisdiction — Where a justice before whom a preliminary inquiry is being or is to be held has not commenced to take
evidence, any justice having jurisdiction in the province where the offence with which the accused is charged is alleged to have
been committed has jurisdiction for the purposes of subsection (4).
R.S.C. 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9
Bail and Reverse Onus
1.
A 469 offence – bail hearing must before a superior court judge. S.522 – reverse burden on balance of probability.
19
2.
If someone on bail for an indictable offence, arrest for another indictable or hybrid offence – also has a reverse burden.
Until crown makes election, it is assumed to be indictable – so reverse onus at bail.
The back of the Information would record the sequence of subsequent progress after first appearance.
536. (1) Remand by justice to provincial court judge in certain cases
Part XVIII – Procedure on Preliminary Inquiry - Jurisdiction
536. (1) Remand by justice to provincial court judge in certain cases — Where an accused is before a justice other
than a provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction
under section 553, the justice shall remand the accused to appear before a provincial court judge having
jurisdiction in the territorial division in which the offence is alleged to have been committed.
(2) Election before justice in certain cases — If an accused is before a justice charged with an indictable offence,
other than an offence listed in section 469, and the offence is not one over which a provincial court judge has
absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the
accused to an election in the following words:
You have the option to elect to be tried by a provincial court judge without a jury and without having had a
preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a
court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a
court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed
of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury,
you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
(3) Procedure where accused elects trial by provincial court judge — Where an accused elects to be tried by a
provincial court judge, the justice shall endorse on the information a record of the election and shall
(a) where the justice is not a provincial court judge, remand the accused to appear and plead to the charge
before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to
have been committed; or
(b) where the justice is a provincial court judge, call on the accused to plead to the charge and if the accused
does not plead guilty, proceed with the trial or fix a time for the trial.
(4) Request for preliminary inquiry — If an accused elects to be tried by a judge without a jury or by a court
composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b)
to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section
469, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within
the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a
preliminary inquiry into the charge.
Adversarial Process
Today’s Cases:
Smythe
(pp. 25-28)
Smythe: Crown discretion in Hybrid Election
Prosecutorial discretion to decide whether to proceed by indictment or summarily with dual, hybrid
offences.
Boucher – a classical describing the role of the crown. The crown arguing in an inflammatory way goes against his
job description
…[The Crown’s] duty is not so much to obtain a conviction as to assist the judge and jury in ensuring that the
fullest possible justice is done. …”
Cunliffe v BC Law Society
- disclosure case
20
Murray case
- Obstruct Justice: The judge accepted that Murray had a strategic purpose.
Part XX – Procedure in Jury Trials and General Provisions
S. 577 – No Preliminary hearing:
577. Direct indictments
577. Direct indictments — Despite section 574, an indictment may be preferred even if the accused has not been
given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded
or a preliminary inquiry has been held and the accused has been discharged, if
(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General
intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in
court; or
(b) in any other case, a judge of the court so orders.
The typical example is when the nature of the case requires it or when there has been an obvious error.
Reciprocal Disclosure
The defence must turn over / disclose in three circumstances. (Crown’s disclosure obligations are very
clear. Defence does not normally have a disclosure obligation.)
Exceptions: 3 Examples
- Physical Evidence
- Alibi Witness – so the police can investigate
- Expert Report
657.3 (1) Expert testimony
Part XX – Procedure in Jury Trials and General Provisions
657.3 (1) Expert testimony — In any proceedings, the evidence of a person as an expert may be given by means of a
report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of
the person as an expert if
(a) the court recognizes that person as an expert; and
(b) the party intending to produce the report in evidence has, before the proceeding, given to the other
party a copy of the affidavit or solemn declaration and the report and reasonable notice of the
intention to produce it in evidence.
It is one thing to not be aware, but if you are and don’t disclose, you are playing with fire. Austin
Cooper’s Article - 22 AS Journal, #23 RE Ken Murray: Concluding comment: How should counsel
guide themselves when in possession of evidence without putting their client at jeopardy – seek guidance,
takes notes, advice received, go to the Law society. Insulate yourself. Conclusion: the law society needs
to consider rules: Law Society did prepare a draft rule. As of Feb 2003, no opinion finalized – What is
the Current Rule/ Guidance given for Ken Murrays of the future? NONE – They could not agree.
Packer Article – Two Models of the Criminal Process
 Crime Control Values
 Due Process Values
Not an overly helpful article. We are federal and we have the Charter. Courts here have the option of
finding a Charter infringement and then find it justifiable. It is fair to see our criminal law within a
pendulum described by those two terms.
21
Final Issue: These cases were a prelude. About lawyers, but where is the material on judges? We will
look at JP’s. Canlaw – judges/lawyers – most judges earn more than they did as lawyers (not the best
lawyers). Mentions Justice Sparks – racial bias issue all the way to the SCC. Ells – SCC upheld Alberta’s
right to make JP have to be lawyers. Only province though.
Police Powers
Before the Charter, division of powers was most important in the evaluation of police powers.
Squeegee kid – Banks case – POA charge – did the police have power? The new law is under the HTA.
Is it colourable? Now there is an overlap with Charter. Landry’s details are pre-charter despite the 1986
ruling. Therefore the Charter did not apply. Landry was about interpreting the common law prior to
charter – where it did not specifically relate to a code provision. The criminal code setup. Fray and
Fedoric case makes the point that there are no longer common law offences. There continue to be
common law defences
S.8(3) Common law principles continued & S.9 No Common Law Crimes
Part I – General, S. 8. 3
(3) Common law principles continued — Every rule and principle of the common law that renders any
circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of
proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or
are inconsistent with this Act or any other Act of Parliament.
9. Criminal offences to be under law of Canada — Notwithstanding anything in this Act or any other Act, no
person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom
of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province,
territory or place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial
court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
So there are (Ruzic – compulsion/ duress s.17) code defences and there are common law defences.
Today’s cases are about the application of the common law – Dedman – no statutory authority to pull
over for drunk driving at the time. Landry – no code as to the power of arrest in the home at the
time. Common law s.43 – defence to disciplining a child – “correction” – the right to apply force – was
challenged under the charter, and upheld. The SCC looked to the common law to assist in their
interpretation.
S. 43. Correction of child by force
Part I – General - Protection of Persons in Authority
43. Correction of child by force — Every schoolteacher, parent or person standing in the place of a parent is justified
in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does
not exceed what is reasonable under the circumstances.
Table of Concordance
R.S.C. 1970, c. C-34
450
R.S.C. 1985, c. C-46
495
Use Canlii to see whole cases
Landry and Dedman
Note the competing approaches on the pendulum spoken about last class – lens of the Packer model
22
R v Landry 1986
R. v. Landry (1986), 50 C.R. (3d) 55, 25 C.C.C. (3d) l (S.C.C.) — A peace officer is entitled to enter private premises without
consent to arrest a person without a warrant, and is acting in the execution of his duty, if the offence in question is
indictable, if the person committed the offence, or the officer believes on reasonable and probable grounds that the person
has committed or is about to commit the offence, if the peace officer believed on reasonable and probable grounds that the
person sought was within the premises, and if proper announcement was made before entry.
Criminal Law ––– Offences against person and reputation — Assault on peace officer in execution of duty — Nature and
elements of offence.
A transit inspector saw two youths in a shopping centre parking lot opening the driver's door of a truck and
trying the doors of cars. He called the police, gave them a description, and advised them that the youths had entered
an apartment building. Two men fitting the description were seen by a constable through an apartment window.
The constable stood at the doorway of the apartment and subsequently tried to effect an arrest inside the apartment
in relation to an attempted car theft. An altercation occurred, giving rise to a charge of assaulting a police officer in
the execution of his duty contrary to s. 246(1) of the Criminal Code. The accused was acquitted on a directed
verdict, subsequently upheld by a majority of the Ontario Court of Appeal, because the arrest was found to be
unlawful. An issue was whether a peace officer, acting pursuant to s. 450(1)(a) of the Criminal Code, can lawfully
arrest a person on private premises without a warrant.
Held: Appeal allowed; new trial ordered.
Per Dickson C.J.C. (Chouinard, Lamer And Wilson JJ. concurring)
If the criteria of s. 450(1) of the Criminal Code and the standards enunciated in Eccles v. Bourque are met, a police
officer can make an arrest on private premises without a warrant in the execution of his duty for the purpose of s.
450(1)(a). Under Eccles, an entry to search for an offender can be made against the will of a householder if there
are reasonable and probable grounds for the belief that the person sought is within the premises and if proper
announcement is made prior to entry, ordinarily entailing the police giving notice of presence, notice of authority by
identifying themselves as police officers, and notice of purpose by stating lawful reasons for entry. Section 450(1) does
not alter the common law principles with respect to spatial limits on arrest without a warrant, and the silence of the
Code required that the common law apply. Eccles was not restricted to situations where a warrant, albeit unendorsed,
existed, but rather dealt with the power of the police to arrest without warrant in private premises. While the courts
could decline to confer new common law powers intruding on civil liberties, they could not abrogate powers
recognized by the courts, particularly when those powers descend from entrenched authorities of the 17th Century.
The clear and compelling policy underlying the common law was that there should be no place which gives an
offender sanctuary from arrest. Adopting a new rule requiring the police to obtain an arrest warrant in order to make
an arrest in residential premises would unduly impinge on effective crime control. The case arose before the Charter
was in effect.
Power Point:
R v Landry
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•
•
•
•
•
•
•
•
Issue is whether peace officer can lawfully arrest person on private premises, under s.450(1)(a) [s.495(1)(a)] See
Table of Concordance for RSC 1970 for current no
S.450(1)(a) : peace officer may arrest without warrant … person who has committed indictable offence or who, on
reasonable and probable grounds, he believes has committed or is about to commit indictable offence – dual
procedure/Crown elect offences deemed indictable until Crown election: Interpretation Act
S.450(1)(b) power to arrest person he finds committing a criminal offence
S.450(1)(c) power to arrest where reasonable and probable grounds to believe a warrant is in force in territorial
jurisdiction where person found
Limitations on arrest power without warrant subsec (2): if indictable offence under s.553, an offence for which person
may be prosecuted by indictment or for which punishable on summary conviction, or offence punishable on summary
conviction
Peace officer entitled to enter private premises without consent to arrest without warrant if: offence is indictable;
person committed offence or officer believes on reasonable and probable grounds that person has committed or is about
to commit offence; reasonable and probable grounds to believe person sought is within premises; and proper
announcement made before entry
Majority: there should be no place which gives offender sanctuary from arrest
Minority: man’s home is his castle
Note case is decided before Charter of Rights, so not issue of unlawful search (s.8) or arbitrary detention (s.9). Cf
Feeney (SCC) 1997 – common law rule as to warrantless searches modified, prior judicial authorization now
required; Code, s.529 power to enter dwelling house to effect arrest
23
•
Case is example of Packer article: crime control model (broad interpretation of arrest power, public protection) vs
due process model (more literal interpretation, emphasis on rights of offender)
Part XVI – Compelling Appearance of an Accused Before a Justice and Interim Release

Arrest Without Warrant and Release from Custody
S. 495. (1) Arrest without warrant by peace officer
495. (1) Arrest without warrant by peace officer — A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has
committed or is about to commit an indictable offence,
(2) Limitation — A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
But the issue in the case is that WHERE they can be arrested is not discussed. Should there be a
sanctuary in the home?
P.98 2nd last paragraph:
20 The policy underlying the cases, older and more recent, on this issue is clear and compelling: there should be no
place which gives an offender sanctuary from arrest. While the Criminal Code empowers a justice to issue a
warrant, on proper grounds being shown, authorizing a search for things, there is no power to issue a warrant to search
for a person. If the police did not possess the power to arrest on private premises, then a criminal offender might
find complete and permanent protection from the law in his or her own home or the home of another.
P.99 – 1st full para
22 There is, moreover, good reason to stand by these authorities in lieu of adopting a new rule requiring the
police to obtain an arrest warrant in order to make an arrest in residential premises. Crime is often committed
adjacent to residential premises. When a police officer witnesses a crime or appears on the scene shortly thereafter, his
ability to apprehend the offender should not be capable of being foiled by an offender ducking into a nearby
house or apartment building. Our society is more urban, more mobile, and more anonymous than ever before. If a
police officer is forced to obtain an arrest warrant before entering a residence, he will have to attempt to obtain the
name of the offender from the neighbours. In many cases the offender may have slipped into someone else's dwelling
and the neighbours will be unable to supply this information. In other cases the offender may indeed have taken refuge
in his own dwelling, but the neighbours may not know him. Even if the police officer is fortunate enough to obtain the
offender's name, he will have to seek a justice of the peace to execute an arrest warrant. Valuable time — and
probably the offender — will be lost because, when the police officer finally returns with his warrant, the offender
will have sought refuge elsewhere.
Please note: p. 100 – Conclusion – Note the 4 proper questions – come from the common law.
Landry Test: Prior to Feeney 1997, 4 steps to determine police power to enter dwelling-house to
effect arrest - after Feeney 4 steps continue to apply
IV. Conclusion
33 A peace officer making an arrest on private premises without a warrant is in the execution of his or her duty
for the purposes of s. 450(1)(a) of the Criminal Code if the criteria of that section and the standards enunciated in
Eccles v. Bourque have been satisfied. The proper questions to be asked are:
1. Is the offence in question indictable?
2. Has the person who is the subject of arrest committed the offence in question or does the peace officer,
on reasonable and probable grounds, believe he or she has committed or is about to commit the offence
in question?
3. Are there reasonable and probable grounds for the belief that the person sought is within the
premises?
4. Was proper announcement made before entry?
An affirmative answer to all of these questions will mean that the arrest is lawful.
24
For future reference: more current powers – Feeney – the SCC says there should be a warrant (s.529 of
the code) but the 4 steps continue to apply.
Part XVI – Compelling an Appearance of an Accused and Interim Release

Powers to Enter Dwelling-houses to Carry out Arrests
S. 529. (1) Including authorization to enter in warrant of arrest
529. (1) Including authorization to enter in warrant of arrest — A warrant to arrest or apprehend a person issued
by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection
(2), to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if
the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the
person is or will be present in the dwelling house.
(2) Execution — An authorization to enter a dwelling-house granted under subsection (1) is subject to the condition
that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering
the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the
dwelling-house.
Now, b/c of the Charter, there must be a warrant, but must still comply with the 4 common law requirements. Need a
judicial officer (neutral – from Hunter and Southam) – same thing in Feeney. Landry requirements from the common law
continue to apply in addition to a warrant. Warrants usually issued by justice of the police. A superior court must issue a
wiretap warrant.
Minority: Laforest
p.102 – Semaynes case – a man’s home is his castle.
La Forest J. (dissenting): A Man's Home is His Castle
41 The sanctity of the home is deeply rooted in our traditions. It serves to protect the security of the person and
individual privacy. The same thought was expressed as early as 1604 in the language of the day in the first proposition
of the celebrated Semayne's Case (1604), 5 Co. Rep. 91a, 77 E.R. 194 at 195 (K.B.), as follows:
1. That the house of every one is to him as his castle and fortress, as well for his defence against injury and
violence, as for his repose ...
P.107 Policy considerations para 3:
Policy Considerations
70 The latter reasoning can, of course, be used to support the thesis that a police officer may enter, break into and
stay in a private home uninvited and without warrant on the basis of reasonable and probable cause. But it fails to
consider the advantage of a warrant, which interposes a judicial officer — a person not professionally interested in
law enforcement and not directly involved in the particular issue — into the process. The scrutiny exercised by the
judicial officer may not be extensive, but the mere fact that a police officer must attempt to persuade a third party
that he has a reasonable and probable cause to effect entry into a private dwelling requires some reflection on
the necessity of breaching such a fundamental tenet of our society as the sanctity of the home. The warrant also
announces in a symbolic way, one traditionally recognized by the public, that it is the state that authorizes entry under
law. In Eccles v. Bourque, supra, a warrant for the fugitive had been issued, even though it may not have met the
endorsement requirements of the Code.
p. 108: police discretion last para:
75 Apart from flagrant cases, I seriously doubt that the courts can exercise any effective control over the
exercise of police discretion in such cases. So far as arrests in public places are concerned, I do not quarrel with the
existence of this discretion. The police's job of maintaining the peace and enforcing the criminal law is difficult enough
without fearing being regularly “second-guessed” about every mistake of judgment in such circumstances. But, if I
agree that a police officer should be able on evidence such as existed here to arrest a suspect in a public place, I do not
think it reasonable that he should be permitted to enter a private home without consent unless he has a warrant
permitting him to do so. Invasion of a person's home, in circumstances like these, is too high a price to pay to
prevent the possible escape of some criminals, especially for non-violent crimes like the one alleged in the
present case. Not only would such a practice invade the owner's security and privacy; it would often lead to violence,
25
as the facts of this case attest. This can, in my view, be even more likely where the owner of the home is not the
suspected offender — all the more so if, as happened in Eccles v. Bourque, supra, the police are not in uniform.
Look at Storrey – exercise of powers looked at in subjective and objective ways. Note on page 111, para 2
and 4:
86 Moreover, I do not think it is wise to place the police in situations where they are called upon to breach such
a deeply cherished community value as the sanctity of the home. It is essential for the police to have the support of
the community. With the type of extension argued for, mistakes are bound to happen and I can imagine few
breaches of community values more calculated to incense the public than this one; see in this context W.F. Foster
and Joseph E. Magnet, “The Law and Forcible Entry” (1977), 15 Alta. L. Rev. 271, at pp. 290–91.
88 Finally, I have mentioned earlier that Parliament may, if it wishes, amend the law of search warrants to
permit searches for persons as well as things. It might also wish, under well-defined circumstances, to extend police
powers in respect of dangerous situations and dangerous and elusive criminals (which is not the case here). I would
now add some general observations about the respective roles of Parliament and the courts in situations like that in the
present case. In my view, if incursions are to be made upon a legal and political value so deeply inbred in our
society as the sanctity of the home, it is for Parliament to do so and not for the courts. While the courts must
attempt to give reasonable and practical effect to attempts by Parliament to meet the challenge of widespread criminal
activity, the duty of the courts has always been to act as a brake against laws that either directly or because of
over-zealous enforcement encroach upon the liberty of the subject. It would be an ironic reversal of roles if
Parliament was required to act to protect the sanctity of the home from possible excesses flowing from the application
of a judicially-created rule. Courts undoubtedly have a creative role in developing the law, but they must be extremely
wary of widening the possibility of encroaching on our personal liberties; they are the protectors of our rights.
Parliament has the primary duty to respond to the challenge of criminal activities. The courts should no doubt view
its efforts sympathetically but be forever diligent to prevent undue intrusions on our liberty.
R. v. Dedman 1985
Dedman v. R. (1985), 46 C.R. (3d) 193, 20 C.C.C. (3d) 97 (S.C.C.) — A well-publicized police programme of
random spot checks is in furtherance of the general police duties to prevent crime and to preserve life and
property. The random stopping is reasonable and a necessary exercise of police powers.
Search and seizure — Warrantless searches — Police authority having to be conferred by statute or derived
from their duties at common law — Random stops of motorists under impaired driving detection program
not authorized by statute being lawful at common law — Such random stops falling within general scope of
duty and not being unjustifiable, as necessary and reasonable.
The Facts:
The accused voluntarily complied with a police officer's request to stop his vehicle. There was nothing improper
about his driving or the condition of his car. The stop was ordered as part of a spot check program, known as
“R.I.D.E.” The principal aim of this program is to detect, deter and reduce impaired driving. The police, at a
location where they believe there has been a high incidence of impaired driving, on a random basis request motorists to
stop. They then ask for a valid driver's licence and proof of insurance, in order to initiate conversation with the goal of
detecting the otherwise undetectable drinking driver.
The officer, while checking the accused's licence, smelled alcohol on his breath and made a demand pursuant to s.
234.1 of the Criminal Code that he supply breath samples for analysis in a roadside screening device. The accused,
despite repeated attempts, failed to provide a sample of his breath sufficient to give a proper reading on the device. He
was charged with failing, without reasonable excuse, to comply with a demand to supply a breath sample,
contrary to s. 234.1(2) of the Code, and was acquitted. The acquittal, confirmed by the Ontario Supreme Court,
was set aside by the Court of Appeal. This appeal was to determine whether, in the circumstances, the police
officer possessed authority, either statutory or at common law, to require the accused to stop his motor vehicle and,
if not, whether the accused could be convicted of failing or refusing, without lawful excuse, to provide a breath sample.
Held: Appeal dismissed.
Per Le Dain J. (McIntyre, Lamer and Wilson JJ. concurring)
Police officers, when acting or purporting to act in their official capacity as agents of the state, act lawfully only if
they act in the exercise of authority either conferred by statute or derived from their duties at common law. The
ambit of police authority, as distinct from police liability, is not to be determined by the limits of a police officer's
criminal or civil responsibility.
26
A motorist's compliance with a police signal to stop cannot alter the legal basis which must exist to justify the
random stop. Having regard to the coercive nature of police action and uncertainty over the extent of police powers,
compliance with a request to stop at a roadside check point cannot be regarded as voluntary in any meaningful
sense.
A random stop by police of a motor vehicle under an impaired driving detection program in Ontario, for which there is
no statutory authority either in the Criminal Code or in the Ontario Highway Traffic Act, is lawful at common law.
Police conduct which is prima facie an unlawful interference with a person's liberty or property is lawful if such
conduct falls within the general scope of any duty imposed by statute or recognized at common law and the
conduct is not an unjustifiable use of powers associated with the duty. Here, the random vehicle stop was a prima
facie unlawful interference with the liberty, since it was not authorized by statute. The right to circulate in a motor
vehicle was a liberty, but not a fundamental liberty like an individual's right of movement, since it is a licensed activity
subject to regulation and control for the protection of life and property. The random stop fell within the general
scope of police duties to prevent crime and to protect life and property by the control of traffic, as these were the
very objects of the R.I.D.E. program, a measure intended to improve the deterrence and detection of impaired
driving. The random vehicle stop was not an unjustifiable use of police power because it was both necessary to the
execution of police duties and reasonable, having regard to the nature of the liberty interfered with, the
importance of the public purpose served by the interference and the fact that the stop would be of relatively short
duration and of slight inconvenience.
Power Point:
Dedman v R
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Police random stop of motorist program for detection of impaired drivers (RIDE)
Accused signaled to stop for no other reason than RIDE check
Program not authorized under Highway Traffic Act of Ontario; issue then whether general duties of police
provide common law authority to stop motor vehicle for spot checks
Dissent –arbitrary police action not justified just because it is directed at fulfilling police duties
Majority – at common law principal duties of police officers are preservation of peace, prevention of crime,
protection of life and property – gives rise to duty to control traffic on public roads
Random vehicle stop is prima facie unlawful interference with liberty since it was not authorized by statute –
however it falls within general scope of duties of police officer to prevent crime, protect life and property by control
of traffic; not unreasonable interference as short duration, slight inconvenience
Note – this case does not involve s.9 Charter arbitrary detention as pre-Charter
Issue arises under Charter, eg. Ladouceur (SCC) 1990 – random stops authorized by legislation violate s.9 but are
justifiable
Common law offences abolished, s.9; common law defences continue, s.8(3), eg., necessity, duress – cases like
Dedman show how common law principles still relevant
At the time, pulling over a random driver, part of RIDE, was not in the code. The court must look to the
common law.
CJ Dickson (Dissenting)
Para 12 – no provision:
10 I have had the opportunity of reading the reasons for judgment prepared by Le Dain J., and I agree with him, for
the reasons he has given, that police officers act lawfully only when they exercise authority conferred upon them
by statute or at common law. The apparent voluntary compliance by a citizen with a police request to stop a motor
vehicle cannot alter the legal basis which must justify such police action when it is challenged in later proceedings.
III. Lawfulness of Random Vehicle Stops
A. Statutory authority
12 The R.I.D.E. program was not, at the time the appellant was stopped, expressly authorized by statute, either
federal or provincial. I agree with Le Dain J. that none of the provincial statutory provisions relied upon can be
interpreted to grant police officers authority to request that a motorist stop for the purposes of the R.I.D.E. program. In
particular, s. 14 of the Highway Traffic Act, R.S.O. 1970, c. 202, as amended by An Act to Amend the Highway
Traffic Act, 1979 (Ont.), c. 57, s. 2 (now R.S.O. 1980, c. 198, s. 19), does not provide statutory authority for the signal
to stop. It is unnecessary to express any opinion as to the constitutional validity of s. 14. Section 14 is not being applied
to confer authority to make a random vehicle stop for the purpose contemplated by the R.I.D.E. program. The
constitutional question set in this case need not therefore be answered.
27
Para 16 – common law duties… control traffic…:
B. Common law authority
14 It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their
general duties as law enforcement officers of the state, have limited powers and are entitled to interfere with the
liberty or property of the citizen only to the extent authorized by law. Laskin C.J.C., dissenting, in R. v. Biron, [1976]
2 S.C.R. 56, 30 C.R.N.S. 109, 23 C.C.C. (2d) 513, 59 D.L.R. (3d) 409, 4 N.R. 45, made the point at pp. 64–65:
Far more important, however, is the 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. Only to the extent to which it so provides can a person be
detained or his freedom of movement arrested.
Absent explicit or implied statutory authority, the police must be able to find authority for their actions at
common law. Otherwise they act unlawfully.
16 The common law duties of police have been described as the preservation of the peace, the prevention of
crime and the protection of life and property; from this latter duty flows the duty to control traffic on the public
roads. A statutory statement of the traditional common law duties of the police may be found in s. 57 of the Police Act,
R.S.O. 1980, c. 381.
Para 27 – arbitrary police action… to sanction a dangerous exception:
27 A police officer is not empowered to execute his or her duty by unlawful means. The public interest in law
enforcement cannot be allowed to override the fundamental principle that all public officials, including the
police, are subject to the rule of law. To find that arbitrary police action is justified simply because it is directed at
the fulfilment of police duties would be to sanction a dangerous exception to the supremacy of law. It is the function
of the legislature, not the courts, to authorize arbitrary police action that would otherwise be unlawful as a violation of
rights traditionally protected at common law.
Para 37 – In striving to achieve a desirable objective, we must ensure that equally important values are
not sacrificed:
37 I conclude that, without validly enacted legislation to support them, the random stops by the police under the
R.I.D.E. program are unlawful. In striving to achieve one desirable objective, the reduction of the death and injury
that occurs each year from impaired driving, we must ensure that other, equally important, social values are not
sacrificed. Individual freedom from interference by the state, no matter how laudable the motive of the police, must
be guarded zealously against intrusion. Ultimately, this freedom is the measure of everyone's liberty and one of
the cornerstones of the quality of life in our democratic society.
LeDain (Majority)
Para 66 (70) – ref to Waterfield (always referred to as to whether police powers can be justified);
important for future cases regarding evaluating common law – strip searches in Golden.
70 The common law basis of police power has been derived from the nature and scope of police duty. Referring
to the “powers associated with the duty”, Ashworth J. in R. v. Waterfield, supra, at pp. 170–71, laid down the test for
the existence of police powers at common law, as a reflection of police duties, as follows:
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within
specific limits the general terms in which the duties of police constables have been expressed. In most cases it
is probably more convenient to consider what the police constable was actually doing and in particular
whether such conduct was prima facie an unlawful interference with a person's liberty or property. If
so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty
imposed by statute or recognised at common law and (b) whether such conduct, albeit within the
general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty,
when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the
execution of these general duties involves interference with the person or property of a private person, the
powers of constables are not unlimited. To cite only one example, in Davis v. Lisle ([1936] 2 K.B. 434) it was held
28
that even if a police officer had a right to enter a garage to make inquiries, he became a trespasser after the appellant
had told him to leave the premises, and that he was not therefore acting thenceforward in the execution of his duty, with
the result that the appellant could not be convicted of assaulting or obstructing him in the execution of his duty.
Dedman - Waterfield Test – Justification for police action - nature and scope of police duty +
powers associated with the duty – from Dedman
Lays down the test of whether police conduct constitutes unlawful interference with liberty:
a) whether it falls within duty imposed by statute or common law,
b) whether the conduct involves an unjustifiable use of such powers associated with that duty.
Do the police have a general duty? Is the power exercised unjustifiable under this?
THIS WILL BE ON THE EXAM
Para 68(72), Application of the test, part a:
72 In applying the Waterfield test to the random stop of a motor vehicle for the purpose contemplated by the
R.I.D.E. program it is convenient to refer to the right to circulate in a motor vehicle on the public highway as a
“liberty”. That is the way it was referred to in Hoffman v. Thomas, supra, and in Johnson v. Phillips, supra. In
assessing the interference with this right by a random vehicle stop, one must bear in mind, however, that the right is not
a fundamental liberty like the ordinary right of movement of the individual, but a licensed activity that is subject to
regulation and control for the protection of life and property. Applying the Waterfield test, then, and using the word
“liberty” in this qualified and special sense, it may be said that the random vehicle stop in this case was prima facie
an unlawful interference with liberty, since it was not authorized by statute. The first question, then, under the
Waterfield test is whether the random stop fell within the general scope of the duties of a police officer under
statute or common law. I do not think there can be any doubt that it fell within the general scope of the duties of a
police officer to prevent crime and to protect life and property by the control of traffic. These are the very objects
of the R.I.D.E. program, which is a measure to improve the deterrence and detection of impaired driving, a notorious
cause of injury and death.
Para 69(73), part b – look at bottom – program is well publicized:
73 Turning to the second branch of the Waterfield test, it must be said respectfully that neither Waterfield itself nor
most of the cases which have applied it throw much light on the criteria for determining whether a particular
interference with liberty is an unjustifiable use of a power associated with a police duty. There is a suggestion of
the correct test, I think, in the use of the words “reasonably necessary” in Johnson v. Phillips, supra. The interference
with liberty must be necessary for the carrying out of the particular police duty, and it must be reasonable
having regard to the nature of the liberty interfered with and the importance of the public purpose served by the
interference. Because of the seriousness of the problem of impaired driving, there can be no doubt about the
importance and necessity of a program to improve the deterrence of it. The right to circulate on the highway free
from unreasonable interference is an important one, but it is, as I have said, a licensed activity subject to regulation
and control in the interest of safety. The objectionable nature of a random stop is chiefly that it is made on a purely
arbitrary basis, without any grounds for suspicion or belief that the particular driver has committed or is committing
an offence. It is this aspect of the random stop that makes it capable of producing unpleasant psychological effects for
the innocent driver. These effects, however, would tend to be minimized by the well-publicized nature of the
program, which is a necessary feature of its deterrent purpose. Moreover, the stop would be of relatively short
duration and of slight inconvenience. Weighing these factors, I am of the opinion that, having regard to the
importance of the public purpose served, the random stop, as a police action necessary to the carrying out of that
purpose, was not an unreasonable interference with the right to circulate on the public highway. It was not,
therefore, an unjustifiable use of a power associated with the police duty, within the Waterfield test. I would
accordingly hold that there was common law authority for the random vehicle stop for the purpose contemplated
by the R.I.D.E. program.
Dedman; an analysis at a particular time.
553 Prov Ct OCJ; 469 Sup Crt Justice – Supreme Ct Ontario, Dist Ct, County Ct, Gen Div, High
Ct, Div; 536(2) – 1. Prov Ct; 2. Supt Ct + judge; 3. Sup Ct judge + jury
29
Entrapment
Mack v R 1988
R. v. Mack (1988), 67 C.R. (3d) 1, 44 C.C.C. (3d) 513 (S.C.C.) — See also: R. v. Showman (1988), 67 C.R. (3d) 61, 45 C.C.C.
(3d) 289; R. v. Meuckon (1990), 78 C.R. (3d) 196, 57 C.C.C. (3d) 193 (B.C. C.A.); R. v. Jewitt (1985), 47 C.R. (3d) 193, 21
C.C.C. (3d) 7 (S.C.C.); R. v. Ashoona (1988), 41 C.C.C. (3d) 255 (N.W.T. C.A.) — Entrapment occurs when the authorities
provide a person with an opportunity to commit an offence without acting on reasonable suspicion that this person is
already engaged in criminal activity, or without making a bona fide inquiry. It also occurs when, although having a
reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity, and induce
the commission of an offence.
Criminal law — Abuse of process — Entrapment — Police informer repeatedly attempting over extended period to
involve accused in narcotics transaction — Accused agreeing to supply narcotics after being threatened by informer —
Conduct of police constituting entrapment when providing accused with opportunity to commit offence without
reasonable suspicion or pursuant to bona fide inquiry and when objectively judged, conduct inducing commission of
offence — Accused meeting onus of proving entrapment on balance of probabilities — Stay of proceedings granted.
The Facts:
A police informer visited the accused on a number of occasions over a period of six months attempting to involve
the accused in narcotics transactions. Eventually a transaction was set up at which the accused agreed to deliver
narcotics to the informer and as a result the accused was charged with possession of a narcotic for the purpose of
trafficking. At trial the accused testified that, while he had once been an addict, he had given up narcotics, that he
had initially refused to become involved in a transaction with the informer, but that the informer had persisted, that
he was terrified of the informer and that he finally obtained the narcotics after being told to “get his act together”
in a threatening way. The accused's application for a stay on the basis of entrapment was dismissed and he was
convicted. The accused's appeal was dismissed and he further appealed.
Held: Appeal allowed; new trial ordered; proceedings stayed.
The doctrine of entrapment is founded on the belief that, if the legal system is to command the respect of the
community, the administration of justice must be kept free from disrepute and the integrity of the court must be
maintained. Disrepute can arise from judicial condonation of unacceptable conduct by investigatory and
prosecutorial agencies and the court has the power to enter a stay of proceedings in order to prevent such an abuse
of its process. Entrapment is unacceptable for a number of reasons: the state does not have unlimited power to
intrude into the personal lives of individuals or to randomly test their virtue; entrapment may result in the
commission of crimes by people who would not otherwise have done so; the police should not manufacture
crime; there is already sufficient pressure to make people conform to morality; and there are inherent limits on the
power of the state to manipulate people and events.
Power Point:
Mack v R
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Mack, SCC (1988) – doctrine of entrapment in case of unlawful possession of narcotic for purpose of trafficking
Man being “handled” by police, visits accused, arranges delivery of cocaine from accused; accused declines at first,
says he is not interested, only wants to do real estate deals; after telling other to leave him alone accused finally
agrees to try to get drugs to get other “off me” as feels threatened; accused has previous drug record, approaches
supplier he knows, obtains 12 ounces cocaine
Mack: Entrapment Test:
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There is entrapment when: (a) authorities provide a person with opportunity to commit an offence without acting
on reasonable suspicion that this person is already engaged in criminal activity or pursuant to bona fide inquiry; (b)
although having such a reasonable suspicion or acting in course of bona fide inquiry, police go beyond providing
opportunity and induce commission of offence
Entrapment not dependent on culpability; objective assessment of conduct of police and their agents is required
Predisposition of criminal activity of accused relevant only as part of determination whether provision of
opportunity by authorities to accused to commit offence justifiable; must be sufficient connection between
accused’s past conduct and provision of opportunity, otherwise police suspicion unreasonable
Predisposition of accused of some relevance in assessing initial approach by police of person with offer to commit
offence, but never relevant as to whether they went beyond offer – test is what average non-predisposed person
would have done
To determine whether police have employed means which go further than providing an opportunity, following
factors relevant – type of crime being investigated, availability of other police detection techniques; whether
average person in position of accused would be induced to commit crime; persistence and number of attempts by
30
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•
•
police before accused agrees to commit crime; type of inducement used by police; whether police conduct exploits
human characteristics or particular vulnerability; existence of any threats; whether conduct undermines
constitutional values
Procedural issues – entrapment is not substantive defence where defence must raise sufficient evidentiary basis and
Crown must disprove beyond reasonable doubt
Objective entrapment, involving police misconduct and not accused’s state of mind, to be decided by trial judge,
proper remedy is stay of proceedings
Before judge considers whether to stay proceedings due to entrapment, crown must prove accused committed
offence – protects accused’s right to acquittal
Procedural issues – onus on accused to prove on balance of probabilities that conduct of state is abuse of process
because of entrapment
Guilt or innocence of accused not in issue; accused has done nothing entitling him/her to acquittal, Crown’s conduct
disentitles it to conviction
Onus on accused to demonstrate police conduct has gone beyond permissible limits to extent that allowing
prosecution would amount to abuse of process – stay should be entered in only “clearest of cases”
Mack – abuse of process now subsumed in s.7 of Charter
Para 2: The Facts
[ – Trafficking – Controlled Substances Act – not in 553, not in 469, therefore accused can elect where to be tried – 3 choices.
He elected Superior Court, judge alone. Indictable offence (even if hybrid but the crown chooses indictable) – appeal must
be to the Appeal Court. Even if he had elected Provincial Court, he would have to appeal to the Appeal Court. If it’s a
summary offence (must be Provincial Court), the appeal is to the Superior Court, then with leave, can appeal to the Appeal
Court. You look at the nature of the proceeding not the court in which the trial took place]
The Facts
2 The appellant was charged with unlawful possession of a narcotic for the purpose of trafficking. He testified at
trial and, at the close of the case for the defence, brought an application for a stay of proceedings on the basis of
entrapment. The application was refused and a conviction entered by Wetmore Co. Ct. J., sitting without a jury, in
written reasons reported in (1983), 34 C.R. (3d) 228. A notice of appeal from that decision was filed with the British
Columbia Court of Appeal but the appeal books were not filed within the time prescribed. Counsel for the appellant
sought and obtained, with the consent of Crown counsel, an order dispensing with the requirement that
transcripts of evidence be filed and permitting counsel to base their arguments solely on the reasons for judgment of
Wetmore Co. Ct. J. The Chief Justice of British Columbia directed that a panel of five judges hear the appeal. For the
reasons given by Craig J.A., on behalf of the court, the appeal was dismissed. This decision is now reported at (1985),
49 C.R. (3d) 169, 23 C.C.C. (3d) 421. Leave to appeal was granted by this court.
P.126, 6th para: walk in the woods. – Threat, but the trial judge doesn’t think much of it, yet the appeal
turns on this. Reversed on this basis:
In March the accused says Momotiuk arrived again. They went for a walk in the woods. Momotiuk produced a pistol
and was going to show the accused his marksmanship. He was dissuaded because of the probability of startling the
horses nearby. The accused says that at this remote area Momotiuk said, “A person could get lost.” This the accused
says was a threat. He says the matter of drugs was again raised and the accused says he was adamant that he had no
knowledge of drugs sources.
SCC – p.127: In conclusion… a) b) – Definition of entrapment. Bottom para – measured by conduct of
police:
Summary
133 In conclusion, and to summarize, the proper approach to the doctrine of entrapment is that which was
articulated by Estey J. in Amato, and elaborated upon in these reasons. As mentioned and explained earlier, there is
entrapment when,
134 a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable
suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
135 b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond
providing an opportunity and induce the commission of an offence.
31
136 It is neither useful nor wise to state in the abstract what elements are necessary to prove an entrapment
allegation. It is, however, essential that the factors relied on by a court relate to the underlying reasons for the
recognition of the doctrine in the first place.
137 Since I am of the view that the doctrine of entrapment is not dependent upon culpability, the focus should
not be on the effect of the police conduct on the accused's state of mind. Instead, it is my opinion that as far as
possible an objective assessment of the conduct of the police and their agents is required. The predisposition, or
the past, present or suspected criminal activity of the accused is relevant only as a part of the determination of whether
the provision of an opportunity by the authorities to the accused to commit the offence was justifiable. Further, there
must be sufficient connection between the past conduct of the accused and the provision of an opportunity, since
otherwise the police suspicion will not be reasonable. While predisposition of the accused is, though not conclusive, of
some relevance in assessing the initial approach by the police of a person with the offer of an opportunity to commit an
offence, it is never relevant as regards whether they went beyond an offer, since that is to be assessed with regard to
what the average non-predisposed person would have done.
Predisposition of accused: connection of past behaviour must show predisposition. The TEST: Objective
– average, non-predisposed person: what would he have done? P.128 – Summarised in his slides –
whether the police have employed means that go further:
138 The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct
because of the risk that the police will attract people who would not otherwise have any involvement in a crime
and because it is not a proper use of the police power to simply go out and test the virtue of people on a random
basis. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify
entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of
the accused's character and regardless of the existence of an honest inquiry. To determine whether the police have
employed means which go further than providing an opportunity it is useful to consider any or all of the following
factors:
139 — the type of crime being investigated and the availability of other techniques for the police
detection of its commission;
140 — whether an average person, with both strengths and weaknesses, in the position of the accused
would be induced into the commission of a crime;
141 — the persistence and number of attempts made by the police before the accused agreed to
committing the offence;
142
— the type of inducement used by the police, including deceit, fraud, trickery or reward;
143 — the timing of the police conduct, in particular, whether the police have instigated the offence or
became involved in ongoing criminal activity;
144 — whether the police conduct involves an exploitation of human characteristics such as the
emotions of compassion, sympathy and friendship;
145 — whether the police appear to have exploited a particular vulnerability of a person such as a
mental handicap or a substance addiction;
146 — the proportionality between the police involvement, as compared to the accused, including an
assessment of the degree of harm caused or risked by the police, as compared to the accused, and the
commission of any illegal acts by the police themselves;
147
— the existence of any threats, implied or express, made to the accused by the police or their agents;
148
— whether the police conduct is directed at undermining other constitutional values.
149 This list is not exhaustive, but I hope it contributes to the elaboration of a structure for the application of the
entrapment doctrine. Thus far, I have not referred to the requirement in Amato, per Estey J., that the conduct must, in
all the circumstances, be shocking or outrageous. I am of the view that this is a factor which is best considered under
the procedural issues to which I will now turn.
32
p.129 – “Who decides: judge or jury?” The crown right of appeal against a stay of proceeding imposed by
the trial judge. We are talking about a stay as a remedy – abuse of process, entrapment, proceeding
stayed. This is not the same as a judge hearing a charter motion prior to disclosure or trial – like taking
too long to go to trial – that’s also a stay.
A: Who Decides: Judge or Jury?
151 Both the appellant and the respondent agree that objective entrapment, involving police misconduct and not the
accused's state of mind, is a question to be decided by the trial judge and that the proper remedy is a stay of
proceedings. I too am of this view. The question of unlawful involvement by the state in the instigation of criminal
conduct is one of law, or mixed law and fact. In Jewitt, in a passage cited previously, Dickson C.J.C. expressed this
opinion (at p. 145): “Staying proceedings on the basis of abuse of process, and in particular, on the basis of the defence
of entrapment, in my view, amounts to a decision on a complex question of law and fact.”
P. 129 – Procedural issues: entrapment decided by judge, not jury, it’s a matter of law; which means it
only gets determined after the crown proves its case (same as mental disorder). Decision comes after
having to prove the case.
After the Crown Proves Its Case
160 Finally, I am of the view that before a judge considers whether a stay of proceedings lies because of entrapment,
it must be absolutely clear that the Crown had discharged its burden of proving beyond a reasonable doubt that the
accused had committed all the essential elements of the offence. If this is not clear and there is a jury, the guilt or
innocence of the accused must be determined apart from evidence which is relevant only to the issue of
entrapment. This protects the right of an accused to an acquittal where the circumstances so warrant. If the jury
decides the accused has committed all of the elements of the crime, it is then open to the judge to stay the proceedings
because of entrapment by refusing to register a conviction. It is not necessary, nor advisable, in this case to expand on
the details of procedure. Because the guilt or innocence of the accused is not in issue at the time an entrapment
claim is to be decided, the right of an accused to the benefit of a jury trial in s. 11(f) of the Charter is in no way
infringed.
Doctrine of Abuse of Process – to be confined to the clearest of cases. SCC overturns in Mack.
Threatening manner of informant – average person might have been coerced into committing the
crime to save himself.
Indictment
– piece of paper which is the information (charge document); (Part xxvii: Summary s.786 – 6 month
time limit, max punishment 6mos/18 mos – Super Summary, appeal to Superior Court); Indictable –
option of jury, prelim (unless 553) (no right of appeal to prelim ruling, but the crown can seek direct
indictment – prerogative – limited to jurisdictional error)
Form 4 — Heading of Indictment
(Sections 566, 566.1, 580 and 591)
Canada,
Province of ..........,
(territorial division).
In the (set out name of the court) —
Her Majesty the Queen —
against —
(name of accused)
(Name of accused) stands charged
1. That he (state offence).
2. That he (state offence).
Dated this .......... day of .......... A.D. ..................................., at ..........
33
.....................
(Signature of signing officer, Agent of Attorney General, etc.,
as the case may be)
1999, c. 3, s. 58
Note: The date of birth of the accused may be mentioned on the information or indictment.
469 cases – bail is before the Superior Court, reverse onus. Attempted murder is not 469, therefore no
reverse onus, and it can be before provincial court.
HYBRID Example S. 271 (Sexual Assault), S. 266 (Assault)
Part VIII – Offences Against the Person and Reputation

Assaults
271. (1) Sexual assault — Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding
eighteen months.
266. Assault — Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Part XXVII – Summary Convictions
o Punishment
S. 787. (1) General penalty – Summary Convictions; S. 173. Indecent Acts – Pure Summary Convictions
787. (1) General penalty — Unless otherwise provided by law, everyone who is convicted of an offence punishable
on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not
exceeding six months or to both.
Pure Summary Conviction
173. (1) Indecent acts — Everyone who wilfully does an indecent act
(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person,
is guilty of an offence punishable on summary conviction.
Pure Indictable
239. (1) Attempt to commit murder — Every person who attempts by any means to commit murder is guilty of an
indictable offence and liable
515 (6)(a): If on bail for an indictable offence, and arrested for another indictable offence: reverse
onus. [See Bail section]
When defendant Elects: bail? No – not before disclosure. It would be unusual for the defendant to be
expected to elect at bail, or before disclosure. Generally the earlier the election the better, b/c it will
shorten the time to trial (from the point of view of the court).
The crown has also a right to stay proceedings, a different animal, like a diversion or “not in the public
interest” (s.579) – that stay is one year to determine whether to go further.
Part XX – Procedure in Jury Trials and General Provisions
Preferring Indictment
S.579
34
S. 579. (1) Attorney General may direct stay
579. (1) Attorney General may direct stay — The Attorney General or counsel instructed by him for that purpose
may, at any time after any proceedings in relation to an accused or a defendant are commenced and before
judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings
are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be
stayed accordingly and any recognizance relating to the proceedings is vacated.
(2) Recommencement of proceedings — Proceedings stayed in accordance with subsection (1) may be
recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney
General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in
which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of
the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced,
whichever is the earlier, the proceedings shall be deemed never to have been commenced.
R. v. Barnes 1991
R. v. Barnes, [1991] 1 S.C.R. 449, 3 C.R. (4th) 1, 63 C.C.C. (3d) 1; affirming (1990), 54 C.C.C. (3d) 368 (B.C. C.A.) — Police
may only present the opportunity to commit a particular crime to one who arouses suspicion that s/he is already engaged in
such activity. In exceptional cases, where police undertake a bona fide investigation directed at an area which is defined with
sufficient precision and where it is reasonably suspected that criminal activity is occurring, they may present anyone associated
with the area with the opportunity. Association with an area does not require more than being present in the area.
Randomness to such an extent is permissible within the scope of a bona fide inquiry.
The Facts:
The police were conducting a “buy and bust” operation in a six-block area known to have frequent drug
trafficking activity. Although trafficking was especially serious in specific spots in the area, trafficking did occur at
locations scattered throughout the area which featured theatres, restaurants, department stores and large office towers.
The accused was walking in the area when he was approached by an undercover police officer who, seeing the
accused's long hair and scruffy clothes had a hunch that the accused might be in possession of drugs. After some
persuasion, the accused sold the officer a small amount of cannabis resin. He was found guilty of trafficking in
cannabis resin, possession of cannabis resin for the purpose of trafficking and possession of marijuana. However, the
trial judge found that the accused had been entrapped and ordered a judicial stay of the proceedings. The Court of
Appeal allowed the Crown's appeal and ordered a new trial to determine whether there had been entrapment. The
accused appealed. The Crown could not under the Criminal Code cross-appeal the order for a new trial. The
issues before the Supreme Court of Canada were whether the accused had been subjected to random virtue testing
and whether the court, absent the cross-appeal by the Crown, had jurisdiction to modify the Court of Appeal's order and
enter the three convictions.
Held: Appeal dismissed.
Per LAMER C.J.C. (WILSON, LA FOREST, SOPINKA, GONTHIER, CORY AND STEVENSON JJ.A.
concurring): The police may only present the opportunity to commit a particular crime to an individual who
arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule
arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that
criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any
person associated with the area with the opportunity to commit the particular offence. Such randomness is
permissible within the scope of a bona fide inquiry. The notion of being “associated” with a particular area for these
purposes requires nothing more than being present in the area. Conversely, random virtue testing only arises
when a police officer presents a person with an opportunity to commit an offence without a reasonable suspicion
that: (a) the person is already engaged in the particular criminal activity, or (b) the physical location with which the
person is associated is a place where the particular criminal activity is likely occurring.
The officer involved in this case did not have a reasonable suspicion that the accused was already engaged in
unlawful drug activity. The accused's manner of dress and the length of his hair were not sufficient to give rise to a
reasonable suspicion that criminal acts were being committed. However, the officer presented the accused with the
opportunity to sell drugs in the course of a bona fide inquiry. The officer's conduct was motivated by the genuine
purpose of investigating and repressing criminal activity and the police investigation was directed at an area where
it was reasonably suspected that criminal activity took place. While the size of an area itself may indicate that an
investigation is not bona fide, in this instance it was reasonable for the police to focus its investigation on the whole
area and not target the specific spots where trafficking was the heaviest. The accused's presence associated him with the
area so that the officer had not engaged in random virtue testing.
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Power Point:
R v Barnes
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Supreme Court applies Mack in another drug case, differs on “random virtue testing”; trial judge had ordered
stay of proceedings, majority disagrees
Police officer approaches accused and his friend on basis of “hunch” they have drugs; accused declines, officer
persists and accused sells small amount of cannabis for $15; accused later arrested and found with small amounts of
cannabis and marijuana
Majority – police officer did not have reasonable suspicion that accused engaged in drug activity, officer approached
him on “hunch”
However, police engaged in bona fide investigation, drug crimes in area, not questionable motives in investigation
Random virtue testing only arises where police present person with opportunity to commit offence without
reasonable suspicion that: person already engaged in criminal activity, or physical location where person associated is
place where activity likely occurring
Accused here associated with location where reasonably believed drug crimes occurring; police conduct justified
under first branch of entrapment test in Mack
Minority – concern for implications of majority test – permits police to extend Granville Mall operation to all
Vancouver if statistics that drug offences occur in city generally
More “sensitive test” required, must appreciate all relevant factors – consider not only motive of police, crime in
general area, but other factors relevant to balancing process: likelihood of crime at location, seriousness of crime,
other less intrusive techniques
Question is whether interception at location is reasonable, having regard to conflict between citizens left alone
from state interference and state suppressing crime – if answer is yes, inquiry is bona fide; this not the case here
Entrapment
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Comments – abuse of process due to entrapment is common law defence, preserved by s.8(3) of Criminal Code;
common law offences abolished
•
Abuse of process also available under Charter of Rights, s.7 fundamental justice; remedy of stay of proceedings
available under s.24(1); burden on party who asserts Charter breach
•
Crown also has right to stay proceedings, may re-institute within one year: s.579 Code
Held: SCC over-rules trial judge decision of entrapment.
P. 134 – bona fide investigation
Lamer (Majority) – Application of Test set out in Mack
24 Random virtue testing, conversely, only arises when a police officer presents a person with the opportunity to
commit an offence without a reasonable suspicion that:
25 (a) the person is already engaged in the particular criminal activity, or
26 (b) the physical location with which the person is associated is a place where the particular criminal activity is
likely occurring.
27 In this case, the accused was approached by the officer when he was walking near the Granville Mall. The notion
of being “associated” with a particular area for these purposes does not require more than being present in the
area. As a result, the accused was associated with a location where it was reasonably believed that drug-related crimes
were occurring. The officer's conduct was therefore justified under the first branch of the test for entrapment set
out in Mack .
P.134 bottom and 135 – McLachlin, 2nd last para: other factors – balancing process etc… last para:
individual interests outweighs state interest…
McLachlin (Dissenting)
79 In advocating a more refined test for bona fide inquiry than does Lamer C.J.C., I am motivated by concern for
the implications of the test he proposes. That test would permit the police to extend their Granville Mall operation to all
of Vancouver if statistics could be found to suggest that drug offences were occurring throughout Vancouver generally.
The example is extreme. Yet it indicates the deficiency I see in the test proposed by Lamer C.J.C. In my view, a more
sensitive test than that proposed by Lamer C.J.C. — one which permits appreciation of all relevant factors — is
required.
36
91 I arrive then at the conclusion that in the case at bar the individual interest in being left alone and free to pursue
one's daily business without being confronted by undercover police operatives vastly outweighs the state interest in
the repression of crime. It follows that the police officer in this case cannot be said to have been acting pursuant to a
bona fide inquiry. Any other conclusion would be, in my respectful opinion, unfitting in a society which heralds the
constitutional protection of individual liberties and places a premium on “being left alone.”
There was a case comment from the lawyer’s weekly: Prosecutor was interviewed, and defence –
argument about the size of the targeted area and indicia relevant to size. Libman reads a case to illustrate
the question of entrapment – dial a dope – operation. Police are informed of a number to call, they do,
quick drug conversation, arrest the guy when he delivers. Issue of random virtue testing – case called
Swan 2009 BCCA 142 – stay of proceeding entered due to entrapment – at appeal – under cover
approach amounted to random virtue testing. Would need to know what was the basis for reasonable
suspicion? Conclusion to first foray; Police powers, charter/ common law – extent to which they are
limited. Search and Seizure is next.
Search and Seizure
Material to source: Coughlan, Stuart et al, Salhany
Basic Requirements of Search and Seizure: Scope of search warrant; Consent, can a breach be allowed
through consent? CCC and common law & Charter
Colet v. R 1981
Colet v. R. (1981), 19 C.R. (3d) 84 (S.C.C.) — Police are not justified in making an entry unless they have first announced
their presence and demonstrated their authority by stating a lawful reason for their entry. A warrant authorizing only
seizure of weapons did not also authorize the police to enter and search the premises. It would be dangerous to hold that the
private rights of an individual to the exclusive enjoyment of his/her own property are subject to invasion by police whenever they
can be said to be acting in furtherance of the enforcement of any section of the Code, although they lack express authority to
justify their action.
Trespass — Wrongful seizures and searches — Warrant to seize firearms — Accused using force to resist unauthorized
entry and search — Accused entitled to defend property against trespass — Acquittal restored.
The Facts:
The accused had been charged with a number of criminal offences arising out of his defence of his property against
what he deemed to be the wrongful intrusion of police officers acting under the purported authority of a warrant to
seize firearms, issued under the former s. 105(1) of the Criminal Code. After a jury trial, the accused was acquitted on
all charges, but the British Columbia Court of Appeal ordered a new trial upon grounds of misdirection. On further
appeal to the Supreme Court of Canada, the accused argued that the British Columbia Court of Appeal had erred in
law and that the learned trial judge was correct in holding that the warrant to seize did not include the right to enter and
search for the items to be seized; instructing the jury that at the relevant time the police officers were trespassers on the
accused's property; and failing to charge the jury that at all material times the officers were in the lawful execution of
their duty.
Held: Appeal allowed; acquittal restored.
The property rights of an individual could not be invaded otherwise than with specific statutory authority. Police
are not justified in making an entry unless they have first announced their presence and demonstrated their
authority by stating a lawful reason for their entry. The warrant in the present case was a warrant to seize certain
weapons and did not include, expressly or by necessary implication, the authority to enter and search the
premises. Therefore, the police's actions in attempting to enter and search the appellant's property were without
authority; they were accordingly trespassers and the accused was entitled to defend his property against their
unlawful intrusion.
Power Point:
Colet v R
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SCC (1981) – police obtain warrant to seize firearms from accused under then s.105(1), due to concerns that for
safety of work crew
Accused climbs roof and throws gas at police, defending property, charge of attempted murder
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Police did not have warrant to search premises, nor did right to seize allow right to enter and search – distinction
between “seize” and “search”
Police acting without authority when entered accused’s property, acting as trespassers
Cf now s.117.04(1) allows for search and seizure
Colet: Prior to s.117.04.01 and s.487, warrant to “seize” did not include power to search premises
S.105 is now 117.04.1, but the wording is changed
Part III – Firearms and Other Weapons
Search and Seizure
117.04 (1) Application for warrant to search and seize — Where, pursuant to an application made by a peace officer
with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe
that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive
substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or
of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle
or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing,
that is held by or in the possession of the person.
The wording is different now. S.487 provides a warrant to search a place
Part XV – Special Procedure and Powers - General Powers of Certain Officials
S. 487. (1) Information for search warrant
487. (1) Information for search warrant — A justice who is satisfied by information on oath in Form 1 that there
are reasonable grounds to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been
or is suspected to have been committed,
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the
commission of an offence, or will reveal the whereabouts of a person who is believed to have committed
an offence, against this Act or any other Act of Parliament,
(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of
committing any offence against the person for which a person may be arrested without warrant, or
(c.1) any offence-related property,
may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated
to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other
Act of Parliament and who is named in the warrant
(d) to search the building, receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a
report in respect thereof to, the justice or some other justice for the same territorial division in accordance
with section 489.1.
In Colet, they had a warrant for a firearm, but not a search. They had good grounds for the warrant
for seizing the firearms, but the warrant did not specify searching the premises. P.141, 4th from bottom:
did not give a right to search, only to seize.
14 In the present case, it is to be observed that, although the police officers waved the warrant at the appellant
from a distance, it was not a warrant “to search the premises”, nor in my view, did the authority to seize specified in
that warrant carry with it the right to enter and search.
Point: Search AND seizure – there is a distinction between the two. S.487. P.140 – the home was a
shack – did the police not respect it as a home? Context is important: there were not a lot of really
invasive police rights that existed then – dna, blood etc…
10 In the final analysis, this appeal raises the all-important question of whether the property rights of the
individual can be invaded otherwise than with specific statutory authority. It is true that the appellant's place of
residence was nothing more than a shack or shelter, which no doubt was considered inappropriate by the city of
Prince Rupert, but what is involved here is the long-standing right of a citizen of this country to the control and
38
enjoyment of his own property, including the right to determine who shall and who shall not be permitted to
invade it. The common law principle has been firmly engrafted in our law since Semayne's Case (1604), 5 Co. Rep.
91a, 77 E.R. 194 (K.B.), where it was said [p. 195]: “That the house of every one is to him as his castle and fortress,
as well for his defence against injury and violence, as for his repose ...” […]
Zevallos 1987
R. v. Zevallos (1987), 59 C.R. (3d) 153, 37 C.C.C. (3d) 79 (Ont. C.A.) — The pre-trial quashing of a search warrant because
of non-compliance with Charter s. 8 is in a sense, an idle exercise. Even if the warrant is invalid in substance, evidence
obtained thereby is still presumptively admissible unless D satisfies the requirements of Charter s. 24(2). Because the
decision on the pre-trial application is appealable, possibly to the Supreme Court of Canada, the administration of justice is
better served by having the trial judge decide all aspects of the issue of admissibility of the seizure.
The Facts:
Following committal for trial on a charge of possessing cocaine for the purpose of trafficking, the accused applied to a
judge of the High Court for an order in the nature of certiorari to quash the search warrant. Defence counsel
intended to bring a motion at trial that the evidence should be excluded because it had been obtained contrary to s. 8
of the Canadian Charter of Rights and Freedoms. The pre-trial motion had been brought in view of a decision of the
Manitoba Court of Appeal in which it was held that a trial judge could not consider a collateral attack on a search
warrant valid on its face. The application was dismissed, and the accused appealed.
Held: Appeal dismissed.
Defence counsel can raise at trial the issue of the sufficiency of the information to obtain a search warrant as
part of a general application to have the search found to be unreasonable contrary to s. 8 of the Charter of
Rights and Freedoms and for it to be excluded if its admission would bring the administration of justice into
disrepute under s. 24(2) of the Charter. Here, the prerogative remedy raised a composite single issue which should
be dealt with in full by the trial judge. The relief sought should therefore be refused. This would not be so where
the application to quash was brought for other, or possibly additional, purposes, such as to prevent a search and
seizure or to obtain the return of the property seized.
Power Point
R v Zevallos
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OCA (1987) – accused charged with possession for purpose of trafficking, committed for trial after preliminary
inquiry
Drug seized by police executing search warrant
After committal, accused applies to High Court (superior court) for prerogative remedy, certiorari, to quash
search warrant (not an appeal, but extraordinary remedy, Part XXVI, s.774)
Grounds of attack relate to insufficiency of information to obtain search warrant; pre-trial motion for Charter relief:
ss. 8 (search), 24(2) exclusion of evidence
Zevallos Rule: Warrant not Subject to Collateral Attack Pre-Trial
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Search warrant a judicial order of inferior tribunal (justice of peace, provincial judge), if appears on face to
exceed jurisdiction will be disregarded, but not subject otherwise to collateral attack
No statutory authority for judge to quash search warrant without direct attack on it
Search conducted under warrant, valid on face, not set aside or quashed, evidence is admissible
If search warrant invalid due to minor defect, s. violated but evidence not excluded under s.24(2)
Trial judge should deal with issue, appeal court exercises discretion to deny extraordinary remedy
Was an indictable offence, elected to be tried at Superior Court; there was a prelim. Is there enough
evidence to go forward is the only question. He was committed for trial. No right of appeal to a
prelim. Para 2 – The cocaine… there was probable grounds for s.487:
2 The cocaine which forms the subject matter of the charge was seized by a police officer, armed with a search warrant
issued by a justice of the peace, at residential premises in Toronto. Following the committal for trial the appellant applied
to a judge of the High Court for an order in the nature of certiorari to quash the search warrant. The attack on the search
warrant was based on several grounds, which, because of the basis on which I think the appeal should be decided, are
not necessary to set forth beyond noting that they related to the insufficiency of the information sworn to obtain the
warrant and to the form of the warrant. The application was dismissed, and the appellant appeals from this disposition to
this court.
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Sought quashing of the warrant; then applied for a prerogative remedy – can only be granted by a
superior Court, and here he is trying to attack the search warrant. Can someone do that without going to
trial, on the basis of the Charter? Answer: Only if it is about a Jurisdictional Error. This case is
about the procedure involved in trying to attack a search warrant. He could only attack the search
warrant before trial by bringing an application for a prerogative remedy. – Can only be brought to
a Superior Court judge; they are jurisdictional in nature: to quash a committal, it must be a
jurisdictional error, and they are discretionary:
Part XXVI — Extraordinary Remedies – Application of Part, S. 774
774. Application of Part — This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus,
mandamus, procedendo and prohibition.
Five potential Prerogative Remedies, s.774
1. Ceriorari – means “to quash”
2. Habeas corpus – produce the body
3. Mandamus – to compel the judge to hear something for instance
4. Procedendo – to ask that a process continue
5. Prohibition – if an allegation of bias or unfavourable ruling – ask that the court stop hearing
In this case, the Superior Court judge says this remedy would in effect break up the trial, and you do
have another remedy: you can argue the same point at trial and/or at appeal. The defendant was
mounting a collateral attack on the warrant before the trial. There is an authority to attack a
warrant if it appears on its face to exceed jurisdiction only (See power point) – a defect apparent on
its face. Otherwise, it is presumed valid on its face. - Policy reasons to avoid a bifurcated trial.
R v Wills 1992
R. v. Wills (1992), 12 C.R. (4th) 58, 70 C.C.C. (3d) 529 (Ont. C.A.) — The taking of a breath sample can, in some
circumstances, constitute a seizure, such as where there was no consent, or no valid consent, given by D. The taking of a breath
sample constituted a seizure where D, because of the misinformation and non-disclosure of information, failed to realize
both his potential jeopardy and the potential criminal consequences of taking the breathalyzer test.
Charter of Rights and Freedoms — Unreasonable search and seizure — Warrantless searches — Requirements for valid waiver
of constitutional right being applicable to determine whether effective consent given to alleged seizure by police — Consent to
seizure having to be not only voluntary but informed — Accused not having sufficient awareness when consenting to breath
test following accident — Being unaware other charges being considered, passenger having died and screening test not
accurately reflecting blood alcohol level — Unauthorized search not necessarily unreasonable.
The Facts:
The accused's truck struck a tree and two of his passengers were killed. The accused was charged with impaired
driving causing death and driving over 80. There was evidence for the jury that at the time of the accident the accused
was impaired and the death of his passengers was causally related to his impairment. The accused had provided a
breath sample and an expert had given his opinion premised on those results. A jury found him guilty on both charges.
The trial judge sentenced him to two years less a day on the charge of impaired driving causing death and stayed the
second conviction.
The accused had been given an A.L.E.R.T. test and the machine registered “warn”, indicating that the blood
alcohol level was between .05 and .1. The investigating constables had no reason to believe that he was impaired
and no grounds to demand a breath test. The constables suggested to the accused however that taking a breath test
might be helpful for him in the event of a civil lawsuit. The accused was reluctant. The accused's parents arrived
on the scene and one of the constables advised him that it would be in the son's best interests to take a breath test in
light of possible civil implications. The accused's father spoke to his son in private and the father persuaded the
son to take the test. Before administering the test the accused was asked if he understood that he was under no
obligation to take the test and that he would be doing it of his own free will. He replied in the affirmative. The
reading was .128. It was subsequently learned that the A.L.E.R.T. machine was not properly calibrated and gave
erroneous readings. The accused was not advised before the test about the tragic consequences of the accident.
The constable was concerned that he would become so distraught that it would affect the accuracy of the test. The
accused was also not advised that while the constable was not considering any alcohol-related charges he was
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interested in determining the breath reading to complete his investigation and he had not yet decided on other possible
charges.
Held: The appeal was dismissed.
The capture, for investigative purposes, of the very breath one breathes constitutes a significant state intrusion
into one's personal privacy and s. 8 concerns are clearly engaged by such conduct. If an individual chooses to give
something to a police officer, it is a misuse of the language to say that the police officer seized the thing taken. In
such a case there is no seizure and the reasonableness of the police conduct need not be addressed.
The dynamics which operate when a police officer “requests” the assistance of an individual cannot be ignored. The
very nature of the policing function and the circumstances which often bring the police in contact with individuals
introduce an element of authority, if not compulsion, into a request made by a police officer. When the police rely on
the consent of an individual as their authority for taking something, care must be taken to ensure that the consent
was real. Otherwise, consent becomes a euphemism for failure to object or resist, and an inducement to the police
to circumvent established limitations on their investigative powers by relying on uninformed and sometimes
situationally compelled acquiescence in or compliance with police requests.
The requirements established for a valid waiver of a constitutional right are applicable to the determination of
whether an effective consent was given to an alleged seizure by the police. Fairness demands that the individual
make a voluntary and informed decision to permit the intrusion of the investigative process upon his or her
constitutionally protected rights. A “consent seizure” must be one which is not only voluntary but informed. In this
case the accused did not have sufficient awareness of the potential consequences of giving his consent. He was
unaware that the constable was considering other charges, that a passenger had died and that the A.L.E.R.T.
reading did not accurately reflect his blood alcohol level. Based on the information provided to the accused he
foresaw no possibility of any immediate consequences flowing from taking the test. The consent given did not
operate as a waiver of his right to be free of unreasonable search or seizure and the taking of the sample
therefore constituted a seizure.
Taking the breath sample here violated s. 8. The seizure was warrantless and the onus then was on the Crown to
establish reasonableness. The Crown did not suggest that any exigent circumstances justified the taking of the sample.
The seizure was not authorized by any statutory or common law power. An unlawful search may, in all cases, be an
unreasonable one but it was not necessary to resolve that issue since, even if the absence of lawful authority cannot be
equated with unreasonableness, the Crown must, in the absence of a warrant, be able to point to other factors
which render the conduct reasonable. In the present case, once the consent was set aside, there was no justification
for the search, much less one which could be regarded as reasonable.
The breathalyzer evidence should not be excluded under s. 24(2) of the Charter.
A proper A.L.E.R.T. demand was initially made and the accused complied with that demand. Had the machine
been functioning properly he would have registered a fail and the police would have demanded a breath sample. The
police would then have lawfully obtained the same sample which they ultimately obtained. Should the accused
benefit from the malfunctioning of the machine by the exclusion of completely reliable evidence? A reasonable
person, dispassionate and fully apprised of all the circumstances, would not be convinced, on the balance of
probabilities, that the admission of the evidence could bring the administration of justice into disrepute. It was
true that the evidence of the breath analysis would not have existed but for the Charter violation and the accused was
conscripted against himself and his privilege against self-incrimination was violated, but that violation was more
apparent than real. His right to refuse the breath sample here existed only because the A.L.E.R.T. machine had
malfunctioned.
The fairness of the trial was not adversely affected by the admission of evidence which, had the true state of
affairs been known, could have and would have been obtained under statutory compulsion. The police acted
reasonably and in good faith throughout. The evidence was essential to the prosecution and the charges were very
serious. The public would properly wonder what principle or right would be vindicated by the exclusion of the
evidence in this case. The accused had the right to refuse the breath test but that was only because of the
malfunctioning of the A.L.E.R.T. machine. The exclusion of reliable evidence, crucial to the determination of
culpability, in respect of serious offences that directly concern the public safety was much too high a price to pay
to vindicate a “right” which existed only because a piece of machinery did not work properly.
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Power Point:
R v Wills
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OCA (1992) – accused gets in accident, officer does not think he is impaired, suggests breathalyzer to assist him,
reading is not over legal limit
No basis for police to demand breath sample, demand never made; accused said to have consented; evidence
admissible at trial, accused convicted of impaired driving causing death
State seizures of bodily substances for investigative purposes subject to s.8 Charter scrutiny; requests by police
different from private individuals, element of authority (Dedman)
When person consents to police taking something they otherwise have no right to take, s.8 reasonableness barrier
removed
Force of consent must be commensurate with significant effect it produces
Wills Test: High Waiver Standard for Consent, to ensure fair treatment of individuals (DUI)
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High waiver standard predicated on need to ensure fair treatment of individuals who come in contact with police in
criminal process
Where it is said person has consented to otherwise unauthorized search or seizure, Crown must prove on balance of
probabilities: (1) there was a consent, express or implied (2) giver of consent has authority to do so (3) consent
voluntary (4) person aware of nature of police conduct to which asked to consent (5) person aware of right to
refuse consent (6) person aware of potential consequences of consent
Consent meets criteria 1-5; factor 6 not present, s.8 violated, but evidence admissible under s.24(2)
P.152, final para:
39 Given the personal privacy interests which underlie s. 8 of the Charter, I see no reason to differentiate
between the taking of a person's breath and the taking of a person's blood or urine, insofar as the applicability of s.
8 is concerned. The state capture, for investigative purposes, of the very breath one breathes constitutes a significant
state intrusion into one's personal privacy. Section 8 concerns are clearly engaged by such conduct.
40 In holding that the taking of a breath sample can constitute a seizure, I should not be taken as holding that it
always amounts to a seizure. Not every taking by the state is a seizure. In Dyment, supra, at p. 431 [S.C.R.], p. 257
[C.C.C., p. 362 C.R.], La Forest J. for the majority, wrote:
the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that
person's consent. [Emphasis added.]
p.154 – discussion of waiver – high waiver test, 2nd last paragraph.
50 The high waiver standard established in these cases is predicated on the need to ensure the fair treatment of
individuals who come in contact with the police throughout the criminal process. That process includes the trial
and the investigative stage. In fact, it is probably more important to insist on a high waiver standard in the
investigative stage where there is no neutral judicial arbiter or structured setting to control the process, and
sometimes no counsel to advise the individual of his or her rights.
High waiver standard predicated on need to ensure fair treatment of individuals who come in contact with
police in criminal process; P. 157:
69 In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented
to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of
probabilities that:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the
product of police oppression, coercion or other external conduct which negated the freedom to choose
whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being
asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the
conduct requested; and,
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
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The point was that the accused was MISLED by the police interpreting the ALERT results. P.158:
78 Mr. Wills was aware that if one took a breathalyzer test and “failed” one could face criminal charges. This kind of
general knowledge may, in many cases, suffice to establish an adequate awareness of the potential consequences of
taking the test. In this case, however, that general information was clearly overridden by the specific information
Mr. Wills was given as to his blood alcohol level. Based on the information provided to Mr. Wills, he foresaw no
possibility of any immediate criminal consequences flowing from taking the test. The misinformation provided by
the A.L.E.R.T. device completely misled Mr. Wills (and everyone else) as to the potential criminal consequences of
taking the breathalyzer test. The erroneous information provided by the machine so significantly impaired Mr. Wills'
understanding of the consequences of taking the test, that standing alone it would have negated the consent.
79 In my opinion, the consent given by Mr. Wills did not operate as a waiver of his right to be free of
unreasonable search or seizure. The taking of the breath sample constituted a seizure.
R. v. Mellenthin 1992
R. v. Mellenthin (1992), 16 C.R. (4th) 273, 76 C.C.C. (3d) 481 (S.C.C.) — A person detained at a check stop could
reasonably be expected to feel compelled to respond to police questions. A detained person can consent to answer police
questions, but the consent must be an informed one given at a time when the individual is fully aware of his/her rights.
Police questions concerning an item to be searched, the search of the item and of the vehicle in which it is transported are
all elements of a search under Charter s. 8.
Criminal Law ––– Search and seizure — Search without warrant.
Civil liberties and human rights — Legal rights — Unreasonable search or seizure — Accused being pulled over by police at
routine check stop — Police officer questioning accused, searching vehicle and discovering narcotics — Accused later giving
incriminating statement — Physical evidence and statement being excluded at trial — Conduct of police officer constituting
unreasonable search and seizure — Admitting evidence likely to render trial unfair and bring administration of justice
into disrepute.
The Facts:
The accused was stopped at night in a routine roadside check stop. The accused did not show any signs of
impairment. The police officer asked to see the accused's licence and registration and then shone his flashlight into
the car. He asked what was inside a gym bag on the passenger seat and the accused replied “food” and showed the
officer a plastic sandwich bag inside a brown paper bag. The officer became suspicious when he noticed glass vials
in the plastic bag. He searched the car and found vials of hash oil and some cannabis resin cigarettes. The accused
was arrested for possession of a narcotic and later gave an incriminating statement to police. The trial judge
excluded the physical evidence and the statement on the basis that the accused's Charter rights had been
breached, and acquitted the accused. The Court of Appeal directed a new trial. It ruled that there had been a
breach of the accused's Charter rights, but because the real evidence of the narcotics existed prior to the search and
was not created as a result of the breach, the trial judge had erred in excluding it. The accused appealed.
Held:Appeal allowed.
The accused was detained at the check stop and, as a result, could reasonably be expected to feel compelled to
respond to questions from the police. While a person who is detained can still consent to answer police questions,
that consent must be an informed one given at a time when the individual is fully aware of his or her rights. That
was not the case here. The visual inspection of the car by the police officer was essential for the protection of those on
duty in the check stop. However, the subsequent questions pertaining to the gym bag were improper. The officer
had no suspicion at that point that drugs or alcohol were in the vehicle. The aim of check stops is to check for
sobriety, licences, ownership, insurance and the mechanical fitness of cars, and the police use of check stops should
not be extended beyond these aims. The police questions pertaining to the gym bag, the search of the bag and of
the vehicle were all elements of a search, which was made without the requisite foundation of reasonable and
probable grounds and contravened s. 8 of the Charter. A check stop does not and cannot constitute a general
search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and
probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view, the evidence flowing
from such a search should not be admitted. Such admission would adversely and unfairly affect the trial process
and most surely bring the administration of justice into disrepute because it would render the trial unfair. The
violation of the accused's Charter rights was a serious one. The trial judge's decision to exclude the evidence was
not based on either an unreasonable finding of fact or an error of law, and the Court of Appeal erred in interfering
with her findings.
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Power Point:
R v Mellenthin
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SCC (1992) – police at random stop, see accused not wearing seat belt, ask for drivers’ documents; shine flashlight in
car, see gym bag which is open, find drugs
Court refers to Dedman as authority for stopping cars, but this pre-Charter case
Person who is detained can consent to answer police questions, but must be fully aware of his/her rights – no
consent given to search bag
No objection to visual inspection of car by police, but questions subsequently about gym bag were improper
Accused subject to arbitrary detention (s.9 Charter), inference that he felt compelled to respond to police
questions
Accused detained at check stop, subjected to unreasonable search – to admit evidence would render trial unfair,
bring administration of justice into disrepute – accused acquitted
Mellenthin Test: When Random Stops exceed their jurisdiction; Not a General Search Warrant
A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is
pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are
in plain view, the evidence flowing from such a search should not be admitted.
Point: even when a proper case for consent is made, there is a limit. Dedman has been decided,
so a random stop is ok, but only for the limited purposes. The primary aim of the program is thus
to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The
police use of check stops should not be extended beyond these aims. Random stop programs
must not be turned into a means of conducting either an unfounded general inquisition or
an unreasonable search.
A. Was the Appellant Detained in the Check Stop?
15 It was decided in R. v. Dedman, [1985] 2 S.C.R. 2, 34 M.V.R. 1, 46 C.R. (3d) 193, 60 N.R. 34, 20 C.C.C. (3d) 97,
11 O.A.C. 241, that stopping a vehicle as a part of a R.I.D.E. program constituted detention. The case arose prior to the
passage of the Charter, however, the reasoning was relied upon in cases that did take into account Charter rights. In R.
v. Hufsky, [1988] 1 S.C.R. 621, 4 M.V.R. (2d) 170, 84 N.R. 365, 63 C.R. (3d) 14, 27 O.A.C. 103, 40 C.C.C. (3d) 398,
32 C.R.R. 193, and R. v. Ladouceur, [1990] 1 S.C.R. 1257, 21 M.V.R. (2d) 165, 56 C.C.C. (3d) 22, 77 C.R. (3d) 110,
108 N.R. 171, 4 O.A.C. 1, 48 C.R.R. 112, it was determined that the detention of the motorist in a random check
stop constituted an arbitrary detention which infringed s. 9 of the Charter. However, these decisions held that the
random stops were justified pursuant to s. 1 as a means of combatting the grave and pressing problem arising
from the death and injuries occasioned by the dangerous operation of vehicles on our highways. In those cases, it
was deemed appropriate for the officers conducting a check stop program to pose questions as to the mechanical
condition of the vehicle and to require the production of a driver's licence, certificate of ownership and proof of
insurance. This does not make a check stop any less a manifestation of police authority. For even the most
experienced and sophisticated driver it will create an atmosphere of some oppression. This follows not simply
from a consideration of the reasons in Dedman, Hufsky and Ladouceur but is a matter of common sense. There can be
no question that the appellant was detained and, as a result, could reasonably be expected to feel compelled to
respond to questions from the police.
P.163 3rd para from the bottom:
20 However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions
were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the
possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of
impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as a
means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by
dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and
the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random
stop programs must not be turned into a means of conducting either an unfounded general inquisition or an
unreasonable search.
Detaining someone at a check-stop past a certain point, requires more… a unique power to pull over for a
random stop, when there is no basis to continue (no reasonable suspicion) searching, to do so is
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unreasonable – even if consent given, the authority of the police is enough to make the accused feel
compelled.
Gillis v R 1982
Power Point:
Gillis v R
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Que.S.C. (1982) – police officer swears information to obtain search warrant under s.443 [now s.487]; reasonable
grounds refer to “statement of victim, examination of documents and police investigation”
Issuance of search warrant is judicial act; manner in which warrant executed does not affect its validity
Duty on informant to reveal reasonable grounds vary depending on circumstances - here grounds insufficient, justice
exceeded jurisdiction
Objects or documents sought under warrant must be described with sufficient precision for their category and
relation to offence for which they provide evidence
While nature of documents set out, nothing to identify them or tie them with offence
Justice exceeded jurisdiction by simply describing them by category
Ruling: search warrant quashed, seizure declared unlawful, return of things ordered seized (application for
certiorari granted)
Gillis: Proper Attack on Search Warrant Pre-Trial Certiorari – Jurisdictional – 4 corners
Authorities have to draft their warrants well. This is an example of how a search warrant can be
attacked before trial – there are defects on the face of the warrant; Defective within the 4 corners of
the warrant; p.167, p.168 – the grounds set out are “insufficient.” Not specific enough; p.169 – deficient
on the description of the objects:
In the present case, the statement of the reasonable grounds made by the informant is laconic despite the
differences between the annex and the information. What were the documents examined by the informant? What
was the scope of the police investigation? What information was learned? What information was received from reliable
persons whose identity could not be revealed because they were police informers? What is in the victim’s statement?
What are the informant’s reasonable grounds to believe that the “banknotes, safety deposit keys, bonds, R.R.S.P. or
R.H.O.S.P., term deposits, Treasury bonds, bank drafts, and all other documents from the Canadian Imperial Bank of
Commerce, corner of Ste-Catherine and St-Alexandre streets concerning the Trevi Company, the complainant Veikos
or the restaurant La Belle Vie, found on the premises, would afford evidence of the commission of the offence”?
The fraud, it should be remembered, is described as having been committed by means of promissory note in the amount
of $25,000.
On what could the justice of the peace rely in order to be satisfied “that reasonable grounds” existed to believe
that these objects were present at the place set out in the warrant and that these things, if found there, would afford
evidence of the offence committed against Veikos? It is not sufficient for the justice to either rely solely on the good
faith of the informant or on the good sense that the person who will execute the warrant may exhibit. The
Criminal Code requires more from the justice before he may issue a warrant.
I therefore come to the conclusion without any hesitation that the grounds set out in the information and in the
annex are insufficient. As a result, the justice exceeded his jurisdiction in authorizing the issuance of a search
warrant on the basis of this information.
Bottom 170 – Conclusion…. Not adequately detailing…. Top 171… search warrant must be quashed.
This is an example of Certiorari – the warrant is facially defective, therefore quashed: the justice
exceeded jurisdiction; can only be quashed on jurisdictional issues. If there was no jurisdictional error,
the warrant could still be challenged at trial.
R v Debot 1990
Power Point:
R v Debot
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Search is reasonable if it is authorized by law, law itself is reasonable, and manner in which search carried out is
reasonable: Collins (SCC)
Accused does not challenge statutory standard of “reasonable belief”, but argues standard not met, s.8 thus violated
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Police officer who must have reasonable and probable grounds for believing suspect in possession of controlled drug is
one who decides suspect should be searched – standard is “reasonable probability”, not higher standard
Debot Standard: Test of Evidence to be relied upon by the police to justify a warrantless search
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Concerns to be addressed in weighing evidence relied on by police for warrantless search; (1) was information
predicting crime compelling (2) where evidence based on “tip” to police, was source credible (3) was information
corroborated by police prior to making decision to conduct search (Para 53).
Totality of circumstances must meet standard of reasonableness
Quality of information, reliability of informant such that police had sufficient corroborative evidence to believe
drug transaction had occurred
Reference to Collins case para 34, p. 175: Search is reasonable if it is authorized by law, law itself is
reasonable, and manner in which search carried out is reasonable: Collins (SCC) (Under s.8)
Test of Evidence to be relied upon by the police to justify a warrantless search para 53, p.177 – issue of
• Concerns to be addressed in weighing evidence relied on by police for warrantless search; (1) was
information predicting crime compelling (2) where evidence based on “tip” to police, was source
credible (3) was information corroborated by police prior to making decision to conduct search
Go back to Swan dial-a-dope case, these would be the type of things we would want to know.
Comments Re Search and Seizure Cases – Power Point
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Many of these cases touch on Charter rights and protections: s.8 right to be secure against unreasonable search or
seizure; s.9 right not to be arbitrarily detained or imprisoned
S.24(2) exclusion of evidence test, not automatic where Charter breach – Grant, SCC (2009) new formulation of
test
Search may be “incident to arrest”, officer safety, search for weapons
Consent is exception to search rule; may be “plain view”, exigent circumstances, different privacy interests in
homes than cars, or businesses
Search and Seizure (Constitutional)
Exclusion of evidence is often tied to search and seizure, s.8 tied to 24(2). The right to be protected is not
absolute, but defined by “reasonable” in the context of privacy. “Reasonable” expectation is difficult to
define. Hunter v Southam, Collins, Grant - How s.8 right is to be determined
Hunter v Southam 1984
Hunter et al v. Southam Inc., 41 C.R. (3d) 97, 14 C.C.C. (3d) 97 — A warrantless search is prima facie an unreasonable
search under Charter s. 8. The party seeking to justify this warrantless search must rebut this presumption of
unreasonableness. The prior authorization procedures mandated for searches under the Combines Investigation Act did not meet
the minimum standards under the Charter for reasonableness and consequently a search under its authority was invalid
under the Charter. Constitutional law ––– Charter of Rights and Freedoms — Unreasonable search and seizure:
Combines Investigation Act.
The Facts:
Pursuant to s. 10(1) of the Combines Investigation Act, the defendant director authorized the defendant officers to
enter and examine documents at the plaintiff's business premises. The authorization was certified by a member of
the Restrictive Trade Practices Commission pursuant to s. 10(3) of the Act. The Canadian Charter of Rights and
Freedoms was proclaimed after the authorization was made but before the actual search had begun. The plaintiff
unsuccessfully sought an interim injunction pending determination as to whether the search was in violation of s. 8
of the Charter. When the plaintiff appealed, the Court of Appeal sealed the documents pending resolution of the
appeal. The court subsequently ruled that s. 10(1) and 10(3) of the Combines Investigation Act were inconsistent
with s. 8 of the Charter. The defendants appealed.
Held: Appeal dismissed.
The Charter must be subject to a broad purposive analysis and its specific provisions must be interpreted in the
light of its larger objects. Section 8 of the Charter guarantees a broad and general right to be secured from
unreasonable searches and seizures; this right extends at least so far as to protect the right of privacy from
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unjustified state intrusion. Its purpose requires that unjustified searches be prevented. The purpose demands a
means of preventing unjustified searches before they happen, not simply of determining after the fact, whether they
ought to have occurred in the first place. Where it is feasible to obtain prior authorization, such authorization is a
precondition for a valid search and seizure. In this case, it was feasible to obtain prior authorization for the searches
contemplated by the Combines Investigation Act and therefore, in the absence of a valid procedure for prior
authorization, the searches would be unreasonable.
For the authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able
to assess the conflicting interests of the state and the individual in an entirely neutral and impartial manner. This
means that, while the person considering the prior authorization need not be a judge, he must nevertheless be capable
of acting judicially. By investing the Restrictive Trade Practices Commission and its members with significant
investigatory functions, the Combines Investigation Act vitiates the ability of a member of the commission to act in
a judicial capacity. On that basis alone, the prior authorization mandated by s. 10(3) is inadequate to satisfy the
requirements of s. 8 of the Charter.
In addition, there must be an objective standard to apply in determining whether or not to grant an authorization.
In cases like this one, the minimum standard for authorizing search and seizure consists of reasonable and
probable grounds, established upon oath, to believe than an offence has been committed and that there is evidence
to be found at the place of the search. The Combines Investigation Act does not provide such minimum standards
since it leaves the decision to search to the director, who must only believe that the premises may contain relevant
evidence.
Insofar as the Combines Investigation Act does not specify minimum standards consistent with s. 8 of the Charter, the
court will not read the appropriate standard into the provisions. It is the legislature's responsibility to enact
legislation which complies with the Charter requirements.
Power Point:
Hunter v Southam
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Combines Investigation Act, s.10, gives Director power to enter premises, examine and take documents as evidence;
search carried out on newspaper
Constitutional validity of statute authorizing search and seizure without prior judicial authorization in issue
S.8 Charter guarantees right to be secure from unreasonable searches and seizures, limits powers of search and
seizure possessed by government
Guarantee against unreasonable search and seizure only protects reasonable expectation
Hunter: Prior Authorization Required for Valid Search and Seizure; Presumption Subject to
Rebuttal
•
•
•
•
•
•
Requirement of prior authorization, usually in form of valid warrant, consistent prerequisite for valid search and
seizure at common law, and under most statutes
Absence of valid procedure for prior authorization searches under Act is unreasonable
Under common law power to issue search warrant reserved for justice of peace; Director under Act has
investigative power, not in position to act judicially and grant authorization
Reasonable and probable grounds, established under oath, to believe offence has been committed and that there is
evidence to be found at place of search, constitutes minimum standard, consistent with s.8 of Charter of Rights,
for authorizing search and seizure
Since s.10 Combines Investigation Act does not embody this requirement, it is inconsistent with s.8 of Charter
Not for courts to “read in” or “read down” provision to save it, section struck down
Federal Regulatory Statute that has the power of search and seizure, p.208 under heading III:
14 At the outset it is important to note that the issue in this appeal concerns the constitutional validity of a statute
authorizing a search and seizure. It does not concern the reasonableness or otherwise of the manner in which the
appellants carried out their statutory authority. It is not the conduct of the appellants, but rather the legislation
under which they acted, to which attention must be directed.
p.211, 2nd last para – we will see this in Tesling – airplane taking infrared images to find grow ops. Or if
police want to look through garbage, or lockers in a school, or a person renting a locker at a bus depot.
The question will always be: does the individual have a reasonable expectation of privacy?
47
25 Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be
secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for
purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security
from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed
by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an
entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a
particular situation the public's interest in being left alone by government must give way to the government's
interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
Hunter decided on another point, but the above is a repeated issue. In Hunter: From p.212, second para
and third: Requirement of prior authorization, usually in form of valid warrant, consistent
prerequisite for valid search and seizure at common law, and under most statutes
A) When is the balance of interests to be assessed?
27 If the issue to be resolved in assessing the constitutionality of searches under s. 10 were whether in fact the
governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental
intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search
had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That
purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose
requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact,
whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior
authorization, not one of subsequent validation.
28 A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent pre-requisite
for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state
to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention
of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of
the state in advancing its purposes through such interference.
Bottom of 212: Absence of valid procedure for prior authorization searches under Act is unreasonable
31 In the present case the appellants make no argument that it is infeasible or unnecessary to obtain prior
authorization for the searches contemplated by the Combines Investigation Act and, in my view, no such argument
could be made. I would therefore conclude that in the absence of a valid procedure for prior authorization
searches conducted under the Act would be unreasonable. In the event, s. 10(3) does purport to establish a
requirement for prior authorization, specifying, as it does, that searches and seizures conducted under s. 10(1) must be
authorized by a member of the R.T.P.C. The question then becomes whether s. 10(3) provides for an acceptable prior
authorization procedure.
This is often an issue in drinking and driving – defence will say without a warrant, a breath sample is
prima facie unreasonable. The crown must prove “reasonable grounds” to make a breath demand.
So the onus has shifted to the crown to justify without a warrant. This case says that if it is possible to
get prior authorization, the crown will have to justify. Under common law, power to issue search
warrant reserved for justice of peace; Director under Act has investigative power, not in position to act
judicially and grant authorization, p. 214, 2nd last para:
35 In my view, investing the Commission or its members with significant investigatory functions has the result
of vitiating the ability of a member of the Commission to act in a judicial capacity when authorizing a search or
seizure under s.10(3). This is not, of course, a matter of impugning the honesty or good faith of the Commission or its
members. It is rather a conclusion that the administrative nature of the Commission's investigatory duties (with its
quite proper reference points in considerations of public policy and effective enforcement of the Act) ill accords with
the neutrality and detachment necessary to assess whether the evidence reveals that the point has been reached
where the interests of the individual must constitutionally give way to those of the state. A member of the R.T.P.C.
passing on the appropriateness of a proposed search under the Combines Investigation Act is caught by the maxim
nemo judex in sua causa. He simply cannot be the impartial arbiter necessary to grant an effective authorization.
Last para: “on that basis alone…
48
36 On this basis alone I would conclude that the prior authorization mandated by s. 10(3) of the Combines
Investigation Act is inadequate to satisfy the requirements of s. 8 of the Charter and consequently a search carried
out under the authority of ss.10(1) and 10(3) is an unreasonable one. Since, however, the Alberta Court of Appeal
found other, perhaps even more serious defects in these provisions I pass on to consider whether even if s.10(3) did
specify a truly neutral and detached arbiter to authorize searches it would nevertheless remain inconsistent with s.8 of
the Charter.
Hunter is unusual b/c it is about another authority having the power, but not being able to act
judicially. Nevertheless, the talk about prior judicial authorization being needed. Remedy: p.217 –
reading in or reading down – 6 remedies under s.52, including reading in or reading down. – sentence
with “lacunae” – should not fall to courts. Not for courts to “read in” or “read down” provision to save
it, section struck down:
Reading In and Reading Down
44 The appellants submit that even if ss.10(1) and 10(3) do not specify a standard consistent with s.8 for authorizing
entry, search and seizure, they should not be struck down as inconsistent with the Charter, but rather that the appropriate
standard should be read into these provisions. An analogy is drawn to the case of MacKay v. The Queen, [1965] S.C.R. 798
in which this Court held that a local ordinance regulating the use of property by prohibiting the erection of unauthorized
signs, though apparently without limits, could not have been intended unconstitutionally to encroach on federal competence
over elections, and should therefore be “read down” so as not to apply to election signs. In the present case, the overt
inconsistency with s.8 manifested by the lack of a neutral and detached arbiter renders the appellants' submissions
on reading in appropriate standards for issuing a warrant purely academic. Even if this were not the case, however, I
would be disinclined to give effect to these submissions. While the courts are guardians of the Constitution and of
individuals' rights under it, it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to
comply with the Constitution's requirements. It should not fall to the courts to fill in the details that will render
legislative lacunae constitutional. Without appropriate safeguards legislation authorizing search and seizure is
inconsistent with s.8 of the Charter. As I have said, any law inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect. I would hold ss.10(1) and 10(3) of the Combines Investigation Act to be
inconsistent with the Charter and of no force and effect, as much for their failure to specify an appropriate standard
for the issuance of warrants as for their designation of an improper arbiter to issue them.
Section 33.1 is an example of how the courts engage in a “dialogue” with legislature to get a new
provision.
Self-Induced Intoxication
33.1 (1) When defence not available — It is not a defence to an offence referred to in subsection (3) that the accused,
by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence,
where the accused departed markedly from the standard of care as described in subsection (2).
(2) Criminal fault by reason of intoxication — For the purposes of this section, a person departs markedly from the
standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the
person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously
controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of
another person.
(3) Application — This section applies in respect of an offence under this Act or any other Act of Parliament that
includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity
of another person.
Hunter shows the interplay between criminal and regulatory act. The provision at issue was originally a
criminal provision, which became part of the combines act in 1969. Now it is the Competition act,
which is used infrequently now. This is the legislation that was at the heart of Wholesale Travel. In
regulatory offences, the burden shifts to the defendant to prove on a balance of probabilities, even
though it can come with prison. They only upheld the reverse onus on a 5:4 vote.
Search and Seizure – Constitutional Requirements (Part II)
49
Collins v R 1987
Criminal law — Search and seizure — Warrantless searches — Police officer grabbing accused by throat in process of
searching for drugs — Evidence as to grounds for officer's belief under s. 10(1) of Narcotic Control Act improperly
excluded at trial — In absence of evidence as to grounds of officer's belief, search unreasonable and admission of evidence
bringing administration of justice into disrepute.
The Facts:
Members of the R.C.M.P. drug squad, who were conducting a surveillance of the accused and her husband,
observed the accused in a pub. One of the officers identified himself to the accused as a police officer and then
grabbed her by the throat to prevent her from swallowing potential evidence. The officer and the accused fell to
the floor. The officer observed an item in the accused's hand which proved to be a balloon containing heroin. At
trial, the accused sought to have the evidence of the accused's possession of the heroin excluded on the basis that
it had been obtained in violation of the accused's right to be secure against unreasonable search. On a voir dire
held to determine the admissibility of the evidence, the accused's counsel objected to the admission of evidence
about to be presented by the officer as hearsay and the Crown failed to establish the grounds for the officer's
belief that the accused was in possession of drugs. The trial judge held that the officer did not come within s. 10 of
the Narcotic Control Act as a belief on reasonable grounds had not been established and, accordingly, that the
search was unlawful and in violation of the accused's rights under s. 8 of the Charter. Notwithstanding this
finding, he held that the admission of the evidence would not bring the administration of justice into disrepute.
The evidence was admitted and the accused convicted. The accused's appeal to the Court of Appeal was
dismissed and a further appeal was taken to the Supreme Court of Canada.
Held: Appeal allowed; new trial ordered.
Per LAMER J. (DICKSON C.J.C., WILSON and LA FOREST JJ. concurring: For evidence to be excluded pursuant
to s. 24(2) of the Charter, the applicant must show, on a balance of probabilities, that a right or freedom
guaranteed by the Charter has been infringed or denied, that the evidence was obtained in violation of that right
and that, having regard to all the circumstances, the admission of the evidence would bring the administration of
justice into disrepute.
Where the right alleged to have been infringed is the right to be secure against unreasonable search and the
applicant establishes that a search was conducted without a warrant, the burden shifts to the Crown to show, on a
balance of probabilities, that the search was reasonable. A search will be reasonable only if it was authorized by
law, if the law itself was reasonable and if it was carried out in a reasonable manner. As the constitutionality of s.
10(1) of the Narcotic Control Act was not at issue, the questions to be determined in this case were whether the officer
was acting under the authority of s. 10 and whether the search itself was reasonable. As the Crown had failed to
meet the onus of showing that there were reasonable grounds for the officer's belief as to the presence of drugs,
the trial judge was correct in concluding that the search was unreasonable as it was unlawful and carried out
with unnecessary violence. However, as the failure of the Crown to adduce evidence of the officer's belief was due
to an unfounded objection as to the admissibility of hearsay, a new trial should be ordered on the basis that the
judge had either failed to make a ruling or made an incorrect ruling on the admissibility of the officer's
evidence. As well, the accused should not receive the benefit of the unfounded objection.
In determining whether the admission of evidence obtained as a result of an unreasonable search would bring the
administration of justice into disrepute, the test is whether admission of the evidence would bring the
administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the
circumstances of the case. The factors to be considered include those which affect the fairness of the trial, those
relating to the seriousness of the Charter violation and those which relate to the effect of excluding the evidence.
The “community shock” test is not determinative of admissibility of evidence obtained in violation of Charter rights.
In the context of a Charter violation, the threshold for exclusion of evidence is lower as it involves a violation of the
most important law of the land. In addition, consideration of the French version of s. 24(2) indicates that the
section is to be interpreted as requiring the exclusion of evidence that is capable of bringing the administration
of justice into disrepute. In this case, although the evidence obtained by the unreasonable search was real evidence
and its admission would not result in an unfair trial and the exclusion of the evidence would allow an individual found
guilty of a relatively serious offence at trial to evade conviction which itself could bring the administration of justice
into disrepute, the search was a flagrant and serious violation of the rights of the accused. In the absence of an
explanation of the officer's grounds, the administration of justice would be brought into greater disrepute by the
admission of the evidence than by its exclusion. Accordingly, unless the grounds for a reasonable belief on the part
of the officer were established during the new trial, the evidence must be excluded.
50
Power Point:
R v Collins
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Another early Charter decision, issue is whether “throat hold” search to prevent accused from swallowing drugs
violates s.8 Charter search power, whether evidence (balloon with heroin) should be excluded under s.24(2)
Search without warrant authorized by s.10(1) Narcotics Control Act (now Controlled Drugs and Substances Act)
Accused charged with possession of heroin for purpose of trafficking, seeks to exclude evidence at trial; admitted by
trial judge, conviction entered
Accused bears burden of persuading court her Charter rights infringed or denied; standard of proof is civil
standard of balance of probabilities
Once accused demonstrates search was warrantless, burden shifts to Crown to show search was, on balance of
probabilities, reasonable
Collins Factors for Test of Reasonable Warrantless Search
•
Search will be reasonable if it is authorized by law; law itself is reasonable; and manner in which search carried
out is reasonable (Para 34 below).
•
For search to be lawful under Act, Crown must establish officer believed on reasonable grounds narcotic in place
where person searched was found
To exclude evidence under s.24(2), accused bears civil standard of persuasion that admission of evidence would
bring administration of justice into disrepute
S.24(2) not remedy for police misconduct; court to consider “all the circumstances”
Effect of admission of evidence: trial is key part of administration of justice, if admission of evidence affects fairness
of trial, evidence should generally be excluded – real evidence (gun) operates differently than conscripted evidence
(breath sample)
Seriousness of Charter violation: factors include whether violation committed in good faith, inadvertent, technical as
opposed to deliberate, wilful or flagrant; conduct motivated by urgency
Effect of exclusion: issue is whether system’s repute will be better served by admission or exclusion of evidence –
evidence should not be excluded if effect of exclusion brings administration of justice into further disrepute than its
admission
•
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•
•
•
Search without a warrant, but the act authorized it – the issue is whether the circumstances justified
the violence involved; p.220 bottom, 221 – Trial
The Proceedings:Trial
15 Ruby Collins was charged with possession of heroin for the purpose of trafficking. At the beginning of her trial
before Judge Wong of the County Court [3 C.R.R. 79, [1983] W.C.D. 061, [1983] B.C.W.L.D. 1180 ], her counsel
requested that a voir dire be conducted under s. 24 of the Charter to determine whether the fact that heroin was
found in her possession should be admitted. He argued that the evidence should be excluded because it was
obtained in a manner that infringed her right to be secure against unreasonable search and because, having
regard to all of the circumstances of this case, the admission of that evidence into these proceedings would bring the
administration of justice into disrepute.
Procedure Challenging the Search:
Not 553 or 469, she had the right to elect. A voir dire was held under 24(2). Zevallos said that you can’t
challenge the search warrant collaterally, but only on its face, jurisdictionally: Substantive issues to be
dealt with at trial. Here, it’s different, she is now before the trial judge, and she can argue that there
were not “reasonable grounds.” This is done at the beginning because if the evidence is excluded the
trial is over effectively. This is a usual procedure if there is a questionable confession. If the crown
refers to inadmissible evidence, it could create a mistrial question.
p.222 – Reasonableness of the Search, para 21(32) - standard of persuasion – balance:
32 The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms
have been infringed or denied. That appears from the wording of s. 24(1) and (2), and most courts which have
considered the issue have come to that conclusion: see R. v. Lundrigan (1985), 19 C.C.C. (3d) 499, 15 C.R.R. 256, 33
Man. R. (2d) 286 (C.A.), and the cases cited therein, and Gibson, The Law of the Charter: General Principles (1986), p.
278. The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is
51
only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion
means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the
court must conclude that they were not.
Top of 223 – burden on accused to show a violation of a charter right, now burden shifts to the crown
to prove “reasonable” – context is a warrantless search:
33 The courts have also developed certain presumptions. In particular, this court held in Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145 at 161, (sub nom. Dir. of Research & Investigation, Combines Investigation Branch v. Southam
Inc.) [1984] 6 W.W.R. 577, 33 Alta. L.R. (2d) 193, 41 C.R. (3d) 97, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 11 D.L.R. (4th)
641, 2 C.P.R. (3d) 1, 84 D.T.C. 6467, 9 C.R.R. 355, 55 A.R. 291, 55 N.R. 241:
In United States v. Rabinowitz, 339 U.S. 56 (1950), the Supreme Court of the United States had held that a
search without warrant was not ipso facto unreasonable. Seventeen years later, however, in Katz, Stewart J.
concluded that a warrantless search was prima facie “unreasonable” under the Fourth Amendment. The
terms of the Fourth Amendment are not identical to those of s. 8 and American decisions can be transplanted
to the Canadian context only with the greatest caution. Nevertheless, I would in the present instance
respectfully adopt Stewart J.'s formulation as equally applicable to the concept of “unreasonableness”
under s. 8, and would require the party seeking to justify a warrantless search to rebut this
presumption of unreasonableness.
This shifts the burden of persuasion from the appellant to the Crown. As a result, once the appellant has
demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a
balance of probabilities, reasonable.
Para 23(34): Reasonable 1) authorized by law 2) Law reasonable 3) manner in which conducted
reasonable:
34 A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which
the search was carried out is reasonable. In this case, the Crown argued that the search was carried out under s. 10(1) of
the Narcotic Control Act, above. As the appellant has not challenged the constitutionality of s. 10(1) of the Act, the issues
that remain to be decided here are whether the search was unreasonable because the officer did not come within s. 10 of
the Act or whether, while being within s. 10, he carried out the search in a manner that made the search
unreasonable.
In Hunter – the law itself was held not to be reasonable – not by a judicial officer
In Collins – the police complied with a statute, but the manner is the issue. Did they have a proper
basis to believe she had narcotics? Para 24(35) – Crown must establish crown had reasonable
grounds – had to adduce evidence as to the officers reasonable belief.
35 For the search to be lawful under s. 10, the Crown must establish that the officer believed on reasonable
grounds that there was a narcotic in the place where the person searched was found. The nature of the belief will
also determine whether the manner in which the search was carried out was reasonable. For example, if a police officer
is told by a reliable source that there are persons in possession of drugs in a certain place, the officer may, depending on
the circumstances and the nature and precision of the information given by that source, search persons found in that
place under s. 10, but surely, without very specific information, a seizure by the throat, as in this case, would be
unreasonable. Of course, if he is lawfully searching a person whom he believes on reasonable grounds to be a “drug
handler”, then the “throat hold” would not be unreasonable.
24(2) in the Context of unreasonable search and seizure; p.224, para 30(41), burden on the applicant –
the accused – balance of probability to establish violation of the charter; if can’t no further 24(2) issue
41 At the outset, it should be noted that the use of the phrase “if it is established that” places the burden of
persuasion on the applicant, for it is the position which he maintains which must be established. Again, the standard
of persuasion required can only be the civil standard of the balance of probabilities. Thus, the applicant must make it
more probable than not that the admission of the evidence would bring the administration of justice into
disrepute.
52
The Canadian way is a middle ground between the common law and the U.S. law; there is not usually a
s.1 argument in a s.24 issue.
40 On the record as it now stands, the appellant has established that the search was unreasonable and violated
her rights under s. 8 of the Charter. As Seaton J.A. pointed out in the Court of Appeal, s. 24(2) has adopted an
intermediate position with respect to the exclusion of evidence obtained in violation of the Charter. It rejected the
American rule excluding all evidence obtained in violation of the Bill of Rights and the common law rule that all
relevant evidence was admissible regardless of the means by which it was obtained. Section 24(2) requires the
exclusion of the evidence “if it is established that, having regard to all the circumstances, the admission of it in the
proceedings would bring the administration of justice into disrepute.”
P.226, para 35 – Lamer sets out factors – 3 groups: para 36 – 39:
Collins Factors for Exclusion of Evidence under 24(2)
• Effect of admission of evidence: trial is key part of administration of justice, if admission of
evidence affects fairness of trial, evidence should generally be excluded – real evidence (gun)
operates differently than conscripted evidence (breath sample)
• Seriousness of Charter violation: factors include whether violation committed in good faith,
inadvertent, technical as opposed to deliberate, wilful or flagrant; conduct motivated by urgency
• Effect of exclusion: issue is whether system’s repute will be better served by admission or
exclusion of evidence – evidence should not be excluded if effect of exclusion brings
administration of justice into further disrepute than its admission
Held: there is a s.8 violation, sent back for new trial to assess police grounds for reasonable belief.
R v Stillman 1997
Criminal law — Search and seizure — Search without warrant — As incident of arrest — Police took hair samples,
buccal swabs and dental impressions from accused without consent while accused in custody — Police claimed that
searches authorized by common law power of search incidental to lawful arrest — Such searches permitted only to assure
that person arrested unarmed or to preserve evidence — No fear that evidence to be destroyed — Searches invasive and
no consent given — Searches not authorized as part of lawful arrest.
The Facts:
The accused appealed his conviction for the first degree murder of a 14-year-old girl. The accused was 17 years
old at the time of the murder. The girl had died from trauma to her head, which had caused her brain to swell. There
were teeth marks on her stomach, and she had had sexual intercourse before her death. Her body had been thrown
into a river after her death. The accused was the last person to be seen with her the night she died. He and the victim
had been consuming drugs and alcohol at a camp in the woods. He had arrived home late covered in mud,
scratched and wet, and in a daze. He claimed to have been attacked by other youths after he parted from the victim.
During their investigation, the police retrieved a tissue discarded in a bin by the accused after he had blown his
nose while being interrogated in police custody. They also took buccal swabs, and samples of the accused's scalp and
pubic hair, and his teeth impressions. These were taken under threat of force after the accused had seen his lawyers,
who had issued a statement to the effect that the accused was not to give any bodily samples or make any
statements to the police. At trial, the taking of the samples was held to have violated the accused's s. 8 Charter
rights, but the samples were held to be admissible under s. 24(2) of the Charter. It was held that the tissue had not
been obtained in violation of s. 8, and it was admitted.
On appeal, the accused claimed that all the items were obtained by violating his s. 8 Charter right to be secure
from unreasonable search and seizure, and that their admission brought the administration of justice into
disrepute. The appeal was dismissed, the court determiing that no Charter right had been violated in the retrieval of
the tissue on the basis that when the accused voluntarily discarded it, he ceased to have any privacy interest in it.
Regarding the other items, it was held that the accused's s. 8 rights had been violated, but as the trial judge had
considered the appropriate factors, he had made a correct analysis in refusing to exclude the evidence under s.
24(2).
53
The accused appealed to the Supreme Court of Canada.
Held: The appeal was allowed, and a new trial ordered; the hair samples, buccal swabs and dental impressions
were to be excluded in the new trial, but the mucous sample was to be admitted.
Per Cory J. (Lamer C.J.C, La Forest, Sopinka and Iacobucci JJ. concurring): At the time the police took the hair
samples, buccal swabs and dental impressions, there was no statutory authority for the taking of such samples. The
police contention that the taking of such samples was authorized by the common law power of search incidental to
a lawful arrest could not be accepted. Such searches were permitted only to assure the police that the person
being arrested was unarmed, or to preserve evidence that might be destroyed. In the case at bar, there was no fear
that the evidence would be destroyed if not seized immediately. Also, the police were aware that the accused was
a young offender, and that the Young Offenders Act required a parent or counsel to be present during a police
interview. They nevertheless proceeded with the interrogation and taking of samples without the presence of any
adult to represent the accused. The taking of the samples therefore violated the accused's s. 8 Charter right to be
secure from unreasonable search and seizure.
It also violated his s. 7 Charter right to security of the person, as the taking of the samples was highly intrusive in
that it violated the sanctity of the body, which was essential to the maintenance of human dignity. Overall, the
handling of the interrogation and search and seizure of samples represented an abusive exercise of raw physical
authority by the police, and contravened the principles of fundamental justice.
The seizure of the tissue while the accused was detained and still presumed to be innocent also violated the
accused's s. 8 Charter rights. His expectation of privacy, although lower when detained, was not so low as to
permit the seizure of bodily samples without consent. This was particularly so where the accused had said he
would not consent to the taking of such samples, and where the police were aware of the lack of consent.
The trial judge erred in determining, under s. 24(2) of the Charter, that the admission of the evidence of the hair
samples, buccal swabs and dental impressions would not bring the administration of justice into disrepute. There
was no doubt that this evidence constituted conscriptive evidence in that the accused, in violation of his Charter
rights, had been compelled to incriminate himself at the behest of the state by providing it. No independent
source existed by which the police could have obtained this evidence. Since the accused had expressly refused to
consent to provide the samples, and the evidence was not discoverable by the state without the conscription of the
accused in violation of the Charter, it followed that the admission of the evidence would render the trial unfair. The
police had acted with blatant disregard for the fundamental rights of the accused, and the unavailability of other
constitutionally permissible investigative techniques was neither an excuse for nor a justification of such actions. A
finding of unfairness was sufficient to exclude the evidence without having to consider further the seriousness of the
Charter violation or the effect of the exclusion on the repute of the administration of justice.
The mucous sample from the tissue, however, could be admitted as evidence. The police had not obtained it by
force, or even by request. The accused had blown his nose of his own accord. The police had acted surreptitiously
and in violation of the accused's Charter rights in taking the tissue from the wastebasket, but the violation was not
serious in that the seizure had not interfered with the accused' s bodily integrity or caused him any loss of dignity. In
any event, that evidence was discoverable, as the police could have sealed the garbage bag in which the tissue was
contained, and sought a warrant to recover the contents. Therefore, the administration of justice would not be
brought into disrepute if the evidence obtained from the mucous sample were admitted.
Power Point:
R v Stillman
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SCC returns to trial fairness considerations under s.24(2), bodily samples taken from accused, law does not
authorize this at time
Some of samples taken from accused while in police custody were dental impressions, hair samples, saliva; tissue from
bathroom after accused blew his nose and discarded it also taken
All of evidence admitted at trial, accused convicted of murder
Simple method to approach trial fairness factor is first classify evidence as conscriptive or non-conscriptive
If evidence violating Charter involved accused incriminating self, eg., statement, bodily substances, evidence is
conscriptive
Conscriptive evidence may lead to derivative evidence – evidence discovered should be regarded as conscriptive
too
Where evidence non-conscriptive, its admission will not render trial unfair, court should next consider seriousness
of violation
Where evidence is conscriptive, next step is to assess whether evidence would have been discovered in absence (but
for) Charter violation
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Discoverability – would evidence have been obtained from independent source in any event; would evidence
inevitably have been discovered
Crown bears onus to demonstrate on balance of probabilities that evidence would have been discovered by
alternative non-conscriptive means; if fails to do so Court will exclude evidence without considering Collins test
further since unfair trial brings justice system into disrepute
Even though evidence conscriptive, probability of its discovery means admission will not render trial unfair –
Court must go on and consider seriousness of Charter breach and effect of exclusion of evidence on
administration of justice
Note what is taken: Some of samples taken from accused while in police custody were dental
impressions, hair samples, saliva; tissue from bathroom after accused blew his nose and discarded it also
taken. There were no provisions in the code to get authorization to seize samples. P.236 – Trial Fairness
Summary; Picks up on the theme from Collins pp. 236 – 7; Conscriptive or non-conscriptive;
Conscriptive – evidence that is compelled from accused/ that does not exist independently; Nonconscriptive – + Would it have been discovered anyway; Summary at bottom of p.237 3 paragraphs:
Stillman Test for Excluding Evidence under 24(2)
119 The summary itself can be reduced to this short form:
1.
Classify the evidence as conscriptive or non-conscriptive based upon the manner in which the evidence was
obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the court will
proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of
justice.
2.
If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the
evidence would have been discovered by alternative non-conscriptive means, then its admission will render the
trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the
breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair
trial would necessarily bring the administration of justice into disrepute.
3.
If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that
it would have been discovered by alternative non-conscriptive means, then its admission will generally not render
the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the
administration of justice will have to be considered.
Stillman later is seen to be too formulaic, Grant opens it up again to give court discretion to use the
evidence even if conscriptive.
R v Grant 2009
Detention[See also s. 10]
R. v. Grant, [2009] 2 S.C.R. 353, 66 C.R. (6th) 1, 245 C.C.C. (3d) 1 — Under ss. 9 and 10, “detention” refers to the suspension
of a person's liberty interest by a significant physical or psychological restraint. Criminal law --- Charter of Rights and
Freedoms — Arbitrary detention or imprisonment [s. 9]
The Facts:
The accused was observed by police in an area that was being regularly patrolled due to a history of student assaults,
robberies and drug offences occurring over the lunch hour. There were four schools in the area. Two plain-clothes
police officers in an unmarked car drove past the accused who, looked at them in an unusually intense manner and
“fidgeted” with his coat and pants in a way that aroused their suspicions. A uniformed officer approached the
accused, stood on the sidewalk in the accused's direct path, and requested his name and address. The accused
provided a provincial health card, and while adjusting his jacket, the officer asked him to keep his hands in front of
him. The two plain-clothes officers approached the accused and the uniformed officer, identified themselves as
police officers, and stood beside the uniformed officer, further obstructing the accused's way. The uniformed officer
then asked the accused if he had anything in his possession that he shouldn't, and the accused admitted to
possessing marijuana and a firearm. The officers then arrested and searched the accused, seized the marijuana and
loaded revolver, and then advised him of his right to counsel and took him to the police station.
At trial, the accused alleged violations of his rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and
Freedoms. The trial judge held that the officer's inquiries did not amount to a search within the meaning of s. 8 of the
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Charter, and that the accused was not detained prior to his arrest or, if he was detained, he waived his rights by
cooperating. Having found no Charter breach, the trial judge admitted the firearm as evidence, and the accused was
convicted of five firearm offences.
On appeal, the court revisited the question of detention, citing several mischaracterizations of events by the trial
judge. The appeal judge found the accused was detained before he made his incriminating statements, and since the
officers had no reasonable and probable grounds to detain him, the detention was arbitrary and a breach of s. 9 of
the Charter. The appeal judge determined that the firearm was derivative evidence, but concluded that the
admission of the firearm into evidence would not unduly undermine trial fairness. The accused appealed.
Held: The appeal was allowed in part.
McLachlin C.J.C., Charron J. (LeBel, Fish, Abella JJ. concurring): The threshold question in this case was whether
the accused was detained before he produced the firearm and was arrested. While the accused may not have been
physically detained, psychological constraint amounting to detention had been recognized. The officer's
preliminary questioning was a legitimate exercise of police powers. Once the encounter changed from ascertaining
the accused's identity to determining whether he “had anything he shouldn't”, it took on the character of an
interrogation and became inherently intimidating. The evidence supported the accused's contention that a reasonable
person in his position would conclude that his right to choose how to act had been removed by the police, therefore
the accused was detained. The officers agreed at trial that they did not have legal grounds or reasonable suspicion to
detain the accused, therefore the detention was arbitrary and in breach of s. 9 of the Charter, as was his s. 10(b)
right to counsel. Since the firearm was discovered as a result of statements taken in breach of the Charter, it was
derivative evidence. The court was then required to consider whether the evidence was to be excluded under s. 24(2)
of the Charter.
The role of the court in considering a s. 24(2) application was to balance three lines of inquiry to determine whether
the admission of the evidence would bring the administration of justice into disrepute. While the previous framework
had brought a measure of certainty to the s. 24(2) inquiry, the general rule of inadmissibility of all non-discoverable
conscriptive evidence was not consistent with the requirement that the court consider “all the circumstances” in
determining admissibility. A review of the previous framework led to the conclusion that clarification was required of
the criteria relevant to determining when in “all the circumstances”, admission of evidence obtained by a Charter
breach would bring the administration of justice into disrepute.
Under the revised approach to s. 24(2), the first consideration in whether to exclude evidence was the seriousness of
the conduct which led to the discovery of the evidence. The more severe or deliberate the conduct that led to the
Charter violation, the more likely the court should be to exclude the evidence to maintain public confidence in the rule
of law. This inquiry requires an evaluation of the seriousness of the state conduct that led to the breach. In this
case, while the police were in error in detaining the accused, the mistake was understandable, was not done in bad
faith, and was neither deliberate nor egregious, therefore the effect of admitting the evidence would not greatly
undermine public confidence in the rule of law.
The second consideration was whether the admission of the evidence would bring the administration of justice into
disrepute from the perspective of society's interest in respect for Charter rights. The more serious the impact on the
accused's interests, the greater the risk that the admission of the evidence could breed public cynicism and bring the
administration of justice into disrepute. In this case, the initial Charter violation was arbitrary detention under s.
9, and the second violation was a breach of the accused's s. 10(b) right to counsel. While the impact of the initial
breach was not severe, it was more than minimal since it deprived the accused of his freedom to make an informed
choice as to how to respond to the police. Furthermore, since discoverability remained a factor in assessing the
impact of the breaches on the accused's Charter rights, the fact that the evidence was non-discoverable aggravated
the impact of the breach on the accused's interest in being able to make an informed decision on speaking with the
police without having the opportunity to seek legal advice. The impact of the infringement of the accused's rights
under ss. 9 and 10(b) of the Charter was significant.
The third and final consideration was the effect of admitting the evidence on the public interest in having the
case adjudicated on its merits. This required a consideration of the reliability of the evidence and its importance to
the proper adjudication of the case. In this case, the gun was highly reliable evidence and was essential to a
determination on the merits. Since the officers were operating in circumstances of legal uncertainty, this tipped the
balance in favour of admission of the evidence.
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Power Point:
R v Grant 2009
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2009 SCC 32 (17 July 2009) – police on patrol near school area where incidents of violence, drugs, approach male and
engage in conversation; accused admits to having bag of weed and gun
Court examines law jurisprudence on detention, exclusion of evidence – cases difficult to apply, may lead to
unsatisfactory results
Purpose of s.24(2) is to maintain good repute of administration of justice – will justice system in long term be
adversely affected by admission of evidence – inquiry is objective
Grant Test: Revised Approach for Excluding Evidence under 24(2)
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Test under s.24(2) requires court to assess and balance effect of admitting evidence on society’s confidence in
justice system considering three factors:
Seriousness of Charter infringing state conduct – more severe, deliberate state conduct, greater the need for courts to
dissociate themselves from it
Impact of breach on Charter-protected interests of accused – more serious incursion of these interests, greater the
risk evidence will bring disrepute to justice system
Society’s interest in adjudication of case on merits – court asks if truth seeking function of criminal trial better
served by admission of evidence or its exclusion – reliability of evidence, importance to Crown’s case relevant factors
Evidence in case derivative, balancing of factors favoured admission – conduct of police not deliberate; impact of
breach on accused’s rights significant but not most serious; gun highly reliable evidence, essential to
determination on the merits
p.1655 – Overview:
3.
Overview of a Revised Approach to Section 24(2)
67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term
"administration of justice" is often used to indicate the processes by which those who break the law are investigated,
charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter
rights in the justice system as a whole.
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would
bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests
engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application
for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's
confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct
(admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach
on the Charter-protected interests of the accused (admission may send the message that individual rights count for
little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application
is to balance the assessments under each of these lines of inquiry to determine whether, considering all the
circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns,
while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the
s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
Purpose of s.24(2) is to maintain good repute of administration of justice. Court moves away from
Stillman, now: seriousness, impact, society’s interest. Acknowledges that conscription will have a
greater impact, but it will not necessarily be determinative. See Don Stuart – 66 Criminal Court 6 –
Welcome criteria…
R v Genest 1989
Criminal Law ––– Constitutional issues in criminal law — Charter of Rights and Freedoms — Charter remedies —
Exclusion of evidence. Civil liberties — Enforcement under Charter of Rights and Freedoms — Remedies — Exclusion of
evidence — Real evidence of illegal weapons to be excluded where police having seriously defective search warrant, using
excessive force and ignoring common law limits on police powers..
The accused was charged with possession of illegal and restricted weapons. These were seized during a search
executed pursuant to a warrant issued to authorize a search for drugs. The search was conducted in the early
morning hours by a large number of police, who broke open the door to the house without any advance warning.
The police witnesses gave no explanation why they thought it necessary to use force, or why they broke into the
house without giving the normal warnings which the common law requires. The search warrant had a number of
57
defects: the warrant did not name the officer who was to execute the search and there was no mention of the hours
of execution, the objects to be searched for or the district of the justice of the peace who issued the warrant and to
whom the officers were to bring anything found in the search. The trial judge found that the search warrant was
invalid, that the search was in violation of s. 8 of the Canadian Charter of Rights and Freedoms, and that the
evidence should be excluded. As there was no other evidence, the accused was acquitted. The Court of Appeal set
aside the acquittal and ordered a new trial. The accused appealed further. The Crown conceded that there was an
illegal search which violated the accused's Charter rights under s. 8, and the sole issue on this appeal was whether
the admission of the evidence would bring the administration of justice into disrepute.
Held: Appeal allowed; order for new trial set aside; acquittal restored.
The first group of factors to be considered in determining whether the admission of the evidence would bring the
administration of justice into disrepute concerns the effect which the admission would have on the fairness of the
trial. In this case the accused sought to have real evidence excluded. The evidence was not created by the breach of a
Charter right, nor was it found by forcing the appellant to participate in the illegal search or to identify the objects
seized in the search. On the facts of this case, admission of the evidence would not have an unfair effect on the
trial.
The second group of factors relates to the seriousness of the violation and the reasons for it. The defects in the
warrant in this case could not be said to be simply technical. The defects were serious, and the police officers
should have been aware of them. These serious defects must be kept in mind in considering the way the search was
carried out. Fears for the safety of the searchers and the possibility of violence are reasons for the use of force in the
execution of a search warrant, but no attempt was made by the police at trial to lay the foundation to support this
approach. The search in this case was a serious breach of s. 8. Not only did the police have a facially defective
warrant, they used an excessive amount of force to carry out the search. Well-established common law
limitations on the powers of the police to search were ignored. The infringement of s. 8 in this case was serious
enough to lead ineluctably to the conclusion that the admission of the evidence would bring the administration of
justice into disrepute.
The third set of factors balances the effect of excluding evidence against the effect of admitting it. Excluding
evidence necessary for a conviction because of a minor breach could bring the administration of justice into disrepute
just as much as admitting evidence obtained from a flagrant, intentional breach of a guaranteed right. In this case,
however, the breach was not merely technical or minor.
Power Point:
R v Genest
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Search warrant issued for dwelling house, weapons found, excluded by trial judge but before Collins
decision
Accused had served recent jail term for narcotics, many bikers seen coming and going to his home, also pit bulls
on property
Police approach house in morning, break down door, acting on tip from informer that stolen property would be
found, accused re-supplying drugs – purpose of search to look for drugs, weapons found instead
Search warrant did not name officer who was to execute it, as required by Narcotic Control Act, no mention of
objects to be search for
Trial judge finds warrant void, though reasonable grounds to believe drugs present; however search amounted
to fishing expedition, no announcement prior to entry
Collins test applied by SCC – fairness of trial: real evidence found by police, trial not rendered unfair
Seriousness of Charter violation: defects in warrant not merely technical, requirement of naming officer important,
absence of items to search for indicates worthlessness of warrant; excessive force used to carry out search
Effects of exclusion: because of obvious defects in warrant, search unauthorized by law
Admission of evidence would bring disrepute to administration of justice
P.239, 2nd para - Here the warrant is in the context of the trial, s.8 violation found, decision whether to
exclude, trial court excludes and acquits. There was a dissent at Appeal Court, which allows an
automatic appeal to the S.C.C. If the SCC grants leave, you know they are interested. When there is a
right of appeal, you don’t know if the court is actually interested in the issue, or they are listening just
because they have to. They decide the violation would create disrepute:
2 This case concerns the validity of a search of the dwelling-house of the appellant and the exclusion of evidence
obtained as a result. The search in question was conducted on June 21, 1984. An earlier search executed on May 15,
1984, is relevant to understanding the actions of the police, but the fruits of that search are not at issue in this appeal.
58
The appellant was charged with two counts of possession of illegal weapons, “un poing américain” (brass knuckles), a
nanchakou (a weapon consisting of two sticks connected by a chain or cord) and one count of illegal possession of a
restricted weapon (a .22 pistol). The trial judge, in an unreported judgment rendered August 2, 1984, found the search
to be in violation of s. 8 of the Canadian Charter of Rights and Freedoms and excluded the evidence under s. 24(2).
Since there was no other evidence, the appellant was acquitted. The Quebec Court of Appeal set aside the acquittal in a
judgment by Owen J.A. (Beauregard J.A. concurring), LeBel J.A. dissenting: 32 C.C.C. (3d) 8, 54 C.R. (3d) 246,
[1986] R.J.Q. 2944, 4 Q.A.C. 261 (hereinafter cited to R.J.Q.). The appellant appealed to this court as of right. The
Crown admits that there was an illegal search of the appellant's dwelling-house which violated s. 8 of the
Charter. The only issue is the exclusion of the evidence. All lower court decisions and the appellant's factum
were completed prior to the Supreme Court decision in Collins v. The Queen (1987), 33 C.C.C. (3d) 1, 38 D.L.R.
(4th) 508, [1987] 1 S.C.R. 265 (S.C.C.).
Genest: When Direct Attack on Warrant is possible Pre-Trial – Information Must be Accurate
Hunter requires prior judicial authorization, but the information leading to the warrant must be
accurate. If it isn’t, it is grounds to attack the warrant before trial. That is generally how they are
argued, unless defect on the face. There were a number of defects. P.244 – Decision – bottom of page:
19 The main basis of the challenge to the warrant was that it did not name the officer who was to execute it, as
required by s. 10(2) of the Narcotic Control Act. Lamoureux J. Sess. gave oral judgment. He decided that the warrant
was purportedly issued under the authority of s. 10(2) of the Narcotic Control Act, and not under s. 443 of the
Criminal Code, since the warrant specifically referred to narcotics. Relying on Bruce A. MacFarlane, Drug
Offences in Canada, (1979), Toronto: Canada Law Book, and on Re Goodbaum and The Queen (1977), 38 C.C.C. (2d)
473, 1 C.R. (3d) 152 (Ont. C.A.), he held that s. 10(2) of the Narcotic Control Act is a complete code for searches for
narcotics and a warrant cannot be issued under s. 443 of the Code to authorize a narcotics search. The judge quoted the
following two passages from the Goodbaum case, at pp. 478-9:
Section 10 of the Narcotic Control Act is a code for search, seizure and forfeiture for the purposes of those
who enforce the provisions of the Act, and of significance, it protects the citizen by limiting the use of
those powers to those peace officers named therein. In my opinion, a warrant for the purpose of search and
seizure of narcotics can only be issued under the provisions of the Narcotic Control Act and the warrant in
issue here is invalid.
.....
Even if the warrant here was one that purported to have been issued pursuant to s. 10 of the Narcotic Control
Act, it was fatally defective as it was not issued to a peace officer named therein.
The warrant therefore had to comply with the requirements of s. 10(2), including the requirement that the
warrant name the officer who was to execute the search. There was no mention of the hours of execution, nor of the
objects to be searched for, nor the district of the justice of the peace who issued the warrant and to whom the officers
were to bring anything found in the search. Lamoureux J. Sess. decided that the warrant in this case was void ab
initio.
When a j.p. issues a warrant, the attack, even if on the face, must be brought before the Superior
Court. In this case, they could have. The trial was before a provincial court, but by indictment, so
the appeal goes to the Court of Appeal. If it had been summary, the appeal would have been to the
Superior Court.
Violations: Drug warrant, but found weapons. The court takes us through Collins; P. 246 – fairness,
seriousness, long term effect; Says its “real” evidence; Seriousness: not merely technical; Would create
disrepute
Characterisation of Seriousness – means a lot
Calls it a fishing expedition; If the judges had called it “technical” and “good faith” the conclusion may
well have been different; Generally the “plain view doctrine” will allow other evidence , even if not
named on the warrant. But if there are indicia upon entry of “other” offences, the police should go back
and get another warrant.
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R. v. Evans 1996
R. v. Evans (1996), 104 C.C.C. (3d) 23 (S.C.C.) — A warrantless search is presumed unreasonable, unless the party seeking
to justify it can rebut the presumption.
Criminal Law ––– Constitutional issues in criminal law — Charter of Rights and Freedoms — Charter remedies —
Exclusion of evidence. Police officers sniffing at back window before obtaining search warrant — Canadian Charter of
Rights and Freedoms, ss. 8, 24(2) — Evidence of marijuana found in dwelling-house as result of investigation contrary to
s. 8 not to be excluded under s. 24(2) — Real evidence not affecting fairness of trial as accused not conscripted and police
acting in good faith — Police believing they had such investigatory power and having no reason to doubt validity of
warrant.
The Facts:
The police received an anonymous tip that the accused had marijuana growing in their home. The police checked
criminal records and electrical consumption and made a visual perimeter search of the dwelling-house from public
property. These steps revealed nothing. They then decided to knock on the front door of the house. When the door
was opened by one of the accused, the police smelled marijuana and arrested the accused. The officers entered the
dwelling-house to secure the premises and ensure that no one else was present. One officer then left to obtain a search
warrant, pursuant to which marijuana plants, drug paraphernalia and growing equipment were found. The accused
were charged with possession of marijuana for the purpose of trafficking.
The trial judge convicted, finding that there had been no violation of s. 8 of the Charter of Rights and Freedoms. The
majority of the British Columbia of Appeal dismissed the appeal. The accused appealed as of right.
Held: The appeal was dismissed.
Per Sopinka J. (Cory and Iacobucci JJ. concurring)
Police “sniffing” for marijuana at the door of a dwelling-house constitutes a search within the meaning of s. 8.
Agreement was expressed with the opinion of Major J. that not every investigatory technique used by the police is a
“search” within the meaning of s. 8. It is only where there is an intrusion upon a reasonable expectation of
privacy. Agreement was also expressed with Major J. that the common law has long recognized an implied licence
for all members of the public, including police, to approach the door of a residence and knock. However, the
implied invitation to knock extends no further than is required to permit convenient communication with the
occupant of the building. Where members of the public, including police, exceed the terms of this waiver and
approach the door for some unauthorized purpose, they exceed the implied invitation and approach the door as
intruders. Where agents of the state approach a dwelling with the intention of gathering evidence against the
occupant, the police have exceeded any authority that is implied by the invitation to knock. There are sound
policy reasons for holding that the intention of the police is relevant. Here, the police had specifically adverted to
the possibility of securing evidence against the accused through “knocking on the door”.
The search was not “reasonable” within the meaning of s. 8. A warrantless search is prima facie unreasonable and
to rebut the presumption of unreasonableness, the Crown must establish that the search was authorized by law, the
law authorizing the search was reasonable and the search was conducted in a reasonable manner. Here, the manner
of search was reasonable but the Crown had not established that the search was authorized by law and that the
law was reasonable.
The search pursuant to a warrant also violated s. 8. It could not have been issued without the information
obtained in violation of the Charter.
The evidence obtained in violation of s. 8 should not be excluded under s. 24(2). Admission would not affect the
fairness of the trial. The evidence was real evidence that existed irrespective of a Charter violation. The accused
were not conscripted against themselves in the creation of the evidence as the evidence pre-existed the s. 8 violation.
Any participation of the accused in the discovery of the evidence involving a breach of their Charter rights was
minimal at best. The evidence was clearly discoverable without recourse to a Charter violation. The violation was not
particularly grave. The good faith of the police could not be questioned. They believed that they were acting within
their investigatory powers and had no reason to doubt the validity of the warrant. Exclusion of the evidence would
tarnish the image of the administration of justice to a much greater extent than would its admission. Otherwise, the
perpetrators of a very serious crime would go unpunished.
Power Point:
R v Evans
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Sopinka J. – police conduct in approaching door to accused’s home and knocking so as to sniff for marijuana
constitutes search
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Fundamental objective of s.8 Charter is to preserve privacy interests of individuals
Evans: Common Law Implied Licence to Approach for Normal Communication, Not More
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Common law implied licence to approach door of residence and knock extends only to activities facilitating
communication with occupant, police exceeded terms of implied invitation and approached door as intruders
When police approached door of house without prior authorization, search prima facie unreasonable
Despite reasonableness of police actions, presumption of unreasonableness not rebutted: search not authorized by
law, law not reasonable
Though search warrant subsequently obtained, invalid as grounds slim, based on marijuana odour
Evidence admitted under s.24(2): trial not rendered unfair as real evidence, good faith police violation, very serious
offence, evidence essential
Major J. – right to knock on door of residence is implied right at common law, continues unless occupiers act to
prohibit it
Police conduct in case did not constitute search under s.8 – police approach door in daylight, knock on door,
exercising implied licence; when door opened observations of what was in plain view
Accused had no reasonable expectation that no one, including police, would lawfully approach home and observe
what was plainly discernable from position where lawfully entitled to be
The minority said it was not a violation.
P.257, para 23:
23 When the police approached the Evans' home to knock on the door and sniff for marijuana, they were doing so
without prior authorization. According to this Court in Hunter v. Southam Inc., supra, a warrantless search is prima
facie unreasonable. In other words, a warrantless search is presumed to be unreasonable unless the party seeking to
justify the search can “rebut this presumption of unreasonableness” (Hunter, supra, at p. 161). According to this Court
in R. v. Collins, [1987] 1 S.C.R. 265, at p. 278, in order to rebut the presumption of unreasonableness the Crown
must establish three things, namely (1) that the search was authorized by law, (2) that the law authorizing the
search was reasonable, and (3) that the manner in which the search was carried out was reasonable. Only where
these three criteria are met is the “presumption of unreasonableness” rebutted: in all other cases, a warrantless
search infringes s. 8 of the Charter.
Reference to Hunter and Collins; warrantless, prima facie unreasonable, rebuttable on 3 things:
“reasonable” is the issue in s.8, these three issues determine whether the search was “reasonable.”
Evidence admitted anyway
R. v. Buhay 2002/3
R. v. Buhay, [2003] 1 S.C.R. 631, 10 C.R. (6th) 205, 174 C.C.C. (3d) 97
The Facts:
The accused rented and locked a public locker at a bus terminal. A terminal guard detected an odour of marijuana
emanating from the locker and, using his master key, opened the locker in the absence of the accused and found
marijuana inside. The guard returned the marijuana to the locker and contacted police.
Police attended upon the bus terminal without attempting to obtain a search warrant. One officer indicated that no
warrant was obtained because he did not believe that reasonable and probable grounds to obtain a warrant
existed, while one officer stated that he never considered obtaining a warrant. The police officers smelled
marijuana and asked terminal officials to open the locker. They found marijuana inside and seized it. The accused was
later arrested when he attempted to open the locker. The accused was charged with possession of marijuana for the
purpose of trafficking.
The accused brought an application at trial for a declaration that his right to be secure from unreasonable search
or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms had been infringed and for an order
excluding the marijuana from evidence at trial pursuant to s. 24(2) of the Charter. The trial judge granted the
accused's application, excluded the marijuana from evidence and acquitted the accused. The Crown appealed.
The Crown's appeal was allowed, the accused was convicted and the accused appealed, with leave, to the Supreme
Court of Canada.
Held: The appeal was allowed and the acquittal was restored.
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In the case at bar, the issue involving s. 8 of the Charter turned on whether the accused had a reasonable
expectation of privacy with respect to the locker. He did. The accused had a private key to a locked storage facility,
giving him possession of and control over the contents of that facility. He paid for that possession or control, and a
reasonable person would conclude that his payment in exchange for possession and control entitled him to
privacy with respect to the locker. The accused was in no way alerted to the possibility that a stranger, including
terminal staff, might interfere with his possession and control. While a reasonable person would conclude that
terminal staff or other strangers might employ a master key to enter lockers on reasonable suspicion that their contents
posed an imminent risk to the health and safety of terminal staff and patrons, absent that risk, which was clearly not
present in the case at bar, the accused had a reasonable expectation that the contents of the locker would remain
undisturbed and secure from search or seizure.
The locker search by terminal staff was not state action and accordingly did not sound in Charter relief in any criminal
proceeding. The warrantless search by police, however, was a prima facie unreasonable search or seizure by agents
of the state. The police should have obtained a warrant. Any belief by the police that a warrant could not be obtained
did not eliminate the requirement that they obtain one; in fact such a belief amplified its necessity. The intervening
search by terminal staff did not destroy or degrade the substantive content of the accused's right to be secure
against unreasonable search or seizure. That right was continuous, and the police clearly breached it. The search was
unreasonable and impaired the accused's right guaranteed by s. 8 of the Charter.
The trial judge's decision to exclude the marijuana evidence was entitled to appellate deference, and the Court of
Appeal should not have interfered with it. The marijuana constituted “real” as opposed to “conscriptive” evidence,
and as such its admission would not cause the trial to be unfair. However, the trial judge was entitled to considerable
deference in respect of his finding that the breach was serious enough to warrant exclusion, notwithstanding the
issue of trial fairness. The police officer's evidence suggesting that a warrantless search was conducted because police
did not believe that reasonable and probable grounds existed to obtain a warrant showed a premeditated intention to
blatantly disregard and violate the accused's rights. That the other officer stated that he did not even consider
obtaining a warrant indicates, at minimum, a cavalier attitude toward the accused's constitutional rights. The possible
presence of marijuana in the locker did not pose an imminent threat to anyone's safety, and seizing the marijuana
was not an especially urgent matter. The trial judge was entitled to conclude that the violation was serious,
notwithstanding any factors favouring the admission of marijuana evidence.
Section s. 24(2) of the Charter is not an automatic exclusionary rule. However, where the evidence seized is
essential to the Crown's case and where the evidence is “real”, then s. 24(2) should not become an automatic rule in
favour of admission, either. In the case at bar, the trial judge did not commit a reversible error by holding that the
police officers' conduct and attitudes justified an order excluding the marijuana from evidence at trial and acquitting the
accused. His conclusion that admitting the evidence would bring the administration of justice into disrepute was within
his judicial discretion, and it was also eminently reasonable.
The court makes it clear that it would have been better to obtain a warrant.
Power Point:
R v Buhay
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Case involves seizure of marijuana from locker rented by accused at bus depot
Security guards notice accused acting suspiciously after renting locker, smell marijuana through vent, open locker with
master key, find marijuana, call police
Police attend, smell marijuana, seize it after locker opened for them – no search warrant
Trial judge finds s.8 Charter violation, excludes evidence under s.24(2)
S.8 Charter protects right to be secure against unreasonable search and seizure – person raising claim must first
establish reasonable expectation of privacy in thing searched or seized
Protections of s.8 extend to objects person stores in bus depot locker – accused had control and possession through
key, ability to access locker during rental period
Buhay: Reasonable Expectation of Privacy is Contextual
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Reasonable expectation of privacy is contextual; while not as high as privacy in one’s home, body or office,
sufficient in rental locker for s.8 Charter protection
Was search of locker in violation of s.8 – though security guards not agents of state, accused’s privacy invaded by
them, and reasonable expectation of privacy continued
Presumption that warrantless search unreasonable not rebutted by crown – no exigent circumstances or danger of
loss of evidence
Police could lawfully enter bus depot without warrant, but not locker – not in plain view
Discretion to exclude evidence at common law if prejudicial effect outweighs probative value
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Exclusion of evidence factors – trial fairness: evidence does not emanate from accused, non-conscriptive, exists on own
Seriousness of breach: violation serious, not technical, police take casual approach, did not even consider applying
for warrant, no urgency or consideration to other techniques
Effect of exclusion: conviction turns on admissibility of evidence, admission of it would cause greater disrepute
than its exclusion
p.265, para 20:
20 In my opinion, the protections of s. 8 extend to the objects that a person stores and locks in a bus depot locker. I
agree with Aquila Prov. J. that the appellant had a reasonable expectation of privacy in locker 135. As the trial
judge put it, at para. 32:
I am satisfied that the [sic] Mr. Buhay had a personal and reasonable expectation of privacy in the content
of the locker. He had a contractual obligation for a period of 24 hours for the exclusive use of that locker,
which had not expired. Unless a dangerous substance was being stored, or a substance emitting
obnoxious fumes was contained in the locker, neither the managers nor police had a right to enter....
Note: There are different levels of expectations of privacy. A locker is less than a home, but still
sufficient. One other aspect, p. 272, para 49, trial fairness – even though it was “real” evidence, the
seriousness of the breach and long term repute, make it excluded.
(1) Trial Fairness
49 Where the admission of the evidence would render a trial unfair, it could bring the administration of justice into
disrepute to receive it and it must therefore be excluded. As Bastarache J. explained in Law, supra, at para. 34, citing
Collins, supra, at p. 284, “[t]he concept of trial fairness is ultimately concerned with the continued effects of
unfair self-incrimination on the accused; thus, the principal (though not exclusive) considerations at this stage will be
the nature of the evidence obtained and the nature of the right violated”. As Bastarache J. noted, the leading case on this
issue is Stillman, supra, which held that the admission of “conscriptive” evidence, whether self-emanating or
derivative, would generally affect the fairness of the trial. Evidence will be classified as conscriptive where “‘an
accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a
statement, the use of the body or the production of bodily samples’: Stillman, supra, per Cory J., at para. 80.”
Para 60, seriousness - The officer didn’t even believe that he had sufficient grounds. Fact specifics
always make a difference. If his testimony was different, it might have been different:
60 I share Aquila Prov. J.'s view that the fact that obtaining a warrant did not even cross the mind of one
officer demonstrates a certain casual attitude toward the appellant's Charter rights. Moreover, the admission of
Constable Riddell that he did consider obtaining a warrant but that he thought that he lacked sufficient grounds
to get one also suggests blatant disregard for the appellant's rights. In Kokesch, supra, at p. 29, Sopinka J. stressed
the significance of the admission by the police that they were aware they did not have reasonable and probable
grounds sufficient to obtain a search warrant:
Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that
they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.
Where they take this latter course, the Charter violation is plainly more serious than it would be
otherwise, not less. Any other conclusion leads to an indirect but substantial erosion of the Hunter
standards. The Crown would happily concede s. 8 violations if they could routinely achieve admission under
s. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and
probable grounds. The irony of this result is self-evident. [First emphasis added; second emphasis in
original.]
R. v. Lising 2005
The Nature and Scope of Authorization Review
R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, 33 C.R. (6th) 241, 201 C.C.C. (3d) 449 — The threshold test for determining
whether to permit cross-examination is separate and distinct from the ultimate question whether the authorization is
valid. To determine whether the threshold for cross-examination has been met, a trial judge cannot decide the question simply on
the basis that the other parts of the affidavit would support the authorization. The focus must be on the likely effect of the
proposed cross-examination and whether there is a reasonable likelihood that the cross-examination will undermine the
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basis of the authorization. Where the threshold test has been met, it is only at the conclusion of the voir dire that the trial
judge will decide whether, on the basis of the amplified record, there still remains a basis for the authorization.
Facts:
At trial, M's testimony was supplemented by the wiretapped conversations intercepted pursuant to the s. 184.2 judicial
authorization. On a voir dire, the accused challenged the wiretap authorization and the admissibility of the
intercepted conversations, contending that the statutory preconditions for the authorization had not been met
and that their rights under s. 8 of the Canadian Charter of Rights and Freedoms had been violated. In support of
the Charter application, the accused sought leave to cross-examine the affiant on his affidavit. Relying on R. v.
Garofoli, the trial judge denied leave to cross-examine and confirmed the validity of the authorization. The Court of
Appeal upheld the trial judge's ruling, concluding that leave to cross-examine was properly denied. The accused
appealed, submitting that the Garofoli leave requirement is no longer justified and is an unconstitutional limitation
on the right to make full answer and defence. Alternatively, they submitted that the courts below interpreted the
Garofoli standard too strictly in denying them leave to cross-examine the affiant.
Held: The appeals were dismissed.
Per Charron J. (McLachlin C.J.C. and Bastarache, Binnie, Deschamps, Fish and Abella JJ. concurring): The Garofoli
requirement of showing a basis for the cross-examination of an affiant is consistent with Charter principles. The
Garofoli threshold test requires the defence to show a reasonable likelihood that cross-examination of the affiant
will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two
basic principles of evidence: relevance and materiality. It is also born out of concerns about the prolixity of
proceedings and, in many cases, the need to protect the identity of informants.
Power Point:
R v Lising
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Accused convicted of drug offences
Issue on appeal is whether accused wrongfully denied leave to cross-examine affiant who applied for wiretap
authorization; accused wished to do so to challenge admissibility of wiretap evidence
Right to cross-examine fundamental to criminal trial process, but not absolute
Garafoli test requiring defence to show reasonable likelihood that cross-examination of affiant will produce
testimony of probative value for consideration by reviewing judge constitutional
Wiretap evidence governed by Part VI of Criminal Code – “Invasion of Privacy”
Wiretap authorization may be granted for offences listed under s.183, upon application by police officer, before judge
Garafoli – interception of private communications constitutes search or seizure under s.8; statutory requirements
under s.186(1)(a) same as s.8 – must be reasonable and probable grounds, under oath, to believe offence is or has
been committed, and proposed interceptions will afford evidence thereof
Defence entitled to all documents relating to authorization when admissibility of evidence challenged at trial
Crown’s disclosure obligations (Stinchcombe) extend to wiretap materials
Leave requirement to cross-examine affiant consistent with Charter, cross-examination of officer not permitted as
of right
Cross-examination separate from issue as to whether authorization valid; issue is whether reasonable likelihood
it will undermine basis for authorization
P. 281, Para 3 - The point is that to establish that the warrant isn’t accurate, or that the officer did not
disclose enough to the j.p. or judge, the defendant may want to cross examine the affiant. This case
talks about the procedure to determine if the cross examination will be allowed – test based on Garofoli.
Para 3 - You must be able to show potential probative value. If the warrant situation is to be given
scrutiny, there must be some reason given (wiretap actually). We will return to this issue. So a
hearing before the trial will be held with the affiant giving evidence. Afterwards, if the judge sees no
probative value, the defence will not be allowed to cross examine the affiant at trial. The issue is that you
can’t bring a collateral attack on a search warrant.
Garofoli Test for Showing a Basis for the Cross-Examination of an Affiant
3 There is no question that the right to cross-examine is of fundamental significance to the criminal trial process.
However, it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make
full answer and defence depends on the context. The Garofoli threshold test requires that the defence show a
reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for
consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and
materiality. It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to
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protect the identity of informants. The rule does not infringe the right to make full answer and defence. There is no
constitutional right to adduce irrelevant or immaterial evidence. Further, the leave requirement strikes an
appropriate balance between the entitlement to cross-examination as an aspect of the right to make full answer
and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination
of criminal proceedings.
R v Cornell 2010
R. v. Cornell, [2010] 2 S.C.R. 142, 76 C.R. (6th) 228, 258 C.C.C. (3d) 429 — Apart from exigent circumstances, police are to
give notice of their presence, authority and purpose before forcibly entering a dwelling-house. The onus rests upon police to
explain why it was necessary for them to depart from this default rule.
Where D challenges the failure to give notice of police presence and purpose, P must lay an evidentiary foundation to
support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or to
other occupants of the premises or about the potential destruction of evidence.
Investigative belief about public or officer safety or the potential destruction of evidence may be based on reasonable
inferences drawn from D's association with a violent criminal organization, rather than the specific circumstances or risks
posed by D in isolation. The fact that occupants of a dwelling-house have no criminal records does not affect the reasonableness
of police concern about potential destruction of evidence.
The Facts:
The police received information that N and T were running a dial-a-dope cocaine trafficking operation. N and T were
believed to be members of an organized crime group. Surveillance was conducted on N, who was observed to be
coming and going frequently in relation to a dwelling in which the accused resided. A warrant was issued to search
the accused's dwelling. A tactical team conducted an unannounced hard entry involving battering the front door by
nine police officers with weapons drawn and wearing balaclavas and body armour. The tactical team did not have
possession of the warrant upon entry. The search discovered 99.4 grams of cocaine in the accused's bedroom.
The accused was convicted of possession of cocaine for the purposes of trafficking. The trial judge found that the
search was conducted reasonably. The accused's appeal was dismissed. The accused appealed.
Held: The appeal was dismissed.
Per Cromwell J. (McLachlin C.J.C., Charron, Rothstein JJ. concurring): The search was not unreasonable. There
were no errors in the trial judge's conclusions that the police view of a need for a hard entry was both reasonably
based and genuinely held. The record showed that there were ample grounds for the police to be concerned about
violence and destruction of evidence. The trial judge's conclusions that the police had no means of knowing before
executing the warrant who was in the residence or whether there was anyone in the residence who might destroy the
cocaine, and that the police had done what could reasonably be expected in formulating their decision to use a
forced entry, were well supported by the record. It could not be said that the police conduct in relation to the warrant
contributed in any respect to making the search unreasonable.
Per Fish J. (dissenting) (Binnie, LeBel JJ. concurring): The appeal should be allowed. The conviction should be set
aside and substituted with an acquittal. The accused's s. 8 rights under the Canadian Charter of Rights and Freedoms
were infringed. The search was not carried out in a reasonable manner. The argument that a hard entry was
necessary to protect the safety of the officers was entirely unsupported by the record. The accused had neither a
history of violence nor a criminal record of any sort, and the police had no suspicion that he was a member of any
gang. The police had no reasonable belief that either N or T would be at the accused's dwelling at the time of the
search. There was no evidence indicating why the police failed to make the requisite inquiry regarding the accused's
home or its occupants. The use of masks was completely without justification. Weapons were drawn without any
reason to suspect that the officers' physical security was at risk. The entering officers were required by law to have
the search warrant with them.
The admission of the evidence obtained pursuant to the search would bring the administration of justice into
disrepute. A search of a private home that was conducted in violation of the Charter, the statute pursuant to which
the warrant was issued, and the common law and, in the process, caused significant and unnecessary damage to the
home, strongly favoured exclusion of the evidence thereby obtained.
Power Point:
R v Cornell
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SCC (2010) -police obtain warrant to search accused’s home, door rammed open by tactical team, not in possession of
warrant – detective enters home after with copy of warrant
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During search 100 grams of cocaine found in bedroom
Argued that search violates s.8
Trial judge, majority of Alta C.A. hold s.8 not violated as search lawfully authorized, reasonably conducted
SCC dismisses appeal
Cornell: Absent Exigencies, Police Must Announce Before Forcing Entry
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Except in exigent circumstances, police must make announcement before forcing entry into dwelling house
Police must justify departing from this approach – test is what was or should reasonably have been known to them
at the time
Well-grounded concerns that use of less intrusive methods would have posed safety risks
Good reasons to believe home being used for drug dealing by violent gang members
Absence of copy of warrant at time of entry did not make search unreasonable
The factual scenario compared to Genest, seems similar. However, nearly the same facts can be
interpreted entirely differently. Here, no s.8 violation found.
R v Morelli 2010
R. v. Morelli, [2010] 1 S.C.R. 253, 72 C.R. (6th) 208, 252 C.C.C. (3d) 273 — Viewing an illegal image stored in a remote
location over the internet does not establish the level of control necessary to prove possession. Possession of illegal images
requires possession of the underlying data files in some way. The automatic caching of a file to a hard drive does not,
without more, constitute possession. P must prove that the file was knowingly stored and retained.
The Facts:
While attending the accused's residence to install a high-speed internet connection, a computer technician observed
two icons on the computer desktop labelled “Lolita Porn” and “Lolita XXX.” When he opened the web browser, the
technician noticed several links to adult and child pornography sites located in the “favourites” menu. The
technician also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and
pointed at toys on the floor with which the accused's three-year-old daughter was playing. When the technician
returned the next day to finish the job, the toys were cleaned up, the videotapes were gone, the webcam was
pointed towards the computer chair, and the computer hard drive had been formatted and all website links were
gone from the desktop. Four months later, the technician gave a statement to the police. The investigating officer
gathered information from officer B, who had experience investigating crimes involving computers, and officer
H, who investigated child exploitation offences. A warrant was issued to search the accused's computer, on which
pornographic pictures involving children were found. The accused was charged with possession of child
pornography, contrary to s. 163.1(4) of the Criminal Code.
At trial, the accused challenged the validity of the search warrant and sought to exclude the evidence under s. 24(2)
of the Canadian Charter of Rights and Freedoms on the basis that his rights under s. 8 of the Charter had been
violated. The trial judge reviewed the statements in the information to obtain the search warrant (“ITO”), as amplified
by the evidence given on the voir dire, and concluded that the authorizing judge could have granted the
authorization. The accused was convicted and a majority of the Court of Appeal upheld the conviction. The
accused appealed.
Held: The appeal was allowed, the conviction set aside, and an acquittal entered.
Per Fish J. (McLachlin C.J.C., Binnie, Abella JJ. concurring): The mere fact that an image has been accessed by or
displayed in a web browser does not, without more, constitute possession of that image. In order to commit the
offence of possession of illegal images, one must knowingly acquire the underlying data files and store them in a
place under one's control. An ITO seeking a warrant to search for evidence of possession must therefore provide
reasonable and probable grounds to believe that the alleged offender possesses or possessed digital files of an illegal
image, and that evidence of that possession will be found in the place to be searched. Previous access and the
possibility of again accessing a website that contains digital images, located on a distant server over which the
viewer has no control, do not constitute constructive possession. Creating a bookmark on one's computer does not
establish possession; nor does the automatic caching of a file to the hard drive, without more, constitute possession.
The search of the accused's computer was authorized on the strength of an ITO that was carelessly drafted,
materially misleading, and factually incomplete. It was necessary to excise several misleading passages that
falsely suggested the technician had actually viewed illegal pornography on the computer, rather than
suspiciously-labelled bookmarks…
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Annotation
The centre of the dispute between the majority and the minority in this case is the question of whether the ITO was or
was not misleading because of selective presentation of facts to the justice. As evidenced by the 4-3 split in the case,
this is a matter over which reasonable people could — and did — disagree. More interesting are the issues which
bracket that dispute: the definition of "possession" in the context of electronic data, and the Court's first real
application of R. v. Grant (2009), 66 C.R. (6th) 1 (S.C.C.) since reformulating the test for exclusion of evidence.
Power Point
R v Morelli
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SCC (2010) – police obtain warrant to search accused’s computer, find pornography, accused convicted at trial based
on this evidence
Issue is whether search warrant based on misleading, inaccurate, incomplete information
Trial judge, majority of Sask. C.A. uphold validity of warrant
SCC divided, majority quash conviction, enter acquittal on basis of s.8 violation
Information to obtain warrant insufficient to permit justice of peace, acting reasonably, to find adequate
grounds for search
Information did not allege distinct and separate offences of accessing child pornography – prior presence of links
on computer supported reasonable inference that accused browsed web site that contained explicit images of children,
but that did not suffice to establish possession
Information in several places gave incomplete and misleading account of facts – informant to make full and frank
disclosure of all material information
Evidence should be excluded under s.24(2) – admitting evidence would bring administration of justice into
disrepute
No deliberate misconduct by officer who swore information, but repute of justice system would be eroded in long
term if trials proceed on strength of evidence obtained from most private place, the home, on basis of misleading
information
Minority – information could have been more elaborate, but omissions did not support it being found to be fatally
deficient
R v Morelli 2010 – ITO should not mislead, requires sufficient grounds
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Issue is whether search warrant based on misleading, inaccurate, incomplete information
Trial judge, majority of Sask. C.A. uphold validity of warrant
SCC divided, majority quash conviction, enter acquittal on basis of s.8 violation
Information to obtain warrant insufficient to permit justice of peace, acting reasonably, to find adequate
grounds for search
P.1607: Computer technician installing internet, sees what appear to be child porn sites (in favourites list),
comes back the next day and it’s gone. He goes to the police. The police don’t properly differentiate
between offences: the warrant was for evidence of possession, rather than accessing pornography. It also
didn’t mention other facts: p.1609, warrant leaves the impression about the daughter in the house being at
risk. Interesting Part – approach 24(2) - p.1614, The judgement of Justice Fish… hard to imagine a more
intrusive search… First…
2 It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure
of a personal computer.
Hugely intrusive – para 3:
3. First, police officers enter your home, take possession of your computer, and carry it off for examination in a
place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of
your hard drive: your emails sent and received; accompanying attachments; your personal notes and
correspondence; your meetings and appointments; your medical and financial records; and all other saved
documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic
roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet
— generally by design, but sometimes by accident.
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Test is now the reformulated Grant Test: VI
98 To determine whether the evidence obtained as a result of the illegal search should be excluded under s. 24(2), we
are bound to apply the test recently set out in Grant, at para. 71:
[U]nder s. 24(2), a court must assess and balance the effect of admitting the evidence on society's
confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state
conduct (admission may send the message the justice system condones serious state misconduct), (2) the
impact of the breach on the Charter-protected interests of the accused (admission may send the message
that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.
The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry
to determine whether, considering all the circumstances, admission of the evidence would bring the
administration of justice into disrepute.
I shall consider these three factors in turn.
Police did not create the evidence. p.1627 – 1st factor - officers did not wilfully or negligently breach… the opposite is true if considering the information for the warrant:
99 First, the Charter-infringing state conduct in this case was the search of the accused's home and the seizure of
his personal computer, his wife's laptop computer, several videotapes, and other items. The search and seizure
were unwarranted, but not warrantless: they were conducted pursuant to a search warrant by officers who believed
they were acting under lawful authority. The executing officers did not wilfully or even negligently breach the
Charter. These considerations favour admission of the evidence. To that extent, the search and seizure cannot be
characterized as particularly egregious.
Para.102 – judicial indifference… police diligence…
102 The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police
conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge
the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties
responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They
must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the
information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.
Compared to Buhay, when a warrant is given, must be reasonable… no ex parte stuff. Factor 2 - The
intrusiveness is … important… home… personal computer and wife’s:
104 I turn in that light to the second factor set out in Grant: The impact of the breach on the Charter-protected interests of
the accused. The intrusiveness of the search is of particular importance in this regard. Our concern here is with the
search of the appellant's home, in itself a serious breach of the appellant's rights under s. 8 of the Charter. But there is
more. The infringement in this case involved a search of the appellant's personal computer — and his wife's laptop
computer as well. In passing, I recall here the Informant's failure to mention that the appellant lived with his wife.
This not only cast a dark light in the appellant's presence alone with their child — perfectly understandable in the
circumstances — but may also explain why the laptop, which was in fact not his, was seized and presumably
scrutinized as well.
105 As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one's
home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our
financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in
the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.
107 It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-protected privacy interests
of the accused than occurred in this case.
Factor 3
107 I turn, finally, to the third factor to be weighed under s. 24(2) of the Charter — society's interest in adjudication
of the case on its merits. Here, exclusion of the evidence obtained in the search would leave the prosecution with
essentially no case against the accused. It would thus seriously undermine the truth-seeking function of the trial, a
factor that weighs against exclusion (Grant, at paras. 79-83).
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108 In balancing these considerations, we are required by Grant to bear in mind the long-term and prospective
repute of the administration of justice, focussing less on the particular case than on the impact over time of admitting
the evidence obtained by infringement of the constitutionally protected rights of the accused.
110 Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But
justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of
unacceptable police conduct or practices.
112 I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring
the administration of justice into disrepute.
Society’s interest: Exclusion leaves no case; however, long term repute focuses less on the particular
case… excluded. One would think after Grant that this case would have been one where the evidence
would be allowed… but maybe Grant hasn’t entirely changed the test.
Search of the Person
Laporte and the Queen 1972
Facts:
The accused was suspected of involvement in a hold-up in which shots had been exchanged. About a year and a
half later he was arrested on another matter and a warrant was issued by a justice which authorized the police to
cause the accused's body to be searched for bullets. The investigation was to be carried out by one or more duly
qualified doctors who were to extract any bullet located. Medical evidence indicated that a general anaesthetic would
have to be administered since the operation amounted to more than superficial surgery. The accused obtained a
writ of certiorari to quash the warrant and the issue for determination at the hearing was whether the Justice had
jurisdiction to issue the warrant.
Held, the writ of certiorari should be maintained and the search warrant quashed as issued without jurisdiction.
At common law there was a right to search a suspect at the time of his arrest; nothing in the cases justified a
surgical intrusion into a prisoner's body months after his arrest to obtain evidence for a charge other than that upon
which he was detained.
Code s. 443 (NOW 487) authorized warrants to search a "building, receptacle or place". The Justice, in holding that a
human body was a "receptacle", misinterpreted the definition of that term. In any event, a definition taken from a
foreign statute (the London County Council (General Powers) Act, 1947) should not be used as an aid in the
construction of plain words in the Code. "Receptacle" could not, in any normal construction of language, be held
to include the interior of a living human body. Again, "place", as used in Code s. 443, was not intended to include
the interior of a body.
The wholesale mutilation of suspects could not be justified by saying that this would facilitate criminal investigations.
If the Crown could not prove a case against this accused without doing physical violence to his person, it was
better that the case not be proved.
In the circumstances here shown, it was the Court's duty to prevent what could only be described as a grotesque
perversion of the machinery of justice and an unwarranted invasion upon the basic inviolability of the human
person.
Power Point:
Laporte and the Queen
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Justice issues search warrant for search of body of person to remove bullets fired by police during hold-up
Accused applies for certiorari to quash search warrant – if jurisdiction exists to issue warrant no basis to interfere
unless discretion not exercised judicially; if no jurisdiction to issue warrant, then basis to quash it as made without
jurisdiction
No authority on point at time (1972, 10 years prior to Charter of Rights)
S.487 Code authorizes search warrant for “a building, receptacle or place” – is human body under this
definition?
Body not a “building”, justice considered it met meaning of “receptacle”; appeal court disagrees
Neither is it a “place” – this refers to geographic, not anatomical location
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Laporte: No Jurisdiction to Issue Warrant to Search Body Under Statute or Common Law
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No jurisdiction to issue warrant to search body under statute or common law – unwarranted invasion of privacy,
writ of certiorari granted, search warrant quashed
P. 305, 1st Para: procedure on writ of certiorari…
Hugessen J.:
1 This is a writ of certiorari for the purpose of quashing and setting aside a search warrant issued by Laganière
J.S.P. on 29th July 1971. The warrant purports to authorize a search in the body of the petitioner Roger Laporte
for one or more bullets which are alleged to have been fired from police revolvers in an exchange of gunfire, during a
hold-up at Knowlton, Quebec, 23rd February 1970. The warrant is addressed to peace officers in general and to two
named peace officers in particular and purports to authorize them to cause the bullet or bullets in question to be
extracted from Laporte's body by one or more duly qualified doctors. The warrant further contains a proviso that if in
the course of such search the doctors in question should determine that there is any serious danger to Laporte's life, the
search must forthwith cease.
Last Para: … the only issue…
6 I have stated at the outset that this matter arises by means of a writ of certiorari. Accordingly the only issue I have to
decide is whether the Justice had jurisdiction to issue the search warrant. If such jurisdiction exists it is not for
me to interfere with his discretion, provided his exercise of it has been judicial. If, on the other hand, such
jurisdiction does not exist there is ample authority for the use of the writ of certiorari to quash and set aside an
illegal search warrant.
Laporte: Prerogative Remedy Confined to Jurisdictional Error
This is a prerogative remedy (Extraordinary remedies, s. 774, supra) case, before trial. Must be
brought to the Superior Court; confined to Jurisdictional error – if facially deficient. Here: is bodily
invasion within the jurisdiction of the justice who granted the warrant? See s.487 (supra) … justice who
is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a
building, receptacle or place. P.309, 2nd Para: The criminal law…
45 The criminal law has always had to strike the precarious balance between the protection of society on the one
hand and the protection of the rights of the individual members of such society on the other. Both rights are
equally important, but any conflict between them must wherever possible be resolved in a manner most compatible
with individual human dignity. The constant preoccupation of our courts with the protection of the citizen against the
state results in the Crown having always to bear the burden in any criminal prosecution. I am not the first judge,
and I trust that I shall not be the last, to decide that the possibility that some guilty persons may escape the net of
justice is not too high a price to pay for the right to live in freedom. If the Crown cannot prove its case against
Laporte without doing physical violence to his person then it is better that the case be not proved.
Contrast this with Brezack
R v Brezack 1949
Facts:
Accused was charged with assaulting a peace officer in the execution of his duty contrary to s. 296(b) of The Criminal
Code. The charge arose out of a search of accused's person for narcotic drugs believed to be in his possession. The
constable was kicked and bitten during the course of the search. No narcotics were found on accused's person
but later some were found in the accused's motor car. The defence was a denial of the facts of the assault and a
submission was made that accused had been assaulted by the constable. The magistrate convicted accused and he
appealed.
Held, the appeal should be dismissed.
1. The constable was warranted in arresting accused on the information he had although his information was
wrong as to where the drug would be found. It was his duty in making the arrest to make reasonable efforts to obtain
possession of any narcotic that he believed to be illegally in the accused's possession both for the purpose of using it as
evidence of possession against accused and also to prevent him disposing of the drug in a manner that would involve
perpetrating another crime.
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2. The search that was made was justifiable as an incident of the arrest and there was an arrest when the constable
seized the person of accused.
3. While the constable did not inform the accused immediately that he was arrested or of the cause of the arrest
as required by s. 40(2) of the Code, it is well known that in making arrests in narcotic cases it would often be
impossible to find evidence of the offence upon the person arrested if he had the slightest suspicion that he might
be searched.
Power Point
R v Brezack
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Accused charged with assaulting peace officer while being arrested – police suspect accused involved in drug
activities
Officer grabs accused by throat to prevent him from swallowing drugs, sticks fingers in accused’s mouth and is
bitten; no drugs found in mouth or clothing of accused, but in his car
Accused argues that officer had no right to put fingers in his mouth, police not in possession of search
warrant
Officer engaged in lawful execution of duty in making arrest, on basis of information he believed entitled to
search mouth of accused
Officer engaged in lawful execution of duty, accused liable to arrest without warrant
Search made was justifiable as incident of arrest – proper to check for weapons to prevent escape and for officer
safety, or for providing evidence; sufficient if circumstances justify search as “reasonable precaution”
The accused car was around the corner. That is the only place where drugs were found.
P.312: Bottom: whole para:
12 In my opinion, as I have already said, the evidence in this case supports the finding of the magistrate that the
constable was engaged in the lawful execution of his duty as a peace officer in making the arrest, and that the
attempt to search the inside of appellant's mouth was a justifiable incident of that arrest. That the appellant was
liable to arrest without a warrant is, I think, beyond question, and the evidence — and particularly the evidence
afforded by the capsules containing a narcotic, found in appellant's motor car a few minutes later — strongly
supports the reasonableness of the constable's belief in the information he had received, that the prohibited drug
would be found concealed in appellant's mouth.
So, police have authority to conduct search incident to arrest. See p. 313, whole of 1st para.
13 It is important to observe that the search that was made is justifiable as an incident of the arrest. The constable who
makes an arrest has important duties, such as to see that the prisoner does not escape by reason of being armed, and to
see if any evidence of the offence for which he was arrested is to be found upon him. A constable may not always find
his suspicions to be justified by the result of a search. It is sufficient if the circumstances are such as to justify the
search as a reasonable precaution. In my opinion there was an arrest here when the constables seized the person
of the appellant. The evidence would indicate that they did not inform him immediately that he was arrested, and of
the cause of the arrest.
Contrast to crime control model, and Laporte judgement about dignity, last para on p.313 “… cunning
crafty, unscrupulous. The pendulum at a different time – stereotyping not so frowned upon.
[…] Constables have a task of great difficulty in their efforts to check the illegal traffic in opium and other prohibited
drugs. Those who carry on the traffic are cunning, crafty and unscrupulous almost beyond belief. While,
therefore, it is important that constables should be instructed that there are limits upon their right of search,
including search of the person, they are not to be encumbered by technicalities in handling the situations with which
they often have to deal in narcotic cases, which permit them little time for deliberation and require the stern
exercise of such rights of search as they possess.
Cloutier v Langlois (1990)
74 C.R. (3d) 316, 53 C.C.C. (3d) 257 (S.C.C.) — A frisk search incidental to a lawful arrest does not require the existence
of reasonable and probable grounds as a prerequisite, but the search must be for a valid criminal justice objective and it
must not be conducted in an abusive fashion, otherwise it is unreasonable.
Facts:
71
The accused, both officers of the Montreal Urban Community police department, stopped a vehicle which they
had seen violating a municipal by-law. They arrested the driver, the respondent, upon being informed by police
headquarters that a warrant of committal had been issued against him in the Municipal Court for unpaid traffic
fines. There was evidence that the respondent's conduct was, in the subsequent words of Court of Appeal judges,
“unpleasant” and “highly agitated and verbally abusive”. When the officers asked the respondent to get into the patrol
car, they carried out a “frisk-search”: the hands of the respondent were placed on the hood of the car, his legs were
spread and the constables patted him down. He was then taken to the police station. The respondent subsequently
charged the officers with assault, contrary to s. 245(b) [now s. 266(b)] of the Criminal Code, alleging that they had
no lawful power of arrest or search. The trial judge dismissed the charges against the officers. He found that the
arrest was lawful, as was the search, since the constables had reasonable grounds to conduct the search and the force
used was neither excessive nor disproportionate. A judge of the Superior Court dismissed the appeal on the ground that
the trial judge had committed no manifest error. On further appeal, the majority of the Quebec Court of Appeal
substituted a verdict of guilty. The majority held that, although the arrest had been lawful, the search had been
unlawful and therefore constituted an assault, and that the power to search a person lawfully arrested is not
incidental to the arrest, but requires the existence of reasonable grounds, which depend on the circumstances of
the particular case. The Supreme Court granted leave to appeal to determine the existence and scope of the police
power of search at the time of a lawful arrest. Neither of the parties raised s. 8 of the Canadian Charter of Rights and
Freedoms.
Held: Appeal allowed; acquittal restored, without costs in any court.
The limits of a common law police power are determined by whether the power falls within the general scope of the
duty of police officers and whether the invasion of individual rights is justified. At the second stage it must be
determined whether the invasion of individual rights is necessary in order for the peace officers to perform their
duty and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal
acts, on the one hand, and respect for the liberty and fundamental dignity of individuals, on the other hand. Courts
should apply and develop principles of the common law in a manner consistent with the fundamental values
contained in the Charter. A search will not be wrongful if it is authorized by law, if the law is itself reasonable
and if the search is conducted in a reasonable manner.
Power Point:
Cloutier v Langlois
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SCC (1990) – Court considers for first time existence and scope of police power to search person lawfully
arrested (not Charter case)
Langlois one of officers who stops driver Cloutier due to improper turn, officers ask for driving documents,
heated exchange follows
Officers write up traffic ticket, find accused has unpaid fines, ask driver to go to police car where they carry out
“frisk search”, patting him down
Cloutier charges officers with assault on basis of search - officers not authorized to search him
Cloutier: Confirms Power to Search Incident to Arrest; Reasonable Balance
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Laporte, Brezack referred to – Canadian authorities hold reasonable grounds not prerequisite to existence of
power to search lawfully arrested person, though limits on power to search; common law does not impose
this requirement either, but has not recognized power to search as simple corollary of arrest
Canada – police have power to search lawfully arrested person, seize anything in his/her possession or
immediate surroundings, to guarantee safety of police and accused, prevent escape, or provide evidence
In determining scope of police power at common law, competing interests weighed: does power fall within
general scope of duty; is invasion of individual rights justified
Power to search lawfully arrested person has roots in common law, extends to surroundings of arrest location
Arrest process to ensure accused will not escape and attend court, search for weapons necessary; also to
ensure evidence found on or near accused preserved
Courts should apply, develop common law principles consistent with Charter
Common law gives police powers consistent with protection of individual rights – “frisk” search incidental to
lawful arrest balances public interest in effective and safe law enforcement and ensuring freedom, dignity of
individuals
Existence of reasonable and probable grounds not required for police power to search, but exercise of power
not unlimited
Principles that apply: police have discretion in conducting search; search must be for valid objective, eg.,
officer safety, prevent escape, seize evidence; search must not be conducted abusively
Search that does not meet these objectives unreasonable, not justified at common law; if search is proper, it
cannot constitute assault – frisk search of accused justified as incident to lawful arrest, verdict of acquittal of
assault restored
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Laporte, Brezack referred to – 316:
40 The power to search received additional support in R. v. Brezack, [1949] O.R. 888, 9 C.R. 73, 96 C.C.C. 97,
[1950] 2 D.L.R. 265 (C.A.), a case involving the prosecution of a police officer for assault. The accused was arrested
for the possession of narcotics. When the police officer tried to search inside his mouth, he resisted and hit the officer.
Robertson C.J.O. wrote (at p. 101):
It is important to observe that the search that was made is justifiable as an incident of the arrest. The
constable who makes an arrest has important duties, such as to see that the prisoner does not escape by reason
of being armed, and to see if any evidence of the offence for which he was arrested is to be found upon him.
A constable may not always find his suspicions to be justified by the result of a search. It is sufficient if
the circumstances are such as to justify the search as a reasonable precaution. [emphasis added]
These comments are all the more forceful as they were made in connection with a considerably more intensive
search than that conducted in the case at bar.
41 The legality of a search at the time of an arrest was again the subject of a judgment, in Laporte v. Laganière
(1972), 18 C.R.N.S. 357, (sub nom. Re Laporte and R.) 8 C.C.C. (2d) 343, 29 D.L.R. (3d) 651 (Que. S.C.). Hugessen J.
noted that the power to search could not be extended so as to authorize surgery several months after the arrest to
obtain a bullet lodged in the body of the arrested person. On the other hand, in Reynen v. Antonenko, 30 C.R.N.S. 135,
[1975] 5 W.W.R. 10, 20 C.C.C. (2d) 342, 54 D.L.R. (3d) 124 (Alta. T.D.), it was held that, in the circumstances, the
right of search authorized a rectal search of the accused.
P.317 – excerpted section:
42 In R. v. Rao (1984), 46 O.R. (2d) 80, 40 C.R. (3d) 1, 12 C.C.C. (3d) 97, 9 D.L.R. (4th) 542, 10 C.R.R. 275, 4
O.A.C. 162 (C.A.), Martin J.A., speaking for the court, summarized the Canadian law on this point as follows (at p.
110):
At common law there is no power to search premises without a warrant (or with a warrant except for stolen
goods) save as incident to lawful arrest. After making a lawful arrest, an officer has the right to search the
person arrested and take from his person any property which he reasonably believes is connected with the
offence charged, or which may be used as evidence against the person arrested on the charge, or any weapon
or instrument that might enable the arrested person to commit an act of violence or effect his escape ... The
power to search the person of the arrestee has generally been considered to extend to the premises where he
is arrested and which are under his control ... Thus, where a person has been arrested in his house, it
seems that his house may be searched for evidence of the crime with which he is charged ... [emphasis added]
Though that case involved the power to search the premises where the arrest was made, which is not the case here,
these comments are relevant insofar as they discuss the existence of the right to search a lawfully-arrested person.
P.319, para 50 … or provide evidence against him… safety of the accused… prevent escape… existence
accepted… scope:
50 In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as
recognized and developed in Canada holds that the police have a power to search a lawfully-arrested person and to
seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the
accused, prevent the prisoner's escape or provide evidence against him. The common thread in this line of
authority is the objective of guaranteeing safety and applying the law effectively. While the existence of the power
is accepted, there seems to be some uncertainty as to its scope. While at common law the British courts did not
impose reasonable grounds as a prerequisite to the power to search a person lawfully arrested, neither have they gone
so far as to recognize a power to search as a simple corollary of arrest. The Canadian courts, on the other hand,
do not seem to have hesitated in adopting this latter approach.
Analysis
51 In determining the exact scope of a police power derived from the common law, this court often had recourse to
considerations of principle, and the weighing of the competing interests involved: Eccles v. Bourque, [1975] 2 S.C.R.
739, 27 C.R.N.S. 325, [1975] 1 W.W.R. 609, 19 C.C.C. (2d) 129, 50 D.L.R. (3d) 753, 3 N.R. 259 [B.C.]; Dedman v.
R., [1985] 2 S.C.R. 2, 46 C.R. (3d) 193, 34 M.V.R. 1, 20 C.C.C. (3d) 97, 20 D.L.R. (4th) 321, 60 N.R. 34 [Ont.]; and
73
R. v. Landry, [1986] 1 S.C.R. 145, 54 O.R. (2d) 512, 50 C.R. (3d) 55, 25 C.C.C. (3d) 1, 26 D.L.R. (4th) 368, 14 O.A.C.
241, 65 N.R. 161. Competing interests are important factors in determining the limits of a common law power.
When the power in question comes into conflict with individual freedoms, it is first necessary to decide whether the
power falls within the general scope of the duty of peace officers. This duty, clearly identified, must historically have
been recognized by the courts as tending to promote the effective application of the law. Secondly, the court must
determine whether an invasion of individual rights is justified. In this regard, Le Dain J. in Dedman defined what he
meant by “justifiable use of the power” in question (at p. 35 [S.C.R.]):
The interference with liberty must be necessary for the carrying out of the particular police duty and it
must be reasonable, having regard to the nature of the liberty interfered with and the importance of the
public purpose served by the interference. [emphasis added]
It is therefore necessary in this second stage to determine whether an invasion of individual rights is necessary in
order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public
purposes served by effective control of criminal acts, on the one hand, and, on the other, respect for the liberty and
fundamental dignity of individuals.
Note, p. 321, para 56 (57) – interpretation with Charter values in mind:
57 Though the parties have not relied on the Charter, and have simply referred to the common law sources in
examining the scope of the power to search, I feel that the courts should “apply and develop the principles of the
common law in a manner consistent with the fundamental values enshrined in the Constitution”: Retail,
Wholesale & Dept. Store Union, Loc. 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 603, [1987] 1 W.W.R. 577,
9 B.C.L.R. (2d) 273, 38 C.C.L.T. 184, 87 C.L.L.C. 14,002, 33 D.L.R. (4th) 174, 25 C.R.R. 321, 71 N.R. 83. In this
regard this court has held that, consistent with the values contained in the Charter, a search will not be wrongful if it
is authorized by law, if the law is itself reasonable and if the search is conducted in a reasonable manner: R. v.
Collins, [1987] 1 S.C.R. 265 at 278, 56 C.R. (3d) 193, [1987] 3 W.W.R. 699, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 38
D.L.R. (4th) 508, 28 C.R.R. 122, 74 N.R. 276; and R. v. DeBot, supra, at p. 4 [p. 134 (C.R.)], per Lamer J., and at p. 15
[p. 144 (C.R.)], per Wilson J. The concept of freedom as traditionally safeguarded by the courts has been re-examined
since the Charter and now generally means the absence of constraint and coercion. As Dickson J. (now C.J.C.)
noted in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 336, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 85
C.L.L.C. 14,023, 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, 13 C.R.R. 64, 60 A.R. 161, 58 N.R. 81:
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is
compelled by the state or the will of another to a course of action or inaction which he would not
otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of
the major purposes of the Charter is to protect, within reason, from compulsion or restraint.
P.322 – Conclusion, para 58 (59): “… non intrusive procedure…
59 In this regard a “frisk-search” is a relatively non-intrusive procedure: outside clothing is patted down to
determine whether there is anything on the person of the arrested individual. Pockets may be examined, but the clothing
is not removed and no physical force is applied. The duration of the search is only a few seconds. Though the search, if
conducted, is in addition to the arrest, which generally entails a considerably longer and more sustained loss of freedom
and dignity, a brief search does not constitute, in view of the objectives sought, a disproportionate interference
with the freedom of persons lawfully arrested. There exists no less intrusive means of attaining these objectives.
Para 59 (60): reasonable…
60 A “frisk-search” incidental to a lawful arrest reconciles the public's interest in the effective and safe
enforcement of the law, on the one hand, and, on the other, its interest in ensuring the freedom and dignity of
individuals. The minimal intrusion involved in the search is necessary to ensure that criminal justice is properly
administered. I agree with the opinion of the Ontario Court of Appeal, as stated in R. v. Brezack, R. v. Morrison and R.
v. Miller, all supra, that the existence of reasonable and probable grounds is not a prerequisite to the existence of a
police power to search. The exercise of this power is not, however, unlimited. Three propositions can be derived from
the authorities and a consideration of the underlying interests:
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Discretion with a valid objective – para 61 (62) … were justified:
61 1. This power does not impose a duty. The police have some discretion in conducting the search. Where they
are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a
search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets
the underlying objectives.
62 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of
an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or
act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the
proper administration of justice, which would be the case, for example, if the purpose of the search was to
intimidate, ridicule or pressure the accused in order to obtain admissions.
63 3. The search must not be conducted in an abusive fashion, and in particular the use of physical or
psychological constraint should be proportionate to the objectives sought and the other circumstances of the
situation.
Para 68 (69): “… in light of all the circumstances…
69 Applying the legal standard to the facts of this case, the evidence indicates that the police considered that in
light of all the circumstances it was necessary to search the respondent. The respondent's conduct, which the
Court of Appeal judges characterized as “unpleasant” and “highly agitated and verbally abusive”, was such as to
arouse a concern in the police officers for safety and effectiveness objectives. Secondly, the evidence showed to my
satisfaction that the police searched the respondent in pursuit of a valid objective, here police safety in making a
lawful arrest. As to this I will simply cite a passage from the opinion of Rothman J.A., in which he reproduces this part
of the evidence (at p. 1484):
Among the reasons that would justify a personal search is the possibility that the person arrested might
be armed and might endanger the officers arresting him. In this case, that was the only justification given
by Constable Bédard:
[…]
… but he is someone who perhaps may take the law into his own hands because he hates the police,
he may turn on me inside the car, so for my own safety ...
Q. What do you do?
A. For ... we search him.
Q. So, you search him?
A. We search him.
Q. Yes ...
A. Briefly ...
Looking at the matter now, it would not be difficult to conclude that the police officers did not have any
real reason to fear physical violence from Mr. Cloutier. But, on the evidence, it is clear that he was
highly agitated and verbally abusive. The conclusion of the trial judge that it was Cloutier's conduct that
made the situation as tense as it became is amply supported by the evidence.
Third, as to the way in which the search was conducted, as already noted, it is not disputed that in the circumstances the
police did not use either excessive force or constraint.
R v Greffe 1990
R. v. Greffe (1990), 75 C.R. (3d) 257, 55 C.C.C. (3d) 161 (S.C.C.); reversing (1988), 62 C.R. (3d) 272, 41 C.C.C. (3d) 257 (Alta.
C.A.) — Although confidential information supplied by a reliable informer may provide “reasonable and probable grounds” for a
search or seizure, an informer's mere conclusory statement to a police officer does not constitute reasonable grounds.
Relevant factors include the degree of detail provided, disclosure of the informer's source or means of knowledge, and indicia of
the informer's reliability. A conclusion that reasonable and probable grounds existed cannot be based wholly on the results of the
search or seizure. The gravity of a breach of s. 8 may be increased when accompanied by a closely-related breach of s. 10. The
intrusive nature of a search, as for example a rectal search, and consideration of human dignity and bodily integrity
demand a high standard of justification to establish reasonableness. The absence of urgency or immediate necessity to
conduct the search and the number of Charter breaches are also factors in assessing the gravity of the violation.
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Facts:
The accused landed in Calgary on an international flight. The police had alerted customs officers that there was
confidential information that the accused was in possession of heroin. A luggage search followed by a strip search
performed by customs officers revealed no drugs or suspicious items. The accused was not informed of his right to
counsel. The accused was taken into an adjoining room. One of the police officers testified that he advised the accused
of his arrest for importing heroin, his right to counsel and his right to remain silent. However, his notes made at the
time did not specify the reason for the arrest. The other police officer's notes indicated that the accused was
being taken into custody on outstanding traffic warrants. The police officers took the accused to a hospital where a
rectal examination by a doctor led to forceps-aided removal of a condom containing heroin from the accused's
lower bowel. The notes of both police officers first referred to charging the accused with a narcotics offence after
the rectal search and recovery of the heroin. The accused was charged under the Narcotics Act with unlawfully
importing heroin and with being in unlawful possession of heroin for the purpose of trafficking. The trial judge found
that the accused's rights under ss. 8 and 10 of the Charter had been infringed and that admitting the heroin in
evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter. The accused was
acquitted on both counts. The Court of Appeal held the evidence admissible, set aside the acquittal and directed
entry of a conviction on the count of importing a narcotic into Canada. A conditional stay was entered on the other
count. The accused appealed. The Crown conceded the violations to ss. 8 and 10(a) of the Charter. The only issue
was whether the evidence should be excluded pursuant to s. 24(2).
Held: Appeal allowed; evidence excluded; acquittal restored.
Per Lamier J. (Wilson, La Forest and Gonthier JJ. concurring):
There are three sets of factors to balance in determining whether admission of evidence would bring the
administration of justice into disrepute under s. 24(2) of the Charter. The first set relates to the fairness of the
trial. The second concerns the seriousness of the Charter violations as defined by the conduct of law enforcement
authorities. The third recognizes the possibility that the administration of justice could be brought into disrepute
by excluding the evidence despite its having been obtained in a manner that infringed the Charter. The purpose
of the section generally is to prevent the administration of justice being brought into further disrepute by the admission
of the evidence. Further disrepute results from the admission of evidence that would deprive the accused of a fair
hearing or from judicial condonation of unacceptable investigatory and prosecutorial conduct. In addition, the
long-term consequences of regular admission or exclusion of evidence on the repute of the administration of justice
must be considered.
The key component to determine admissibility in this case was the second set of factors. The Crown led no
evidence by which the trial judge could have assessed whether the confidential information given to the police
gave rise to reasonable and probable grounds to believe that the accused was carrying heroin. Relevant to assessing
confidential information are: whether the informer's tip contains sufficient information to ensure it is based on more
than rumour or gossip; whether the informer discloses his means of knowledge; and whether there are indicia of his
reliability. If the confidential information does not meet this standard, the subsequent misinformation regarding the
reason for the arrest takes on a much more serious complexion than it otherwise would.
Power Point:
R v Greffe
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Police have tip that accused returning to Canada with heroin, search at airport reveals no drugs, including
strip search as incident to arrest for traffic warrants; rectal search conducted as well
Accused advised that being arrested for importing heroin though none found, given rights to counsel, taken to
hospital where doctor removes condom of heroin with forceps from accused’s lower bowel
Trial judge finds violations of accused’s ss. 8 and 10 Charter rights, evidence excluded under s.24(2);
majority of Supreme Court agrees
Lamer J for majority – when very serious crime might go unpunished due to exclusion of evidence, it is long
term consequences on repute of justice system to be considered
Second part of Collins test is key in case – seriousness of Charter violations
Crown failed to lead evidence at trial as to reasonable and probable grounds that accused in possession of
heroin – if confidential information does not meet Debot standard for reasonable and probable grounds,
serious Charter violation
Accused’s rights infringed even before rectal exam at airport; rectal exam as incident to arrest for traffic
warrants absent reasonable grounds to believe accused has drugs makes unreasonable search extremely
serious violation of Charter rights – no urgency for doing rectal search at airport
Administration of justice brought into greater disrepute if use of arrest for traffic warrants permitted as
artifice to conduct rectal exam of person police lack reasonable and probable grounds to believe is carrying
drugs
Dickson J for minority – events pre-date cases like Hunter, Debot, police thus not aware of procedural
safeguards that exist
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Fairness of trial – real evidence, strongly militates against its exclusion
Seriousness of violation – once lawfully arrested, police entitled to conduct search of accused’s person for
narcotics; if reasonable grounds for arrest prior to search exist, then search legal under s.450 Code despite accused
not charged with possession of drugs at time; arrest for traffic warrants therefore becomes irrelevant
Police not acting in bad faith – while stupid to arrest for traffic violations, reasonable grounds for arresting
accused on importing narcotics
Early date in history of Charter, relevant in considering whether pattern of disregard by police, no evidence of
malice
Effect on system – manifest culpability of accused weighs heavily in favour of admission of evidence,
reasonable person would be shocked, appalled that accused unquestionably guilty of importing heroin acquitted
due to technical Charter violation
Greffe: Vitiating 10b “[i]mproper advice can vitiate or infringe the Charter right to counsel.”
Although confidential information supplied by a reliable informer may provide “reasonable and probable grounds” for a search or
seizure, an informer's mere conclusory statement to a police officer does not constitute reasonable grounds. Relevant
factors include the degree of detail provided, disclosure of the informer's source or means of knowledge, and indicia of the
informer's reliability. A conclusion that reasonable and probable grounds existed cannot be based wholly on the results of the
search or seizure.
P.329, bottom, 1, 2, 3 – spurious – finding of trial judge
25
On the basis of his findings, the trial judge drew the following conclusions:
1. The airport arrest was spurious. The reason given for it was false.
2. The right to retain and instruct counsel was tainted. There are vast differences in the seriousness
between the two charges mentioned in court. There are equally vast differences in the need that an
accused might feel to retain counsel with respect to such diverse charges. As counsel for the accused put it,
the right to counsel is relative to what an accused is told. The latter can determine the exercise of the
former. Improper advice can vitiate or infringe the Charter right to counsel, and it does so in this case.
3. The violation of s. 10(a) and (b) resulted in a gross infringement of the accused's rights pursuant to s. 8
to be secure against an unreasonable search. It is ludicrous to state it, but state it I must, the rectal search
on an arrest for outstanding traffic warrants is totally unreasonable. The accused accordingly is in the
same position as he would have been in if his rights under ss. 8, 10(a) and (b) had been totally ignored.
This case is soon after Collins, before Stillman. No evidence lead by crown as to credible grounds… P.
339, middle para: “… To admit… cannot condone…
56 Therefore, and not without great hesitation given the manifest culpability of the appellant of a crime that I
consider heinous, I conclude that the integrity of our criminal justice system and the respect owed our Charter are
more important than the conviction of this offender. Accordingly, the evidence obtained as a result of the Charter
violations should be excluded, and the appellant's acquittal at trial restored. I reach this conclusion based on the
seriousness of the cumulative effect of the various violations of ss. 8 and 10(a) and (b) of the Charter, and
especially in the absence in the evidence of proof for the claim that the police had reasonable and probable
grounds for the belief that the appellant was in possession of drugs, the proof of which rested with the Crown. To
admit the evidence in this case would be tantamount to stating that the Crown has satisfied its burden in establishing
reasonable and probable grounds for a warrantless search when the police testify that those grounds are based on
“confidential information received and background investigation”. To adopt this position would, in my view, be an
abdication of the proper judicial function to the police, and would be dangerously regressive especially in this
case where what is at issue is a highly invasive rectal search. To repeat, this court cannot condone rectal searches
incident to an arrest for outstanding traffic warrants. I would, accordingly, allow the appeal, exclude the evidence
and restore the appellant's acquittal.
Note: the majority and minority seem to disagree at every point; Then Dickson dissents:
P.340 – applies exactly the same Collins test
Fairness of the trial
3 In my view, the nature of the evidence strongly militates against its exclusion. In Collins, supra, this court
recognized that real evidence, by its nature, if admitted will rarely have a detrimental impact upon adjudicative
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fairness (p. 284). More recently, this court has had occasion to deal specifically with the issue of the admissibility,
pursuant to s. 24(2), of real evidence of narcotics found during customs searches at airports. In Simmons, supra, a
strip search was conducted upon the appellant Simmons in contravention of her s. 10(b) and s. 8 Charter rights.
The search revealed cannabis resin. It was the majority opinion of the court that the admission of the evidence
would not unfairly affect the trial of the appellant (at p. 534):
Unlike the situation in Therens, supra, the accused here was in no way conscripted against herself. The
admission of the evidence in this case, in contrast to Therens, would therefore not tend to affect adversely the
fairness of the trial process.
Similarly, in Jacoy, supra, the appellant Jacoy's s. 10(b) rights were infringed during a customs search which
uncovered cocaine in his personal belongings. Writing for a majority of the court, I held that the evidence was
properly admissible (at p. 559):
Evidence of narcotics is real evidence that existed independently of the Charter violation. This factor
distinguishes this appeal from Therens, where the evidence was created by the accused as a result of the
violation. Admission of evidence of this latter sort detracts from the fairness of the trial process, real
evidence does not.
4 I find these recent decisions to be of direct application to the case at bar. Although the Charter violation in issue
is said to be an infringement of the appellant's counsel rights, the nature of the evidence is real evidence and not
self-incriminating statements goaded from the accused by the authorities during the period in which counsel
rights were denied. Consequently, the admission of the evidence would not have a detrimental impact upon the
trial process. This set of factors, then, strongly favours the admission of the heroin into evidence.
P.341 – “… Unlike Justice Lamer
Seriousness of the Charter violation
5 The second group of factors to be considered in a determination of the admissibility of evidence pursuant to s.
24(2) can be grouped together under the general heading of the “seriousness of the Charter violation”. Unlike Lamer
J., I do not find these factors to be dispositive of this appeal. Rather, in my view, they generally favour the
admissibility of the evidence.
6 I agree with Lamer J. that the question whether the R.C.M.P. had “reasonable and probable grounds” for their
belief that the accused was in possession of a narcotic is fundamental to the analysis. First, if grounds for that belief
were present, then the police were lawfully entitled to arrest the appellant in respect of a narcotics offence
pursuant to s. 450 (now s. 495) of the Criminal Code, R.S.C. 1970, c. C-34 [now R.S.C. 1985, c. C-46]. Once
lawfully arrested, the police indisputably were entitled to conduct a search of the appellant's person for narcotics,
on the basis of the legislative authority in s. 450: Cloutier v. Langlois, [1990] 1 S.C.R. 158, 74 C.R. (3d) 316, 53
C.C.C. (3d) 257 [Que.]. Thus, if the belief held by the police that the appellant was in possession of heroin is found
to be reasonably based, the search itself is “clothed in legality”, to use the respondent's turn of phrase, and the
failure to arrest for the proper offence can be characterized as a trivial violation of the appellant's Charter
rights.
7 Furthermore, authority for the search can be found in the arrest made subsequent to the finding of the drugs
— an arrest which was made with due regard for all of the appellant's Charter rights. In R. v. Debot, supra, Martin J.A.
in the Ontario Court of Appeal recognized the possibility that a search undertaken prior to an arrest may still be
incidental to the subsequent arrest, provided that reasonable and probable grounds for the prior search existed
(at p. 225):
What constitutes a search incident to arrest is a question of law ... I do not think that the fact that the
respondent would not have been arrested if drugs had not been found in his possession, precludes the
prior search from being incident to the arrest that followed the finding of the drug. This is provided,
always, that the officer had reasonable grounds, prior to the search, for arresting the respondent under s.
450 of the Code.
I agree with Martin J.A.'s approach and I find his analysis directly applicable to the facts at bar. If reasonable and
probable ground for an arrest prior to the search existed, then that search is legal in terms of s. 450 of the
Criminal Code, despite the fact that the accused was not charged with possession of narcotics at the time. The arrest
for outstanding traffic warrants, therefore, becomes irrelevant.
78
P.343, 2nd para from the bottom: “… unlike Lamer J… police force
12 Having reached this conclusion, unlike Lamer J., I am not prepared to draw an inference that the police
acted in “bad faith” in arresting the appellant for outstanding traffic violations. Although this course of action was
stupid, the police did have reasonable and probable grounds for arresting the appellant on the charge of importing a
narcotic. Indeed, if fault must be place on anyone, my view is that it lies with Crown counsel who led evidence
which provided less than a robust description of the background investigation conducted by the police force. The
failure of Crown counsel to properly adduce and emphasize the evidence of reasonable and probable grounds should
not, in my opinion, result in the exclusion of evidence necessary to convict a manifestly culpable accused.
Next para: early days of the charter (agreed in first para of 339)
13 It is also important to recall the early date in the history of the Charter of the events in question when one
examines whether the violations of the appellant's rights formed part of a pattern of disregard of the Charter. Lamer J.
suggests that it is relevant that in conducting a strip search of the appellant the customs inspectors failed to inform the
appellant of the reason for his detention or of his right to retain and instruct counsel without delay. Once again, while
this earlier violation of the appellant's Charter rights is not unimportant, these facts arose before the judgment of this
court in Simmons, supra, wherein the court held that an accused was detained within the meaning of s. 10 of the
Charter when she was required to undergo a secondary search at customs. In fact, the search occurred prior to this
court's decision in R. v. Therens, supra, the first case which dealt with the meaning of “detention” in s. 10 of the
Charter. Consequently, in my view, the failure to inform the appellant of his counsel rights provides no evidence of
“bad faith” on the part of the customs inspectors nor can it properly be considered part of a pattern of disregard
for Charter rights.
P.344 bottom, 345 top: “… in favour… slip of the tongue…” - how it is characterized makes a big
difference.
[…]
Similarly, in R. v. Strachan, [1988] 2 S.C.R. 980 at 1008–1009, [1989] 1 W.W.R. 385, 67 C.R. (3d) 87, 37 C.R.R. 335,
46 C.C.C. (3d) 479, 56 D.L.R. (4th) 673, 90 N.R. 273 [B.C.], a majority of the court held that as a general principle:
... where the breach of the right to counsel was inadvertent and where there was no mistreatment of the
accused, exclusion of the evidence rather than its admission would tend to bring the administration of
justice into disrepute.
18 I find these passages equally applicable to the case at bar. In my view, the manifest culpability of the appellant
weighs heavily in favour of the admission of the real evidence. I believe that the reasonable person would be
shocked and appalled to learn that an accused, unquestionably guilty of importing a sizable amount of heroin,
was acquitted of all charges because of what amounted to a slip of the tongue by a police officer when the accused
was arrested and read his s. 10 counsel rights. I agree fully with McClung J.A. in the Court of Appeal below that (p.
168):
... a substantial majority of ... Canadians, concerned with the contagion of serious crime and the social
devastation directly traceable to the trade in heroin, would be querulous that the Canadian Charter of
Rights and Freedoms ruled out the evidence in this case.
Last Points:
- subtle factual inferences are important – how they are characterized makes a huge
difference.
- 24(2) applications are challenging, does Grant make it easier? Not necessarily.
R v Golden 2001
R. v. Golden, [2001] 3 S.C.R. 679, 47 C.R. (5th) 1, 159 C.C.C. (3d) 449 — The common law rule of search incident to arrest,
which permits strip-searches, does not offend Charter s. 8. These warrantless searches are an exception to the rule that
warrantless searches are prima facie unreasonable.
The existence of reasonable and probable grounds to arrest does not confer on police the automatic authority to conduct a stripsearch as an incident to lawful arrest. There must also be reasonable and probable grounds for the strip-search.
Constitutional issues ––– Charter of Rights and Freedoms — Rights and freedoms — Unreasonable search and seizure —
Manner of search — Strip searches of accused for cocaine in hallway and restaurant violating s. 8 — Police requiring
reasonable and probable grounds for strip search — Strip searches never justifiable as routine — Manner of search not
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reasonable — Accused not given opportunity to remove clothing, strip search conducted without notice to, or
authorization from, senior officer and search jeopardizing accused's health and safety — Appropriate disposition being
acquittal given that accused had served his 14-month sentence.
Facts:
An officer investigating illegal drug activity in an area known for trafficking observed two persons enter a shop and
receive a white substance, which he believed to be cocaine, from the accused. The accused was arrested in the shop
for trafficking in drugs. During the arrest, an officer decided to visually inspect the accused's underwear in a
stairwell and saw a clear plastic wrap containing a white substance protruding from his buttocks. The officer testified
that when he tried to retrieve the plastic wrap, the accused clenched his muscles, so he was escorted back into the
shop. Officers forced the accused to bend over a table, pulled down his pants so that his buttocks and genitalia were
exposed, and, after telling the accused to relax, used rubber gloves to remove a package containing crack cocaine.
The accused was arrested for possession of a narcotic for the purpose of trafficking and was taken to a police station a
two-minute drive away, where he was strip-searched again. On a voir dire, a defence application to have the
evidence excluded under ss. 8 and 24 of the Charter was denied. The accused was found guilty. The Court of Appeal
dismissed his appeal and he appealed to the Supreme Court.
Held: The appeal was allowed; the conviction was set aside and an acquittal entered.
The Crown failed to prove that the strip search in this case was carried out in a reasonable manner, as the
evidence fell short of establishing that there were exigent circumstances warranting a search in the field to
preserve evidence. The risk of the accused's disposing of the evidence on the way to the police station was low and, had
it been dropped in the police cruiser, circumstantial evidence could easily have linked it back to him. There was
nothing to suggest that he was concealing evidence. The decision to conduct the strip search was premised largely on
an officer's hunch and was unreasonable. Moreover, the manner in which the search was conducted was
unreasonable and breached the accused's s. 8 Charter rights. He was not given an opportunity to remove his own
clothing, the search was conducted without notice to or authorization from a senior officer, and the manner in which the
evidence was retrieved might have jeopardized his health and safety.
Power Point:
R v Golden
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SCC (2001) – Court holds that common law search incident to arrest power includes power to strip search,
but splits over whether strip search of accused reasonable
Officers suspect male in store involved in drug transaction, take down occurs – no weapons or drugs found on
accused during pat down, but visual inspection of underwear reveals plastic wrap between buttocks; strip
searches conducted in store and later police station – accused resists at store, crack cocaine located
Evidence admitted at trial, accused convicted
Majority – search reasonable within s.8 if authorized by law, law reasonable, search conducted in reasonable
manner
Accused subjected to three strip searches – in store stairwell where trousers undone by police, in back of
restaurant where pants pulled down to knees, and at police station
Common law recognizes police power to search lawfully arrested person for weapons or evidence – common law
must be interpreted in manner consistent with Charter principles; more intrusive the search, greater degree
of justification required
Strip searches inherently humiliating, degrading, cannot be carried out as matter of routine policy
In order for strip search to be justified as incident to arrest, arrest must be lawful, which it was
Second requirement before strip search incident to arrest may be performed is that search must be incident to
arrest –strip search related to purpose of arrest
Reasonableness of search for evidence governed by need to preserve it – risk of disposal low as accused on
way to station
Strip searches valid at common law if conducted as incident to lawful arrest to discover weapons related to
reason for arrest- police must also have reasonable grounds justifying strip search in addition to reasonable
grounds justifying arrest
Strip searches should generally only be conducted at police station absent exigent circumstances; strip
searches conducted in field justified where there is demonstrated necessity and urgency to search for weapons
Golden: Strip Search Incident to Arrest subject to Reasonableness and Exigencies, otherwise Prima
Facie Unreasonable
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Common law search incident to arrest which permits strip searches does not violate s.8 Charter
Where reasonableness of strip search challenged, Crown bears onus of proving its legality – prove on
balance of probabilities that reasonable and probable grounds, as well as exigent circumstances existed, thus
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strip search warranted and carried out in reasonable manner; or reasonable grounds existed, strip search
carried out at police station, and conducted reasonably
Strip searches of such invasive character, prima facie unreasonable
Crown failed to prove exigent circumstances, or reasonable grounds for conducting strip search
Minority – privacy interest upheld not by limiting actual authority to search, but ensuring reasonableness of
search
Initial strip search justified, officers had reasonable cause to believe accused hiding evidence, not conducted in
abusive manner
Second search should not require presence of senior officer or be conducted at station, or first invite accused to
remove own clothing; s.8 was violated due to lack of exigency, could have waited to arrive at station – evidence
would not bring administration of justice into disrepute
Bottom p. 357 – Flintoff – Durham police made a strip search policy with every impaired arrest – not
good.
79 In R. v. Flintoff (1998), 16 C.R. (5th) 248 (Ont. C.A.), the accused was arrested for impaired driving and taken
to the police station for a breathalyzer test. Prior to the breathalyzer test, the accused was strip searched as part of
the routine policy of the police department and not on the basis of any circumstances related to the particular
case. After the strip search, the appellant was taken to the breathalyzer room and failed the test. The Ontario Court of
Appeal concluded that it was unreasonable to strip search the appellant and that the breach of s. 8 was serious.
Accordingly, the court held that the breathalyzer evidence should be excluded and the decision of the trial judge
dismissing the charge restored.
P.360, para 86: interpreted through charter
86 This Court has stated in many previous decisions that the common law must be interpreted in a manner that is
consistent with Charter principles (Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, [1986] 2 S.C.R. 573 (S.C.C.);
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (S.C.C.) ; R. v. Salituro, [1991] 3 S.C.R. 654 (S.C.C.) ;
Cloutier , supra ). Where the common law is out of step with the Charter and it is possible to change the common
law rule without upsetting the proper balance between judicial and legislative action, then the common law rule
should be changed (Salituro, supra , at pp. 675-76; R. v. Pan, 2001 SCC 42 (S.C.C.) ).
Para 90 – reference to Flintoff – no policy of strip searching allowed
90 Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which
they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The
adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip
search, even one that is carried out in a reasonable manner, can affect detainees: “humiliating” “degrading”,
“demeaning”, “upsetting”, and “devastating” (see King , supra , R. v. Christopher, [1994] O.J. No. 3120 (Ont. Gen.
Div.) ; J.S. Lyons, Toronto Police Services Board Review. “The Search of Persons Policy - The Search of Persons - A
Position Paper ” (April 12, 1999)). Some commentators have gone as far as to describe strip searches as “visual rape”
(Paul Shuldiner, “Visual Rape: A Look at the Dubious Legality of Strip Searches” (1979), 13 J. Marshall L. Rev. 273).
Women and minorities in particular may have a real fear of strip searches and may experience such a search as
equivalent to a sexual assault (Lyons, supra , at p. 4). The psychological effects of strip searches may also be
particularly traumatic for individuals who have previously been subject to abuse (Commission of Inquiry into
Certain Events at the Prison for Women in Kingston (1996), at pp. 86-89). Routine strip searches may also be
distasteful and difficult for the police officers conducting them (Lyons, supra , at pp. 5-6).
Para 91 – where it is proper – lawful
91 In order for a strip search to be justified as an incident to arrest, it is of course necessary that the arrest itself
be lawful. In the present case, there is no question that the arrest was lawful. While the appellant disputes the
lawfulness of arrest, the trial judge and the Court of Appeal concluded that there were reasonable and probable
grounds for making the arrest, and we see no reason to dispute this conclusion. Thus, the first requirement of a valid
search incident to arrest was met in this case.
Para 92 – must be incident to the arrest
92 The second requirement before a strip search incident to arrest may be performed is that the search must be
incident to the arrest. What this means is that the search must be related to the reasons for the arrest itself. As
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expressed by Lamer C.J. in Caslake , supra , at para. 17, a search “is only justifiable if the purpose of the search is
related to the purpose of the arrest”. In the present case, the strip search was related to the purpose of the arrest.
The arrest was for drug trafficking and the purpose of the search was to discover illegal drugs secreted on the
appellant's person. Had the appellant been arrested for a different reason, such as for a traffic violation, the
common law would not have conferred on the police the authority to conduct a strip search for drugs, even if the
police had knowledge of previous involvement in drug related offences, since the reason for the search would have
been unrelated to the purpose of the arrest. In the circumstances of the present case, we conclude that the search
was conducted incident to the arrest.
Para 94 – Yes strip search is available, but it must be for a legitimate purpose. Frisk is usually sufficient
however.
94 In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police
to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee
and other persons. However, a “frisk” or “pat down” search at the point of arrest will generally suffice for the
purposes of determining if the accused has secreted weapons on his person. Only if the frisk search reveals a
possible weapon secreted on the detainee's person or if the particular circumstances of the case raise the risk that a
weapon is concealed on the detainee's person will a strip search be justified. Whether searching for evidence or for
weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not
sufficient to justify a strip search.
P.364, para 100 – it would be open to Parliament… to heighten compliance with Charter – like in Hunter
100 Parliament could require that strip searches be authorized by warrants or telewarrants, which would heighten
compliance with the Charter. At a minimum, if there is no prior judicial authorization for the strip search,
several factors should be considered by the authorities in deciding whether, and if so how, to conduct such a
procedure.
Golden: Guidelines for Conduct of Strip Searches from English Legislation
Para 101 – points to English legislation as being appropriate
101 In this connection, we find the guidelines contained in the English legislation, P.A.C.E. concerning the
conduct of strip searches to be in accordance with the constitutional requirements of s. 8 of the Charter . The
following questions, which draw upon the common law principles as well as the statutory requirements set out in the
English legislation, provide a framework for the police in deciding how best to conduct a strip search incident to arrest
in compliance with the Charter :
1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the
individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in
the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in
the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not
completely undressed at any one time?
9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any
physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the
mouth), will the detainee be given the option of removing the object himself or of having the object
removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was
conducted?
Para 102 – strip searches are on the far end of invasiveness, a greater intrusion on privacy, needing greater
justification.
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102 Strip searches should generally only be conducted at the police station except where there are exigent
circumstances requiring that the detainee be searched prior to being transported to the police station. Such exigent
circumstances will only be established where the police have reasonable and probable grounds to believe that it
is necessary to conduct the search in the field rather than at the police station. Strip searches conducted in the field
could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that
could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also
have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in
the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater
threat to the detainee's bodily integrity and, for this reason, field strip searches can only be justified in exigent
circumstances.
Para 103 – we need legislation, yet none has resulted.
103 Having said all this, we believe that legislative intervention could be an important addition to the guidance
set out in these reasons concerning the conduct of strip searches incident to arrest. Clear legislative prescription as
to when and how strip searches should be conducted would be of assistance to the police and to the courts.
Para 104 – strip search incident to arrest, including strip search does not violate s.8 of the Charter
(2) If the Common Law Power to Search Incident to Arrest Permits a Strip Search, is the Common Law
Unreasonable?
104 Given our conclusion that the common law does permit a strip search to be conducted as an incident to a
lawful arrest, the question is whether the common law is unreasonable in this respect within the meaning of s. 8 of
the Charter? In our view, as interpreted above, the common law power to search incident to arrest conforms with the
constitutional protection against unreasonable search and seizure contained in s. 8 of the Charter. The common
law rule as delineated above governs the conduct of strip searches incident to arrest and ensures that such searches
are only carried out where the police establish reasonable and probable grounds for a strip search for the
purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested.
Furthermore, the factors set out above ensure that when strip searches are carried out as an incident to arrest, they are
conducted in a manner that interferes with the privacy and dignity of the person being searched as little as
possible. Attention to these issues will also ensure that the proper balance is struck between the privacy interests of
the person being searched and the interests of the police and of the public in preserving relevant evidence and ensuring
the safety of police officers, detained persons and the public. We conclude therefore that the common law of search
incident to arrest, which permits strip searches, does not violate s. 8 of the Charter.
Para 105 - strip search prima facie unreasonable, needing justification
(3) Was the Strip Search Conducted in this Case Carried Out in a Reasonable Manner?
105 In light of the constitutional requirements set out above for a valid strip search incident to arrest, we are of the
view that the search at issue in this appeal was unreasonable, and violated the appellant's rights guaranteed under s.
8 of the Charter . In this respect, it is critical to underscore that where the reasonableness of a strip search is
challenged, it is the Crown that bears the onus of proving its legality. It thus must convince the court on a balance
of probabilities that either (1) reasonable and probable grounds, as well as exigent circumstances existed, and
therefore, a strip search “in the field” was warranted and was conducted in a reasonable manner; or (2) that
reasonable grounds existed, that the strip search was carried out at a police station, and conducted in a reasonable
manner. Because strip searches are of such an invasive character, they must be considered prima facie
unreasonable. It is up to the state to rebut this presumption because it is in the best position to know and explain
why the search took place, and why it was conducted in the manner and circumstances that it did. This onus rests
upon the Crown in any case involving a strip search, as defined in these reasons.
P.369, para 117 – proper result was an acquittal, without doing a 24(2) analysis – that’s the Majority
117 In light of the foregoing reasons, we conclude that the manner in which the strip search in this case was
conducted was unreasonable. It therefore amounted to a breach of the appellant's constitutional guarantees
under s. 8 of the Charter.
83
Minority, p.371, para 11 – strip search not abusive, conducted properly (first search)
11 The manner in which the first search was conducted was not abusive. The search was minimally intrusive on
the accused's privacy. It was conducted in a private place and by one officer of the same gender of the accused. The
officer did not remove the accused's clothing but only pulled back his underwear in order to visually inspect his
buttocks. The officer used minimal force until the accused hip-checked and scratched him, at which point the officer
responded with force only to regain control of the situation.
Para 13 – may have been preferable, but…
13 In finding the manner of the search unreasonable, my colleagues emphasized not only the “unilateral” decision of
the officers, but also the danger to the health and safety of the accused and the failure of the police to give the accused
the opportunity to remove his own clothing. In my view, too much was made of the issue of the appellant's health
and safety, which is but one factor to be considered in the context of the reasonableness analysis. While it may
have been preferable to conduct the search in more sanitary conditions, the appellant adduced no evidence of any
health risk or health effect resulting from the use of the gloves. In circumstances such as this, I believe that regard
must be had to the need for a police officer at the time of arrest to make instantaneous decisions without having the
luxury of reflection; see United States v. Robinson, 414 U.S. 218 (U.S.S.C., 1973) .
Para 15 – resistance to lawful arrest… expectation of privacy must be measured in light of the accused’s
conduct.
15 On the other hand, my colleagues give practically no importance to the lack of cooperation and resistance of
the accused, stating at para. 116 that there is “no requirement ... [to] ... cooperate with the violation ... [of one's
rights]”. I disagree with my colleagues that resistance to a lawful arrest is justified as a refusal to cooperate with a
violation of s. 8. In my opinion, resistance to arrest can be met with the minimal force necessary. It is also a important
consideration in determining the breach of the accused's privacy interests. All persons must be treated with dignity
and respect, but the expectation of privacy of the accused in the circumstances of this case must be measured in
light of his conduct.
Para 17, last – 24(2) analysis – they did find a breach of s.8, but would not bring disrepute.
17 Having found a breach of s. 8, it is necessary to conduct a s. 24(2) analysis to determine whether the evidence
obtained contrary to s. 8 should have been excluded at trial. As my colleagues point out, this is a theoretical exercise
in this case since the appellant has already served his sentence. I will not proceed to a detailed analysis, in these
circumstances, but find that the administration of justice would not be brought into disrepute by admitting the
object of the search.
Golden doesn’t necessarily close the door. Look at R v Ali, 2011 ONSC 424
Wiretap
R v Finlay 1985
Criminal Law --- Invasion of privacy — Interception of private communications — Admissibility — Effect of Charter of
Rights and Freedoms or Canadian Bill of Rights. Criminal Law --- Evidence — Onus and standard of proof — Proof
beyond reasonable doubt.
The Facts:
The accused were convicted of conspiracy to traffic in drugs and possession of drugs for the purpose of
trafficking. They appealed on the basis, inter alia, that the provisions in Pt. IV.1 of the Criminal Code permitting
the electronic interception of private communications pursuant to a judicial authorization are unconstitutional.
Held: Appeal dismissed.
The interception of private communications constitutes a search or seizure within the meaning of s. 8 of the
Canadian Charter of Rights and Freedoms and the legislation authorizing such legislation must meet the
constitutional standard of reasonableness.
When the provisions of Pt. IV.1 are considered in their entirety, s. 178.13 (now 186) does not permit an
authorization to be granted on the basis of a standard that is unconstitutionally low. The section does not
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expressly require the judge as a condition of granting the authorization to be satisfied that there are reasonable grounds
to believe that an offence has been committed or is being or is about to be committed and that the authorization sought
will afford evidence of communications concerning the offence, the standard required by Title III of the Omnibus
Crime Control and Safe Streets Act of the United States. However, the judge must be satisfied that the granting of
the authorization would be in the best interests of the administration of justice. This requires the judge to balance
the interests of effective law enforcement against privacy interests, and imports at least the requirement that the judge
must be satisfied that there are reasonable grounds to believe that communications concerning the particular
offence will be obtained through the interceptions sought. This is so even if the subject of the authorization is not
believed to be involved in the commission of the offence.
The absence of an express minimization requirement in the Criminal Code, such as that contained in Title III, does not
render Pt. IV.1 unconstitutional. There is a discretion in s. 178.13(2)(d) given to the authorizing judge to impose such a
requirement when the circumstances warrant such a term. Case law restricting the accused's access to the sealed
packet containing the material leading to the authorization in accordance with the provisions in s. 178.14,
generally to the effect that the sealed package may be opened only where there is prima facie evidence of fraud
or non-disclosure, does not render Pt. IV.1(was 178.14 , now Part VI, 183) unconstitutional as contravening s. 8.
However, the restriction might be relevant to the issue of whether the accused in a particular case has been denied a fair
trial contrary to s. 7 of the Charter. The policy of s. 178.14 was to protect the privacy of innocent persons mentioned in
the material, to protect police informers and to avoid revealing police techniques or investigative procedures which
might be contrary to the public interest. It might be that these interests could in many cases be effectively protected in
other ways, such as by judicial screening and, if necessary, editing.
Annotation
In R. v. Ross, Ont. H.C., Vannini J., 26th November 1985 (not yet reported), the court applied Finlay and the principles
of access as stressed by the majority in the search warrant case of MacIntyre v. A.G. N.S., [1982] 1 S.C.R. 175, 26 C.R.
(3d) 193, 65 C.C.C. (2d) 129, 132 D.L.R. (3d) 385, 49 N.S.R. (2d) 609, 96 A.P.R. 609, 40 N.R. 181, to hold that the
right of an accused to the information contained in the packet, once the authorization has been executed, should not be
limited to prima facie evidence of fraud, non-disclosure or misleading disclosure. Vannini J. concluded as follows:
Once the authorization has been executed, the court must concern itself with ensuring that the accused can make
full answer and defence and have a fair trial. This can best be achieved by requiring that the packet be opened and
the information contained therein made available to the accused before his trial, with all necessary precautions being
taken to ensure the confidentiality of informers and of innocent persons who might be injured by the revelation of
their names.
Power Point – Wiretap
R. v. Finlay
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Ont.C.A. (1985) – defence challenges constitutional validity of Criminal Code wiretap provisions, Part IV.I authorizing
interception of private communications
Accused charged with conspiracy and trafficking offences; voir dire held to determine admissibility of wiretap
evidence
Supreme court justice issues authorization to install wiretap on telephone lines of named parties plus residence and
business premises of two others – wiretap ended day after accused arrested
Defence raises three grounds challenging wiretap provisions:
1.standard on which judicial authorization to private communications may be granted is unconstitutionally low
2. Code has no minimization requirement – no provision requiring adoption of measures to reduce authorized
interception to practical minimum consistent with legitimate purpose of interception
3. restriction on accused’s access to material leading to grant of authorization renders Part IV.I unconstitutional
Court contrasts safeguards in U.S. Title III Crime Control and Safe Streets Act – Katz, U.S.S.C.: search and seizure
of conversations without judicial authorization contravenes Fourth Amendment
Number of differences between judicial authorization to intercept private communications and judicial
authorization for search warrants
Search warrant authorizes search of specified premises for specific things that exist; person executing search
normally knows if item found on premises within scope of warrant; single entry authorized, if items not found another
warrant required for further entry
Wiretap authorization for interception of private communications allows police to intercept conversations which
have not taken place yet, may occur at any time during period specified in authorization, listener not able to
determine if it constitutes evidence until hears entirety in context of other overheard conversations
Probable cause requirement (issue one) – wiretap is more intrusive, involves greater invasion of privacy than search
warrants, therefore minimum requirement for validity of legislation is legislative requirement of reasonable
grounds to believe crime has been or is being committed, and evidence of crime will be found as result of intercept
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Constitutionality of Title III well established – issue is not whether Part IV.I of Code corresponds in every particular,
but whether Code authorizes unreasonable search or seizure of private communications, violates s.8 of Charter
Proper approach is to consider provisions and safeguards in entirety
Under both Acts authorization may be granted only for specified offences, person who may apply and judge who
may grant it narrowly restricted; statement under oath required from applicant as to belief that authorization
needed
Judge must be satisfied other investigative procedures failed or unlikely to succeed – not to be granted for mere
intelligence gathering; judge must be satisfied that it would be in best interests of administration of justice
Though legislation does not expressly require judge to be satisfied that there are reasonable grounds to believe offence
committed and authorization will afford evidence of communications concerning offence,
judge must be satisfied it is in best interests of justice – balance effective law enforcement against privacy
interests, this imports requirement that judge satisfied reasonable ground to believe communications concerning
offence will be obtained through interception sought
When provisions considered in entirety, standard not unconstitutionally low
Concern that known person may be subject of interception though not believed to be involved, but may assist in
investigation – live monitoring could be required
Minimization (issue two) – this means adoption of measures to reduce extent of court ordered electronic
surveillance to practical minimum, while allowing legitimate investigative aims to be pursued
Title III – minimization requires live monitoring so that may be shut off when irrelevant conversations overheard
Code provides terms to protect solicitor client privilege, visual surveillance of pay phones; following arrest of
accused, wiretap terminated before end of period
Absence of minimization provision not fatal since authorizing judge may impose such terms where warranted
Restriction of accused’s access to materials (issue three) – s.178.14 requires material relating to application be kept
secret to privacy of innocent persons, informers, police techniques
Case-law severely restricts accused’s access to sealed packet
Interests of policy underlying access may be effectively protected by editing sensitive information
Act not unconstitutional, but accused may argue in particular case that s.7 Charter right to fair trial violated
Conclusion – provisions of Part IV.I for granting wiretap authorization, when considered as whole, more stringent
than for search warrant – justly so
Provisions in Code do not legislatively authorize unreasonable search or seizure – if did authorize unreasonable
search or seizure, would be difficult to conclude it was reasonable limitation on the s.8 right
Though legislation constitutional, granting of particular authorization in circumstances may be unreasonable,
violate s.8
Finlay – conspiracy and drug trafficking – wiretap; P.375 - … jointly indicted.. the accused would not
want the jury to know that the other guy pled guilty; Bottom: “at the commencement…” – voir dire to
decide if admitted – “… at the conclusion” jury discharged, and new jury empanelled:
5 The appellants originally were jointly indicted with Brian Sunderland, who was severed from the indictment and
pleaded guilty to the conspiracy charge on a fresh indictment.
6 At the commencement of the appellants' trial, which started on 18th October 1983, a voir dire was held with
respect to the admissibility of "wiretap" evidence. At the conclusion of the voir dire, the jury, with the agreement of
counsel, was discharged and a new jury empanelled. It was agreed that the ruling on the voir dire, previously held,
would apply at the new trial. That trial commenced on 24th October 1983 and ended on 17th November 1983, when
the jury returned their verdict.
Q: Why would the jury be dismissed, since juries don’t hear the voir dire? A: At the time, the jury had
to be picked before the trial, and then the evidence voir dire happened – which could have gone on for a
long time. So they dismissed the jury, and got another later. Now the procedure is different. Defence
Argument S.186 (a) and (b) (see below) (conjunctive). Court held that this was safeguarded – tool of last
resort, must be respected. The court looks at Parliament’s approach + code procedures =
safeguarded process, threshold not too low. Compare with 515, a,b,c – after Moralis – the bail
provisions were changed to define c better, and to add b before it – to safeguard the process. Other issues:
Minimization – see slides – reference to US legislation – live monitoring – judge may impose such
terms. Sealed Packet Access – S.7 may be invoked to get access, but otherwise very limited.
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Discussion
Note that Part VI — Invasion of Privacy – the heading denotes a different approach and
understanding of wiretap evidence v other search evidence. Searches are one time and the
accused is aware. Wiretaps are continuous and forward looking.
183. Definitions — In this Part,
“offence” means an offence contrary to, any conspiracy or
attempt to commit or being an accessory after the fact in relation
to an offence contrary to, or any counselling in relation to an
offence contrary to
(a) any of the following provisions of this Act, namely,
(i) section 47 (high treason),
(ii) section 51 (intimidating Parliament or a
legislature),
(iii) section 52 (sabotage),
(iii.1) section 56.1 (identity documents),
(iv) section 57 (forgery, etc.),
(v) section 61 (sedition),
(vi) section 76 (hijacking),
(vii) section 77 (endangering safety of aircraft or
airport),
(viii) section 78 (offensive weapons, etc., on aircraft),
(ix) section 78.1 (offences against maritime navigation
or fixed platforms),
(x) section 80 (breach of duty),
(xi) section 81 (using explosives),
(xii) section 82 (possessing explosives),
(xii.1) section 83.02 (providing or collecting property
for certain activities),
(xii.2) section 83.03 (providing, making available, etc.,
property or services for terrorist purposes),
(xii.3) section 83.04 (using or possessing property for
terrorist purposes),
(xii.4) section 83.18 (participation in activity of
terrorist group),
(xii.5) section 83.19 (facilitating terrorist activity),
(xii.6) section 83.2 (commission of offence for terrorist
group),
(xii.7) section 83.21 (instructing to carry out activity
for terrorist group),
(xii.8) section 83.22 (instructing to carry out terrorist
activity),
(xii.9) section 83.23 (harbouring or concealing),
(xii.91) section 83.231 (hoax — terrorist activity),
(xiii) section 96 (possession of weapon obtained by
commission of offence),
(xiii.1) section 98 (breaking and entering to steal
firearm),
(xiii.2) section 98.1 (robbery to steal firearm),
(xiv) section 99 (weapons trafficking),
(xv) section 100 (possession for purpose of weapons
trafficking),
(xvi) section 102 (making automatic firearm),
(xvii) section 103 (importing or exporting knowing it is
unauthorized),
(xviii) section 104 (unauthorized importing or
exporting),
(xix) section 119 (bribery, etc.),
(xx) section 120 (bribery, etc.),
(xxi) section 121 (fraud on government),
(xxii) section 122 (breach of trust),
(xxiii) section 123 (municipal corruption),
(xxiv) section 132 (perjury),
(xxv) section 139 (obstructing justice),
(xxvi) section 144 (prison breach),
(xxvii) subsection 145(1) (escape, etc.),
(xxvii.1) section 162 (voyeurism),
(xxviii) paragraph 163(1)(a) (obscene materials),
(xxix) section 163.1 (child pornography),
(xxx) section 184 (unlawful interception),
(xxxi) section 191 (possession of intercepting device),
(xxxii) subsection 201(1) (keeping gaming or betting
house),
(xxxiii) paragraph 202(1)(e) (pool-selling, etc.),
(xxxiv) subsection 210(1) (keeping common bawdy
house),
(xxxv) subsection 212(1) (procuring),
(xxxvi) subsection 212(2) (procuring),
(xxxvii) subsection 212(2.1) (aggravated offence in
relation to living on the avails of prostitution of a
person under the age of eighteen years),
[Must be enumerated – including drugs]
(xxxviii) subsection 212(4) (offence — prostitution of
person under eighteen),
(xxxix) section 235 (murder),
(xxxix.1) section 244 (discharging firearm with intent),
(xxxix.2) section 244.2 (discharging firearm —
recklessness),
(xl) section 264.1 (uttering threats),
(xli) section 267 (assault with a weapon or causing
bodily harm),
(xlii) section 268 (aggravated assault),
(xliii) section 269 (unlawfully causing bodily harm),
(xliii.1) section 270.01 (assaulting peace officer with
weapon or causing bodily harm),
(xliii.2) section 270.02 (aggravated assault of peace
officer),
(xliv) section 271 (sexual assault),
(xlv) section 272 (sexual assault with a weapon, threats
to a third party or causing bodily harm),
(xlvi) section 273 (aggravated sexual assault),
(xlvii) section 279 (kidnapping),
(xlvii.1) section 279.01 (trafficking in persons),
(xlvii.2) section 279.02 (material benefit),
(xlvii.3) section 279.03 (withholding or destroying
documents),
(xlviii) section 279.1 (hostage taking),
(xlix) section 280 (abduction of person under sixteen),
(l) section 281 (abduction of person under fourteen),
(li) section 282 (abduction in contravention of custody
order),
(lii) section 283 (abduction),
(liii) section 318 (advocating genocide),
(liv) section 327 (possession of device to obtain
telecommunication facility or service),
(lv) section 334 (theft),
(lvi) section 342 (theft, forgery, etc., of credit card),
(lvi.1) section 342.01 (instruments for copying credit
card data or forging or falsifying credit cards),
(lvii) section 342.1 (unauthorized use of computer),
(lviii) section 342.2 (possession of device to obtain
computer service),
(lix) section 344 (robbery),
(lx) section 346 (extortion),
(lxi) section 347 (criminal interest rate),
(lxii) section 348 (breaking and entering),
(lxiii) section 354 (possession of property obtained by
crime),
(lxiv) section 356 (theft from mail),
(lxv) section 367 (forgery),
(lxvi) section 368 (use, trafficking or possession of
forged document),
(lxvi.1) section 368.1 (forgery instruments),
(lxvii) section 372 (false messages),
(lxviii) section 380 (fraud),
(lxix) section 381 (using mails to defraud),
(lxx) section 382 (fraudulent manipulation of stock
exchange transactions),
(lxx.1) subsection 402.2(1) (identity theft),
(lxx.2) subsection 402.2(2) (trafficking in identity
information),
(lxx.3) section 403 (identity fraud),
(lxxi) section 423.1 (intimidation of justice system
participant or journalist),
(lxxii) section 424 (threat to commit offences against
internationally protected person),
(lxxii.1) section 424.1 (threat against United Nations or
associated personnel),
(lxxiii) section 426 (secret commissions),
(lxxiv) section 430 (mischief),
(lxxv) section 431 (attack on premises, residence or
transport of internationally protected person),
(lxxv.1) section 431.1 (attack on premises,
accommodation or transport of United Nations or
associated personnel),
(lxxv.2) subsection 431.2(2) (explosive or other lethal
device),
(lxxvi) section 433 (arson),
(lxxvii) section 434 (arson),
(lxxviii) section 434.1 (arson),
(lxxix) section 435 (arson for fraudulent purpose),
(lxxx) section 449 (making counterfeit money),
(lxxxi) section 450 (possession, etc., of counterfeit
money),
(lxxxii) section 452 (uttering, etc., counterfeit money),
(lxxxiii) section 462.31 (laundering proceeds of crime),
(lxxxiv) subsection 462.33(11) (acting in contravention
of restraint order),
(lxxxv) section 467.11 (participation in criminal
organization),
(lxxxvi) section 467.12 (commission of offence for
criminal organization), or
(lxxxvii) section 467.13 (instructing commission of
offence for criminal organization),
(b) section 198 (fraudulent bankruptcy) of the Bankruptcy and Insolvency
Act,
(b.1) any of the following provisions of the Biological
and Toxin Weapons Convention Implementation Act,
namely,
(i) section 6 (production, etc., of biological agents and
means of delivery), or
(ii) section 7 (unauthorized production, etc., of
biological agents),
(c) any of the following provisions of the Competition Act, namely,
(i) section 45 (conspiracies, agreements or
arrangements between competitors),
(ii) section 47 (bid-rigging), or
(iii) subsection 52.1(3) (deceptive telemarketing),
(d) any of the following provisions of the Controlled Drugs and
Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), or
(iii) section 7 (production),
(e) section 3 (bribing a foreign public official) of the Corruption of
Foreign Public Officials Act,
(e.1) the Crimes Against Humanity and War Crimes Act,
(f) either of the following provisions of the Customs Act, namely,
(i) section 153 (false statements), or
(ii) section 159 (smuggling),
(g) any of the following provisions of the Excise Act, 2001, namely,
(i) section 214 (unlawful production, sale, etc., of
tobacco or alcohol),
(ii) section 216 (unlawful possession of tobacco
product),
(iii) section 218 (unlawful possession, sale, etc., of
alcohol),
(iv) section 219 (falsifying or destroying records),
(v) section 230 (possession of property obtained by
excise offences), or
(vi) section 231 (laundering proceeds of excise
offences),
(h) any of the following provisions of the Export and Import Permits Act,
namely,
(i) section 13 (export or attempt to export),
(ii) section 14 (import or attempt to import),
(iii) section 15 (diversion, etc.),
(iv) section 16 (no transfer of permits),
(v) section 17 (false information), or
(vi) section 18 (aiding and abetting),
(i) any of the following provisions of the Immigration and Refugee
Protection Act, namely,
(i) section 117 (organizing entry into Canada),
(ii) section 118 (trafficking in persons),
(iii) section 119 (disembarking persons at sea),
(iv) section 122 (offences related to documents),
(v) section 126 (counselling misrepresentation), or
(vi) section 129 (offences relating to officers), or
(j) any offence under the Security of Information Act,
and includes any other offence that there are reasonable
grounds to believe is a criminal organization offence or
any other offence that there are reasonable grounds to
believe is an offence described in paragraph (b) or (c) of
the definition “terrorism offence” in section 2;
Under Duarte
A crown attorney must be authorized by the attorney general to be a “wiretap agent” – to represent the
AG to the judge that authorizes the wiretap. A provincial court justice may authorize a wiretap when it is
a consent tap, but if no party consents, the authorization must come from a superior court justice.
NOTE: Part VI – Invasion of Privacy – Interception of Communication
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S. 184.2 (1) Interception with consent
184.2 (1) Interception with consent — A person may intercept, by means of any electro-magnetic, acoustic,
mechanical or other device, a private communication where either the originator of the private communication or the
person intended by the originator to receive it has consented to the interception and an authorization has been obtained
pursuant to subsection (3).
(2) Application for authorization — An application for an authorization under this section shall be made by a
peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or
provincial law and whose duties include the enforcement of this or any other Act of Parliament, ex parte and in
writing to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in
section 552, and shall be accompanied by an affidavit, which may be sworn on the information and belief of that peace
officer or public officer or of any other peace officer or public officer, deposing to the following matters:
(a) that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has
been or will be committed;
(b) the particulars of the offence;
(c) the name of the person who has consented to the interception;
(d) the period for which the authorization is requested; and
(e) in the case of an application for an authorization where an authorization has previously been granted
under this section or section 186, the particulars of the authorization.
Note: (h) in particular below – Effectively one must show that there is no other way of gathering the
evidence.
S. 185. (1) Application for authorization
185. (1) Application for authorization — An application for an authorization to be given under section 186 shall be
made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section
552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of
Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this
section by
(a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness
personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted
at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of
Canada, or
(b) the Attorney General of a province personally or the Deputy Attorney General of a province
personally, in any other case, and shall be accompanied by an affidavit, which may be sworn on the
information and belief of a peace officer or public officer deposing to the following matters:
Finlay, Duarte: Test to Authorize Wiretap – Ss 185, 186
(c) the facts relied on to justify the belief that an authorization should be given together with
particulars of the offence,
(d) the type of private communication proposed to be intercepted,
(e) the names, addresses and occupations, if known, of all persons, the interception of whose private
communications there are reasonable grounds to believe may assist the investigation of the offence, a
general description of the nature and location of the place, if known, at which private communications
are proposed to be intercepted and a general description of the manner of interception proposed to be
used,
(f) the number of instances, if any, on which an application has been made under this section in relation to
the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was
withdrawn or no authorization was given, the date on which each application was made and the name of the
judge to whom each application was made,
(g) the period for which the authorization is requested, and
(h) whether other investigative procedures have been tried and have failed or why it appears they are
unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out
the investigation of the offence using only other investigative procedures.
Note: Criteria for judge is clear – best interest and no other way
S. 186. (1) Judge to be satisfied
186. (1) Judge to be satisfied — An authorization under this section may be given if the judge to whom the
application is made is satisfied
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(a) that it would be in the best interests of the administration of justice to do so; and
(b) that other investigative procedures have been tried and have failed, other investigative
procedures are unlikely to succeed or the urgency of the matter is such that it would be
impractical to carry out the investigation of the offence using only other investigative procedures.
Time limit and other limitations: Not exceeding 60 days + ability to apply for more + terms that must
be followed if involving a lawyer’s office + material kept in a sealed packet and will eventually be given
to the defendant – so to make full answer. Note: Criminal Code and Provincial Offences Act – contain
sections about what is legal in terms of wiretaps in lawyer’s offices. So far, there is no such provision
regarding paralegals.
R. v. Lising 2005 supra
R. v. Lising, [2005] 3 S.C.R. 343, 33 C.R. (6th) 241, 201 C.C.C. (3d) 449 — The threshold test for determining whether to permit
cross-examination is separate and distinct from the ultimate question whether the authorization is valid.The focus must be on the
likely effect of the proposed cross-examination and whether there is a reasonable likelihood that the cross-examination will
undermine the basis of the authorization. Where the threshold test has been met, it is only at the conclusion of the voir dire
that the trial judge will decide whether, on the basis of the amplified record, there still remains a basis for the
authorization.
Facts: In support of the Charter application, the accused sought leave to cross-examine the affiant on his
affidavit. Held: The appeals were dismissed.
Per Charron J. (McLachlin C.J.C. and Bastarache, Binnie, Deschamps, Fish and Abella JJ. concurring): The
Garofoli threshold test requires the defence to show a reasonable likelihood that cross-examination of the
affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is
grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about
the prolixity of proceedings and, in many cases, the need to protect the identity of informants.
Para 3 - You must be able to show potential probative value. If the wiretap situation is to be given
scrutiny, there must be some reason given. We will return to this issue. So a hearing before the trial will
be held with the affiant giving evidence. Afterwards, if the judge sees no probative value, the defence
will not be allowed to cross examine the affiant at trial. The point is that you can’t bring a collateral
attack on a search warrant. Full answer is not thwarted – one simply needs to meet an evidentiary
burden; somewhat higher standard than an evidentiary burden, “air of reality.”
3 There is no question that the right to cross-examine is of fundamental significance to the criminal trial process. However,
it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer and
defence depends on the context. The Garofoli threshold test requires that the defence show a reasonable likelihood that
cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing
judge. It is grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about the
prolixity of proceedings and, in many cases, the need to protect the identity of informants. The rule does not infringe the
right to make full answer and defence. There is no constitutional right to adduce irrelevant or immaterial evidence. Further,
the leave requirement strikes an appropriate balance between the entitlement to cross-examination as an aspect of the right to
make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely
determination of criminal proceedings.
Bottom of 283 – basis to authorize issue looked at by the reviewing judge. To cross examine the affiant,
the judge must be persuaded that the originating judge would have reason not to issue the warrant.
Search (Privacy)
United States v Knotts (1983)
Facts: beeper placed by police in a drum used to transport ingredients used for production of narcotics.
Led them to the accused cabin
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Power Point:
U.S. v. Knotts
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U.S.S.C. (1983) [pp395-399]- beeper radio transmitter placed in drum containing chloroform purchased by codefendant; by monitoring progress of car, can traced from place of purchase to cabin of accused
Consent given by manufacturer to install beeper in container – precursor chemical used to make illicit drugs
Surveillance placed on accused’s cabin, officer’s later obtain search warrant, discover drug laboratory in cabin
Warrantless monitoring of beeper held not to violate accused’s Fourth Amendment protection of reasonable
expectation of privacy
Government surveillance by beeper amounted principally to following car on public streets and highways –
diminished expectation of privacy in car
Knotts: Even with beeper, no reasonable expectation of privacy in movements of car
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No reasonable expectation of privacy in movements in car from one place to another (p397)
While traditional expectation of privacy in cabin, this does not extend to observation of car arriving at premises, or
to movement of drum in “open fields”
Visual surveillance from public places would have revealed all these facts to police – use of beeper to signal
presence of car does not alter situation
Since beeper signals did not invade legitimate expectation of privacy, there was neither search nor seizure within
meaning of Fourth Amendment (p399)
R v Duarte and Sanelli 1990
Criminal Law ––– Search and seizure — Unreasonable search and seizure; Interception of private communications —
Admissibility of evidence — Unlawful interception — Communication electronically intercepted by state on consent of one
party to communication not being inadmissible under s. 178.16(1), now s. 189(1), of Criminal Code, although contrary to
Charter of Rights and Freedoms. Civil liberties — Enforcement under Charter of Rights and Freedoms — Remedies —
Exclusion of evidence — Evidence of private communication electronically intercepted by state on consent of one party to
communication not to be excluded under s. 24(2) of Charter — Breach of s. 8 of Charter not being deliberate, wilful or
flagrant, and officer acting in good faith.
Facts:
As part of an investigation into drug trafficking, the police rented an apartment to be occupied by a police
informer, who was working with an undercover police officer. The police installed audio-visual recording
equipment in a wall of the apartment. Prior to the installation, the informer and the undercover officer consented to
the interception of their conversations under s. 178.11(2)(a) [now s. 184(2)(a)] of the Criminal Code. The accused
later discussed a cocaine transaction with the undercover officer and the informer at the apartment. The
undercover officer made notes of these conversations and a subsequent conversation, based upon a review of the tapes.
Charged with the offence of conspiracy to import a narcotic, the accused challenged at trial, on a voir dire, the
validity of s. 178.11(2)(a), which excepts from the prohibition of unauthorized electronic surveillance the interception
of conversations to which one of the parties consents. The trial judge held that the actions of the police had
infringed the accused's right to be secure from unreasonable search and seizure under s. 8 of the Canadian
Charter of Rights and Freedoms, and that the evidence obtained was inadmissible. The Ontario Court of Appeal
unanimously allowed the Crown's appeal, holding that s. 8 could not be applied to s. 178.11(2)(a), as there could be
no reasonable expectation of privacy in the course of a conversation where one party to it has consented to it
being intercepted and recorded. Evidence of an informant regarding pertinent conversations with an accused had
always been admissible, and the admission of electronic recordings of those conversations was a reasonable, logical
and sequential step in trial proceedings. The accused appealed.
Held: Appeal dismissed.
Per La Forest J. (Dickson C.J.C. and L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ. concurring)
Section 178.11(2)(a) does not infringe s. 8 of the Charter. However, electronic interception of private
communications by an instrument of the state on consent of one of the parties without prior judicial
authorization is unreasonable search and seizure contrary to s. 8.
The constitutional right to be secure against unreasonable search and seizure in s. 8 imposes on the police the
obligation to seek prior judicial authorization before engaging in participant surveillance. The police should not
be allowed to be entirely free to determine whether circumstances justify recourse to participant surveillance and,
having so determined, be allowed an unlimited discretion in defining the scope and duration of participant
surveillance. If the state could arbitrarily record and transmit private communications, it would be no longer possible
to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude
on privacy in the furtherance of its goals, notably the need to investigate and combat crime. Part IV.1 had otherwise
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provided that the police must always seek prior judicial authorization before using electronic surveillance based
on application to a superior court judge, who had to be satisfied on a high standard on objective criteria. There was
no logic to a distinction between third-party electronic surveillance and participant surveillance. The question
whether to regulate participant surveillance could not be made to turn on the expectations of individuals as to whether
their interlocutor would betray their confidence. Large-scale police investigative activity using participant
surveillance for monitoring and recording private conversations effectively bypassed any judicial consideration
of the entire police procedures, and thereby made irrelevant the entire scheme in Pt. IV.1 of the Criminal Code.
The violation of s. 8 by s. 178.11(2)(a) in the case of interception by the instrument of the state could not be
demonstrably justified under s. 1. The police could employ the same investigatory tool with or without a warrant.
The communication was not inadmissible under s. 178.16(1) [now s. 189(1)] of the Criminal Code. The interception
could not be said to be unlawful within the meaning of s. 178.16(1)(a), and there had been consent prior to the
communication which met the condition of s. 178.16(1)(b).
The accused had not established that the admission of the communication obtained in violation of s. 8 would
bring the administration of justice into disrepute under s. 24(2) of the Charter. The breach infringed an important
Charter right, and the evidence could have been obtained without breaching the Charter. However, the breach was
in no way deliberate, wilful or flagrant, and the officers had acted entirely in good faith in accordance with what
they had good reason to believe was the law. They had reasonable and probable cause to believe that the offence
had been committed and, had they properly understood the law, they could have obtained an authorization under
the Code to intercept the communication.
Power Point:
R. v. Duarte
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S.C.C. (1990) [pp401-414] – police informer and undercover officer consent to interception of private communications
when meet accused to discuss drug transaction, apartment equipped with audio-visual recording device installed in wall
Judicial authorization not obtained since one of participants consents
Ont.C.A. follows U.S. authorities, concludes interception of private conversations without warrant but with consent of
one of parties does not violate s.8 of Charter
S.C.C. disagrees – real issue is whether though such action may not constitute criminal offence, it would when
undertaken by instrument of state such as police, violate s.8 Charter protection
Under Part IV.I police may only conduct electronic surveillance if possess authorization issued by superior court
judge, conduct it under terms and conditions of authorization – exception under s.178.11(2)(a) states provisions do
not apply where one of parties consents to interception
Where consent exception applies, police free to conduct surveillance on whom they wish, where they wish, for how
long they wish – in this case almost two years
Risk analysis of Ont.C.A. - consent by recipient viewed as merely extension of powers of recollection of recipient of
communication – disclosures of this nature admissible in law; police not required to obtain warrant where use
informers; this is U.S. view – no distinction between evidence gained through testimony of participant to conversation
and evidence gained through surreptitious electronic recording of that conversation [pp403-405]
Opposing approach – [pp405-410] real question is whether right to be secure against unreasonable search and
seizure should impose on police obligation to seek prior judicial authorization before use participant
surveillance, or whether police should be free to determine circumstances of doing so at their sole discretion
As general proposition, surreptitious electronic surveillance of person constitutes unreasonable search or seizure
under s.8
Parliament has struck appropriate balance under Part IV.I – only superior court judge can grant authorization, high
standard in legislation, judge must be satisfied that other investigative methods would fail, gathering of
information in best interests of justice, reasonable and probable grounds to believe offence committed and
authorization sought will afford evidence of that offence – in contrast, Code places no restriction on participant
surveillance: police employ practice in absolute discretion, against whom they wish, for whatever reasons, without any
limit as to place or duration – total absence of prior judicial supervision
No logic to distinguish between third party electronic and participant surveillance: Charter standard must apply on
uniform basis, risk analysis fails to account for s.8 protection from unreasonable invasions of privacy
Charter not meant to protect us against poor choice of friends, but does guarantee right to be secure against
unreasonable search and seizure
Constitutionality of participant surveillance should be determined on same standard as that for third party
surveillance, eg, application of same standard of reasonableness in Hunter v. Southam – warrantless participant
surveillance engaged in by police clearly unconstitutional [p412]
Admissibility of evidence – [pp412-414]s.178.16 does not make such communications admissible, does make
communication inadmissible unless lawfully made or made with consent of one of parties
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Consent given but must be admissible at common law – admissible as relevant evidence, but unreasonable within
meaning of s.8 of Charter
Collins test applied to s.24(2) issue – key factor is fairness of process: breach not deliberate, police act in good faith,
thought they were complying with law as it existed for many years
Charter breach stemmed from reasonable misunderstanding of law by police who would have otherwise obtained
necessary evidence to convict accused in any event
Accused fails to establish that admission of evidence would bring administration of justice into disrepute
P.403, 404 – Court paraphrases Risk Analysis of ONCA
17 In summary, the risk analysis that is at the heart of the Court of Appeal's judgment rejects the notion that
any distinction grounded on constitutional concerns should be drawn between evidence gained through the testimony
of a participant to a conversation and evidence gained through a surreptitious electronic recording of that
conversation. A person who has voluntarily chosen to confide his wrongdoing to another and who, by happenstance,
has had the misfortune (from his perspective) of doing so in the presence of a microphone should not be able to invoke
the Charter to prevent divulgation of the confidence in a court of law. Incriminating statements and confessions of
wrongdoing are not per se constitutionally-protected communications; provided that the accused spoke of his own
free will, there is no constitutional significance to be accorded to the manner in which the evidence was gained.
In effect, the court chose to treat the risk that an interlocutor will divulge one's words and the risk that he will make a
permanent electronic record of them at the behest of the state as being of the same order of magnitude.
18 This argument is not without weight: the fact that it counts among its adherents the Supreme Court of the United
States and many state appellate courts testifies to that.
P.405 – 1st comment under the “opposing view:” “… the real question… surveillance.”
- After noting that the authorization
The Opposing Approach
19 With respect, it seems to me, the Court of Appeal failed to deal with the true issue raised in this appeal. The
real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure
should be seen as imposing on the police the obligation to seek prior judicial authorization before engaging in
participant surveillance, or whether the police should be entirely free to determine whether circumstances justify
recourse to participant surveillance and, having so determined, be allowed an unlimited discretion in defining the
scope and duration of participant surveillance. This court is accordingly called on to decide whether the risk of
warrantless surveillance may be imposed on all members of society at the sole discretion of the police.
P.409: “It would be strange indeed… fishing….”
32 I am unable to see any similarity between the risk that someone will listen to one's words with the intention
of repeating them and the risk involved when someone listens to them while simultaneously making a permanent
electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law
enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to
the individual and the body politic. In other words, the law recognizes that we inherently have to bear the risk of
the “tattletale”, but draws the line at concluding that we must also bear, as the price of choosing to speak to
another human being, the risk of having a permanent electronic recording made of our words.
33 The risk analysis relied on by the Court of Appeal fails to take due account of this key fact that our right
under s. 8 of the Charter extends to a right to be free from unreasonable invasions of our right to privacy. The
Court of Appeal was correct in stating that the expression of an idea and the assumption of the risk of disclosure are
concomitant. However, it does not follow that, because in any conversation we run the risk that our interlocutor may in
fact be bent on divulging our confidences, it is therefore constitutionally proper for the person to whom we speak to
make a permanent electronic recording of that conversation. The Charter, it is accepted, proscribes the surreptitious
recording by third parties of our private communications on the basis of mere suspicion alone. It would be strange
indeed if, in the absence of a warrant requirement, instrumentalities of the state, through the medium of
participant surveillance, were free to conduct just such random fishing expeditions in the hope of uncovering
evidence of crime or, by the same token, to satisfy any curiosity they may have as to a person's views on any
matter whatsoever.
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P.412: 2nd para
Under Section 1 Justification
60 To conclude, the Charter is not meant to protect us against a poor choice of friends. If our “friend” turns out
to be an informer, and we are convicted on the strength of his testimony, that may be unfortunate for us. But the
Charter is meant to guarantee the right to be secure against unreasonable search and seizure. A conversation
with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious
electronic interception and recording of a private communication does. Such recording, moreover, should be
viewed as a search and seizure in all circumstances save where all parties to the conversation have expressly
consented to its being recorded. Accordingly, the constitutionality of “participant surveillance” should fall to be
determined by application of the same standard as that employed in third-party surveillance, i.e., by application
of the standard of reasonableness enunciated in Hunter v. Southam Inc., supra. By application of that standard, the
warrantless participant surveillance engaged in by the police here was clearly unconstitutional.
But what does the court do in part 1 of 24(2), applying Collins; p.413, 24(2) – bottom; “undoubtedly…” not excluded – and the code had not been amended at the time (now it is).
65 Of cardinal importance in assessing these factors is the fairness of the process, and in particular its impact on the
fairness of the trial. Undoubtedly, the breach infringed upon an important Charter right, and the evidence could
have been obtained without breaching the Charter. But what strikes one here is that the breach was in no way
deliberate, wilful or flagrant. The police officers acted entirely in good faith. They were acting in accordance with
what they had good reason to believe was the law — as it had been for many years before the advent of the Charter.
The reasonableness of their action is underscored by the seriousness of the offence. They had reasonable and
probable cause to believe the offence had been committed, and, had they properly understood the law, they could have
obtained an authorization under the Code to intercept the communication. Indeed, they could have proceeded without
resorting to electronic surveillance and relied solely on the evidence of the undercover officer or the informer. In short,
the Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers,
who would otherwise have obtained the necessary evidence to convict the accused in any event. Under these
circumstances, I hold that the appellant has not established that the admission of the evidence would bring the
administration of justice into disrepute.
Duarte: The Rule for Wiretap Authorization
…[P]olice must always seek prior judicial authorization before using electronic surveillance based on application to a
superior court judge, who had to be satisfied on a high standard on objective criteria. There was no logic to a distinction
between third-party electronic surveillance and participant surveillance. The question whether to regulate participant
surveillance could not be made to turn on the expectations of individuals as to whether their interlocutor would betray their
confidence. Large-scale police investigative activity using participant surveillance for monitoring and recording private
conversations effectively bypassed any judicial consideration of the entire police procedures, and thereby made irrelevant the
entire scheme in Pt. IV.1 [now Pt VI] of the Criminal Code.
R v Wong 1990
Criminal Law ––– Search and seizure — Unreasonable search and seizure; Charter of Rights and Freedoms —
Unreasonable search and seizure — Video surveillance — Warrantless video surveillance of gamblers in hotel room
violating s. 8 of Charter — Canadian Charter of Rights and Freedoms, s. 8; — Remedies — Exclusion of evidence — Evidence
of gambling obtained by unconstitutional video surveillance not to be excluded under s. 24(2) of Charter where officers
acting in good faith, upon reasonable and probable cause and breach stemming from reasonable misunderstanding of law —
Canadian Charter of Rights and Freedoms, s. 24(2).
Facts:
The accused was charged with keeping a common gaming-house. The police in their investigation had determined
that video surveillance was necessary. Undercover officers were not appropriate as they knew from past
experience that the gaming would be conducted behind locked doors, for Orientals alone, and the identities of
Oriental police officers were well known in the community. The police sought legal advice and, as a result, believed
that it would not be possible to obtain judicial authorization to conduct the video surveillance. The police installed
equipment in the room next door to the hotel room where they suspected the gambling would occur. They monitored
the activities in that room on five occasions and were left in no doubt that illegal gambling sessions were being
conducted. As a result of the surveillance, the police conducted a raid on the premises and the accused and ten others
were charged.
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At trial the charges were dismissed. The trial Judge held that the video surveillance violated s. 8 of the Charter and
excluded the evidence obtained under s. 24(2). The Crown's appeal was successful and a new trial was ordered. The
Ontario Court of Appeal held that s. 8 did not apply as there had been no reasonable expectation of privacy:
(1987), 56 C.R. (3d) 352. The accused appealed.
Held: The appeal was dismissed.
Per La Forest J. (Dickson C.J.C., L'Heureux-Dubé and Sopinka JJ. concurring)
It is the hallmark of a society such as ours that its members hold to the belief that they are free to go about their
daily business without running the risk that their words will be recorded at the sole discretion of agents of the
state. The notion that agencies of the state should be at liberty to train hidden cameras on members of society wherever
and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the
part of the government. There is an important difference between the risk that our activities may be observed by
other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record
those activities on videotape.
It would be an error to suppose that the question that must be asked is whether persons who engage in illegal activity
behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed
in broad and neutral terms: in a society such as ours, do persons who retire to a hotel room and close the door
behind them have a reasonable expectation of privacy? Viewed in this light, it becomes obvious that the protections
of s. 8 of the Charter are meant to shield us from warrantless video surveillance when we occupy hotel rooms.
The Criminal Code provisions in Pt. VI regarding electronic surveillance set limits on the ability of agents of the state
to intercept private oral communications. They do not speak to the very different and more pernicious threat to
privacy constituted by surreptitious video surveillance. Until such time as Parliament, in its wisdom, specifically
provides for a code of conduct for a particular invasive technology, the courts should forebear from crafting
procedures authorizing the deployment of the technology in question.
The police acted in good faith. They had reasonable and probable cause to believe the offence had been committed.
The Charter breach stemmed from an entirely reasonable misunderstanding of the law by the officers. The police
sought legal advice about the steps that could be taken. That inquiry indicated that there were no other investigatory
techniques available. Also, there was a measure of urgency. The accused failed to establish that the admission of
the evidence would bring the administration of justice into disrepute.
Power Point:
R. v. Wong
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SCC (1990) – [pp415-434] application of Duarte in case where gambling session in hotel room video-taped by police
Lamer J. (concurs with majority) – [pp415-417] recording of private communication without consent of all parties
constitutes search under s.8, reasonable only if prior authorization; however, target of surveillance must have
reasonable expectation of privacy
Consideration of whether person has reasonable expectation of privacy must be decided within particular factual
context, not by general notion of privacy in free and democratic society (majority position)
Accused in hotel room which in most cases has reasonable expectation of privacy, but invites others to gaming
session in room, hands out notices in bars and restaurants
Impossible to conclude that reasonable person in position of accused would expect privacy in such circumstances
– not reasonable to expect strangers including police would not be there
No search therefore takes place under s.8, no issue of reasonableness of search arises; video tape should have been
admitted at trial
Surreptitious video surveillance by police of hotel room without judicial authorization violates s.8 only if target has
reasonable expectation of privacy in the particular circumstances
Wilson J. dissent – [pp417-423] agrees with majority on s.8 analysis, disagrees on admissibility of video tape evidence
under s.24(2), evidence should not be admitted
S.24(2) refers to consideration of all of circumstances, context very different from Duarte
Fairness concerns – video tape brought into existence purely due to s.8 violation, like a confession, renders trial unfair
Seriousness of violation –police used constitutionally suspect method of investigation in absence of compelling
circumstances, might have used informer, no attempt to obtain authorization; police did not appear to properly
consider whether they were acting within bounds of law in installing video equipment
Effect on system – police themselves did not consider offence to be of very serious nature; violation serious as it
was so unnecessary
Admission of video tape would bring administration of justice into disrepute, video tape inadmissible
La Forest J. majority view – [pp423-434] applies Duarte, reasonable expectation of privacy key issue
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By standards of privacy in free and open society, Duarte entitled to claim judicially unauthorized participant
surveillance offends his reasonable expectation of privacy when engages in what believes is ordinary private
conversation
Question in this case is whether persons in our society who retire hotel room and close door have reasonable
expectation of privacy – protections of s.8 meant to shield us from warrantless video surveillance in hotel rooms
No importance attaches to fact that accused may have opened his door to strangers, gave invitations to public –
error to conclude accused did not have reasonable expectation of privacy in circumstances of case
Wong: Hotel Surveillance, Application of Duarte; No common law power for unauthorized video
surveillance, not in Code, but no bad faith
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No common law power for police to have acted as they did, Charter would not sanction this
No video surveillance provisions in Code at time – wiretap provisions inapplicable, only for private oral
communications, courts should not substitute provisions when matter for Parliament to consider
S.24(2) application – video tape evidence obtained in manner that breaches s.8 but should be admitted into
evidence [pp.432-434]
Of primary importance in Collins test is fairness of process – offence not most serious but proceeds used to foster
more serious offences; police acted in good faith as in Duarte, misunderstood law, bulk of investigation over before
Hunter decision
Other factors make case for admission even stronger than Duarte – police sought legal advice about
steps to obtain evidence, no other investigative techniques, concern if did not act quickly evidence would
not be obtained, so measure of urgency
Wong: Test of Reasonable expectation of privacy: 2 issues
Does the accused have a subjective expectation of privacy? If they don’t, that is the end of the matter.
If yes, is this expectation objectively reasonable? What to Take from Judgement:
It is clear to enunciate the approach: expectation of privacy, subjective and objective, but interpreting it
is the problem. Laforest for the majority, there was a reasonable expectation, but under 24(2), no
disrepute, evidence admitted. So, what is a “reasonable expectation of privacy?”
Lamer, pp. 415-17, recording private communication without consent constitutes search under s.8, but in
the specific facts of the case, inviting strangers into the room changes things:
52 The appellant may well have had a reasonable expectation of privacy in the hotel room had he extended a few
invitations to particular individuals. However, that was not the case here. In my view, and with respect for other views,
the appellant had no reasonable expectation of privacy in these circumstances; as a result, no search took place
within the meaning of s. 8
Remember the code has nothing about video surveillance, but his conclusion is that there was no
reasonable expectation of privacy. A search without warrant is prima facie unreasonable, but this
accused did not have a reasonable expectation of privacy
Dissent, p.417, Wilson – sees a violation, and under 24(2) says the evidence should be excluded – using
the same method as under Duarte.
57 In my view, it is unwise to rely on precedent for an answer to the question whether or not the admission of
evidence obtained in violation of the Charter in a particular case would bring the administration of justice into
disrepute. The language of s. 24(2) stipulates that the admissibility of the evidence is to be determined in “all the
circumstances”. The presence of these words in the section suggests to me that, in determining whether evidence
obtained in violation of Charter rights should nonetheless be admitted, the context is vital. Hence, while the fact that
the police acted “in good faith” may be virtually determinative in one case, in another it may be of little
consequence.
Fairness of the Trial
61 The videotape evidence in this case was brought into existence purely as a result of the violation of s. 8 of
the Charter. In this sense it is analogous to a confession and quite different from evidence which has an independent
existence apart entirely from the Charter violation. The importance of this distinction was addressed in Collins,
supra, and I would respectfully adopt the following passage from the reasons of Lamer J. in that case at [1 S.C.R. at
284; 56 C.R. (3d) at 211]:
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The real evidence existed irrespective of the violation of the Charter and its use does not render the trial
unfair. However, the situation is very different with respect to cases where, after a violation of the
Charter, the accused is conscripted against himself through a confession or other evidence emanating from
him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it
strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.
62 Lamer J. did not intend his comments regarding self-incrimination to be confined to confessions. This was
made clear by him in the later case of R. v. Leclair, [1989] 1 S.C.R. 3, 67 C.R. (3d) 209, 91 N.R. 81, 31 O.A.C. 321, 46
C.C.C. (3d) 129, 37 C.R.R. 369, in which the evidence in issue was the identification evidence obtained by the
accused's participation in a line-up in violation of his s. 10(b) right. Lamer J. said [1 S.C.R. at 16; 67 C.R. (3d) at
220]:
Any evidence obtained, after a violation of the Charter, by conscripting the accused against himself
through a confession or other evidence emanating from him would tend to render the trial process unfair.
In Collins we used the expression ‘emanating from him’ since we were concerned with a statement. But we
did not limit the kind of evidence susceptible of rendering the trial process unfair to this kind of
evidence. I am of the opinion that the use of any evidence that could not have been obtained but for the
participation of the accused in the construction of the evidence for the purposes of the trial would tend to
render the trial process unfair.
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I believe that fair trial considerations favour the exclusion of the videotape evidence in the instant case.
3rd Camp: s.8 was triggered, b/c holding that it isn’t is using a risk analysis that Duarte cautioned
against. Laforest: pp.423-34: Applies Duarte, says the issue is whether individuals who close the door on
their hotel room have an expectation of privacy; Inviting strangers does not detract
Privacy and Technology
R. v. Tessling 2004
R. v. Tessling, [2004] 3 S.C.R. 432, 23 C.R. (6th) 207, 189 C.C.C. (3d) 129 — In determining whether a particular
investigative technique offends Charter s. 8, a court should evaluate the technology involved according to its current
capability. Future evolution of the technology should be dealt with step-by-step and as the need arises. Current FLIR
technology is at once non-intrusive in its operations and mundane in the data it is capable of producing. It follows that
taking a FLIR image does not offend a person's reasonable expectation of privacy under Charter s. 8.
Charter of Rights and Freedoms ––– Unreasonable search and seizure — Use of Forward Looking Infra-Red (“FLIR”)
technology to detect heat emanations from private home not violating s. 8 of Charter — Accused having no reasonable
expectation of privacy in such information — Such technology to be evaluated according to its present capacity — FLIR
technology presently non-intrusive and mundane in data it can produce — Alone it could not provide grounds for search
warrant.
Facts:
After receiving tips from two informants, the RCMP began investigating the accused for possible involvement in
producing and trafficking in marijuana. Information provided by Ontario Hydro did not point to any unusual electricity
at the suspect properties, and visual surveillance revealed nothing to suggest a marijuana grow operation. The
police used an airplane equipped with a Forward Looking Infra-Red (“FLIR”) camera to overfly the buildings to detect
heat emanating from them. FLIR technology records images of thermal energy or heat radiating from a building but
cannot, at this stage of its development, determine the nature of the source of heat within the building. However,
it can help the police get reasonable and probable grounds to believe that a marijuana grow operation is in a
residence. Based on the results of the FLIR image and information provided by the informants, the police were
able to obtain a search warrant for the accused's residence, where they found a large quantity of marijuana and
several guns. The accused was charged with possession of marijuana for purposes of trafficking, related drug offences,
and weapons offences.
At trial, the accused unsuccessfully argued that the evidence should be excluded because the FLIR overflight
violated his right to be free from unreasonable search and seizure guaranteed by s. 8 of the Canadian Charter of Rights
and Freedoms. The accused was convicted and appealed. The Court of Appeal held that he had a reasonable
expectation of privacy in his home and that the use of the FLIR technology to detect heat emanating from his
home breached his rights under s. 8. Therefore, the search warrant obtained on the basis of that information
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was not lawfully obtained and the evidence should have been excluded. The Court of Appeal held that the search
warrant obtained on the basis of FLIR technology, in breach of his rights under s. 8, was not lawfully obtained. The
accused was acquitted on all charges and the Crown appealed.
Held: The appeal is allowed.
Per Binnie J. (Arbour, Bastarache, Deschamps, Fish, Iacobucci, LeBel and Major JJ., McLachlin C.J.C. concurring):
The freedom from unreasonable search and seizure guaranteed by s. 8 of the Charter is fundamental to the relationship
between the state and the citizen. Few things are as important to our way of life as the amount of power allowed
the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial
authorization. Building upon the foundation laid by the common law of trespass, s. 8 creates certain areas of personal
autonomy where the state cannot enter. We have gathered up these areas under the general heading of privacy.
At the same time, social and economic life creates competing demands. Safety, security and the suppression of
crime are legitimate countervailing concerns. Thus s. 8 accepts the validity of “reasonable” searches and
seizures. Adopting a purposive approach to s. 8, privacy has become the dominant organizing principle. The totality
of the circumstances must be considered, with particular emphasis on the existence of a subjective expectation of
privacy and the objective reasonableness of that expectation. The privacy interests protected by s. 8 include
personal privacy, territorial privacy, and informational privacy. The original notion of territorial privacy
developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate
and private activities are most likely to take place.
Privacy is a protean concept and the difficult issue is where the “reasonableness” line should be drawn. While the
Court of Appeal treated the FLIR imaging as “equivalent” to a search of the home, and thus “worthy of the state's
highest respect,” it is more FLIR imaging is most accurately characterized as an external search for information
“about” a home which may or may not be capable of giving rise to an inference about what is going on inside,
depending on what other information is available. Emphasizing the informational aspect of privacy, the
reasonableness line has to be determined by looking at the nature and quality of the information generated by
existing FLIR technology, and then evaluating its impact on a reasonable privacy interest.
Considering the totality of the circumstances, FLIR technology does not intrude on the reasonable sphere of
privacy of an individual. The information obtained via a FLIR image, by itself, cannot provide sufficient grounds to
obtain a search warrant. Other evidence is required to determine if there is any reason to believe the source of the heat
is a marijuana grow operation.
Annotation
The Supreme Court in Tessling has clearly decided that police use of existing FLIR technology does not offend
section 8 of the Charter. The Court distances Canada from the decision of the United States Supreme Court in Kyllo v.
United States, 533 U.S. 27 (2001) that FLIR imaging of the outside of houses is unconstitutional. Our highest Court
does expressly enter two caveats:
1. FLIR information alone is insufficient ground to obtain a search warrant, and
2. If, as the Court expcted, FLIR technology gets better, the constitutional issue will have to be reconsidered.
There will likely be attempts to apply Tessling to other police modes of investigation. What of aerial surveillance
using binoculars? Is that different because that method is more intrusive? The Court recognizes its earlier ruling in R. v.
Kokesch, [1990] 3 S.C.R. 3, 1 C.R. (4th) 62 (S.C.C.) where the Court decided that it was a serious breach of section 8
for a police officer to walk up a driveway without a warrant to check from the outside as to a possible grow
operation. Tessling rests uneasily with Kokesch. It is difficult to understand how flying over a house with FLIR
technology is constitutional whereas walking up the driveway and feeling the wall for heat is not.
Overall the ruling in Tessling appears to tilt section 8 principles markedly in favour of the interests of law
enforcement rather than protecting privacy.
The Court says there was no search because there was no reasonable expectation of privacy. It is one thing to
decide there was no reasonable expectation of privacy and therefore no section 8 protection engaged. To go further
and deny that there was a search would be hard to justify to a house owner watching a police helicopter flying
overhead with FLIR technology.
The Court's focus on the reasonableness of the search allows it to bypass the fundamental warrant requirement
put in place by Hunter v. Southam Inc., [1984] 2 S.C.R. 145 and asserted by Justice Abella in the Court below.
97
Finally, Justice Binnie remarks of the “perhaps a long spiritual journey” from famous pronouncements protecting
one's home from the power of the King to the accused's attempt to shelter a marijuana grow-op (para. 15). Does
this remark undercut the key pronouncement of La Forest J. for the Court in R. v. Wong (1990), 1 C.R. (4th) 1
(S.C.C.) as to the importance of asking the question in a neutral way? Here the question should not have been
whether grow operators have a reasonable expectation of privacy, but whether occupants of houses have a
reasonable expectation of privacy from police inspection from aircraft using technology devices, however crude
they may be.
Power Point
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SCC (2004) – [pp435-450] surveillance of house using sophisticated technology without first obtaining judicial
warrant
Police use thermal imaging device to take “heat” picture of accused’s home from overhead aircraft (forward looking
infra-red technology “FLIR”)
Accused argues that use of FLIR technology constitutes s.8 unreasonable search and seizure; Ontario Court of
Appeal agrees; Supreme Court of Canada allows appeal
Police have evidence from informants that accused producing and trafficking in marijuana
Marijuana grow-ops typically use high intensity lamps, generate substantial heat; hydro contacted, meter usage
normal
Visual surveillance of buildings reveals nothing to indicate grow-op
Police use airplane with FLIR camera to fly over buildings – records images of thermal energy or heat radiating from
building; FLIR cannot distinguish between heat from sauna or toaster – it is “off the wall” technology, not “through
the wall” technology; it cannot see through external surfaces of building
Based on FLIR image, police obtain search warrant, discover large quantity of marijuana, scales, freezer bags and
guns, street value of marijuana $15,000 - $22,500
Admissibility of search warrant based on FLIR in issue – trial judge holds technology not objectionable, even if
was evidence should be admitted, accused found guilty of drug and weapons offences
Court of Appeal holds accused had reasonable expectation of privacy, sole reason for police photo of heat
emissions to attempt to determine what happens inside house; violation of s.8 serious since state intrusion into
house, evidence ought to be excluded, accused found not guilty
Binnie J. for Court – few things as important as power given to police to invade homes, privacy and bodily
integrity of members of society without judicial authorization [para 13]
Principle applies to sheltering marijuana grow-op in basement of home; much of law in area has roots in law of
trespass, privacy associated with private property
At same time competing demands from community – privacy and protection; safety, security and suppression of
crime are legitimate countervailing concerns – right to be free from examination from state subject to constitutionally
permissible limitations, eg, must be reasonable privacy interest, authorized by law, carried out reasonably
Reasonable expectation of privacy – cases distinguish among s.8 privacy interests – include personal privacy,
territorial privacy and informational privacy [para 19]
Privacy of person has strongest claim to constitutional shelter as it protects bodily integrity – state cannot conduct
warrantless strip search unless incident to lawful arrest, done reasonably: Golden
No place where person has greater expectation of privacy than home, in diluted measure space around home,
commercial space, cars, school, and at bottom of spectrum a prison – underlying principle that s.8 protects “people not
places”
Beyond body, places we live and work, thorny question of how much information about ourselves may be shielded
from curious eyes of State
Privacy is protean concept, difficult issue is where reasonableness line should be drawn – reasonableness line has to
be determined by looking at information generated by existing FLIR technology, then evaluating its impact on
reasonable privacy interest [para 25]
Does FLIR technology intrude on reasonable sphere of privacy of individual – warrantless searches presumptively
unreasonable, absent exigent circumstances, but accused must have reasonable expectation of privacy in subject
matter of FLIR image
FLIR technology at present cannot distinguish between one heat source and another [para 35]
Information obtained via FLIR by itself cannot provide sufficient grounds for warrant – does not permit inferences
about precise activity giving rise to heat, other evidence needed to determine if source of heat is marijuana grow-op
Though accused did not testify on voir dire, may be presumed that information about what goes on inside house is
regarded by occupants as private [para 32]
While person has no expectation of privacy in what is knowingly exposed to public or abandoned, “allowing” heat to
escape not same as abandoning garbage – expectation of privacy is normative standard, not descriptive one
Was accused’s reasonable expectation of privacy objectively reasonable – this is major battle ground in many s.8
cases [para 43]
While s.8 protects people, not places, location of search greatly influences reasonableness of person’s expectation
Image taken of exterior of home, place where high degree of privacy
98
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USSC declares FLIR technology to image outside of house unconstitutional due to sanctity of home (Kyllo, 2001);
SCC disagrees – fact that it was accused’s home is important, but must consider context, nature and quality of
information made accessible by FLIR
Heat is lost from external wall of building, obvious to casual observer, FLIR does not see through wall of building;
technology not intrusive, warrant could not be granted solely due to FLIR image – bottom line is that FLIR image of
heat emissions on its own is meaningless – not same as placing police inside the home
External patterns of heat distribution on external surfaces of house not information on which accused has reasonable
expectation of privacy [para 63]
Seriousness of offence plays no role in this determination, only in s.24(2) analysis
Question for discussion - what should be result if FLIR technology more advanced and could determine source of heat?
P.437 – the type of privacy right, para 13: “few things… without judicial authorization”
13 Few things are as important to our way of life as the amount of power allowed the police to invade the homes,
privacy and even the bodily integrity of members of Canadian society without judicial authorization. As La
Forest J. stated in R. v. Dyment, [1988] 2 S.C.R. 417 (S.C.C.), at pp. 427-28, “[t]he restraints imposed on government
to pry into the lives of the citizen go to the essence of a democratic state”.
439, para 21: “privacy of the person… wish to conceal” – a reference to Golden
21 Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects bodily
integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we
wish to conceal. The State cannot conduct warrantless strip searches unless they are incident to a lawful arrest and
performed in a reasonable manner (R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83 (S.C.C.), at paras. 90-92) in
circumstances where the police have reasonable and probable grounds for concluding that a strip search is necessary in
the particular circumstances of the arrest (para. 98). Nor may the police take bodily samples without authorization; R. v.
Stillman, [1997] 1 S.C.R. 607 (S.C.C.).
Para 22: - difference of places that can be subject to search – perimeter – regulatory setting, cars etc…
22 The original notion of territorial privacy (“the house of everyone is to him as his castle and fortress”: Semayne's
Case (1604), [1558-1774] All E.R. Rep. 62 (Eng. K.B.), at p. 63) developed into a more nuanced hierarchy
protecting privacy in the home, being the place where our most intimate and private activities are most likely to take
place (Evans, supra, at para. 42; R. v. Silveira, [1995] 2 S.C.R. 297 (S.C.C.), at para. 140, per Cory J.: “There is no
place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’”: R. v.
Feeney, [1997] 2 S.C.R. 13 (S.C.C.), at para. 43), in diluted measure, in the perimeter space around the home (R. v.
Kokesch, [1990] 3 S.C.R. 3 (S.C.C.); R. v. Grant, [1993] 3 S.C.R. 223 (S.C.C.), at pp. 237 and 241; R. v. Wiley, [1993]
3 S.C.R. 263 (S.C.C.), at p. 273), in commercial space (Thomson Newspapers Ltd. v. Canada (Director of
Investigation & Research), [1990] 1 S.C.R. 425 (S.C.C.), at p. 517-519; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R.
627 (S.C.C.), at pp. 641 et seq), in private cars (Wise, supra, at p. 533; R. v. Mellenthin, [1992] 3 S.C.R. 615 (S.C.C.)),
in a school (R. v. M. (M.R.), [1998] 3 S.C.R. 393 (S.C.C.), at para. 32), and even, at the bottom of the spectrum, a
prison (Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872 (S.C.C.), at p. 877). Such a hierarchy of places
does not contradict the underlying principle that s. 8 protects “people, not places”, but uses the notion of place as
an analytical tool to evaluate the reasonableness of a person's expectation of privacy.
Distinguishes para 24: personal, territorial and informational…”
24 The distinction between personal, territorial and informational privacy provides useful analytical tools, but of
course in a given case, the privacy interest may overlap the categories. Here, for example, the privacy interest is
essentially informational (i.e. about the respondent's activities) but it also implicates his territorial privacy because
although the police did not actually enter his house, that is where the activities of interest to them took place.
Reasonableness line, para 25
C. Drawing the “Reasonableness” Line
25 Privacy is a protean concept, and the difficult issue is where the “reasonableness” line should be drawn. Sopinka J.
offered a response to this question in the context of informational privacy in Plant, supra, at p. 293, as follows:
99
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter
should seek to protect a biographical core of personal information which individuals in a free and
democratic society would wish to maintain and control from dissemination to the state. This would include
information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
[Emphasis added.]
So, if looking at a privacy issue, look at the setting and nature. Helpful to a point, but not
determinative; must be a balance struck. FLIR technology at present cannot distinguish between one heat
source and another [para 35]
35 It is evident from the final sentence that a FLIR image is only as helpful as the inferences that it is capable of
supporting. After reviewing the evidence, Abella J.A. concluded (at para. 69):
Some perfectly innocent internal activities in the home can create the external emanations detected and
measured by the FLIR, and many of them, such as taking a bath or using lights at unusual hours, are intensely
personal.
While sources such as baths and innocent light fixtures “create” external emanations of heat, the evidence is clear that FLIR
technology cannot at this state of its development differentiate between one heat source and another. The inferences
that may be justified are extremely limited, as discussed in R. v. Hutchings (1996), 111 C.C.C. (3d) 215 (B.C. C.A.), at para.
29.
Subjective v objective expectation: P.445, para 43 “major battle ground”
Tessling: With new Technology (FLIR) - reasonable expectation of privacy must also be objectively
reasonable – this is major battle ground in many s.8 cases [para 43]
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Was the Respondent's Expectation of Privacy Objectively Reasonable?
43 This is a major battleground in many of the s. 8 cases and a number of factors have emerged as helpful
“markers”
(a) The Place Where the Alleged Search Occurred (home, high degree see Plant)
(b) Was the Subject Matter on Public View?
(c) Had the Subject Matter Been Abandoned?
(d) Was the Information Already in the Possession of Third Parties?
(e) Was the Police Technique Intrusive in Relation to the Privacy Interest? (Buhay)
(f) Was the Use of Surveillance Technology Itself Objectively Unreasonable?
(g) Did the FLIR Heat Profile Expose Any Intimate Details Of The Respondent's Lifestyle Or Part Of His Core
Biographical Data?
P.450, para 65 – no section 8 violation.
F. If the Respondent Had a Reasonable Expectation of Privacy in this Case, Was It Violated?
65 In light of the finding that the respondent had no reasonable expectation of privacy in the heat distribution
information, this question does not arise.
The Court draws a distinction between “heat escaping from a home” and more personal search
issues. The tech didn’t say anything about marijuana, and the police needed more info to get the
warrant. Resolution: “external wall of a building” heat could be observed by anyone really; no
expectation of privacy. Conclusion: reminds him of Knotts decision – limited technology. But what if
the technology were more advanced? Maybe a different result. Alan Gold wrote a case comment –
Professor Stuart also said, yes it’s a limited technology, but that may not be the last word.
R v Gomboc 2010
Charter of Rights ––– Unreasonable search and seizure [s. 8] — Reasonable expectation of privacy — Warrantless request by
police to electric utility company for installation of digital recording ammeter to measure flow of electricity into residence
suspected of housing marijuana grow operation — Information from digital recording ammeter indicating pattern consistent
with grow operation — Observations of police and information from digital recording ammeter basis for warrant to search
residence — 7-2 majority holding no reasonable expectation of privacy existed in information obtained from digital recording
100
ammeter, given provincial regulation allowing for disclosure by utilities company of such information if not contrary to
express request of consumer.
Police officers noticed that the windows of the accused's house were covered with condensation, the curtains were
stained with moisture, the roof was free of snow and the smell of marihuana was present. At the request of the
police, and without insisting on a warrant, the electrical service provider installed a digital recording ammeter
(DRA) which created a record of when electrical power was consumed at the accused's property. The record suggested
that the accused's electrical use was consistent with a marihuana grow operation. The police obtained a search
warrant, confirmed the existence of a grow operation, and charged the accused.
At trial, the accused brought an unsuccessful application to exclude the evidence on the basis that the DRA
evidence violated his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter
of Rights and Freedoms. The accused was convicted of producing marihuana and possession of marihuana for the
purpose of trafficking. The accused's appeal was allowed, and a new trial was ordered. The appeal judge concluded
that prior judicial authorization was required to install the DRA, and that information obtained from the DRA was
subject to a reasonable expectation of privacy. The Crown appealed.
Held: The appeal was allowed.
Deschamps J. (Charron, Rothstein, Cromwell JJ. concurring): The conviction was restored. The accused had no
reasonable objective expectation of privacy in the home electricity use information obtained from the DRA. The
evidence offered no foundation for concluding that the information disclosed by the electrical service provider
yielded any useful information at all about the household activities of an intimate or private nature that formed
part of the accused's biographical core data. The accused's electricity consumption history was not confidential or
private information that he had entrusted to the electrical service provider. The electrical service provider was within
its rights to install the DRA on a customer's line on its own initiative to measure the electricity being consumed. The
disclosure of information obtained by the DRA was explicitly permitted by the applicable regulatory scheme.
No direct territorial privacy interest was engaged. The location where the search took place was not the accused's
home but transformer box, which was not located on the accused's property. The fact that the search included a
territorial privacy aspect involving the home should not be allowed to inflate the actual impact of a search to the
point where it bore disproportionately on the expectation of privacy analysis.
Abella J. (concurring in the result) (Binnie, LeBel JJ. concurring): The legislative authority provided by the Code of
Conduct Regulation of the Electric Utilities Act was determinative. Provisions of the Regulation effectively eroded
the objective reasonableness of any expectation of privacy in the DRA data. The accused could not reasonably
expect privacy with respect to records of his electrical usage, when the law provides that such information may be
disclosed to the police without his consent.
McLachlin C.J.C., Fish J. (dissenting in the result): The accused had a reasonable expectation of privacy in the
DRA data, and the intrusion and transmittal of the information gleaned constituted a search. The search was
intrusive. The fruits of a search need not produce conclusive determinations about activities within a home in order to
be considered informative and thus intrusive. The Regulation did not render the accused's expectation of privacy
unreasonable. A reasonable person would not have concluded that his or her expectation of privacy in activities inside
the home was negated because of the Regulation.
Power Point:
R v Gomboc
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SCC (2010) – [pp679-765] police request without warrant electric utility company’s permission to install digital
recorder ammeter to measure flow of electricity into house suspected of grow-op; observations of police, information
from digital recorder lead to warrant to search residence, accused charged with drug related offences
Trial judge admits DRA evidence, police have regulatory access to DRA data, accused found guilty; majority Court of
Appeal orders new trial on basis that accused had subjective expectation of privacy in DRA information which
was also objectively reasonable, regulations do not imply homeowner’s consent to allow utility company to gather
information at request of state; SCC allows appeal in split decision, restores conviction
Reasonable expectation of privacy? [paras 22-53] DRA is technique that reveals nothing about intimate or core
personal activities of occupants, just one particular piece of information about consumption of electricity
101
Gomboc - Accused’s electricity consumption not confidential or private information which he
entrusted to utility company
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Accused’s electricity consumption not confidential or private information which he entrusted to utility company;
company entitled to install reader to measure electricity being consumed; fact that search includes territorial privacy
aspect involving house should not inflate actual impact of search to point where bears disproportionately on
expectation of privacy analysis
Minority – [paras 111-142] when one subscribes for public services, police not authorized by home owners to
conscript utilities to enter homes, physically or electronically, for purpose of pursuing criminal investigations
without prior judicial authorization; accused presumed to have subjective expectation of privacy within his home,
also reasonable expectation of privacy in DRA data, not negated by regulation
Kang-Brown 2008
R. v. Kang-Brown, [2008] 1 S.C.R. 456, 55 C.R. (6th) 240, 230 C.C.C. (3d) 289 — See also: R. v. M. (A.),
[2008] 1 S.C.R. 569, 55 C.R. (6th) 314, 230 C.C.C. (3d) 377 — Police have a common law power to
search with the assistance of drug-sniffer dogs on the basis of a Charter compliant standard of:
i.
ii.
iii.
reasonable suspicion (per McLachlin C.J., Binnie, Deschamps, Rothstein JJ.);
generalized suspicion (per Bastarache J.); or
reasonable and probable grounds (per LeBel, Fish, Abella, Charron JJ.).
Charter of Rights and Freedoms ––– Unreasonable search or seizure — Reasonable expectation of privacy — 6-3 majority
holding search of passenger leaving bus with police use of dog sniffer violating s. 8. Charter of Rights and Freedoms –––
Charter remedies [s. 24] — Exclusion of evidence — Evidence of drugs found in bag of passenger leaving bus with police use
of dog sniffer contrary to s. 8 to be excluded — Violation serious.
The accused was a disembarking passenger with a bag in a bus terminal whose behaviour triggered the interest of
officers on a project to monitor travellers and identify drug couriers. The project included a dog trained to identify
odours of controlled substances. The officer identified himself as the accused exited the terminal, told the accused
he was not in any trouble and was free to go at any time. The officer proceeded to talk to the accused regarding the
planning and purpose of his travel. The dog indicated the presence of drugs in the bag and the accused was arrested
for possession for the purpose of trafficking in controlled substances. Upon a search of the bag, officers discovered 17
ounces of cocaine.
At trial, the accused's application for the exclusion of evidence pursuant to s. 24(2) of the Canadian Charter of Rights
and Freedoms on the basis of unreasonable search was dismissed. The trial judge found that the dog sniff of the
accused's bag did not constitute a search within the meaning of s. 8 of the Charter as the accused had no subjective
expectation of privacy in the contents of the bag or an objective reasonable expectation of privacy in the odour
emanating from the luggage. The accused was convicted of possession of heroin and possession of cocaine for the
purpose of trafficking. The accused's appeal was dismissed. The accused appealed.
Held: The appeal was allowed.
Per LeBel J. (Fish, Abella, and Charron JJ. concurring): The conviction was set aside. The accused's s. 8 Charter
rights were violated, and given the seriousness of the breach, the evidence was excluded. The use of sniffer dogs
constituted a search within the meaning of s. 8 of the Charter. On a standard of reasonable and probable grounds,
the police were not authorized at common law to conduct a search in the fulfilment of their general duty to
investigate crime. The threshold for the exercise of police powers should not be lowered to one of reasonable
suspicion as it would impair the safeguards found in s. 8 of the Charter against unjustified state intrusion. Any
perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is
a matter better left for Parliament. This was a case where the courts were ill-equipped to develop an adequate
legal framework for the use of police dogs.
Per Binnie J. (concurring in the result) (McLachlin C.J.C. concurring): The appeal should be allowed and the
conviction set aside. The evidence obtained should be excluded. The test under s. 8 of the Charter was met in the
case of sniffer-dog searches by proof of reasonable suspicion. Where reasonable suspicion exists, a sniffer-dog
search is authorized by the common law. In this case, the officer did not have grounds for reasonable suspicion at
the time the dog was called, and the search was not conducted reasonably, and therefore the search was not
authorized by law.
102
Per Deschamps J. (dissenting) (Rothstein J. concurring): The appeal should be dismissed and the convictions
affirmed. The accused's right under s. 8 of the Charter was not infringed. The use of a sniffer dog to check the accused's
bag in a public bus terminal on the basis of a reasonable suspicion that evidence of an offence would be discovered
was proper and did not constitute an unreasonable search or seizure. The standard to be met by the police was a
reasonable suspicion that evidence of an offence would be discovered. Because the police had a reasonable suspicion
that narcotics would be discovered, they were justified in using a sniffer dog to check the accused's bag. The positive
indication by dog of the presence of narcotics provided the police with reasonable grounds to arrest the accused
and to search his bag.
Per Bastarache J. (dissenting): The appeal should be dismissed. The search did not infringe the accused's Charter
right against unreasonable search and seizure. Although the accused had a reasonable expectation of privacy in his
luggage, the police proceeded after they had established a reasonable suspicion that he was carrying illicit
substances. The common law allows use of sniffer dogs where there is a reasonable suspicion of illegal activity
involving drugs. It is sufficient under certain conditions in the context of public bus terminals that reasonable
suspicion be of a generalized nature. Where reasonably informed passengers would be aware that they may be
subject to a sniffer-dog search while on the premises, it is not necessary that police have a reasonable suspicion
relating to a specific individual in order for the use of sniffer dogs to be permissible.
Power Point
R v Kang-Brown
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SCC (2008) – [pp451-575] use of police dog sniffing accused’s bag at bus station to check for drugs, dog indicates
presence of drugs, accused arrested for drugs possession ; trial judge finds odours of drugs emanating freely in
public transportation place, no reasonable expectation of privacy, no s.8 breach, Court of Appeal upholds
conviction; majority of SCC finds s.8 breach, excludes evidence
Majority findings on different points – majority of court finds police have common law power to search using
sniffer dogs on basis of Charter compliant standard of reasonable suspicion, as opposed to generalized suspicion,
minority rule no such authority under common law
All members agree dog sniff of passenger’s bag at bus station amounts to search under s.8 Charter; majority
finds s.8 violation due to search
Majority find evidence should be excluded under s.24(2), minority do not consider issue as no s.8 violation
Kang-Brown: S.8 standard is “reasonable suspicions” NOT Speculation without prior judicial
authorization
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S.8 violation or not – majority: police action based on speculation, because sniffer dog searches conducted without
prior judicial authorization, after the fact judicial scrutiny of grounds for alleged reasonable suspicion must be
rigorous – had dog sniff search been based on reasonable suspicion, dog’s positive alert would have given police
grounds to proceed on spot with warrantless search, police should first confirm presence of drugs by hand search of
bag [paras 90-92]
Though evidence was non-conscriptive, obtained in good faith, police given considerable latitude to act without
requirement of prior judicial authorization, only effective check is after the fact independent assessment:
warrantless search on inadequate grounds [para 102]
Minority – accused has reasonable expectation of privacy, but here police not able to rely on own senses, need for
dog to detect narcotics, technique done in public, minimally intrusive, search conducted in reasonable manner,
warrant could not be obtained [paras 195-199]
Triggering factor: no reason for the person to be searched. Police should first confirm presence of
drugs by hand search of bag [paras 90-92]
90 The appellant moved as if to comply with this suggestion by placing his bag on the floor and starting to unzip it.
Sergeant MacPhee then sought to take control of the bag and search it himself for “safety” reasons. Even if a
police officer were truly proceeding on the basis of officer safety in a Mann-type investigative stop, it was held in
Mann itself that illegal drugs found in a “safety” search were outside the scope of the permitted search. Here it
seems evident that Sergeant MacPhee's real objective was to rummage in the bag for illegal drugs, although officer
safety is clearly an important consideration.
91 As the appellant pulled back his bag, he appeared to Sergeant MacPhee to “panic” and become “very agitated,
very antsy” (trial tr., at p. 36). The bag had been on the ground about a minute (R. R., at p. 90). Sergeant MacPhee
explained “antsy” as follows:
103
Antsy was part and parcel with looking around the area, seemed to be fidgeting, seemed to be basically just
very — very non-attentive, very irritated almost, if you want to put it that way about my presence. [A.R., at p.
86]
92 Sergeant MacPhee, in my view, did not have reasonable suspicion at the time he tried to take control of the
appellant's bag (as indeed Sergeant MacPhee tacitly accepted because he purported to proceed on consent). In
fact, Sergeant MacPhee himself testified that the appellant's “demeanour” changed after the RCMP officer reached
for the bag:
... it was just a total change in demeanor from as soon as I even made the gesture of moving towards that
bag it was night and day. It became very almost hostile. Like it was just a total change of demeanor. The
super cooperative type of nature he had been, to now all of sudden being very upset. [Emphasis added; R.R.,
at p. 27.]
The appellant's opposition to what Sergeant MacPhee readily acknowledged would have been a non-consensual
illegal search is not something that according to the U.S. case law should be used against the appellant: U.S. v.
Eustaquio (1999), 198 F.3d 1068 (U.S. C.A. 8th Cir.). I agree. Individuals should not be penalized for asserting
their constitutional rights. The after-the-fact discovery of illegal drugs does not render constitutional that which
at the time was unconstitutional.
Minority – accused has reasonable expectation of privacy, but here police not able to rely on own
senses, need for dog to detect narcotics, technique done in public, minimally intrusive, search
conducted in reasonable manner, warrant could not be obtained [paras 195-199]
3.3.2.2 Evaluation of the Manner in Which the Sniffer-Dog Search was Conducted
195 Having found that the search in this case was justified on the basis of the reasonable suspicion standard and
that the police had a reasonable suspicion, I must now determine whether the search was conducted in a reasonable
manner.
196 The police did not, in the context of Operation Jetway, use sniffer dogs randomly at the bus terminal where
the appellant was searched. First, they had obtained the permission of the terminal's management to do so. Second, it is
after having observed the appellant in this public place that the police determined that he was a person of interest.
The trial judge found their questioning of the appellant to be entirely appropriate. Only after Sergeant MacPhee's
reasonable suspicion was sufficiently aroused did he signal for the sniffer dog to approach.
197 In this case, the dog could not have been more passive or less intrusive in her work. All she did to give a
positive indication of the presence of narcotics was to sit down. I therefore have no difficulty in concluding, based on
the record, that the sniffer- dog search was conducted in a reasonable manner.
198 As in the case considered by Fish J.A. (as he then was) in R. c. Murray (1999), 136 C.C.C. (3d) 197 (Que. C.A.),
in light of the totality of the circumstances, the police in the case at bar made limited and prudent use of a law
enforcement tool that was available to them. This demonstrates that potentially valuable police tools such as
roadblocks (as in Murray) and sniffer dogs (as in this case) can be restricted to constitutionally valid uses. A ban
is not warranted.
199 Accordingly, it is my view that the use of the sniffer dog in this case was a justifiable use of police powers
associated with investigating and preventing drug trafficking at a public bus terminal, and was in full compliance with
s. 8 of the Charter.
R. v. M (A.) 2008
(A.M.) – Companion to Kang-Brown
Charter of Rights and Freedoms ––– Charter remedies [s. 24] — Exclusion of evidence — Evidence of drugs found in
backpack following dog-sniffer search of entire school in violation of s. 8 properly excluded.
R. v. M. (A.), [2008] 1 S.C.R. 569, 55 C.R. (6th) 314, 230 C.C.C. (3d) 377 — Police have a common law power to search with
the assistance of drug-sniffer dogs on the basis of a Charter compliant standard of:
i.
ii.
iii.
reasonable suspicion (per McLachlin C.J., Binnie, Deschamps, Rothstein JJ.);
generalized suspicion (per Bastarache J.); or
reasonable and probable grounds (per LeBel, Fish, Abella, Charron JJ.).
104
The Facts:
In 2000, the principal of a high school which had a zero tolerance policy with respect to drugs issued a standing
invitation to the police to bring sniffer dogs into the school to search for drugs. In 2002, police officers went to the
school with a sniffer dog to conduct a random search. The police obtained the permission of the school principal,
but admitted they had no information that drugs were present and no grounds to obtain a search warrant. To
facilitate the search, the principal told the students to remain in their classrooms. In the gymnasium, the sniffer dog
reacted to an unattended backpack. Without obtaining a warrant, the police opened and searched the backpack
and found illicit drugs. M, the student who owned the backpack, was charged with possession of marijuana for the
purpose of trafficking and with possession of psilocybin (“magic mushrooms”). At trial, the youth court judge found
that both the sniffer-dog search and the physical search of the backpack were unreasonable because there were
no reasonable grounds for either search. Accordingly, he allowed M's application to exclude the evidence under s.
24(2) of the Canadian Charter of Rights and Freedoms on the basis that to admit it would bring the administration
of justice into disrepute. M was acquitted and the Crown's appeal was dismissed. The Court of Appeal held that
what occurred was a search by police and that the principal's standing invitation to the police did not render the
sniffer-dog search a “search by school authorities.” The Court of Appeal further held that the trial judge was correct
to exclude the evidence since this was a warrantless, random search which was not authorized by either the
criminal law or the Education Act. The Crown appealed.
Held: The appeal was dismissed.
Per LeBel J. (Fish, Abella and Charron JJ. concurring): Students are entitled to privacy even in a school
environment. There was no authority in statute law or at common law for the sniffer-dog search that was conducted
in this case; nor was the search conducted by the school authorities on proper grounds. As a result, the evidence was
properly excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms and the appeal should be dismissed.
R v M. (A.): Common Law power to search requires Reasonable Suspicion, Not Speculation;
Expectation of privacy in backpack is reasonable
Per Binnie J. (McLachlin C.J.C. concurring): The common law powers of the police to investigate crime and bring
perpetrators to justice include the use of sniffer dogs. Such powers, however, are subject to compliance with the
Charter. The deployment of sniffer dogs in the school was a search within s. 8 of the Charter. Where reasonable
suspicion exists, a sniffer-dog search is authorized by the common law, and the common law itself is reasonable
because of the minimally intrusive, narrowly targeted and high accuracy of “sniff searches” by dogs with a proven
track record. However, on the facts of this case, because of the absence of reasonable suspicion, the search was not
authorized by law. Further, it was not conducted reasonably because the police proceeded on the basis of
speculation rather than objectively verifiable evidence supporting reasonable suspicion.
Teenagers expect the contents of their backpacks not to be open to the random and speculative scrutiny of the
police. This expectation is a reasonable one that society should support. While a student's expectation of privacy is
lessened in the school setting in relation to school authorities, it does exist and was not abandoned when the
students left their backpacks in the gymnasium. The information provided by a sniffer dog trained to alert to the
presence of controlled drugs permits inferences about the precise contents of the source that are of interest to the police.
The subject-matter of the sniff is not public air space, but the concealed contents of the backpack. The contents of
M's backpack was specific and meaningful information, intended to be private, and concealed in an enclosed space in
which M had an expectation of privacy. By using the sniffer dog, the police could “see” through the concealing
fabric of the backpack. M's reasonable privacy interest in the contents of his backpack did not extend only to what
was lawful and exclude what was unlawful. The emphasis should be not on the object of the search, but on where the
search takes place and its potential impact on the person that is subject to the search.
Power Point:
R v M. (A.)
•
•
•
•
•
SCC (2008) – [pp577-677] companion case, police invited to high school by principal to search for drugs with
sniffer dogs, warrant could not be obtained; bag found to contain drugs when searched in gym
Trial judge rules two unreasonable searches, one conducted with sniffer dog, other of backpack, evidence
excluded, accused acquitted, upheld by Court of Appeal, appeal dismissed by SCC
Majority – police possess common law power to use sniffer dogs, differ on standard of reasonable or generalized
suspicion; dog sniff search of backpack amounts to search with violates s.8, evidence should be excluded under
s.24(2)
Search or not? Majority – backpacks, purses, briefcases are repositories of personal information, especially for
students and travellers; teenagers expect contents of backpacks not to be open to random and speculative scrutiny of
police – this expectation is reasonable one that society should support [paras 43-49]
Objective of zero tolerance policy against drugs in school achieved at expense of privacy interest and
constitutional rights of every student in school
105
•
Minority – [paras 126-140] accused did not have subjective expectation of privacy, students and parents made
aware of drug problem, zero-tolerance, and that sniffer dogs might be used; well advertised means devised and used
by school reduced accused’s subjective expectation of privacy very significantly – accused’s expectation of privacy
not objectively reasonable: police there with permission of school, dogs used to search premises, not students,
accused not even present at time of search, minimally intrusive search, bag in plain view
Factually different – principal in a school. This was a companion case to Kang-Brown. Majority:
Backpacks are repositories of personal information. Expectation of privacy is reasonable one that
society should support [paras 43-49]
B. A Student's Privacy is Entitled to Constitutional Protection
43 In support of their argument that s. 8 of the Charter is not engaged because of free access to “emissions in the
public domain”, the Attorneys General alluded to the dissent in Kyllo v. United States, 533 U.S. 27 (U.S. S.C. 2001),
cited in Tessling, at para. 51:
... public officials should not have to avert their senses or their equipment from detecting emissions in the
public domain such as excessive heat, traces of smoke, suspicious odors, odourless gases, airborne
particulates, or radioactive emissions, any of which could identify hazards to the community. [p. 45]
This frequently quoted passage from Kyllo clearly refers to situations involving immediate public hazards, not
routine crime investigation. The present appeal, however, is a case of routine crime investigation, not public hazards.
Moreover, the police here were not asked to “avert their senses”. The question before us relates to the
circumstances in which the police can initiate an investigation using sniffer dogs.
44 The leading Canadian case on searches in schools is R. v. M. (M.R.), [1998] 3 S.C.R. 393 (S.C.C.), where it was
held that “the reasonable expectation of privacy of a student in attendance at a school is certainly less than it
would be in other circumstances” (para. 33). After adverting to the fact that “weapons and drugs create problems
that are grave and urgent”, Cory J. nevertheless maintained that “schools also have a duty to foster the respect of
their students for the constitutional rights of all members of society” (para. 3).
Learning respect for those rights is essential to our democratic society and should be part of the education
of all students. These values are best taught by example and may be undermined if the student's rights are
ignored by those in authority. [para. 3]
Of course, the consequences for the student of a police search are potentially far more serious than would result from
an exercise of school discipline.
45 In M. (M.R.), the issue was the constitutionality of the body search of a student for drugs at a school dance by
the vice-principal. The Court specifically held that if the body search had been conducted by the police, or the school
authorities acting as agents of the police, reasonable and probable grounds of belief would have been required.
However, reasonable suspicion was sufficient for school authorities. The teaching of M. (M.R.) is that in matters of
school discipline, a broad measure of discretion and flexibility (para. 49) will be afforded the school authorities, but
when police are conducting a body search, even on school premises, the ordinary standard of justification
applicable to police will be required. Cory J. stated:
The modified standard for school authorities is required to allow them the necessary latitude to carry out
their responsibilities to maintain a safe and orderly school environment. There is no reason, however,
why police should not be required to comply with the usual standards, merely because the person they
wish to search is in attendance at an elementary or secondary school. [para. 56]
In the present case, of course, we are not dealing with a body search, which is far more intrusive than a dog sniff and
whose results are not limited to the disclosure of contraband.
46 My colleague Deschamps J. (at para. 131) cites M. (M.R.) as authority for a diminished expectation of privacy in
schools, but seemingly does not attach importance to the distinction between school authorities (which is what Cory J.
is speaking of in the passage she cites) and the police. The difference between a police search and an investigation
by school authorities was of critical importance to the Court's decision in M. (M.R.) and, I believe, is of
importance here as well.
47 Some authors have criticized the distinction between a search by school authorities and a police search if the end
result in both situations is a prosecution, e.g. D. Stuart, “Reducing Charter Rights of School Children” (1999), 20 C.R.
106
(5th) 230; A. W. MacKay, “Don't Mind Me, I'm from the R.C.M.P.: R. v. M. (M.R.) — Another Brick in the Wall
Between Students and Their Rights” (1997), 7 C.R. (5th) 24. However, I agree with Cory J. that significantly greater
latitude must be given to school authorities in the discharge of their responsibilities than to the police. If evidence
sufficient to ground a prosecution should come to light in the course of a school investigation, the evidence no doubt
will be passed on to the regular prosecutorial authorities if the school authorities think it appropriate to do so.
Otherwise, schools may become safe havens for juvenile drug dealers, which would be unacceptable. In any event,
Cory J. factored this possible outcome into his consideration in pronouncing the usual caveat that “[a]ll the
circumstances surrounding a search must be taken into account in determining if the search is reasonable” (M. (M.R.),
at para. 48). The important point is that the Court in M. (M.R.) refused to carve out a “school exception” to the
exercise of police powers.
48 My colleague Deschamps J. concludes that the accused lacked any personal privacy interest in his bag when left
in the gym. She writes:
No personal privacy interest as defined in R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67, at para. 23, is in
issue in this case, since A.M. was not wearing or carrying his backpack at the time of the alleged search.
[Emphasis in original; para. 121.]
Reliance is also placed on the unattended backpack factor at paras. 100, 120, 128, 131, 138, 147 and 148 of my
colleague's reasons. I do not agree with the importance attached to the circumstance that the backpack was
unattended. If an accused has a privacy interest in the contents of a letter, it is not lost when she takes it out of
her purse and posts it. If an accused has documents concealed in the locked trunk of his car, the privacy interest in the
contents of the trunk of the car does not depend on whether he is in the car or has left it parked somewhere, including a
public parking lot. My home is no less private when I am out than when I am there. When students left their
backpacks in the gymnasium, they did not thereby lose their privacy interest in the concealed contents, in my view.
49
My colleague Deschamps J. then writes:
A third factor is the fact that A.M.'s backpack was left not only unattended, but also in plain view. [para. 138]
As I see it, the issue is not whether the outside of the backpack was in plain view. The privacy issue relates to the
concealed contents.
Minority – [paras 126-140] accused did not have subjective expectation of privacy
3.2.2 Reasonableness of A.M.'s Expectation of Privacy
125 The principal submission made by the Crown in its appeal in this case is that A.M. did not have a reasonable
expectation of privacy that engaged s. 8 of the Charter.
126 In my view, both the trial judge and the Court of Appeal erred in failing to consider the threshold issue of
whether A.M. had a reasonable expectation of privacy that engaged s. 8 of the Charter. At trial, Hornblower J. did
not consider whether a reasonable expectation of privacy was at stake. Rather, he simply assumed that it was.
The Court of Appeal did not correct this error of law. Armstrong J.A. simply stated: “I do not find it necessary in this
case to decide whether the police activity prior to the search of the backpack constituted a search for s. 8 purposes. In
my view, the dog sniff of A.M.'s backpack and the search of the backpack by Constable Callander constituted a search
for the purposes of s. 8 of the Charter” (para. 45).
127 It must be determined whether, in light of the totality of the circumstances, including the relevant factors
discussed in R. v. Simmons, [1988] 2 S.C.R. 495 (S.C.C.), R. v. Edwards, [1996] 1 S.C.R. 128 (S.C.C.), at para. 45, and
Tessling, at para. 32, the dog sniff of A.M.'s backpack involved a reasonable expectation of privacy that A.M. had.
Neither the trial judge nor the Court of Appeal conducted this analysis. This Court must therefore do so.
R v M. (A.): Indicia of Subjective and Objective Reasonable Expectation of Privacy
128 The pivotal question in this appeal is whether A.M. had a reasonable expectation of privacy in respect of
odours imperceptible to humans that emanated from his unattended backpack in a school gymnasium. This requires
consideration of whether A.M. had a subjective expectation of privacy and whether his privacy interest was
objectively reasonable. In Brown, at para. 140, I identify a non-exhaustive list of factors to aid in this assessment:
(i)
(ii)
the presence of the accused at the time of the alleged search;
the subject matter of the alleged search:
(a)
ownership and historical use of the subject matter;
107
(b)
(c)
(d)
(iii)
(iv)
whether the subject matter was in public view;
whether the subject matter had been abandoned;
where the subject matter is information, whether the information was already in the
hands of third parties; if so, was there a duty of confidentiality in relation to it?
the place where the alleged search occurred:
(a)
ownership, possession, control or use of the place where the alleged search took place;
(b)
the ability to regulate access, including the right to admit or exclude others from the
place;
(c)
notification of the possibility of searches being conducted in the place;
the investigative technique used in the alleged search:
(a)
whether the police technique was intrusive in relation to the alleged privacy interest;
(b)
whether the information obtained in the alleged search exposed any intimate details of
the accused's lifestyle, or information of a biographical nature.
129 In my view, A.M. did not have a subjective expectation of privacy in the case at bar. Students and parents
were aware of the drug problem and the zero-tolerance drug policy and of the fact that sniffer dogs might be used. Dogs
had in fact been used on prior occasions to determine whether narcotics were present at the school. A.M. did not
lead any evidence to rebut these facts. Defiance of school policy must not be confused with an expectation of
privacy. Of course, school policy must be implemented in a manner consistent with a legitimate expectation of privacy.
However, the well-advertised means devised and used by the school reduced A.M.'s subjective expectation of
privacy very significantly, as was true of the R.I.D.E. program in issue in R. v. Dedman, [1985] 2 S.C.R. 2
(S.C.C.), at pp. 28-29.
130 Moreover, there are numerous factors that support a finding that A.M.'s expectation of privacy was not
objectively reasonable.
131 First, the place where the search occurred was a school with a known problem of drug use by students,
both on and off school property. In M. (M.R.), which concerned a personal search of a student by a school official, Cory
J., writing for the majority, held that a student's reasonable expectation of privacy is significantly diminished while
he or she is at school:
... the reasonable expectation of privacy of a student in attendance at a school is certainly less than it would
be in other circumstances. Students know that their teachers and other school authorities are responsible
for providing a safe environment and maintaining order and discipline in the school. They must know that
this may sometimes require searches of students and their personal effects and the seizure of prohibited
items. It would not be reasonable for a student to expect to be free from such searches. A student's
reasonable expectation of privacy in the school environment is therefore significantly diminished. [para.
33]
These words by Cory J. are all the more compelling where, as in the instant case involving an unattended backpack
on school property, a non-personal search is in issue. A.M. did not have a right to control access to the school and,
unlike in M. (M.R.), the police were there with the permission (and at the request) of the school's principal in
furtherance of disciplinary goals being pursued by the school in order to confront a systematic drug problem. The
dogs were used to search the premises, not the students. In these circumstances, the objective expectation of privacy
in respect of an unattended backpack on this school's property was not only significantly diminished, but
extremely low.
132 It is notable that there is a clear connection between the school environment, which is tightly controlled, and the
search that took place at the school. The provincial Ontario Schools Code of Conduct (2001), established under the
Education Act, R.S.O. 1990, c. E.2, recognizes that “illegal drugs are addictive and present a health hazard”, and calls
on Ontario schools to “work cooperatively with police” to address the issue (p. 3). A.M. was subject to school
discipline as a result of the drugs that were found in his backpack. Constable Callander testified that the Sarnia police
do not go into a school with their sniffer dog unless asked to do so by school authorities (A.R., at p. 78). It is also
notable that neither the police nor the school authorities acted on an “educated guess” or a random “hunch” in this case.
Rather, the school authorities invited the police in response to what they reasonably viewed as credible concerns
expressed by students' parents and neighbours of the school. They relied on cooperation with the police to ensure a
safe and secure learning environment for the benefit of all students and staff.
133 Owing to the drug problem in this school, it was critical that the school authorities take enhanced control
measures. The well-publicized zero-tolerance policy and the measures taken in the past to enforce that policy call to
mind Le Dain J.'s comment in Dedman (at p. 36) that the psychological effects of random vehicle stops under the
108
R.I.D.E. program, which were carried out to detect impaired motorists, tended “to be minimized by the wellpublicized nature of the program, which is a necessary feature of its deterrent purpose”.
134 A.M., and all the school's other students and its staff, benefited from an environment that was substantially free
from illegal drugs and the ills that they bring. In this respect, the situation in a school, where the environment is
controlled for the benefit of those who attend it, is analogous to — albeit distinct from — that of a courthouse, where
one has a very low expectation of privacy in respect of one's belongings: see R. v. Campanella (2005), 75 O.R. (3d)
342 (Ont. C.A.), at paras. 17, 19, 20 and 24.
135 The controlled environment of a school's property is also analogous to the customs context. In Simmons,
Dickson C.J. held at p. 528 that the degree of personal privacy reasonably expected at customs is lower than in most
other situations, both because the state has an important interest in enforcing customs laws in the interest of public
safety and because individuals have a significantly reduced expectation of privacy. According to Chief Justice
Dickson:
People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that
sovereign states have the right to control both who and what enters their boundaries. For the general welfare
of the nation the state is expected to perform this role. Without the ability to establish that all persons who
seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded
from performing this crucially important function. Consequently, travellers seeking to cross national
boundaries fully expect to be subject to a screening process.” [Emphasis added; p. 528.]
136 Likewise, schools are expected to ensure the safety of their students and staff. Students fully expect that
school authorities will perform this crucially important function. In the instant case, the reasonable expectation of
privacy of the school's students was even lower in light of the school's well-publicized zero-tolerance policy and the
means employed in the past to enforce it. As Dickson C.J. noted in Simmons (at p. 526), this contextual approach to
determining reasonableness under s. 8 was established in Canada (Director of Investigation & Research,
Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.), where Dickson J. (as he then was)
had held, at pp. 159-60:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.
This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from
“unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy,
indicates that an assessment must be made as to whether in a particular situation the public's interest
in being left alone by government must give way to the government's interest in intruding on the
individual's privacy in order to advance its goals, notably those of law enforcement. [Emphasis added;
emphasis in original deleted.]
137 A second factor that supports a finding that A.M.'s expectation of privacy was not objectively reasonable is the
fact that he was not present at the time of the search. I would add that since there were no students in the school
gymnasium at the time of the search, there was no risk that the dog, on sniffing a backpack worn by a student, might
make a false positive indication leading to a — more intrusive — personal search of the student.
138 A third factor is the fact that A.M.'s backpack was left not only unattended, but also in plain view. While there is
no indication that the backpack was abandoned, the use of a sniffer dog to check an unattended bag left in plain view is
less intrusive than the use of one to check a bag that is either worn or carried by an individual, or is placed in a locked
compartment out of plain view.
139 A fourth factor is the fact that the investigative technique was relatively non-intrusive. While it is true that
the dog was able to detect the presence of drugs in A.M.'s backpack, it was able to do so without the backpack being
opened. Moreover, the dog was trained only to detect drugs and find humans. It could not therefore convey any
information other than that there were drugs present. Thus, the use of a sniffer dog in these circumstances was a less
intrusive investigative technique than simply opening A.M.'s backpack without a prior positive indication by the
dog.
140 The use of a sniffer dog as an investigative technique did not intrude unreasonably on A.M.'s privacy
interest, since his informational privacy interest was extremely limited in the school environment. Therefore, in my
view, in light of the totality of the circumstances, A.M. did not have a reasonable expectation of privacy that
engaged s. 8.
109
Arrest and Detention; Arrest
R v Pilcher 1981
Re former section 455, now 504:
504. In what cases justice may receive
Part XVI, Information, Summons and Warrant
504. In what cases justice may receive information — Anyone who, on reasonable grounds, believes that a person
has committed an indictable offence may lay an information in writing and under oath before a justice, and the
justice shall receive the information, where it is alleged
(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in
which the justice resides, and that the person
(i) is or is believed to be, or
(ii) resides or is believed to reside,
within the territorial jurisdiction of the justice;
(b) that the person, wherever he may be, has committed an indictable offence within the territorial
jurisdiction of the justice;
(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the
territorial jurisdiction of the justice; or
(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.
506. Form — An information laid under section 504 or 505 may be in Form 2
Part XXVIII – Miscellaneous S. 849. (1) Forms — The forms set out in this Part, varied to suit the case, or forms to the like effect are deemed
Form 2 — Information
(Section 506 and 788)
Canada,
Province of ..........,
(territorial division).
This is the information of C.D., of ..................................., (occupation), hereinafter called the informant.
The informant says that (if the informant has no personal knowledge state that he believes on reasonable
grounds and state the offence).
Sworn before me
this .......... day of
.........., A.D. ..........,
at ....................
....................
....................
(Signature of Informant)
A Justice of the Peace in and for
Note: The date of birth of the accused may be mentioned on the information or indictment.
Note: “the justice shall receive the information”
This is a judicial function – anyone has the right in law to appear before the judicial officer to receive their
information – 504 speaks to the administrative requirement. The Judicial determination to issue process is
under 507:
110
Part XVI - 507. (1) Justice to hear informant and witnesses
507. (1) Justice to hear informant and witnesses — public prosecutions — Subject to subsection 523(1.1), a justice who
receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney
General's agent, other than an information laid before the justice under section 505, shall, except if an accused has already
been arrested with or without a warrant,
(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and
(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a
summons or a warrant for the arrest of the accused to compel the accused to attend before him or some
other justice for the same territorial division to answer to a charge of an offence.
From Page 776, on duties regarding swearing of an Information:
The duties and responsibilities of a person swearing an information are clearly set out by Henry J. in Peavoy,
supra, at p. 106, where he said:
Recognizing that the pressure of duties and administration upon police forces may quite naturally cause them,
when under pressure, to manage the laying of informations as a form of routine “paperwork”, I feel
obliged to add the following comments. A person swearing an information, particularly a law enforcement
officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a
reckless disregard as to the truth of his assertion. To do so is clearly an affront to the Courts and is at
variance with the right of the citizen to be left alone by the authorities unless there is reasonable and
probable grounds for invading his liberty by compelling his attendance before the Courts. The police officer
who does not satisfy himself that he can personally swear to the truth of the information according to its
terms, (i.e. personal knowledge or reasonable and probable rounds), yet does so, jeopardizes his personal
position and also does a disservice to the upholding of law in the community. His oath must be beyond
reproach. He need not, of course, have personal knowledge of all the facts or even most of the facts that
support the allegation; indeed much of what would be available to him will, so far as he is concerned, be
hearsay. He must however, be satisfied, even if it be on the basis of reliable reports made by other
persons in the course of an investigation, that there is some evidence to support the charge, that that
evidence in fact constitutes reasonable and probable grounds for believing that the accused committed the
offence and that he believes that the accused did so. Moreover, he must be prepared to satisfy the Justice
of the Peace who, in turn, has an obligation judicially, not arbitrarily, to hear and consider the allegations
before endorsing the information.
If it should transpire that the person swearing the information has done so falsely or had misled the
Justice of the Peace, then he risks the possibility of both criminal and civil proceedings against him
personally for his misconduct.
Part XX - Amendment
S. 601. (1) Amending defective indictment or count
601. (1) Amending defective indictment or count — An objection to an indictment or to a count in an indictment
for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the
accused has pleaded, and thereafter only by leave of the court before which the proceedings take place, and the
court before which an objection is taken under this section may, if it considers it necessary, order the indictment
or count to be amended to cure the defect.
607. (1) Special pleas — An accused may plead the special pleas of
(a) autrefois acquit; (b) autrefois convict; and (c) pardon.
Power Point
R. v. Pilcher
•
•
•
Man. Prov. Ct. (1981) – [pp773-777] accused charged with theft of firearms; apply to trial judge to quash
information on grounds that informant lacked reasonable and probable grounds to believe allegations
S.455 [now s.504] states anyone who, on reasonable and probable grounds, believes a person has committed an
indictable offence may lay an information in writing and under oath before a justice
Informant instructed to obtain draft information, did not inform self of details, read police report
111
•
Accused must discharge onus of proving on preponderance of evidence that informant lacked reasonable and
probable grounds (Peavoy)
Pilcher: Peace Officer Laying Information Must be able to Swear that he believes Information to be
True; Duty to Inform Himself
•
•
•
•
•
Chartier (SCC) – for peace officer to have reasonable and probable grounds to believe in guilt of person, belief must
take into account all information available [p775]
S.455 [now 504] contemplates informant acting in prudent, cautious manner, apprise self of all relevant
circumstances surrounding case which he/she reasonably and in good faith believes to be true, person charged
probably guilty of crime
Defence has onus: proving on balance of probabilities that informant did not have reasonable and probable
grounds for believing offence had been committed – informant not entitled to lay charges on mere say so of others
Failure to comply with mandatory requirements of s.455 [504] results in information being invalid – declared to be
nullity
Information quashed for want of jurisdiction
p.774 – Will Rogers Reference:
In short, Lobson admitted that all he knew about the case was what he read in the information itself, an admission
not unlike that of the American folk hero Will Rogers, who once said: “All I know is what I read in the newspapers!”
Bottom p.777 last para:
I find that there has been a failure to comply with the mandatory requirements of s. 455 [now 504] of the Criminal
Code and as a result, the information is invalid, and 1 do hereby declare it to be a nullity. The information is therefore
quashed for want of jurisdiction.
Jurisdictional Attack – not Collateral Attack based on Substance and Charter Violations
This is an attack on an information (the right to quash a charge document) – different from trying to
have a judicial officer trying to quash a search warrant made by a JP. Also: We are not talking
about the Charter, we are talking about mandatory requirements under 504, for process under 507.
R v Jeffrey 1976
Power Point:
R. v. Jeffrey
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Ont. Prov. Ct. (1976) – [pp779-784] preliminary objection to jurisdiction of court to hear charges under Liquor
Control Act – informant appears before justice, provides name of accused, date of offence and Act, information then
prepared. S.455.3 [now s.507] refers to justice hearing and considering ex parte allegations of informant, and any
witnesses if necessary to do so; issue is whether “hear” includes mere reading of allegation in information
No discretion NOT to hear and consider allegations of informant, only for other witnesses [para 14]
Judicial officer can only compel attendance of defendant if first hears and considers allegations of informant – as
this not done, process before court is defective [para 16]
Accused required to appear before court by summons, failure to do so might result in failure to appear charges
Appearance before court of accused does not confer jurisdiction over their persons – no jurisdiction for court to
deal with them as a result
The justice did not hear the substance underlying to laying of the information – he is required to
hear it FROM the informant. Issue: Whether or not the information could be challenged if the
justice didn’t hear anyone other than the informant. Judicial officer must hear the informant first.
Para 14: No discretion NOT to hear and consider allegations of informant:
14. I note as well that s. 455.3(1 )(a)(ii) [now s.507] commands the justice to hear and consider “the evidence of
witnesses, where he considers it desirable or necessary to do so”. It is clear that the justice has been given a
discretion as to whether witnesses need to be called; it is clear by the absence of such words in s. 455.3(l)(a)(i) [now
s.507] that Parliament has given him no such discretion respecting whether he shall hear and consider “the
allegations of the infomnant”.
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Para 16: can only compel attendance of defendant if first hears and considers allegations of
informant:
Jeffrey: justice must “hear” substance underlying the information; not just mere reading of
allegation in information
16. The present legislation states that the judicial officer can only compel the attendance of the defendant if he first
hears and considers the allegations of the informant. In none of the cases before the Court was this done and
accordingly this Court holds that the process which issued is defective.
Attornment Can Apply but Not in This Case:
Attornment: submitting to the jurisdiction of the court – by appearing in court, the defendants “attorned”
to the jurisdiction of the court, and cannot say otherwise. The judge in Jeffrey says no, because the
process wasn’t issued properly. First two cases: Speak to how process should be issued, and how
jurisdiction can be lost
R v Stenning 1970
R. v. Stenning (1970), 11 C.R.N.S. 68, [1970] 3 C.C.C. 145 (S.C.C.) — A peace officer investigating a possible
unlawful entry was engaged in the lawful execution of his duty whether or not he was technically a trespasser
on private property:
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Waterfield test – police conduct falls within general scope of duty under statute or common law; does such conduct
involve unjustifiable use of powers associated with duty [p787]
Officer at time of dealing with accused in execution of his duties, no unlawful interference at time with liberty or
property of accused
Criminal Law ––– Offences against person and reputation — Assault on peace officer in execution of duty —
Nature and elements of offence. Whether in execution of his duty — Police Act, R.S.O. 1960, c. 298, s. 47 —
Criminal Code, S.C. 1953-54, c. 51, s. 232(2)(a).
The Facts:
Constables called to investigate a disturbance at an automobile dealership found a man outside, intoxicated and
badly beaten. The constables were told that a firearm had been discharged, and they subsequently discovered that the
beaten man had fired the shot. In the meantime, however, they saw a light on in the building, and one of them went
through the window to allow the other to gain access. Together they then entered an inner room, found traces of
blood and two persons there under questionable circumstances, pretending to be asleep, and thereupon began to
question them. One suddenly jumped up during the course of questioning, apparently provoked by a threat of
arrest, and struck one constable in the face, breaking his nose and injuring his eye. A charge of assaulting a police
officer, contrary to Code s. 232(2), was dismissed, and an appeal was dismissed. On further appeal, held, the
appeal should be allowed. While the constable might technically have been a trespasser on the premises, he was
there to investigate a disturbance and was obligated under s. 47 of the Police Act to preserve the peace, prevent
robberies, and apprehend offenders. He was therefore, at the time of the assault, "engaged in the execution of his
duty" within the meaning of Code s. 232(2)(a).
It turned out that the accused was the son of the building's owner. The trial Judge acquitted the accused upon a
charge of assaulting a police officer, contrary to Code s. 232(2), holding that the peace officers were not in the
course of their duty. The Ontario Court of Appeal dismissed the Crown's appeal without giving reasons. The Crown
further appealed, with leave, to the Supreme Court of Canada.
Held, the appeal should be allowed and the accused found guilty.
The judgment at trial was based on the ground that the officer was a trespasser when he entered the building. But even
if he were a trespasser, the officer was not trespassing on the accused's premises. The officer had been detailed to
the premises to investigate an earlier occurrence which involved the discharging of a firearm and when assaulted by
the accused he was carrying out a duty imposed upon him by s. 47 of The Police Act.
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Power Point
R. v. Stenning
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S.C.C. (1970) – [pp785-788] accused charged with assaulting peace officer; investigating disturbance, find someone
moving around office, think someone has broken in
Police find man pretending to be asleep in office, blood in area; man refuses to identify self, police attempt to
arrest him, assaulted while doing so
Trial judge acquits accused – police broke into building, not acting in course of duty
Assuming officer was trespasser, fact remains that there to investigate occurrence which happened earlier that night
Waterfield test – police conduct falls within general scope of duty under statute or common law; does such conduct
involve unjustifiable use of powers associated with duty [p787]
Officer at time of dealing with accused in execution of his duties, no unlawful interference at time with liberty or
property of accused
P.787 – Waterfield test
18 We were referred to a number of English authorities and some Canadian cases, all of which turned upon facts
which differed from the facts found in this case. Their effect is stated in the judgment of the Court of Criminal
Appeal in R. v. Waterfield*.
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within
specific limits the general terms in which the duties of police constables have been expressed. In most
cases it is probably more convenient to consider what the police constable was actually doing and in
particular whether such conduct was prima facie an unlawful interference with a person's liberty or
property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of
any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the
general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
Point: If the police were not properly executing their duty, the offender could not be held guilty for the
assault. 2nd last para: - in the execution of his duties – common law – even if the officer did not have the
right to be on the property, they were acting under their common law duty.
19 On the facts of this case, as found by the trial judge, whether Wilkinson was, technically, a trespasser, or not,
he was engaged in the execution of his duties at the time when he was assaulted by the respondent, and at that time
there had been no unlawful interference with either the liberty or the property of the respondent.
Part VIII – Offences Against the Person and Reputation
S. 270. (1) Assaulting a peace officer
270. (1) Assaulting a peace officer — Everyone commits an offence who
(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid
of such an officer;
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another
person; or
(c) assaults a person
(i) who is engaged in the lawful execution of a process against lands or goods or in making a
lawful distress or seizure, or
(ii) with intent to rescue anything taken under lawful process, distress or seizure.
(2) Punishment — Every one who commits an offence under subsection (1) is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Knowlton v R 1973 (Waterfield)
Knowlton v. R. (1973), 21 C.R.N.S. 344, 10 C.C.C. (2d) 377 (S.C.C.) — Police officers refusing admittance to a cordoned-off
area of a public street were acting in the execution of their duty. D's conduct in pushing his way past, despite warnings,
amounted to obstruction.
Criminal Law ––– Offences against administration of justice — Offences relating to peace officers — Resisting or
obstructing public or peace officer — What constitutes being in execution of duty. - Criminal Law ––– Compelling
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appearance of accused — Arrest — Duties following arrest — Reasons for arrest. Whether police forming cordon
for security reasons are so acting — The Criminal Code, R.S.C. 1970, c. C-34, s. 118(a).
Appellant was arrested when, in disobedience of a police order, he pushed through a cordon of police officers who
had been stationed, for security reasons, around the entrance to a hotel, to which normally the public had a right of
access, in preparation for a visit by Premier Kosygin of the U.S.S.R. He was charged under Code s. 118(a) and
acquitted by a Provincial Court Judge. The Appellate Division of the Supreme Court of Alberta, in a unanimous
judgment, allowed the Crown's appeal and convicted him as charged.
Held, the appeal should be dismissed; there could be no doubt that the police who formed the cordon were
lawfully acting in the execution of their duties, and that their activities fell within the general scope of the
responsibilities cast upon them by statute.
Power Point
R. v. Knowlton
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S.C.C. (1973) – [pp789-792] police officer protecting visiting head of state, warns accused to keep out of area;
accused ignores warning, arrested for obstruct peace officer in execution of duty
Police interfere with right of accused to circulate freely on public street – under Waterfield test, police have obligation
to take proper and reasonable steps to protect officials; officers did not resort to unjustifiable use of powers
associated with duty imposed upon them [p790]
Question: Were the police still entitled to arrest the individual, even though the underlying offence was
not proven?
See s.495 – Part XVI – Compelling an Accused Before a Justice and Interim Release
S. 495. (1) Arrest without warrant by peace officer
495. (1) Arrest without warrant by peace officer — A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed
or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or
committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial
jurisdiction in which the person is found.
(2) Limitation — A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553, [ABSOLUTE PROVINCIAL]
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on
summary conviction, or [HYBRID]
(c) an offence punishable on summary conviction,
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances
including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail
to attend court in order to be dealt with according to law.
(3) Consequences of arrest without warrant — Notwithstanding subsection (2), a peace officer acting under
subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person
making the allegation that the peace officer did not comply with the requirements of subsection (2).
R.S.C. 1985, c. 27 (1st Supp.), s. 75
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R v Biron 1976
Criminal Law ––– Compelling appearance of accused — Arrest — Arrest without warrant — When power may be
exercised — Finds committing breach of peace.
The police made an authorized raid on a bar, looking for illegal firearms and liquor. B. refused to co-operate with
police, verbally abusing them and refusing to give his name. He was arrested by Constable M. and led outside by
Constable G. for questioning and handed over to Constables D. and M. B. protested his arrest and a scuffle with D.
occurred. B. was convicted of causing a disturbance by shouting and of obstructing police by resisting D. However,
he was acquitted on a trial de novo of causing a disturbance. The Quebec Court of Appeal reversed the
conviction for obstructing police, holding that the arrest was lawful. Deschenes J.A., in dissenting, endorsed the
acquittal upon the trial de novo but went on to find that B. was guilty of causing a disturbance by swearing or using
obscene language.
Held: (Laskin C.J.C., Spence and Dickson JJ. dissenting), the appeal should be allowed.
Power Point:
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S.C.C. (1976) – [pp793-796] police raid bar, accused present at time, refuses to cooperate, identify self; arrested and
led out for questioning – charged with causing disturbance by shouting, resisting arrest; found not guilty of causing
disturbance, guilty of resist arrest charge
Issue is whether acquittal for causing disturbance precludes conviction for other charge
S.450(1)(a) [now s.495(1)(a)]: arrest without warrant where reasonable belief indictable offence committed;
ss.(1)(b): person found committing criminal offence
Para. (b) applies where officer finds offence being committed – power of arrest based on own observation, no
reason to refer to belief based on reasonable and probable grounds
Power of arrest without warrant given where officer finds person apparently committing offence
Officer observed apparent offence by accused, arrest thus lawful, resistance by accused constituted offence [p795]
Dissent – accused has right to resist unlawful arrest [p796]
Biron: Right to Resist: Final para: an individual if not being arrested lawfully has the right to
resist, but only without excessive force.
55 The position as it relates to resistance to unlawful arrest was established at common law as early as 1709 in
Regina v. Tooley (1709), 2 Ld. Raym. 1296, 92 E.R. 349, and has been reaffirmed time and again: see, for example,
Rex v. Curvan (1826), 1 Mood. C.C. 132, 168 E.R. 1213; Regina v. Wilson, [1955] 1 W.L.R. 493, 39 Cr. App. R. 12,
[1955] 1 All E.R. 744 at 745, referring also to the qualification of the use of excessive force in resisting. It has been
part of our criminal law from the beginning and is reflected in the provisions of the Criminal Code, which has sought to
balance the competing interests in freedom and order by giving the peace officer protection in specified
circumstances where he has exceeded his authority to make an arrest. Our law has not, as I understand it,
deprived the citizen of his right to resist unlawful arrest. His resistance may be at his own risk if the arrest proves
to be lawful, but so too must the police officer accept the risk of having effected a lawful arrest. Of course, even if
the resisted arrest is unlawful, the person resisting may still become culpable if he uses excessive force.
R v Evans 1991
R. v. Evans (1991), 4 C.R. (4th) 144, [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289, 124 N.R. 278, 3 C.R.R. (2d) 315, 1991
CarswellBC 918, 1991 CarswellBC 417, [1991] S.C.J. No. 31, EYB 1991-67049 (S.C.C.)
Power Point:
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Ont.Prov.Div. (1991) – [pp797-802] police attempt to arrest accused in tavern where believe narcotics offence
occurred, based on information from informant
Issue is whether information from informer justify officers’ subjective belief accused committed offence ?
Accused uses force to resist arrest, charged with common assault
Arrest by officers without warrant under s.495(1)(a) – belief that indictable offence committed
Evans: To arrest without warrant, police need subjective and objective reasonable grounds (S.495);
otherwise accused has right to resist, not guilty of Assault
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Storrey (SCC) – Code requires officer to have subjectively reasonable and probable grounds to arrest, and grounds
must be justifiable objectively
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Debot (Ont.CA.) – information from informant may provide necessary reasonable and probable grounds to justify
arrest without warrant
Information from informer was conclusory, no details if relying on personal observation, rumour, gossip
Not established that officer had reasonable grounds to believe accused in possession of cocaine at time of attempted
arrest, accused entitled to resist arrest, not guilty of assault [p802]
Part XVI — Compelling Appearance of an Accused Before a Justice and Interim Release
495. (1) Arrest without warrant by peace officer — A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has
committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or
committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction
in which the person is found.
(2) Limitation — A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on
summary conviction, or
(c) an offence punishable on summary conviction,
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances
including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail
to attend court in order to be dealt with according to law.
P.799 – refers to Storrey – objective and subjective belief:
In R. v. Storrey (1990), 53 C.C.C. (3d) 316. The Supreme Court of Canada analyzed the requirements which the
predecessor to s. 495(1) imposed on police officers seeking to obtain an arrest warrant or to arrest an individual without
warrant. Writing on behalf of the court, Cory J. stated at p. 323:
… the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate
to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested
has committed the offence. In the case of an arrest made without warrant, it is even more important for the
police to demonstrate that they have those same reasonable and probable grounds upon which they base the
arrest. [emphasis added]
… an arresting officer must subjectively have reasonable and probable grounds on which to base
the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a
reasonable person placed in the position of the officer must be able to conclude that there were indeed
reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything
more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case
for conviction before making the arrest.
2nd para under heading, p.801 – Mere Conclusory Statement
The question of whether the information received by Thorne was adequate to justify his belief that the accused
had committed the offence of possession of crack cocaine is more difficult. The fact that the neighbourhood was
notorious for such offences and that The Elms Tavern was known to be frequented by drug dealers, in combination
with the past reliability of this source of information and the detailed description of the suspect, tends toward a positive
answer to that question. On the other hand, the words of Martin J.A. in Debot, referred to above, bear repeating:
Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify
a warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient
detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his
or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the
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supplying of reliable information in the past, or confirmation of part of his or her story by police
surveillance
With respect to whether an offence had occurred, the informer in the case at bar provided no details which would
enable one to know whether he was relying on personal observation, rumour or gossip. The Crown urges me to
infer that the informer saw the transaction reported to P.C. Thorne, but in my opinion such an inference would rest on
mere speculation. The informer did not disclose his source of information to Thorne. The statement that the
accused was in the tavern selling crack cocaine is a conclusory statement. […]
R v Gamracy 1974
Gamracy: S.29.2 – Duty to Disclose Warrant satisfied by Minimum of Telling Accused of its
Existence
Gamracy v. R. (1974), 22 C.R.N.S. 224, 12 C.C.C. (2d) 209 (S.C.C.) — Section 29(2) is to be read disjunctively. Where an
arrest is being made pursuant to a warrant, but without the arresting officer having possession of the warrant, the officer need
only inform the arrested person that the reason for the arrest is the existence of an outstanding warrant.
Part I, General
S. 29. (1) Duty of person arresting
29. (1) Duty of person arresting — It is the duty of everyone who executes a process or warrant to have it with
him, where it is feasible to do so, and to produce it when requested to do so.
(2) Notice — It is the duty of everyone who arrests a person, whether with or without a warrant, to give notice to that
person, where it is feasible to do so, of
(a) the process or warrant under which he makes the arrest; or
(b) the reason for the arrest.
(3) Failure to comply — Failure to comply with subsection (1) or (2) does not of itself deprive a person who
executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from
criminal responsibility.
Power Point:
R. v. Gamracy
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S.C.C. (1974) – [pp803-806] charge of assaulting officer in execution of duty; officer attempting to arrest accused,
aware that outstanding warrant for his arrest but unaware of nature of charges
S.29(1) Code imposes duty on person executing warrant to have it with him/her, produce it if feasible to do so
when requested; sub. (2) duty of person arresting whether with or without warrant to give notice to person where
feasible to do so of process or warrant under which making arrest, or reason for the arrest
Majority holds s.29(2) applicable section in case
Not part of officer’s duty to obtain warrant to show accused or ascertain its contents – duty fully discharged by
telling accused that outstanding warrant reason for arrest - this is sufficient for s.29(2) [p804]
Dissent – police officer does not give either notice of warrant or reason for arrest by simply informing person
whom he/she is arresting that there is some kind of warrant “out for him” – officer failed to carry out statutory duty
under s.29, not in course of duty when attempts to arrest accused [p806]
Majority: satisfied that indicating that a warrant existed was enough. Minority disagreed.
R v Smith 1990
R. v. Smith (1991), 63 C.C.C. (3d) 313 (S.C.C.); affirming (1990), 53 C.C.C. (3d) 97 (N.S. C.A.) — To establish a valid waiver
of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence, D generally
understood the sort of jeopardy he faced. When he made the decision to dispense with counsel, D need not have been aware
of the precise charge faced or all the factual details, but he must have had sufficient information to allow him to make an
informed and appropriate decision as to whether or not to speak to a lawyer.
Charter of Rights and Freedoms — Enforcement under Charter — Remedies — Exclusion of evidence — Statement of
accused in murder case not to be excluded under s. 24(2) where neither incriminating nor prejudicial — Statement
supporting defences of drunkenness and provocation and not presenting evidence not otherwise available — Breach being
neither wilful, deliberate or flagrant.
Facts:
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The accused was charged with first degree murder. The evidence indicated that, after several hours of drinking
with two friends and the victim at the victim's residence, a fight occurred and the accused was severely beaten.
The accused left but returned a few minutes later with a shotgun. The victim taunted him. The accused fired,
striking the victim in the face and chest. The accused left the scene immediately, returned directly to his home, and
substituted a rifle and ammunition for the shotgun. He then proceeded to his sister's house. The next morning he
called the police and surrendered. In the police vehicle, an officer advised him that he was under arrest “for a
shooting incident” at the victim's residence, told him that he had the right to retain and instruct counsel without
delay, and provided him with the standard police warning. The accused replied that he understood his rights. At
the police station, the officer gave the accused a second opportunity to exercise his rights. The accused declined
and made a statement in which he admitted the shooting but sought to explain it on the grounds of drunkenness
and provocation. During the interview, the police became aware that the accused did not know that the victim had
died. They did not inform the accused of this fact during the interrogation.
At trial, the statement was held to be admissible. The trial Judge rejected the claim that there should be exclusion
for non-compliance with ss. 10(a) and 10(b) of the Charter, given that the statements of the police on arrest were
generally true, and given that it was clear that the accused knew that he had been involved in a most serious crime.
The accused testified in support of defences of drunkenness and provocation. In charging the jury, the trial Judge
provided instruction with respect to the elements of first and second degree murder. Prior to defining murder, he also
instructed the jury on the matter of criminal negligence. On the question of provocation, he told them that if they
found that the accused had the capacity to form the requisite intent they could convict for murder, subject to their
consideration of the defence of provocation.
The accused was convicted of second degree murder and appealed. On appeal the Crown conceded that there had
been a violation of s. 10(a) by not telling the accused that the victim of the shooting had died, but the majority
held that there was no unfairness in the procedure followed by the police. The majority also concluded that s. 10(b)
had not been violated and that, in any event, s. 24(2) would justify reception of the statement. The majority also
concluded that reading the charge as a whole, the jury could not have been confused on the essential issues —
provocation and drunkenness. The appeal was dismissed and the accused appealed further.
Held: The appeal was dismissed.
The Crown conceded that the accused's s. 10(a) right, to be informed promptly of the reason for his arrest, was violated.
With respect to the accused's s. 10(b) right to counsel, in order for the accused to meaningfully exercise the right
to counsel, the accused must possess knowledge of the extent of his jeopardy and a warning can therefore be
tainted by lack of information. For waiver of the right to counsel to be valid and effective, it must be premised on a
true appreciation of the consequences of giving up the right. The question to be answered is whether the accused
possessed sufficient information to make his waiver of counsel valid. The accused need not be made aware of the
precise charge faced, or of all the factual details of the case. The emphasis should be on the reality of the total
situation as it impacts on the understanding of the accused. In this case it was reasonable to infer from the evidence
that the accused must have known, or at least have had a strong suspicion, that he had killed his victim. The
accused was aware that his situation was one of the most grave seriousness. The accused possessed sufficient
appreciation of the extent of his jeopardy to validly waive his right to counsel.
The accused's statement obtained in violation of s. 10(a) was properly admitted by the trial Judge. Three broad
categories of factors bearing on a s. 24(2) determination have been established: 1) the effect of admission on the
fairness of the trial; 2) the seriousness of the violation; and 3) the effect of exclusion on the repute of the
administration of justice. Self-incriminating statements obtained as a result of a Charter breach will usually be
excluded on the ground that their reception would render the trial unfair. In this case, the accused's statement was
neither incriminating nor prejudicial. Given the eye-witnesses to the shooting, there was no doubt about the identity
of the killer. The only issues at the trial related to the defences of drunkenness and provocation. The statement
supported the accused's position on these defences. Thus, it could not be said to have offended his right against selfincrimination. Also, while the statement itself might not have been made but for the breach, it did not present
evidence which was not otherwise available. The statement was not essential to substantiate the charge. There was
ample independent evidence confirming the shooting. In these circumstances, it could not be said that reception of the
statement, even if it had been incriminating, would have significantly prejudiced the accused. This undercut the
suggestion that the statement rendered the trial unfair to the accused. The second set of factors, relating to the
seriousness of the violation, were not compelling in this case. The breach of s. 10(a) of the Charter was neither wilful,
deliberate or flagrant. Finally, the repute of the administration of justice would not be served by excluding the
statement. Reception of the statement was not unfair or calculated to prejudice the accused and exclusion was not
required to ensure the integrity of the system.
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The trial Judge's reference to criminal negligence did not invalidate the charge. Read as a whole, the charge
properly and completely instructed the jury as to the necessary elements of murder.
Power Point:
R. v. Smith
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S.C.C. (1991) – [pp807-813] first of Charter of Rights cases in material under arrest heading
S.10(a) right on arrest or detention to be informed promptly of reasons therefor
S.10(b) right to retain and instruct counsel without delay and to be informed of that right
Accused arrested for shooting incident, told of right to counsel, aware other has been seriously injured but not that
he has died; police aware they are investigating murder but do not tell accused victim died – accused provides
statement to police
Accused’s understanding of his situation relevant to whether makes valid and informed waiver
Emphasis should be on reality of total situation as it impacts on understanding of accused – accused must be aware
of sufficient information to make informed and appropriate decision whether to speak to lawyer – accused need
not be aware of precise charge, all of factual details of case [para 30]
Accused knew he was in jeopardy for most serious offence – though Crown admits s.10(a) violated, evidence
admissible under s.24(2) Collins test
Smith: Valid 10b Waiver Requires Understanding of Jeopardy, Assessed on “all the
circumstances.”
R. v. Smith (1991), 63 C.C.C. (3d) 313 (S.C.C.); affirming (1990), 53 C.C.C. (3d) 97 (N.S. C.A.) — To establish a valid waiver
of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence, D generally
understood the sort of jeopardy he faced. When he made the decision to dispense with counsel, D need not have been aware
of the precise charge faced or all the factual details, but he must have had sufficient information to allow him to make an
informed and appropriate decision as to whether or not to speak to a lawyer.
R v Greffe is referred to at p809, para 20:
20 The first question is whether the failure of the police to tell the accused that his victim was dead means that
he was never properly advised of his right to counsel. There is no doubt that the accused was told that he had the
right to counsel. The argument is that this advice was tainted and rendered deficient by failure to specify that the
victim was dead. This argument is based on R. v. Greffe, [1990] 1 S.C.R. 755, 75 C.R. (3d) 257, 73 Alta. L.R. (2d)
97, [1990] 3 W.W.R. 577, 107 N.R. 1, 107 A.R. 1, 55 C.C.C. (3d) 161, 46 C.R.R. 1. In Greffe, the police told the
accused he was being arrested on outstanding traffic warrants when in fact he was suspected of importing
heroin. The Crown conceded violations of s. 10(a) and s. 10(b). Lamer J. (as he then was) referred to the conclusion of
the trial Judge that “[i]mproper advice can vitiate or infringe the Charter right to counsel.” Accepting for the
purposes of argument that this may be so, the question is whether the lack of information as to the circumstances
of the offence found in this case is such that the accused's s. 10(b) right to counsel was tainted.
Aaccused need not be aware of precise charge, all of factual details of case [para 30]:
30 In my opinion, the trial Judge on all the evidence was entitled to conclude that Smith had sufficient
awareness of the jeopardy in which he stood and that his waiver of the right to counsel should not be considered
invalid. The evidence of witnesses to the shooting established that Smith shot Goreham, and that Goreham
immediately fell backward in the doorway to the barn. The evidence also established that the shot was a powerful blast
from a powerful gun. It was reasonable to infer from this evidence that Smith must have known, or at least have had a
strong suspicion, that he had killed his victim. As Jones J.A. put it in the Court of Appeal: “[I]t is highly unlikely that
the appellant did not know that Goreham was dead” (p. 112 [C.C.C.]).
In ss. 10a and 10b cases – often the accused may not have been made fully aware. In Smith, it says not
every factor will be sufficient to create a violation – it is sufficient that the accused understood the
gravitas and the jeopardy he faced. Criteria for waiver: If the individual is arrested or detained, they
are entitled to charter warnings.
R v Storrey 1990
R. v. Storrey (1990), 75 C.R. (3d) 1, 53 C.C.C. (3d) 316 (S.C.C.) — An officer arresting without warrant must subjectively
have reasonable (and probable) grounds for the arrest. The grounds must also be objectively justifiable.
120
Arrest — Arrest without warrant — Reasonable and probable grounds — Arresting officer under s. 450(1), [now s. 495(1)], of
Criminal Code having to have such grounds subjectively as are objectively justifiable — Prima facie case for conviction not
being necessary — Lawful arrest not becoming unlawful because police continuing investigation after arrest.
Civil liberties — Arbitrary detention or imprisonment — 18 hour delay before charge after lawful arrest not being
unreasonable and contrary to s. 9 of Charter of Rights and Freedoms where line-up being fairest and sole practical means of
identification and line-up taking time to arrange owing to victims not being in jurisdiction.
Facts:
The victims, Americans driving back to the United States, were forced to stop by another vehicle as they
approached the border. The occupants of this vehicle then assaulted and wounded the victims. One of the injuries
was serious enough to require hospitalization. The victims gave the police a general description of their attackers
and of their vehicle. Two of the victims later, after reviewing many photographs, chose several pictures of men
who “looked like” one of the assailants. Both chose the photograph of one C. However, following an investigation
the police eliminated C. as a suspect. Further investigation revealed that the accused had been stopped on
numerous occasions while driving a similar vehicle, closely resembled C., and had a criminal record which
included crimes of violence.
The police concluded that they had reasonable and probable grounds for arresting the accused, issued a bulletin
for his arrest, and found him six days later and arrested him without warrant for aggravated assault. He was
detained overnight, and was formally charged 18 hours after the arrest. An officer later testified that the delay
resulted from the need to bring the victims to Canada for a line-up, which was the only method of identification
available. At the line-up, the victims identified the accused as their attacker. The police had earlier found the
ownership for a similar vehicle at the accused's residence.
At trial, the judge found that the officer had reasonable and probable grounds for the arrest but that the arrest
had been unlawful because it did not meet the criteria of s. 450(2) [now s. 495(2)] of the Criminal Code. As the
arrest had been arbitrary and in violation of s. 9 of the Canadian Charter of Rights and Freedoms, he stayed the
proceedings.
The Ontario Court of Appeal allowed the Crown's appeal and ordered a new trial. The accused appealed.
Held: Appeal dismissed.
The accused's arrest was lawful and proper. Section 450(1) [now s. 495(1)] was applicable, not s. 450(2). Under s.
450(1), an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest.
Those grounds must, in addition, be justifiable from an objective point of view. A reasonable person placed in the
position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.
The police need not demonstrate anything more than reasonable and probable grounds. They are not required to
establish a prima facie case for correction before making an arrest. Here, the trial judge had been correct in finding
that the officer had reasonable and probable grounds to make the arrest. There was nothing to indicate that there
was anything in the circumstances of the arrest which would make it suspect on any other ground, such as racism, bias
or personal enmity.
An arrest which is lawfully made does not become unlawful simply because the police intend to continue their
investigation after the arrest.
In the particular circumstances of the case, the 18-hour delay before the charge was laid was not unreasonable and
did not offend s. 454(1) [now s. 503(1)] of the Criminal Code, nor did it constitute arbitrary detention under s. 9 of
the Charter. The line-up was the fairest means and also the sole practical means of identification. The accused had
been arrested in the evening, and it was unlikely that the victims, who lived outside the jurisdiction, could be found and
brought to the line-up before the next morning. The accused had been brought before the justice immediately
following the line-up.
Part XVI – Compelling Appearance of an Accused Before a Justice and Interim Release
495. (1) Arrest without warrant by peace officer — A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has
committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in
any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the
person is found.
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(2) Limitation — A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on
summary conviction, or
(c) an offence punishable on summary conviction,
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances
including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail
to attend court in order to be dealt with according to law.
S. 503. (1) Taking before justice
503. (1) Taking before justice — A peace officer who arrests a person with or without warrant or to whom a
person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.5(3) of the
Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be
taken before a justice to be dealt with according to law:
(a) where a justice is available within a period of twenty-four hours after the person has been arrested by
or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and
in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by
or delivered to the peace officer, the person shall be taken before a justice as soon as possible,
unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person
before a justice,
(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether
unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him.
Storrey: Arrest Without Warrant requires R & P grounds, subjectively and objectively
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The police need not demonstrate anything more than reasonable and probable grounds. They are not required to
establish a prima facie case for correction before making an arrest. Here, the trial judge had been correct in finding
that the officer had reasonable and probable grounds to make the arrest. There was nothing to indicate that there
was anything in the circumstances of the arrest which would make it suspect on any other ground, such as racism, bias
or personal enmity.
Additional safeguard against arbitrary arrest – not sufficient for officer to personally believe reasonable grounds
to arrest; grounds must also be justifiable from objective view – but not required to demonstrate prima facie case
for conviction
Arrest lawfully made does not become unlawful simply because police intend to continue investigation after
arrest
Power Point:
R. v. Storrey
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S.C.C. (1990) – [pp815-825] issue in case is whether accused subjected to arbitrary detention (or imprisonment)
under s.9 Charter of Rights
Victim seriously assaulted by others in Windsor, police able to track down accused by make of car, issue arrest bulletin
for accused
Accused not located for another week, held for police line-up
S.450 arrest without warrant provisions applicable in case
S.450(1) makes it clear police required to have reasonable and probable grounds accused committed aggravated
assault before they could arrest him – in case of arrest without warrant, even more important for police to
demonstrate they have same reasonable and probable grounds upon which they base arrest [p819]
Additional safeguard against arbitrary arrest – not sufficient for officer to personally believe reasonable grounds
to arrest; grounds must also be justifiable from objective view – but not required to demonstrate prima facie case
for conviction
Arrest lawfully made does not become unlawful simply because police intend to continue investigation after
arrest
Holding accused for 18 hours to arrange line-up did not violate s.9 Charter – identification parade fairest and most
practical means of identification
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Delay did not violate either s.9 Charter or s.454 Code [now s.503] – taking accused before justice within 24 hours of
arrest [p820]
Part XVI – Compelling Appearance of an Accused Before a Justice and Interim Release
503. (1) Taking before justice — A peace officer who arrests a person with or without warrant or to whom a
person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.5(3) of the
Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be
taken before a justice to be dealt with according to law:
(a) where a justice is available within a period of twenty-four hours after the person has been arrested by
or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in
any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by
or delivered to the peace officer, the person shall be taken before a justice as soon as possible,
unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a
justice,
(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody,
whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so
releases him.
R v Feeney 1997
Arrests [See also ss. 529.1-529.5]
R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129 — The common law rule that a warrantless arrest after forced entry
into private premises is legal if
i.
the officer has reasonable grounds to believe that the person sought is in the premises;
ii.
proper announcement is made;
iii.
the officer believes reasonable grounds for the arrest exist; and
iv.
there are reasonable and probable grounds for the arrest,
Offends Charter s. 8.
In general, warrantless arrests in dwelling-houses are prohibited because the privacy interest of the occupant in the
dwelling-house outweighs the interests of the police. Prior to a warrantless arrest in a dwelling-house, police must obtain a
warrant to enter the dwelling-house for the purpose of arrest. The warrant may only be issued if there are reasonable grounds
i.
for arrest; and,
ii.
for the belief that the person sought will be found in the named premises.
Proper announcement must also be made. In cases of hot pursuit, however, police may enter a dwelling-house to make a
warrantless arrest.
Arrest ––– Powers and duty of police officer ––– Entry by police officers into trailer and arrest of murder suspect being
illegal where no subjective belief in reasonable grounds to arrest prior to forcible entry.
Charter of Rights and Freedoms ––– Enforcement — Remedies — Exclusion of evidence ––– Evidence of statements,
fingerprints, shirt, shoes and money obtained in violation of ss. 8 and 10(b) in murder case to be excluded — Some evidence
affecting trial fairness as conscripted and not discoverable without breaching Charter — Non-conscripted evidence being
obtained by serious Charter breaches — Police acting in bad faith and no exigent circumstances — Admission would bring
greater harm to repute of administration of justice than exclusion.
Facts:
An 85-year-old man was murdered in his home in a small isolated community. He had been struck on the head
numerous times with a metallic instrument, and blood was spattered on the walls and furniture of his home. A
particular brand of cigarettes was noted at the scene of the crime. The following day, his pickup truck was found in a
nearby ditch. Several witnesses gave statements to the police, placing the accused walking near the scene of a motor
vehicle accident a few hours earlier involving the deceased's truck. One of the witnesses told the police he assumed it
must be the deceased's truck the accused had been driving since the deceased was known to be a slow and cautious
driver. The police attended at the accused's trailer, knocked at the door and said “police”. When there was no
response, a police officer, without a warrant, entered the trailer, observed the accused asleep on his bed, shook his
leg told him to get up and that he wanted to speak to him. The officer observed blood on the accused's T-shirt. The
accused was arrested without a warrant, and the shirt was seized in evidence. The officer later admitted he did not
immediately intend to arrest the accused but wanted to “check it out”. Immediately prior to his arrest, the accused
was given a caution in his trailer. Immediately afterwards, the accused was asked about the blood on his shirt and he
123
replied that he had been hit in the face with a baseball the previous evening. He also stated that the shoes he was
wearing were the only pair he owned. The accused was taken to police headquarters, where he was questioned further
about the cigarettes. He was fingerprinted and questioned further, admitting to having hit the deceased and stealing
cigarettes, beer and cash from the deceased's home. As a result of the evidence initially seized and the accused's
further statements at the police station, the police obtained a warrant to search the accused's trailer. Following a
search, they found cigarettes bearing the same brand name as those found in the deceased's home, hidden the accused's
shoes and the stolen cash underneath the accused's mattress. The fingerprint evidence linked the accused to the scene of
the crime.
Prior to his arrest, the accused was advised that he had the right to consult with a lawyer, that legal aid was
available to him and that he would, on request, be given a phone number to call a legal aid duty counsel if he
wished. He was also given a caution that he was not obliged to say anything but that if he did so, anything he said
could be used in evidence. He was asked if he understood this several times and finally acknowledged that he did.
He was not given any opportunity to call a lawyer until much later, when he had been taken to the local police
headquarters, questioned further and fingerprinted. The accused was kept in an observation cell at the police station
for over eight hours without successfully having contacted a lawyer.
The accused charged and was convicted, following a jury trial, of second degree murder. The accused's appeal was
dismissed on the basis that his rights under s. 8 and s. 10(b) of the Canadian Charter of Rights and Freedoms
had not been breached, but that even if they had, the admission of the evidence obtained as a result of the
breaches was permissible under s. 24(2) of the Charter. The accused appealed further, arguing that the breach of
his Charter rights rendered the evidence illegal and that it should be excluded under s. 24(2) of the Charter.
The trial judge found that there were exigent circumstances, including the urgent need to preserve evidence, which
justified the admission of the evidence even if the accused's rights had been breached. He did not deal with the police
officer's admission that he did not have reasonable grounds to enter the accused's trailer as he did and gave no
reasons for his not doing so.
Held: The appeal was allowed. The conviction was set aside and a new trial was ordered.
Per Sopinka J. (La Forest, Cory, Iacobucci and Major JJ. concurring):
The police officer did not have any subjectively held reasonable or probable grounds to make a warrantless
arrest as required by s. 495(1)(a) of the Criminal Code. Moreover, since the advent of the Charter, a greater
emphasis had been place on privacy interests of individual over the police's interests in the protection of society.
Section 8 of the Charter prevents all unreasonable searches and seizures. An arrest in a private dwelling must
therefore, generally be authorized by a warrant. Warrantless arrests in private dwellings were permissible in cases
of hot pursuit. There was no hot pursuit here. The police had identified themselves by use of the word “police” but
were not denied admission and did not announce their purpose before entering the trailer. The trailer constituted a
dwelling. There were no objective grounds for the arrest. The initial evidence obtained by the police from the
witnesses may have pointed to the accused as a suspect, but it did not raise reasonable and probable grounds to
believe that he had murdered the deceased and did not, therefore, justify an arrest. Given the police had not obtained
a warrant, the arrest was not legal.
In arriving at his conclusion that objective grounds for arrest existed, the trial judge committed two errors in
principle which justified intervention and review by an appellate court. He considered the need to preserve evidence.
This was clearly an error of law; the question of the need to preserve evidence is logically irrelevant to the question
of whether reasonable or probable grounds for an arrest exist. The judge failed to consider the officer's own
admission that he had no reasonable or probable grounds to arrest the accused and to explain why the officer was
incorrect in his conclusion that grounds to arrest did not exist prior to entry into the trailer.
There is a presumption that a warrantless search of premises, where the occupant has a reasonable expectation of
privacy, is unreasonable and that the onus is on the party performing the search to prove the search was
reasonable. The initial search of the accused's trailer was warrantless and not incidental to a lawful arrest.
Consequently, the entry into the trailer and the search and seizure of the shirt violated the accused's s. 8 Charter
rights.
The accused was clearly being detained at the moment the police officer touched him and told him to rise. The
officer was obliged, at that point, to inform the accused of his right to counsel and to give the accused an opportunity to
avail himself of that right before initiating any further questioning of the accused. The officer failed to follow this
practice and violated the accused's s. 10(b) Charter rights. Moreover, the caution eventually given to the accused
did not satisfy the informational requirements of s. 10(b). The statements given by the accused in the trailer were
thus obtained in violation of the accused's rights.
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The police obtained a warrant to search the trailer after the initial search and during the detention of the accused. The
police cannot constitutionally rely upon a search warrant issued on the basis of information obtained as the
result of prior Charter violations. The police were able to obtain the warrant on the basis of the accused's statements
as to the whereabouts of the cash and cigarettes and on his initial statements about his shoes. The police knew of these
items as a result of violations of the accused's s. 8 and 10(b) Charter rights and would not have had grounds to obtain
a warrant without these violations. Thus, the search and seizures made pursuant to the warrant violated s. 8. The
fingerprint evidence was also obtained as a result of the violation of the accused's s. 8 Charter rights since he was
compelled to give this evidence. Moreover, procedures incidental to an unlawful arrest which impinge on the
accused's reasonable expectation of privacy will generally constitute a breach of s. 8.
The evidence of the shirt was non-conscriptive and its admission did not go to the fairness of the trial. The
statements made by the accused in the trailer were clearly conscriptive because they had been obtained in violation
of the accused's s. 10(b) Charter rights. The accused had thus been compelled to provide incriminating statements
against himself. The Crown had not proven that the statements would have been made even absent a violation of the
accused's rights. The fingerprint evidence was obtained in clear violation and was conscriptive. This evidence
affected the fairness of the trial and was clearly inadmissible under s. 24(2) of the Charter. The remaining evidence of
the shoes, cash and cigarettes was non-conscriptive and their admission would not affect trial fairness, however, as
the evidence had been obtained as a result of the violation of the accused's rights, the second branch of the s. 24(2) test
had to be considered. The violation was serious since the police had acted in bad faith in undertaking them. They
had no subjective grounds to arrest the accused. They flagrantly disregarded the accused's privacy rights and
showed little regard for his rights to counsel. The serious nature of the violations tended to show that the admission
of the illegally obtained evidence would bring the administration of justice into disrepute. The shirt, statements,
shoes, cigarettes, cash and fingerprints should not have been admitted pursuant to s. 24(2).
Power Point:
R. v. Feeney
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SCC (1997) – [pp827-843] police act on tip in murder case, enter accused’s dwelling house, find him wearing bloody
shirt, arrest him and seize evidence
Supreme Court finds police violate accused’s ss.8 (search) and 10(b) (right to counsel) Charter rights, evidence
should be excluded under s.24(2) due to trial fairness concerns, applying Collins
Court notes Landry decided 1986, arose before Charter in effect; Landry test for warrantless arrests no longer
applies, overly expansive in Charter era [para 38]
If Landry adopted post-Charter, anomalous result that prior judicial authorization required for intrusion to search, but
not for intrusion to arrest
In case of hot pursuit, society’s interest in law enforcement takes priority over privacy interest, police may enter
dwelling to make arrest without warrant; additional burden to obtain warrant before entry of dwelling to arrest
worth additional protection to privacy interest in dwelling houses
Privacy rights under Charter demand police in general obtain prior judicial authorization of entry into dwelling
house to arrest person [para 51]
Protection of privacy does not end with warrant – other requirements in Landry must be met, eg., proper
announcement
S.8 violation in case as police enter dwelling without warrant, seize clothing
S.24(2) Collins test applied, even non-conscriptive items excluded due to seriousness of violation [para 61]
Code amended after case, s.529 enacted, powers to enter dwelling houses to carry out arrest – procedure to obtain
prior judicial authorization
Feeney: In general, warrantless arrests in dwelling-houses are prohibited, + Landry Factors
Offends Charter s. 8.
In general, warrantless arrests in dwelling-houses are prohibited because the privacy interest of the occupant in the
dwelling-house outweighs the interests of the police. Prior to a warrantless arrest in a dwelling-house, police must obtain a
warrant to enter the dwelling-house for the purpose of arrest. The warrant may only be issued if there are reasonable grounds
i.
for arrest; and,
ii.
for the belief that the person sought will be found in the named premises.
Proper announcement must also be made. In cases of hot pursuit, however, police may enter a dwelling-house to make a
warrantless arrest.
Landry is not over ruled – it continues in terms of common law requirements – but now under the
Charter – para 51 [166] – there now must be a warrant (not in hot pursuit) – societal interest takes
priority – warrant justified as an additional protection of privacy.
125
Arrests [See also ss. 529.1-529.5] (from Landry)
R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129 — The common law rule that a warrantless arrest after forced entry
into private premises is legal if
i.
the officer has reasonable grounds to believe that the person sought is in the premises;
ii.
proper announcement is made;
iii.
the officer believes reasonable grounds for the arrest exist; and
iv.
there are reasonable and probable grounds for the arrest,
166 To summarize, in general, the following requirements must be met before an arrest for an indictable
offence in a private dwelling is legal: 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; and proper announcement must
be made before entering. An exception to this rule occurs where there is a case of hot pursuit. Whether or not there
is an exception for exigent circumstances generally has not been fully addressed by this Court, nor does it need to
be decided in the present case given my view that exigent circumstances did not exist when the arrest was made. I will
elaborate on this last point presently.
Parliament’s Response: in response to Feeney enacted s.529 of the code:
Part XVI – Compelling Appearance of an Accused Before a Justice and Interim Release
Powers to Enter Dwelling-houses to Carry out Arrests [Heading added 1997, c. 39, s. 2.]
S. 529. (1) Including authorization to enter in warrant of arrest
529. (1) Including authorization to enter in warrant of arrest — A warrant to arrest or apprehend a person issued
by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2),
to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if the judge
or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the
person is or will be present in the dwelling-house.
(2) Execution — An authorization to enter a dwelling-house granted under subsection (1) is subject to the condition
that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering
the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the
dwelling-house.
1997, c. 39, s. 2
529.1 Warrant to enter dwelling-house — A judge or justice may issue a warrant in Form 7.1 authorizing a peace
officer to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending a person
identified or identifiable by the warrant if the judge or justice is satisfied by information on oath that there are
reasonable grounds to believe that the person is or will be present in the dwelling-house and that
(a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in
force anywhere in Canada;
(b) grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b) or section
672.91; or
(c) grounds exist to arrest or apprehend without warrant the person under an Act of Parliament, other
than this Act.
1997, c. 39, s. 2; 2002, c. 13, s. 23
529.2 Reasonable terms and conditions — Subject to section 529.4, the judge or justice shall include in a warrant
referred to in section 529 or 529.1 any terms and conditions that the judge or justice considers advisable to ensure
that the entry into the dwelling-house is reasonable in the circumstances.
1997, c. 39, s. 2
529.3 (1) Authority to enter dwelling without warrant — Without limiting or restricting any power a peace officer
may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house
for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1
authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the
dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent
circumstances it would be impracticable to obtain a warrant.
(2) Exigent circumstances — For the purposes of subsection (1), exigent circumstances include circumstances in
which the peace officer
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(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent
imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is
present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the
imminent loss or imminent destruction of evidence.
Arrest and Detention; Detention
R v Therens 1985
R. v. Therens (1985), 45 C.R. (3d) 97, 18 C.C.C. (3d) 481 (S.C.C.) — When a police officer gives a breathalyzer demand, D is
“detained” within the meaning of Charter s. l0 and therefore entitled to retain and instruct counsel without delay and to be
advised of that right prior to complying with the demand.
Facts: After the accused was involved in a single-vehicle accident, a police officer made a demand pursuant to s.
235(1) of the Criminal Code that the accused accompany the officer for a breathalyzer test. The accused was not
informed of his right to retain and instruct counsel. He was co-operative throughout the investigation, supplying
samples of his breath in compliance with the demand, and was never placed under arrest. The accused was charged
with driving a motor vehicle while having an excessive blood alcohol level. At trial the breathalyzer evidence was
excluded pursuant to s. 24 of the Canadian Charter of Rights and Freedoms on the grounds that the accused's rights
upon arrest or detention in s. 10 had been violated. The accused was acquitted and an appeal by way of stated case
was dismissed. The Crown was granted leave to appeal to the Supreme Court of Canada.
Held: Appeal dismissed.
Per Estey J. (Beetz, Chouinard and Wilson JJ. concurring):
When the police officer administered the breathalyzer test under s. 235 of the Criminal Code the accused was
“detained” within the meaning of s. 10 of the Charter of Rights and Freedoms. Section 235 anticipates a delay in
some circumstances for the administration of the test by providing that a peace officer may require a person to
provide breath samples upon demand or “as soon thereafter as practicable”. This contrasts with s. 234.1(1),
which requires that a person provide a breath sample forthwith after a demand is made for a roadside screening
test. As such the accused's rights under s. 10(b) of the Charter to retain and instruct counsel without delay and to be
informed of that right were violated. The provisions of s. 235 could not constitute a cause for failure to assure those
rights. Further, the limit on the accused's right to counsel was imposed by the conduct of the police officers, not by
Parliament, so s. 1 of the Charter did not come into play.
The question of the admissibility of the breathalyzer evidence fell to be determined under s. 24(2) of the Charter,
which empowers a court to exclude evidence where “that evidence was obtained in a manner that infringed or denied
any rights or freedoms guaranteed by the Charter”. Here, the police flagrantly violated a Charter right without
statutory authority for doing so and such an overt violation had to result in the rejection of the evidence thereby
obtained. If s. 10(b) could be offended without statutory authority for the police conduct here in question and without
loss of admissibility of evidence obtained by such a breach, it would be stripped of any meaning. The evidence was
therefore excluded since to admit it would clearly “bring the administration of justice into disrepute”.
Note re 10(b) – Current interpretation (Message to self)
[R. v. Thomsen (1988), 63 C.R. (3d) 1, 40 C.C.C. (3d) 411 (S.C.C.) — The limitation on the right to retain and instruct
counsel at the roadside testing stage is a reasonable one, demonstrably justified in a free and democratic society, having
regard to the fact that the right to counsel is available at the more serious breathalyzer stage.
R. v. Devries (2009), 244 C.C.C. (3d) 354 (Ont. C.A.) — Where a roadside detainee wishes to speak to a lawyer without delay
after Charter advice, the police must afford the detainee an opportunity to do so. According to the circumstances that then
exist, consultation with a lawyer “without delay” may require a telephone call
i.
at the roadside;
ii.
at the police station where sobriety tests will be conducted; or
iii.
in exceptional circumstances, some place else.
Issues about where and when consultation occurs fall within the implementation component of s. 10(b).
Inclusion of the word “now” in s. 10(b) Charter advice given at the roadside does not imply that the detainee can speak with a
lawyer as soon as the advice has been given.]
Power Point:
Therens: reverses Chromiak (Pre Charter)
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•
•
•
•
•
•
SCC (1985) – [pp847-855] early Charter case on meaning of “detention” under s.10(b); accused involved in accident,
provides breath samples without being informed of right to retain counsel, at no time arrested but accompanies
police to provide sample
Chromiak, Bill of Rights case, court holds person who complies with breath demand not detained – person not
detained by due process of law
Therens – person in such circumstances is detained in law, has right to counsel
Fact that breath test administered in back of police car or at station not significant factor in determining
whether person detained [p851]
Charter refers to great variety of detentions of varying duration, in many of which not possible to use habeas
corpus because detention will have ceased
Purpose of s.10 Charter is to ensure person made aware of right to counsel, permitted to retain counsel without
delay
Therens: When “Detained” there is a 10b Right to Counsel
R. v. Therens (1985), 45 C.R. (3d) 97, 18 C.C.C. (3d) 481 (S.C.C.) — When a police officer gives a breathalyzer demand, D is
“detained” within the meaning of Charter s. l0 and therefore entitled to retain and instruct counsel without delay and to be
advised of that right prior to complying with the demand.

SCC (1985) – [pp847-855] early Charter case on meaning of “detention” under s.10(b); accused involved in accident,
•
Detention directed to restraint of liberty other than arrest - detention where officer assumes control over
movement of person by demand or direction where person may reasonably require assistance of counsel but might
be prevented or impeded from doing so but for constitutional guarantee
•
Not realistic to regard compliance with demand or direction by officer as truly voluntary – element of
psychological compulsion in form of reasonable perception of suspension of freedom of choice enough to make
restraint of liberty involuntary [p855]
P.854, 855 – 3rd para – “… may reasonably regard herself… free to not comply.”
54 In Chromiak this court held that detention connotes “some form of compulsory constraint” [p. 478]. There can be
no doubt that there must be some form of compulsion or coercion to constitute an interference with liberty or freedom
of action that amounts to a detention within the meaning of s. 10 of the Charter. The issue, as I see it, is whether that
compulsion need be of a physical character, or whether it may also be a compulsion of a psychological or mental
nature which inhibits the will as effectively as the application, or threat of application, of physical force. The issue is
whether a person who is the subject of a demand or direction by a police officer or other agent of the state may
reasonably regard himself or herself as free to refuse to comply.
2nd last para: “Although not…” Even when no liability exists – most people don’t know that; they may
still feel detained.
57 Although it is not strictly necessary for purposes of this case, I would go further. In my opinion, it is not
realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly
voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a
lack of statutory or common law authority for the demand or direction and therefore an absence of criminal
liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather
than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err
on the side of caution, assume lawful authority and comply with the demand. The element of psychological
compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the
restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical
restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the
choice to do otherwise does not exist.
58 For these reasons I am of the opinion that the s. 235(1) demand to accompany the police officer to a police
station and to submit to a breathalyzer test resulted in the detention of the respondent within the meaning of s. 10
of the Charter.
Wide Expansion of “Detention” - A much wider and expansive definition of detention – psychological
detention – early charter case. Therens is often referred to – like in Grant. Suberu also refers to Therens.
NB: The SCC did not distinguish between back of the car or police station.
128
R v Bazinet 1986
Civil liberties — Right to counsel — Accused not being "detained" under s. 10(b) of Charter of Rights and Freedoms where
accompanying police officers to police station and being questioned for two hours — Detention requiring police demand
rather than request. Defences — Intoxication — Defence properly withdrawn in murder case where accused consumed 12
beers over eight-hour period.
Facts:
Police officers investigating a stabbing death ascertained that the accused, the victim's boyfriend, had gone to see her
the night of the killing. The next afternoon the police went to the accused's house and informed him that they were
investigating a homicide that had occurred the night before and that they would like to ask him some questions. The
accused agreed to go with the officers. He was not placed under arrest at this point. The officers testified that they
did not have reasonable and probable grounds for doing so and that, if the accused had refused to go with them,
they would have left without him. At the beginning of the questioning at the police station the police noticed that
there appeared to be blood-stains on the accused's clothing. They asked him whether they could send his clothing
away for examination if necessary, and he agreed. Two hours later the accused confessed that he "did the
homicide", at which time he was informed that he was being arrested for first degree murder and was read his
right to retain and instruct counsel without delay under s. 10(b) of the Canadian Charter of Rights and
Freedoms. He was also advised that he was not obliged to say anything. A lawyer was contacted at the accused's
request, but the police continued their questioning before the lawyer arrived. After he had seen his lawyer and as he
was being served dinner, the accused also made an inculpatory verbal statement to a police officer. The accused
was tried on a charge of first degree murder and was found guilty of second degree murder. He appealed on the
basis that the trial judge had erred in admitting all his statements up until the point that he was advised that he was
under arrest, in admitting the subsequent statement made at dinner, and also in withdrawing the defence of
drunkenness from the jury.
Held: Appeal dismissed.
For psychological coercion to amount to "detention" within the meaning of s. 10(b) of the Charter of Rights and
Freedoms there must be a demand or direction in response to which the person concerned submits to or
acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. For
there to be a "demand" or "direction" there must be more than a "request", something in the nature of an
authoritative command. Here, there was no such demand or direction, nor even a request that the accused accompany
the officers to the police station. There was also no evidence to indicate that the accused actually felt that he was
being deprived of his liberty and had no choice but to submit, nor any evidence to induce the appeal court to decide
that such a conclusion was reasonable. The fact that the questioning took place in a police station was in the
circumstances not enough to make it a detention, nor was the fact of his being asked whether his clothes could be
examined. The statement given over dinner was not in violation of s. 10(b), because by then the accused had
already consulted with counsel and had even been examined by a doctor.
The trial judge had not erred in withdrawing the defence of drunkenness from the jury. The total amount of 12 bottles
of beer consumed had to be considered in relation to the time period of about eight hours. Furthermore, no
witness had observed that the accused exhibited any degree of drunkeness. Defence counsel had not objected to this
direction at trial.
Annotation
The only attempt to define "detention" for the purposes of s. 10(b) of the Canadian Charter of Rights and Freedoms,
in R. v. Therens, [1985] 1 S.C.R. 613, 45 C.R. (3d) 97, [1985] 4 W.W.R. 286, 32 M.V.R. 153, 18 C.C.C. (3d) 481, 18
D.L.R. (4th) 655, 13 C.R.R. 193, 40 Sask. R. 122, 29 N.R. 122, was by Le Dain J. (Dickson C.J.C. and McIntyre and
Lamer JJ. concurring on this aspect). According to Le Dain J., there would be detention: (1) in a case of "deprivation
of liberty by physical constraint" (p. 124 (C.R.)); or (2) where there would be "criminal liability for failure to
comply with a demand or direction of a police officer" (p. 125); or (3) where there was "psychological compulsion in
the form of a reasonable perception of suspension of freedom of choice" (pp. 125-26). This third and widest meaning
of "detention" was expressly obiter and justified on the basis that it is not generally realistic to regard compliance
with a demand or direction by a police officer as truly voluntary.
In view of this approach to detention, one would have thought that the courts would now determine that a suspect
subject to police questioning would usually be detained, so as to entitle him to the right to counsel. However, in R. v.
Esposito (1985), 53 O.R. (2d) 356, 49 C.R. (3d) 193, 24 C.C.C. (3d) 88, 12 O.A.C. 350, leave to appeal to S.C.C.
refused 53 O.R. (2d) 356n, 50 C.R. (3d) xxv, 24 C.C.C. (3d) 88n, 65 N.R. 244, the court held that a subject being
questioned by the police at home concerning a fraud case was not detained, since the police questions did not
contain intimidating or inducing overtones and there was no evidence that the accused believed that his freedom
was being restrained or that he was required to comply. Martin J.A. for the court was expressly concerned that the
Le Dain J. approach might lead to the result that whenever police question the subject he is detained and therefore the
129
officer would be obligated to advise as to s. 10(b) rights. The court finds its limit in jurisprudence of the United
States Supreme Court that their Miranda warning (Miranda v. Ariz.; Vignera v. N.Y.; Westover v. U.S., 384 U.S.
436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974 (1966) rehearing denied (sub nom. Calif. v. Stewart) 385 U.S.
890, 17 L. Ed. 2d 121, 87 S. Ct. 11) of the right to remain silent is not required for every type of police questioning
and only applies in a coercive environment.
Another panel of the Ontario Court of Appeal in Bazinet applies and extends Esposito in a case of questioning at
a police station. There is a similar ruling by the Manitoba Court of Appeal in R. v. Smith (1986), 49 C.R. (3d) 210, 38
Man. R. (2d) 184.
This commentator has earlier submitted (see the annotation to Esposito at p. 194) that such an approach is
insufficiently demanding in respect of voluntariness, which lies at the root of the Le Dain J. approach. Bazinet
might well be the most pointed indication to date as to how diluted the right to remain silent and the right to be
informed of the right to counsel under s. 10(b) could become. The court seems curiously impervious to the
coercive realities behind a "request" by a police officer to answer questions when it is clear to the person questioned
that he is a suspect. In defining "detention", and thereby the scope of the right to counsel, the courts have important
choices, in which they should seek a careful balance between the interests of law enforcement and civil liberties:
see, recently, G.S. Garneau, "The Application of Charter Rights to the Interrogation Process" (1986), 35 Univ. of N.B.
L.J. 35. Civil liberties received scant attention in Esposito, Smith and Bazinet.
Don Stuart
From R v Elshaw 1991:
83 In R. v. Bazinet (1986), 54 O.R. (2d) 129, 14 O.A.C. 15, 51 C.R. (3d) 139, 25 C.C.C. (3d) 273 (C.A.), the
accused had voluntarily agreed to accompany the police to the station where questioning in conjunction with a
homicide began. The appellant subsequently confessed to the crime. Tarnopolsky J.A. examines the holding in
Therens as well as Martin J.A.'s judgment in Esposito. He underscores in particular, at p. 283, the limitations which
Le Dain J. attached to his conception of psychological compulsion:
In this vein it is important to note that Le Dain J.'s extension of “detention” to instances of “psychological”
restraint or compulsion is predicated on two requirements: (1) a “demand or direction”, in response to
which (2) “the person concerned submits or acquiesces in the deprivation of liberty and reasonably
believes that the choice to do otherwise does not exist”.
85. […] Bazinet, Martin J.A., at pp. 258–59, purports to lay down a non-exhaustive list of criteria to assist in the
determination of whether or not someone had been detained within the meaning in s. 10(b) of the Charter:
i) What type of language was used by the police officer — was the person given a choice to speak or
not to speak?
ii) Did the person accompany the officer on their own volition or were they escorted?;
iii) Did the person leave after the interview or was he or she arrested?
iv) At what point in the investigation did the interview take place?
v) Were there reasonable and probable grounds for believing that the person was, in fact, the guilty
party?
vi) What was the nature of the questions asked? Were they of a general nature or did they confront the
accused with evidence pointing towards his or her guilt?
vii) What was the subjective belief of the person? Did they think that they were being detained?
These criteria are then applied by Martin J.A. to the facts at hand and result in the conclusion that neither
interview could be considered a “detention.”
Power Point:
Bazinet
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Ont.C.A. (1986) – [pp857-866] accused questioned at police station during murder investigation; police attend at
accused home, ask to speak to him, he agrees to accompany them
At station accused provides statement, then admits to murder, charged and cautioned at this point
Issue is whether accused is detained, such that s.10(b) rights apply
Police station more coercive atmosphere than home, but emphasis on coercion, demand or direction, and
acquiescence of suspect based on actual and reasonable belief that his/her freedom restrained [p863]
Bazinet – Detention – Therens, then whether demand/direction results in liberty debrivation
•
Detention based on psychological restraint predicated on (1) demand or direction in response to which (2) person
submits or acquiesces in deprivation of liberty and reasonably believes choice to do otherwise does not exist
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•
•
•
No demand or direction – in fact not even request accused accompany officers to police station – no
demand/direction resulting in deprivation of liberty
Accused must still show fulfillment of second part of test –submission to deprivation of liberty, reasonable belief
no choice to do otherwise – no such evidence here, fact that questioning in police station not enough [p864]
Accused not detained within meaning of s.10(b)
P.861, under heading of 10b – referes to Therens.
21 As counsel for the appellant submits, the whole issue here is dependent upon the definition of the term
"detained" in s. 10(b) of the Charter. As he submits further, the facts do not meet the requirements for a
"detention" under common law. The only question is whether the decision of the Supreme Court of Canada in R.
v. Therens, [1985] 1 S.C.R. 613, 45 C.R. (3d) 97, [1985] 4 W.W.R. 286, 32 M.V.R. 153, 18 C.C.C. (3d) 481, 18
D.L.R.l (4th) 655, 13 C.R.R. 193, 40 Sask. R. 122, 59 N.R. 122, released since the trial of the case at bar, sets forth a
new view of what amounts to "detention" for the purposes of s. 10(b) of the Charter.
P.863 – the crowns argument – volunteered, no coercion
34 The important factors, suggests Crown counsel, were that there was: no physical restraint; no basis to compel
his attendance, as in Therens, supra; no "demand or direction"; and no evidence that he "submitted or
acquiesced" because he "reasonably believed" he had no choice: he had volunteered to come even without an
invitation to do so by the police.
Bottom of 864: “Although the fact…” – in a police station, not enough to create detention – no demand
or direction, no deprivation of liberty or movement, or need to submit…
Although the fact that the questioning in this case took place in a police station could be a factor to consider
on the issue of whether there has been a detention, in the circumstances it is not enough. Nor, for that matter,
was the fact of asking whether the appellant's clothes could be examined because of what appeared to be blood
on them. There was no evidence that this was done as a "demand or direction", nor that it was being used as
a means of depriving Bazinet of his liberty of movement, nor that there was any reasonable belief on his part
that he had to submit to such examination. There is no similarity with the situation in R. v. Rodenbush, 27th
June 1985, summarized at 14 W.C.B. 327 [now reported 47 C.R. (3d) 10, 21 C.C.C. (3d) 423, 16 C.R.R. 91],
where the British Columbia Court of Appeal held that the accused were "detained" within the Therens, supra, test
when they were taken to the customs inspection room while their suitcases were being examined in another
inspection room. For one thing, it was clear that by law the Rodenbushes were required to submit their
belongings to inspection upon entering Canada. Moreover, they were questioned and gave damaging statements
after the customs officials had discovered cocaine in the suitcases and knew that they were going to arrest the
Rodenbushes.
Detention Test: So, always go to the definition of detention from Therens above (1) and (2)
R v Moran 1987
R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.) — Where the justice of the peace did not make a judicial determination
that there were reasonable grounds to believe that evidence of an offence would be found at the premises to be searched,
the warrant was invalid. Criminal Law ––– Constitutional issues in criminal law — Charter of Rights and Freedoms —
Rights and freedoms — Right to counsel — Right to be informed of right to retain and instruct counsel ––– Canadian
Charter of Rights and Freedoms, s. 10(b).
Facts:
Accused convicted of second degree murder -- Police interviewing accused on two occasions prior to arrest -- Trial
Judge ruling accused not detained within meaning of s. 10(b) of Charter when interviewed -- Accused's appeal
dismissed -- Questioning at first interview part of general investigation -- Similar questions put to others -- Possibility
that accused being suspect at second interview not determinative -- Questions at second interview more pressing
but not accusatory -- Evidence not supporting finding of detention.
Power Point:
R. v. Moran
•
Ont.C.A. (1987) – [pp867-870] accused interviewed twice at police station, no detention
131
•
•
•
Application or threat of application of physical restraint unnecessary to constitute detention – compliance with
demand or direction of police officer by person who reasonably believes no choice to do otherwise constitutes
detention
Not every request by police to person to come to station for interview in context of investigation constitutes
detention – officer entitled to question any person but no power to compel person to answer or detain for questioning
Court sets out seven factors that are relevant in considering whether person who is later accused detained at police
station: [pp869-870]
Review of Detention Test
P.869-70 – the precise language etc…
82 I venture to suggest that in determining whether a person who subsequently is an accused was detained at the
time he or she was questioned at a police station by the police, the following factors are relevant. I do not mean to
imply, however, that they are an exhaustive list of the relevant factors nor that any one factor or combination of factors
or their absence is necessarily determinative in a particular case. These factors are as follows:
Moran: 7 Factors Relevant to Determining Detention
•
•
•
•
•
•
•
1. Precise language used by officer in questioning, whether accused given choice that interview be conducted at
station rather than his/her home
2. Accused escorted by police to station or came in response to request
3. Accused leaves at end of interview or is arrested
4. Stage of investigation – questioning part of general investigation or to obtain incriminating statement as person
viewed as involved in crime
5. Police have reasonable and probable grounds to believe accused committed crime being investigated
6. Nature of questions – of general nature to obtain information or accused confronted with evidence pointing to
his/her guilt
7. Subjective belief by accused that detained relevant but not determinative – issue is whether he/she reasonably
believed detained; personal factors relevant, eg., youth, low intelligence
The court may conclude that in fact it was not a detention based on above criteria. Overview: these first 3
cases – arrest is usually easy to determine, or physical restraint also. The psychological detention
cases are the most difficult.
R v Duguay 1985
Criminal Law --- Constitutional issues in criminal law — Charter of Rights and Freedoms — Rights and freedoms — Arbitrary
detention or imprisonment — Charter remedies — Exclusion of evidence. Defences — Arrest for purposes of conducting
investigation being unlawful and contrary to s. 9. — Exclusion of evidence — Evidence obtained from unlawful arrest to
be excluded under s. 24(2), since, in opinion of average citizen, admission of evidence would bring administration of
justice into disrepute.
The Facts:
Experienced police officers arrested the three accused on suspicion that they were involved in a residential burglary.
The police were acting on the following information: (1) the accused were the three youths who had been seen in a
neighbouring yard on the night of the burglary; and (2) one of them had asked the owners whether it was their custom
to put the dog in the garage. The youths were asked to get into a police cruiser. In their testimony the police agreed
that they did not have a case against any of the youths at this point and that the purpose of the arrest was to
further the investigation by obtaining inculpatory statements and fingerprints. In the cruiser the youths were
informed of their rights under the Canadian Charter of Rights and Freedoms. At the police station each of the
accused gave an inculpatory statement, as a result of which the stolen property was recovered. At the trial for break,
enter and theft the judge held that the officers had not had reasonable and probable grounds for the arrest. Since
the arrest was not in accordance with s. 450(1) of the Criminal Code, it was unlawful. In the circumstances it was also
"arbitrary" within the meaning of s. 9 of the Charter. The trial judge furthermore ruled as inadmissible under s.
24(2) any utterances or statements of the accused, evidence obtained therefrom and the fingerprint evidence.
The Crown appealed the acquittal.
Held: Appeal dismissed.
Per MacKinnon A.C.J.O. (Martin J.A. concurring)
Not every unlawful arrest is an arbitrary detention within the meaning of s. 9 of the Charter. The issue of whether
an accused is arbitrarily detained will depend on: (1) the extent of the departure from the standard of reasonable
and probable grounds for the arrest; and (2) the honesty of the belief in the existence of reasonable and probable
132
grounds and the basis for such belief. Here, on the facts as found by the trial judge, the arrest or detention was
arbitrary, since it was for the improper purpose of assisting in the investigation. Here, the trial judge had found
that the police officers had neither reasonable and probable grounds for an arrest nor an honest belief that they
had the necessary grounds. The trial judge had not erred in finding that there was an arbitrary detention contrary to s. 9.
Under s. 24(2) of the Charter, if, to the average citizen interested in the administration of justice and the
protection of Charter rights, the admission of the impugned evidence under all the circumstances would bring
the administration of justice into disrepute, then it must be excluded. The exclusion of the evidence is not a
punishment of the police, although it is to be hoped that it will act as a future deterrent. It is rather an affirmation of
fundamental values and the only means of ensuring that the individual's Charter rights are not illusory. This was not a
case where the refusal to admit evidence tainted by a Charter breach might cause greater injury to the state and
society and to the administration of justice. It was repugnant to make citizens subject to arbitrary arrest for
investigative purposes. The evidence obtained was a direct result of the illegal arrest. The arrest had not been made
in good faith, the offence was not a serious one, there was no question of urgency, the names and addresses of the
youths were known and there was no fear of their fleeing. The trial judge was entitled to hold that the admission of
the evidence would bring the administration of justice into disrepute.
Power Point:
R. v. Duguay
• Ont.C.A. (1985) – [pp871-873] case of arbitrary detention under s.9 Charter, unlike previous s.10(b)
statement cases
• Police investigate break and enter, judge finds officers acting on hunch, did not have reasonable and
probable grounds to arrest accused, officers admit arrest to further investigation, obtain statements
and fingerprints
• S.9 violation found, evidence excluded under s.24(2), Crown’s appeal dismissed
• Not every unlawful arrest necessarily arbitrary detention – grounds may fall just short of
reasonable and probable cause [p871]
• Arrest arbitrary in case as made for improper purpose – to assist in investigation; hunch must have
reasonable basis, but officers lacked grounds, honest belief for arresting accused [p873]
This case from the point of view of what is “arbitrary detention.” P.871, bottom, Unlawful does not
mean arbitrary or capricious; that requires more:
Duguay: Test of “Arbitrary:” Continuum; reasonable grounds, honest but mistaken belief, no
grounds
25 It cannot be that every unlawful arrest necessarily falls within the words "arbitrarily detained". The
grounds upon which an arrest was made may fall "just short" of constituting reasonable and probable cause. The
person making the arrest may honestly, though mistakenly, believe that reasonable and probable grounds
for the arrest exist and there may be some basis for that belief. In those circumstances the arrest, though
subsequently found to be unlawful, could not be said to be capricious or arbitrary. On the other hand, the
entire absence of reasonable and probable grounds for the arrest could support an inference that no
reasonable person could have genuinely believed that such grounds existed. In such cases, the conclusion
would be that the person arrested was arbitrarily detained. Between these two ends of the spectrum, shading
from white to grey to black, the issue of whether an accused was arbitrarily detained will depend, basically, on
two considerations: first, the particular facts of the case; and secondly, the view taken by the court with
respect to the extent of the departure from the standard of reasonable and probable grounds, and the honesty of
the belief and the basis for the belief in the existence of reasonable and probable grounds on the part of the
person making the arrest.
P.872, bottom “… not speaking truthfully…” = arbitrary detention.
28 It was clearly the trial judge's view that the officers were not speaking truthfully when they said they
believed they had reasonable and probable grounds for arresting the accused. They had neither grounds nor an
honest belief that they had the necessary grounds. These being the findings of fact, I cannot see that there was
any error in law in the finding made by the trial judge with relation to s. 9.
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S.9 and s.10b each speak to detention. S9 – if arbitrary breaches the right, in SS10 a and b – the issue is
whether they were in fact detained, and therefore have charter rights. Overlap, but conceptually
different. Under 10a and b – it is the fact of detention that becomes important, because charter rights
were not advised; they were not arbitrarily detained, the authorities just felt that they did not have to
advise them of their rights. Note in Duguay: it’s not simply the fact of the arrest being unlawful, you still
need to assess whether detention is arbitrary.
R v Simpson 1993
Charter of Rights and Freedoms — Enforcement under Charter — Remedies — Exclusion of evidence — Real evidence of
drugs discovered by violation of ss. 8 and 9 to be excluded — Dangerous and erroneous perception that police power
existing to detain and question individuals attending residence police had any reason to believe might be site of ongoing
criminal activity to be emphatically rejected.
The Facts:
The accused was charged with possession of cocaine for the purpose of trafficking. He was a passenger in a motor
vehicle stopped by a police constable. After the vehicle was stopped, the constable searched the accused and seized
10g of cocaine.
The constable testified that shortly before the stop he had read an internal police memorandum describing a particular
residence as a suspected "crack house". The constable decided to patrol the area around the suspect residence. He
observed a car in the driveway of the residence. The sole occupant, a woman, exited the vehicle, leaving the motor
running, entered the residence and stood inside the doorway. After a short time, she left the residence accompanied by
the accused, returned to her vehicle and drove away with the accused seated in the front passenger seat. The
constable knew neither the woman nor the accused, and had no information pertaining to either of them. After
following the suspect vehicle for a short distance, the constable activated his flashing lights and directed the vehicle
to pull over. While talking to the accused, the constable noticed a bulge in the accused's front pants pocket. He
asked the accused to remove the object from his pocket; it was a baggie containing cocaine. In cross-examination, the
constable confirmed that he did not have reasonable and probable grounds to arrest the accused until he realized
that the accused was in possession of what appeared to be cocaine.
The trial judge found that the information provided to the constable from the police sources provided a
legitimate reason to embark on the investigative course he undertook. He further held that as the officer was
engaged in a legal investigation, he had a right to stop the vehicle as he did and that his actions were not arbitrary. The
accused was convicted and appealed.
Held: The appeal was allowed and an acquittal was entered.
As there was no articulable cause for detention, the accused had been arbitrarily detained contrary to s. 9 of the
Charter. The accused was clearly detained when the motor vehicle in which he was riding was pulled over by the
constable. Section 9 of the Charter limits the power of the police to detain individuals. It draws the line, subject to
s. 1 of the Charter, at detentions which are arbitrary. The words "arbitrary" and "unlawful" are not synonymous. A
lawful detention may be arbitrary and an unlawful detention may not necessarily be arbitrary.
The law imposes broad general duties on the police, but it provides them with limited powers to perform those
duties. Police duties and their authority to act in the performance of those duties are not coextensive. Where police
conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is
authorized by law. That law may be a specific statutory power or it may be the common law.
This detention was a result of the stopping of a motor vehicle. The lawfulness of the detention depended on the police
officer's authority to stop the vehicle. The officer's purpose in effecting the stop is, in turn, relevant to the
lawfulness of that stop. The decision to stop the motor vehicle had nothing to do with the enforcement of laws
relating to the operation of motor vehicles. The stop was made for purely investigative purposes. Stops made for
the purpose of enforcing driving-related laws are authorized by s. 216(1) of the Highway Traffic Act (Ont.), even where
those stops are random. However, not all stops which assist the police in the performance of their duties are authorized
by s. 216(1) of the Highway Traffic Act.
In deciding whether an interference with an individual's liberty is authorized under the common law, the court must
first decide whether the police were acting in the course of their duty when they effected that interference. In this
case, the constable was engaged in the execution of his duty when he stopped and detained the accused. Following the
ancillary power doctrine, the lawfulness of the constable's conduct will depend on whether the stop and
detention involved an unjustifiable use of the powers associated with the constable's duty. The justifiability of an
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officer's conduct depends on a number of factors, including the duty being performed, the extent to which some
interference with individual liberty is necessitated in order to perform that duty, the importance of the
performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.
The constable in this case was not performing any service-related police function and the detention was not
aimed at protecting or assisting the detainee. It was an adversarial and confrontational process intended to bring
the force of the criminal justice process into operation against the accused. The validity of the stop and the
detention must be addressed with that purpose in mind.
Power Point:
R. v. Simpson
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Ont.C.A. (1993) – [pp875-891] accused passenger in car stopped by police, found to have cocaine; evidence admitted
by trial judge over objections that ss. 8, 9 Charter infringed
Court of Appeal reverses ruling, enters acquittal
Officer investigating crack house, sees car drive away, follows it, no reasonable grounds to arrest accused until he
realizes he has possession of cocaine
Accused detained when car in which he is passenger pulled over by police
Words arbitrary and unlawful not synonymous: lawful detention may be arbitrary; unlawful detention not
necessarily arbitrary
Detention in case direct result of stopping of car – lawfulness of detention depends on officer’s authority to stop
it; officer’s purpose relevant to lawfulness of stop [p877]
No lawful authority for stop under Highway Traffic Act, stop not “check stop” for enforcing traffic laws
Court considers police common law powers since no statutory authority for detention
Not all detentions for investigative purposes constitute s.9 violation – detentions imposed in execution of officer’s
duty will be lawful if they meet Waterfield criteria [conduct falls within general scope of duty imposed by statute or
common law; does such conduct involve unjustifiable use of powers associated with duty], although they are for
investigative purposes and no grounds for arrest of detainee
Unless Parliament/legislature acts, common law and Waterfield criteria provide means for courts to regulate police
powers to detain for investigatory purposes [p884]
In deciding whether interference with person’s liberty authorized under common law, first issue is whether police
acting in course of duty when effected that interference – officer investigating crack house, pursuing investigation
when stops vehicle, thus engaged in execution of duty when stops and detains accused
Second factor considered – lawfulness of police conduct depends on whether stop and detention involved
unjustifiable use of powers associated with officer’s duty
Context of confrontation important – officer investigating accused and driver of car as targets, hoping to obtain
grounds to arrest accused; adversarial and confrontational process intended to bring force of criminal justice
process into operation against accused [p885]
Where person detained by police in course of determining whether involved in criminal activity investigated by
police, detention only justified if officer has “articulable cause” for detention
U.S. term – officer must be able to point to specific and articulable facts which taken together with rational inferences
from facts reasonably warrant that intrusion[p885]
Young: state official must be operating under set of criteria that at minimum bears some relationship to a
reasonable suspicion of crime, but not necessarily credibly-based probability of crime
Presence of articulable cause does not render any detention for investigative purposes justifiable exercise of police
common law powers – inquiry into articulable cause is only first step in broader inquiry in Waterfield in
determining whether detention justified [p887]
Without articulable cause, no detention to investigate detainee for possible criminal activity can be viewed as proper
exercise of common law power
No articulable cause for detention in case – officer had no knowledge of source of information about crack house,
knew nothing about driver of car or passenger he stopped
Common law police power did not authorize his conduct, detention both unlawful and arbitrary
Search of accused unreasonable, no basis to believe accused in possession of weapons
Ss.8.9 violations established, evidence excluded under s.24(2) Collins test– unconstitutionality of initial detention
important factor [p889]
P.884, bottom: “
Simpson: Dentention must first be based on “articulable cause,” reasonable suspicion, then
Waterfield or it is arbitrary
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Where person detained by police in course of determining whether involved in criminal activity investigated by
police, detention only justified if officer has “articulable cause” for detention
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Young: state official must be operating under set of criteria that at minimum bears some relationship to a
reasonable suspicion of crime, but not necessarily credibly-based probability of crime
inquiry into articulable cause is only first step in broader inquiry in Waterfield in determining whether
detention justified
Common law police power did not authorize his conduct, detention both unlawful and arbitrary
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Simpson test will be modified by Mann
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53 Unless and until Parliament or the Legislature acts, the common law and specifically the criteria formulated in
Waterfield, supra, must provide the means whereby the courts regulate the police power to detain for
investigatory purposes.
54 In deciding whether an interference with an individual's liberty is authorized under the common law, one must
first decide whether the police were acting in the course of their duty when they effected that interference. In this
case, Constable Wilkin indicated that he was investigating the possible commission of drug-related criminal
offences at the suspected "crack house". While a police officer's stated purpose is not determinative when deciding
whether the officer was acting in the course of his or her duty, there is no suggestion here that Constable Wilkin was
not pursuing an investigation into the possible commission of drug-related crimes when he stopped and detained the
appellant. The wide duties placed on police officers in relation to the prevention of crime and the enforcement of
criminal laws encompass investigations to determine whether criminal activities are occurring at a particular location as
well as efforts to substantiate police intelligence. I am satisfied that Constable Wilkin was engaged in the execution
of his duty when he stopped and detained the appellant. The lawfulness of that conduct will depend on whether the
stop and detention involved an unjustifiable use of the powers associated with Constable Wilkin's duty.
P.885 – “adversarial…
57 In addressing this requirement, it is also essential to keep in mind the context of the particular police/citizen
confrontation. Constable Wilkin was investigating the appellant and the driver of the car. They were his targets.
Constable Wilkin interfered with the appellant's liberty in the hope that he would acquire grounds to arrest him.
He was not performing any service-related police function and the detention was not aimed at protecting or assisting
the detainee. It was an adversarial and confrontational process intended to bring the force of the criminal justice
process into operation against the appellant. The validity of the stop and the detention must be addressed with that
purpose in mind. Different criteria may well govern detentions which occur in a non-adversarial setting not involving
the exercise of the police crime prevention function.
58 In my opinion, where an individual is detained by the police in the course of efforts to determine whether that
individual is involved in criminal activity being investigated by the police, that detention can only be justified if the
detaining officer has some "articulable cause" for the detention.
2nd last para 885: Justice Doherty - “articulable cause…” for a brief detention
59 The phrase "articulable cause" appears in American jurisprudence concerned with the constitutionality of
investigative detentions. In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968) the court considered whether a police
officer could "stop and frisk" a suspect whom he did not have reasonable cause to arrest. In an analysis that bears a
similarity to the Waterfield description of the common law ancillary police power doctrine, the court held at pp.
20-21 U.S., p. 1880 S. Ct., that no interference with the individual's right to move about could be justified absent
articulable cause for that interference. Chief Justice Warren for the majority said:
And in justifying the particular intrusion the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the
conduct of those charged with enforcing the laws can be subjected to the more detached, neutral
scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of
the particular circumstances. And in making that assessment it is imperative that the facts be judged
against an objective standard: would the facts available to the officer at the moment of the seizure or the
search "warrant a man of reasonable caution in the belief" that the action taken was appropriate? Cf. Carroll
v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96-97 (1964). Anything less would invite
intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate
hunches, a result this Court has consistently refused to sanction. See, e.g., Beck v. Ohio, supra; Rios v. United
States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple " 'good faith on the
part of the arresting officer is not enough.' ... If subjective good faith alone were the test, the protections of
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the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers and
effects,' only in the discretion of the police." Beck v. Ohio, supra, at 97. [Footnotes omitted.]
“Articulable cause” has only a brief history – it is returned to “reasonable and probable grounds,” but
Doherty is in effect saying the same thing.
P.887 – All along the watch tower
61 These cases require a constellation of objectively discernible facts which give the detaining officer reasonable
cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that
the facts must meet an objectivity [sic] discernible standard is recognized in connection with the arrest power: R. v.
Storrey, [1990] 1 S.C.R. 241 at 251, 53 C.C.C. (3d) 316 at 324 [75 C.R. (3d) 1 at 9], and serves to avoid
indiscriminate and discriminatory exercises of the police power. A "hunch" based entirely on intuition gained by
experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectively based
assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex,
colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on
mere speculation. A guess which proves accurate becomes in hindsight a "hunch". In this regard, I must disagree with
R. v. Nelson (1987), 35 C.C.C. (3d) 347 at 355, 29 C.R.R. 80 at 87 (Man. C.A.) where it is said that detention may be
justified if the officer "intuitively senses that his intervention may be required in the public interest". Rather, I agree
with Professor Young in "All Along the Watch Tower", supra, at p. 375:
In order to avoid an attribution of arbitrary conduct, the state official must be operating under a set of
criteria that, at minimum, bears some relationship to a reasonable suspicion of crime but not
necessarily to a credibly-based probability of crime.
Then same page – articulable cause only part of Waterfield
If no articulable cause, that’s the end of the Waterfield test, if do, then go to the next step
66 I should not be taken as holding that the presence of an articulable cause renders any detention for investigative
purposes a justifiable exercise of a police officer's common law powers. The inquiry into the existence of an
articulable cause is only the first step in the determination of whether the detention was justified in the totality of the
circumstances and consequently a lawful exercise of the officer's common law powers as described in Waterfield,
supra, and approved in Dedman, supra. Without articulable cause, no detention to investigate the detainee for
possible criminal activity could be viewed as a proper exercise of the common law power. If articulable cause exists,
the detention may or may not be justified. For example, a reasonably based suspicion that a person committed some
property-related offence at a distant point in the past while an articulable cause, would not, standing alone, justify the
detention of that person on a public street to question him or her about that offence. On the other hand, a reasonable
suspicion that a person had just committed a violent crime and was in flight from the scene of that crime could
well justify some detention of that individual in an effort to quickly confirm or refute the suspicion. Similarly, the
existence of an articulable cause that justified a brief detention, perhaps to ask the person detained for identification,
would not necessarily justify a more intrusive detention complete with physical restraint and a more extensive
interrogation.
Simpson test will be modified by Mann. Re Simpson: There was no articulable cause to stop the car,
p.888, middle down - “not only unlawful, but arbitrary…”
68 Turning to this case, I can find no articulable cause justifying the detention. Constable Wilkin had information of
unknown age that another police officer had been told that the residence was believed to be a "crack house". Constable
Wilkin did not know the primary source of the information and he had no reason to believe that the source in
general, or this particular piece of information, was reliable. It is doubtful that this information standing alone could
provide a reasonable suspicion that the suspect residence was the scene of criminal activity.
69 Any glimmer of an articulable cause disappears, however, when one considers whether Constable Wilkin had
reason to suspect that the appellant or the driver of the car was involved in criminal activity. He knew nothing
about either person and he did not suggest that anything either had done, apart from being at the house, aroused his
suspicion or suggested criminal activity. Attendance at a location believed to be the site of ongoing criminal
activity is a factor which may contribute to the existence of "articulable cause". Where that is the sole factor,
however, and the information concerning the location is itself of unknown age and reliability, no articulable cause
exists. Were it otherwise, the police would have a general warrant to stop anyone who happened to attend at any
place which the police had a reason to believe could be the site of ongoing criminal activity.
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70 As Constable Wilkin had no articulable cause for the detention, the common law police power did not authorize
his conduct. It was unlawful. Following Duguay, supra, it may be that a detention although unlawful would not be
arbitrary if the officer erroneously believed on reasonable grounds that he had an articulable cause. I need not decide
whether such a belief could avoid an infringement of s. 9 of the Charter. Constable Wilkin clearly had no belief that
the facts, as he believed them to be, constituted an articulable cause as I have defined it. The detention was both
unlawful and arbitrary as that word has been defined in the jurisprudence: Duguay, supra; Cayer, supra. As the
detention was not authorized by law, s. 1 of the Charter has no application. The appellant's right not to be
arbitrarily detained was infringed by Constable Wilkin.
P.889, therefore evidence excluded. Overview: we have gone from a clear scenario of having to comply,
to scenarios that are much more subtle, police station not necessarily a detention, then Moran 7 factors,
7th factor – subjective consideration of the accused… psychological detention issue. 1st three
detention, then Duguay and Simpson about arbitrary detention.
R v Mann 2004
Charter Considerations — Arbitrary Detention [See also, Charter s. 9]
R. v. Mann, [2004] 3 S.C.R. 59, 21 C.R. (6th) 1, 185 C.C.C. (3d) 308 — There is no general power of detention for
investigative purposes, but police may detain an individual if:
i.
there are reasonable grounds to suspect in all the circumstances that the person is connected to a
particular crime; and
ii.
the detention is reasonably necessary on an objective view of the circumstances.
The circumstances include the extent to which the interference with individual liberty is necessary to the performance of
the officer's duty, to the liberty interfered with, and to the nature and extent of the interference. At a minimum, individuals
who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for their detention.
Investigative detentions carried out in accordance with this common law power will not infringe the detainee's s. 9
Charter rights.
Investigative detentions do not impose an obligation on the detainee to answer police questions.
Where a police officer has reasonable grounds to believe that his or her safety or the safety of others is at risk, the officer
may undertake a protective pat-down search of the detainee. The investigative detention and search power is different and
must be distinguished from the authority to arrest and the incidental power of search on arrest.
Facts:
Charter of Rights and Freedoms ––– Charter remedies — Exclusion of evidence — Evidence of drug found in
search of accused's pocket in course of investigative detention to be excluded under s. 24(2) — Constituting
serious violation of s. 8 — Police conduct based on curiosity not amounting to good faith — Evidence of
conscripted evidence essential to Crown's case not necessarily to be admitted.
Shortly before midnight, police officers received information about a break-and-enter in progress. As they
approached the crime scene, the officers observed the accused walking on the sidewalk. The accused matched the
description of the suspect. The officers stopped the accused, asked for identification and conducted a pat-down search
for concealed weapons. While conducting the search, one of the officers felt a soft object in the front pocket of the
accused's pullover sweater. The officer reached into the pocket and found a small plastic bag containing 27.55
grams of marijuana, as well as a number of small plastic “baggies”. The accused was arrested for the offence of
possession for the purpose of trafficking marijuana.
The trial judge found that the police officer was justified in searching the accused for security reasons, but that the
circumstances did not justify reaching into the accused's front pocket after feeling a soft item inside. The search
into the accused's pocket was found to contravene s. 8 of the Canadian Charter of Rights and Freedoms. The
evidence was excluded under s. 24(2) on grounds that it would interfere with the fairness of the trial. The accused was
acquitted. The Crown appealed.
The Court of Appeal concluded that the detention and pat-down search were authorized by law and that such
powers were exercised reasonably on the facts. The Court of Appeal found that it was not unreasonable for the
officer, having found something soft in the front pocket of the accused's pullover, to continue searching inside
the pocket. It was held that officers should be allowed some latitude in conducting weapons searches, as long as the
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search is conducted in good faith, as was the case in this instance. The Court of Appeal found that there was no breach
under s. 8 of the Charter. The acquittal was set aside and a new trial was ordered. The accused appealed.
Held: The appeal was allowed and the acquittal was restored.
Per Iacobucci J. (Major, Binnie, LeBel and Fish JJ. concurring): A power of search incidental to investigative
detention exists at common law. Police officers may detain an individual for investigative purposes if there are
reasonable grounds to suspect that the individual is connected to a particular crime and that detention is
necessary. Where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk,
the officer may engage in a protective pat-down search of the detained individual. Both the detention and the patdown search must be conducted in a reasonable manner. The power to detain for investigative searches does not
endorse an incidental search in all circumstances.
Although a limited power of protective search exists at common law, a warrantless search must still withstand s. 8
Charter scrutiny. The officers in the case at bar had reasonable grounds to detain the accused, and there were
reasonable grounds for a protective search. The officer's decision to go beyond the initial pat-down search and to
reach into the accused's pocket after feeling a soft object was problematic. The trial judge found as a fact that there
was nothing from which it could be inferred that it was reasonable for the police to proceed beyond a pat-down search
for security reasons. The Court of Appeal did not give due deference to this important finding, which was largely based
on the credibility of witnesses, an area strictly within the domain of the trial judge absent palpable and overriding error.
The Crown did not show on a balance of probabilities that the search was carried out in a reasonable manner.
The seizure of the marijuana from the accused was unlawful.
The trial judge erred in concluding that admission of the evidence would affect the fairness of the trial. The
marijuana was non-conscriptive. The accused was not forced or conscripted to provide evidence in the form of
statements or bodily samples for the benefit of the state. The breach of the accused's rights, however, was serious.
Considering such factors as whether the breach was committed in good or bad faith, the obtrusiveness of the search, the
accused's expectation of privacy in the area searched and the existence of reasonable grounds, there was an
unacceptably serious disregard for the accused's s. 8 rights. The Court of Appeal erred in admitting the evidence
on the basis of the good faith of the officer. The search into the accused's pocket went beyond what was required to
mitigate concerns about officer safety and reflected a serious breach of the accused's protection against
unreasonable search and seizure. In addition, the nature of the fundamental rights at issue and the lack of a
reasonable foundation for the search suggested that the inclusion of the evidence would adversely affect the
administration of justice. The trial judge's conclusion to exclude the evidence was correct and was entitled to
deference.
Power Point:
R v Mann
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SCC (2004) – [pp893-910] issue is whether at common law police have power to detain persons for investigative
purposes, and if so whether common law power of search incident to such investigative detentions
Court concludes that police have common law power to detain accused, search for protective purposes, however
search falls outside ambit of what is permissible
Police receive radio call at midnight about break and enter in progress, approach scene, see person walking on sidewalk
who matches description
Accused complies with request for pat down search after request to identify self, officer finds marijuana in pocket,
arrested for trafficking offence
Trial judge finds s.8 breach though search justified, excludes evidence due to trial fairness; Man. C.A. finds
detention, pat down search authorized, new trial ordered
Court must balance individual liberty rights and privacy interests with societal interest in effective policing [para
15]
Open to Parliament to enact legislation in line with what is deemed best approach to matter, subject to overarching
requirements of constitutional compliance – unregulated investigative detentions in policing otherwise for courts to
consider Detention covers broad range of encounters between police and public –ss.9,10 Charter require significant
physical or psychological restraint [para 19]
Test for whether officer acts within common law powers in Waterfield, two-pronged analysis – does conduct fall
within general scope of duty under statute or common law; if so, does conduct involve unjustifiable use of powers
within duty [para 23]
Second stage requires balance between interests of police duty and liberty interests – Simpson adds further gloss,
investigative detentions justified at common law if articulable cause for detention; lower than reasonable and
probable grounds for lawful arrest; both objective, subjective standard
Simpson did not set concrete guidelines for investigative detentions, to be resolved on case by case approach [para
30]
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Articulable cause not sustained merely by officer’s hunch based on intuition gained by experience – U.S. law
requires totality of circumstances considered in determining that sufficient reasonable articulable suspicion of criminal
activity exists to justify seizure
Mann: Waterfield Gloss on Brief Investigative Detention, Warrantless Search, caution not
necessarily required, 10b issue not settled yet
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SCC prefers term “reasonable grounds to detain” – in keeping with Canadian use of reasonable grounds [para 33]
Police do not have carte blanche to detain – police powers, police duties not necessarily correlative
Search incidental to limited police power of investigative detention is warrantless search, burden on Crown to
justify, on balance of probabilities, that authorized by reasonable law, carried out reasonably [para 36]
Relying on Waterfield, power of search incidental to investigative detention exists at common law – falls within
general scope of duty; search reasonably necessary where reasonable grounds to do pat down search for safety
purposes
Majority summary - police officers may detain individual for investigative purposes where reasonable grounds to
suspect in all circumstances that person connected to particular crime and that detention necessary [para 45]
In addition, where officer has reasonable grounds to believe his/her safety or others at risk, officer may engage in
protective pat down search of detained person
Both detention and pat down search must be conducted in reasonable manner – should be brief duration, no
obligation to answer questions
Application to facts – officers had reasonable grounds to detain accused, matched description [para 47, 48]
Reasonable grounds for protective search, investigating break-in, could be weapons
Reaching into pockets of accused and seizing drugs violates s.8; trial judge wrong to exclude evidence due to trial
unfairness, but right to exclude it – Supreme Court restores acquittal
Minority – agrees that police power to detain at common law, disagrees that evidence should be excluded due to s.8
violation [para 65]
Search must not always be restricted to concerns for officer safety
Any search incidental to detention must be rationally connected to purpose of initial detention, reasonably necessary
to ensure security of officers or public, preserve evidence, prevent escape
Evidence ought to be excluded, not conscriptive, closely related to legal search
Clarification: They did not hold in Mann that an individual has a right to counsel caution in an
investigation detention. In Suberu, Doherty J., said that there was a right to counsel, but thought that
there could be a brief time before the caution is required. In Suberu, McLachlin says that there is a
10b right to counsel caution upon detention. Para 15 – open to Parliament but not yet, and in that
absence, we must interpret the common law balance:
B/c no statutory power:
V. Analysis
A. Introduction
15 As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy
interests with a societal interest in effective policing. Absent a law to the contrary, individuals are free to do as
they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are
empowered to do so by law. The vibrancy of a democracy is apparent by how wisely it navigates through those
critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.
Detention covers broad range of encounters between police and public – ss.9, 10, Charter requires
significant physical or psychological restraint [para 19]:
19 “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and
members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the
Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in
all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss.
9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In
this case, the trial judge concluded that the appellant was detained by the police when they searched him. We
have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.
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Waterfield is the test, para 24:
B. The Common Law Development of Investigative Detention
24 The test for whether a police officer has acted within his or her common law powers was first expressed by the
English Court of Criminal Appeals in Waterfield, supra, at pp. 660-661. From the decision emerged a two-pronged
analysis where the officer's conduct is prima facie an unlawful interference with an individual's liberty or property.
In those situations, courts must first consider whether the police conduct giving rise to the interference falls within
the general scope of any duty imposed on the officer by statute or at common law. If this threshold is met, the
analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty,
involved an unjustifiable use of powers associated with the duty.
Comment on Simpson, “articulable cause,” para 27:
27 The Court of Appeal for Ontario helpfully added a further gloss to this second stage of the Waterfield test in R.
v. Simpson (1993), 12 O.R. (3d) 182 (Ont. C.A.), at p. 200, by holding that investigative detentions are only justified
at common law “if the detaining officer has some ‘articulable cause’ for the detention”, a concept borrowed from
U.S. jurisprudence. Articulable cause was defined by Doherty J.A., at p. 202, as:
...a constellation of objectively discernible facts which give the detaining officer reasonable cause to
suspect that the detainee is criminally implicated in the activity under investigation.
Articulable cause, while clearly a threshold somewhat lower than the reasonable and probable grounds required
for lawful arrest (Simpson, supra, at p. 203), is likewise both an objective and subjective standard (R. v. Storrey,
[1990] 1 S.C.R. 241 (S.C.C.), at p. 250, R. v. Feeney, [1997] 2 S.C.R. 13 (S.C.C.), at para. 29).
No statutory direction, Simpson did not set concrete guidelines, Para 30:
30 In Simpson, supra, at p. 202, the Court of Appeal for Ontario held that articulable cause was not sustained merely by
the officer's hunch based on intuition gained by experience. Indeed, in R. v. Jacques, [1996] 3 S.C.R. 312 (S.C.C.), the
majority endorsed the Simpson approach to the assessment of evidence, at para. 24, and Major J. in dissent, albeit on another
point, acknowledged, at para. 52, that “reasonable grounds to suspect” was equivalent to the articulable cause
standard. More recently, this Court endorsed the Simpson formulation of the second prong of the Waterfield test as
providing a broad range of factors to assess justification in the context of criminal law without reference to an
investigative detention power: see Godoy, supra, at para. 18; R. v. Asante-Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38
(S.C.C.), at para. 75.
And reference to American law, however “reasonable and probable grounds” preferred in Canada, Para
33:
33 With respect to terminology, I prefer to use the term “reasonable grounds to detain” rather than the U.S. phrase
“articulable cause” since Canadian jurisprudence has employed reasonable grounds in analogous circumstances and
has provided useful guidance to decide the issues in question. As I discuss below, the reasonable grounds are related to
the police action involved, namely, detention, search or arrest.
Search incident to limited police power, on balance, reasonable law, carried out reasonably, Para 36:
C. Search Powers Incident to Investigative Detention
36 Any search incidental to the limited police power of investigative detention described above is necessarily a
warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found
reasonable, pursuant to the test established in R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.). Under Collins,
warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and
(c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of
demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and
carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30 (S.C.C.), at para. 32.
Para 45: helpful summary of majority view: power to detain for “investigative… reasonable manner…”
Continues with “… brief in duration… no obligation… distinguished from arrest… doesn’t arise in this
case.”
141
45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there
are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and
that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or
her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained
individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this
connection, I note that the investigative detention should be brief in duration and does not impose an obligation on
the detained individual to answer questions posed by the police. The investigative detention and protective search
power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in
this case.
The distinction is beyond an investigative detention, charter rights must be given, but if “brief”
detention exists, no caution required. Very important to note distinction between the two (investigative
detention and incidental powers associated with arrest) according to the majority. Application in this case,
paras 47 – 49:
47 The officers had reasonable grounds to detain the appellant. He closely matched the description of the suspect
given by radio dispatch, and was only two or three blocks from the scene of the reported crime. These factors led the
officers to reasonably suspect that the appellant was involved in recent criminal activity, and at the very least ought
to be investigated further. The presence of an individual in a so-called high crime area is relevant only so far as it
reflects his or her proximity to a particular crime. The high crime nature of a neighbourhood is not by itself a basis for
detaining individuals.
48 Furthermore, there were reasonable grounds for a protective search of the appellant. There was a logical
possibility that the appellant, suspected on reasonable grounds of having recently committed a break-and-enter, was in
possession of break-and-enter tools, which could be used as weapons. The encounter also occurred just after midnight
and there were no other people in the area. On balance, the officer was justified in conducting a pat-down search for
protective purposes.
49 The officer's decision to go beyond this initial pat-down and reach into the appellant's pocket after feeling
an admittedly soft object therein is problematic. The trial judge found that the officer had no reasonable basis for
reaching into the pocket. This more intrusive part of the search was an unreasonable violation of the appellant's
reasonable expectation of privacy in the contents of his pockets. The trial judge found as a fact that “there was
nothing from which [he could] infer that it was reasonable to proceed beyond a pat down search for security reasons”.
The Court of Appeal did not give due deference to this important finding, which was largely based on the credibility of
witnesses, an area strictly in the domain of the trial judge absent palpable and overriding error: Housen v. Nikolaisen,
[2002] 2 S.C.R. 235, 2002 SCC 33 (S.C.C.). Moreover, the Crown has not discharged its burden to show on the
balance of probabilities that the third aspect of the Collins test has been satisfied, namely that the search was
carried out in a reasonable manner.
Minority views that the evidence should not have been excluded, proper search, paras 62, 65, 75:
Deschamps J. (dissenting):
I. Introduction
62 I have had the advantage of reading the reasons of my colleague Iacobucci J. I concur in principle with his
analysis on the issue of the existence of a power to detain at common law. However, I express certain reservations as
regards the terminology which he adopts in setting out the conditions necessary to give rise to that power and the
precise scope of the search which is incidental to it. In addition, while I conclude, as he does, that the search of the
appellant violated s. 8 of the Canadian Charter of Rights and Freedoms, I cannot accept that the violation is such
that the admission of the evidence which was obtained by the police in the present case would “bring the
administration of justice into disrepute”. As such, I cannot agree with his disposition in the present appeal.
III. The Scope of the Power of Search Incidental to Detention
65 I agree with the majority that there is a power to search incidental to detention at common law, stemming from
the test set out in R. v. Waterfield, [1963] 3 All E.R. 659 (Eng. C.A.). I wish to add, however, that I do not believe that
such a search must always be restricted to concerns for the safety of a police officer. In the case at bar, security
was the only ground raised by the respondent. However, other circumstances may justify resorting to a search
incidental to detention.
75 With respect to obtrusiveness, I would like to clarify that it is not the intrusiveness of the search in the
abstract which must be taken into consideration. Instead, what is to be measured is the degree of intrusion relative
142
to or over and above what would have been permissible under the circumstances. This flows from the fact that what
is being determined at this stage of the analysis is the seriousness of the Charter violation, not the seriousness of
the search per se. If it was lawful in the present case for the officers to conduct a pat-down search, I find it difficult to
see how taking the small additional step of unthinkingly giving in to curiosity, and slipping a hand into the
appellant's kangaroo pouch can be regarded as sufficient to put the violation which occurred in the present case on
the “serious” end of the spectrum. The legal part of the search which involved the touching of the body was much
more intrusive than the illegal part, which saw the search extended into the appellant's open pocket.
R v Grant 2006, 2009
At trial the defence motion to exclude the revolver from evidence because of violations of s. 8, 9 and 10(b) of the
Charter was dismissed. The judge found neither a detention nor a search. Grant was convicted of possession of a
loaded prohibited firearm, possession of a firearm for the purpose of transferring it, carrying a concealed weapon, and
possession of a firearm with knowledge the serial number had been removed. He was sentenced to concurrent terms of
12 months' incarceration on each count, followed by three years' probation. The sentence was imposed in addition to
the six months' credit given to Grant for 92 days spent in pre-sentence custody. This amounted to a sentence six months
longer than the statutory minimum of one year imprisonment. The accused appealed his conviction and sentence.
Held: The appeals from conviction and sentence were dismissed.
The trial judge had erred in deciding that the accused had not been detained. Whether a police-citizen encounter
gives rise to a detention cannot be decided by bright lines and must be a fact-specific and context-sensitive inquiry. The
Supreme Court has established that a psychological detention includes three elements: a police direction or
demand to an individual, the individual's voluntary compliance with the direction or demand resulting in a
deprivation of liberty or other serious legal consequences and the individual's reasonable belief that there is no
choice but to comply. Here, although this was a difficult and close case, those requirements had been met. The
accused was psychologically detained from the time he was asked about his criminal record and when his path was
blocked by the officers. The officers were all bigger than he was. He was not told that he was free to go or free not to
respond to their questions. He was not a sophisticated adult. The encounter from the stop to the arrest lasted seven
minutes. This was not so short that it could not give rise to a detention. As the police did not have reasonable
grounds to detain him the detention was arbitrary contrary to s. 9 of the Charter.
The evidence of the revolver found in violation of section 9 should not be excluded under s. 24(2). Contrary to the
view of the trial judge the revolver was conscriptive real evidence affecting trial fairness. The accused's answers
were conscriptive evidence and the revolver was derivative evidence.
Until now, trial and provincial appellate courts have viewed the Supreme Court of Canada's jurisprudence on s.
24(2) as standing for the proposition that conscriptive or derivative evidence affecting the fairness of the trial
will be excluded in all, or virtually all, cases without consideration of the other two Collins factors. This so-called
“automatic exclusionary rule”, or near automatic exclusionary rule, has been the subject of strong academic
criticism and does not seem faithful to the language of s. 24(2) itself, which directs the court to consider “all the
circumstances” bearing on the repute of the justice system. Recent decisions seem to signal that the Supreme Court
of Canada is willing to moderate the strictness with which it has applied the trial fairness factor. In view of a recent
concurring opinion three important propositions can be made. First, the admission of all conscriptive evidence,
including derivative evidence, will have some impact on trial fairness. Second, if we do not have an automatic
exclusionary rule for conscriptive evidence, then we must recognize that even though the admission of conscriptive
evidence compromises trial fairness, its admission will not always bring the administration of justice into
disrepute. And third, whether conscriptive evidence should be admitted will depend both on the resulting degree of
trial unfairness and on the strength of the other two Collins factors.
Power Point:
R v Grant 2006
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Ont.C.A. (2006) – [pp911-920] plainclothes officers patrolling area, schools nearby, high crime area, see suspicious
youth, ask him to have chat, keep hands in front of him; ask if he has anything he shouldn’t he turns over marijuana,
loaded revolver
Admitted police have no reasonable grounds for detention or search – trial judge finds no detention or search,
evidence admitted
Detention – accused not physically detained, but psychological detention in Court of Appeal’s view: questioning was
not mere chit chat; being told to keep hands in front is direction or demand; and unrealistic to think youth could just
walk away from police officers, s.9 violation [para 29]
Search – police questioning did not amount to search, no s.8 violation
S.24(2) – s.9 violations rarely yield conscriptive evidence; police did not grossly overstep bounds of legitimate
questioning, good faith, no force, high crime area – evidence ruled admissible
143
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SCC (2009) – [pp1631-1691] existing jurisprudence on issue of detention, exclusion of evidence difficult to apply,
leads to unsatisfactory results
S.24(2) test reformulated, Collins approach no longer correct approach
Supreme Court also modifies Therens approach to detention
Detention under ss. 9, 10 Charter refers to suspension of person’s liberty interest by significant physical or
psychological restraint [para 44]
Psychological detention established where person has legal obligation to comply with restrictive request or
demand, or reasonable person would conclude by reason of state conduct that he/she had no choice but to
comply
In cases where no physical restraint or legal obligation, may not be clear if person is detained – to conclude if
reasonable person in individual’s circumstances would conclude he/she deprived of liberty of choice, following
factors relevant [para 44]:
(a) circumstances giving rise to encounter as they would reasonably be perceived by the individual – police
providing general assistance, maintaining general order, general inquiries about occurrence or singling out person for
focussed investigation
(b) nature of police conduct, including language used; use of physical contact; place where interaction occurs;
presence of others; duration of encounter
(c) particular characteristics or circumstances of individual where relevant, including age, physical stature, minority
status, level of sophistication
Application to facts of case – not clear case of physical restraint or compulsion by operation of law – consider all
relevant circumstances to determine if reasonable person in accused’s position would have concluded his/her right to
choose how to interact with police (whether to leave or comply) had been removed [para 45]
Encounter begins with general inquiries, encounter inherently intimidating (accused does not testify), accused
detained when told to put hands in front of him, embark on line of questioning
Is detention arbitrary? Officers had no legal grounds or reasonable suspicion to detain accused prior to
incriminating statement – breach of s.9 as a result [para 53]
Because officers did not believe accused detained, no s.10(b) rights given
S.24(2) – only issue is admissibility of gun, impact of infringement of ss.9 and 10(b) rights significant but police
operating in area of legal uncertainty, evidence admissible [para 59]
P.914, para 29, Laskin sets out in some detail his factors: initial demand, actions of police, positioning,
nature of questions, answers, manner of answering, age, duration:
29 I have found this appeal to be a difficult case and a close case. Each side has put forward meritorious arguments.
In the end I have decided that the appellant has made out the three elements necessary to establish a psychological
detention, including the necessary degree of compulsion. I have therefore concluded that the appellant was detained
contrary to s. 9 of the Charter during the police's questioning of him, even before he admitted to possession of
marijuana. I rely on the following considerations for my conclusion.
•
Gomes' initial demand: Early in the encounter, Gomes stood in front of the appellant, blocked
his path on the sidewalk, and told him to keep his hands in front of him where Gomes could see them. As
I have already said, these words coming from a uniformed officer standing three feet away, amounted to a
demand, which the appellant was not free to ignore. From the outset, then, Gomes effectively took control
of the appellant's physical movements. Equally important, the demand, coming at the beginning of the
encounter, established the atmosphere for the remainder of it.
•
The actions of Worrell and Forde: These two plainclothes officers did not stay in their car,
which would have mitigated the intimidating nature of the encounter. Instead they got out of their car,
showed the appellant their police badges, and stood behind Gomes.
•
The positions of the three officers: Gomes stood in his interview stance, three feet away from the
appellant. Every time the appellant moved, Gomes moved, in order to maintain their relative positions.
Worrell and Forde stood behind Gomes, four to five feet away from the appellant. These three officers —
each bigger then the appellant — effectively formed a small phalanx blocking the path in which the
appellant was walking. In doing so, the officers exerted control over the appellant's movements
throughout the encounter.
•
Gomes' questions: Gomes' questions went well beyond a mere request for identification or other
non-incriminating information. Questions about whether the appellant had ever been arrested or was carry
something illegal invited inculpatory answers. The officers frankly acknowledged that they were looking
144
for answers that would give them grounds to arrest or search the appellant. These questions, coming
after Gomes' initial demand, amounted to further “demands”.
•
The appellant's answers: The appellant acquiesced to all the officers' demands. He put his hands
in front of him, and then he gave incriminating answers, leading to his arrest, the police's search, and the
ultimate deprivation of his liberty.
•
The appellant's manner of answering the police's questions: Although the appellant did not
testify on the motion, his failure to do so is not fatal to his claim because the standard for establishing
compulsion is objective. The question the court must decide is whether the appellant reasonably believed
that he was detained: see Moran at 258-59. In my view the court can reasonably infer compulsion from
the appellant's manner of answering the police's questions and from the answers themselves. The appellant
paced nervously and hesitated before answering Gomes' questions. Although he did not testify, I infer from
his manner of responding to the police's questions that he did not believe he had the right to walk away
and end the conversation, but rather believed that he had no choice but to answer their questions.
Moreover it seems to me that the appellant's belief was objectively reasonable. In the light of his answers,
the suggestion that the appellant knew he had the right not to incriminate himself seems unreasonable. I note
that at no time during the encounter did the officers tell the appellant that he was free to go or free not
to respond to their questions.
•
The appellant's age: The appellant was not a sophisticated adult. The appellant was an 18-year-old
youth, facing three police officers standing a few feet away from him in his path on the sidewalk.
•
The duration of the encounter: The entire encounter, from the time Gomes stopped the appellant
until his arrest, lasted about seven minutes. This was not a long encounter, but it was not so short that it could
not give rise to a detention.
The accused never testified, so we don’t know his subjective version. It is not necessary to make the
determination in this case.
Grant 2009
Remember that the final judgement said:
[3 The submissions before us reveal that existing jurisprudence on the issues of detention and exclusion of evidence
is difficult to apply and may lead to unsatisfactory results. Without undermining the principles that animate the
jurisprudence to date, we find it our duty, given the difficulties that have been pointed out to us, to take a fresh
look at the frameworks that have been developed for the resolution of these two issues. We will also consider the
subsidiary issue that arises in this case: the meaning of "transfer" of a weapon for the purposes of ss. 84, 99 and
100 of the Criminal Code, R.S.C. 1985, c. C-46.]
In cases where no physical restraint or legal obligation, may not be clear if person is detained – to
conclude if reasonable person in individual’s circumstances would conclude he/she deprived of
liberty of choice, following factors relevant [para 44]: Para 44 – with physical constraint, easier to
determine; #2, Para 44 – no legal obligation – a, b, c – has an approach similar to a “modified objective
test.”; Not a clear case of physical restraint, psychological choice issue; Began with general, but
intimidating (even though no testimony of accused) – becomes detention.
44 In summary, we conclude as follows:
1.
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a
significant physical or psychological restraint. Psychological detention is established either where the individual
has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by
reason of the state conduct that he or she had no choice but to comply.
Grant: Psychological detention established where person has legal obligation to comply, or no
realistic choice
2.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has
been detained. To determine whether the reasonable person in the individual's circumstances would conclude
that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the
following factors:
145
a)
The 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 focussed
investigation.
b)
The nature of the police conduct, including the language used; the use of physical contact; the
place where the interaction occurred; the presence of others; and the duration of the encounter.
c)
The particular characteristics or circumstances of the individual where relevant, including age;
physical stature; minority status; level of sophistication.
Paras 53 – 57 – Is detention arbitrary?
3. Was the Detention Arbitrary Under Section 9?
53 We have determined that the appellant was detained prior to his arrest. The question at this point is whether the
detention was “arbitrary” within the meaning of s. 9.
54 The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7,
that a person's liberty is not to be curtailed except in accordance with the principles of fundamental justice. As
this Court has stated: “This guarantee expresses one of the most fundamental norms of the rule of law. The state
may not detain arbitrarily, but only in accordance with the law”: Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350
(S.C.C.), at para. 88. Section 9 serves to protect individual liberty against unlawful state interference. A lawful
detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is
itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9.
55 Earlier suggestions that an unlawful detention was not necessarily arbitrary (see R. v. Duguay (1985), 18
C.C.C. (3d) 289 (Ont. C.A.)) have been overtaken by Mann, in which this Court confirmed the existence of a
common law police power of investigative detention. The concern in the earlier cases was that an arrest made on
grounds falling just short of the “reasonable and probable grounds” required for arrest should not automatically be
considered arbitrary in the sense of being baseless or capricious. Mann, in confirming that a brief investigative
detention based on “reasonable suspicion” was lawful, implicitly held that a detention in the absence of at least
reasonable suspicion is unlawful and therefore arbitrary within s. 9.
56 This approach mirrors the framework developed for assessing unreasonable searches and seizures under s.
8 of the Charter. Under R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.), and subsequent cases dealing with s. 8, a search
must be authorized by law to be reasonable; the authorizing law must itself be reasonable; and the search must be
carried out in a reasonable manner. Similarly, it should now be understood that for a detention to be nonarbitrary, it must be authorized by a law which is itself non-arbitrary. We add that, as with other rights, the s. 9
prohibition of arbitrary detention may be limited under s. 1 by such measures “prescribed by law as can be
demonstrably justified in a free and democratic society”: see R. v. Hufsky, [1988] 1 S.C.R. 621 (S.C.C.), and R. v.
Ladouceur, [1990] 1 S.C.R. 1257 (S.C.C.).
57 Here, the officers acknowledged at trial that they did not have legal grounds or reasonable suspicion to
detain the accused prior to his incriminating statements. No issue was taken with this concession on appeal. We
therefore conclude that the detention was arbitrary and in breach of s. 9.
Evidence admissible [para 59]:
B. Exclusion of the Evidence
1. Background
59 When must evidence obtained in violation of a person's Charter rights be excluded? Section 24(2) of the Charter
provides the following answer:
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 this Charter, the evidence shall be
excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
Note: enquiry from the perspective of a reasonable defendant, no testimony from the accused necessary to
prove that in some cases. Wide degree of variation in cases.
146
R. v. Harrison, [2009]
R. v. Harrison, [2009] 2 S.C.R. 494, 66 C.R. (6th) 105, 245 C.C.C. (3d) 86 — Misleading in-court testimony by an officer
who infringed D's rights is a factor to consider in assessing the seriousness of Charter-infringing state conduct. The fact
that a Charter breach is less heinous than the offence charged does not advance the s. 24(2) inquiry.
Harrison: Revised framework for exclusion of evidence under s. 24(2) – 3 Grant Criteria
[Charter remedies [s. 24] — Exclusion of evidence - Revised framework for exclusion of evidence under s. 24(2) of Charter
replacing Collins factors — Courts to consider factors of seriousness of violation, impact on Charter-protected interests
of accused and society's interest in adjudication on merits — Evidence of 32 kg of cocaine found in vehicle stop and search in
clear violation of ss. 8 and 9 to be excluded — Seriousness of offence and reliability of the evidence not outweighing need
not to condone flagrant breaches.]
The Facts:
The accused was charged with trafficking in cocaine. The accused's motor vehicle was stopped because it did not have
a front licence plate, despite it being registered in a province, Alberta, which did not require such a plate. The
officer had no reason to believe that any offence was being committed, but proceeded to check, inter alia, the
accused's driver's licence. It was found to be suspended, and the accused was arrested and the vehicle searched.
The officer found a large amount of cocaine.
At trial, the trial judge held that the accused had been subject to an arbitrary detention contrary to s. 9 of
Canadian Charter of Rights and Freedoms, as the officer had no reasonable and probable grounds, only a hunch,
that anything illegal was being undertaken in the vehicle. The trial judge further held that the search of the vehicle
was unreasonable and contrary to s. 8 of Charter. He undertook a s. 24(2) Charter analysis and held that
notwithstanding the Charter violations, the cocaine was properly admitted into evidence, as excluding the real,
non-conscriptive evidence would tend to bring the administration of justice into disrepute. The accused was
convicted. He appealed from conviction.
By a majority, the Court of Appeal dismissed the accused's appeal and affirmed his conviction. He appealed as of
right to the Supreme Court of Canada.
Held: The appeal was allowed and the accused was acquitted.
Per McLachlin C.J.C. (Binnie, LeBel, Fish, Abella, Charron JJ. concurring): In R. v. Grant, a judgment of the
Supreme Court of Canada released together with the present case, a revised s. 24(2) Charter analysis is presented. To
be considered now are the seriousness of the breach of a protected Charter right, the impact of the breach on the
accused's constitutional rights and the public interest in seeing the offence charged determined on its merits. In
the present case, the scope of the breaches was serious, as only a bare suspicion existed for the stop, arrest and
search. The breaches constituted a major intrusion on the accused's protected Charter rights. The evidence seized
was highly probative and represented proof of the commission of a major offence; however, in the totality of the
circumstances, the facts of the present case militated in favour of exclusion of the evidence. Allowing admission
of the evidence in the face of blatant Charter breaches would have the effect of undermining the broader
reputation of the justice system. The evidence seized was essential to the Crown's case, and accordingly, rather than
ordering a new trial, the accused must be acquitted.
R. v. Suberu, [2009]
R. v. Suberu, [2009] 2 S.C.R. 460, 66 C.R. (6th) 127, 245 C.C.C. (3d) 112 — Even when an encounter with police clearly
results in a detention, for example where a person is arrested and taken into police custody, it cannot be assumed that the
person was detained from the beginning of the interaction. [Charter of Rights and Freedoms ––– Arrest or detention [s. 10]
— Right to counsel [s. 10(b)] — Right to retain and instruct counsel without delay — “Without delay” meaning
“immediately” ––– Demonstrably justified reasonable limit [s. 1] — Common law power of investigative detention not
imposing limit by law on right to counsel.]
Facts:
The police were called to a liquor store because of a suspicion that the accused and another man were attempting to
purchase liquor with a stolen credit card. When the accused left the store and started to get into the driver's seat of
his vehicle, the officer accosted him and said he needed to talk to him before he went anywhere. The officer
proceeded to question the accused. The officer was then advised by another officer that the vehicle the accused
was driving was similar to a vehicle used in an earlier incident involving an alleged stolen credit card. The officer
noticed a large quantity of recently purchased merchandise in the vehicle and the accused acknowledged that the
merchandise was partly his. The accused was arrested for fraud and advised of his right to counsel. The accused
was convicted of two counts of possession of property under $5,000 obtained by crime and one count of
possession of a credit card obtained by crime.
147
The trial judge found that the initial part of the encounter was merely preliminary or exploratory and that it only
became incumbent upon the police officer to inform the accused of his right to counsel under s. 10(b) of the
Canadian Charter of Rights and Freedoms a few minutes later when the officer determined that the accused was in
fact involved in the incident under investigation and that he could not let him go. That happened at the exact moment
when the accused was arrested and the officer did caution him then. The Court of Appeal agreed that there had
been no infringement of the accused's rights to counsel. The accused appealed.
Held: The appeal was dismissed.
Per McLachlin C.J.C., Charron J. (LeBel, Deschamps, Abella JJ. concurring): The police duty to inform an
individual of their s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an
investigative detention. The concerns regarding compelled self-incrimination and the interference with liberty that s.
10(b) seeks to address are present as soon as a detention is effected. From the moment an individual is detained, s.
10(b) is engaged and the police have the obligation to inform the detainee of his or her right to counsel without
delay. The issue becomes what is a detention, as not every interaction between the police and a member of the public,
even if for investigative purposes, constitutes a detention within the meaning of the Charter. Physical restraint is not
required. Detention is also established where an individual is legally required to comply with a demand or
direction that interferes with their liberty. Where there is no legal obligation to comply but a reasonable person in
the same position would conclude that they had been deprived of the liberty of choice, there is also a detention. If
and when a detention began must be specifically decided in each circumstance and cannot be assumed to be at the
beginning of an encounter, even where arrest is the end result.
There was no basis to interfere with the trial judge's conclusion that the accused's constitutional rights were not
infringed. The accused was momentarily delayed when the police asked to speak to him but he was not subjected to
physical or psychological restraint so as to ground a detention within the meaning of the Charter. The accused's s.
10(b) rights were not engaged during the period prior to his arrest, which happened as the officer received
information that the accused was probably involved in a criminal offence.
Suberu: What is Detention – Fact Specific – Not always at the Beginning of Encounter
[Excerpt from McLachlin:…] The issue becomes what is a detention, as not every interaction between the police and
a member of the public, even if for investigative purposes, constitutes a detention within the meaning of the Charter.
Physical restraint is not required. Detention is also established where an individual is legally required to comply
with a demand or direction that interferes with their liberty. Where there is no legal obligation to comply but a
reasonable person in the same position would conclude that they had been deprived of the liberty of choice,
there is also a detention. If and when a detention began must be specifically decided in each circumstance and
cannot be assumed to be at the beginning of an encounter, even where arrest is the end result.
•
Due to definition of detention, police have leeway to engage in exploratory questioning without triggering
Charter rights, s.1 not necessary
Suberu 2009; Confirms ManninenThe Meaning of “Without Delay” in Section 10(b) of the Charter
38 Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The
informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The
implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a
reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from
eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a
lawyer, or the detainee has unequivocally waived the right to do so.
Power Point:
R v Suberu 2009
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SCC (2009 SCC 33) – companion case of Grant, Harrison; broader test than Therens for meaning of detention
Supreme Court upholds finding that accused’s s.10(b) rights not violated, accused momentarily delayed but not
detained, thus s.10(b) not engaged
Words “without delay” mean immediately for purposes of s.10(b) – subject to concerns for officer or public
safety, s.1 justification, police have duty to inform detainee of right to retain counsel, duty to facilitate that right
immediately on detention
Case not made out for general suspension of s.10(b) right to counsel for investigative purposes, with or
without some form of use immunity
Due to definition of detention, police have leeway to engage in exploratory questioning without triggering
Charter rights, s.1 not necessary
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[pp1705-1720] Companion case with Grant – accused and associate shopping, police respond to stolen credit
card call
Officer sees other man at cash register, accused walks by and says “he did this, not me, so I guess I can go”;
officer follows accused to car while he gets into driver’s seat, states “Wait a minute, I need to talk to you before
you go anywhere”
Verbal exchange follows, accused arrested by officer for fraud
Issue in case is whether accused detained – held by majority that accused momentarily “delayed” when police
asked to speak to him, but not subjected to physical or psychological restraint so as to ground detention within
meaning of Charter [para 7]
Accused did not testify – no basis for contention that freedom to choose whether or not to cooperate with
police removed during period of time prior to arrest – s.10(b) rights not engaged during this time; detention
later at time of arrest
Minority – it would be clear to reasonable person in accused’s situation that he had been stopped at alleged
crime scene, not free to walk away
In context accused’s words to officer amounted to “can I leave”; officer’s response amounted to “no” – at that
point there was detention
No rational person in accused’s shoes would have thought he was free to walk away or that police would have
let him go, had he tried
S.10(b) violated, evidence should be excluded
Para 7: - summary of what trial judge thought: “While Mr. Suberu was momentarily…. Not ….
Psychological… detention… Suberu did not testify… the evidence does not support his contention re
freedom of choice… 10 b not engaged…”
7 We see no basis to interfere with the trial judge's conclusion that Mr. Suberu's constitutional rights were not
infringed. While Mr. Suberu was momentarily “delayed” when the police asked to speak to him, he was not
subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. Mr.
Suberu did not testify and, unlike the facts in R. v. Grant, the evidence does not support his contention that his
freedom to choose whether or not to cooperate with the police was removed during the period of time prior to
his arrest. Thus his s. 10(b) right to counsel was not engaged during this period. It was only later, after the officer
received additional information indicating that Mr. Suberu was probably involved in the commission of an offence
and determined that he could not let him leave, that the detention crystallized and Mr. Suberu's rights under s. 10
were engaged — a moment which, on the facts of this case, coincided with his arrest. Upon arresting Mr. Suberu, the
police officer promptly and properly informed him of his right to counsel. There was no violation of the appellant's
right under s. 10(b) of the Charter, and therefore the appeal is dismissed.
Binnie minority – he was detained – by the words “before you go anywhere…” He notes that the officer
would have followed him and stopped him – therefore no choice but to comply, “… any reasonable
position would have come to the same conclusion…”
49 Nevertheless, I believe that Mr. Suberu in this case is entitled to the benefit of the majority's claimant-centred
analysis set out in Grant. Applying that test, I conclude that he was detained.
50 Generally speaking, the police mean what they say when they direct a citizen to stay put. As Constable
Roughley acknowledged in this case, if Mr. Suberu had not heeded the officer's direction not to leave the parking lot
at the crime scene, Constable Roughley would “likely” have pursued him in the patrol car and stopped Mr. Suberu's
van in the street:
Q.
So Officer can you tell me, if you got outside in that parking lot, with the information you
described you had, and Mr. Suberu had already been driving away in his van, what would you have done?
A.
I more than likely would have ah, tried to effect a vehicle stop to ah, investigate ah, as I did in the
lot, [to find out] if he was involved and if he was involved, to what extent he was involved.
Mr. Suberu correctly perceived that the officer was giving him “no choice but to comply” (Grant, at
para. 44).
51 Accordingly, with all due respect to those of a different view, I think the conclusion of the majority in this
case that Mr. Suberu was not detained, despite concurrent findings in the courts below that there was an
“investigatory detention”, is at odds with the restatement of the test for detention (summarized at para. 44 of
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Grant and para. 25 herein). The trial judge found that “there was, as was entirely necessary, a momentary
investigative detention” but concluded, as did the Court of Appeal, that there was nevertheless at that stage “no
need to provide the accused with his rights to counsel”. Applying my colleagues' formulation of the test for
detention in Grant, I agree with both courts below that Mr. Suberu was detained within the meaning of ss. 9 and
10(b) of the Charter at the outset of his encounter with Constable Roughley. It then follows that, pursuant to the
approach to s. 24(2) set out in Grant, the incriminatory statements by Mr. Suberu prior to the constable reading
him his s. 10(b) rights should be excluded, the appeal allowed and a new trial ordered.
The Court in Grant and Suberu has arrived at different factual conclusions, but are we truly given
sufficient guidance to approach future cases? Hamish Stuart Comment: “In Suberu, the majority appears
to have …” The trial, appeal said psychological detention, SCC said no – no detention – it was
preliminary investigative investigation. As Binnie points out – hard to accept that the guy could have
driven away. Suberu suggests, the police will have considerable leeway with suspects – leaving right
against self-incrimination unprotected.
Remember that the final Grant judgement said:
[3 The submissions before us reveal that existing jurisprudence on the issues of detention and exclusion of
evidence is difficult to apply and may lead to unsatisfactory results. Without undermining the principles
that animate the jurisprudence to date, we find it our duty, given the difficulties that have been pointed out
to us, to take a fresh look at the frameworks that have been developed for the resolution of these two issues.
We will also consider the subsidiary issue that arises in this case: the meaning of "transfer" of a weapon for
the purposes of ss. 84, 99 and 100 of the Criminal Code, R.S.C. 1985, c. C-46.]
Police Interrogation and the Charter
R v Hebert 1990
R. v. Hebert (1990), 77 C.R. (3d) 145, 57 C.C.C. (3d) 1 (S.C.C.); reversing (1988), 43 C.C.C. (3d) 56 (Y.T. C.A.) — Section 7
accords a detained person a pre-trial right to remain silent, a right that extends beyond the narrow formulation of the
confessions rule and is based upon the fundamental concept of a suspect's right to freely choose whether to speak to the
authorities or remain silent. An approach to pre-trial interrogation must emphasize the right of the detainee to make a meaningful
choice and permit the rejection of statements obtained unfairly in circumstances that violate the right of choice.
Criminal Law ––– Constitutional issues in criminal law — Charter of Rights and Freedoms — Rights and freedoms —
Life, liberty and security of person — Privilege against self-incrimination.
Facts:
In January 1987 a man wearing a ski mask robbed a hotel and in the next several months three informants stated
that the accused was that man. Arrested in April, the accused was advised of his legal rights and, after contacting
counsel, he declined to provide a statement. He was placed in a cell with a plainclothes officer posing as a suspect
under arrest. During the course of their conversation the accused incriminated himself in the robbery. At trial the
judge ruled the statement to be inadmissible. The Crown offered no evidence and the accused was acquitted. The
Crown appealed. The Court of Appeal for the Yukon Territory allowed the Crown's appeal and ordered a new trial.
The accused appealed.
Held:Appeal allowed; acquittal restored.
Per MCLACHLIN J. (DICKSON C.J.C. and LAMER, LA FOREST, L'HEUREUX- DUBÉ, GONTHIER and CORY
JJ. concurring): The right to silence conferred by s. 7 of the Charter is rooted in two common law concepts. The
first is the confessions rule, which makes a confession which the authorities improperly obtained from a detained
person inadmissible in evidence. The second is the privilege against self-incrimination, which precludes a person
from being required to testify against himself at trial. Those rules share a common theme, i.e., the individual's right
to choose whether to make a statement to the authorities or remain silent, coupled with concern for the fairness
and integrity of the judicial process. The common law rules cited thus suggest that the scope of the right to silence
before trial under s. 7 must extend beyond a narrow view of the confessions rule.
The consideration of other Charter rights suggests that the right to silence of a detained person under s. 7 must be
broad enough to accord the detained person to free and meaningful choice as to whether to speak to the authorities
or to remain silent. A lesser protection would be inconsistent with the implications of the right to counsel and the right
150
against self-incrimination affirmed by the Charter, and also with the underlying philosophy and purpose of the
procedural guarantees the Charter enshrines.
The courts must therefore adopt an approach to pre-trial interrogation which emphasizes the detained person's
right to make a meaningful choice and permits the rejection of statements obtained unfairly in circumstances
violating that right of choice. The basic requirement that the suspect possess an operating mind had a subjective
element. This established, the focus under the Charter shifts to the authorities' conduct toward the accused. The
right to choose whether to speak to the authorities is thus defined objectively. Adoption of a rule involving
consideration of the accused's informed choice, as well as fairness to the accused and the repute of the administration
of justice, permits the courts to correct abuses of power against the individual while allowing them to
nevertheless admit evidence under s. 24(2) where, despite a Charter violation, the admission would not bring the
administration of justice into disrepute. This approach is distinguishable from one which assumes an absolute
right to silence in the accused, capable of being discharged only by waiver.
The objective rule suggested is subject to the following limits. First, nothing in the rule prohibits the police from
questioning the accused in counsel's absence after the accused has retained counsel. Police persuasion, short of
denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.
Second, the rule applies only after detention. Third, the rule does not affect voluntary statements made to fellow
cell-mates. Violation occurs only when the Crown subverts the suspect's right to choose not to make a statement
to authorities. Fourth, a distinction must be made between the use of undercover agents to observe the suspect,
and the use of undercover agents to actively elicit information. In the absence of eliciting behaviour by the police,
there is no violation of the accused's right to choose whether or not to speak to the police. Moreover, even where
violation of the detainee's rights is established, the evidence may, where appropriate, be admitted. Only if the court
is satisfied that its reception would likely bring the administration of justice into disrepute can the evidence be rejected,
under s. 24(2) of the Charter.
The accused exercised his choice not to speak to the police when he advised them he did not wish to make a
statement. When he later spoke to the undercover policeman, he was not reversing his decision. Instead he was
choosing to speak to a fellow prisoner. The Crown, in using a trick to negate his decision not to speak, violated the
accused's rights under s. 7 of the Charter. Section 1 of the Charter was inapplicable because the conduct of the police
at issue was not “prescribed by law” within that section.
Where, as in this case, an accused is conscripted to give evidence against himself after clearly electing not to do so,
and where the resultant statement is the only evidence against him, the reception of the evidence would render the
trial unfair. The Charter violation was a serious one. The effect of the exclusion of the evidence was serious, since it
would result in acquittal. In balancing these factors, it was clear that the evidence should be excluded under s. 24(2)
of the Charter.
Power Point
R v Hebert 1990
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SCC (1990) – [pp921-937] issue is whether jailhouse confessions violate Charter; court holds right to silence under
s.7 infringed
Accused arrested for robbery declines to speak to police after exercises right to talk to counsel; accused then lodged in
cell with officer disguised in plainclothes who engages accused in conversation, obtains incriminating statements
Trial judges finds accused’s right to silence under s.7 breached, as well as s.10(b), evidence excluded
Sopinka J – right to remain silent part of s.7 principles of fundamental justice, not just part of privilege against
self-incrimination [p924]
Right to silence not merely part of voluntariness in confessions rules; s.7 protection at least as broad as common
law rules, admissibility now governed by s.24(2) Charter
Right to remain silent arises when coercive power of state brought to bear against individual, subject to waiver
[p927]
Prior to time adversary relationship exists, right to silence has not attached, undercover police work may proceed,
eg., use of wire on police informant
Right to remain silent, like right to counsel, predicated on fair treatment of accused in criminal process
Waiver subject to awareness of consequences test – deliberate deception prevents accused from giving informed
waiver [p928]
Right to silence under s.7 violated
McLachlin J principal judgment – s.7 accords right to silence to detained person [p.930]
Scope of right to silence must be defined broadly to preserve right to choose whether to speak to authorities or remain
silent – to permit authorities to trick suspect into making statement after he/she exercises right to speak to
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counsel and declines to make statement would allow authorities to do indirectly what Charter forbids them to do
directly
Right to choose whether to speak to authorities defined objectively rather than subjectively
Not an absolute right to silence which can only be discharged by waiver – right to silence does not prohibit police
questioning after accused retains counsel, lawyer (not police) advises of right not to silence [p933]
Protection only applies after detention- Charter does not extend right to pre-detention investigation where police
tricks used
Right to silence does not affect voluntary statements made to fellow cellmates
Undercover agents may still observe suspect
Hebert: Right to Silence; Police Cannot do indirectly what they cannot do directly
The right to silence conferred by s. 7 of the Charter is rooted in two common law concepts. The first is the confessions rule,
which makes a confession which the authorities improperly obtained from a detained person inadmissible in evidence. The
second is the privilege against self-incrimination, which precludes a person from being required to testify against himself at
trial. Those rules share a common theme, i.e., the individual's right to choose whether to make a statement to the
authorities or remain silent, coupled with concern for the fairness and integrity of the judicial process. The common law
rules cited thus suggest that the scope of the right to silence before trial under s. 7 must extend beyond a narrow view of the
confessions rule.
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Scope of right to silence must be defined broadly to preserve right to choose whether to speak to authorities or remain
silent – to permit authorities to trick suspect into making statement after he/she exercises right to speak to
counsel and declines to make statement would allow authorities to do indirectly what Charter forbids them to do
directly
Right to silence does not affect voluntary statements made to fellow cellmates
Undercover agents may still observe suspect
Point of Case: Cannot do indirectly what they cannot do directly. It is re 10b of the Charter, but the
right to silence is s.7, and 11 b, is the right against self. Not allowed to trick an accused out of his rights;
Sopinka. Point of Case: Cannot do indirectly what they cannot do directly. It is re 10b of the Charter,
but the right to silence is s.7, and 11 b, is the right against self incrimination. P. 924, last para, bottom –
fundamental – silence and against self-incrimination:
The Right to Remain Silent and S. 7
18 Section 7 of the Charter reads as follows:
7. 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.
19 The principal difficulty in any discussion of the right to remain silent, whether at the constitutional or common
law level, is the temptation to equate the right with the related privilege against self-incrimination. This
distinction is discussed in my reasons for judgment in Thomson Newspapers Ltd. v. Can. (Dir. of Investigation &
Research), [1990] 1 S.C.R. 425, 72 O.R. (2d) 415, 76 C.R. (3d) 129. It has been clear since the judgments of this court
in Curr v. R., [1972] S.C.R. 889, 18 C.R.N.S. 281, 7 C.C.C. (2d) 181, 26 D.L.R. (3d) 603 [Ont.], and Marcoux v. R.,
[1976] 1 S.C.R. 763, 29 C.R.N.S. 211, 24 C.C.C. (2d) 1, 60 D.L.R. (3d) 119, 4 N.R. 64 [Ont.], that the privilege
against self-incrimination has a very limited scope and applies only in the course of proceedings. As Dickson J.
(as he then was) stated in Marcoux at p. 768: “The privilege is the privilege of a witness not to answer a question
which may incriminate him.” This circumscription of the privilege accords with both its history and its purpose: see
Cross on Evidence, 6th ed. (1985), at pp. 189–90. A privilege is an exclusionary rule of evidence which is
appropriately asserted in court.
20 However, it cannot be denied that, apart altogether from the privilege, the right to remain silent — the right
not to incriminate oneself with one's words — is an integral element of our accusatorial and adversarial system
of criminal justice. As Cory J.A. (as he then was) noted in R. v. Woolley (1988), 63 C.R. (3d) 333, 40 C.C.C. (3d) 531
at 539, 37 C.R.R. 126, 25 O.A.C. 390 (C.A.): “The right to remain silent is a well-settled principle that has for
generations been part of the basic tenets of our law.” (See also R. v. Hansen (1988), 46 C.C.C. (3d) 504 (B.C.C.A.).)
In a different context, Lamer J. pointed out in R. v. Collins, [1987] 1 S.C.R. 265 at 284, 56 C.R. (3d) 193, [1987] 3
W.W.R. 699, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 38 D.L.R. (4th) 508, 28 C.R.R. 122, 74 N.R. 276, that the
acquisition of a self-incriminatory admission from an accused following a Charter violation “strikes at one of the
fundamental tenets of a fair trial, the right against self-incrimination”. I take Lamer J.'s words to mean that the full
range of an accused's right to stand mute in the face of an accusation by the state is not exhausted by reference to
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the privilege against self-incrimination as that privilege has been defined by this court. It follows, it seems to me, that
the basic principle under lying the right to remain silent must be a “principle of fundamental justice” within the
meaning of s. 7 of the Charter. In other words, the right to remain silent is truly a right.
So note, that there are different ways to challenge admissibility of a statement – 10b, 7, 11. At common
law there is an obligation on the crown to prove voluntariness of a statement. This is not a charter
issue. Yet there might be a charter allegation as well – 10b breach (counsel) or s.7 (silence). Onus of
proof is different. On defendant for charter claims. [and then s.24 might not even allow for exclusion.]
On crown for voluntariness.
Exam: approach it from common law: confession – voluntary? And then also Charter. Protection
applies only for individuals after detention.
R v Manninen 1987
R. v. Manninen (1987), 58 C.R. (3d) 97, 34 C.C.C. (3d) 385 (S.C.C.) — In addition to the duty to inform a detainee of his
rights, s. 10(b) mandates that the police provide the detainee with a reasonable opportunity to exercise the right to retain
and instruct counsel without delay. It is not necessary for an accused to make an express request to use the telephone: the
duty to facilitate contact with counsel includes the duty to offer use of the telephone. Section 10(b) further imposes on the
police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he/she has had a
reasonable opportunity to obtain advice from counsel as to how to exercise his/her rights.
Criminal Law ––– Constitutional issues in criminal law — Charter of Rights and Freedoms — Charter remedies —
Exclusion of evidence.
Facts:
The accused was arrested for theft and possession of a stolen car and armed robbery. The arresting officer read the
accused his rights from a card twice because of a flippant remark the accused made following the first reading. Even
though the accused then said that he was not going to say anything until he had seen his lawyer, the officers
continued to question him. The accused did not directly request the use of an available telephone, and the police
officers did not volunteer it. The accused did not speak to his lawyer until his lawyer called him at the police
station that evening. The trial judge, in convicting the accused, relied on an incriminating statement made by the
accused in reply to a barbed question by the police, asked before the lawyer had made contact with the accused.
The trial judge held that, even if the right to counsel had been infringed, the admission of the statements would
not bring the administration of justice into disrepute. The Ontario Court of Appeal allowed the accused's appeal,
quashed the convictions and ordered a new trial on the basis that there had been a serious violation of the accused's
rights under s. 10(b) of the Canadian Charter of Rights and Freedoms which was deliberate and flagrant and not
justified by circumstances of urgency. The exclusion of the evidence under s. 24(2) was the only meaningful
sanction if the accused's rights were not to become empty. The Crown appealed.
Held: Appeal dismissed.
Section 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform a detainee of
his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain
and instruct counsel without delay. The duty to facilitate contact with counsel includes the duty to offer the
accused the use of a telephone. There may be circumstances in which it is particularly urgent for the police to
continue the investigation before it is possible to facilitate the communication with counsel. However, there was no
such urgency here. Secondly, the police must cease questioning until the detainee has had a reasonable
opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be
informed of his rights and obligations under the law but, equally if not more importantly, to obtain advice as to how to
exercise those rights. Here, this aspect of the right to counsel had been clearly infringed. After the accused's clear
assertion of his right to remain silent and his desire to consult his lawyer, the police officer had commenced
questioning. There might be circumstances in which it is particularly urgent for the police to proceed with their
questioning, but there was no such urgency here.
While a person may implicitly waive his rights under s. 10(b), the standard is very high. Here, there had been no
implied waiver, given that the accused had asserted his right at the beginning and the end of the questioning.
Section 24(2) requires that the impugned evidence have been obtained in a manner that infringed the Charter.
There must be some relationship or connection between the violation and the evidence. Here, the evidence had
been obtained as a direct consequence of the violation.
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For evidence to be excluded under s. 24(2), the admission of the evidence in the proceedings must bring the
administration of justice into disrepute. Here, that test was met. The violation of the right to counsel was very
serious. The police officers had simply ignored the rights they had read the accused and his express desire to
exercise the right to silence and the right to counsel. There were no circumstances of urgency, the violation had been
deliberate and flagrant, and the evidence obtained was self-incriminatory. The use of such evidence, obtained
following a denial of the right to counsel, will generally go to the fairness of the trial, and thus will generally
bring the administration of justice into disrepute. The fact that the offence was a serious one and the accused's guilt
clearly established could not justify the admission of the statement.
Power Point:
R v Manninen
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SCC (1987) [pp939-944] – scope of right to counsel case under s.10(b) Charter of Rights
Accused arrested for theft, advised of rights, asks to speak to lawyer, makes some admissions, profane denials at same
time: “Prove it. I ain’t saying anything until I see my lawyer…”
S.10(b) imposes 2 duties on police in addition to inform detainee of rights: (1) provide detainee reasonable
opportunity to exercise right to retain and instruct counsel without delay (2) cease questioning until detainee has
reasonable opportunity to retain and instruct counsel [p941]
For right to counsel to be effective, detainee must have access to advice before being questioned or required to
provide evidence
While person may implicitly waive rights under s.10(b), standard will be very high
Accused’s s.10(b) rights infringed, sufficient connection or relationship between violation and evidence, evidence
excluded under s.24(2) [p941]
Manninen: 2 duties after 10b caution: provide opportunity and cease questioning until exercized
R. v. Manninen (1987), 58 C.R. (3d) 97, 34 C.C.C. (3d) 385 (S.C.C.) — In addition to the duty to inform a detainee of his
rights, s. 10(b) mandates that the police provide the detainee with a reasonable opportunity to exercise the right to retain
and instruct counsel without delay. It is not necessary for an accused to make an express request to use the telephone: the
duty to facilitate contact with counsel includes the duty to offer use of the telephone. Section 10(b) further imposes on the
police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he/she has had a
reasonable opportunity to obtain advice from counsel as to how to exercise his/her rights.
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While person may implicitly waive rights under s.10(b), standard will be very high
P.941 – Fuckers! – he understands his counsel rights
8 Constable MacIver then returned to the car, where he found two knives and the grey sweatshirt. While Constable
MacIver was out of the room, Constable Train asked the respondent the following questions:
Q. What is your business here, Ron?
A. [No response.]
Q. Do you know someone that works here?
A. No. Why?
Q. Why did you come to this place?
A. [No response.]
Constable MacIver returned to the office, showed the respondent the two knives he had found in the car and had
the following conversation with the respondent:
Q. What are these for?
A. What the fuck do you think they are for? Are you fucking stupid?
Q. You tell me what they are for, and is this yours? [showing the grey sweatshirt]
A. Of course it's mine. You fuckers are really stupid. Don't bother me any more. I'm not saying
anything until I see my lawyer. Just fuck off. You fuckers have to prove it.
Bottom 941: “In my view…” note “reasonable opportunity” meaning. Duties: reasonable opportunity to
exercise it, 2: cease questioning until opportunity is able to be accessed.
21 In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of
his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain
and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to
counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was
recognized in Canadian law well before the advent of the Charter. In Brownridge v. R., [1972] S.C.R. 926, 18
C.R.N.S. 308, 7 C.C.C. (2d) 417, 28 D.L.R. (3d) 1 [Ont.], a case decided under the Canadian Bill of Rights, Laskin J.
(as he then was) wrote at 952-53:
154
The right to retain and instruct counsel without delay can only have meaning to an arrested or detained
person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with
counsel. This means allowing him upon his request to use the telephone for that purpose if one is
available.
The duty to facilitate contact with counsel has been consistently acknowledged under s. 10(b) of the Charter by the
lower courts: R. v. Nelson (1982), 32 C.R. (3d) 256, 3 C.C.C. (3d) 147, 4 C.R.R. 88 (Man. Q.B.); R. v. Anderson
(1984), 45 O.R. (2d) 225, 39 C.R. (3d) 193, 10 C.C.C. (3d) 417, 7 D.L.R. (4th) 306, 9 C.R.R. 161, 2 O.A.C. 258
(C.A.); R. v. Dombrowski (1985), 44 C.R. (3d) 1, 18 C.C.C. (3d) 164, 14 C.R.R. 165, 37 Sask. R. 259 (C.A.); and the
Ontario Court of Appeal in this case. In Dombrowski, the court held that, where a telephone is available at an earlier
occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police
station.
Can’t just give him a phone book, and come back 10 minutes later and start questioning. – Subject to
exigencies – 3 hours in a breath sample case. The point of case: 2 duties; Standard of waiver is high
LECLAIR and ROSS v. R.1989
Criminal Law ––– Constitutional issues in criminal law — Charter of Rights and Freedoms — Right to counsel — Right
to retain and instruct counsel without delay. — Charter remedies — Exclusion of evidence.
Facts:
The accused were arrested in the middle of the night and charged with break, enter and theft. They were advised
of their right to counsel and tried unsuccessfully to contact their counsel by telephone. The police conducted a
line-up an hour later. Neither accused was advised that he was under no obligation to participate. The accused were
convicted at trial, and their appeal to the Court of Appeal was dismissed. They appealed further.
Held: Appeal allowed; new trial ordered.
Per Lamer J. (Beetz, Wilson and La Forest JJ. concurring)
Under s. 10(b) of the Canadian Charter of Rights and Freedoms, the police must give an accused or detained person
who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay.
Secondly, the police must refrain from attempting to elicit evidence from the detainee until the detainee has had
a reasonable opportunity to retain and instruct counsel. In this case the police fulfilled neither duty. There was no
urgency or other reason justifying that the police proceed forthwith, and it could not be said that the accused had a
real opportunity to retain and instruct counsel. Once an accused has asserted his right to counsel, the police cannot
in any way compel the accused to make a decision or participate in a process which could ultimately have an adverse
effect on the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. There
was nothing to suggest that the line-up could not have been held a few hours later, after the accused had again
attempted to contact their lawyers during normal business hours.
There is no legal obligation to participate in a line-up. Failure to participate, however, can have legal consequences
respecting the evidence that might be admitted at trial. The accused were deprived of their right to be advised of these
things. They were unable to make an informed decision about participating in the line-up because they were
unaware of their legal position, not having been advised by their lawyers.
Evidence must be excluded under s. 24(2) of the Charter if, having regard to all the circumstances, it is
established that to admit the evidence would (in the sense that it “could”) bring the administration of justice into
disrepute. The first category of factors to be considered relates to the fairness of the trial process. The use of any
evidence that could not have been obtained but for the participation of the accused in the construction of the
evidence for the purposes of the trial would render the trial process unfair. A person's identity is pre-existing “real
evidence”, inasmuch as a person's physical characteristics exist irrespective of any Charter violation. However, the
identification evidence obtained through a line-up is not simply pre-existing “real evidence”. The object of the
line-up is to construct evidence that the accused was picked out from a similar group of people by a witness who was
not prompted in any way to make that choice, and to settle the memory of the witness for the purpose of the trial.
When participating in a line-up, the accused is participating in the construction of credible inculpating evidence.
An accused who is told to participate in a line-up is conscripted against himself, and such evidence goes to the
fairness of the trial process. The accused were young, and could be assumed to have been unaware of their rights.
This was not a case of a good faith error in police conduct resulting in an inadvertent denial of the right to counsel.
The scope of the right to counsel in the circumstances of this case was clear and well settled. Having regard to all
the circumstances, the accused had established that the admission of the line-up evidence would
bring the administration of justice into disrepute. The evidence should have been excluded.
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Power Point:
Leclair and Ross v R
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Leclair
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SCC (1989) [pp943-950]– s.10(b) right in line-up case, not statement case
Accused arrested for break-in, advised of rights to counsel, unable to contact lawyer at 2:00am, do not wish to call
another lawyer; police stage line-up at station at 3:00am, accused not told under no obligation not to participate
Accused obviously detained, told of right to retain counsel, exercise that right without success [p946]
Once accused asserts right to contact counsel, absent clear indication of change of mind, unreasonable for police
to proceed as if waiver of counsel – burden on crown to establish unequivocal waiver, fails to discharge onus
Once accused fails to reach lawyer, police assumed their obligation to provide reasonable opportunity to retain
counsel at an end
Police have duty to cease questioning or eliciting evidence from detainee until reasonable opportunity to retain
counsel – this also means police cannot compel person to make decision or participate in process that could have
adverse impact on trial until reasonable opportunity to exercise right to counsel [p948]
While desirable to hold line-up soon as possible, concern yields to right of suspect to retain counsel, which must be
exercised with reasonable diligence
Fact that accused did not refuse to participate is not same as waiver
Leclair & Ross v R: Inability to contact lawyer immediately not same as Waiver
Under s. 10(b) of the Canadian Charter of Rights and Freedoms, the police must give an accused or detained person who
so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay. Secondly, the
police must refrain from attempting to elicit evidence from the detainee until the detainee has had a reasonable
opportunity to retain and instruct counsel.
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Once accused asserts right to contact counsel, absent clear indication of change of mind, unreasonable for police
to proceed as if waiver of counsel – burden on crown to establish unequivocal waiver, fails to discharge onus
Once accused fails to reach lawyer, police assumed their obligation to provide reasonable opportunity to retain
counsel at an end
Police have duty to cease questioning or eliciting evidence from detainee until reasonable opportunity to retain
counsel – this also means police cannot compel person to make decision or participate in process that could have
adverse impact on trial until reasonable opportunity to exercise right to counsel [p948]
P.946 – Analysis section: police not on good grounds to compel the line-up:
Analysis (1) A reasonable and effective opportunity to retain and instruct counsel
14 The appellants were obviously detained, and that they had the right to retain and instruct counsel is not in
dispute. Moreover, the police complied initially with s. 10(b) and advised Ross and Leclair of their right to retain and
instruct counsel without delay. As this court held in R. v. Manninen, [1987] 1 S.C.R. 1233, 58 C.R. (3d) 97, 34 C.C.C.
(3d) 385, 41 D.L.R. (4th) 301, 21 O.A.C. 192, 76 N.R. 198, s. 10(b) imposes at least two duties on the police in
addition to the duty to inform detainees of their rights. The first is that the police must give the accused or detained
person who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay.
The second is that the police must refrain from attempting to elicit evidence from the detainee until the detainee
has had a reasonable opportunity to retain and instruct counsel. I am of the view that in this case the police
fulfilled neither duty.
When the accused unable to reach lawyer, didn’t mean that the police were no longer obliged to give
reasonable further opportunity. P.948 – Refraining from taking further steps … duty to cease questioning:
17 Moreover, once the appellant asserted his right to instruct counsel, and absent a clear indication that he had
changed his mind, it was unreasonable for the police to proceed as if Leclair had waived his right to counsel. As a
majority of this court held in Clarkson v. R., [1986] 1 S.C.R. 383 at 394-95, 50 C.R. (3d) 289, 25 C.C.C. (3d) 207, 26
D.L.R. (4th) 493, 19 C.R.R. 209, 69 N.B.R. (2d) 40, 177 A.P.R. 40, 66 N.R. 114:
Given the concern for fair treatment of an accused person which underlies such constitutional civil
liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right
by an accused must be carefully considered and that the accused's awareness of the consequences of
what he or she was saying is crucial. Indeed, this Court stated with respect to the waiver of statutory
156
procedural guarantees in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at p. 49, that any
waiver
“... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard
and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the
waiver will have on those rights in the process” (emphasis in original).
Since the evidence reveals that Leclair asserted his right to counsel, the burden of establishing an unequivocal
waiver is on the Crown. Here, the Crown has failed to discharge the onus.
Smith v R 1989
Power Point:
Smith v R
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SCC (1989) [pp951-959] – statement case, accused says he will wait for morning to contact counsel, police suggest
he call at night, accused provides statement when police persist with questions, makes it “off the record”
Issue is whether police provided accused with reasonable opportunity to contact counsel
Accused never expresses wish to contact counsel – as result police entitled to continue questioning accused
Limits on rights of accused essential, or would provide impunity to delay investigation, lose evidence; Charter right
to contact counsel not absolute nor unlimited [p952]
Case is example of where accused not being reasonably diligent in exercise of rights, not case where accused fails
in attempt to contact counsel
One who is not diligent in exercising right to counsel does not lose right, can always exercise it, but police not
required to cease questioning until person has reasonable opportunity to exercise right
Dissenting opinion – accused not provided with reasonable opportunity to contact counsel, no waiver by him
[p955]
Accused asserted and continued to assert right to counsel, as in Manninen
Fact that accused did not attempt to call lawyer not fatal – willing to spend night in jail when likely would not be
able to talk to counsel that night
Bottom Para on 952: “the rights set out… not absolute:
This limit on the rights of an arrested or detained person is essential because without it, it would be possible to
delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of
evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the
right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in way that is
reconcilable with the needs of society. An arrested or detained person cannot be permitted to hinder the work of the
police by acting in a manner such that the police cannot adequately carry out their tasks.
The case at bar is a situation where an arrested or detained person was not reasonably diligent in the exercise of his
rights. The appellant was arrested and informed of his right to retain and instruct counsel around 7:00 p.m. About two
hours had passed before he expressed the wish to exercise his right to retain counsel and, after having expressed
this wish, he decided, in view of the above-mentioned circumstances, that it was useless to try to contact his
lawyer. In acting in such a way, the appellant was not, in my view, reasonably diligent in the exercise of his rights. We
are not able to conclude that it would have been impossible for him to contact his lawyer when he was arrested or
at 9:00 p.m. when, at the police station, the police gave him a telephone book and brought him to a telephone. The
majority of counsel working in the field of criminal law, or the lawyers who are working for them, are usually available
outside normal office hours and may be reached in one way or another. A call to their office sometimes enables one to
obtain another telephone number where it is possible to reach them, to leave a message or to speak with someone in
charge of receiving and transferring messages to them.
The situation would be very different if, as in the case of R. v. Ross, supra, the appellant had tried to contact his
lawyer but had failed in his attempt. The appellant, in these circumstances, would have been justified to ask for a
delay until the opening of offices in the morning. However, his decision to not even try to contact his lawyer is fatal,
in my View, and prevents him from establishing that he was reasonably diligent in the exercise of his rights. The
burden of proving that it was impossible for him to communicate with his lawyer when the police offered
him the opportunity to do so was on the appellant.
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Smith v R: Accused must be Diligent in Exercise of 10b Rights
Point: police must give reasonable but defendant must be diligent. If you make no attempt to contact
your lawyer, it’s going to be hard to argue; even if you are right that you won’t be able to contact him.
The effort shows the diligence required. The individual never loses his right to exercise the right.
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Issue is whether police provided accused with reasonable opportunity to contact counsel
Accused never expresses wish to contact counsel – as result police entitled to continue questioning accused
Limits on rights of accused essential, or would provide impunity to delay investigation, lose evidence; Charter right
to contact counsel not absolute nor unlimited [p952]
Case is example of where accused not being reasonably diligent in exercise of rights, not case where accused fails
in attempt to contact counsel
One who is not diligent in exercising right to counsel does not lose right, can always exercise it, but police not
required to cease questioning until person has reasonable opportunity to exercise right
R v McKenzie
Power Point
R v McKenzie
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Ont.C.A. (2002) Moldaver J.A. - [pp961-971] – accused arrested for murder, says he wants to speak to lawyer,
before doing so utters incriminating responses
Issue in case is meaning of word “elicit” in sense of police ceasing questioning or attempting to elicit evidence before
accused given reasonable opportunity of consulting counsel
Test to be applied concentrates on interchange between accused and detainee to determine in all of circumstances
whether causal link between conduct of police and making of statement
Trial judge errs in focusing on whether accused accorded right to consult counsel and if so, whether police
effectively deprived him of right to choose to remain silent – had correct test been applied, causal link between
police conduct and making of statement, s.10(b) violation [para 31]
McKenzie: Issue: meaning of “elicit;” - causal link between conduct of police and incriminating of
statement
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Accused states several times that wants to speak to his lawyer, but police inform him of incriminating evidence –
that he had already incriminated himself before arrest when he spoke to individual who then revealed himself to
the accused to be an undercover officer - calculated to create a devastating effect on mind of accused
In assessing police conduct and impact on accused, starting point is not that accused having consulted with
counsel was aware of his right to remain silent, but that he was unaware he had such a right or at least unaware
how to exercise it
While police did not pose direct questions, conduct is equivalent of interrogation [para 35]
Conduct of police form of manipulation which, even if unintended, had effect of bringing about mental state in
which accused more likely to talk
Para 31: causal link between police conduct and making of statement, s.10 (b) violation:
Confronted accused with the knowledge that his “friend’ had actually been a cop:
31 Returning to the case at hand, I am respectfully of the view that the trial judge did not apply the correct test in
determining whether the impugned statements were elicited by the police in contravention of the appellant’s 10(b)
rights. Rather than looking at all of the circumstances to determine if there was a causal link between the conduct of
the police and the making of the statements, the trial judge applied the test from Hebert, supra designed to
determine when police conduct will be viewed as depriving an accused of his or her right to choose to speak to the
police or remain silent in contravention of s. 7 of the Charter. For convenience, I repeat the relevant portion of the
trial judge’s reasons, commencing with the passage from Hebert containing the two questions which the trial judge
obviously considered important in resolving the s. 10(b) issue before him:
Questions to be considered: “Was the suspect accorded his/her right to consult counsel? By extension, is
there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus
negating the purpose of the right to counsel?
My finding here is simply and directly that the suspect was accorded his right to consult counsel and I do not
find that there is anything in the police conduct which effectively deprived the suspect of his right to choose
to remain silent, thus negating the purpose of the right to counsel. I find that the statements that the accused
made are statements that he made freely, without any urging or pressing. I do not find that the process of
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revealing to somebody the case against them, starting by saying, “We understand you don’t want to say
anything”, ending by saying, “We confirm you don’t want to say anything”, and “Just make sure you tell
your lawyer about it”; I fail to find that that in anyway whatsoever infringes the provision or the spirit of the
provisions of s. 10(b). [Emphasis added].
32 As indicated, I believe that in focusing on the two questions posed in Hebert, the trial judge used the wrong test
to assess the s. 10(b) issue before him. Even on the test he used the trial judge’s analysis cannot be sustained
because of his finding, in response to the first question, that the appellant had in fact been accorded his right to
consult with counsel. With respect, that finding is not supported by the evidence. The record is clear that although
the appellant was allowed to phone his lawyer, he did not speak to him. Manifestly the right to retain and
instruct counsel means more than being afforded an opportunity to place a phone call to one’s lawyer. It entails
speaking with the lawyer or at the very least, being given a reasonable opportunity to do so.
Para 35 – a form of manipulation – equivalent to an interrogation – violation:
35. In my view, had the trial judge approached the matter that way, he would have concluded that although the
police did not pose direct questions to the appellant in the hope of eliciting an incriminatory response, their conduct
amounted to the equivalent of an interrogation. Certainly, based on Constable Ouellette’s experience, it was not
unreasonable in the circumstances to expect that the appellant would “come clean” upon learning Ouellette’s true
identity, without the need for a direct question such as: “What do you have to say about your involvement now?”
R v Brydges 1990
R. v. Brydges (1990), 74 C.R. (3d) 129, 53 C.C.C. (3d) 330 (S.C.C.) — [per Lamer, Wilson, Gonthier and Cory JJ.] — As part of
the information component of s. 10(b), each detainee must be informed, as a matter of routine, of the existence and
availability of the applicable duty counsel and Legal Aid systems, so that D has a full understanding of the right to retain and
instruct counsel.
Criminal Law ––– Constitutional issues in criminal law — Charter of Rights and Freedoms — Rights and freedoms —
Right to counsel — Right to be informed of availability of legal aid Charter remedies — Exclusion of evidence.
Facts:
The accused was charged with second degree murder. On two occasions after his arrest he was asked if he wished to
call a lawyer. He responded by saying: “I don't know of any”, “Do they have any free Legal Aid or anything like
that up here?” and “Won't be able to afford anyone hey?” He then stated he did not need to talk to counsel “right now”.
The accused subsequently made statements which were excluded at trial. The trial judge ruled that the accused's
response to the Charter warning was equivocal and that he had not waived his right to counsel. In addition, the
judge ruled that admission of the statements would bring the administration of justice into disrepute. The accused
was acquitted and the Crown appealed. The Court of Appeal allowed the appeal and ordered a new trial, holding
that the record did not support a finding that the accused did not understand his rights and that further explanation was
not required. The accused appealed.
Held: Appeal allowed; acquittal restored.
Per Lamer J. (for the court):
The trial judge's findings of fact in this case should not be disturbed. In particular the trial judge had correctly
concluded that the accused had essentially requested the assistance of counsel but felt that his inability to afford a
lawyer impeded his right to retain one. Since the accused did not understand fully his right to counsel he was unable
to consider the consequences of waiving that right. Therefore the accused did not waive his right to counsel.
Once the accused had, in effect, requested the assistance of counsel, it was incumbent on the police to facilitate
contact with counsel by giving the accused a reasonable opportunity to exercise his right to counsel. When an accused
expresses a concern that his inability to afford a lawyer is an impediment to the exercise of the right to counsel, there is
a duty on the police to inform him of the existence of duty counsel and the ability to apply for Legal Aid. An
accused's need for legal advice without delay is linked to protection of the right against self-incrimination. For this
reason, there is a duty on the police to cease questioning a detainee until he has had a reasonable opportunity to
retain and instruct counsel. The decision to retain counsel remains with the detainee.
The failure of the police to inform the accused of the existence of Legal Aid or duty counsel when he first
indicated a concern about his ability to pay a lawyer restricted his right to counsel insofar as he was left with an
erroneous impression of the nature and extent of his rights under s. 10(b) of the Charter. Those rights were
therefore violated.
159
The evidence obtained as a result of the s. 10(b) violation was properly excluded under s. 24(2) of the Charter. A causal
link between a Charter infringement and the evidence thereby obtained need not be established. Section 24(2) is
implicated as long as a Charter violation occurs while evidence is being obtained, as was the case in this instance.
The admission of the evidence obtained in violation of the Charter would bring the administration of justice into
disrepute. The nature of the evidence obtained was conscripted or self-incriminatory evidence, the admission of
which would normally render a trial unfair. It was a serious error not to inform the accused of the existence of Legal
Aid or duty counsel. In balancing the admission of the evidence against its exclusion a consideration was that the
statements at most represented evidence of consciousness of guilt and admissions of recent possession of property
stolen from the victim's home. The mere fact that an accused was charged with a serious offence did not justify
the admission of evidence where there had been a serious Charter violation and the admission of the evidence
would affect the fundamental fairness of the trial.
Power Point:
R v Brydges
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SCC (1990) [pp973-985] – issue is duty of police under s.10(b) when accused unable to afford lawyer
Accused arrested, advised of right to counsel, asks if free legal aid available; out of province officer not sure, later
obtains list of lawyers, one attends station, accused declines to say anything further
Trial judge finds s.10(b) violated, excludes statements, holds police should have assisted accused finding legal aid
lawyer at time, not later on
Rights under s.10(b) triggered by arrest or detention
Duties on police in addition to informing of right: provide reasonable opportunity to exercise right; refrain from
questioning, attempting to elicit evidence until detainee has had that reasonable opportunity [p977]
Rights not absolute, accused must exercise right to counsel diligently, or correlative duties on police suspended
Trial judge found accused essentially requesting assistance of counsel, but inability to afford lawyer impediment to
exercise of right to retain one [p978]
Accused did not waive right to retain and instruct counsel – once accused requests assistance of counsel, incumbent
on police to facilitate contact by giving accused reasonable opportunity to exercise right
where concern over ability to afford counsel, duty on police to inform of duty counsel, ability to apply for legal aid
Where accused expresses concern that right to counsel depends on ability to afford counsel, police must inform of
existence, availability of legal aid and duty counsel
Consistent with purpose underlying s.10(b) of Charter to impose this duty on police in all cases, otherwise police will
have to make this determination every case [p981]
Information as to existence and availability of duty counsel, legal aid must be part of standard s.10(b) caution
upon arrest or detention
As part of informational component under s.10(b), detainee to be told of duty counsel, legal aid plans
Imposition of this additional duty impacts on issue of detainee’s reasonable diligence in seeking initial advice of
counsel – may be unreasonable not to speak to duty counsel if counsel of choice unavailable [p983]
Transition period of 30 days allowed for police to re-word caution cards to incorporate new advice as to duty
counsel, legal aid plans
Brydges: Must ensure accused has full understanding of Right to Counsel “now” – Caution ReWorded
R. v. Brydges (1990), 74 C.R. (3d) 129, 53 C.C.C. (3d) 330 (S.C.C.) — [per Lamer, Wilson, Gonthier and Cory JJ.] — As part of
the information component of s. 10(b), each detainee must be informed, as a matter of routine, of the existence and
availability of the applicable duty counsel and Legal Aid systems, so that D has a full understanding of the right to retain and
instruct counsel.
The trial judge's findings of fact in this case should not be disturbed. In particular the trial judge had correctly concluded that
the accused had essentially requested the assistance of counsel but felt that his inability to afford a lawyer impeded his right to
retain one. Since the accused did not understand fully his right to counsel he was unable to consider the consequences of
waiving that right. Therefore the accused did not waive his right to counsel.
This case made it necessary for police to change their charter warning to include duty counsel for
free. P.977 – bottom two paras – duties of police and duties of diligence on the detainee:
Analysis
13 Section 10(b) of the Charter reads as follows:
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right.
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This court has on numerous occasions stated that the proper approach to interpreting the meaning of the rights and
freedoms guaranteed by the Charter is to adopt a purposive analysis: Hunter v. Southam Inc., [1984] 2 S.C.R. 145,
(sub nom. Dir. of Investigation & Research, Combines Investigation Branch v. Southam Inc.) [1984] 6 W.W.R. 577, 33
Alta. L.R. (2d) 193, 41 C.R. (3d) 97, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, 2 C.P.R. (3d) 1, 9 C.R.R.
355, 84 D.T.C. 6467, 55 A.R. 291, 55 N.R. 241, and R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, [1985] 3
W.W.R. 481, 37 Alta. L.R. (2d) 97, 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, 13 C.R.R. 64, 85 C.L.L.C. 14,023, 60
A.R. 161, 58 N.R. 81. In respect of s. 10 of the Charter, this court has made clear that the right to counsel is, to cite
the words of Wilson J. in Clarkson, at p. 394, aimed “at fostering the principles of adjudicative fairness”, one of
which is “the concern for fair treatment of an accused person”. It is of note that the right to counsel is triggered “on
arrest or detention”. Fair treatment of an accused person who has been arrested or detained necessarily implies that
he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the
police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty,
then, on the police to facilitate contact with counsel because, as I stated in R. v. Manninen, [1987] 1 S.C.R. 1233 at
1242–43, 58 C.R. (3d) 97, 34 C.C.C. (3d) 385, 41 D.L.R. (4th) 301, 38 C.R.R. 37, 21 O.A.C. 192, 76 N.R. 198:
The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and
obligations under the law but, equally if not more important, to obtain advice as to how to exercise those
rights ... For the right to counsel to be effective, the detainee must have access to this advice before he is
questioned or otherwise required to provide evidence.
As a result, s. 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform the
detainee of his rights. First the police must give the accused or detained person a reasonable opportunity to
exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or
attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity. The second
duty includes a bar on the police from compelling the detainee to make a decision or participate in a process
which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a
reasonable opportunity to exercise the right to counsel: R. v. Ross, [1989] 1 S.C.R. 3 at 12, (sub nom. R. v. Leclair) 67
C.R. (3d) 209, 46 C.C.C. (3d) 129, 37 C.R.R. 369, 31 O.A.C. 321, 91 N.R. 81.
14 It is the case, however, that the rights set out in the Charter are not absolute. Indeed, this court has held that the
right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, then the
correlative duties on the police are suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, 60 C.R. (3d) 59, 2 M.V.R. (2d)
289, 37 C.C.C. (3d) 565, 45 D.L.R. (4th) 445, 32 C.R.R. 381, 25 O.A.C. 93, 79 N.R. 153. What constitutes reasonable
diligence on the part of the detainee has been considered by this court in R. v. Ross, at p. 11:
Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing
the accused or detained person. On being arrested, for example, the detained person is faced with an
immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when
seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless,
accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be
available within a reasonable time that the detainee or the accused should be expected to exercise the right to
counsel by calling another lawyer.
A detainee may, either explicitly or implicitly, waive his right to retain and instruct counsel, although the standard
will be very high where the alleged waiver is implicit. A majority of this court in Clarkson concluded as follows in
respect of a waiver of the right to counsel at pp. 394–95, a passage that has been cited with approval in subsequent
cases dealing with s. 10(b):
... it is evident that any alleged waiver of this right by an accused must be carefully considered and that the
accused's awareness of the consequences of what he or she is saying is crucial. Indeed, this Court stated
with respect to the waiver of statutory procedural guarantees in Korponay v. Attorney General of Canada,
[1982] 1 S.C.R. 41, at p. 49, that any waiver
“... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard
and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the
waiver will have on those rights in the process”. [emphasis in original]
This then, briefly stated, is a summary of the principles developed thus far by this court in respect of the scope of
s. 10(b) of the Charter.
After 978 – making the offender aware should be part of the standard caution:
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24 All of this is to reinforce the view that the right to retain and instruct counsel, in modern Canadian society,
has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to
counsel free of charge where the accused meets certain financial criteria set up by the provincial Legal Aid plan, and
the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial
status. These considerations, therefore, lead me to the conclusion that as part of the information component of s.
10(b) of the Charter, a detainee should be informed of the existence and availability of the applicable systems of
duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain
and instruct counsel.
25 Having said this, I am not unmindful of the fact that the imposition of this additional duty on the police may
cause some concern on their part, but I am of the view that it is in the interests of all the participants in the criminal
justice system that s. 10(b) of the Charter be given this interpretation. In my view the additional duty is consistent
with one of the main purposes underlying the s. 10(b) right, which is to facilitate contact with counsel since it is
upon arrest or detention that the accused is faced with an immediate need for legal advice, especially in respect of
how to exercise the right to remain silent. By the same token, however, the immediate need for legal advice means that
the right must be exercised with reasonable diligence. The imposition of the additional duty on the police in
respect of duty counsel and Legal Aid will, in my view, have implications for the issue of a detainee's reasonable
diligence in seeking initial advice of counsel.
Clarkson v R 1986
Criminal Law — Charter of Rights and Freedoms — Waiver of Charter right — Charter remedies — Exclusion of evidence
––– Confessions — Voluntariness — Capacity to make statement — Intoxication.
The Facts:
The accused was very intoxicated when she was charged with her husband's murder, given the customary police
warning and informed of her right to counsel. She said there was “no point” in having counsel, and underwent police
questioning while still drunk and very emotional. The interrogation continued in spite of the efforts of an aunt to
have it postponed and to convince the accused to stop talking until counsel was present. The trial judge excluded her
statements, finding that she did not appreciate the consequences of making the statements. She was acquitted, and
the Crown appealed. The Court of Appeal held that it was error to focus the test of admissibility on an accused's
appreciation of the consequences of her statement. Rather, the question was whether an accused's mind was in a
sufficiently functional state to give probative value to her words. A new trial was ordered, and the accused
appealed.
Held: Appeal allowed; acquittal restored.
Per Wilson J. (Estey, Lamer, Le Dain and La Forest JJ. concurring)
The relevant case law has produced two lines of reasoning, reflecting two different concerns, and it is difficult, if not
impossible, to reconcile them. One line of authority is concerned with ensuring the truth of an accused's
statements, and the test which emerges focusses therefore on whether the accused was coherent enough to
understand her own words. The other line of authority reveals concern not so much for the probative value of the
statement as for adjudicative fairness in the criminal process and for control of police conduct in interrogating
accused persons. The common law has left the task of balancing these two concerns to the discretion of the trial
judge, who can best assess both the probative value and the prejudice to the accused in the overall context of the
case. The tension between the concern over the probative value of evidence and that over police conduct and fairness
did not have to be resolved in this case, as the issue had been effectively pre-empted by the violation of her
constitutional right to counsel.
The question whether the appellant's right to counsel, entrenched in s. 10(b) of the Canadian Charter of Rights and
Freedoms, has been violated may well provide an acceptable alternative approach to the problem posed by the police
extraction of an intoxicated confession. The constitutional provision is clearly unconcerned with the probative value
of any evidence obtained by the police, but rather seeks to ensure that a person is made aware of her right to
counsel where she is detained by the police in a situation which may give rise to a significant legal consequence, and
thus the provision is to ensure that the accused is treated fairly in the criminal process. Therefore any waiver of her
right to counsel, to be valid, must be voluntary, and accordingly premised on a true appreciation of the
consequences of giving up the right. The trial judge found as a fact that the accused's confession could not pass the
“awareness of the consequences” test and, if such was the case, then presumably neither could the waiver of the
s. 10(b) right to counsel. Accordingly, regardless of the view one took of the admissibility of the intoxicated
confession per se, the conclusion that the accused's confession was improperly obtained, in violation of her
constitutional rights, was inescapable. Pursuant to s. 24(2) of the Charter, exclusion of the evidence was the
appropriate remedy. This was not a situation in which the police were for some urgent reason compelled to act
immediately in gathering evidence. This was a clear case of deliberate exploitation by the police of the opportunity
to violate the accused's rights. Such action on the part of the police in blatantly violating the accused's right to
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counsel must result in the inadmissibility of evidence thereby directly obtained, otherwise s. 10(b) would cease to
have any meaningful content whatsoever. Allowing the accused's confession to be admitted would necessarily bring
the administration of justice into disrepute.
Power Point:
Clarkson v R
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SCC (1986) [pp987-991] – accused provides confession while in intoxicated state, at police station nods that
understands her rights to counsel
Waiver of accused to s.10(b) rights must involve “awareness of consequences” of what he/she is saying, giving up
right to counsel [p988]
Clarkson v R: 10b includes “awareness of consequences” - Intoxication
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Police at minimum should have delayed questioning until accused sufficiently sober to properly exercise right to
retain counsel or be fully aware of consequences of waiving that right
Test of waiver is high. P.988 – awareness, and then minimum duty to delay questioning until full
awareness is reasonably evident.
26 Whether or not one goes as far as requiring an accused to be tuned in to the legal intricacies of the case before
accepting as valid a waiver of the right to counsel, it is clear that the waiver of the s. 10(b) right by an intoxicated
accused must pass some form of “awareness of the consequences” test. Unlike the confession itself, there is no
room for an argument that the court in assessing such a waiver should be concerned only with the probative
value of the evidence so as to restrict the test to the accused's mere comprehension of his or her own words.
Rather, the purpose of the right, as indicated by each of the members of this court writing in Therens, is to ensure that
the accused is treated fairly in the criminal process. While this constitutional guarantee cannot be forced upon an
unwilling accused, any voluntary waiver, in order to be valid and effective, must be premised on a true
appreciation of the consequences of giving up the right.
R v Evans 1991
Charter of Rights and Freedoms — Enforcement under Charter — Remedies — Exclusion — Statements to officers after
violation of right to counsel to be excluded under s. 24(2) in double murder case where incriminating and prejudicial and
also highly unreliable — Violations of right to counsel serious given series of police interviews and other investigative
techniques including lying to accused.
The Facts:
The accused was charged with first degree murder. He was initially arrested on a charge of trafficking in
marijuana. The police at that time suspected that the accused's older brother was involved in two brutal killings of
two women, and arrested the accused on the marijuana charge in the hope that he would be able to provide evidence
against his brother. The police advised the accused of his right to counsel, but when asked whether he understood
his rights he said "No". The accused was a youth of subnormal mental capacity. During the course of the
interrogation the accused became the principal suspect in the two murders. The police did not formally advise
the accused that he was then being detained for murder, or did they reiterate his right to counsel. The police
investigation was overly aggressive, and they lied about finding the accused's fingerprints at one of the murder sites.
Eventually, incriminating statements were obtained from the accused. These statements formed virtually the entire
basis of his conviction for the two murders.
At trial, the accused argued that the statements were not freely and voluntarily made and had been obtained in
violation of subss. 10(a) and (b) of the Charter and ought to be excluded. These arguments were rejected. On
appeal, the majority dismissed the appeal and the accused appealed further.
Held: The appeal was allowed; an acquittal was entered.
Per McLachlin J. (Gonthier and Cory JJ. concurring)
The right to be promptly advised of the reason for one's detention is founded on the fundamental notion that one
is not obliged to submit to an arrest if one does not know the reasons for it. A second aspect of the right lies in its
role as an adjunct to the right to counsel, as an individual can only exercise his right to counsel in a meaningful
way if he knows the extent of his jeopardy. When considering whether there has been a breach of s. 10(a), it is the
substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the
precise words used, which must govern. The question was whether what the accused was told, viewed reasonably in
all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to
arrest, or alternatively, to undermine his right to counsel under s. 10(b). The facts in this case indicated that the
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accused was aware that the focus of the questioning had changed, and that he was then being questioned with respect to
the killings. The requirements of s. 10(a) had been met.
The jurisprudence establishes that the duty on the police to inform a detained person of his right to counsel
encompasses three subsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the duty to give
the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without
delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable
opportunity to retain and instruct counsel. The accused must be reasonably diligent in attempting to obtain counsel
if he wishes to do so; otherwise, the correlative duty on the police to refrain from questioning him is suspended. In this
case, where there was a positive indication that the accused did not understand his right to counsel, the police
cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that
understanding. The failure of the police to make a reasonable effort to explain to the accused his right to counsel
violated s. 10(b) of the Charter. A second violation occurred when the police failed to reiterate the accused's right
to counsel after the nature of their investigation changed, and the accused became a suspect in the two killings.
The accused's decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he faces.
The oral statements then were taken in violation of the accused's s. 10(b) rights.
The accused's written statement, provided after an unsuccessful attempt to contact his lawyer, was also taken in
violation of his rights under s. 10(b). Prior to preparation of the written statement, he was asked in terms he could
understand whether he wanted to speak to a lawyer, and was given the choice of contacting his lawyer later, or
proceeding with the written statement. At this point he both understood that he had a right to counsel, and knew that he
faced a charge of murder. In view of the accused's subnormal mental capacity, however, and the circumstances
surrounding his arrest, one could not say that he appreciated the consequences of making the written statement
and thereby waived his right to counsel.
The reception of the accused's statements into evidence would bring the administration of justice into disrepute
and should have been excluded under s. 24(2). The first matter which must be considered is the effect of the reception
of the evidence of the statements on the fairness of the trial. Generally speaking, the use of an incriminating
statement, obtained from an accused in violation of his rights, results in unfairness at the trial because it infringes his
privilege against self-incrimination and does so in a most prejudicial way — by supplying evidence which would
not be otherwise available. In this case the statements were highly incriminatory and they provided evidence which
was not otherwise available. In addition, the accused's statements had been regarded as highly unreliable. It would
be most unfair to convict him entirely on their strength.
The second factor relevant to a s. 24(2) determination is the seriousness of the Charter violation. The violation of the
accused's right to counsel in this case was highly serious. The police, despite knowledge of the accused's deficient
mental status, and despite his statement to them that he did not understand his right to counsel, proceeded to subject
him to a series of interviews and other investigative techniques. Moreover, they lied to him in the course of the
interviews by suggesting that his fingerprints had been found in the house of one of the victims.
With respect to the third group of factors, the effect of exclusion on the repute of the administration of justice, one
could not assume that the accused was guilty. To justify the unfairness of his trial by presuming his guilt is to
stand matters on their head and violate that most fundamental of rights, the presumption of innocence. Few
things could be more calculated to bring the administration of justice into disrepute than to permit the
imprisonment of a man without a fair trial.
Power Point:
R v Evans
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SCC (1991) – [pp993-1005] police take statement from youth with subnormal mental capacity, court finds s.10(b)
violation
Accused arrested for drug charges, told that being investigated for murder
While in custody, accused put in cell with undercover officer, taken to crime scene, police physician interviews
accused – told that his prints found in home where victim killed, but untrue
Charter s.10(a) right to be informed of reason for detention – one not obliged to submit to arrest if unaware of
reason for it [p998]
Person can only exercise s.10(b) right if aware of extent of his/her jeopardy
In considering breach of s.10(a), it is substance of what accused can reasonably be supposed to have understood,
rather than formulation of precise words, which governs
Accused aware that being investigated for murder, no requirement to explain why detention and questioning continuing
S10(b) analysis – accused arrested for drug charges, told of right to counsel but states he did not understand, no
attempt to clarify his appreciation of right to counsel [p999]
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Evans: 3 Police Duties to Inform Detainee of Right to Counsel
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Duty on police to inform detainee of right to counsel encompasses 3 subsidiary duties: (1) duty to inform detainee
of right to counsel (2) duty to give detainee who so wishes reasonable opportunity to exercise right to counsel
without delay (3) duty to refrain from eliciting evidence from detainee until he/she has had reasonable opportunity to
retain, instruct counsel
Right to be advised of right to counsel arises at 3 points in case: (1) failure of police upon arrest to take steps to
assist accused in understanding his right after he indicated he did not (2) failure of police to reaffirm accused’s
right to counsel when nature of investigation changed (3) taking of written statement after accused states he would
like to speak to lawyer, standard of waiver not met
S.24(2) analysis – no greater unfairness to accused than conviction based on unreliable evidence, here deficient
mental state, circumstances of statements [p1000]
Para 3: Under 10a, p 998 – right to be advised… fundamental:
3 I have concluded that the appeal should be allowed on the basis that the statements were obtained in violation of
the appellant's right to counsel, as guaranteed by s. 10(b) of the Charter, and that the repute of the administration
of justice requires their exclusion under s. 24(2) of the Charter.
P 999 1st full para – “not always necessary…. When considering… as opposed to formulism” links 10a
and 10b – Court is satisfied:
30 When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the
accused can reasonably be supposed to have understood, rather than the formalism of the precise words used,
which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances
of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or
alternatively, to undermine his right to counsel under s. 10(b).
P.1000 – Duties to inform (above):
37 The jurisprudence establishes that the duty on the police to inform a detained person of his or her right to
counsel encompasses three subsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the
duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel
without delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a
reasonable opportunity to retain and instruct counsel: R. v. Manninen, [1987] 1 S.C.R. 1233, 58 C.R. (3d) 97, 41 D.L.R.
(4th) 301, 76 N.R. 198, 21 O.A.C. 192, 34 C.C.C. (3d) 385, 38 C.R.R. 37; R. v. Ross, [1989] 1 S.C.R. 3, (sub nom. R. v.
Leclair) 67 C.R. (3d) 209, 91 N.R. 81, 31 O.A.C. 321, (sub nom. R. v. Ross) 46 C.C.C. (3d) 129, 37 C.R.R. 369 ; R. v.
Black, supra. In Black, the rider was added that the accused must be reasonably diligent in attempting to obtain
counsel if he wishes to do so, otherwise the correlative duty on the police to refrain from questioning him is
suspended.
Charter s.10(a) right to be informed of reason for detention – one not obliged to submit to arrest if
unaware of reason for it:
Analysis
1. Section 10(a) of the Charter
26 The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is
founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the
reasons for it R. v. Kelly (1985), 44 C.R. (3d) 17, 7 O.A.C. 46, 17 C.C.C. (3d) 419, 12 C.R.R. 354 (C.A.), [C.C.C.] at
p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the
Charter. As Wilson J. stated for the Court in R. v. Black, [1989] 2 S.C.R. 138, 70 C.R. (3d) 97, 98 N.R. 281, 93 N.S.R.
(2d) 35, 242 A.P.R. 35, 50 C.C.C. (3d) 1, 47 C.R.R. 171 [S.C.R.] at pp. 152-153 [S.C.R., p. 108 C.R.], "[a]n
individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy." In
interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.
S10(b) analysis – accused arrested for drug charges, told of right to counsel but states he did not
understand, no attempt to clarify his appreciation of right to counsel:
2. Section 10(b) of the Canadian Charter of Rights and Freedoms
33 The police, on arresting the accused in connection with the marijuana charges, properly advised him that he had
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the right to retain counsel without delay. When they asked him whether he understood, he answered in the
negative. Nevertheless, no attempt was made to clarify his appreciation of his right to counsel. The police
proceeded to take him into custody and question him in the absence of counsel. Depending on how a disputed portion
of the transcript is read, there may have been a further attempt at the beginning of the first interview to repeat the
advice regarding counsel, but again no attempt was made to explain it to the accused. At a certain point, the police
became suspicious that the appellant might have committed the two killings. The focus of the investigation changed
from a drug offence to murder. Nothing more, however, was said about counsel. Two more police interviews
followed, as well as a cell interview by an undercover agent, a "show and tell" expedition to the scenes of the crimes,
and an interview by a police physician — all without the benefit of counsel. In the course of his conversation with the
undercover police officer, the appellant, after telling the officer he confessed because "they wouldn't give me a rest
until I confessed. ... So what else, what else was I gonna do", stated:
I wonder if they'd give me a chance and let me talk to a lawyer? I hope so. Cause with a lawyer maybe things
could go a little better with me, or for me I should say.
R. v. Whittle (1994)
R. v. Whittle (1994), 32 C.R. (4th) 1, 92 C.C.C. (3d) 11 (S.C.C.); affirming (1992), 78 C.C.C. (3d) 49 (Ont. C.A.) — The
“operating mind” standard applies with respect to the right to silence in deciding whether D has the mental capacity to
make an active choice.
Charter of Rights and Freedoms — Life, liberty and security — Principles of fundamental justice — Right to silence — Test
being that of whether accused had operating mind — Requiring limited degree of cognitive ability to understand — Not
requiring capacity to make wise choice in accused's best interest — Statements from accused with mental disorder not
obtained in violation of s. 7 — Right to counsel — Scope of right — Waiver — Test being same as that for fitness to stand
trial — Not being necessary for mentally disordered accused to possess analytical ability — Accused having to have
mental capacity of operating mind — No requirement of awareness of consequences.
The Facts:
The accused was arrested pursuant to outstanding warrants of committal for unpaid fines and was informed of
his right to counsel and cautioned. Prior to the arrest, the police officer had noticed the accused's strange conduct
and, at the station, advised the constable in charge of the cells that the accused was mentally unstable. While in his
cell, the accused asked to speak to police officers and made several statements indicating that he was responsible
for a murder and three robberies. The police, after verifying the accused's information, arrested him for those
offences. He was informed of his right to counsel and cautioned. The accused indicated that he understood his
rights, but that he did not wish to contact a lawyer.
The accused offered to take the police to where he had discarded the murder weapon. During that trip, he
continued to disclose details relating to the murder and the robberies and, on two or three occasions, made unusual
comments. On the way back to the station, the accused accepted the police's suggestion that he make a videotaped
statement. He was again advised of his rights and, once again, he indicated that he did not wish to speak with a
lawyer. The videotaping ceased when the accused decided to consult counsel. The lawyer advised him to remain
silent but the accused told the lawyer that he needed to talk to the police in order to stop the voices in his head.
After speaking with the lawyer, the accused indicated to the police that he still wished to continue with the
videotaped statement and confessed to the murder. Over the course of his hour-long statement, the accused also
made several bizarre comments.
After the videotaped statement, the accused offered to take the police to the place where he had discarded the victim's
wallet. The wallet was eventually found in that location. Later, while being transported to a different police station, the
accused provided further details of the murder. He had been given another opportunity to consult counsel before being
transported. Prior to trial, the accused underwent psychiatric examination, the results of which supported his fitness
to stand trial. Upon his return from the 30-day examination, the accused again spoke to the police even though his
lawyer had advised him not to do so.
At the accused's trial on a charge of first degree murder, a voir dire was held to determine the admissibility of the
accused's statements to the police. Both defence and Crown psychiatrists testified that the accused suffered from
schizophrenia and that a common symptom of this illness is auditory hallucination. The defence psychiatrist testified
that, while the accused was rationally aware of the consequences of giving his statement, because of the voices in
his head he was driven to make the statements. Ruling on the voir dire, the trial judge concluded that the
inculpatory statements made by the accused were inadmissible. Applying the common law of voluntariness with
its test of operating mind, the trial judge found the statements were voluntary in the traditional sense. However, he
concluded that the psychological condition of the accused prevented him from an awareness of the consequences
that would flow from giving the statements in question and nullified any alleged waiver of his s. 10(b) right to
166
counsel. As such, he concluded that the accused's s. 10(b) rights had been violated and, pursuant to s. 24(2) of the
Charter , the statements should be excluded. Crown counsel then advised that no further evidence would be called
on behalf of the Crown. The trial judge then instructed the jury to deliver a verdict of acquittal.
The Crown appealed. The Court of Appeal set aside the acquittal and ordered a new trial which would include
all of the statements made by the accused.
Held: The appeal was dismissed.
A common element of the confession rule, the right to silence and the right to counsel, is that the accused has the
right to make a choice. The preoccupation of the common law and Charter cases in preserving for the accused the
right to choose has been in relation to state action. Did the action of police authorities deprive the accused of
making an effective choice by reason of coercion, trickery or misinformation or the lack of information? The issue in
this case was whether, absent any conduct by the police, the accused had been deprived of the ability to choose by
reason of mental incapacity. A finding of incapacity would exempt the accused from participation in the ordinary
processes of investigation.
The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated
on the existence of a mental disorder and focuses on the ability to instruct counsel and conduct a defence. It
requires limited cognitive capacity to understand the process and to communicate with counsel. It does not require
that the accused must be capable of making rational decisions beneficial to him. Provided the accused possesses
this limited capacity, it is not a prerequisite that he or she be capable of exercising analytical reasoning in making
a choice to accept the advice of counsel or in coming to a decision that best serves his or her interests. The rationale
that operates to require an accused person to stand trial notwithstanding a disease of the mind has some attraction with
respect to pre-trial procedures. If an accused is exempted from participation in normal investigatory procedures by
reason of a mental disorder, then the regime that has been established for the treatment of persons who are mentally ill
will frequently be by-passed. The question that the court had to deal with was whether there was any justification for
requiring a higher standard of cognitive capacity in making the choices inherent in the confessions rule, the right
to silence and the right to counsel than in respect to fitness to stand trial.
To be voluntary within the operating mind test in the common law confession rule, the accused must have the
cognitive capacity to be aware of what he was saying and of what was said to him and of the court process. That
inner voices had prompted him to speak because he did not care about the consequences could not be the basis
for exclusion. Inner compulsion cannot displace the finding of an operating mind.
With respect to an accused's right to silence, the accused must possess a limited degree of cognitive ability to
understand what he or she is saying and to comprehend that the evidence may be used in proceedings against him
or her. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of
cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: did the accused
possess an operating mind? It goes no further, and no inquiry is necessary as to whether the accused is capable of
making a good or wise choice or one that is in his or her interest.
In assessing the requisite degree of mental competence required for the exercise of the accused's right to counsel, it
should be observed that the rights of an accused in the criminal process should be harmonized as far as possible. In
respect of each of the rights under discussion, the accused is entitled to make a choice. Unless there is some good
reason inherent in the right, it makes little sense to differentiate as to the requisite mental state to make that
choice. Although different considerations may apply to states such as drunkenness or hypnosis, in the case of a person
suffering from a mental disorder there is no reason for a higher standard of competency in exercising the right to
counsel before trial than during trial. If an accused is competent to choose a lawyer, instruct the lawyer, decide how to
plead, decide to discharge the lawyer and conduct his or her own defence, decide to give or not give evidence, how
could it be said that he or she is incompetent to decide whether to seek the assistance of counsel during the
investigation? There is nothing in s. 10(b) or related provisions requiring such a result. Therefore, the test is the same
as that used to determine fitness to stand trial. It is not necessary that the accused possess analytical ability. The
level of cognitive ability is the same as that required with respect to the confession rule and the right to silence.
The accused must have the mental capacity of an operating mind.
Here, the statements were admissible under these tests. The trial judge had erred in holding that the statements did
not satisfy a separate “awareness of the consequences” test.
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Power Point:
R v Whittle
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SCC (1994) [pp1007-1023] – statement from accused with mental incapacity, application of principle of awareness
of consequences
Accused arrested for unpaid fines for provincial offences, informed of right to counsel, appears mentally unstable
Accused declines to call counsel, confesses to robberies and murder, takes officers to where evidence discarded,
provides video statement
Accused speaks to lawyer, says he needs to talk to police to stop voices he hears, disregards lawyer’s advice not to
speak to police
Accused’s behaviour becomes more bizarre, sent for psychiatric assessment, continues to talk to police [p1010]
Accused found fit to stand trial, defence doctor states accused rationally aware of consequences of giving statement,
but driven to do so by voices in his head
Trial judge rules inculpatory statements inadmissible
Case involves consideration of elements of confessions rule, right to silence, right to counsel
Confession rule, right to silence originate in common law; as principles of fundamental justice constitutional status
under s.7 Charter [p1011]
Right to counsel is specific right expressly recognized in s.10(b) Charter
Common element of all three rules is suspect has right to make a choice
Issue in case is whether, absent police conduct, suspect deprived of ability to choose due to mental incapacity [p1012]
Finding of incapacity would exempt suspect from participation in investigation processes
S.16 Code disease of mind exempts person from criminal liability and punishment
Fitness to stand trial different issue – if due to mental disorder, focus on ability to instruct counsel, conduct
defence, requires limited cognitive capacity to understand process, communicate with counsel
Confession rule – focus on coercive action by persons in authority, inquiry into admissibility depends on whether
statement obtained by fear or prejudice induced or hope of advantage held out by person in authority [p1013]
Right to silence – operating mind test requires accused possess limited degree of cognitive ability to understand
what he/she says, comprehend that evidence may be used in proceedings against accused; no inquiry as to whether
accused capable of making good or wise choice [p1016]
Right to counsel – rights of accused in criminal process should be harmonized; accused has right to make choice in
each of rights discussed, little sense to differentiate in mental state to make that choice [p1016]
Whittle: Same Test for competency to exercise right/ fitness for trial: Operating Mind
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No reason for higher standard of competency in exercising right to counsel before trial than during trial – test is
same for fitness to stand trial: if competent to choose and instruct lawyer, how can person be incompetent to decide
to seek assistance of lawyer during investigation
Operating mind test is aspect of confession rule, includes limited mental component, requires accused have
cognitive capacity to understand what is saying and what is said, includes ability to understand caution [p1017]
Same standard applies to right to silence in determining whether accused has mental capacity to make active choice
In exercising right to counsel, accused must have limited cognitive capacity required for fitness to stand trial – capable
of communicating with counsel, dispense with counsel if so wishes
Application to case – trial judge finds statements voluntary in traditional sense, but that awareness of consequences
test not met for waiver [p1018]
Defence doctor – accused aware of what saying, what was said to him, fit to instruct counsel, but did not care about
consequences
Trial judge erred in holding separate awareness of consequences test required once finding of operating mind
All of accused’s statements admissible
Be Mindful of: The authorities are dealing with whether accused understands the jeopardy they are in –
Evans did not, Whittle did. Different mental impairments will produce different conclusions. Issue:
he understands his right to counsel, and contacts his lawyer, but needs to talk in order to “stop the
voices”- P.1010, final para – Dr Malcolm – voir dire held to introduce the evidence:
15 Prior to trial, the appellant underwent psychiatric examination, the results of which supported his fitness to
stand trial. Apparently for this reason no issue was raised by either the prosecution, the defence or the court as to the
appellant's fitness to stand trial. At the commencement of the trial, Crown counsel proposed to introduce into
evidence all of the statements made by the appellant to various police officers. In order to deal with the
admissibility of this evidence a voir dire was held, during which a number of expert witnesses were called. Perhaps the
most central testimony came from Dr. Malcolm, who testified for the defence, and Dr. McDonald, who testified for
the Crown. Dr. McDonald is a forensic psychiatrist with METFORS who examined the appellant during his 30-day
psychiatric assessment in February and March 1990. Dr. Malcolm is also a forensic psychiatrist. Both gave the opinion
that the appellant suffers from schizophrenia and that a common symptom of this illness is auditory hallucination.
168
However, Dr. Malcolm testified that the appellant's condition would have been florid at the time of the video statement
and that although the appellant may have been rationally aware of the consequences of giving the statement, he
was driven to make the statements by the voices in his head. In contrast, Dr. McDonald testified that it was possible
that the appellant had been experiencing auditory hallucinations at the time of the video statement, but that there was no
specific evidence of that in the tape itself.
Criminal Code InterpretationS.2 - Definitions
“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the
proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of
mental disorder to
(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel;
2nd Para p.1011 – because of the ruling on the voir dire – directed verdict of acquittal:
16 Ruling on the voir dire, the trial judge concluded that the exculpatory statement made by the appellant on
December 22, 1989 was admissible, but that the inculpatory statements made on February 6, 7 and March 16,
1990 were inadmissible. Crown counsel then advised that no further evidence would be called on behalf of the
Crown. The trial judge then instructed the jury to deliver a verdict of acquittal and a “not guilty” verdict was
returned. The respondent Crown successfully appealed the acquittal of the appellant. The Court of Appeal set
aside the acquittal and ordered a new trial which would include all of the statements made by the appellant.
Crown must bring an appeal only on an error of law – the distinction between fitness and
understanding of rights – no difference - application of principle of awareness of consequences. The
crown has no further evidence – but if they did it would be important to call it. Note – court concerned not
to set higher standard for understanding rights than fitness to stand trial. Concludes – bottom of 1017 –
operating mind test, aspect of confessions rule, understand the caution – includes sufficient
cognitive capacity, which is the same for fitness to stand trial:
Conclusion with Respect to Mental Element in Exercising Pre-trial Rights by Persons Suffering from Mental
Disorders
50 The operating mind test, which is an aspect of the confessions rule, includes a limited mental component
which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is
said. This includes the ability to understand a caution that the evidence can be used against the accused.
51 The same standard applies with respect to the right to silence in determining whether the accused has the
mental capacity to make an active choice.
52 In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive
capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to
instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is
not in the accused's best interests. It is not necessary that the accused possess analytical ability. The level of
cognitive ability is the same as that required with respect to the confession rule and the right to silence. The
accused must have the mental capacity of an operating mind as outlined above.
Be Mindful of: The authorities are dealing with whether accused understands the jeopardy they are in –
Evans did not, Whittle did. Different mental impairments will produce different conclusions.
R v Oickle 2000
[Evidence --- Confessions — Voluntariness — Threats and inducements — Inducements — By police]
Accused submitted to polygraph test in relation to eight fires — Accused was questioned following test and confessed to
setting single fire — Accused was arrested and interrogated for several hours — Accused confessed to setting seven of eight
fires — At trial, confessions were held to be voluntary and admissible — Accused was convicted — Admission were held to
be involuntary and inadmissible on appeal — Convictions were set aside and acquittal entered — Crown appealed —
Appeal allowed and convictions reinstated — Disagreement by appellate court with weight trial judge placed on evidence was
not grounds to reverse finding on voluntariness.
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Facts:
A series of eight fires involving four buildings and two motor vehicles occurred in and around the community. The
vehicle fires involved the accused's father's van and the accused's fiancée's car. The accused was one of many
suspects to agree to take a polygraph test. At the motel where the testing took place, the accused was advised of his
rights to remain silent, to counsel and to leave at any time. The accused was advised that anything said during the test
was admissible. The accused signed a consent form. The sergeant administering the test conducted a lengthy pre-test
interview. The test only lasted approximately seven minutes, and at the conclusion the accused was informed that he
had failed the test. The accused was questioned by the sergeant for approximately one hour. The sergeant was relieved
at 6:30 p.m. and the accused was reminded of his right to counsel. The accused confessed to setting fire to his fiancée's
car approximately 30 to 40 minutes later but denied any involvement in other fires. A written statement was taken and
the accused was arrested. The accused was warned of his right to counsel, given the secondary police warning and
driven to the police station at 8:15 p.m. where he was placed in an interview room. The accused was upset and crying
while en route. At around 8:30 p.m. and 9:15 p.m. the accused indicated that he was tired and wanted to go home but
was informed each time that he was under arrest, could call a lawyer if he wished and could not go home. Questioning
did not stop. The corporal was relieved by a constable at 9:52 p.m. who questioned the accused to approximately 11
p.m. at which time the accused confessed to setting seven of the eight fires. The accused was seen crying with his
head in his hands. A written statement was taken which concluded at 1:10 a.m. and at 2:45 a.m. the accused was placed
in a cell to sleep. At 6:00 a.m. the already awake accused was asked to participate in a re-enactment. The accused
was given another Charter warning and the re-enactment was videotaped. The accused was charged with seven counts
of arson.
At trial, the accused's statements were ruled voluntary and admissible and the accused was convicted on all counts.
On appeal, the statements were held involuntary and inadmissible. The confessions were excluded, the convictions
overturned and acquittals entered. The Crown appealed.
Held: The appeal was allowed.
Per Iacobucci J. (L'Heureux-Dubé, McLachlin, Major, Bastarache and Binnie J.J. concurring): The appellate court
disagreed with the weight the trial judge gave various pieces of evidence and reversed the finding on voluntariness.
This disagreement was not grounds to reverse the finding on voluntariness.
The confessions rule is concerned with voluntariness, broadly understood, and has a broader scope than the
protections afforded through the Charter. A trial judge should consider all relevant factors when reviewing a
confession. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as
to voluntariness. Oppressive conditions and inducements can operate together to exclude confessions. If a
confession is involuntary due to threats or promises, the lack of an operating mind or police trickery that unfairly
denies the suspect's right to silence, it is inadmissible.
The police conducted a proper interrogation. The accused was not deprived of sleep, food or drink and was not
offered improper inducements that undermined the reliability of the confession. The questioning was never hostile,
aggressive or intimidating. The accused was fully apprised of his rights. The accused's confession was voluntary and
reliable.
Power Point:
R v Oickle
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SCC (2000) [pp1025-1041] – voluntariness of statement case; accused arrested, informed of rights to silence, counsel,
told that failed polygraph test, emotionally distraught, interrogation over period of hours
Trial judge holds statements voluntary, reversed on appeal, Supreme Court upholds admissibility – police did not
improperly induce confession through threats, promises, atmosphere of oppression; proper interrogation though
persistent, accusatorial, not hostile, aggressive, intimidating
Tactic of inflating reliability of incriminating evidence is common, generally unobjectionable, does not render
confession involuntary [para 2]
Charter does not subsume common law confession rules : s.10 applies only on arrest or detention, common law
applies whenever person in authority questions suspect; Charter burden on accused on balance of probabilities,
burden on Crown beyond reasonable doubt that confession voluntary; [para 30] Charter violation requires s.24(2)
analysis if evidence should be excluded, violation of confessions rule always warrants exclusion
Twin goals of confessions rule: protecting rights of accused without unduly limiting society’s need to investigate and
solve crimes [para 33]
Properly conducted police questioning is legitimate, effective aid to criminal investigation, but statements made due
to intimidating questions, intimidation, calculated to overcome free will of suspect are inadmissible
False confessions rarely product of proper police techniques
Growing practice of recording police interrogations, preferably by videotape [para 46]
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Notes (audio) do not reflect tone of what was said, body language
Taping allows courts to monitor interrogation practices
Non-recorded interrogations not inherently suspect; when recording made it greatly assists court in assessing
confession
Confessions rule well-suited to protect against false confessions – overriding concern is voluntariness which
overlaps with reliability; confession that is not voluntary often (not always) unreliable [para 47]
Core of confessions rule threats or promises – most important consideration is quid pro quo offer by interrogators,
regardless of whether in form of threat or promise [para 48]
Oppression has potential to produce false [para 58] confessions – like operating mind doctrine not discrete inquiry
from rest of confessions rule
Other police trickery – unlike threats or promises, oppression, police trickery is distinct inquiry, related to
voluntariness, but objective to maintain integrity of criminal justice system [para 65]
Confession inadmissible if made under circumstances that raise reasonable doubt as to voluntariness
If suspect subject to deplorable conditions, offer inducements to produce unreliable confession, should be excluded,
between these extremes oppressive conditions, inducements can operate together to exclude confessions
Relevance of polygraph test – merely failing to inform suspect that test inadmissible does not automatically
produce involuntary confession [para 88]
Confession to be excluded if police deception shocks community; if not to that level, use of deception relevant factor
in assessing voluntariness
Misleading suspect as to validity of test, question remains whether confession voluntary – no emotional disintegration
in case, nor oppressive atmosphere; tactical disadvantage not relevant
Oickle: Confession inadmissible if circumstances raise reasonable doubt of voluntariness
A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.
Oppressive conditions and inducements can operate together to exclude confessions. If a confession is involuntary due to
threats or promises, the lack of an operating mind or police trickery that unfairly denies the suspect's right to silence, it is
inadmissible.
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Properly conducted police questioning is legitimate, effective aid to criminal investigation, but statements made due
to intimidating questions, intimidation, calculated to overcome free will of suspect are inadmissible
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False confessions rarely product of proper police techniques
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Confessions rule well-suited to protect against false confessions – overriding concern is voluntariness which
overlaps with reliability; confession that is not voluntary often (not always) unreliable [para 47]
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Core of confessions rule threats or promises – most important consideration is quid pro quo offer by interrogators,
regardless of whether in form of threat or promise [para 48]
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Oppression has potential to produce false [para 58] confessions – like operating mind doctrine not discrete inquiry
from rest of confessions rule
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Other police trickery – unlike threats or promises, oppression, police trickery is distinct inquiry, related to
voluntariness, but objective to maintain integrity of criminal justice system [para 65]
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Confession inadmissible if made under circumstances that raise reasonable doubt as to voluntariness
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If suspect subject to deplorable conditions, offer inducements to produce unreliable confession, should be excluded,
between these extremes oppressive conditions, inducements can operate together to exclude confessions
P.1025 – first full para – multi hour interrogation – lengthy period with upset individual, Para 2: proper
interrogation – does not bring voluntariness into question:
2 In this case, the police conducted a proper interrogation. Their questioning, while persistent and often
accusatorial, was never hostile, aggressive, or intimidating. They repeatedly offered the accused food and drink.
They allowed him to use the bathroom upon request. Before his first confession and subsequent arrest, they repeatedly
told him that he could leave at any time. In this context, the alleged inducements offered by the police do not raise
a reasonable doubt as to the confessions' voluntariness. Nor do I find any fault with the role played by the polygraph
test in this case. While the police admittedly exaggerated the reliability of such devices, the tactic of inflating the
reliability of incriminating evidence is a common, and generally unobjectionable one. Whether standing alone, or
in combination with the other mild inducements used in this appeal, it does not render the confessions involuntary.
N. B. : Para 30: confessions rule is broader than charter – differences: application, burden, remedies –
common law remedy is always exclusion, as opposed to the 24(2) discussion, can raise common law rule
at Prelims, as opposed to charter issues.
30 But I do not believe that this view is correct, for several reasons. First, the confessions rule has a broader scope
than the Charter. For example, the protections of s. 10 only apply "on arrest or detention". By contrast, the
171
confessions rule applies whenever a person in authority questions a suspect. Second, the Charter applies a
different burden and standard of proof from that under the confessions rule. Under the former, the burden is on the
accused to show, on a balance of probabilities, a violation of constitutional rights. Under the latter, the burden is on
the prosecution to show beyond a reasonable doubt that the confession was voluntary. Finally, the remedies are
different. The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the
evidence would bring the administration of justice into disrepute: see R. v. Stillman, [1997] 1 S.C.R. 607 (S.C.C.), R. v.
Collins, [1987] 1 S.C.R. 265 (S.C.C.), and the related jurisprudence. By contrast, a violation of the confessions rule
always warrants exclusion.
Under CCC, no remedy for the judge ruling at a preliminary inquiry – that is no appeal. Could apply for a
prerogative remedy, or under s.577 – direct indictment. Para 33 – Twin Goals:
33 In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the
accused without unduly limiting society's need to investigate and solve crimes. Martin J.A. accurately delineated
this tension in R. v. Precourt (1976), 18 O.R. (2d) 714 (Ont. C.A.) at p. 721:
Although improper police questioning may in some circumstances infringe the governing [confessions]
rule it is essential to bear in mind that the police are unable to investigate crime without putting
questions to persons, whether or not such persons are suspected of having committed the crime being
investigated. Properly conducted police questioning is a legitimate and effective aid to criminal
investigation. ... On the other hand, statements made as the result of intimidating questions, or
questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the
purpose of extracting a confession are inadmissible. ...
All who are involved in the administration of justice, but particularly courts applying the confessions rule, must
never lose sight of either of these objectives.
Para 47: Then threats or promises: para 48 – oppression:
2. The Contemporary Confessions Rule
47 The common law confessions rule is well-suited to protect against false confessions. While its overriding concern
is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though
not always) be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply
cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably
result in a rule that would be both over- and under- inclusive. A trial judge should therefore consider all the relevant
factors when reviewing a confession.
(a) Threats or Promises
48 This is of course the core of the confessions rule from Ibrahim, supra. It is therefore important to define precisely
what types of threats or promises will raise a reasonable doubt as to the voluntariness of a confession. While
obviously imminent threats of torture will render a confession inadmissible, most cases will not be so clear.
Para 65 – trickery, but not over the line, is acceptable:
(d) Other Police Trickery
65 A final consideration in determining whether a confession is voluntary or not is the police use of trickery to
obtain a confession. Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to
voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. Lamer J.'s
concurrence in Rothman, supra, introduced this inquiry. In that case, the Court admitted a suspect's statement to an
undercover police officer who had been placed in a cell with the accused. In concurring reasons, Lamer J. emphasized
that reliability was not the only concern of the confessions rule; otherwise the rule would not be concerned with
whether the inducement was given by a person in authority. He summarized the correct approach at p. 691:
[A] statement before being left to the trier of fact for consideration of its probative value should be the
object of a voir dire in order to determine, not whether the statement is or is not reliable, but whether the
authorities have done or said anything that could have induced the accused to make a statement which
was or might be untrue. It is of the utmost importance to keep in mind that the inquiry is not concerned
with reliability but with the authorities' conduct as regards reliability.
172
Para 88 – polygraph issue – does not undermine:
E. The Relevance of the Polygraph Test
88 In addition to the issues addressed above, the Court of Appeal found the police use of a polygraph particularly
problematic. Because of the growing frequency with which police are using the polygraph as an investigative tool, and
the absence of any direction thus far from this Court regarding the proper use of polygraphs in interrogations, I will
now briefly discuss how polygraphs fit into the analytical framework set out above. The Court of Appeal identified
several problems with the police's use of a polygraph in this appeal. I will address each in turn.
91 I agree that merely failing to tell a suspect that the polygraph is inadmissible will not automatically produce an
involuntary confession. Courts should engage in a two-step process. First, following Rothman, supra, and Collins,
supra, the confession should be excluded if the police deception shocks the community. Second, even if not rising
to that level, the use of deception is a relevant factor in the overall voluntariness analysis. At this stage, the
approach is similar to the one used with fabricated evidence, supra — though of course the use of inadmissible
evidence is inherently less problematic than fabricated evidence. Standing alone, simply failing to tell the suspect
that the polygraph results are inadmissible will not require exclusion. The most it can do is be a factor in the
overall voluntariness analysis.
Point: Has the suspect been made aware or rights, do they understand, have they been given opportunity.
R v Suberu 2007 (Ont. C.A.)
Criminal law --- Charter of Rights and Freedoms — Right to counsel — Detention
… Trial judge did not err in concluding that encounter between officer and accused prior to accused's
arrest was momentary investigative detention that did not engage s. 10(b) of Canadian Charter of Rights and
Freedoms — Investigative detentions do not trigger s. 10(b) of Charter — Accused appealed — Appeal
dismissed — Accused had not demonstrated that he was not advised of his right to counsel "without delay"
and as such there was no breach of s. 10(b) and the evidence could not be excluded under s. 24(2) — Officer's
questions were cursory and preliminary — To limit police ability to ask questions at preliminary stage would
hamper effective police investigations which are important part of justice system — Questions could fairly be
called exploratory and were designed to find out whether further significant detention was required — It
appeared that given how few questions were asked and account of events that very little time passed between
the start of detention and arrest — Officer arrested accused immediately after determining he had grounds to do
so and then immediately complied with s. 10(b) — In deciding whether there has been compliance with s. 10(b)
in context of brief investigative detentions, phrase "without delay" should be read so as to countenance some
brief interlude between commencing detention and advising detained person of his or her right to counsel —
During that brief interlude police may take appropriate steps to make quick assessments of whether anything
beyond brief investigative detention of individuals may be warranted.
Annotation
This important ruling in Suberu that those under investigative detention have s. 10(b) rights although in a
reduced form given the context appears to reach a well-balanced compromise. The issue was left open by
the Supreme Court in R. v. Mann, [2004] 3 S.C.R. 59 although the Court did there decide that one under
investigative detention has a s. 10(a) right to be informed of the reason for detention.
The Court of Appeal's cautionary observations leave loose ends. It is not clear why the Court did not apply its
section 7 remarks and rule that evidence of the incriminating statements during this investigative detention could
not be used to incriminate. Was it just that it was not argued? The factual record appears to be complete. In R. v.
Orbansky (2005), 29 C.R. (6th) 205 (S.C.C.) the majority of the Supreme Court adopts the ruling in Milne that
incriminating statements during vehicle stops prior to right to counsel being given cannot be used at the
subsequent trial although they can be used to give reasonable grounds for a breathalyser demand. In Suberu
there had to have been independent reasonable grounds for the investigative detention; otherwise, it would
be unlawful and unconstitutional. The reference to a section 1 issue is also unsettling. Is the Court saying
that with investigation detention there might be a justified implied denial of section 10(b)? That would
seem to contradict the compromise the Court had just fashioned.
Don Stuart[FN*]
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Power Point:
R v Suberu 2001 (OCA)
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Ont.C.A. (2007) [pp1043-1049] – in addition to s.9 investigative detention issue, also issue of whether s.10(b) rights
to be given
Police officer briefly detains accused for investigative purposes, asks questions without informing of s.10(b) rights;
after receiving additional information, arrests accused, provides Charter rights
Issue in case is meaning of words “without delay” in s.10(b) in context of investigative detentions
Suberu OCA: 10b applies to detention (Therens), Some “brief interlude” Countenanced
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S.10(b) applies to detentions under Therens, including detentions for investigative purposes
However, in deciding whether there has been compliance with s.10(b) in context of brief investigative detention,
phrase “without delay” should be read to countenance some brief interlude between commencing detention and
advising detainee of right to counsel [para 50]
During that brief interlude, police may take appropriate steps to make quick assessment of whether anything
beyond brief investigative detention of person may be warranted
SCC (2009) [pp1705-1719] – s.10(b) and investigative detention
Mann leaves open issue whether s.10(b) right triggered at outset of investigative detention
Para 2 – question answered in affirmative, from moment individual detained, police have obligation to inform of
s.10(b) rights without delay
Immediacy of obligation subject only to concerns for officer or public safety, or reasonable limitations
prescribed by law and justified under s.1
Para 3 – not every interaction between police and public, even for investigative purposes, constitutes a detention
R v Sinclair 2010
Sinclair: Section 10(b) does not mandate the presence of defence counsel throughout a custodial
interrogation
The Scope of the Right to Counsel: General Principles
R. v. Sinclair, [2010] 2 S.C.R. 310, 77 C.R. (6th) 203, 259 C.C.C. (3d) 443 — Section 10(b) does not mandate the presence of
defence counsel throughout a custodial interrogation. Neither precedent, nor the language or purpose of s. 10(b) mandates
this result.
In most cases, an initial warning, together with a reasonable opportunity to consult counsel when a detainee invokes the right,
satisfies s. 10(b). But, the police must give the detainee an additional opportunity to receive advice from counsel where
investigative developments make this necessary to serve the purpose underlying s. 10(b).
In the context of custodial interrogations, the purpose underlying s. 10(b) is to support the right of detainees to choose
whether or not to co-operate with the police investigation, by giving them legal advice on the situation the detainee faces.
This purpose is achieved by requiring that the detainee be informed of the right to consult counsel and, if the detainee requests it,
that she or he be given an opportunity to consult counsel. Sometimes, in order to achieve this purpose, developments in the
investigation may require police to give the detainee an opportunity to re-consult counsel, but this re-consultation does not
demand the continued presence of counsel throughout the remainder of the interview process.
A request to consult counsel, without more, will not re-trigger D's s. 10(b) rights. What is required is a change in
circumstances that suggests that the choice faced by D has been significantly altered, requiring further advice on the new
situation, in order to fulfill the purpose of s. 10(b). This change in circumstances, which may result from, among other
things,
i.
new procedures involving D;
ii.
a change in D's jeopardy; or
iii.
reason to believe D may not have understood the initial right to counsel advice
must be objectively observable in order to trigger additional implementational duties for the police.
Police tactics short of a change in circumstances may prevent P from proving the voluntariness of a later statement, but
may not offend s. 10(b).
Charter of Rights and Freedoms ––– Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Right to retain
and instruct counsel without delay — Section 10(b) of Charter not mandating presence of defence counsel
throughout custodial interrogation — 5-4 majority holding detainee who has been properly accorded right to
counsel at outset of detention has no right to further consultations with counsel during course of interrogation
unless circumstances change, such as new procedures involving detainee, change in jeopardy or reason to believe
that first information provided was deficient.
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The accused was arrested and advised of his right to counsel. The accused spoke twice to the lawyer of his choice on
the telephone for a total of six minutes of time. The accused repeatedly asked to speak to a lawyer again during a
lengthy interrogation. The accused eventually made incriminating statements. The trial judge dismissed the
accused's application to exclude the statements for breach of s. 10(b) of the Canadian Charter of Rights and
Freedoms. The accused was convicted of manslaughter.
The accused's appeal was dismissed. The appeal judge found that the police were not obliged to hold off questioning
the accused. The police were found to have complied with s. 10(b) of the Charter by letting the accused speak to
counsel before questioning. The appeal judge determined that the police were entitled to use legitimate means to
persuade the accused to speak. The appeal judge found that the accused had adequate opportunity to consult and
that his jeopardy did not change. The accused appealed with the Supreme Court of Canada.
Held: The appeal was dismissed.
Per McLachlin C.J.C., Charron J. (Deschamps, Rothstein, Cromwell JJ. concurring): Section 10(b) of the Charter did
not mandate the presence of defence counsel throughout a custodial interrogation. In most cases, an initial
warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s.
10(b). There would be a right to a second consultation with a lawyer where changed circumstances resulted from
new procedures involving the detainee, a change in the jeopardy facing the detainee, or reason to believe that the first
information provided was deficient. Before the interview took place, the accused was advised of his right to counsel
and twice spoke with counsel of his choice. Later, in the course of the interview, the police repeatedly confirmed that
it was his choice whether he wished to speak with them or not. There were no changed circumstances requiring
renewed consultation with a lawyer. There was no breach of the right to counsel under s. 10(b) of the Charter in
the circumstances of the case.
Power Point
R v Sinclair
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SCC (2010) – [pp1721-1774] accused arrested, advised of his right to retain and consult counsel without delay,
declines calling lawyer right away; accused later exercises right to speak to counsel, afterward is questioned by
police and provides statement – accused told he could consult his lawyer again, but no right to have lawyer present
Majority – no right to have lawyer present during interview; in most cases initial warning, coupled with reasonable
opportunity to consult lawyer satisfies s.10(b) – police must provide additional opportunity to receive legal advice
where developments in investigation make this necessary to serve purpose underlying s.10(b) [para 2]
Minority – accused’s right to counsel infringed because police prevented him from obtaining legal advice to
which he was entitled; communication between solicitor and client condition precedent to lawyer’s ability to assist
[para 80]
Interesting discussion between the two camps about whether the time he got with his lawyer was
sufficient. Majority recognizes that circumstances can change that require a new caution and new
opportunity to talk to lawyer.
BAIL
Prelim notes: Bail important in terms of resolution rates – guilty pleas go up when no bail given.
Holland: “The Verdict on Bail Court,” Toronto Star, Sept. 27, 1992
(Sub: “Like the rest of the legal system, bail courts are overloaded. Mistakes are inevitable”)
Power Point:
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Bail court – first line of defence between police and state; first crack at freedom
System is overloaded, included bail court – up to 80 hearings daily
More prisoners on remand/detention centres than serving sentences
More than half those denied bail not found guilty at trial
Powers to release after arrest but most bail hearings before justices of peace
R v Thompson 1972
Criminal Law --- Judicial interim release (bail) — Review of release orders — Review of order of justice of peace
— Powers of court on review — Hearing de novo.
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The Bail Reform Act provides a complete code dealing with "judicial interim release"
The Bail Reform Act provides a complete code dealing with "judicial interim release"; whereas under the old system
the onus was on an accused to show that he was entitled to be released on bail, the new legislation places on the
Crown the burden of justifying the detention of an accused. The legislation as a whole is to be liberally interpreted
so as to carry out the intention of Parliament. The fact that a person has no roots in the community is not, of itself, a
sufficient ground for denying a release without conditions, nor is the question of deterrence relevant in considering release
pending trial. A justice who makes an order refusing to release an accused is required to give his reasons therefor,
both for the protection of the accused and for the assistance of a reviewing court.
Power Point:
R v Thompson
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Review of bail order by supreme court judge of detention order by judge/justice under now. S.520
Bail Reform Act to be interpreted in liberal manner, onus on Crown to show that accused should not be released;
Crown to “show cause” on balance of probabilities why accused should not be released without conditions [from
s.515(1)]
Term “judicial interim released” used, not “bail”
Sureties to be used as last resort, not requirement
Accused not to be detained to deter others from committing offence for which accused charged
Point: to be interpreted in a liberal manner
Re Powers and the Queen 1972
Criminal Law ––– Judicial interim release (bail) — Release by justice of peace — Show cause hearing — Powers of justice
to make inquiries.
On the return of application for review of bail order, Code ss. 458(9) [now 524(13)] and 457.5, there should be filed in
addition to affidavit material, the order of detention and the record including: a copy of the information, the reasons for the
order of the provincial judge and a transcript of any viva voce evidence of the accused or witnesses called by the accused
or the prosecution. The onus is upon the applicant on the review of the order to make certain that all of the material as
required pursuant to the Bail Reform Act is before the judge. Such application before a judge of the Supreme Court under s.
457.5 or s. 457.6 is a hearing de novo. Sections 457.5(7) and 457.6(8) presume that additional evidence may be tendered by
the accused or prosecutor.
Under s. 457.3(1)(d), (e) a justice determining the question of interim release under s. 457 may make his decision on the
basis of hearsay evidence if he considers it credible and trustworthy. The stricter application of the rules of evidence in the
trial process are not necessarily applicable to bail applications so long as each party has a fair opportunity of correcting or
contradicting any statement or evidence he considers prejudicial to his position.
The word “review” gives the Supreme Court judge power to substitute the Court's discretion for that of the justice or
provincial judge. Such can only be judicially exercised upon a review of all the material and if necessary, further evidence
— in essence, a hearing de novo. Section 457.5(7)(e) suggests that the accused has the onus of justifying release where he
makes the application and s. 457.6(8)(e) suggests that the Crown has the onus of justifying a detention where it makes the
application.
Under s. 457(7), detention for the purpose of ensuring attendance in court includes consideration of such things as
residence, fixed place of abode, employment or occupation, marital and family status, previous criminal record, proximity
of close friends and relatives, character witnesses, facts relating to the allegations of the offence, personal history or vitae.
In the instant case the accused was alleged to have committed a series of drug offences while on bail such that it could not be
said that she would likely commit an offence involving serious harm or interference with the administration of justice. But
the expression, “detention is necessary in the public interest”, in s. 457(7)(b), is a separate ground. “Public interest” includes
the “public image” of the Criminal Code, the bail amendments, the apprehension and conviction of criminals, deterrence
of crime and public protection. The application of the bail provisions should not appear to be a mockery. The public must
be allowed to feel safe and secure. The plain lessons of human experience must be recognized and applied to these bail
procedures.
Application in Supreme Court to set aside a detention order made under the Criminal Code.
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Arrest of Accused on Interim Release
S.524 (13) Certain provisions applicable to order under this section — Section 520 applies in respect of any order
made under subsection (8) or (9) as though the order were an order made by a justice or a judge of the Nunavut Court
of Justice under subsection 515(2) or (5), and section 521 applies in respect of any order made under subsection (9) as
though the order were an order made by a justice or a judge of the Nunavut Court of Justice under subsection 515(2).
Power Point:
Re Powers
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Bail review of detention order in superior court
Accused on bail at time for other offences; crown shows cause for detention under then “public interest”
secondary ground in s.457(7)(b) [now s.515(10(c)]; primary ground attendance for trial
Public interest involves many considerations, includes public image of Code and bail provisions so that no
“wonderment and bewilderment”
Detention order upheld in public interest (Justice Lerner)
Note: new charge did not trigger reverse onus for accused to get bail: see now s.515(6)
Bail provisions were liberalized in the 1960’s
S.515 (5) Detention in custody — Where the prosecutor shows cause why the detention of the accused in custody is
justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall
include in the record a statement of his reasons for making the order.
P.1197 bottom: What public interest means. It was a kitchen sink. Struck down later. 2ndary ground
now refers to “public safety.” And tertiary ground now refers to repute of “administration of justice.”
The Approach: S.515, the accused to be released on his giving an undertaking without conditions
Part XVI – Compelling Appearance of an Accused Before a Justice, and Interim Release
[Current Provisions]: Judicial Interim Release
515. (1) Order of release — Subject to this section, where an accused who is charged with an offence other than
an offence listed in section 469 is taken before a justice the justice shall, unless a plea of guilty by the accused is
accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without
conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of
that offence, why the detention of the accused in custody is justified or why an order under any other provision of this
section should be made and where the justice makes an order under any other provision of this section, the order shall
refer only to the particular offence for which the accused was taken before the justice.
Libman gives introductory explanations: This means the general rule is that you are to be given bail,
unless cause is shown why you should be detained – three grounds to be referred to, or to justify more
onerous conditions than a simple undertaking. At one point, there were only two grounds. The SCC in
Moralis, Pearson and Hall talk about the “public interest” ground that was number two. Notes that under
Provincial Offences Act, bail can only be denied on the primary ground.
The “Ladder Approach:”
(2) Release on undertaking with conditions, etc. — Where the justice does not make an order under subsection (1),
he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be
released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such
conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such
conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without
sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing
with the justice such sum of money or other valuable security as the justice directs, or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does
not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his
entering into a recognizance before the justice with or without sureties in such amount and with such
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conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other
valuable security as the justice directs.
515. (10) Justification for detention in custody — For the purposes of this section, the detention of an accused in
custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with
according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or
witness to the offence, or any person under the age of 18 years, having regard to all the circumstances
including any substantial likelihood that the accused will, if released from custody, commit a criminal
offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to
all the circumstances, including
(i) the apparent strength of the prosecution's case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm
was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of
imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a
minimum punishment of imprisonment for a term of three years or more.
(11) Detention in custody for offence mentioned in s. 469 — Where an accused who is charged with an offence
mentioned in section 469 is taken before a justice, the justice shall order that the accused be detained in custody
until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.
Reverse Onus
S.515 (6) Order of detention — Unless the accused, having been given a reasonable opportunity to do so, shows
cause why the accused's detention in custody is not justified, the justice shall order, despite any provision of this
section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is
charged
(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of
another indictable offence pursuant to the provisions of this Part or section 679 or 680,
(ii) that is an offence under section 467.11, 467.12 or 467.13, or a serious offence alleged to
have been committed for the benefit of, at the direction of, or in association with, a criminal
organization,
(iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is
alleged to be a terrorism offence,
(iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of
Information Act,
(v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act
that is committed in relation to on offence referred to in subparagraph (iv),
(vi) that is an offence under section 99, 100 or 103,
(vii) that is an offence under section 244 or 244.2, or an offence under section 239, 272 or 273,
subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a
firearm, or
(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a
prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited
ammunition or an explosive substance, and that is alleged to have been committed while the
accused was under a prohibition order within the meaning of subsection 84(1);
(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident
in Canada,
[FTC Recog provision – s.145]
(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while
he was at large after being released in respect of another offence pursuant to the provisions of this Part
or section 679, 680 or 816, or
(d) with having committed an offence punishable by imprisonment for life under subsection 5(3), 6(3)
or 7(2) of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an
offence.
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(6.1) Reasons — If the justice orders that an accused to whom subsection (6) applies be released, the justice shall
include in the record a statement of the justice's reasons for making the order.
515 (4) Conditions authorized — The justice may direct as conditions under subsection (2) that the accused shall do
any one or more of the following things as specified in the order:
(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his
employment or occupation;
(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in
the order, or refrain from going to any place specified in the order, except in accordance with the conditions
specified in the order that the justice considers necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order;
(e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the
safety and security of any victim of or witness to the offence; and
(f) comply with such other reasonable conditions specified in the order as the justice considers desirable.
Publication Ban
517. (1) Order directing matters not to be published for specified period — If the prosecutor or the accused
intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on
application by the accused, before or at any time during the course of the proceedings under that section, make an order
directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to
be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time
as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or committed for trial, the trial is
ended.
(2) Failure to comply — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an
order made under subsection (1) is guilty of an offence punishable on summary conviction.
Hearsay Evidence Admissable (sub e)
518. (1) Inquiries to be made by justice and evidence — In any proceedings under section 515,
(a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning
the accused as he considers desirable;
(b) the accused shall not be examined by the justice or any other person except counsel for the accused respecting the
offence with which the accused is charged, and no inquiry shall be made of the accused respecting that offence by way
of cross-examination unless the accused has testified respecting the offence;
(c) the prosecutor may, in addition to any other relevant evidence, lead evidence
(i) to prove that the accused has previously been convicted of a criminal offence,
(ii) to prove that the accused has been charged with and is awaiting trial for another criminal offence,
(iii) to prove that the accused has previously committed an offence under section 145, or
(iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of
conviction of the accused;
(d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his
counsel;
(d.1) the justice may receive evidence obtained as a result of an interception of a private communication under and
within the meaning of Part VI, in writing, orally or in the form of a recording and, for the purposes of this section,
subsection 189(5) does not apply to such evidence;
(d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security
of any victim of or witness to an offence; and
(e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the
circumstances of each case.
(2) Release pending sentence — Where, before or at any time during the course of any proceedings under section
515, the accused pleads guilty and that plea is accepted, the justice may make any order provided for in this Part for the
release of the accused until the accused is sentenced.
Defence Right to Review Before a Superior Court
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520. (1) Review of order — If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection
515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time
before the trial of the charge, apply to a judge for a review of the order.
(2) Notice to prosecutor — An application under this section shall not, unless the prosecutor otherwise consents, be
heard by a judge unless the accused has given to the prosecutor at least two clear days notice in writing of the
application.
(3) Accused to be present — If the judge so orders or the prosecutor or the accused or his counsel so requests, the
accused shall be present at the hearing of an application under this section and, where the accused is in custody, the
judge may order, in writing, the person having the custody of the accused to bring him before the court.
Crown Right to Review Before a Superior Court
521. (1) Review of order — If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection
515(1), (2), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the prosecutor may, at any time
before the trial of the charge, apply to a judge for a review of the order.
(2) Notice to accused — An application under this section shall not be heard by a judge unless the prosecutor has
given to the accused at least two clear days notice in writing of the application.
(3) Accused to be present — If the judge so orders or the prosecutor or the accused or his counsel so requests, the
accused shall be present at the hearing of an application under this section and, where the accused is in custody, the
judge may order, in writing, the person having the custody of the accused to bring him before the court.
469 Bail Hearings – Reverse Onus, Superior Court Judge – Review by Court of Appeal (s.680)
522. (1) Interim release by judge only — Where an accused is charged with an offence listed in section 469, no
court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the
province in which the accused is so charged, may release the accused before or after the accused has been ordered to
stand trial.
(2) Idem — Where an accused is charged with an offence listed in section 469, a judge of or a judge presiding in a
superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be
detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his
detention in custody is not justified within the meaning of subsection 515(10).
(2.1) Order re no communication — A judge referred to in subsection (2) who orders that an accused be detained in
custody under this section may include in the order a direction that the accused abstain from communicating, directly or
indirectly, with any victim, witness or other person identified in the order except in accordance with such conditions
specified in the order as the judge considers necessary.
(3) Release of accused — If the judge does not order that the accused be detained in custody under subsection (2), the
judge may order that the accused be released on giving an undertaking or entering into a recognizance described in any
of paragraphs 515(2)(a) to (e) with such conditions described in subsections 515(4), (4.1) and (4.2) as the judge
considers desirable.
(4) Order not reviewable except under s. 680 — An order made under this section is not subject to review, except as
provided in section 680.
(5) Application of ss. 517, 518 and 519 — The provisions of sections 517, 518 except subsection (2) thereof, and 519
apply with such modifications as the circumstances require in respect of an application for an order under subsection
(2).
(6) Other offences — Where an accused is charged with an offence mentioned in section 469 and with any other
offence, a judge acting under this section may apply the provisions of this Part respecting judicial interim release to that
other offence.
R.S.C. 1985, c. 27 (1st Supp.), s. 88; 1991, c. 40, s. 32; 1994, c. 44, s. 48; 1999, c. 25, s. 10
R. v. Perron (1989)
R. v. Perron (1989), 73 C.R. (3d) 174, 51 C.C.C. (3d) 518 (Que. C.A.) — The court of appeal, on a review of an order by a
judge of the court of appeal granting release pending appeal, may substitute its opinion for that of the single judge.
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Criminal Law ––– Judicial interim release (bail) — Review of release orders — Review of order of Judge of Superior
Court. Civil liberties — Reasonable bail — Accused charged with first degree murder having constitutional right not to be
denied reasonable bail without just cause under s. 11(e) of Charter of Rights and Freedoms.
The accused, charged with first degree murder, applied for judicial interim release before the preliminary inquiry.
The application was dismissed by a judge of the Quebec Superior Court. The accused appealed.
Held: Appeal allowed; custody order quashed; accused released on entering into recognizance with conditions
substituted.
Jurisdiction
Per Tourigny J.A.
Even if the wording of s. 680 seems to authorize a larger discretion, the proceeding is still an appeal, and the Court of
Appeal should not intervene unless the court concludes that the first judge did not exercise his discretion
judicially in applying the criteria mentioned in s. 515(10).
Per Malouf J.A.
The Court of Appeal must decide whether the Superior Court judge was right in fact and in law in ordering the
custody of the accused. According to s. 680, the court has a very wide discretion to review the initial decision and
substitute its own opinion for that of the first judge.
Per Mailhot J.A. (dissenting)
Section 680 of the Criminal Code does not authorize the Court of Appeal to substitute its own opinion when the point
in issue concerns the credibility of a witness or the accused and the judge of first instance gives reasons for his
judgment. Here, the Superior Court judge was right in conclusing that the accused had not established that custody was
not necessary.
Power Point:
R. v. Perron
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Accused detained on murder charge, s.522(1) states offences in s.469 including murder require bail hearing in
superior court
Burden of proof on defendant to show on balance of probabilities that detention not required for such offences:
ss.515(6)(a), 522(2)
Very strong evidence only one factor to consider under s.515(10); other factors lack of record, no attempt to escape
though knows he is suspect – accused demonstrates he will attend court, detention not required for public interest
Charter of Rights considerations – presumption of innocence relevant, not for bail court to decide proof of guilt but
instead whether bail requirements met under s.515(10)
Accused not to be denied reasonable bail without just cause: Charter s.11(e)
Parliament does not say detention in all cases where strong evidence; notion of public interest includes image of
justice, equal treatment
Dissent – accused failed to demonstrate case for bail, evidence not trustworthy
Discussion of “public interest” under then s.515(10)(b) by Tourigny JA
Public interest not only part of section, also safety of public, substantial likelihood that accused if released would
commit other crimes
One part of public interest equates to public opinion
No evidence accused is menace to safety of public, propensity to violence
First para, description of what the issue is:
Judge makes reference to Charter 11(e)
Point: just because it’s a 469 offence doesn’t mean that they cannot establish right to bail. In this case it
was a review of a panel, but could be one judge (usually the case in Ontario)
R v Perron 1989: just because it’s a 469 offence doesn’t mean that they cannot establish right to bail
Part XXI – Appeals – Indictable Offences
Can be One Judge, or a Panel
680. (1) Review by court of appeal — A decision made by a judge under section 522 or subsection 524(4) or (5) or a
decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice or
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acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the
decision,
(a) vary the decision; or
(b) substitute such other decision as, in its opinion, should have been made.
(2) Single judge acting — On consent of the parties, the powers of the court of appeal under subsection (1) may be
exercised by a judge of that court.
(3) Enforcement of decision — A decision as varied or substituted under this section shall have effect and may be
enforced in all respects as though it were the decision originally made.
R.S.C. 1985, c. 27 (1st Supp.), s. 142; 1994, c. 44, s. 68
Part XVI – Compelling Appearance of an Accused Before a Justice, and Interim Release
522. (1) Interim release by judge only — Where an accused is charged with an offence listed in section 469, no
court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the
province in which the accused is so charged, may release the accused before or after the accused has been ordered to
stand trial.
(2) Idem — Where an accused is charged with an offence listed in section 469, a judge of or a judge presiding in a
superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be
detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his
detention in custody is not justified within the meaning of subsection 515(10).
Re Keenan and the Queen 1979
Re Keenan and the Queen
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Undertaking with conditions as justice directs, s.515(2)(a) – accused arrested for being in common bawdy house,
required to submit for medical exam and treatment, concern for venereal disease
Keenan: No jurisdiction to order medical treatment when on bail
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Application for certiorari, not review of bail order – issue is term authorized, not whether reasonable
Judge who decides bail not like judge imposing sentence; bail is alternative to jail, personality of accused, illnesses
not in issue for bail terms
Condition held to exceed powers of judge
Point: S.515(4) – What are appropriate conditions? Can the judge require medical treatment? The issue
is jurisdictional, requiring assessment under prerogative remedy.
R v Garrington 1972
Power Point:
R v Garrington
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Error for cash deposit to be equal multiple of amount in offence still un-recovered, s.515(2)(d), (e)
Also error to fix amount of deposit so large that amounts to detention order
R v Garrington 1972: Bail cannot be so prohibitive as to create de facto detention order
Point: sometimes cash bail is allowed (S.515(2) e). But the amount can be so prohibitive that it in effect
turns into a detention order because it’s too onerous. Also a jurisdictional error.
R. v. Pearson (1992)
R. v. Pearson (1992), 17 C.R. (4th) 1, 77 C.C.C. (3d) 124 (S.C.C.) — Section 515(6)(d) is a constitutionally valid exception to
Charter s. 11(e). The section does not violate Charter s. 9.
Charter of Rights and Freedoms — Arbitrary detention or imprisonment — Reverse onus in s. 515(6)(d) for persons
charged with narcotics trafficking not violating s. 9 — Detention not being arbitrary — Section setting out process with
fixed standards. Extraordinary remedies — Habeas corpus — Availability — Remedy being available to seek bail review
based on Charter attack on bail grounds — Normally not being available to review bail.
The accused was charged with five counts of trafficking in hashish and cocaine contrary to s. 4 of the Narcotic
Control Act. He was denied bail and ordered detained in custody until trial. He was committed for trial following a
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preliminary inquiry. The preliminary inquiry judge refused his application, under s. 523(2)(b) of the Criminal Code,
to review the order denying bail. The accused did not apply for a review of the custody order under s. 520 of the
Criminal Code, but rather for a writ of habeas corpus, arguing that s. 515(6)(d) of the Criminal Code was
unconstitutional and that his detention was illegal. Section 515(6)(d) provides that an accused charged with
having committed a drug offence under ss. 4 or 5 of the Narcotic Control Act shall be detained in custody until
trial unless he shows cause why his detention is not justified. The Superior Court judge dismissed the accused's
application on the ground that there was an alternative remedy of review under s. 520. The Quebec Court of
Appeal allowed the accused's appeal, holding that habeas corpus was an available remedy in the circumstances,
that s. 515(6)(d) violated ss. 9, 11(d) and 11(e) of the Charter, and that the violations were not justified under s. 1.
The court noted that no discretion was given to the judge to consider the circumstances of the case, such as the
quantity of drugs involved or the degree of participation of the accused. It is arbitrary, unjust, and discriminatory to
require, without any further consideration, that every person accused of trafficking in narcotics establish that his
detention in custody is not necessary. The Attorney General of Quebec appealed.
Held: The appeal was allowed and the application for habeas corpus was dismissed.
Habeas Corpus
While in general habeas corpus is not available as a remedy against a denial of bail, it was available as a remedy
in the narrow circumstances of this case. The availability of habeas corpus is closely tied to the nature of the claim.
Here, the claim was a special type of constitutional one in which the accused was seeking a declaration of
invalidity under s. 52 and a remedy under s. 24(1) of a new bail hearing in accordance with criteria for
determining bail which were constitutionally valid. The constitutional claim could be determined without evidence
about the accused's specific circumstances. If the claim was successful the court could order a new bail hearing to
be held in accordance with constitutionally valid criteria. To refuse to address the accused's claim simply because
another remedy existed would be to adopt the very type of uncertain, artificial, technical and non-purposive distinction
the court had previously rejected. Outside the narrow circumstances of this case, however, habeas corpus is not an
appropriate remedy for a denial of bail. Habeas corpus should not become a costly and unwieldy parallel system of
bail review.
Power Point:
R v Pearson SCC 1992
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Argued with R. v. Morales, Charter challenges under s.11(e) right to reasonable bail, not to be denied without just
cause
Challenge to s.515(6)(d) reverse onus due to charges under Controlled Drugs and Substances Act, eg., trafficking,
importing, exporting
S.11(d) presumption of innocence does not apply, guilt or innocence not in issue
S.11(e) has two elements: right to reasonable bail, right not to be denied bail without just cause
Reasonable bail refers to terms of bail, quantum, restrictions must be reasonable
Just cause refers to right to obtain bail – bail must not be denied unless just cause
Accused still able to show cause why detention not required though charged with s.515(6)(d) offence
Denial of bail in certain circumstances but issue is whether just cause: only in narrow circumstances, denial to
promote proper functioning of bail system, not for extraneous purposes, danger of absconding – no s.11(e) violation
Dissent – s.515(6)(d) fails to distinguish between large-scale commercial trafficker and small fry or generous
smoker
Section very broad, applies to everyone who commits specified offences
Far from clear that those charged with trafficking more able to abscond than those charged with other offences
Point: the reverse onus in 515(6)(d) doesn’t offend charter because liberty is still possible.
R v Pearson 1992: reverse onus in 515(6)(d) doesn’t offend charter because liberty is still possible.
R. v. Morales, [1992]
R. v. Morales, [1992] 3 S.C.R. 711, 17 C.R. (4th) 74, 77 C.C.C. (3d) 91 — Section 515(6)(a) is valid as constituting “just
cause” to deny bail under Charter s. 11(e). The section does not offend Charter s. 9.
Charter of Rights and Freedoms — Reasonable bail — Reverse onus in s. 515(6)(a) for persons charged with indictable
offence while on bail not violating s. 11(e) — Denial occurring in narrow set of circumstances.
The accused was arrested and charged with narcotics offences under ss. 4 and 5 of the Narcotic Control Act and
the conspiracy section, s. 465(1)(c) of the Criminal Code. He was alleged to have participated in a major network to
import cocaine into Canada. At the time of his arrest, he was awaiting trial for assault with a weapon, an indictable
offence. The accused was denied bail and he was ordered detained in custody until trial.
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Under s. 515 of the Criminal Code an accused must normally be granted bail. There are only two grounds under
which pre-trial detention can be justified: the primary ground in s. 515(10)(a) that “detention is necessary to ensure
[the accused's] attendance in court in order to be dealt with according to law” and the secondary ground in s.
515(10)(b) that “detention is necessary in the public interest or for the protection or safety of the public having
regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody,
commit a criminal offence or interfere with the administration of justice”. Under s. 515(6) there is an onus on the
accused to show cause why the detention is not justified when he is charged with an indictable offence “that is
alleged to have been committed while he was at large after being released in respect of another indictable
offence” (s. 515(6)(a)) or charged with having committed an offence under ss. 4 or 5 of the Narcotic Control Act (s.
515(6)(d)).
The accused's application for review of the detention order was granted by a Superior Court judge under s. 520
and he was released subject to a number of conditions. The judge held that pre-trial detention is only justified
where it is established that the accused will not appear for trial or would represent a danger to public safety if
released. The Crown appealed.
Held:The appeal was allowed and the matter remitted for new bail review.
Per Lamer C.J.C. (La Forest, Sopinka, McLachlin and Iacobucci JJ. concurring)
The Charter challenge to the grounds upon which bail may be denied should be considered under the specific
guarantee set out in s. 11(e) rather than under s. 7. Section 11(e) offers a highly specific guarantee which covers
precisely the accused's complaint.
The criterion of “public interest” as a basis for pre-trial detention under s. 515(10)(b) violates s. 11(e) of the
Charter because it authorizes detention in terms which are vague and imprecise and thus a denial of bail without
just cause. The principles of fundamental justice preclude a standardless sweep in any provision that authorizes
imprisonment. Since pre-trial detention is extraordinary in our system of criminal justice, vagueness in defining the
terms of such detention may be even more invidious than vagueness in defining an offence. The term “public
interest” has not been given a constant or settled meaning by the courts. The term provides no guidance for legal
debate. It authorizes a standardless sweep, as the court can order imprisonment whenever it sees fit. Such
unfettered discretion violates the doctrine of vagueness. As currently defined by the courts, the term is incapable of
framing the legal debate in any meaningful manner or structuring discretion in any way. Nor would it be possible to
give the term a constant or settled meaning. The term gives the courts unrestricted latitude to define any
circumstances as sufficient to justify pre-trial detention. The term creates no criteria to define these circumstances.
No amount of judicial interpretation would be capable of rendering it a provision that gives any guidance for
legal debate.
The violation of s. 11(e) by the public interest component of s. 515(10)(b) cannot be justified under s.1 even if it is
not too vague to constitute a limit “prescribed by law”. While the objectives of preventing those arrested from
committing criminal offences and from interfering with the administration of justice are of sufficient importance to
warrant overriding a constitutionally protected right, the public interest component does not meet the
proportionality test. Since the provision is so vague, there is no rational connection between the measure and the
objectives. It authorizes pre-trial detention in many cases that are unrelated to the objectives. The measure does not
impair as little as possible. The vague and overbroad concept of public interest permits far more pre-trial detention
than is required to meet the limited objectives. There is also no proportionality between the effects of the measures
and its objectives. By authorizing excessive pre-trial detention, the effects far exceed the objectives.
The public safety component of s. 515(10)(b) does not violate ss. 11(d), 11(e) and 9 of the Charter. Section 11(d)
creates a procedural and evidentiary rule which operates at the trial requiring the prosecution to prove the guilt
of the accused beyond a reasonable doubt. However, s. 11(d) has no application at the bail stage where guilt or
innocence is not determined and where punishment is not imposed. The public safety component of s. 515(10)(b)
does not violate s. 11(e) as it provides just cause to deny bail. It establishes narrow circumstances in which bail is
denied. Those circumstances are necessary to promote the proper functioning of the bail system and are not undertaken
for any purpose extraneous to the bail system. While it is impossible to make exact predictions about recidivism and
future dangerousness, exact predictability of future dangerousness is not constitutionally mandated. The Charter does
not preclude a bail system which aims to deny bail to those who likely will be dangerous. Furthermore, there are
substantial procedural safeguards against the inefficiency of predictions about dangerousness. The public safety
component of s. 515(10)(b) does not violate s. 9. It provides for persons to be detained within the meaning of s. 9, but
persons are not detained “arbitrarily”. Detention is arbitrary if it is governed by unstructured discretion. The public
safety component is not discretionary. It sets out a process with fixed standards and specific conditions for bail.
Furthermore, the bail process is subject to very exacting procedural guarantees.
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The offending words of s. 515(10)(b), specifically “in the public interest or”, are severable and should be struck
down. It was not necessary to strike down the entire provision since severance would not defeat a “unitary scheme”
envisaged by Parliament, which was otherwise constitutional.
The requirement in s. 515(6)(a) that the accused show cause why detention is not justified does not violate ss. 7,
11(d), 11(e) or 9 of the Charter. Section 11(d) does not apply and the case should be analyzed under s. 11(e) rather
than the more general provisions of s. 7. The denial of the basic entitlement to bail in s. 515(6)(a) meets the
constitutional test of “just cause” in s. 11(e). The denial of bail occurs only in a narrow set of circumstances. The
section applies only to indictable offences and denies bail only when persons who have been charged with an
indictable offence while on bail for another indictable offence do not show cause why a detention is not justified.
The special bail rules in s. 515(6)(a) do not have any purpose extraneous to the bail system, but rather merely establish
an effective bail system in circumstances where there are reasonable grounds to believe that the normal bail
system is permitting continuing criminal behaviour. Section 515(6)(a) does not provide for “arbitrary” detention.
It sets out a process which is not discretionary and which is subject to fixed standards. The section contains highly
structured criteria and sets out specific conditions for bail. The bail process is subject to very exacting procedural
guarantees and to review by a Superior Court.
For reasons set out in Pearson s. 515(6)(d), to the extent that it requires the accused to show cause that detention
is not justified, does not violate ss. 7, 9, 11(d) or 11(e) of the Charter.
The matter should be remitted to the Superior Court for a new bail review in which ss. 515(6)(a) and 515(6)(d)
are applied, and s. 515(10)(b) is applied, after severance of the words “in the public interest or”.
Power Point:
R v Morales
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Charter challenge due to public interest criteria, protection or safety of public in then s.515(10)(b); also reverse onus
challenge to s.515(6)(a) commit indictable offence while on bail for indictable offence
Morales: Strikes down “public interest” ground to deny bail: void for vagueness
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Public interest – violates s.11(e) as authorizes detention in terms which are vague and imprecise; cannot be just
cause for denial for bail where statutory criteria for denial vague and imprecise
No workable meaning for public interest, cannot be saved under s.1as authorizes excessive pre-trial detention
Public safety – sufficiently narrow criteria that denial of bail in narrow circumstances, denial only for those who
pose substantial likelihood of committing offence, interfering with administration of justice
Public safety component also necessary to promote functioning of bail system, not for extraneous purpose – bail
system does not function properly if people commit crimes while on bail – public safety component does not violate
s.11(e)
S.515(6)(a) reverse onus due to committing indictable offence while on bail for indictable offence – held to provide
just cause to deny bail
Validity of s.515(6)(a) easier to establish than s.515(6)(d) as former relates to accused’s circumstances, latter relates
to nature of offence
S.515(6)(a) sufficiently narrow, applies only to indictable offences, denies bail only if person fails to show cause for
why detention not required; not for extraneous purpose to bail system
SCC strikes down “public interest” from grounds to deny bail
Point: Under s.7, void for vagueness, public interest too imprecise, but s515(10) b, “public safety” or
“administration of justice” is sufficiently precise. So Parliament then enacted s.515(10) c; they enumerate
a number of issues – list them. Hall is then the challenge to sub c.
R. v. Hall, [2002]
Any Other Just Cause: S. 515(10)(c)
R. v. Hall, [2002] 3 S.C.R. 309, 4 C.R. (6th) 197, 167 C.C.C. (3d) 449 — The phrase “any other just cause being shown” in s.
515(10)(c) is unconstitutional because it confers an open- ended discretion to refuse release, which is inconsistent with both s.
11(e) and the presumption of innocence.
The balance of s. 515(10)(c), which authorizes refusal of release “to maintain confidence in the administration of justice”,
provides a valid basis for refusing release not covered by the primary and secondary grounds. In unusual cases, it is essential
to have available a means to deny release because public confidence is essential to the proper functioning of the bail
system and the justice system as a whole.
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Refusal of release “to maintain confidence in the administration of justice” complies with Charter s. 11(e). This ground,
narrower and more precise than the “public interest” ground struck down in R. v. Morales, [1992] 3 S.C.R. 711, 17 C.R.
(4th) 74, 77 C.C.C. (3d) 91, provides an intelligible standard for debate and the exercise of judicial discretion. The provision
is hedged with several safeguards: release may only be refused if the judge is satisfied that, in view of the four specified
factors and related circumstances, a reasonable member of the community would be satisfied that refusal of release is
necessary to maintain confidence in the administration of justice.
Charter of Rights and Freedoms ––– Unreasonable denial of bail — Vague first part of s. 515(10)(c) of Criminal Code
authorizing denial of bail “on any other just cause being shown” being inconsistent with Charter rights under s. 11(e) and
presumption of innocence — Second part of s. 515(10)(c) authorizing denial of bail “to maintain confidence in
administration of justice” being constitutional as not too vague or overbroad — Appropriate remedy being to sever and
declare first part inoperative.
Pre-trial procedure ––– Release by justice of peace — Show cause hearings — Reasons for detention — Public interest —
Section 515(10)(c) of Criminal Code authorizing denial of bail “to maintain confidence in administration of justice” not
violating Charter rights as not too vague or overbroad — Constituting separate and justified ground — Circumstances in
which recourse to this ground for bail denial may not arise frequently.
Facts:
Based on compelling evidence, the accused was charged with first degree murder in a particularly brutal case. The
victim's body was found with separate 37 slash wounds, and medical evidence indicated that her assailant had tried to
cut off her head. The murder received considerable media attention and caused significant public concern. The accused
applied for bail. The accused charged with first degree murder in a particularly brutal case applied for bail. The bail
judge denied bail under s. 515(10)(c) of the Criminal Code to maintain confidence in the administration of justice,
given the prevailing fear in the community, the strength of the Crown's case and the grievous nature of the offence.
The accused's application for habeas corpus, challenging the constitutionality of s. 515(10)(c) on the ground that it
violates the presumption of innocence and the right not to be denied reasonable bail except for “just cause,” was
dismissed. The superior court judge found that the section was not vague or overbroad and did not contravene s. 11(e)
of the Charter. The accused appealed.
Held: The appeal was dismissed.
Per McLachlin C.J. (L'Heureux-Dubé, Gonthier, Bastarache, and Binnie JJ. concurring):
The entitlement under s. 11(e) of the Charter to be granted reasonable bail unless there is “just cause” not to do so
is based on the presumption that an accused person is innocent until found guilty. Determining the
constitutionality of denial of bail in order to maintain confidence in the administration of justice pursuant to s.
515(10)(c) requires a consideration of the provision as a whole. The first phrase of s. 515(10)(c), which permits
denial of bail “on any other just cause being shown,” is unconstitutional. Parliament cannot confer a broad
discretion on judges to deny bail but must lay out narrow and precise circumstances in which bail can be denied.
The denial of bail “on any other just cause” is inconsistent with s. 11(e) of the Charter and the presumption of
innocence.
The balance of s. 515(10)(c) is capable of standing alone grammatically and in terms of Parliament's clear intention
to permit bail to be denied where necessary to maintain confidence in the administration of justice, having
regard to four specified factors: the apparent strength of the prosecution's case, the gravity of the nature of the
offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. Denial
of bail “in order to maintain confidence in the administration of justice” is constitutionally valid. It provides a
basis for denying bail where the conditions in ss. 515(10)(a) and (b) are not met but the bail judge, viewing the
situation objectively, finds there is “just cause” for detention.
A provision that allows bail to be denied because the accused's detention is required to maintain confidence in the
administration of justice serves a very real need to permit a bail judge to detain an accused pending trial for the
purpose of maintaining the public's confidence if the circumstances of the case so warrant. Without public
confidence, the bail system and the justice system generally are compromised. Bail denial “to maintain confidence in
the administration of justice,” having regard to the factors set out in s. 515(10)(c), complies with s. 11(e). The
articulated ground of maintaining confidence in the administration of justice relies on concepts held to be justiciable
and offers considerable precision. The phrase “proper administration of justice” provides an intelligible standard
for the exercise of judicial discretion and is not impermissibly vague. Parliament's purpose is to maintain public
confidence in the bail system and the justice system as a whole. The means it has chosen to not go further than
necessary to achieve that purpose. Section 515(10)(c) sets out four specific factors which delineate a narrow set of
circumstances in which bail can be denied. A judge can only deny bail if satisfied that in view of those factors and
related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain
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confidence in the administration of justice. The provision does not authorize a “standardless sweep” or confer openended judicial discretion but strikes an appropriate balance between the rights of the accused and the need to
maintain justice in the community.
There was no error in the bail judge's reasoning that it was necessary to deny bail to maintain public confidence in
the justice system. The appropriate remedy was to sever the phrase in s. 515(10)(c) that permits the denial of bail
“on any other just cause being shown and, without limiting the generality of the foregoing,” as unconstitutional.
The balance of the provision, permitting a judge to deny bail “where the detention is necessary in order to maintain
confidence in the administration of justice,” plays a vital role in preserving the bail system and the administration of
justice, and is neither unduly vague nor overbroad.
Power Point:
R v Hall
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After public interest struck down in s.515(10)(b), Parliament enacts ss.515(10)(c) detention necessary to maintain
confidence in administration of justice (“tertiary ground”)
Hall: Strikes Down “Any other just Cause.”
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Majority uphold new provision except for opening words “on any other just cause being shown”
Denying bail to maintain public confidence not unjustified or superfluous
Phrase is not vague or overbroad like public interest – excellent example of courts having constitutional dialogue
with Parliament
Dissent – s.515(10)(c) should be struck down in entirety – for 5 years until new section drafted after Morales no
evidence that tertiary ground required in addition to primary and secondary grounds
Any other just cause do not allow for narrow circumstances; new provision as vague as public interest, just more
elaborate wording
Parliament has responded to Morales but without due regard to constitutional standards
The dissent essentially says that sub c can fit into b and a, so what’s the difference. On to LaFramboise.
R v Villota 2002 (Ont. S.C.J)
Applications for certiorari to quash judicial interim release orders
Criminal law --- Judicial interim release (bail) — Release by justice of peace — Show cause hearing — General
Accused V charged with possession of less than 30 grams of cannabis marijuana and breach of recognizance —
Accused L charged with attempting to steal motor vehicle and two counts of breach of recognizance — Both
accused ordered released on bail — Crown brought applications for certiorari to quash judicial interim release
orders — Applications dismissed — Breach of principles of natural justice may amount to jurisdictional error —
Right to be heard constitutes one of principles of natural justice — Crown was denied right to be heard at V's
bail hearing as justice announced decision to release V before Crown could make submissions on facts and law
— Justice in L's case announced decision to release L after counsel for co-accused made submissions and before
Crown or counsel for L could make submissions — Certiorari is discretionary remedy which may be denied if
adequate alternative remedy is available, in case of delay or if applicant has done something to disentitle him to
relief — Crown's applications brought four and a half months after show cause hearings — Delay by Crown not
explained — Crown disentitled itself to prerogative relief due to numerous mistakes that led to error-ridden and
unnecessarily prolonged proceedings — Discretion respecting issuance of certiorari should be exercised against
granting of relief — Criminal Code, R.S.C. 1985, R.S.C. 1985, c. C-46, s. 521.
(Skipped Over)
Power Point:
R v Villota
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Certiorari application by Crown to quash bail orders by justices of peace
Reverse onus application, facts read in by Crown, after evidence and defence submissions justice grants bail without
permitting Crown to make submissions
S.518 permits justice to hear evidence considered credible and trustworthy
Criminal Lawyers Association intervenes – justices attempting to expedite bail hearings over weekend, concern
for delay, 40% detention rate
Bail decision impacts s.11(e) Charter, it is not a privilege, 1972 reforms to provide for enlightened system of pretrial release
Routine adjournment of bail cases which cannot be reached is denial of access to justice
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While bail hearing is not a trial, it is adversarial hearing, orderly conduct best done with goodwill and cooperation of
counsel: defence must be knowledgeable and prepared to advance rights of accused; crown should be sufficiently
experienced to discharge duties
Procedural departures – prosecution statement of facts nearly incomprehensible, no basis to require sureties to be
in court and to testify
Reasons for judgment amounted to no reasons for judgment; obligation to hold fair hearing is principle of natural
justice, where breached amounts to excess of jurisdiction
Prosecutor has right to be heard at show cause hearing, not afforded real opportunity
Court exercises discretion to dismiss application, s.521 bail review is speedy remedy instead
Part XXVIII - Miscellaneous
Form 33 — Certificate of Default to be Endorsed on Recognizance
(Section 770)
I hereby certify that A.B. (has not appeared as required by this recognizance or has not complied with a condition of
this recognizance) and that by reason thereof the ends of justice have been (defeated or delayed, as the case may be).
The nature of the default is ................................... and the reason for the default is.......... (state reason if known).
The names and addresses of the principal and sureties are as follows:
Dated this .......... day of .......... A.D. .........., at ...........
.....................
Clerk of the Court, Judge,
Justice or Provincial Court Judge
(Seal, if required)
Form 33 was requested, and denied. The purpose as stated would be to: “effectively mark[ing] the
earlier bails for estreat. (Def’n, BL: Estreat: to take out a forfeited recognizance from the recordings of a
court and return it to the court to be prosecuted.” Or; … a copy … extracted from the record, and certified
to one who is authorized and required to collect it.”
Part XXV – Effect and Enforcement of Recognizances – S. 770. (1) Default to be endorsed
770. (1) Default to be endorsed — Where, in proceedings to which this Act applies, a person who is bound by
recognizance does not comply with a condition of the recognizance, a court, justice or provincial court judge having
knowledge of the facts shall endorse or cause to be endorsed on the recognizance a certificate in Form 33 setting out
(a) the nature of the default,
(b) the reason for the default, if it is known,
(c) whether the ends of justice have been defeated or delayed by reason of the default, and
(d) the names and addresses of the principal and sureties.
(2) Transmission to clerk of court — A recognizance that has been endorsed pursuant to subsection (1) shall be sent
to the clerk of the court and shall be kept by him with the records of the court.
(3) Certificate is evidence — A certificate that has been endorsed on a recognizance pursuant to subsection (1) is
evidence of the default to which it relates.
(4) Transmission of deposit — Where, in proceedings to which this section applies, the principal or surety has
deposited money as security for the performance of a condition of a recognizance, that money shall be sent to the clerk
of the court with the defaulted recognizance, to be dealt with in accordance with this Part.
R.S.C. 1985, c. 27 (1st Supp.), s. 203; 1997, c. 18, s. 108
Part XVI – Compelling Appearance of an Accused Before a Justice and Interim Release
518. (1) Inquiries to be made by justice and evidence — In any proceedings under section 515,
(a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning
the accused as he considers desirable;
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(b) the accused shall not be examined by the justice or any other person except counsel for the accused
respecting the offence with which the accused is charged, and no inquiry shall be made of the accused
respecting that offence by way of cross-examination unless the accused has testified respecting the offence;
(c) the prosecutor may, in addition to any other relevant evidence, lead evidence
(i) to prove that the accused has previously been convicted of a criminal offence,
(ii) to prove that the accused has been charged with and is awaiting trial for another criminal
offence,
(iii) to prove that the accused has previously committed an offence under section 145, or
(iv) to show the circumstances of the alleged offence, particularly as they relate to the
probability of conviction of the accused;
(d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the
accused or his counsel;
(d.1) the justice may receive evidence obtained as a result of an interception of a private communication
under and within the meaning of Part VI, in writing, orally or in the form of a recording and, for the purposes
of this section, subsection 189(5) does not apply to such evidence;
(d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety
or security of any victim of or witness to an offence; and
(e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in
the circumstances of each case.
(2) Release pending sentence — Where, before or at any time during the course of any proceedings under section 515,
the accused pleads guilty and that plea is accepted, the justice may make any order provided for in this Part for the
release of the accused until the accused is sentenced.
R.S.C. 1985, c. 27 (1st Supp.), s. 84; 1994, c. 44, s. 45; 1999, c. 25, s. 9
Part XVI – Compelling Appearance of an Accused Before a Justice and Interim Release
498. (1) Release from custody by officer in charge — Subject to subsection (1.1), if a person who has been arrested
without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant
and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under
subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in
paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and
has not been taken before a justice or released from custody under any other provision of this Part, the officer in
charge or another peace officer shall, as soon as practicable,
(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person's entering into a recognizance before the officer in charge or another
peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit
of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not
ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on
the person's entering into a recognizance before the officer in charge or another peace officer without
sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on
depositing with the officer a sum of money or other valuable security not exceeding in amount or value
$500, that the officer directs.
(1.1) Exception — The officer in charge or the peace officer shall not release a person under subsection (1) if the
officer in charge or peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their
release from custody be dealt with under another provision of this Part, having regard to all the
circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with
according to law.
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(2) Where subsection (1) does not apply — Subsection (1) does not apply in respect of a person who has been
arrested without warrant by a peace officer for an offence described in subsection 503(3).
(3) Consequences of non-release — An officer in charge or another peace officer who has the custody of a person
taken into or detained in custody for an offence described in subsection (1) and who does not release the person from
custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and
in the execution of the officer's duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; or
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person
making the allegation that the officer in charge or other peace officer did not comply with the
requirements of subsection (1).
R.S.C. 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2;
1999, c.
25, ss. 4, 30
499. (1) Release from custody by officer in charge where arrest made with warrant — Where a person who has
been arrested with a warrant by a peace officer is taken into custody for an offence other than one mentioned in section
522, the officer in charge may, if the warrant has been endorsed by a justice under subsection 507(6),
(a) release the person on the person's giving a promise to appear;
(b) release the person on the person's entering into a recognizance before the officer in charge without
sureties in the amount not exceeding five hundred dollars that the officer in charge directs, but without
deposit of money or other valuable security; or
(c) if the person is not ordinarily resident in the province in which the person is in custody or does not
ordinarily reside within two hundred kilometres of the place in which the person is in custody, release the
person on the person's entering into a recognizance before the officer in charge without sureties in the
amount not exceeding five hundred dollars that the officer in charge directs and, if the officer in charge
so directs, on depositing with the officer in charge such sum of money or other valuable security not
exceeding in amount or value five hundred dollars, as the officer in charge directs.
(2) Additional conditions — In addition to the conditions for release set out in paragraphs (1)(a), (b) and (c), the
officer in charge may also require the person to enter into an undertaking in Form 11.1 in which the person, in
order to be released, undertakes to do one or more of the following things:
(a) to remain within a territorial jurisdiction specified in the undertaking;
(b) to notify a peace officer or another person mentioned in the undertaking of any change in his or her
address, employment or occupation;
(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person
identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with
the conditions specified in the undertaking;
(d) to deposit the person's passport with the peace officer or other person mentioned in the undertaking;
(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and
any authorization, licence or registration certificate or other document enabling that person to acquire or
possess a firearm;
(f) to report at the times specified in the undertaking to a peace officer or other person designated in the
undertaking;
(g) to abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription; and
(h) to comply with any other condition specified in the undertaking that the officer in charge considers
necessary to ensure the safety and security of any victim of or witness to the offence.
(3) Application to justice — A person who has entered into an undertaking under subsection (2) may, at any time
before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order
under subsection 515(1) to replace his or her undertaking, and section 515 applies, with such modifications as the
circumstances require, to such a person.
(4) Application by prosecutor — Where a person has entered into an undertaking under subsection (2), the
prosecutor may
(a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after
three days notice has been given to that person, or
(b) at the appearance
apply to a justice for an order under subsection 515(2) to replace the undertaking, and section 515 applies, with
such modifications as the circumstances require, to such a person.
R.S.C. 1985, c. 27 (1st Supp.), s. 186; 1994, c. 44, s. 40; 1997, c. 18, s. 53; 1999, c. 25, s. 5
190
R. v. LaFramboise 2005 OCA
Criminal law --- Pre-trial procedure — Release by judge of superior court — Show cause hearing — Reasons for
detention — General
Maintain confidence in administration of justice — Accused was charged with first degree murder — Crown
alleged that accused and co-accused, O, were associated with victim in drug trade — Victim's girlfriend told
police that O beat victim severely at girlfriend's apartment, and that victim bled profusely — Victim expressed no
reluctance to accompany O and accused when girlfriend asked them to leave — Girlfriend told police that she did not
see accused participate in beating of victim — Victim's body was later discovered naked in field — O admitted to
police that when he and accused left girlfriend's apartment with victim, O pulled car over, beat victim, and told him
to strip — O told police that accused never got out of car and did not have gun — Accused was denied bail pending
trial pursuant to s. 515(10)(c) of Criminal Code — Accused brought application for review of detention order —
Detention order set aside — Accused met burden of demonstrating that continued detention pending trial was
not necessary for purpose of s. 515(10)(c) — Where Crown placed no reliance on other grounds to oppose bail,
detention of accused under s. 515(10)(c) was justified only in rare cases — Nature of offence charged could not,
by itself, justify denial of bail — Bail judge overstated strength of Crown's case against accused — Having regard
to statements made to police by victim's girlfriend and O, Crown's case against accused was not overwhelming either
for murder or manslaughter — Evidence suggested significant difference between accused's interactions with
victim and those of O — Reasons of bail judge did not support conclusion that facts were sufficient to elevate case
to narrow category of cases where detention was justified exclusively under s. 515(10)(c).
Power Point:
R v LaFramboise
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Review of murder bail decision by superior court judge before Ont.C.A. single judge under s.680 upon direction of
Chief Judge
Detention order on basis of tertiary ground, Crown conceded primary and secondary grounds met
Tertiary ground to be used sparingly to deny bail, nature of offence alone not sufficient reason, nor can strong case
alone justify detention – contrary to presumption of innocence
Reasons of bail judge do not make out case for detention – detention order set aside
Single judge of the Court of Appeal, review of detention order under sub c. Cronk J makes the point that
the tertiary ground should be used sparingly. He set aside the detention order. Klymchuk – bail
pending appeal of conviction.
Part XXI – Appeals – Indictable Offences
Procedure on Appeals – S. 680. (1) Review by court of appeal
680. (1) Review by court of appeal — A decision made by a judge under section 522 or subsection 524(4) or (5) or
a decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice
or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the
decision,
(a) vary the decision; or
(b) substitute such other decision as, in its opinion, should have been made.
(2) Single judge acting — On consent of the parties, the powers of the court of appeal under subsection (1) may be
exercised by a judge of that court.
(3) Enforcement of decision — A decision as varied or substituted under this section shall have effect and may be
enforced in all respects as though it were the decision originally made.
R.S.C. 1985, c. 27 (1st Supp.), s. 142; 1994, c. 44, s. 68
R v Klymchuck 2008 OCA
Criminal law --- Post-trial procedure — Release pending appeal — Indictable offence — Factors considered —
Public interest. Criminal law --- Post-trial procedure — Appeal from conviction or acquittal — Appeal from
unreasonable verdict.
Klymchuk – bail pending appeal of conviction.
191
Power Point:
R v Klymchuck
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Bail pending appeal for second degree murder, crown argues release contrary to public interest; accused had bail
for most of time at trials
Court examines proposed grounds of appeal to determine if appeal frivolous
Public interest – para 17: interest in enforceability outweighs interest in reviewability, accused twice convicted of
murder, grounds of appeal not very strong
Klymchuk: Multiple Appeals, “Public Interest” balances enforceability and reviewability
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Public interest at time favours denying bail pending appeal, application dismissed without prejudice to further
application should transcript be delayed unreasonably or further material as to strength of grounds of appeal
R. v. Drabinsky, 2011 ONCA 647 – bail pending leave to appeal to SCC denied, priority to principle of
enforceability: all grounds of appeal rejected by Court of Appeal, no further right of appeal, if leave granted another
application can be brought. Justice Doherty not satisfied that bail appropriate while applying for appeal to the SCC.
But he says if the SCC grants leave to appeal, another bail hearing may be appropriate.
Rosenberg, para 17, public interest – enforceability and reviewability:
The Public Interest
17 In R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.) at 47-8, Arbour J.A. considered the public interest as
applied to applications for bail pending appeal.
Section 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of
any decision granting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as
expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance
between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is
expressed by reference to the public image of the criminal law, or the public confidence in the administration of
justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review
the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended,
and the need to respect the general rule of immediate enforceability of judgments.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may
require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of
appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not
yield to the grounds favouring reviewability.
On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that
errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence
would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property
offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the
conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met,
entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes.
This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle
which vindicates the value of reviewability.
Para 18:
18 In my view, the interest in enforceability presently outweighs the interest in reviewability. The appellant has
now twice been convicted of murder. The Crown's case while circumstantial is not insubstantial. While I cannot say
that either ground of appeal is frivolous, they do not appear to be very strong. At this time, the public interest favours
denying bail pending appeal. It is only in unusual circumstances, where the grounds of appeal appear to be strong,
that this court has released an appellant pending appeal from conviction for first or second degree murder. I have
not been persuaded that this is one of those cases.
Para 19 – without prejudice:
19 Accordingly, the application for bail pending appeal is dismissed, but without prejudice to the appellant bringing
a further application if the preparation of the transcript is unreasonably delayed and there is further material as to
the strength of the grounds of appeal.
192
So even a twice convicted murderer on appeal, can give reasons for bail.
Part XXI – Appeals – Indictable Offences
Procedure on Appeals
S. 679. (1) Release pending determination of appeal
679. (1) Release pending determination of appeal — A judge of the court of appeal may, in accordance with this
section, release an appellant from custody pending the determination of his appeal if,
(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal
or, where leave is required, notice of his application for leave to appeal pursuant to section 678;
(b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave
to appeal; or
(c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the
appellant has filed and served his notice of appeal or, where leave is required, his application for leave to
appeal.
(2) Notice of application for release — Where an appellant applies to a judge of the court of appeal to be released
pending the determination of his appeal, he shall give written notice of the application to the prosecutor or to such other
person as a judge of the court of appeal directs.
(3) Circumstances in which appellant may be released — In the case of an appeal referred to in paragraph (1)(a) or
(c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if
the appellant establishes that
(a) the appeal or application for leave to appeal is not frivolous,
(b) he will surrender himself into custody in accordance with the terms of the order, and
(c) his detention is not necessary in the public interest.
Abuse of Process
R v Rourke 1978
Courts — Abuse of process — Delay by Crown in instituting criminal proceedings — Accused claiming delay prejudicing
obtaining of witnesses — No power to stay for delay — The Criminal Code, R.S.C. 1970, c. C-34, ss. 7(3), 719(1).
Appeal from the judgment of the British Columbia Court of Appeal, [1975] 6 W.W.R. 591, 25 C.C.C. (2d) 555, 62 D.L.R.
(3d) 650, which reversed the judgment of Rae J., 16 C.C.C. (2d) 133.
The accused claimed at trial that a lengthy delay in laying charges was an abuse of process as evidence had been lost and
witnesses had either died or left the vicinity, their whereabouts unknown. The County Court Judge (trial judge) stayed the
proceedings; the Crown appealed to the Supreme Court where mandamus to order the County Court to proceed was denied
on the grounds that the County Court Judge had exercised the discretion given him. On appeal McIntyre J.A., for the court,
held that, while the courts had power to stay proceedings for an abuse of power, inordinate delay in the investigatory
process was not sufficient to warrant the exercise of the judicial discretion to grant a stay.
On appeal, held, the appeal was dismissed.
Per Laskin C.J.C.:
Factual situations might arise in which the court would have a discretion to stay proceedings for delay. However, the courts
cannot undertake supervision, through their power to control prosecutions brought before them, of police investigations,
and therefore abuse of process could not be involved in this case. Regina v. Koski, [1972] 1 W.W.R. 398, 5 C.C.C. (2d) 46
(B.C.); Connelly v. D.P.P., [1964] A.C. 1264, 48 Cr.
Per Pigeon J.:
The appeal was dismissed as a County Court Judge did not have discretion to stay proceedings for delay. Kienapple v. The
Queen, 26 C.R.N.S. 1, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524, 44 D.L.R. (3d) 351; Doré v. A.G. Can., 27 C.R.N.S. 237, [1975]
1 S.C.R. 756, 15 C.C.C. (2d) 542, 44 D.L.R. (3d) 370, 1 N.R. 489 distinguished. Kipp v. A.G. Ont., 45 C.R. 1, [1965] S.C.R. 57,
[1965] 2 C.C.C. 133; Regina v. Sheets, [1971] 1 W.W.R. 672, 15 C.R.N.S. 232, [1971] S.C.R. 614, 1 C.C.C. (2d) 508, 16 DL.R.
(3d) 221 referred to. Regina v. Osborn, 12 C.R.N.S. 1, [1971] S.C.R. 184, 1 C.C.C. (2d) 482, 15 D.L.R. (3d) 85; D.P.P. v.
Humphrys, [1976] 2 All E.R. 497 applied.
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Power Point:
R v Rourke
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Pre-Charter case, accused charged with kidnapping, robbery, committed to trial after preliminary hearing
When accused appears for trial, crown prefers indictment, accused argues for stay of proceedings due to abuse of
process, delay in bringing him before court prejudicial, key witness had died
Trial judge stays proceedings, upheld on mandamus application, reversed by Court of Appeal
 Majority holds no general discretionary power at common law for courts to stay proceedings regularly
instituted because prosecution considered oppressive
Minority holds there is general notion for judicial control of criminal process, as way of controlling prosecution
behaviour to be fair towards accused, eg., change of trial location so that accused unable to bring witnesses to trial
Absent evidence that delay in case for ulterior motive, proceedings should not have been stayed
The SCC sits as 9, 7, or sometimes 5. This judgement has 5 in the majority (p.1053), who did not agree
that there was discretion to stay proceedings based on a “doctrine of abuse of process.” On p. 1055,
Laskin + 3 – They are concurring with the result. Laskin agreed that there was no abuse made out, but
thought that the doctrine of abuse of process existed. So only the minority of the court accept that
there is a doctrine of abuse of process, but agreed with the result: to dismiss the appeal.
Para 1, information for kidnapping and Robbery; indictable and not 469 (after you look up the charge).
Committed for trial after a prelim; meaning he had elected superior court trial. Indictiment (s.574) is
preferred by the attorney general – crown in superior court. Then the defendant moved for a stay of
proceedings, based on delay, and death of a key witness, arguing that he would not be able to get a fair
trial. County Court means Superior Court, but there was another level of Superior Court where
the mandamus was brought. Trial judge agreed:
Pigeon J. (Martland, Ritchie, Beetz and de Grandpre JJ. concurring):
38 On 26th February 1973 an information was sworn against the appellant alleging a kidnapping and robbery
committed on 5th October 1971. A warrant was issued and the appellant was later arrested on 3rd April 1973. A
preliminary inquiry was held in June 1973 and the appellant was committed to trial. When he appeared for trial
before a County Court Judge on 21st November 1973 on an indictment preferred by an agent of the Attorney
General of British Columbia, he moved for a stay of the proceedings as an abuse of process. His contention was
that the delay in bringing him before the court was prejudicial to his defence in that a person who would have been
a key witness had died in the interval. It was also asserted that the appellant had not been in hiding and could readily
have been arrested sooner if the police had acted with reasonable diligence. The County Court Judge accepted those
submissions and stayed the proceedings.
[Part XX – Procedure in Jury Trials and General Provisions
574. (1) Prosecutor may prefer indictment — Subject to subsection (3), the prosecutor may, whether the
charges were included in one information or not, prefer an indictment against any person who has been
ordered to stand trial in respect of
(a) any charge on which that person was ordered to stand trial; or
(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in
addition to or in substitution for any charge on which that person was ordered to stand trial.]
Para 2, application for mandamus to the Superior Court. Requires prerogative relief – mandamus –
brought by the crown to compel a judicial officer to do something – to hear the case. The Superior
Court dismissed this review. The Court of appeal was then asked to review, and reversed the
decision: no stay of proceedings appropriate or even allowed. Then the accused appealed to SCC.
The challenge was that there was no jurisdiction to stay the proceedings – the doctrine of abuse of
process was not recognized:
39 An application for mandamus heard by a judge of the Supreme Court of British Columbia was dismissed on
the basis that the County Court Judge had jurisdiction to do what he had done and that, having exercised his
discretion bona fide and on evidence before him, his decision could not be revised [16 C.C.C. (2d) 133]. This
judgment was unanimously reversed on appeal, McIntyre J.A. saying for the court [[1975] 6 W.W.R. 591 at 603-604,
25 C.C.C. (2d) 555, 62 D.L.R. (3d) 650]:
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I do not treat lightly the argument that an accused may suffer prejudice by delay even before criminal
proceedings commence. It may well be that a case could arise where real prejudice could result from such
delay. It is my view, however, that such delay would ordinarily raise a substantive defence. The provisions of
the Criminal Code above referred to (ss. 577(3) and 737) would give the trial judge ample power to see the
accused received what he is entitled to, that is, a fair trial according to law and in a proper case, where delay
has denied the right to make full answer and defence, an acquittal might well result. In my view, however,
facts which would give the discretion to the County Court Judge to stay the proceedings had not arisen
in the case at bar. Matters should have proceeded and the respondent could have raised had he been so
disposed the matters complained of at his trial.
I now turn to the final question. Is mandamus available to the Crown in this case? With the utmost deference
I am unable to share the view of the Judge appealed from that the remedy of mandamus may not be
given here. It is well settled in my opinion that where a judge having a jurisdiction to exercise declines to do
so because of a decision on a preliminary question which does not go to the merits as regards either fact or
law mandamus will lie. I refer to such cases as Rex v. Pochrebny, [1930] 1 W.W.R. 139, affirmed [1930] 1
W.W.R. 688, 38 Man. R. 593, 53 C.C.C. 163 (C.A.), where a reference is made to leading authorities on the
subject and to Burchill, Re (1974), 16 C.C.C. (2d) 11 (N.B. C.A.), and to Stunden v. Taylor, 48 W.W.R. 361,
44 C.R. 51, [1964] 3 C.C.C. 363 (Sask.).
In the case at bar it is clear that the County Court Judge declined to exercise his jurisdiction to hear and to
determine the case upon a point clearly preliminary to the proceeding and upon matters which preceded the
preferring of the indictment. In my view the preliminary objection was unfounded and mandamus
should go.
(We are not talking about 579 stay of proceeding)
579.1 (1) Intervention by Attorney General of Canada — The Attorney General of Canada or counsel instructed by
him or her for that purpose may intervene in proceedings in the following circumstances:
(a) the proceedings are in respect of a contravention of, a conspiracy or attempt to contravene or counselling
the contravention of an Act of Parliament or a regulation made under that Act, other than this Act or a
regulation made under this Act;
(b) the proceedings have not been instituted by an Attorney General;
(c) judgment has not been rendered; and
(d) the Attorney General of the province in which the proceedings are taken has not intervened.
(2) Section 579 to apply — Section 579 applies, with such modifications as the circumstances require, to proceedings
in which the Attorney General of Canada intervenes pursuant to this section.
At the time the following was not in place:
676. (1) Right of Attorney General to appeal — The Attorney General or counsel instructed by him for the purpose
may appeal to the court of appeal
(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental
disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of
law alone;
(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner
refuses or fails to exercise jurisdiction on an indictment;
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment;
or
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in
proceedings by indictment, unless that sentence is one fixed by law.
P.1054, top para – no ability to stay proceedings:
40 I cannot find any rule in our criminal law that prosecutions must be instituted promptly and ought not to
be permitted to be proceeded with if a delay in instituting them may have caused prejudice to the accused. In
fact, no authority was cited to establish the existence of such a principle, which is at variance with the rule that criminal
offences generally are not subject to prescription except in the case of specific offences for which a prescription time
has been established by statute. I have to disagree with the view expressed by McIntyre J.A. that there could be
factual situations giving to a trial judge discretion to stay proceedings for delay. For the reasons I gave in Regina
v. Osborn, 12 C.R.N.S. 1, [1971] S.C.R. 184, 1 C.C.C. (2d) 482, 15 D.L.R. (3d) 85, I cannot admit of any general
discretionary power in courts of criminal jurisdiction to stay proceedings regularly instituted because the
prosecution is considered oppressive. In fact, I think the correct view is that which was expressed as follows by
Viscount Dilhorne in D.P.P. v. Humphrys, [1976] 2 All E.R. 497 at 510-11:
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In Mills v. Cooper, [1967] 2 Q.B. 459, [1967] 2 All E.R. 100, where justices had dismissed a summons on the
ground that it was oppressive and an abuse of the process of the court, Lord Parker CJ [at p. 467], while
holding that it was not, said: ‘ ... every court has undoubtedly a right in its discretion to decline to hear
proceedings on the ground that they are oppressive and an abuse of the process of the court.’.
I must confess to some doubt whether this is a correct statement of the law in relation to magistrates'
courts. If it is, it appears to me to be fraught with considerable dangers. One bench, thinking a prosecution
should not have been brought, will dismiss it as oppressive and vexatious. Other benches on precisely the
same facts may take a completely different view, with the result that there is a lack of uniformity in the
administration of justice.
Nor is the existence of the power my noble and learned friends, Lord Salmon and Lord Edmund-Davies,
think the judge has and its exercise without considerable dangers.
A judge must keep out of the arena. He should not have or appear to have any responsibility for the
institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has
power to decline to hear a case because he does not think it should be brought, then it soon may be thought
that the cases he allows to proceed are cases brought with his consent or approval.
If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in
limine, it is in my view a power that should only be exercised in the most exceptional circumstances.
1055, 2nd last para: “In my view…” – no equivalent to S.676 at the time:
44 In my view, the absence of any provision in the Criminal Code contemplating the staying of an indictment
by a trial judge or an appeal from such decision is a strong indication against the existence of any power to grant
such stay. The present legislative policy is clearly in the direction of allowing a right of appeal from final trial court
judgments on indictable offences in all cases. Section 9 of the Criminal Code gives a right of appeal against conviction
for contempt of court and this was extended by 1972, c. 13, s. 4, to a conviction for contempt in the face of the court.
Section 719(5), enacted by 1964-65, c. 53, s. 1, gives a right of appeal in habeas corpus matters. It would hardly be
consistent with such policy to have a discretionary jurisdiction that could be exercised by superior court judges
in criminal matters where the only possible appeal would be a direct appeal to this court under s. 41(1) of the
Supreme Court Act, R.S.C. 1970, c. S-19. Considerations of policy may not be of much importance in the application
of explicit statutory provisions because policy decisions are essentially for Parliament. It is quite another matter
when we are dealing with unwritten principles.
The minority, Justice Laskin, disagreed with the premise that there was no power to stay under a doctrine
of abuse of process. Bottom para of 1057:
25 I have paraded this long list of cases to show how varied are the fact situations in which judges of different
levels and of different provinces have used abuse of process as a way of controlling prosecution behaviour which
operates prejudicially to accused persons. I pass no judgment on the correctness of any of the decisions, but they do
indicate by their very diversity the utility of a general principle of abuse of process which judges should be able
to invoke in appropriate circumstances to mark their control of the process of their courts and to require fair
behaviour of the Crown towards accused persons. It will not escape notice that the decisions I have cited are almost all
quite recent, and a perusal of them would reveal how much they have been influenced by Connelly v. D.P.P., supra,
and particularly by the reasons of Lord Devlin in that case.
Last page: yet he did not see that it should be applied in this case:
35 The facts and, indeed, the situation now before us do not, in my view, provide any basis for considering the
invocation of the court's power to stay the proceedings against the accused. The appellant is in effect asking the
courts to undertake the supervision, through their power to control prosecutions before them, of the operation and
efficiency of police departments, departments which vary in organization and in size and in the demands that are made
upon them. Absent any contention that the delay in apprehending the accused had some ulterior purpose, courts
are in no position to tell the police that they did not proceed expeditiously enough with their investigation and then
impose a sanction of a stay when prosecution is initiated. The time lapse between the commission of an offence and the
laying of a charge following apprehension of an accused cannot be monitored by courts by fitting investigations into a
standard mould or moulds. Witnesses and evidence may disappear in the short run as well as in the long, and the
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accused too may have to be sought for a long or short period of time. Subject to such controls as are prescribed by the
Criminal Code, prosecutions initiated a lengthy period after the alleged commission of an offence must be left to take
their course and to be dealt with by the court on the evidence, which judges are entitled to weigh for cogency as well as
credibility. The court can call for an explanation of any untoward delay in prosecution and may be in a position,
accordingly, to assess the weight of some of the evidence.
So, minority was prepared to recognized that there was a doctrine of abuse of process which would allow
for a stay. This was the lay of the land until the charter went into effect. Now we have 11(b), and s.7.
R v Jewitt 1985
R. v. Jewitt (1985), 47 C.R. (3d) 193, 21 C.C.C. (3d) 7 (S.C.C.); reversing (1983), 34 C.R. (3d) 193, 5 C.C.C. (3d) 234 (B.C.
C.A.) — The test for abuse of process is whether the proceedings would violate the fundamental principles of justice that
underlie the community's sense of fair play and decency, or whether the proceedings are oppressive or vexatious. The
power to stay proceedings on this basis should be exercised only in the clearest of cases.
Criminal Law ––– Constitutional issues in criminal law — Prosecutorial responsibility — Abuse of process —
Jurisdiction of court to stay or dismiss.
The accused was charged with trafficking in a narcotic. At trial he admitted selling marijuana but said he was
persuaded to do so by a fellow employee, who was a police informer. The jury found there had been unlawful
entrapment, and the court stayed the proceedings on the indictment. The British Columbia Court of Appeal
dismissed the Crown's appeal, the majority holding that the court lacked jurisdiction to hear an appeal from a
judicial stay of proceedings, as such was not an “acquittal” within the meaning of s. 605(1)(a) of the Criminal Code.
The Crown appealed to the Supreme Court of Canada.
Held: Appeal allowed.
There is a residual discretion in a trial judge to stay proceedings for abuse of process where compelling an accused
to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play
and decency, and to prevent the abuse of a court's process through oppressive or vexatious proceedings. This is a
power which can, however, be exercised only in the clearest of cases.
A failure to acknowledge a right of appeal in circumstances where the order finally terminates the proceedings,
in particular a stay, would seriously impede a rational and consistent development of Charter remedies through
the appeal process. On a true reading of s. 605(1)(a) of the Criminal Code, it is the substance of the action of the trial
judge in staying the proceedings which determines whether a stay is a judgment or verdict of acquittal. If the judge
intends to make a final order disposing of the charge against the accused, and if the order of the court effectively brings
the proceedings to a final conclusion in favour of the accused, then it is tantamount to a judgment of acquittal and
therefore appealable by the Crown. Here, the stay was not based on procedural considerations but was intended
to be a final decision based upon questions of law. Further, the accused was placed in jeopardy, and if he were
subsequently to be charged with the same offence specified in the indictment a plea of autrefois acquit would lie.
Power Point:
R v Jewitt
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Trafficking charge, proceedings stayed due to entrapment
Discussion as to whether abuse of process exists at common law following Rourke – number of examples since that
case, assumption that authority to stay proceedings in exceptional circumstances
Need for court to end uncertainty as to doctrine
SCC approves OntCA in Young stating that there is residual discretion in trial court judge to stay proceedings
where compelling accused to stand trial would violate fundamental principles of justice which underlie community’s
sense of fair play and decency, and to prevent abuse of court’s process through oppressive or vexatious proceedings
Power to be used only in “clearest of cases”
P. 1059 – non 469. He elects to Superior Court, judge & jury. Para 2: “the jury found…. Directed
acquittal.” No need for prerogative remedy, the acquittal allows for an appeal:
2 The respondent, Damon Fidel Garfield Jewitt, was charged with unlawfully trafficking in a narcotic, cannabis
(marijuana), contrary to the provisions of the Narcotic Control Act. He pleaded not guilty to the charge. He was tried
at Vancouver before Wong Co. Ct. J. sitting with a jury. He admitted selling one pound of marijuana but said he was
persuaded to sell to the undercover police officer by a fellow employee who was a police informer. The jury found
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there had been unlawful entrapment and the court thereupon directed the clerk of the court to make an entry on the
record staying the proceedings on the indictment
Abuse of Process, p. 1060, para 2, discussion of Rourke. Rourke left the issue undecided:
Abuse of Process
7 Before considering whether a stay of proceedings is a judgment or verdict of acquittal or tantamount thereto, it is
necessary to determine whether, at common law, a discretionary power to stay proceedings in a criminal case
for abuse of process exists, in the words of Laskin C.J.C. in Rourke v. R., [1978] 1 S.C.R. 1021 at 1034, [1977] 5
W.W.R. 487, 38 C.R.N.S. 268, 35 C.C.C. (2d) 129, 76 D.L.R. (3d) 193, 16 N.R. 181, as a means of “controlling
prosecution behaviour which operates prejudicially to accused persons”.
P. 1063: “It seems to me…” there is a doctrine; accepts Dubin: “residual discretion” – re violation of
fundamental principles. Residual discretion in regards to fundamental principles of justice (s.7), based on
“oppressive or vexatious”. So two tests: fair play and decency, or oppressive and vexations. Only in the
clearest of cases:
24 It seems to me desirable and timely to end the uncertainty which surrounds the availability of a stay of
proceedings to remedy abuse of process. Clearly, there is a need for this court to clarify its position on such a
fundamental and wide-reaching doctrine.
25 Lord Devlin has expressed the rationale supporting the existence of a judicial discretion to enter a stay of
proceedings to control prosecutorial behaviour prejudicial to accused persons in Connelly v. D.P.P., [1964] A.C.
1254 at 1354, [1964] 2 W.L.R. 1145, [1964] 2 All E.R. 401 (H.L.):
Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an
inescapable duty to secure fair treatment for those who come or who are brought before them? To
questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the
transference to the Executive of the responsibility for seeing that the process of law is not abused.
26
I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra, and affirm that
... there is a residual discretion in a trial court judge to stay proceedings where compelling an accused
to stand trial would violate those fundamental principles of justice which underlie the community's
sense of fair play and decency and to prevent the abuse of a court's process through oppressive or
vexatious proceedings.
I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the
“clearest of cases”.
Point: Resolves the issue that the SCC could not agree upon in Rourke – to be exercised infrequently
and with a high standard. This case doesn’t tell us exactly when. We will see that in the following cases.
These are more threshold jurisdictional cases that clarify the doctrine.
R v Young 1984
Power Point
R v Young
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Court of Appeal recognizes residual discretion in trial judge to stay proceedings for abuse of process, to be used
sparingly
Absent delay in instituting proceedings for ulterior motive of depriving accused from making full answer and defence,
no basis for stay
Appropriate for court to control its process, fundamental principles of justice hallmark of s.7 Charter of Rights
Young is the case that the SCC relies upon in Jewitt. Dubin J, third last para, 1068, “I think this is a
case… to control its process… fundamental… entrenched in s.7:” So Dubin links the doctrine to the
Charter. So the SCC has clarified the doctrine, by agreeing with the minority in Rourke, Young, Jewitt –
in two types of cases (above) with high standard, infrequently used.
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R v Keyowski 1986
Power Point:
R v Keyowski
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Accused charged with driving offence, parties killed, at third trial (two hung juries) accused applies for stay of
proceedings due to abuse of process, granted by trial judge
Case raises abuse of process under common law and under s.7 Charter of Rights
No longer issue whether power to stay proceedings due to abuse of process – power to protect processes of court
from abuse by oppressive conduct on part of prosecution
Error for proceedings to be stayed due to abuse – Crown has right to third trial, has done nothing improper – no
evidence that improper, ulterior motive
Charter, s.7 – not necessary to consider issue by majority, since decision to proceed not abuse, test is same under
s.7
Minority – crown asking for third chance opportunity to make its case, could go on endlessly, community’s sense
of fair play and decency offended
Unnecessary to address s.7 issue due to finding
2 judgements given, first is Sask. C.A. First 2 charges, one stayed, then criminal negligence causing
death. The crown changed the charge to a more serious one (life v. 14 years). This was an ok exercise of
discretion. After reviewing the police investigation, the crown can up the charge. Defendant elects trial
by judge and jury (non 469, non 553). Prelim held, committed for trial.
P.1069, 3rd para – jury was unable to reach a verdict – mistrial. Crown can re-prosecute.
Last para 1069 – again no decision.
2nd para, 1070 – crown gives notice for 3rd trial, accused brings motion: abuse of process – ss. 7, 11(b),
11(d).
So, now its not only an appeal for the court to control its procedure, it is mostly about s.7, 11(b) time –
only remedy under 11(b) is to stay proceedings. 11(d) refers to presumption of innocence – to argue that
multiple trials defeat the presumption.
P.1070/1 – there is a discretionary power
1071 – “the trial judge… issues abuse of process?”
“in my opinion… error…. The doctrine:
1072: “the onus…
The court found it significant that there was no bad conduct by the crown. 2nd last para on 1072:
1073 – there must be evidence of oppressive – there must be.
Under s.7: the majority agreed is subsumed… last para on 1073 – would have arrived at the same
decision.
Dissent by the Chief Justice, p. 1075/6 – thought there was an abuse, factors, start bottom of 1075, and
go over…
The minority opinion was a much broader one, willing to look at all the factors. Bottom of p. 1078, “the
foregoing… clearest of cases.”
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But he says it’s unnecessary to look at s.7 because the abuse of process is under the doctrine.
R v Keyowski 1988(2)
R. v. Keyowski (1988), 40 C.C.C. (3d) 481 (S.C.C.) — See also: R. v. Jans (1990), 59 C.C.C. (3d) 398 (Alta. C.A.); R. v. Jewitt
(1985), 47 C.R. (3d) 193, 21 C.C.C. (3d) 7 (S.C.C.); reversing (1983), 34 C.R. (3d) 193, 5 C.C.C. (3d) 234 (B.C. C.A.) — The
test for abuse of process is whether the proceedings would violate the fundamental principles of justice that underlie the
community's sense of fair play and decency, or whether the proceedings are oppressive or vexatious. The power to stay
proceedings on this basis should be exercised only in the clearest of cases.
Criminal Law ––– Constitutional issues in criminal law — Prosecutorial responsibility — Abuse of process —
Jurisdiction of court to stay or dismiss.
The Facts:
The accused was charged with criminal negligence causing death. His first two trials ended with the jury unable
to agree on a verdict, and a third trial was stayed on the grounds that it would constitute both an abuse of
process and a violation of s. 7 of the Charter. The Crown's appeal of the stay was allowed, and the accused
appealed to the Supreme Court of Canada.
Held: Appeal dismissed.
Subjecting an accused to a series of trials could per se constitute an abuse of process justifying a stay without the
accused having to show prosecutorial misconduct. However, a stay should only be granted in the clearest of cases
where compelling an accused to stand trial would violate those fundamental principles of justice underlying the
community's sense of fair play and decency or where the proceedings are oppressive or vexatious. In this case the
charge was serious, the proceedings had not occupied an undue length of time, and the accused had not been held in
custody. In the circumstances a third trial would not exceed the community's sense of fair play and the
administration of justice was best served by allowing the Crown to proceed with a new trial.
As the parties did not address the issue of the relationship between s. 7 of the Charter and the common law doctrine of
abuse of process, it was not necessary to consider that issue.
Power Point:
R v Keyowski (2)
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Supreme Court upholds majority of Sask.C.A. in finding no abuse of process
Disagrees that prosecutorial misconduct required for abuse of process, but agrees accused has failed to
demonstrate this is clearest of cases – administration of justice better served by third trial
While parties, courts agree that common law doctrine of abuse of process subsumed by s.7 Charter, Supreme
Court expresses no opinion on issue
Keyowski 1988 (2) – Follows Rourke, Young; Affirms Jewitt; The Test for Abuse of Process
The test for abuse of process is whether the proceedings would violate the fundamental principles of justice that underlie
the community's sense of fair play and decency, or whether the proceedings are oppressive or vexatious. The power to stay
proceedings on this basis should be exercised only in the clearest of cases.
Justice Wilson, bottom p.1081 – “to define oppressive… would prevent no limit… many factors to be
taken into account… process. She effectively disagrees with the majority of the appeal court.
3 The legal issue on the appeal is a very narrow one, namely whether a series of trials could per se constitute an
abuse of process or whether it is necessary for the accused to show prosecutorial misconduct. The majority of the
Court of Appeal expressed the view that the accused had to establish prosecutorial misconduct. Vancise J.A.,
writing for the majority, stated at p. 68:
In the absence of evidence that the legal officers of the Crown were guilty of prosecutorial misconduct or
proceeded for (sic) some ulterior motive, in short that the proceedings were oppressive, the continuation of
the trial on the indictment is not an abuse of process.
To define “oppressive” as requiring misconduct or an improper motive would, in my view, unduly restrict the
operation of the doctrine. In this case, for example, where there is no suggestion of misconduct, such a definition
would prevent any limit being placed on the number of trials that could take place. Prosecutorial conduct and
improper motivation are but two of many factors to be taken into account when a court is called upon to consider
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whether or not in a particular case the Crown's exercise of its discretion to re-lay the indictment amounts to an
abuse of process.
Next para, top 1082 – While she disagrees about the approach to the doctrine, she agrees with their
decision and says a new trial is appropriate. She also declines to talk s.7:
4 While I disagree with the majority of the Court of Appeal that prosecutorial misconduct must be
demonstrated in order to give rise to an abuse of process, I nevertheless agree with their conclusion that a new
trial was properly ordered in this case. The appellant has, in my view, failed to demonstrate that this is one of those
“clearest of cases” which would justify a stay. The charge is a serious one. The proceedings have not occupied an
undue amount of time. The accused has not been held in custody, and, while he has undoubtedly suffered substantial
trauma and stigma from the proceedings and the attendant publicity, he is probably not distinguishable in this respect
from the vast majority of accused. A third trial may, indeed, stretch the limits of the community's sense of fair play but
does not of itself exceed them. In these circumstances, and having regard to the seriousness of the charge, I think that
the administration of justice is best served by allowing the Crown to proceed with the new trial.
R. v. Mitchelson (1992)
R. v. Mitchelson (1992), 13 C.R. (4th) 73, 71 C.C.C. (3d) 471 (Man. C.A.) — The common law doctrine of abuse of process is
available to prevent multiple proceedings, even without evidence of prosecutorial misconduct or improper motivation. The
issue is not whether a particular accused, prominent in the community, should stand trial because of such status, but rather,
whether anyone, in similar circumstances, ought to be subjected to that process.
Abuse of process — Delay — Fourth trial of city councillor on charge of driving with excessive alcohol in blood after
three years and four months violating community's sense of fair play and decency — Process stayed.
The Facts:
The accused, a city councillor, was the host of the annual city council Christmas party. The police officer stopped
him on his way home and the accused failed an ALERT test. He was later charged with operating a vehicle while
impaired and operating a vehicle with excessive alcohol in his blood. The Crown elected to proceed by way of
summary conviction. The impaired charge was dismissed but he was convicted on the over .08 charge. The trial
judge dismissed his defence that there was “evidence to the contrary” to rebut the presumption of the level of
alcohol in his blood at the time. The accused's appeal against his .08 conviction succeeded and a new trial was
ordered. The second trial on the .08 charge was declared a mistrial when the trial judge was informed that the accused
intended to call a witness who was a personal friend of the trial judge. At the third trial before another judge, the
accused was acquitted. The Crown appealed the acquittal on the basis that the trial judge had erred in refusing to
permit cross-examination of the accused on evidence given at his first trial. The appeal judge accepted the Crown's
submission, ordered a new trial and refused the accused's further submission that a fourth trial would constitute
an abuse of process. The accused appealed.
Held: The appeal was allowed; order for new trial was set aside and proceedings were stayed.
In all the circumstances, to compel the accused to stand trial a fourth time would clearly “violate those principles of
justice which underlie the community's sense of fair play and decency”. The circumstances of the accused's case
constituted an abuse of process. The three years and four months that the proceedings occupied was undue. The
accused's conduct because of his prominence in the community had attracted much more public attention than would
the circumstance with a less prominent person. It was obvious that the accused had been stigmatized and
punished.
Power Point:
R v Mitchelson
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Accused seeks stay of proceedings for trial for fourth time – drinking and driving, summary conviction offence
Accused city councillor, lots of publicity
First trial conviction, set aside; second trial mistrial; third trial acquittal, new trial ordered on crown appeal
issue is not whether accused should stand trial fourth time, but whether any person in similar circumstances should
be subjected to process
Mitchelson: Keyowski applied – series of trials can constitute abuse of process
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Keyowski applied – series of trials can constitute abuse of process
Drunk driving serious offence, trials over three year period
Crown unable to cite any summary conviction trial for fourth time
Publicity of case also relevant factor, accused stigmatized and punished
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•
Fourth trial would violate community’s sense of fair play and decency; proceedings stayed
Part XXVII – Summary Convictions – (Time Constraints) - 786. (1) Application of Part
786. (1) Application of Part — Except where otherwise provided by law, this Part applies to proceedings as defined in this
Part.
(2) Limitation — No proceedings shall be instituted more than six months after the time when the subject-matter of the
proceedings arose, unless the prosecutor and the defendant so agree.
1997, c. 18, s. 110
1st Para – summary, but super-summary, so serious; before provincial justice, appeal court is the
Superior Court, then to OCA, then to SCC. If it had been indictable, the appeal would be to OCA,
whether trial was in provincial or superior court. Appeals determined by nature of proceedings:
The judgment of the court was delivered by Philp J.A.:
1 The accused has appealed against the order of the summary conviction appeal court judge, Krindle J., that he
be tried for the fourth time on a charge of operate a motor vehicle with a prohibited alcohol-blood level (drive over
.08). The appeal raises the question as to whether in all of the circumstances a fourth trial “would violate those
fundamental principles of justice which underlie the community's sense of fair play and decency”: R. v.
Keyowski, [1988] 1 S.C.R. 657, 62 C.R. (3d) 349, 83 N.R. 296, [1988] 4 W.W.R. 97, 65 Sask. R. 122, 40 C.C.C. (3d)
481, 32 C.R.R. 269.
“Alternative Charges” – Over 80 v Impaired driving – Ss. 253 (a) or (b)
An over 80 finding is simply a finding as to blood alcohol level. It does not mean that the driver was
technically impaired. An impaired driving charge is a different determination – a determination of
impairment. Different tolerances will produce different impairment levels. Impaired driving and
driving over 80 are “alternative” charges; one can’t be convicted of both, only one or the other.
253. (1) Operation while impaired — Every one commits an offence who operates a motor vehicle or vessel or
operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle,
vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by
alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds
eighty milligrams of alcohol in one hundred millilitres of blood.
(2) For greater certainty — For greater certainty, the reference to impairment by alcohol or a drug in
paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
R.S.C. 1985, c. 27 (1st Supp.), s. 36; R.S.C. 1985, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18
255. (1) Punishment — Every one who commits an offence under section 253 or 254 is guilty of an indictable
offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following
minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years;
and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18
months.
(2) Impaired driving causing bodily harm — Everyone who commits an offence under paragraph 253(1)(a) and
causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term
of not more than 10 years.
(2.1) Blood alcohol level over legal limit — bodily harm — Everyone who, while committing an offence under
paragraph 253(1)(b), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and
liable to imprisonment for a term of not more than 10 years.
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Libman: Are Keyowski and Mitchelson contradictory? Do they offer enough to distinguish? Similar
to 11b questions, how much is too much? No bright line demonstrated here.
After 3rd trial, the appeal ground was on an error of law – 3rd para 1084, failure to allow crossexamination. Crown acknowledged that the judge made an error:
6 A third trial was held before Swail Prov. J., on May 24, 1991, and at the conclusion of the trial, the accused was
acquitted of the charge of drive over .08. The Crown appealed from the acquittal on the ground that the trial judge
erred in law in refusing to permit cross-examination of the accused on evidence given at his first trial. It is this
appeal that came on before Krindle J. on November 5, 1991. She found, as counsel for the accused conceded before
her, that the trial judge had erred in refusing to permit cross-examination of the accused as to credibility using the
transcript of the first trial. See R. v. Kuldip, [1990] 3 S.C.R. 618, 1 C.R. (4th) 285, 114 N.R. 284, 61 C.C.C. (3d) 385,
43 O.A.C. 340, 1 C.R.R. (2d) 110. Krindle J., however, did not accept counsel's further submission that a fourth
trial would constitute an abuse of process.
Court of Appeal for Manitoba, 1085 – concludes undue:
13 The time that has occupied these proceedings (three years and four months) is three months less than the time in
Keyowski which Wilson J. found not to be undue. In my view, however, there is no factual correlation between the
two cases. Here we have a summary conviction proceeding carrying with it liability to imprisonment for a maximum
of six months; the offence in Keyowski was an indictable one, with liability to imprisonment for life. In this case, the
accused has been ordered to stand trial for a fourth time; in Keyowski, the accused was facing his third trial. An
additional consideration in this case is s. 786(2) of the Criminal Code, R.S.C. 1985, c. C-46, which provides for a
general limitation period of six months for the institution of summary conviction proceedings; there is no general
limitation period affecting proceedings on indictment.
Bottom 1085 – “involves” publicity for a counsellor, final factor:
16 A final factor to be considered in this case is the publicity the events of December 15 and 16, 1988 have
generated (and continue to generate) in the media. I think it is a matter of notorious fact that the conduct of the
accused, because of his prominence in the community, has attracted much more public attention than would the
circumstances of a less prominent person. It is obvious that he has been stigmatized and punished. Whatever may
be the outcome of these proceedings, he remains accountable for his behaviour in another forum.
2nd last para – violate the principles of justice:
19 These are nice questions, but it will not be necessary to resolve them on this appeal. The accused says the
circumstances of his case constitute an abuse of process, and in my view he has met the more stringent onus under
the common law doctrine. I find this to be the clearest of cases. Compelling the accused to stand trial a fourth time
would clearly “violate those principles of justice which underlie the community's sense of fair play and
decency.”
[NOTE:
Abuse of Process: The Categories
R. v. Zarinchang (2010), 73 C.R. (6th) 199, 254 C.C.C. (3d) 133 (Ont. C.A.) — Two categories of cases may
warrant a stay of proceedings. In the first category, state misconduct implicates the fairness of D's trial. In the
second category, which is unrelated to trial fairness, the state conduct contravenes fundamental notions of justice,
thus undermines the integrity of the judicial process. To obtain a stay of proceedings under either category, D must
demonstrate that
i.
the prejudice caused by the abuse will be manifested, perpetuated or aggravated through the
conduct or outcome of the trial;
ii.
the prejudice is prospective, not something that occurred in the past; and
iii.
no other remedy is reasonably capable of removing the prejudice.
In cases of uncertainty, the judge may balance the interests in granting a stay against society's interest in having a trial
on the merits.]
Re Parkin and the Queen 1986
R. v. Parkin (1986), 28 C.C.C. (3d) 252 (Ont. C.A.); leave to appeal refused (1986), 17 O.A.C. 377n (S.C.C.) — It was an abuse
of process for P, after the commencement of the trial by summary conviction, to withdraw the charge, in order to present a
203
second information and proceed by way of indictment, upon discovering that the offence occurred outside the six-month
period.
Criminal Law ––– General principles involving criminal law — Criminal jurisdiction — Time limitations — Summary
Conviction offences — Information ––– Criminal Code, R.S.C. 1970, c. C-34, s. 721(2).
The facts:
Accused charged with sexual assault -- Crown proceeding by way of summary conviction -- After commencement of
trial, complainant's mother telling Crown counsel that last possible date on which alleged offence could have taken
place prior to 6-month period for swearing of information under s. 721(2) of Code -- Accordingly, Crown seeking
leave to withdraw charge in order to present second information and proceed by way of indictment -- Trial Judge
granting leave -- Accused applying to have second information quashed -- Application dismissed -- Accused
appealing -- Appeal allowed -- Trial Judge should have proceeded with trial on first information -- Course Crown
seeking to follow constituting abuse of process.
Power Point:
R v Parkin
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Sexual assault summary conviction trial, only part of victim’s testimony places offence within six month limitation
period
Crown seeks to withdraw information, places new information before court, proceeds by indictment to avoid
limitation period
Accused applies to Supreme Court (OCA) to quash new information
Parkin: Abuse of Process to attempt change to Indictment over information, due to limitation after
jeopardy attached and in light of deliberate choice earlier to proceed summarily
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Original information not nullity, court could have found accused guilty or not
Abuse of process to place new information before court – Crown made deliberate decision to proceed on original
information, elect summarily
Crown’s conduct, additional severity of punishment not in accord with community’s sense of decency and fair
play
Proceedings stayed by Court of Appeal
Part XXVII – Summary Convictions [Case refers to S.721, now S.786 – Limitation Period]
Part XXVII – Summary Convictions – S. 786. (1) Application of Part
786. (1) Application of Part — Except where otherwise provided by law, this Part applies to proceedings as defined in this
Part.
(2) Limitation — No proceedings shall be instituted more than six months after the time when the subject-matter of the
proceedings arose, unless the prosecutor and the defendant so agree.
1997, c. 18, s. 110
Part XXVII – Summary Convictions [Case refers to s.739 – now 804]
804. Finding of guilt, conviction, order or dismissal — When the summary conviction court has heard the prosecutor,
defendant and witnesses, it shall, after considering the matter, convict the defendant, discharge the defendant under section
730, make an order against the defendant or dismiss the information, as the case may be.
R.S.C. 1985, c. 27 (1st Supp.), s. 178;
1995, c. 22, s. 10
P.1087, 1st para, summary, issue of time:
Thorson, J.A. [Orally]:
1 The original information in this case, on which counsel for the Crown elected to proceed by way of summary
conviction, charged the appellant with a sexual assault on a young female “during the months of January to August in
the year 1983”. Of this period, only the part of August 1983 after August 3 fell within the six months referred to in
s. 721(2) of the Code prior to the swearing of the information.
2nd para – complainant testimony shows limitation problems:
2 The complainant in her evidence-in-chief at trial testified that the conduct complained of continued up to, but
not beyond, the time when she and her mother left the residence of the appellant, which she believed was in the “early
fall” of that year. During the recess following her testimony, however, counsel for the Crown spoke to the
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complainant's mother, who told him that the last possible date on which the alleged offence could have occurred
would have been July 27, 1983 when in fact they left the appellant's residence. On the strength of this statement to
him counsel for the Crown, when the court reconvened, sought leave to withdraw the charge in order to present a
second information which he indicated would be proceeded with by indictment, thereby avoiding any problem with
the limitation period in s. 721(2).
Look at 601 re applying for an amendment to the information:
Part XX – Procedure in Jury Trials and General Provisions - Amendment
S. 601. (1) Amending defective indictment or count
601. (1) Amending defective indictment or count — An objection to an indictment or to a count in an indictment for
a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has
pleaded, and thereafter only by leave of the court before which the proceedings take place, and the court before
which an objection is taken under this section may, if it considers it necessary, order the indictment or count to
be amended to cure the defect.
Thorson for court of appeal thought it unfair, 1088, 2nd last para, indicia – choice after deliberation:
10 The election made by the Crown in this case was clearly a considered one and the product of a deliberate
choice. At the opening of the trial on September 20, 1984, counsel for the Crown advised the court that the Crown
would be proceeding by summary conviction for reasons which, he indicated, he had discussed with the complainant's
mother earlier that day. Thereafter the appellant's plea was taken, the trial began and the complainant gave her
evidence.
At the time sexual assault was not a super-summary offence (summary conviction meant 6 month
maximum). Last para – abusive to allow courts authority to be lent to the strategy. The court is saying
that the crown has abused the process:
13 With deference, we are of the opinion that it would not accord with the community's sense of fair play to allow
this prosecution to proceed upon the charge set out in the second information presented by the Crown. In our view, a
stay of further proceedings on that information ought to have been directed in the very unusual circumstances
of this case, having regard to the Crown's conduct of the proceedings to that time and, as well, the resulting added
severity of the punishment to which the appellant, if convicted upon that information, would be exposed solely
because of the Crown's conduct of the proceedings to that time.
But was it malicious or bad faith? Probably not; just an attempt to repair an error.
R. v. Jans (1990)
Abuse of Process: The Standard to be Applied
R. v. Keyowski (1988), 40 C.C.C. (3d) 481 (S.C.C.) — See also: R. v. Jans (1990), 59 C.C.C. (3d) 398 (Alta. C.A.); R. v. Jewitt
(1985), 47 C.R. (3d) 193, 21 C.C.C. (3d) 7 (S.C.C.); reversing (1983), 34 C.R. (3d) 193, 5 C.C.C. (3d) 234 (B.C. C.A.) — The
test for abuse of process is whether the proceedings would violate the fundamental principles of justice that underlie the
community's sense of fair play and decency, or whether the proceedings are oppressive or vexatious. The power to stay
proceedings on this basis should be exercised only in the clearest of cases.
Power Point:
R v Jans
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Sexual abuse of child case, crown elects summarily, realizes limitation period will bar prosecution, lays new
information one month later, proceeds by indictment
Trial judge convicts accused, imposes six month penalty as this would have been limit for summary offence
Accused contends prejudiced by indictable procedure – longer period to wait for pardon, maximum penalty higher
Jans: Crown Re-Election to cure Mistake (limitation period) is Discretionary where no prejudice,
before jeopardy attaches
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•
Crown has discretion to prosecute hybrid offence (Smythe) – no authority that it cannot change its election, in
any event no abuse of process
Re-election did not prejudice accused – he did not change his position due to crown’s intention to proceed summarily
Obvious procedural mistake by Crown, accused should not get off on technicality
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2nd para – realized that the limitation period was a problem and laid a new information prior to trial:
3rd para – Court felt that “nothing” occurred in between – no prejudice to the defendant
1093 – “would not follow…”:
1092 – factors para 3 – onus on accused
Later same page, no effect
1st page – only imposed 6 months because of the issue
Last para – community would be offended in a child sexual assault case, to stay due to a technicality:
Conclusion: Parkin and Jans show more of crown fault than the first two cases; not necessarily bad faith,
but middle of the continuum. The next cases get closer to bad faith.
R. v. O'Connor (1995)
Abuse of Process: Charter or Common Law
R. v. O'Connor (1995), 44 C.R. (4th) 1, 103 C.C.C. (3d) 1 (S.C.C.) — In general, there is no utility in maintaining two distinct
approaches to abusive conduct by P. The principles of fundamental justice both reflect and accommodate the common law
doctrine of abuse of process.
Criminal Law ––– Constitutional issues in criminal law — Prosecutorial responsibility — Abuse of process — Conduct of
prosecution.
The Facts:
A Roman Catholic bishop was charged with sexual offences against four complainants 25 years earlier. Defence
counsel obtained a pre-trial order requiring disclosure of the complainants' entire medical, counselling and
school records, and that the complainants authorize production of the records. The records later came into the
Crown's possession. The Crown stated that it wished to dispute the order, but took no steps to do so. After a trial
judge was appointed, he stated that he was to be promptly given the therapy records of all four complainants. Over
several court appearances on various issues, the defence would raise the issue of non-disclosure of various records,
the trial judge would order disclosure, and the Crown would supply a few more therapy records or witness
statements. When the defence applied for a judicial stay based on non-disclosure of several items, the trial judge
noted that Crown counsel's letters to the therapists had unacceptably limited disclosure of records from what
the order provided. He condemned the Crown's conduct but dismissed the application. Because of the problems
encountered during discovery, the Crown undertook to waive any privilege respecting the contents of its file and to
give the defence all the information in its possession. At the pre-trial conference, the Crown informed the trial
judge that defence counsel now possessed copies of all the Crown's notes. When the trial began, it appeared that the
Crown had not provided the defence with copies of drawings which it proposed to introduce into evidence. The
defence again applied for a judicial stay of proceedings. When the Crown indicated that it could not guarantee that full
disclosure had been made, the trial judge stayed proceedings. The British Columbia Court of Appeal allowed the
Crown's appeal and ordered a new trial. The accused appealed.
Held: Appeal dismissed.
I. Stay of proceedings
Per L'Heureux-Dubé J. (La Forest, Gonthier and McLachlin JJ. concurring)
There is no need to maintain a distinction between between the common law doctrine of abuse of process and
Charter requirements regarding abusive conduct. Traditionally, the common law doctrine's focus has been more
on protecting the judicial system's integrity while the Charter's focus has been more on protecting individual
rights. However, the overlap between the two regimes has become so significant that both need not be maintained.
The burden of proof under the common law is whether the present case is the clearest of cases while the burden
under the Charter is the balance of probabilities. However, if a violation of Charter s. 7 is proved on a balance of
probabilities, the court is likely to grant a stay of proceedings under Charter s. 24(1) only in the clearest of cases.
While the court may grant less drastic remedies under s. 24(1) where the clearest of cases threshold is not met, that
merely makes the Charter regime the more flexible one but is not a reason to maintain a separate common law
regime.
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Depending on the circumstances, abuse of process may engage different Charter rights. The Crown's conduct may
have prejudiced the accused's right to trial within a reasonable time under s. 11(b) or infringed the accused's right to a
fair trial under ss. 7 and 11(d). Section 7 also catches a residual category in which the Crown has acted so unfairly
as to contravene fundamental notions of justice. There is no autonomous right in the Charter to disclosure by the
Crown. Non-disclosure normally falls within the category of the right to a fair trial. Where life, liberty or security of
the person is engaged in a judicial proceeding, and it is proved on a balance of probabilities that the Crown's
failure to make proper disclosure has impaired the accused's ability to make full answer and defence, a violation
of s. 7 is proven. The court must then fashion a just and appropriate remedy under s. 24(1). Although the remedy
for such a violation will typically be a disclosure order and adjournment, there may be extreme cases where the
prejudice to the justice system's integrity or the accused's ability to make full answer and defence is irremediable. In
those clearest of cases, a stay of proceedings is appropriate. Here, the evidence did not support the finding of a
violation under s. 7 and it did not support the finding that a stay of proceedings was the only appropriate course.
At most, defence counsel might have been disadvantaged because it had only a short time to review the most
recently disclosed documents. The undisclosed diagrams were relevant in that they might have affected the preparation
of one witness's cross-examination. The accused's right to full answer and defence was probably not infringed
merely because one witness's cross-examination which had not yet begun might possibly have to be reformulated.
Further, the whole issue of disclosure arose from the erroneously granted order requiring the Crown to disclose
records in the hands of third parties and the complainants to authorize production of the records. Although the error
was compounded by the Crown's ineptness, the Crown was right in trying to protect the interests of justice. This
was not one of the clearest of cases which would mandate a stay of proceedings.
Power Point:
R v O’Connor
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Sexual assault case, accused requests disclosure of third party records – medical, counselling and school records of
victims [s.278.1 Code subsequently enacted for such disclosure]
Trial judge orders disclosure of therapy records, clinical notes provided, stay of proceedings due to non-disclosure
dismissed
Further records later disclosed, trial starts; further information comes to light (drawings), trial judge orders stay of
proceedings due to abuse of process, defence does not have all relevant information needed for full answer and
defence
Abuse of process and Charter – common law doctrine resurgence in Jewitt, reserved for clearest cases, compelling
accused to stand trial violates fundamental principles of justice underlying community’s sense of fair play and decency
Individual rights to trial fairness, general reputation of justice system fundamental concerns of both Charter, common
law abuse of process
No utility in different approaches to Charter, common law abuse of process – Charter may not apply in some
circumstances
Not helpful to speak of one particular right of abuse of process under Charter – different Charter guarantees may be
engaged
Accused has right to fair trial under s.7 [fundamental justice principles] and s.11(d) [presumption of innocence]
Challenge due to non-disclosure requires showing of actual prejudice to accused’s ability to make full answer
and defence
Stay of proceedings only appropriate in clearest of cases, prejudice to accused cannot be remedied, eg., by disclosure
order, adjournment
O’Connor: CL Doctrine of Abuse of Process, Subsumed into Charter Principles; requires showing
1.
2.
-
Challenge for stay of proceedings, due to non-disclosure requires showing of actual prejudice to accused’s ability
to make full answer and defence
No utility in different approaches to Charter, common law abuse of process – Charter may not apply in some
circumstances
*Yet still residual discretion under s.7, but there is no difference in the standard that is applied between
common law and charter abuse of process.
Overlap of Charter and Doctrine of Abuse of Process: The Charter has put in the hands of judges
a “scalpel instead of an axe” [Para 69]
Issue: disclosure by the crown, not living up to obligations. P. 1099, para 59 – discussion begins with
Jewitt – doctrine is real, high standard, clearest of cases:
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(i) The Relationship between Abuse of Process and the Charter
59 The modern resurgence of the common law doctrine of abuse of process began with the judgment of this Court
in R. v. Jewitt, [1985] 2 S.C.R. 128 [[1985] 6 W.W.R. 127]. In Jewitt, the Court set down what has since become the
standard formulation of the test, at pp. 136–37:
Lord Devlin has expressed the rationale supporting the existence of a judicial discretion to enter a stay of
proceedings to control prosecutorial behaviour prejudicial to accused persons in Connelly v. Director of
Public Prosecutions, [1964] A.C. 1254 (H.L.) at p. 1354:
Are the courts to rely on the Executive to protect their process from abuse? Have they not
themselves an inescapable duty to secure fair treatment for those who come or who are brought
before them? To questions of this sort there is only one possible answer. The courts cannot
contemplate for a moment the transference to the Executive of the responsibility for seeing that the
process of law is not abused.
I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra, and affirm that
“there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to
stand trial would violate those fundamental principles of justice which underlie the community's sense of
fair play and decency and to prevent the abuse of a court's process through oppressive and vexatious
proceedings”. I would also adopt the caveat added by the court in Young that this is a power which can be
exercised only in the “clearest of cases”. [Emphasis added.]
The general test for abuse of process adopted in that case has been repeatedly affirmed: R. v. Keyowski, [1988] 1
S.C.R. 657 at 658-59 [[1988] 4 W.W.R. 97], R. v. Mack, [1988] 2 S.C.R. 903 at 941 [[1989] 1 W.W.R. 577], R. v.
Conway, [1989] 1 S.C.R. 1659 at 1667, R. v. Scott, [1990] 3 S.C.R. 979 at 992-93, and most recently in R. v. Power,
[1994] 1 S.C.R. 601 at 612-15.
Para 61 – difference between charter and doctrine – 24(2):
61 First, while the Charter is certainly concerned with the rights of the individual, it is also concerned with
preserving the integrity of the judicial system. Section 24(2) of the Charter gives express recognition to this dual
role. More significantly, however, this Court has, on many occasions, noted that the principles of fundamental justice in
s. 7 are, in large part, inspired by, and premised upon, values that are fundamental to our common law. In
Reference re s. 94(2) of Motor Vehicle Act (British Columbia), (sub nom. Re British Columbia Motor Vehicle Act)
[1985] 2 S.C.R. 486 at 503 [[1986] 1 W.W.R. 481, 69 B.C.L.R. 145], Lamer J. (as he then was) observed:
... the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not
lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the
justice system. Such an approach to the interpretation of “principles of fundamental justice” is consistent
with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and
larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all the while
avoiding adjudication of policy matters. [Emphasis added.]
See also R. v. Beare, [1988] 2 S.C.R. 387 at 406 [[1989] 1 W.W.R. 97]; Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835 at 929 (per Gonthier J., dissenting on other grounds). The common law doctrine of abuse of
process is part and parcel of those fundamental values. It is, therefore, not surprising that in R. v. Potvin, [1993] 2
S.C.R. 880 at 915 (per Sopinka J.), the majority of this Court recognized that the court's power to remedy abuses
of its process now has constitutional status.
Para 68 – abuse of process as applied under charter – discussion of different burdens – says under 24(1) –
burden unites to be equal to “clearest of cases.”
68 I also recognize that, despite these strong parallels, the common law and Charter analyses have often been
kept separate because of the differing onus of proof upon the accused under the two regimes. In R. v. Keyowski
(1986), 28 C.C.C. (3d) 553 [[1986] 5 W.W.R. 150] (Sask. C.A.), at pp. 561–62, for instance, it was noted that while the
burden of proof under the Charter was the balance of probabilities, the burden under the common law was “the
clearest of cases”. It is important to remember, however, that even if a violation of s. 7 is proved on a balance of
probabilities, the court must still determine what remedy is just and appropriate under s. 24(1). The power
granted in s. 24(1) is in terms discretionary, and it is by no means automatic that a stay of proceedings should be
granted for a violation of s. 7. On the contrary, I would think that the remedy of a judicial stay of proceedings would
be appropriate under s. 24(1) only in the clearest of cases. In this way, the threshold for obtaining a stay of
208
proceedings remains, under the Charter as under the common law doctrine of abuse of process, the “clearest of
cases”.
So, with the charter, the first issue is whether there was a violation of the charter rights of the accused,
but a stay will not be the default remedy; it will have to be argued and meet a fairly high standard to get
the maximum remedy. The court doesn’t think there is a difference between the common law and
charter standard of abuse of process. Para 73:
(ii) Section 7, Abuse of Process, and Non-disclosure
73 As I have already noted, the common law doctrine of abuse of process has found application in a variety of
different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness
of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one
particular “right against abuse of process” within the Charter. Depending on the circumstances, different Charter
guarantees may be engaged. For instance, where the accused claims that the Crown's conduct has prejudiced his
ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to
which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the
circumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the
Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by
concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s.
7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing
other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes
unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or
vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of
the judicial process.
End of para 74, conclusion – balance of probabilities – must show prejudice:
[…]
Where the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she must
establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse
effect on his or her ability to make full answer and defence. It goes without saying that such a determination
requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found
to be immaterial to the accused's ability to make full answer and defence, there cannot possibly be a violation of
the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown's
conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The
focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a
violation is made out, a just and appropriate remedy must be found.
Para 83 – some “extreme” cases, clearest of cases:
(iv) Summary
83 Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a
balance of probabilities that the Crown's failure to make proper disclosure to the defence has impaired the
accused's ability to make full answer and defence, a violation of s. 7 will have been made out. In such
circumstances, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for
such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the
prejudice to the accused's ability to make full answer and defence or to the integrity of the justice system is
irremediable. In those “clearest of cases”, a stay of proceedings will be appropriate.
Point: abuse of process, due to non-disclosure requires making s.7 case that ability to make full answer
has been prejudiced, then a decision as to whether stay of proceedings is appropriate. So the bar for
abuse of process is still a high one. Once the charter goes into effect (after abuse of process doctrine
was recognized under the common law), most abuse of process cases can be argued as charter issues
as well. Same burden existed on the party bringing the claim, and the court says the same standard is
involved in deciding the issue and remedy. Only in regards to a stay of proceedings (not all charter
claims).
Changes as a result of “dialogue” with Parliament in light of O’Connor:
Part VIII – Offences Against the Person and Reputation – Sexual Assault Disclosure
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S. 278.1 Definition of “record”
278.1 Definition of “record” — For the purposes of sections 278.2 to 278.9, “record” means any form of record that
contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the
generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare,
adoption and social services records, personal journals and diaries, and records containing personal information the
production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not
include records made by persons responsible for the investigation or prosecution of the offence.
1997, c. 30, s. 1
278.2 (1) Production of record to accused — No record relating to a complainant or a witness shall be produced to an
accused in any proceedings in respect of
(a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272
or 273,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised
Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c),
except in accordance with sections 278.3 to 278.91.
(2) Application of provisions — Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the
possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the
possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the
application of those sections.
(3) Duty of prosecutor to give notice — In the case of a record in respect of which this section applies that is in the
possession or control of the prosecutor, the 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.
1997, c. 30, s. 1;
1998, c. 9, s. 3
278.3 (1) Application for production — An accused who seeks production of a record referred to in subsection 278.2(1)
must make an application to the judge before whom the accused is to be, or is being, tried.
(2) No application in other proceedings — For greater certainty, an application under subsection (1) may not be made to
a judge or justice presiding at any other proceedings, including a preliminary inquiry.
(3) Form and content of application — An 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.
(4) Insufficient grounds — Any one or more of the following assertions by the accused are not sufficient on their own to
establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:
(a) that the record exists;
(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or
witness has received or is receiving;
(c) that that record relates to the incident that is the subject-matter of the proceedings;
(d) that the record may disclose a prior inconsistent statement of the complainant or witness;
(e) that the record may relate to the credibility of the complainant or witness;
(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the
complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;
(h) that the record relates to the sexual activity of the complainant with any person, including the accused;
(i) that the record relates to the presence or absence of a recent complaint;
(j) that the record relates to the complainant's sexual reputation; or
(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the
charge against the accused.
(5) Service of application and subpoena — The accused shall serve the application on the prosecutor, on the person
who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to
who, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection
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278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena
issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the
application is served.
(6) Service on other persons — The judge may at any time order that the application be served on any person to whom the
judge considers the record may relate.
1997, c. 30, s. 1
278.4 (1) Hearing in camera — The 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.
(2) Persons who may appear at hearing — The person who has possession or control of the record, the complainant or
witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the
hearing, but they are not compellable as witnesses at the hearing.
(3) Costs — No order for costs may be made against a person referred to in subsection (2) in respect of their participation
in the hearing.
1997, c. 30, s. 1
278.5 (1) Judge may order production of record for review — The judge may order the person who has possession or
control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing
referred to in subsection 278.4(1), the judge is satisfied that
(a) the application was made in accordance with subsections 278.3(2) to (6);
(b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a
witness to testify; and
(c) the production of the record is necessary in the interests of justice.
(2) Factors to be considered — In determining whether to order the production of the record or part of the record for
review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on
the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or
witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the
following factors into account:
(a) the extent to which the record is necessary for the accused to make a full answer and defence;
(b) the probative value of the record;
(c) the nature and extent of the reasonable expectation of privacy with respect to the record;
(d) whether production of the record is based on a discriminatory belief or bias;
(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record
relates;
(f) society's interest in encouraging the reporting of sexual offences;
(g) society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and
(h) the effect of the determination on the integrity of the trial process.
1997, c. 30, s. 1
278.6 (1) Review of record by judge — Where the judge has ordered the production of the record or part of the record for
review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the
record should be produced to the accused.
(2) Hearing in camera — The judge may hold a hearing in camera if the judge considers that it will assist in making the
determination.
(3) Provisions re hearing — Subsections 278.4(2) and (3) apply in the case of a hearing under subsection (2).
1997, c. 30, s. 1
278.7 (1) Judge may order production of record to accused — Where the judge is satisfied that the record or part of
the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary
in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to
the accused, subject to any conditions that may be imposed pursuant to subsection (3).
(2) Factors to be considered — In determining whether to order the production of the record or part of the record to
the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused's right to
make a full answer and the defence and on the right to privacy and equality of the complainant or witness, as the case
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may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs
278.5(2)(a) to (h) into account.
(3) Conditions on production — Where the judge orders the production of the record or part of the record to the
accused, the judge may impose conditions on the production to protect the interest of justice and, to the greatest extent
possible, the privacy and equality interests of the complainant or witness, as the case may be, and any other person to
whom the record relates, including, for example, the following conditions:
(a) that the record be edited as directed by the judge;
(b) that a copy of the record, rather than the original, be produced;
(c) that the accused and counsel for the accused not disclose the contents of the record to any other person,
except with the approval of the court;
(d) that the record be viewed only at the offices of the court;
(e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record
that may be made; and
(f) that information regarding any person named in the record, such as their address, telephone number and place
of employment, be severed from the record.
(4) Copy to prosecutor — Where the judge orders the production of the record or part of the record to the accused, the
judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge
determines that it is not in the interests of justice to do so.
(5) Record not to be used in other proceedings — The record or part of the record that is produced to the accused
pursuant to an order under subsection (1) shall not be used in any other proceedings.
(6) Retention of record by court — Where the judge refuses to order the production of the record or part of the record
to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the
court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against
the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession
or control of it.
1997, c. 30, s. 1
278.8 (1) Reasons for decision — The judge shall provide reasons for ordering or refusing to order the production of the
record or part of the record pursuant to subsection 278.5(1) or 278.7(1).
(2) Record of reasons — The reasons referred to in subsection (1) shall be entered in the record of the proceedings or,
where the proceedings are not recorded, shall be provided in writing.
1997, c. 30, s. 1
278.9 (1) Publication prohibited — No person shall publish in any document, or broadcast or transmit in any way, any of
the following:
(a) the contents of an application made under section 278.3;
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or
278.6(2); or
(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant
to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the
person to whom the record relates, orders that the determination may be published.
(2) Offence — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
1997, c. 30, s. 1;
2005, c. 32, s. 14
278.91 Appeal — For the purposes of sections 675 and 676, a determination to make or refuse to make an order
pursuant to subsection 278.5(1) or 278.7(1) is deemed to be a question of law.
R. v. Ng (2003)
Consent of the Attorney General
R. v. Ng (2003), 12 C.R. (6th) 1, 173 C.C.C. (3d) 349 (Alta. C.A.); leave to appeal refused (2004), 183 C.C.C. (3d) vi (S.C.C.) —
Prosecutorial discretion is not immune from judicial review. The court may probe prosecutorial discretion in limited cases
of abuse of process where P's conduct threatens either:
i.
ii.
D's right to a fair trial; or
the public interest in a fair and just trial process.
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D must establish this basis for review on a balance of probabilities.
P is not required to provide reasons for refusing to consent to re-election, hence the failure to do so, by itself at least, is not a
basis for judicial intervention. There must be an admission, evidence, or an allegation with an offer of proof to warrant an
inquiry into whether the exercise of prosecutorial discretion (to refuse to consent) was proper.
Charter of Rights and Freedoms ––– Life, liberty and security of person — Abuse of process — Crown refusal of consent
to re-election and refusal of reasons not proven to be abuse of process.
The Facts:
The accused caused the deaths of his aunt and cousin and injured three other relatives by stabbing and by striking his
uncle with a tool. He was charged with two counts of first degree murder, three counts of attempted murder, and
possession of a weapon for the purpose of committing an offence. He elected trial by jury on the offences and was
committed for trial at a preliminary inquiry. At a pre-trial conference, he did not attempt to re-elect trial by judge
alone but his counsel indicated that he might. Crown counsel indicated he would not consent and refused to give
reasons.
The day before jury selection, both parties learned the name of the assigned trial judge. At the jury selection, the
accused indicated a desire to re-elect. The Crown had refused consent and to give reasons earlier that morning. Jury
selection proceeded. The next day, the accused applied to the trial judge to re-elect and to dispense with the Crown's
consent. He admitted that he had caused the two deaths and the injuries and stated that only the degree of
culpability would be in issue, thus the major issue would be one of law, not fact. The Crown had not known of the
forthcoming admissions but again refused to consent and to provide reasons. The trial judge directed that the trial
proceed by judge alone.
After a trial, the judge convicted the accused of possession of a weapon for the purpose of committing an offence,
two counts of manslaughter, and three counts of aggravated assault.
The Crown appealed the acquittals on first degree murder and attempted murder solely on the basis of the trial
judge's decision to proceed without a jury.
Held: The appeal was allowed; the acquittals and convictions were set aside and a new trial was ordered.
Per Wittmann J.A. (Kenny J. (ad hoc) concurring): The trial judge erred in overriding the Crown's discretionary
decision to refuse to consent to a trial by judge alone. The accused bore the burden of proving that the exercise
of discretion was arbitrary, capricious, or for improper motive such that it would be an abuse of process and had
not met that burden. There was no other basis upon which a court could interfere with the prosecutorial discretion
to refuse consent to re-elect. The refusal by the Crown to provide reasons for the refusal did not make the exercise of
discretion an abuse of process.
The trial court should not have reviewed the exercise of prosecutorial discretion refusing consent to re-elect unless
there was an admission, evidence, or allegation supported by an offer of proof. Until then, the threshold for judicial
scrutiny was not engaged, including asking a prosecutor for the reasons for his decision.
Wrongfully overriding the Crown discretion resulted in a loss of jurisdiction that was not curable on appeal from
the acquittals. There was no justification for a judicial stay to be entered by the appellate court. Therefore, the only
avenue open to the court was to allow the appeal, set aside the acquittals and convictions, and order a new trial.
Annotation
The reasoning in Ng illustrates the judicial reluctance to engage in reviews of discretionary decisions by the
Crown. There are certainly arguments in favour of the approach taken by the Court to limit the extent to which judicial
review may be undertaken. First, the decision is consistent with the approach taken more generally in the application of
the doctrine of abuse of process, namely, to place the burden on the defence and to limit the application of the
doctrine to the clearest of cases. There is also merit to the concern that judges risk their credibility in the eyes of the
public if they intervene too often in prosecutorial discretion and that they are not well-placed to second-guess the
judgment of prosecutors.
Nevertheless, there are bases for criticizing the largely unfettered discretion given to prosecutors in the
Canadian criminal justice system. The ruling by the Court that no reasons need be provided by a prosecutor for
refusing to consent to a re-election arguably goes too far. After all, if no reasons at all are advanced, is that not itself
evidence of arbitrary decision-making? After Ng, prosecutors in Alberta will surely be consistent in refusing
reasons whenever they choose not to consent. This effectively makes such decisions beyond scrutiny, even where
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there may well be improper underlying reasons for refusing. The fear expressed by Chief Justice Fraser that to
require reasons for the refusal would lead to a focus on whether good reasons were provided, rather than obliging the
defence to prove bad reasons, is somewhat overstated. Judges hearing defence applications to dispense with consent
will always be mindful of the allocation of the burden of proof and of the test for an abuse of process. Moreover,
discretionary decisions by the police, such as the grounds for an arrest, which are usually fettered to some extent
by statutory provisions and by case law, are reviewable by the courts and the heavens have not fallen in.
The real culprit is, of course, the extraordinary amount of unfettered discretion that is accorded prosecutors in our
system. A great deal of discretion is necessary, to be sure, particularly on questions such as whether to charge, what
charge to lay, what position to take on sentence, etc. In the context of consent to re-elections, however, if the
rationale behind Crown consent is to prevent judge shopping, to maintain public confidence in the system and the
state interest in jury trials, and for administrative reasons, such as avoiding delay, why not have statutory bases for
declining consent? Parliament could establish criteria in the same way that it has established reasonable and probable
grounds as the basis for police action. Courts could entertain applications to dispense with consent only where the
Crown has not advanced a proper basis for refusal. Moreover, a failure to advance a proper reason would not
automatically lead to dispensing with consent, since the defence would still be required to meet its burden of proving an
abuse of process. Making state decision-making more transparent would certainly do a great deal to promote
confidence in the criminal justice system.
Tim Quigley*
Power Point:
R v Ng
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Crown refuses to consent to accused’s re-election to judge alone trial, under s.561
Right to re-elect depends on time periods, otherwise Crown must consent in writing
Crown refuses to give reasons for declining to consent, judge directs trial by judge alone – accused convicted of
some offences, acquitted of others
Crown brings appeal on basis of judge’s decision to proceed without jury
Crown agrees duty to exercise discretion judicially; trial judge rules without knowing basis for decision, unclear if
Crown acting properly
Exercise of prosecutorial discretion not immune from judicial review, but arises in limited case of abuse of court’s
process where prosecutor’s misconduct threatens accused’s Charter right to fair trial or public interest in fair trial
process
Accused bear’s burden of proof, balance of probabilities, to show crown exercising discretion abusively, improper
motive, to warrant stay
No evidence crown acting improperly in withholding consent, s.561 does not require reasons by Crown
Courts should avoid “second-guessing” prosecutors’ judgment; standard for establishing abuse of process very
onerous
Trial judge erred in overriding Crown’s discretionary decision to refuse to consent to judge alone trial – no
evidence that discretion arbitrary, capricious, improperly motivated such that abusive; no requirement for
explanation
Fraser CJA – underlying issue in case is “judge shopping” – not just selecting particular judge but avoiding a judge
Crown consents to judge alone trials in some cases; state has legitimate interest in jury trials, s.568 Code allows
Attorney General to require jury trial
Defence cannot complain if Crown declines to provide opportunity for judge shopping; Crown may wish jury to
hear case, due to public attention, community values, expert evidence, administrative concerns such as jury availability
Ng: Judge Shopping: Accused Bares Burden of Showing Abuse in Exercise of Crown Discretion
The accused bore the burden of proving that the exercise of discretion was arbitrary, capricious, or for improper
motive such that it would be an abuse of process and had not met that burden. There was no other basis upon which
a court could interfere with the prosecutorial discretion to refuse consent to re-elect. The refusal by the Crown to
provide reasons for the refusal did not make the exercise of discretion an abuse of process.
Para 21/22 – majority – crown has unfettered right of discretion in this case:
ANALYSIS
1. Review of the Decision to Consent to Re-election
Prosecutorial Discretion
21 The nature of a prosecutor's discretionary power and examples of decisions a prosecutor must make in the
course of a criminal case, such as consent to re-election, are the subject of considerable discussion in the literature and
in case law. See, for example, D. Morgan, “Controlling Prosecutorial Powers - Judicial Review, Abuse of Process and
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Section 7 of the Charter” (1986-87), 29 C.L.Q. 15; W. Gorman, “Prosecutorial Discretion in a Charter-Dominated Trial
Process” (2001), 44 C.L.Q. 15; K. Roach, “The Attorney General and the Charter Revisited” (2000), 50 U.T.L.J. 1.
22 The Supreme Court of Canada has discussed and affirmed the existence of prosecutorial discretion in
several decisions. In R. v. Beare (1988), 45 C.C.C. (3d) 57 (S.C.C.), at 76, La Forest. J., writing for the court, discussed
the importance of discretion as a feature of our criminal justice system:
The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles
of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that
attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise
discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in
deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of
indictment or summary conviction, launch an appeal and so on.
The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The dayto-day operation of law enforcement and the criminal justice system none the less depends upon the
exercise of that discretion.
Para 36 – not capricious:
36 The case authorities confirm that a trial judge may review a prosecutor's discretionary decision where the
accused has proven on a balance of probabilities that the prosecutor exercised his discretion abusively,
capriciously, or for improper motive such that the court may examine whether there was an abuse of process. The
court may intervene if it finds it is necessary to prevent the prosecutor's conduct from resulting in oppressive or
vexatious proceedings that would have violated the fundamental principles of justice underlying the community's
sense of fair play and decency.
Para 68 – not required to explain:
68 The trial judge in this case erred in finding the prosecutor's refusal to articulate reasons made that exercise
of discretion arbitrary, capricious, or improperly motivated and thereby, an abuse of process. The Crown is not
required to articulate the reasons for its decision. There must be an admission or evidence or an allegation with
an offer of proof to warrant an inquiry into whether the exercise of discretion met the required standard. No
admission or evidence was tendered, nor was an allegation with an offer of proof made in this case.
Para 100 – not for an improper motive:
CONCLUSION
100 The trial judge erred in overriding the Crown's discretionary decision to refuse to consent to a trial by judge
alone. That exercise of discretion was not shown to be arbitrary, capricious, or for improper motive such that it would
be an abuse of process. That basis is the only one upon which a court can interfere with prosecutorial discretion to
withhold consent to re-election. The prosecutor's refusal to articulate reasons for his lack of consent does not make
the exercise of discretion an abuse of process.
CJ Fraser – sees this simply as judge shopping. In her reasons, starting at para 104, advances a number
of reasons for crown refusal – para 128, 129, 135/6 – no constitutional right to a judge alone. Para 140 –
what’s really driving her opinion: judge shopping not to be condoned:
140 Regardless of whether this approach survives, or should survive, the Supreme Court's criticisms of judge shopping
in Regan, supra, what the defence cannot do however is complain if the Crown declines to provide the opportunity
for judge shopping. The Crown is not required to cede to the accused every possible strategic advantage. Or vice versa.
The criminal trial process in Canada remains an adversarial one, not one in which the Crown must surrender on each issue
which the accused thinks might benefit him or her. A fair balance must be struck between the interests of the accused
and those of society: R. v. Cook, supra; R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.); R. v. Levogiannis, [1993] 4 S.C.R. 475
(S.C.C.). Accordingly, the Crown, as litigant in an adversarial system, has a valid state interest in seeing that a case is
tried in a manner it believes is most likely to produce a fair result.
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Part XIX – Indictable Offences – Trial Without a Jury – Election
S. 561. (1) Right to re-elect
561. (1) Right to re-elect — An accused who elects or is deemed to have elected a mode of trial other than trial by a
provincial court judge may re-elect,
(a) at any time before or after the completion of the preliminary inquiry, with the written consent of the
prosecutor, to be tried by a provincial court judge;
(b) at any time before the completion of the preliminary inquiry or before the fifteenth day following the
completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court
judge; and
(c) on or after the fifteenth day following the completion of the preliminary inquiry, any mode of trial with the
written consent of the prosecutor.
(2) Right to re-elect — An accused who elects to be tried by a provincial court judge or who does not request a preliminary
inquiry under subsection 536(4) may, not later than 14 days before the day first appointed for the trial, re-elect as of
right another mode of trial, and may do so after that time with the written consent of the prosecutor.
(3) Notice — Where an accused wishes to re-elect under subsection (1) before the completion of the preliminary inquiry, the
accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor,
where that consent is required, to the justice presiding at the preliminary inquiry who shall on receipt of the notice,
(a) in the case of a re-election under paragraph (1)(b), put the accused to his re-election in the manner set out in
subsection (7); or
(b) where the accused wishes to re-elect under paragraph (1)(a) and the justice is not a provincial court judge,
notify a provincial court judge or clerk of the court of the accused's intention to re-elect and send to the provincial
court judge or clerk the information and any promise to appear, undertaking or recognizance given or entered into
in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the justice.
(4) Idem — Where an accused wishes to re-elect under section (2), the accused shall give notice in writing that he
wishes to re-elect together with the written consent of the prosecutor, where that consent is required, to the provincial
court judge before whom the accused appeared and pleaded or to a clerk of the court.
(5) Notice and transmitting record — Where an accused wishes to re-elect under subsection (1) after the completion of
the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written
consent of the prosecutor, where such consent is required, to a judge or clerk of the court of his original election who shall,
on receipt of the notice, notify the judge or provincial court judge or clerk of the court by which the accused wishes to be
tried of the accused's intention to re-elect and send to that judge or provincial court judge or clerk the information, the
evidence, the exhibits and the statement, if any, of the accused taken down in writing under section 541 and any promise to
appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a
coroner, that is in the possession of the first-mentioned judge or clerk.
(6) Time and place for re-election — Where a provincial court judge or judge or clerk of the court is notified under
paragraph (3)(b) or subsection (4) or (5) that the accused wishes to re-elect, the provincial court judge or judge shall
forthwith appoint a time and place for the accused to re-elect and shall cause notice thereof to be given to the accused and
the prosecutor.
(7) Proceedings on re-election — The accused shall attend or, if he is in custody, shall be produced at the time and place
appointed under subsection (6) and shall, after
(a) the charge on which he has been ordered to stand trial or the indictment, where an indictment has been
preferred pursuant to section 566, 574 or 577 or is filed with the court before which the indictment is to be
preferred pursuant to section 577, or
(b) in the case of a re-election under subsection (1) before the completion of the preliminary inquiry or under
subsection (2), the information
has been read to the accused, be put to his re-election in the following words or in words to the like effect:
You have given notice of your wish to re-elect the mode of your trial. You now have the option to do so. How do you wish
to re-elect?
R.S.C. 1985, c. 27 (1st Supp.), s. 110;
2002, c. 13, s. 37
Part XIX – Indictable Offences – Trial Without a Jury – General
S. 568. Attorney General may require trial by jury
568. Attorney General may require trial by jury — Even if an accused elects under section 536 or re-elects
under section 561 or subsection 565(2) to be tried by a judge or provincial court judge, as the case may be, the
Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged
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offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge
or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be
held if requested under subsection 536(4), unless one has already been held or the re-election was made under
subsection 565(2).
R.S.C. 1985, c. 27 (1st Supp.), s. 111; 2002, c. 13, s. 43; 2008, c. 18, s. 24
R v Nixon 2011 SCC
Right at the far end of crown conduct
Power Point:
R v Nixon
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Accused charged with driving charges under Criminal Code, enters into plea agreement with Crown for provincial
traffic charges, repudiated by Crown afterwards
Accused charged with driving charges under Criminal Code, enters into plea agreement with Crown for provincial
traffic charges, repudiated by Crown afterwards
Nixon: Is Repudiation of plea an abuse of process, contract, undertaking? No: Discretionary
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Issue is whether repudiation by Crown amounts to violation of s.7 of Charter due to abuse of process
Trial judge holds that repudiation of agreement not justified, directs crown to proceed with agreement; Court of
Appeal allows crown appeal, holds repudiation of plea agreement matter of prosecutorial discretion, not
reviewable by courts, subject to abuse of process
Supreme Court dismisses appeal – subject to abuse of process, supervising decision-making process, rather than
conduct of parties before court, beyond legitimate reach of Court
The Court of Appeal specifically rejects the contract argument. Sees no bad faith here. It was significant
that the defendant could be returned to the position he was in, in the beginning.
We’ve come from prosecuting more than once, to the crown repudiating an agreement, where no abuse
found. Yet other cases where abuse is found. Are they consistent and predictable?
Preliminary Hearing
Criminal Code Provisions
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Part XVIII procedure on preliminary inquiry, ss.535-551
S.535 inquiry into charge and any other indictable offence for same transaction
S.536(2) election of accused as to mode of trial; s.537 powers of justice; s.539 taking evidence – publication ban; s.541
warning to accused as to giving evidence
S.548 order to stand trial or to be discharged – not guilt or innocence – any evidence on which reasonable jury,
properly instructed could convict
S.549 order to stand trial with consent
Preliminary inquiries are only held for indictable offences, where the accused elects Superior Court w or
w/o jury. So only in those two cases will there be a preliminary inquiry. They are not mandatory and can
be waived. However, the Crown can also request a prelim.
Part XVIII procedure on preliminary inquiry – ss. 535, 536, 537, 539, 541, 548, 549
535. Inquiry by justice — If an accused who is charged with an indictable offence is before a justice and a request has
been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part,
inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that
are disclosed by the evidence taken in accordance with this Part.
R.S.C. 1985, c. 27 (1st Supp.), s. 96;
2002, c. 13, s. 24
Note: All of the powers of the judge must be set out in the statute. If it’s not in this section, they don’t
have the power. In 535, the justice can inquire into the offence charged, but also any other offence
that would be available based on the facts. He can then order that the accused stands trial for more
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offences than were originally listed. He could also eliminate the original charge, and substitute others
– as long as they are related to the same transaction. What is “related” is subject to some argument in
the jurisprudence, but the essence is that the Court can review the facts. S.574, says that the crown can
also do some other things. Check
536. (1) Remand by justice to provincial court judge in certain cases — Where an accused is before a justice other than
a provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction under
section 553, the justice shall remand the accused to appear before a provincial court judge having jurisdiction in the
territorial division in which the offence is alleged to have been committed.
(2) Election before justice in certain cases — If an accused is before a justice charged with an indictable offence, other
than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction
under section 553, the justice shall, after the information has been read to the accused, put the accused to an election
in the following words:
You have the option to elect to be tried by a provincial court judge without a jury and without having had a
preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a
court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a
court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of
a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will
have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
Procedures before Preliminary Inquiry [Heading added 2002, c. 13, s. 27.]
536.3 Statement of issues and witnesses — If a request for a preliminary inquiry is made, the prosecutor or, if
the request was made by the accused, counsel for the accused shall, within the period fixed by rules of court made
under section 482 or 482.1 or, if there are no such rules, by the justice, provide the court and the other party with a
statement that identifies
(a) the issues on which the requesting party wants evidence to be given at the inquiry; and
(b) the witnesses that the requesting party wants to hear at the inquiry.
2002, c. 13, s. 27
536.4 (1) Order for hearing — The justice before whom a preliminary inquiry is to be held may order, on
application of the prosecutor or the accused or on the justice's own motion, that a hearing be held, within the
period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, to
(a) assist the parties to identify the issues on which evidence will be given at the inquiry;
(b) assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses'
needs and circumstances; and
(c) encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
(2) Agreement to be recorded — When the hearing is completed, the justice shall record any admissions of fact
agreed to by the parties and any agreement reached by the parties.
2002, c. 13, s. 27
Note: 536(3) and (4) are meant to help to narrow the issues. For instance, even though the Charter is
not justiciable at the prelim, the defence may wish to set out an evidentiary basis for later use in trial. The
statement of issues is the only thing you are required to file. If you are hoping for a discharge, you may
also want to prepare a factum with argument for the judge to review.
Powers of Justice
537. (1) Powers of justice — A justice acting under this Part may
(a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to
do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where
the justice usually sits or for any other sufficient reason;
(b) remand the accused to custody for the purposes of the Identification of Criminals Act;
(c) except where the accused is authorized pursuant to Part XVI to be at large, remand the accused to
custody in a prison by warrant in Form 19;
(d) resume an inquiry before the expiration of a period for which it has been adjourned with the consent of
the prosecutor and the accused or his counsel;
(e) order in writing, in Form 30, that the accused be brought before him, or any other justice for the
same territorial division, at any time before the expiration of the time for which the accused has been
remanded;
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(f) grant or refuse permission to the prosecutor or his counsel to address him in support of the charge,
by way of opening or summing up or by way of reply on any evidence that is given on behalf of the
accused;
(g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any
evidence that has been given on behalf of either of them;
(h) order that no person other than the prosecutor, the accused and their counsel shall have access to or
remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best
served by so doing;
(i) regulate the course of the inquiry in any way that appears to the justice to be consistent with this Act
and that, unless the justice is satisfied that to do so would be contrary to the best interests of the
administration of justice, is in accordance with any admission of fact or agreement recorded under
subsection 536.4(2) or agreement made under section 536.5;
(j) where the prosecutor and the accused so agree, permit the accused to appear by counsel or by closedcircuit television or any other means that allow the court and the accused to engage in simultaneous visual
and oral communication, for any part of the inquiry other than a part in which the evidence of a witness is
taken;
(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any
part of the inquiry on any conditions that the justice considers appropriate; and
(k) for any part of the inquiry other than a part in which the evidence of a witness is taken require an accused
who is confined in prison to appear by closed-circuit television or any other means that allow the court
and the accused to engage in simultaneous visual and oral communication, if the accused is given the
opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.
(1.01) Section 715 — Where a justice grants a request under paragraph (1)(j.1), the Court must inform the accused that
the evidence taken during his or her absence could still be admissible under section 715.
(1.1) Inappropriate questioning — A justice acting under this Part shall order the immediate cessation of any part
of an examination or cross-examination of a witness that is, in the opinion of the justice, abusive, too repetitive or
otherwise inappropriate.
(2) Change of venue — Where a justice changes the place of hearing under paragraph (1)(a) to a place in the same
province, other than a place in a territorial division in which the justice has jurisdiction, any justice who has
jurisdiction in the place to which the hearing is changed may continue the hearing.
1994, c. 44, s. 53; 1997, c. 18, s. 64; 2002, c. 13, s. 28; 2008, c. 18, s. 22
Taking Evidence of Witnesses
539. (1) Order restricting publication of evidence taken at preliminary inquiry — Prior to the commencement of
the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused, [NB: Automatic if Accused Requests]
make an order directing that the evidence taken at the inquiry shall not be published in any document or
broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(2) Accused to be informed of right to apply for order — Where an accused is not represented by counsel at a
preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the
inquiry, inform the accused of his right to make application under subsection (1).
(3) Failure to comply with order — Everyone who fails to comply with an order made pursuant to subsection (1) is
guilty of an offence punishable on summary conviction.
541. (1) Hearing of witnesses — When the evidence of the witnesses called on the part of the prosecution has been
taken down and, where required by this Part, has been read, the justice shall, subject to this section, hear the witnesses
called by the accused.
(2) Contents of address to accused — Before hearing any witness called by an accused who is not represented by
counsel, the justice shall address the accused as follows or to the like effect:
Do you wish to say anything in answer to these charges or to any other charges which might have arisen from
the evidence led by the prosecution? You are not obliged to say anything. but whatever you do say may
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be given in evidence against you at your trial. You should not make any confession or admission of
guilt because of any promise or threat made to you but if you do make any statement it may be given in
evidence against you at your trial in spite of the promise or threat.
(3) Statement of accused — Where the accused who is not represented by counsel says anything in answer to the
address made by the justice pursuant to subsection (2), the answer shall be taken down in writing and shall be
signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part.
(4) Witnesses for accused — Where an accused is not represented by counsel, the justice shall ask the accused if he
or she wishes to call any witnesses after subsections (2) and (3) have been complied with.
(5) Depositions of such witnesses — The justice shall hear each witness called by the accused who testifies to any
matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies with such modifications as
the circumstances require.
R.S.C. 1985, c. 27 (1st Supp.), s. 99; 1994, c. 44, s. 54
Look at Grdic – double jeopardy for the same offence.
Adjudication and Recognizances
548. (1) Order to stand trial or discharge — When all the evidence has been taken by the justice, he shall,
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or
any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to
put the accused on trial for the offence charged or any other indictable offence in respect of the same
transaction.
(2) Endorsing charge — Where the justice orders the accused to stand trial for an indictable offence, other than or
in addition to the one with which the accused was charged, the justice shall endorse on the information the
charges on which he orders the accused to stand trial.
(2.1) Where accused ordered to stand trial — A justice who orders that an accused is to stand trial has the power to
fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed.
(3) Defect not to affect validity — The validity of an order to stand trial is not affected by any defect apparent
on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which
the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or
charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect.
R.S.C. 1985, c. 27 (1st Supp.), s. 101(1);
1994, c. 44, s. 56
Note: No power to appeal the decision of a preliminary judge. Yet, it would be open to argue for a
prerogative remedy: i.e. “the judge made a jurisdictional error by not applying the proper test.”
But note: Extraordinary remedy
577. Direct indictments — Despite section 574, an indictment may be preferred even if the accused has not been
given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not
concluded or a preliminary inquiry has been held and the accused has been discharged, if
(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General
intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed
in court; or
(b) in any other case, a judge of the court so orders.
R.S.C. 1985, c. 27 (1st Supp.), s. 115; 2002, c. 13, s. 46
549. (1) Order to stand trial at any stage of inquiry with consent — Notwithstanding any other provision of this
Act, the justice may, at any stage of the preliminary inquiry, with the consent of the accused and the prosecutor,
order the accused to stand trial in the court having criminal jurisdiction, without taking or recording any evidence or
further evidence.
(1.1) Limited preliminary inquiry — If the prosecutor and the accused agree under section 536.5 to limit the
scope of a preliminary inquiry to specific issues, the justice, without recording evidence on any other issues, may
order the accused to stand trial in the court having criminal jurisdiction.
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(2) Procedure — If an accused is ordered to stand trial under this section, the justice shall endorse on the
information a statement of the consent of the accused and the prosecutor, and the accused shall after that be dealt
with in all respects as if ordered to stand trial under section 548.
R.S.C. 1985, c. 27 (1st Supp.), s. 101(3);
2002, c. 13, s. 30
Caccamo v R, SCC 1976
Whether mistrial must be declared because accused would have elected differently had he known the full extent of the
Crown's case -- Effect of Crown surprising defence with new witnesses during trial.
In the appellant's bedroom police found a loaded pistol and counterfeit money. From a kitchen cupboard they seized
handwritten notes without the appellant's knowledge. These became Ex. 5. Two experts for the Crown testified that
they were a type of constitution of a secret Italian criminal organization related to the Mafia and that anyone in
possession of them almost certainly had to belong to the organization. An expert called by the defence testified that
the organization had been virtually extinct since 1912 and had no relationship to the Mafia. The Crown tendered the
evidence, of which the defence had no prior notice, as relevant to whether the appellant's possession of the pistol was
for a purpose dangerous to the public peace. He was convicted by a Judge sitting alone of possession of the gun for
a purpose dangerous to the public peace and he and his wife were convicted of possession of counterfeit money.
The Ontario Court of Appeal dismissed the appellant's appeal against conviction but unanimously entered an
acquittal in respect of the wife. Exhibit 5 was mentioned for the first time during the second day of the trial. The
appellant contended that he was prejudiced in that his cross-examination of a Detective T., who was present at the
search, would have been conducted in a different light, and that it was possible that had he known of the existence of
Ex. 5 and of the intention of the Crown to use it, he would have maintained his option to be heard by a judge and
jury.
Held (Laskin C.J.C. and Spence J. dissenting), the appeal should be dismissed.
Per de Grandpre J.:
The Courts below had undoubtedly come to the conclusion that possession had been established considering that Code
s. 3(4) had been argued at length. Possession under s. 3(4) is a question of fact capable of proof by inference.
Therefore it was not necessary to invoke in support of the conclusion that the appellant was in possession of Ex. 5,
according to the principle that “when a husband and wife live together, it is a presumption of law that the husband is in
possession and control of the premises in which they reside”. The reasons of Gale C.J.O. for the majority in the Court
below were adopted on the question whether mere possession of a document such as Ex. 5, in the absence of
further evidence connecting the appellant with a criminal organization, did in law entitle the Magistrate to draw
the inference that the appellant was a member of such organization and therefore had possession of the weapon
for a purpose dangerous to the public peace.
The sole purpose of the preliminary inquiry is to satisfy the magistrate that there is sufficient evidence to put the
accused on trial and therefore the Crown has the discretion to present only that evidence which makes out a
prima facie case. The prosecution was under no duty to inform the defence of the existence of Ex. 5 and of its
intention to introduce it into evidence (p. 85). It is within the framework of the adversary system under which our
criminal law is administered that the accused must be guaranteed a fair trial. In that light, if the introduction of
new evidence at the trial takes the accused by surprise, he is entitled to a postponement, which was granted here.
Over the years, the sole effect of the introduction of new evidence at trial has been to allow the accused to obtain a
post-ponement of the trial.
No prejudice was suffered by the cross-examination of T. Until Ex. 5 was offered in evidence nothing had taken
place that would have given another direction to the examination or cross-examination of the witnesses heard till that
time.
The right to the proper forum is a major one belonging to the accused. The Code does not state that the choice is
vitiated if made before the accused learns at least the substance of all the evidence to be adduced against him (p.
86). When the accused chooses to be tried by a judge or judge and jury, the law does not expect him to make that
decision in the light of the evidence but rather in the light of the charge. There could be cases where the option
made could be set aside if in fact there has been a miscarriage of justice. Such was not the case here. In reaching a
conclusion as to whether or not a miscarriage of justice exists, the courts are entitled to take into account the fact
that the accused did not testify, which was the situation here.
This was a pre-charter case.
221
Caccamo v R SCC 1976 - This was a pre-charter case - Sole purpose of preliminary to satisfy judge
that sufficient evidence to put accused to trial, Crown has discretion to present only evidence for
prima facie case
Power Point:
Caccamo v R
•
•
•
•
•
•
•
•
At accused’s trial crown introduces handwritten notes of accused, expert evidence called in relation to them;
evidence not disclosed before trial
Sole purpose of preliminary to satisfy judge that sufficient evidence to put accused to trial, Crown has discretion
to present only evidence for prima facie case
No duty to inform defence of existence of exhibit and intention to adduce it at trial; accused entitled to adjournment if
taken by surprise
No miscarriage of justice in case, accused declined to testify
Dissenting opinion – deliberate decision to conceal evidence from accused
No case holding that duty of crown to disclose or adduce all its evidence at preliminary
Duty of court to be vigilant to see accused has fair trial – reference to Crown not supposed to be pulling “fast
ones”
Unfairness not proven in this case
P.1316: “It is now settled law… no duty to disclose evidence etc…” Pre-Charter, pre-Stinchcombe
Stinchcombe changes this:
67 It is, of course, now settled law that the sole purpose of the preliminary inquiry is to satisfy the magistrate
that there is sufficient evidence to put the accused on trial and that, therefore, the Crown has the discretion to
present only that evidence which makes out a prima facie case: Patterson v. The Queen, [1970] S.C.R. 409, 10
C.R.N.S. 55, 72 W.W.R. 35, 2 C.C.C. (2d) 227, 9 D.L.R. (3d) 398 ; Rex v. Epping and Harlow Justices; Ex parte
Massaro, [1973] 1 Q.B. 433, [1973] 1 All E.R. 1011, 57 Cr. App. R. 499 .
R. v. Patterson, [1970] S.C.R
R. v. Patterson, [1970] S.C.R. 409, 10 C.R.N.S. 55, 72 W.W.R. 35, 2 C.C.C. (2d) 227, 9 D.L.R. (3d) 398 (S.C.C.)
Criminal Law — Preliminary Inquiry — Demand for Production of Written Statement Given by Crown Witness to
Police — Whether Magistrate's Refusal Denial of Right to Full Cross-Examination — Certiorari.
Appeal from the judgment the appellate division of Alberta (1969) 67 W.W.R. 483, 8 C.R.NS 27, [1969] 4 C.C.C. 88,
allowing an appeal from the judgment of Milvain, J. (1968) 64 W.W.R. 128, [1969] 1 C.C.C. 172. Appeal dismissed.
During a preliminary hearing it appeared that crown witnesses had given written statements to the police; defence
counsel requested their immediate production, which the magistrate refused; defence counsel cross-examined but
not as to the contents of the statements. The accused did not give evidence or make a statement; he was committed
for trial. On an application for certiorari Milvain, J. quashed both the preliminary inquiry and the committal;
the appellate division by a majority reversed his decision.
It was held, per Judson Abbott, Martland, Ritchie, Pigeon and Hall, JJ., Spence, J. dissenting, that the appeal must
be dismissed.
Per Judson, J.:
The refusal of the magistrate to order production of the statements did not go to the question of jurisdiction, the only
question on which an application for certiorari could have been entertained. There was no denial of the right to
cross-examine. The question whether the magistrate ought to have ordered production was not governed by the
Criminal Code, 1953–54, ch. 51, sec. 10 (1), which applied only to trials.
Per Hall, J.:
There was no denial of the right to cross-examine fully; the record showed that there was cross-examination but not
as to the written statements; had that been done a case might well have been made out for immediate production
of the documents.
Power Point:
R. v. Patterson
•
•
No power at preliminary hearing for defence to require production of witness statement
Refusal to compel production not reviewable by certiorari – does not go to jurisdiction
222
•
Purpose of preliminary to determine if sufficient evidence to put accused to trial – not a trial and should not
become trial
R. v. Patterson 1970 - No power at preliminary hearing for defence to require production of witness
statement
This takes us back to s.537, no jurisdiction to compel disclosure – even to this day.
P.1324 - should not be allowed to become a trial. Pre Charter the defendant couldn’t argue that they
were taken by surprise – but now the crown has a duty to disclose. Yet the judge still does not have the
power to order disclosure. The crown’s obligation is independent.
7 This power is given explicitly to a judge “at any time during the trial.” It is not given to a magistrate during
the conduct of a preliminary hearing. There is a real distinction here. The purpose of a preliminary inquiry is
clearly defined by the Criminal Code — to determine whether there is sufficient evidence to put the accused on
trial. It is not a trial and should not be allowed to become a trial. We are not concerned here with the power of a
trial judge to compel production during the trial nor with the extent to which the prosecution, in fairness to an
accused person, ought to make production after the preliminary hearing and before trial. This is a subject which
received some comment in the British Columbia court of appeal in Reg. v. Lantos (1963) 45 W.W.R. 409, 2 C.C.C. 52,
and Archbold, Criminal Pleading, Evidence and Practice, 37th ed., par. 1393.
So, then, they did not have to disclose prior to the prelim. Even now, the crown does not have to
present all its evidence, and the prelim judge cannot order what to present or to disclose. But see
Giromente to read a discussion on the point. Remember, however, that the crown is supposed to give
disclosure prior to election. And the defence can put in its issue document whom it wants to hear from,
even if the crown was not going to call that evidence itself.
Similarly, the preliminary hearing judge DOES have the power to vary bail (but only because of s.523(2)
– which says that the judge can do so).
R. v. Persaud (1989)(OCA)
R. v. Persaud (1989), 52 C.C.C. (3d) 464 (Ont. C.A.) — A provincial court judge who quashes an information after arraignment,
but prior to election by D, does not constitute a trial court.
Criminal Law ––– Appeals — Appeal of indictable offence — Appeal of conviction or acquittal — Right of appeal of
provincial Attorney General — Statutory authority to appeal ––– Where Provincial Court Judge not "trial court" — Criminal
Code, R.S.C. 1985, c. C-46, s. 676, 676(1)(a), (c); Pt. XIX.
After accused was arraigned, but before accused was given election, counsel for accused moved to quash the
information upon the ground that the wording of it did not disclose an offence known to law. The information
was quashed and Crown appealed. Held, the appeal was quashed. The offence was not one over which the
Provincial Court Judge had absolute jurisdiction, and nor did accused elect to be tried by him. Thus, when the
Provincial Court Judge made the order quashing the information, he was not acting under Pt. XIX of the Code.
Therefore, he was not a "trial court" within the meaning of s. 676(1)(a) and (c). Accordingly, s. 676 did not grant
Crown a right of appeal from the order and the Court was without jurisdiction to entertain it.
Part XIX – Indictable Offences – Trial Without a Jury
S. 676. (1) Right of Attorney General to appeal
676. (1) Right of Attorney General to appeal — The Attorney General or counsel instructed by him for the purpose
may appeal to the court of appeal
(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental
disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question
of law alone;
(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner
refuses or fails to exercise jurisdiction on an indictment;
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or
223
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in
proceedings by indictment, unless that sentence is one fixed by law.
Power Point:
R. v. Persaud (1989)
•
After arraignment motion by accused to quash information on ground it did not disclose offence known to law
•
Crown’s appeal quashed as judge not acting as trial judge – right of appeal in s.676 requiring appeal from trial court
•
Open to crown to apply for mandamus
•
Preliminary inquiry judge also not trial judge – decision can be reviewed for jurisdictional error; Attorney General
can prefer “direct” indictment even if accused discharged: s.577 Code
R v Persaud 1989 – No right to appeal from preliminary hearing – only prerogative remedy
P. 1325 – This case makes the point that nobody has the right to appeal. There is no right set out in the
appeal section of the CCC. The remedy is to bring an application for a prerogative remedy as in Cover.
9 As has just been noted, the offence is not one over which the provincial court judge had absolute jurisdiction
nor did the respondent elect to be tried by him. Thus, the essential conditions precedent to the provincial court
judge having jurisdiction to try the respondent under s.554 are missing.
10 It is apparent, therefore, that when the provincial court judge made the order quashing the information he
could not have been “acting under Part XIX”. Thus, he was not a “trial court” within the meaning of that
expression in s.676(1)(a) and (c). It is accordingly my opinion that s.676 does not grant the Crown a right of appeal
from this order and that the court therefore is without jurisdiction to entertain it.
11 During the course of argument Mr. Frater argued that if the Crown appeal were quashed it would be left
without remedy. That led to a discussion about whether or not mandamus would lie in the event that the
provincial court judge was wrong in determining that the information disclosed no offence known to law. There is
nothing in Re Volpi and Landzino v. The Queen, supra, which would preclude an application for mandamus being
made. If such an application were made it seems to me that the judgment of the Supreme Court of Canada in Kipp
v. The Attorney General for the Province of Ontario, [1965] S.C.R. 57 would apply. All that need be said is that the
quashing of the Crown appeal is without prejudice to its right to launch mandamus proceedings if it is so
advised.
Re Cover and the Queen 1988 OCA
From R v George 1991, quoting Cover and the Queen:
The refusal to permit cross-examination of Constable Akin on the information he conveyed to Constable Matthews
and on any other matters which the defence wished to raise that might be relevant at trial is, however, a different
matter.
The particular point at which counsel was cut off was when he sought to cross-examine Constable Akin on the
information that was used as a basis for the search warrant.
The accused does have a right to use a preliminary inquiry to test the Crown's case, to get discovery and
disclosure, and to set up the evidentiary basis for challenges at trial to the admissibility of the evidence tendered by
the Crown at trial. The dicta in Caccamo v. The Queen, (1975) 21 C.C.C. (2d) 257, 54 D.L.R. (3d) 685, [1976] 1 S.C.R.
786 (S.C.C.), and the judgments in Forsythe v. The Queen (1980), 53 C.C.C. (2d) 225, 112 D.L.R. (3d) 385, [1980] 2
S.C.R. 268 (S.C.C.), and Re Skogman and The Queen (1984), 13 C.C.C. (3d) 161, 11 D.L.R. (4th) 161, 41 C.R. (3d) 1
(S.C.C.), do not detract from the important statements to this effect set out in material such as the article by G.A.
Martin in the 1955 Special Lectures of the Law Society of Upper Canada or in cases such as R. v. Churchman and
Durham (1954), 110 C.C.C. 382, 20 C.R. 137, [1955] O.W.N. 90 (LeBel J.) (Ont. H.C.J.). Indeed these principles are
explicitly affirmed in Skogman, supra, by Estey J. at pp.171-2 C.C.C., pp.14-5 C.R.
I refer also to a recent application of that principle in the judgment of Callaghan J. in Re Durette and The Queen
(1979), 47 C.C.C. (2d) 170 (Ont. H.C.J.).
It is irrelevant that a voir dire was waived at the preliminary. Notwithstanding any waiver of a voir dire, the
accused still retains the right to test the Crown's case and pin down witnesses on areas that might be relevant at
trial. Where an accused is deprived of his right to cross-examine on the matters on which Constable Akin was
sought to be cross-examined, he is effectively deprived of his right to test the basis for the Crown's case and to set
224
up a foundation for later submissions at trial relevant to his rights under ss.8 and 24(2) of the Canadian Charter of
Rights and Freedoms.
The refusal to permit cross-examination of Constable Akin thus deprived the accused of vital rights, including his
right at the subsequent trial to make full answer and defence. That refusal was of such a nature in the particular
circumstances of this case that it went beyond a mere error in law and out to the jurisdiction of the Provincial
judge as a denial of natural justice which requires correction....
Power Point:
R v Cover
•
•
•
•
Code provides no appeal from statutory inquiry by provincial judge, only issue is whether loss of jurisdiction
due to conduct of proceedings
Interventions not inappropriate, or telling crown enough evidence heard to form basis for submissions as to
committal
Accused has right to use preliminary to test Crown’s case, for discovery and disclosure, set up basis for Charter
challenges at trial
Refusal to allow cross-examination jurisdictional error, committal quashed
R v Cover 1988 - Accused has right to use preliminary to test Crown’s case
• Refusal to allow cross-examination jurisdictional error, committal quashed
P. 1329, bottom – refusal issues – “the accused does have a right…” So even though there is no charter
jurisdiction, it is a proper function at the prelim to have evidence called and cross-examination allowed.
…. Effectively deprive defence of opportunity to test the case
Bottom 1330: order that the committal be quashed, remitting back to judge to permit cross-examination.
U.S. v. Sheppard, S.C.C. (1977)
Power Point:
US v Sheppard
•
•
•
Test for committal at preliminary inquiry – same as for trial judge on motion for directed verdict of acquittal
Test is whether or not there is any evidence upon which reasonable jury properly instructed could return guilty
verdict, s.548
Not open to judge to withdraw case on basis that evidence manifestly unreliable; weighing of evidence is for
jury/trier of fact
These two cases set out the test for committal.
2nd last para on 1332
The judge doesn’t engage in weighing reliability. They are not performing the function of a trial judge.
The test in Sheppard stands today. Arcuri is a modern restatement.
U.S. v Sheppard SCC 1977 – Test for Committal to Trial – Still good law – Arcuri Adds Nuance
• Test is whether or not there is any evidence upon which reasonable jury properly instructed
could return guilty verdict, s.548
R. v. Arcuri, S.C.C. (2001)
Burden of Proof
R. v. Arcuri, [2001] 2 S.C.R. 828, 44 C.R. (5th) 213, 157 C.C.C. (3d) 21 — The question for the preliminary inquiry judge is
whether there is any evidence on which a reasonable jury, properly instructed, could convict. The test is essentially the same in
cases where D calls exculpatory evidence as it is in cases where the only evidence adduced is that of P.
225
Where P adduces direct evidence of each element of the offence, D must be ordered to stand trial, even where the defence
calls exculpatory evidence. Where P's case consists of or includes circumstantial evidence, the preliminary inquiry judge
must engage in a limited weighing of the whole of the evidence, including the defence evidence, to determine whether a
reasonable jury, properly instructed, could return a verdict of guilty.
The limited weighing of evidence in which a preliminary inquiry judge engages, where P's case consists of or includes
circumstantial evidence, does not involve:
•
drawing inferences
•
assessing credibility
•
considering inherent reliability.
The judge's task is to decide whether, if P's evidence were believed, it would be reasonable for a properly instructed jury to
infer guilt. Limited weighing involves an assessment of the reasonableness of the inferences to be drawn from the
circumstantial evidence.
The accused was charged with first degree murder. At the preliminary inquiry, the Crown's case was entirely
circumstantial. The accused called two witnesses whose testimony was arguably exculpatory. The preliminary
inquiry judge rejected the accused's contention that he was required to weigh the defence direct exculpatory evidence
against the Crown's circumstantial inculpatory evidence and, after viewing the evidence as a whole, committed the
accused to trial for second degree murder. The accused's application for certiorari was dismissed and that decision
was affirmed by the Court of Appeal on appeal. The accused appealed. The issue on appeal was whether the
preliminary inquiry judge, in assessing whether the evidence was sufficient to warrant committal to trial, erred
in refusing to weigh the defence direct exculpatory evidence against the Crown's circumstantial inculpatory
evidence.
Held: The appeal was dismissed.
Per The Chief Justice: It is a well-settled rule that a preliminary inquiry judge must determine whether there is
sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. The evidence must be
weighed in the the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the
jury to draw. This task does not require the preliminary inquiry judge to draw inferences from the facts or to assess
credibility. Rather, he or she must, while recognizing the jury's right to draw justifiable inferences of fact and to assess
credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.
Under s. 548(1) of the Criminal Code, a preliminary inquiry judge must determine whether there is sufficient evidence
to permit a properly instructed jury, acting reasonably, to convict. Under this test, the accused must be committed to
trial where there is admissible evidence which could, if believed, result in a conviction. Where the Crown's case is
based entirely on direct evidence, the only conclusion that needs to be reached is whether the evidence is true. Where
the Crown does not present direct evidence as to every element of the offence, the question becomes whether the
remaining elements may reasonably be inferred from the circumstantial evidence. The evidence must be weighed in the
the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. The
preliminary inquiry judge is not require to draw inferences from the facts or to assess credibility, but must
consider whether the evidence as a whole could reasonably support a verdict of guilty.
Power Point:
R v Arcuri
•
•
Test for preliminary judge same whether evidence direct or circumstantial – any evidence on which properly
instructed jury could return verdict of guilt
If direct evidence as to every element of offence, must be order to stand trial; where evidence circumstantial, must
consider if elements of offence may be reasonably inferred – judge must engage in limited weighing of evidence for
this purpose only – not to draw inferences, assess credibility
R v Arcuri SCC 2001 – Test Same in Circumstantial case, limited weighing of possible Inferences
•
•
Test for preliminary judge same whether evidence direct or circumstantial – any evidence on which properly
instructed jury could return verdict of guilt
If direct evidence as to every element of offence, must be order to stand trial; where evidence circumstantial, must
consider if elements of offence may be reasonably inferred – judge must engage in limited weighing of evidence for
this purpose only – not to draw inferences, assess credibility
1st Para: committed for second degree murder, not 1st. This is the power given in s.539 – another
indictable offence revealed by the evidence.
226
Defendant seeks quashing certiorari by a Superior Court judge, he refuses, then the OCA upholds, then
the defendant appeals to the SCC, arguing that the decision not to quash was in error.
P.1339, McLachlin: Para 22
22 The test is the same whether the evidence is direct or circumstantial: see R. v. Mezzo, [1986] 1 S.C.R. 802
(S.C.C.), at p. 842-43; Monteleone, supra, at p. 161. The nature of the judge's task, however, varies according to the
type of evidence that the Crown has advanced. Where the Crown's case is based entirely on direct evidence, the
judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether
the evidence is true: see Watt's Manual of Criminal Evidence (1998), at § 8.0 (“[d]irect which evidence is evidence
which, if believed, resolves the matter in issue”); McCormick on Evidence (5[th] ed. 1999), at p. 641; J. Sopinka, S.N.
Lederman and A. W. Bryant, The Law of Evidence in Canada (2[nd] ed. 1999), at s. 2.74 (direct evidence is witness
testimony as to “‘the precise fact which is the subject of the issue on trial’”). It is for the jury to say whether and
how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the
Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is
direct evidence as to every element of the offence, the accused must be committed to trial.
Para 23 – limited weighing when circumstantial –
23 The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to
every element of the offence. The question then becomes whether the remaining elements of the offence — that is,
those elements as to which the Crown has not advanced direct evidence — may reasonably be inferred from the
circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of
the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence
and the matter to be established — that is, an inferential gap beyond the question of whether the evidence should be
believed: see Watt's Manual of Criminal Evidence, supra, at § 9.01 (circumstantial evidence is “any item of evidence,
testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of
which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42
(“circumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional
reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of
assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This
weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty.
Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if
believed, could reasonably support an inference of guilt.
Para 30 – in performing limited weighing… the court is pointing out that the prelim judge conducts a
limited weighing to see if inferences could allow the jury find guilt based on circumstantial evidence.
30 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from
facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is
believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing”
never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an
assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.
R. v Walizadeh, 2002 OJ 2833 – Star witness says he did it, no he didn’t – it was sent for committal.
R. v. Hynes, [2001] SCC
R. v. Hynes, [2001] 3 S.C.R. 623, 47 C.R. (5th) 278, 159 C.C.C. (3d) 359 — A “court of competent jurisdiction” is a court that
has jurisdiction over:
i.
the subject-matter;
ii.
the person; and
iii.
grant of the remedy.
The test for the third element is whether the court or tribunal is suited to grant the remedy sought under s. 24, in light of its
function and structure.
The accused was involved in a motor vehicle accident, and was charged with causing death by criminal negligence,
failure to stop at an accident scene and impaired driving. At the preliminary inquiry, voir dires were held to
227
determine the admissibility of statements made by the accused to the police while under arrest. The accused argued
that these statements were obtained by the police in a fashion infringing the accused's rights under the Canadian
Charter of Rights and Freedoms. The accused applied for a declaration that the judge presiding at the preliminary
inquiry constituted a “court of competent jurisdiction” under s. 24(1) of the Charter and could therefore rule on whether
the police violated the accused's rights and, if so, whether this evidence should be excluded pursuant to s. 24(2) of the
Charter. The judge refused the application on the ground that, sitting in his capacity as a preliminary inquiry
justice, he was not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2). A
further application to direct the preliminary inquiry justice to conduct the inquiry under s. 24 was dismissed. The
accused appealed. The appeal was dismissed. The accused appealed further.
Held: The appeal was dismissed.
Per McLachlin C.J.C. (L'Heureux-Dubé, Gonthier, Bastarache and LeBel JJ. concurring): The preliminary inquiry
justice did not err in refusing to exclude the evidence for breach of the Charter. It was established by the Supreme
Court of Canada in R. v. Mills that a justice presiding at a preliminary inquiry is not a “court of competent
jurisdiction” for the purposes of an application under s. 24(1) of the Charter to exclude evidence under s. 24(2). It
was established in a recent decision of the Supreme Court of Canada that a justice presiding at a preliminary inquiry is
not a “court of competent jurisdiction” for the purposes of an application under s. 24(1) of the Charter to exclude
evidence under s. 24(2). In the present case, the jurisdiction of the preliminary inquiry justice over the parties
and over the subject matter was uncontested. The sole issue in dispute was whether the preliminary inquiry justice
also had the necessary power to grant the remedy sought. Parliament did not expressly empower preliminary
inquiry justices under Part XVIII of the Criminal Code to exclude evidence obtained in violation of the Charter. The
question remained whether Parliament conferred this remedial power by implication. Related to this matter was
the question of whether the function and structure that Parliament assigned to the preliminary inquiry led to the
inference that Parliament intended the presiding justice to exclude evidence on Charter grounds.
The preliminary inquiry is not a trial but simply a preliminary review to determine whether there is sufficient
evidence to proceed to trial. The preliminary inquiry justice has no authority to grant remedies. Recognizing a
remedial jurisdiction in preliminary inquiry justices, and the result that the preliminary inquiry might become a forum
for trying Charter breaches and awarding remedies, seemed remote from the function envisaged by Parliament.
Assigning such a role could undermine the expeditious nature of the preliminary inquiry. Preliminary inquiries
would become longer and more complex, and become less preliminary and more like a trial. This would increase
the degree to which preliminary inquiry justices and trial justices perform the sam