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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

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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.


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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.

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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

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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.

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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)


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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

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