#10743 - Summary.Finalexam.Crim - Introduction to Criminal Law and Procedure

CHARTER JURISPRUDENCE

PART 1: SECTION 9 (ARBITRARY DETENTION AND ARREST)

Arrest: anticipation of detention and not leading to a criminal charge. Arrests include actual seizure or touching.

Detention: common law power that is up against s. 9 of Charter. On right of arrest (once detention occurs), you have the right to retain and instruct counsel.

Summons and Appearance Notices

• May be issued by a peace officer when someone was reasonably believed to have committed a crime or about to commit one (applies indictable, hybrid and summary offences s. 553)

• May be issued by justice of the peace after info is sworn unless warrant needed (ss. 496, 507)

• Summons and appearance less serious than request for warrant

Arrest without Warrant

• Common law right exists if officer sees indictable offence; if not seen, must proceed to get warrant (requires justification like public interest, identify, reasonable grounds to believe someone won’t appear. s. 495, etc). – could potentially sue officer arresting on summary offence

R v Grant (2009) SCC

Facts: Officers monitoring school see young black youth and approach him because they believed he looked suspicious. Arrested him and found weapon.

I: was the accused detained before he produced the firearm, and was the detention lawful?

D: no; s. 9 breached

Ratio: Test for trigger of detention (Modified Objective Approach):

1. Was there a detention?

   1. Was the detention legal? (was there no choice to comply?)

   2. Was it psychological (would the reasonable person have thought they had a choice?)

2. Was the detention arbitrary? (was it authorized?)

3. Is the law arbitrary?

4. Is the arbitrariness justified under s. 1?

Reasons: R v Therrens established that if a person thinks they have no choice but to comply, they are considered to be detained, but with R v Mann the approach to detention is narrowed to cases involving safety of people and searches for weapons. Reconciliation of the two is required.

R v Suberu (2009) SCC (CREDIT CARD FRAUD)

Facts: Officer arrives at store and sees male attempting to leave so he asks him to stop for questions and notices his car matches description. Sees that there are shopping bags in the vehicle. Officer makes arrest, and DF argues s.10b was breached.

I: Would a reasonable person have believed that they had the right to leave in this situation?

D: Yes; there was no detention (Appeal dismissed)

Reasons (Majority): s.9 is engaged when there is physical or psychological restraint and neither was present. Section 10b was not breached because the right to instruct counsel was read even though there was no detention.

Dissent (Binnie): there was a detention; terms “wait, I want to ask you some questions” denote that one is not free to leave.

PART 2: SECTION 10(b) – RIGHT TO COUNSEL

This right is triggered upon arrest and detention (could be simultaneous- Grant and Suberu are authorities on this). Police have the following duties to help assert right:

1. Informational Duty: clearly inform detainee of right to retain/instruct counsel which includes knowing that duty counsel and legal aid is available and ensure they understand.

   1. Derive from Bridges (1990), Bartel, and Evans (1991) cases. In Bridges, accused arrested for 2^nd degree muder, asks for legal aid and answer is ‘probably’, proceeds to self incriminate. Evans was mentally ill and did not understand. Bartel did not know duty counsel was avaialble.

2. Implementational Duty: if accused chooses to exercise right, there is a duty to implement (Bartel). Must not illicit evidence until you’ve had opportunity to retain counsel.

Right to Counsel must include mention of: 24 hr legal aid availability, phone number, do you understand, you do not have to say anything but anything you say can be used against you as evidence.

The debate on the right to counsel was triggered after Gideon v Wainwright Case in 1963 in which an accused won his right claim for the right to counsel at the Supreme Court.

When one is incarcerated, s. 10b is extended:

1. right to consult a lawyer regarding upcoming case

2. right to challenge prison decisions (including transfer from cell to cell because it’s like a new detention)

NOTE: the right to counsel is not guaranteed at trial, although s. 10b does not state otherwise (consider monetary and politial values). The right is triggered when s. 7 is at stake.

Christie v York 2008 SCC

Facts: lawyer working with low income clients subjected to legal tax fee by BC which clients could not afford. Challenges decision by claiming there is aright to counsel at all times and that new tax law is unconstitutional

I: is the tax imposed by the BC government unconsitutitonal?

D: no

Ratio: The right to counsel is not absolute.

R v GJ (1990)

Facts: woman’s children were to be taken as ward of the state; she was self represented and appealed her decision

I: Does GJ have the right to counsel?

D: yes

Ratio: There are some cases where a liberty interest is triggered and when there is a right ot a lawyer in order to uphold the principles of fundamental justice. Those cases must 1) involve a serious issue 2) they must be complex 4) individual must have no capacity to defend themselves

NOTE: the specificity fo the scope of the right to counsel in this state makes the general scope of the right to counsel a serious isssue.

R v Sinclair 2010 SCC (SELF INCRIMINATION)

Facts: accused charged with 2^nd degree murder. During his interview while he was detained, he was told he had the right to remain silent, but self incriminated because he was not given opportunity to speak to lawyer.

I: Does s 10b restrict the right to retain and instruct counsel upon arrest?

D: appeal dismissed; no Charter breach

Ratio: The right to counsel under s. 10b is not continuous throughout one’s detainment.

Reasons (Majority): There is an immediate right to counsel which is rooted in the right to remain silent. This right can be extended if a new situation arises, during which the accused must be informed. New circumstnaces include 1) new allegations 2) accused not understanding rights.

Dissent: The right to counsel should not be limited to new situations arising. The right to counsel is about the presumption of innocence so 10b should be continuous in order to address with the power imbalance between the police and the accused. It’s about protecting individuals and ensuring the right to counsel is beyond informational. This is considered in the context of the charter right in french: “en cas d’arrestation” so that assistance is not confined to one instance.

COMMENTARY: Before Sinclair, there was a stronger right to counsel, but it has been restricted with this decision. The court is divided on this issue. This case draws from Oikle and R v Singh. In Oikle, the right to remain silent is tied in with self incrimination; must be careful with voluntary confessions. In Singh, accused asserted right to silence 18 times and eventually made inculpatory statement.

BOND, “The Cost of the Crisis

• no constitutional right to 24 hr legal advice; right is strictly informational and does not extend to trial (despite that under s. 7 you have the right ot counsel in accordance with the principles of fundamental justice)

• right to be tried within a reasonable time can be breached under s11d when the legal aid system is in crisis – the consequences of a breach could result in a permanent stay on the charge which creates an Asgof crisis.

  • In Asgof, 40 000 people were rleased from prison because of permanent stays

• Under the Robautham (ONCA) application (test held by all Courts of Appeal), state funded counsel is required where:

1. representation requires fair trial

2. accused wants counsel and there is a right ot one

3. accused cannot pay for lawyer, there is a right to one

GJ criteria (serious, complex and no capacity for self representation) fall under part one of Robautham.

PART 3: SECTION 8, SEARCH AND SEIZURE

Case law is still developing in this area. Section 8 does not necessarily state who is protected from arbitrary search and seizure. A search is defined as anything that is physical, visual or olfactory. In Canada, there is no law indicating whether the use of sniffer dogs is considered a search.

R v Tessling 2004 SCC

Facts: state using infrared rays to detect heat usage in homes in order for marijuana grow ops to be seized.

I: Is the initial method of identifying heat a search?

D: No

Ratio: The use of inrared rays is not considered a search.

NOTE: we could argue that what you’re seeing coming out of a house and what you’re targetting is considered a search. The state’s capacity to detect information that is not publically acecessibily can also be a search. Moreover, one court argue that it’s not because the human senses are not being used to search. Then the question becomes whether the enhanced sense are considered to create a search.

R v Patrick 2009 SCC (GARBAGE + ECSTACY)

Facts: accused charged with production, possession and traficking of ecstacy. The evidence was found in his garbage cans, but he alleges that this is a violation of s. 8.

I: Did DF act in a way that would lead an objective observer to believe that his assertion of prvacy is unreasonable?

D: No; appeal dismissed

Rato: When personal property is abandoned and available to the public, a search does not violate s. 8.

Reasons: Once disposal of garbage occurred, it entered the public domain. In looking at the totality of circumstances (as Tessling suggests), there is no protection for personal privacy when items are available to the public.

Hunter v Southam 1984 SCC (applies to common law or legislation)

Facts:...