CRIMINAL LAW - FINAL EXAM 2013

1 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?
a. Was the detention legal? (was there no choice to comply?) b. Was it psychological (would the reasonable person have thought they had a choice?) 2) Was the detention arbitrary? (was it authorized?) 1

2 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. COMMENTARY: Grant utilizes a modified objective approach. It considers one's age, minority status, level of sophistication, nature of police conduct, location, duration, etc. There is a line of contention between effective policing and Charter rights with Mann, Therrens, Grant and Suberu. It is unclear as to where the line must be drawn for 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. a. Derive from Bridges (1990), Bartel, and Evans (1991) cases. In Bridges, accused arrested for 2nd degree muder, asks for legal aid and answer is 'probably', proceeds to self 2

CRIMINAL LAW - FINAL EXAM 2013

3 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 3

4 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 2nd 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 4

CRIMINAL LAW - FINAL EXAM 2013?5

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. o 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.

5 6 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: Director of Investigation and Research investigating documents on business premises of Southam Edmonton Journal. Officers presented certified authorization but declined to give info on act, delegation of authority and subject of inquiry. I: Are sections 10(1) and (3) of the Combines Investigation Act allowing the director of research and investigation to conduct the search consistent with s. 8 of the Charter?
D: appeal dismissed Ratio: In assessing whether a search is reasonable, we must ask 1) is there authority for the search by law 2) is the law reasonable? 3) was the execution of the search reasonable?
(criteria jointly sufficient). There must be prior authorization as a precondition for a valid search and seizure. Reasons: S. 10 of the CIA Is not consittutional because it does not outline a valid procedure for search and seizure. The guarantee of one's security is paramount to protecting a reasonable expectation of privacy. HUNTER AND SOUTHAM TEST DETAILS (All jointly sufficient) PART 1: Is there authority for the search by law?
a) by warrant (s. 487) - justice of JOP must be satisfied

6 CRIMINAL LAW - FINAL EXAM 2013

7 I.

must be sworn information justifying the warrant and reasonable grounds to believe that a crime is being committed or something will be found. b) no warrant but with legislative powers I. ex. Tax Act, Terrorism Act, Combines Investigation Act c) no warrant, but with a common law power I. courts are asking Parliament to legislate these common law areas. Currently, there are common law powers to search upon arrest, upon incarceration (transporting inmates), serach of items in plain view, search with consent II. these areas are difficult to target given the lack of case law in this area PART 2: Is the law reasonable? (where no warrant exists) The question is whether the authority to search is reasonable. When dealing with investigatory powers, we must ask: Are there reasonable and probably grounds that an offence has been committed? (Subjective and objective test - must ask from the perspective of the searching agent and the reasonable person; both must be proven to meet Hunter threshold) COMMENTARY: it is less likely that a common law power will be struck down because there is already case law allowing it and if it were, case law would be limited in allowing more. The legislative investigatory powers are being turned on their head because of the Charter, but the courts have given themselves significant power in retaining common law authority. PART 3: Was the search performed in a reasonable way? (not at issue in Hunter because legislation allows for specific search) R v Golden (STRIP SEARCH + COCAINE IN BUTTOCKS) Facts: Three strip searches conducted by the police with the accused as part of an investigation for cocaine trafficking. First search was near stairwell of buttocks and underpants. The second caused the accused to defacate as the officer used cleaning gloves to retrieve bag of cocaine. I: Was the search authorized, was the authorization reasonable, and was the search reasonable?
D: No; DF acquitted

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