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Summary.Finalexam.Crim Notes

Law Notes > Introduction to Criminal Law and Procedure Notes

This is an extract of our Summary.Finalexam.Crim document, which we sell as part of our Introduction to Criminal Law and Procedure Notes collection written by the top tier of University Of Ottawa students.

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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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