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Law Notes > Introduction to Criminal Law and Procedure Notes
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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?)
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
1
2
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
someone
being
able
to
leave
or
required
to
stay.
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
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.
2
CRIMINAL
LAW
-
FINAL
EXAM
2013
3
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.
3
4
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
* 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
4
CRIMINAL
LAW
-
FINAL
EXAM
2013
5
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.
5
6
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
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)
6
CRIMINAL
LAW
-
FINAL
EXAM
2013
7
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
Ratio:
Strip
searches
must
be
grounded
in
evidence
or
danger
(such
as
the
presence
of
a
weapon),
rather
than
a
mechanism
of
absolute
authority
by
the
police.
They
must
minimally
interfere
with
the
dignity
and
privacy
of
an
individual.
Reasons:
The
search
was
authorized
by
law
(common
law
power
incident
to
arrest).
A
common
law
search
requires
additional
grounds
pertaining
to
a
strip
search
in
order
to
see
if
there
was
evidence
related
to
arrest.
The
law
is
reasonable,
and
the
courts
have
considered
the
importance
of
dignity,
privacy
and
minimal
interference.
The
search
was
humilating
and
unsanitary,
and
thus
did
not
consittute
reasonable
execution.
This
is
not
a
part
of
police
policy.
Dissent:
There
were
grounds
for
strip
search,
and
the
second
was
in
violation
of
s
8
but
evidence
should
not
be
exlcuded.
R
v
Bonds
2010
ONCJ
Facts:
accused
seen
carrying
beer
and
talking
to
friend;
when
she
sees
officer
she
disposes
of
it.
She
is
approached
by
two
officers
who
arrest
her
after
she
is
stopped
arbitrarily.
At
police
station,
she
is
detained,
and
strip
searched;
her
bra
is
cut
off
and
and
she
is
left
in
a
cell
soiling
herself.
I:
Was
Bond's
s
8
right
violated?
D:
yes
7
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