1.1 Challenges to the Law

1.1  CHALLENGES TO THE LAW

·  Types of challenges: Federalism and charter challenges (s. 15, 2(b) (expression), 7.) (S. 15 structure: 1. Differential treatment? 2. Does it infringe s. 15 rights? 3. S. 1 Justification?), critiques on appropriateness of criminalization, process questions (are affected groups adequately represented?), critique of effects.

·  Cases: Westendorp (Calgary bylaw on prostitution struck down – federalism); Morgenthaler (provincial abortion laws colourable, struck down – federalism); Banks (squeegee kids challenge Safe Streets Act under s. 15, 7, 2(b). s. 15 argument: no, economic status not analogous ground. S. 7 argument: no, not depriving of all right to earn living, deprivation of libery = yes but saved by s. 1,. S. 2(b) argument: yes, but saved s. 1.); Malmo-Levine, Caine (pot activism; ML challenges law itself, Caine challenges jail sentence for minor offence; court: society may criminalize what it finds repellent.)

1.2  DEFINITION OF CRIME

·  Cases: Fiddler (windigo killing = murder); Frog Lake Massacre (state hanging of 8 Indians); Reed (poisoning of waters)

1.3  LAW ON THE BOOKS VS. LAW IN ACTION

·  Cases: Marshall (sloppy murder investigation, pressured to confess, police ‘forced’ theory, crown ignored testimony, new investigation demanded he ‘give them something’, CA blamed D based on ‘robbery’ and ‘perjury’, SCC very critical); White (disproportionate prosecution of women for prostitution not charter violation, as more women solicit); Little Sisters (lesbian books confiscated by border customs)

1.4  SENTENCING: THEORY AND PRACTICE

·  S. 718 purposes of sentencing: denunciation, deterrence, separation, rehab, acknowledgment of harm. Utilitarian (safe and efficient society via deter/rehab, don’t want ineffective/excessive/too expensive) vs Normative (denounce wrong, affirm human worth of victim, don’t violate dignity or treat person as ‘resource’.) S. 718(2)(e) – should consider non-jail before jail sentence if appropriate, esp. wrt aboriginals

·  Cases: Miloszewski (neo-nazi killing of sikh – sentence lightened by 718(2)(e)); Hamilton (female drug mules, trial J. sympathetic to their situation, but appeal J. says protecting society more important); C.A.M. (father serial assaults children over years, court says vengeance wrong but retribution ok); Gladue (718(2)(e) is mandatory wrt aboriginals, don’t need to follow, but failure to consider systemic factors is appealable); Hebb (stole pack of cigs, can`t pay fine, jail time, charter challenge based on leniency to other age groups, judge says ‘debtor’s prison’ not cool, extends to all age groups.); Naqitarvik (aboriginal sex assault on 14yo girl; no lighter sentence for serious crime); Inwood (man assaults wife + baby, history of abusing women, on retrial R wants increased sentence but court says too late).

1.5  PRISONS AND PAROLE

·  Corrections + conditional release act (CCRA) applies in prisons; if charged under it, face prison disciplinary board. Court’s can’t review PDB decision but can say if it overstepped jurisdiction. Armstrong (cell search, pot found, he says procedural errors in review, court says yeah but fix ‘em and then hand down sentence again.)

1.6  CRIMINAL PROCEDURE AND EVIDENCE

·  Guest lec: police gather evidence, put in ‘report to crown counsel’, crown decides whether to proceed, send back to cops, or send to ‘alternative measures’.

·  Thompson (high school riot, racial tensions, cops mostly interviewed whites, J says not bias as tried to contact everyone); RDS (cops stop van w/ black driver, kid on bike offers to call mom, cops say interfering w/ arrest, black judge believes kid, SCC says no J bias); Deane (cop shoots aboriginal, says he thought ab had rifle, but was stick, court says cop knew it was stick; racist attitudes in police and greater likelihood of violence against abs); Brown (black pro-basketball player stopped by cops for ‘erratic driving’, fails breathalyser; landmark case on ‘racial profiling’; not up to D to prove bias, but cops to show non-biased reason for stop.); Jane Doe (raped by stranger who broke into apt, police knew was at large, didn’t warn, sued on neg/s.15/s.7, court agrees to all, cops knew of systemic flaws in rape investigations but didn’t fix b/c of myths about women’s panicky behaviour.

·  Court system: pre-entering plea = prov. ct. System, post-plea = choice of J and jury (default) or just J (indictable offences only). J alone = prov. summary court (required for s. 553 offence). Can also elect pre-trial inquiry. Summary conviction offences = court of criminal jurisdiction, hybrid offences = R can choose summary court.

·  Drunk Driving law: two offences per s. 253: having care/control/operating/assisting vehicle while i. impaired or ii. blood alc over 0.08. S. 258: evid. presumption: front seat = care & control. s. 258(b) = presumption breathalyser result means over 0.08. s. 254(2) officer can demand breath sample w/ approved device s. 254(3) can bring you down to station for ‘official’ test s. 254(5) offence not to comply w/o reasonable excuse.

1.7  SEARCH AND SEIZURE

·  Charter s. 8: right to be secure against ‘unreasonable’ search and seizure. Three-step legal search: 1. Authorized by law a. statute (warrant authorized by someone w/ judicial capacity & reasonable/probable grounds to think evidence will be found) or b. CL (allows for s&s w/o warrant in special circs, but search is presumed unreasonable unless crown shows i. incident to arrest (pat-down), ii. ‘plain view’, iii. emergency call/road safety, or iv. consent of subject); 2. Enabling law must be reasonable (incl. s. 1 justification), 3. Search conducted reasonably.

·  Remedies: 1. Declare law no force or effect; 2. Exclude evidence under 24(2); 24(1) broad ‘appropriate remedies’ discretion (incl. stay.) 24(2) Collins test: i. would evidence undercut public confidence in trial fairness; ii. how serious was breach, iii. would effect of exclusion be worse (serious crimes, etc)? Note: conscriptive evdnc = wouldn’t have found w/o D’s help.

·  Cases: Golden (Subway strip-search for crack, court says no-warrant search ok where 1. Lawful arrest, 2. Search is incident to arrest and a. preserves evidence or b. to search for weapons. Mere possibility not sufficient.) Hunter v. Southam (establishes 3-point test, combines investigation act standards for warrants found unreasonable); Golgol (pot in granny’s underwear drawer, she is handcuffed, place smashed up, search not reasonable. Stillman (body samples thrown out but throw-away Kleenex allowed); Burlingham (murder weapon found based on improperly obtained evidence, tainted all later evidence); Hornick (police raid of bathhouse, male police, topless women, court excluded evidence); S.F. (strip-search at courthouse, no evidence to exclude, court grants stay); Thompson Newspapers v. Canada (expectation of privacy lower for corporation); M.R.M. (school principal pat-down of bulge in sock, court says school search permissible where reasonable grounds to think school rule being broken and evidence will be found at location); Collins (choke-hold to stop drug swallowing, established test, search held unreasonable.)

1.8  ARREST & DETENTION

·  Arrest: seizing of body with view to detention. Words not sufficient, unless they consent. Arrest with warrant: authorized by judge, addressed to cop giving auth. to seize body. Arrest w/o warrant: s. 495(1) Cop can arrest w/o warrant if see an indictable/criminal offence, or reasonable/probable grounds to think they have/will commit indict. off., or that there is warrant out in their jurisdiction. S. 494 (1): citizen’s arrest where catch committing indict. off., or reason/prob grds to think they have committed crim. off. and are escaping and freshly pursued by someone with lawful authority to arrest. S. 494(2): owner can arrest someone committing off. on or wrt the property; s. 496: limits of non-warrant arrest; for s. 553 offences should just give summons unless you think they won’t show up. Charter s. 10(b): when arrested or detained, right to 1. Be informed of reasons, 2. Be informed of right to counsel and have right provided for; 3. Release/bail info. Entering house for arrest w/o warrant: yes if ‘in hot pursuit’ or responding to 911 call.

·  Detention: charter s. 9 (no arbitrary detention) and 10 (right to counsel). 1. Is there detention? (restraint on liberty other than arrest, incl. psychological compulsion, but ‘come here’ on street (Grafe) or Private Investigator interrogation (Shafie) not detention); 2. If yes, must inform of right to counsel. ‘Random’ roadside stops violate s. 9, saved by s. 1 (Hufsky). S. 15 concerns arise with over-use (Peck) or under-use (Thurman)

·  Cases: Biron (arrest in bar raid, resisting arrest unlawful even if not found guilty); Therens (asked to come to station for breathalyser test, no counsel, ‘felt’ no choice therefore detention); Griffiths (officer stops black man, sees crack in mouth, illegal detention but not serious enough to throw out); Peck (cop sees black man put something in pocket, asks to empty pocket, chases down. Evidence thrown out; was detention as soon as asked by cops); Mann (cop sees guy ‘fitting’ B&E description, searches, finds pot in pocket, thrown out b/c going beyond pat-down not warranted by circs); Thurman (pattern of discrimination in lack of arrest/detention of abusive husband despite multiple complaints); Waugh (no power to arrest for failure to ID self wrt airport regs); Smith (no power to arrest for failure to ID self wrt Trespass to Property Act)

1.9  RIGHT TO COUNSEL

·  At Arrest + detention: rights to be informed of reasons for detention, right to counsel (incl. availability of legal aid, though it doesn’t have to be available – Prosper: no legal aid Sat. nights in NS, majority said cops should hold off ‘til it is), right to release/bail info. Police duties: a. informational: must make sure you understand, must pause if necessary (Clarkson – shoots husband, tells cops while drunk, should have waited for her to sober up; Evans – mental disability, went from explaining pot to murder, cop should have stopped and made 2nd attempt to explain right; Whittle – ‘voices’ saying talk to cop didn’t impose extra burden on cops); b. implementational: must i. facilitate contact w/ counsel, ii. provide reasonable opportunity (depending on circs), iii. ‘hold off’ taking evidence; unlike informational duty this is not mandatory and can be waived, though implicit waivers viewed with suspicion (Manninen – cops kept pressing to talk w/o lawyer present; LeClair – young B&E gets lineup in middle of night, evidence excluded). D’s obligations: D must be diligent in exercising right to counsel, failure can = waiver (Tremblay – dragged feet on breathalyser test; Smith – police made reasonable efforts but D wanted to wait). D cannot waive right if they didn’t understand it (same factors as above)

·  At Trial: charter does not guarantee funded counsel in every case – look at D’s circs (edu, exp), nature of charge (seriousness/complexity); (Rowbotham – not enough $ for good lawyer, too much for legal aid, stayed b/c funded lawyer required due to nature of charge). Counsel should be provided ‘without delay’ (Rain – HS dropout, unemployed, trial ended up being dismissed due to breach of right to speedy trial). Judge’s duties: must provide assistance to unrepresented (Tran, RHB)

2.1 BURDEN OF PROOF

·  R must prove guilt (Pres. of innocence is “golden thread” – Woolmington)

o  Pesuasive/Legal burden: ‘beyond reasonable doubt’ (q. of fact)

o  Evidentiary burden: ‘balance of probabilities’ (q. of law – is there enough evidence to introduce the argument?)

·  Presumptions:

o  Permissive: may make where circumstantial evidence leads to presumed facts, and leg. hasn’t disallowed the inference.

o  Mandatory: leg. requires that B be presumed from A; reverse onus on D to disprove inference.

·  Levels of Defence:

o  Type A: D must raise doubt.

o  Type B: evidentiary burden to ‘bring truth into question’ on BOP

o  Type C: persuasive/legal burden to disprove.

·  S. 11(d): “presumption of innocence”

o  Minimal requirements: a. must be proven guilty beyond reasonable doubt; b. R bears burden; c. crim. prosecution must be carried out in accordance with lawful proced. + fairness.

o  Values: a. protect fundamental dignity, life/lib/sec (gravity of consequences) b. faith in humankind c. heart of criminal law (“golden thread”)

·  Problems with ‘reverse onus’:

o  Mandatory presumption + evidentiary (or higher) burden on D = violates s. 11(d); but can be saved by s. 1. (Re Boyle)

o  S. 1 analysis: a. Pressing + substantial objective; b. Proportional: i. rational connection; ii. minimal impairment (violation minimal?/Are there alternatives?); iii. weigh deleterious vs. salutary effects.

o  Cases: a. not saved by s. 1: Oakes (drug possession à intent to traffic); b. evidentiary burden saved by s. 1: Whyte (s. 258 front seat à care + control), Keegstra (s. 319c hate speech unless D proves true), Wholesale/Sault st. Marie (rev. onus ok for regulatory offences b/c no jail), Chaulk (defence of mental disorder), Davialut (extreme intox defence on BOP to get general intent offence), Stone (non-mental disorder automatism defence on BOP); legal burden saved by s. 1: Downey (live off prostitute’s avails à pimping); Other cases: Lifchus (fraudulent stockbroker challenges jury charge on ‘proof beyond reasonable doubt’); Laba (if you have precious metals, you must prove they came into being legally); Holmes (having housebreaking tools à presumption you were going to housebreak)

2.2 ACTUS REUS

·  Four requirements: 1. An act (prohibited) or omission (of legal duty); ii. which was voluntary and conscious (at basic level; i.e. not automatistic); 3. Causation (factual and legal); 4. Other circumstances (location/age of victim/time)

o  1. An act (prohibited) or omission (of legal duty)

§  Duty may come from code, other leg, or common law.

§  Cases: Instan (let gangrenous aunt die/rot in house; implied legal duty b/c undertook to attend/communicate with outside); Beardsley (married man morphine binges w/ woman who o.d.’s; legal duty owed but not moral duty); Urbanovich (baby beat by husband, wife had duty not to w/hold info from docs – must take care of infant if aware of risk + danger); Thornton (knew was HIV+, but donated blood. Couldn’t convict of CL offence b/c s. 9, but s. 180 + 219 incorporated CL duty.)

o  2. Voluntary and conscious (at basic level – i.e. not automatism)

o  3. Causation: factual and legal

§  Factual: a. Hardbottle (1st deg. murder): R must prove D was “substantial and integral cause of death” and no intervening act; b. Smithers (non-1st deg. murder): must be contributing cause of death above de minimis; c. Nettle (non-1st deg. murder): must be ‘significant contributing cause’ (de minimis restriction no longer applies.)