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CRIMINAL LAW PROCESS: CASE SUMMARIES Case
Borde and Hamilton
Black male youth, firearms offence
Black basketball player pulled over
D not told about legal aid, waives right to counsel
More specific criteria around 2nd and 3rd arms of the Collins test: 2nd arm- seriousness of
Stands for: Can create new defences in CL. Depriving acc of a prelim inquiry does not prima facie violate s. 7 of the CH but it might result in an acc being unable to make full answer and defence at his trial, contravening s. 7 and enabling the trial judge to fashion a remedy under s. 24(1). Application of Oakes test and harm based argument to find that laws pertaining to sex work are unconstitutional and not justified via s. 1. Potentially broaden scope of 718.2 e) to include other racially oppressed groups and issues of intersectionality.
-leading case on the role of a crown prosecutor
-Crown is expected to not to make an arrest or press charges if there is a reasonable doubt of guilt, to objectively put law and all of the relevant evidence before the jury and perceive duty as a matter of public service and justice, not about obtaining a conviction Standard for admitting confessions thru CL is voluntariness (Ibrahim test-founded on reliability more than fairness). Gives PO broad power- issue is if PO behaviour deprived acc of operating will. Reverse onus in terms of pre-trial release does not violation s. 11(e) and if it did it is justifiable under s. 1. Acknowledged systemic racism in the justice system. Set a standard for est that a detention is unreasonable on basis of racial profiling: D needs to prove that there was no articulable cause. 10(b) includes right to have access to legal aid counsel and detainee must be informed of existence of this right for 10(b) to be met. Waiver of right to counsel not complete unless acc fully understands consequences. Developed more specific criteria around the 2nd and 3rd arms of the Collins test.
CRIMINAL LAW PROCESS: CASE SUMMARIES breach -good faith, urgency, obtained by other means, level of invasiveness 3rd arm- admission of evidence would bring admin of justice into disrepute- analysis of seriousness of offence and level of importance of evidence for the Crown. Other principles for assessing vagueness:
-Is there social consensus?
-Is it a familiar legal concept?
-Does it delineate a zone of criminality?
Drunk D shoots husband and confesses while drunk
POs called about "black guys" in parking lot
Clouthier v. Langlois
D gets frisked, issue if it is justified
Outlines requirements for a lawful search:
-power does not impose a duty (not always necessary, police must assess circumstances and exercise discretion of whether to search);
-must be for valid objectives in pursuit of crim justice (ensuring officer's safety, to search for evidence) and not for intimidation, must not be abusive.
- In determining whether the admission of evidence could bring the administration of justice into disrepute, there are 3
?s to consider:
1. Would admitting the
Leading case on vagueness in addition to NS Pharmaceutical.
Sets a high, subjective test for waiving right to counsel. Acc cannot waive 10(b) rights while intoxicated. A confession is inadmissible if the acc is in a state of mind which precludes them from considering the consequences. PO must wait until the acc is sober. Signifies shift in scope of PO power of investigative detention from preSimpson. Mann is extended broadlyscope of power is determined contextually. Outlines parameters for lawful search but framework is broad in terms of PO power- POs have power to search and seize items from acc's immediate surroundings.
Established traditional approach to the exclusion of evidence- set up 3 questions for judges' consideration (old rules).
CRIMINAL LAW PROCESS: CASE SUMMARIES evidence adversely affect the fairness of the trial?
2. How serious was the CH violation?
3. Would the exclusion of the evidence bring the administration of justice into disrepute?
Belnavais Frey v. Fedoruk Gladue
-girlfriend's home searched
-strip searches at woman's prison
D questioned on sidewalk, issue if he is detained or not
Signals cts shift in determining REP: not much protection of territorial.
-drunk FN woman kills husband
Distinguished strip searches from other physical searches and suggested framework for their legal use:
-not incidental to arrestmust be reasonable and probable grounds
-only to be used for the purpose of discovering weapons or evidence related to the reason for the arrest
-PO should consider and attempt to minimize degrading nature 3 modes of inquiry for assessing exclusion of evidence post-Collins: i. seriousness of CH infringing state conduct (akin to 2nd arm of Collins, good faith vs bad, nature of evidence (statements unreliable) ii. impact of breach on CH interests of accused (factors relating to nature of evidence; formerly relevant to 1st arm of Collins, how it affects trial fairness) iii. society's interests in an adjudicating the case (somewhat akin to 3rd arm of Collins, but preference of truth more
Cannot create CL offences. Gives clarity to s. 718. 2 e) in that it recognized overrepresentation of FN in prisons which should guide sentencing of FN offenders. Sentencing remains individual process- case is not integrated. Distinguished strip searches from other physical searches and creates framework in which they can be legally used. Power to search incidental to arrest (Clouthier) does not encompass strip search; PO must establish that they have reasonable grounds.
Changed traditional approach to exclusion of evidence so that "automatic exclusionary rule" is rejected- stages 2 and 3 of the Collins test should be considered even if evidence was deemed conscriptive. This approach is now standard for interpreting 24(2) and symbolizes a shift to prioritizing ideals of law enforcement. Bodily and derivative evidence now more likely to be admitted. Redefined meaning of "detention" for application of s. 9 and 10 of CH using 3 factor test. A purposive approach that balances CH rights and interests in policing. If PO thinks a crime has been committed, they may engage in investigative questioning, onus is on applicant to show their
CRIMINAL LAW PROCESS: CASE SUMMARIES important than how evidence was obtained, reliability of evidence, importance of evidence to prosecution, integrity of justice system).
liberty was constrained.
-Defined detention as where acc is deprived of liberty and feels choice does not exist. 2 variants: actual legal compulsion and psychological detention.
-Psychological detention occurs where there is a legal compulsion to cooperate, or where a reasonable person would conclude they have no choice but to cooperate.
-Evaluate by 3 factors: i) circumstances as perceived by reasonable person ii) nature of police conduct iii) circumstances of individual
D makes statement after talking to counsel
Proper scope of s. 7:
-PO may question acc in the absence of counsel, even if they have retained counsel
-PO power to persuade is only ltd denying the accused choice or an operating mind
- right to remain silentdoes not exist prior to detention and does not apply to voluntary statements made to cell mates
-PO have power to observe as undercover
Holds that tertiary ground of justifying pre-trial detention is constitutional except for words "on any other just cause being shown." Post Grant judgment for exclusion of evidence that could be used to argue that Grant does not erode civil liberties or that judgment is inconsistent w/Grant.
-Outlines PO power as per s. 7. right to silence only exists after detention and must be interp w/in framework that gives acc choice. Reverses Rothman, creates an objective test for determining if acc thought they were talking to an authority based on determining if including confession would bring admin of justice into disrepute. If the police acted w/ care for suspects' rights, then the statements will likely be admitted.
CRIMINAL LAW PROCESS: CASE SUMMARIES
-released sex offender not allowed near playgrounds
-statute allows random roadside checks
-search of office w/permission
Hunter v. Southam
-consent non issue in fist fights
Kang Brown and A.M.
-sniffer dogs, warrantless searches
agents but not elicit info Some criteria to assess overbreadth:
-existence of process of review.
-how many people does it affect?
-how does enforcement occur? Is there notice?
Warrant must be based on: i. prior authorization; ii. granted by an independent officer; iii. reasonable, probable grounds that an offence has been committed and existence of connection bw offence and location to be searched
-Where search violates reqmts it is "warrantless" and "unreasonable" contra s. 8 of CH but in the home/office this can be rebutted if Crown proves that search/seizure was (1) authorized by law (2) law was reasonable and (3) manner of search was reasonable.
Distinguishes overbreadth from vagueness.
Affirms justification of s. 9 CH infringement in terms of public safety concern of drunk driving. Touchtone case on s. 8 of CH: developed framework for warrantless searches as illegal w/in invasion of privacy framework and developed requirements for Crown rebuttal for home/office setting. Asserts privacy rights for people, not places.
Intersections bw CL and CC still unclear and disputed in terms of offences despite codification. No presumption that warrantless search/seizure in terms of sniffer dogs contrary to s. 8 of CH bc of CL right. Use of sniffer dogs limited to where there is reasonable grounds to suspect presence of contraband. Reflects a leaning towards a harm based analysis in crim law PO have right to ask ?s on stops only that relate to driving offences. Intrusive procedures can only take place w/reasonable grounds. Beginning of fractures on opinions of scope of PO power in impaired driving.
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