CHARTER OF RIGHTS AND FREEDOMS

SUMMARY

-s1: guarantee of rights and freedoms, recognizing reasonable limits

-s7: life, liberty and security of person

-s8: search or seizure

-s9: detention or imprisonment

-s10: arrest or detention (RIGHT TO COUNSEL!)

-s11: proceedings in criminal and penal matters (BAIL!)

-s24: enforcement of guaranteed rights and freedoms, exclusion of evidence bringing admin of justice into disrepute

s1 “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

s7 “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”

s8 “Everyone has the right to be secure against unreasonable search or seizure”

s9 “Everyone has the right not to be arbitrarily detained or imprisoned”

s10 “Everyone has the right on arrest or detention

(a)to be informed promptly of the reasons therefore;

(b)to retain and instruct counsel without delay and to be informed of that right; and

(c)to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful”

s11 “Any person charged with an offence has the right

(a)to be informed without unreasonable delay of the specific offence

(b)to be tried within a reasonable time

(c)not to be compelled to be a witness in proceedings against that person in respect of the offence

(d)to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal

(e)not to be denied reasonable bail without just cause

(f)… military law

(g)… offence scope

(h) …acquittal

(i)…time delay

s24(1) “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”

(2) “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, in the admission of it in the proceedings would bring the administration of justice into disrepute”

EXCLUSION OF EVIDENCE

Context

The test to determine whether evidence obtained through a Charter violation should be included as per s24(2) of the Criminal Code was originally set out in Collins/Stillman; however, this original test often led to the exclusion of evidence based on whether it was conscriptive and non-discoverable without considering the seriousness of the breach or the implications for the administration of justice by excluding the evidence. Overtime the SCC decided to adopt a new approach, which is discussed in R v Grant (2009).

Rule (Grant)

Key question: would a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, conclude that the admission of evidence would bring the administration of justice into disrepute.

To determine the answer to this question court must balance three lines of inquiry (LOOK AT CHART!!)

  1. Seriousness of the Charter-infringing state conduct
  2. The impact of the breach on the Charter-protected interests of the accused
  3. Society’s interest in the adjudication of the case on its merits

After considering all three lines of inquiry, the court must balance its’ assessments and decide whether the evidence should be admitted or excluded pursuant to s24(2). During this process of balancing the primary focus of the court should be whether exclusion or inclusion would bring the administration of justice into disrepute by considering implications for justice in the present as well as the long term.

Key Examples

See chart re: forms of evidence

R v Harrison (SCC, 2009): Driving when cocaine found in the car, cocaine admitted at lower levels BUT SCC did not admit it b/c of the seriousness of the police officer’s breach outweighed reliability of evidence. Even though the crime is serious, the accused was driving the speed limit and appeared to be following the law therefore should not have been pulled over and the search was unwarranted and cannot include evidence.

SEARCH AND SEIZURE

Context

Section 8 of the Charter guarantees that “everyone has the right to be secure against unreasonable search and seizure”. As discussed in Hunter v Southam, in order to determine whether s8 guarantees have been violated the court must first determine whether A had a reasonable expectation of privacy and if so, whether the search and seizure in this case were reasonable.

Rule

Step 1 - When does a person have a reasonable expectation of privacy?

H v S s8 comes into play only if person has a ‘reasonable expectation of privacy’  if no reasonable expectation state can violate s8

  • Must look at ‘totality of circumstances’ (Edwards)
  • Court tends to consider a variety of factors incl but not limited to:
  • The type of property interests (personal, property, info)
  • Whether accused believes (subjectively) that they have a REP and whether the A’s expectations are reasonable
  • If property: does A have ownership or control of property, present at time of search, in a public or private place

-Look to case law:

Reasonable Expectation of Privacy / No [or lower] Reasonable Expectation
of Privacy
Personal
Stillman [15]… R.E.P. in your own bodily samples (blood, salvia, hair, etc.) / Patrick [20]… no R.E.P. in garbage bags left for collection at the edge of one's property.
House
Feeney… R.E.P. in private dwelling house
Gomboc [19]… R.E.P in information as to electricity usage captured by a DRA / Edwards [16(2)]… no R.E.P. in girlfriend's apartment
Tessling [17]… no R.E.P. in heat pattern radiating from house
Personal Computers:
REP Morelli, 2010 SCC 8
Place of Business
Hunter v. Southam [11-12]… R.E.P. against search and seizure of business records / Thomson Newspaper Ltd.[22]…distinguished Hunter v. Southam in regard to an order to produce business records (as opposed to an entry and search)
Work Computers:
Cole, 2002 SCC 53 where personal use if permitted or reasonably expect REP although workplace policies may “reduce” the degree of expectation
*reduce REP may relate to expectation in workplace
Car
Belnavis [16(3)]… owner/operator has R.E.P. in closed areas (glove compartment/trunk etc.) / Belnavis [16(3)]… no R.E.P. in the contents of the car where the accused is merely a passenger in the car
Public Place
Buhay [15]… accused had R.E.P. in rented locker in bus depot / R. v. M.(M.R.) [21]… lower R.E.P. for high school students re backpacks, lockers etc. (i.e. search by school officials without warrant based on reasonable suspicion.
Kang-Brown and A.M.[18]… lower R.E.P. against dog sniffing in bus depot and school (i.e. warrantless sniffer dog search based on reasonable suspicion.
Surveillance
Wong [16]… R.E.P. that police will not surreptitiously video surveil the accused's hotel room where he has invited strangers to come and gamble / LeBeau and Lofthouse [Ont.C.A. 1988]… no R.E.P. (even though guards posted) for sexual activity by persons in a public washroom
Communications
Duarte [23]… R.E.P. that private conversations will not be electronically intercepted

Step 2 – If there was a REP then was Search and Seizure Reasonable

The SCC in Collins held that a reasonable search and seizure must be authorized by a statute or common law, that the law authorizing the search must be reasonable and that the search must be carried out in a reasonable manner.

A – Authorized by Statute?

Prior Approval (Warrant) if feasible, granted by an independent party acting judicially and only where RPG exist to believe evidence will be found in place searched (H v S)

Note: As per Hunter v Southamall warrantless searches are prima facie unconstitutional unless it is not feasible to obtain a warrant

Note: standard for RPG lower if state security at risk, higher if search involves invasion of bodily integrity

If there is not a warrant

-H v. S identifies not necessary to obtain warrant if impractical due to exigent circumstances (life in danger) pursuant to s487.11

-accused waive s8 rights and consent to search?

  • This must be voluntary
  • A must be informed of true purpose of the search to consent and waive rights

-Search of travelers at borders (R v Simmons)

-Administrative regulatory searches (R v Simmons)

-Risk evidence will be destroyed (Grant)

If not an exception and H v S violated then engage in s24(2) analysis to see if evidence can be excluded or not

CONSIDER – IF WARRANT:

-Were all procedures for issuing warrant followed WAS WARRANT REASONABLE

  • Does warrant indicate: place to be search, name of owner, things to be searched for, suspected offence for which search is being conducted, RPG that search will find evidence?
  • NOTE: post H v S standard of RPG can be reduced to reasonable suspicion if:
  • drug-sniffing dog search in public places and schools: Kang-Brown and A.M.;
  • students by school officials for contraband, regulatory or disciplinary purposes: R. v. M. (M.R.);
  • demand for a sample of breath for a roadside alcohol screening test;
  • weapons search incidental to an investigative detention: R. v. Mann (SCC, 2004) [examined later under Arrest/Detention];
  • warrants to use electronic trafficking devices (s. 492.1), dial number recorders (s. 492.2) [since these techniques are less intrusive than conventional searches, the lower standard of "reasonable suspicion" is very likely constitutional under s. 8: see R. v. Wise (SCC, 1992).

-When engaging in search CARRIED OUT REASONABLY

  • S29: have warrant with PO when feasible and produce on request
  • S488: executed during the day (unless authorized otherwise in warrant)
  • CL: requires for PO if feasible announce presence, identify self as PO, give reason for search, request entry
  • BUT r. v. Cornell provides can enter home without knocking or announcing entry (court divided on this – see Ferg’s notes p2)
  • S25 permits reasonable use of force to administer law (incl. searches)

B – Authorized by Common Law?

The main common law powers of search

(1) the power to search a person as an incident to a lawful arrest, [Cloutier]’

- power to search a person and vehicle without a warrant (if vehicle reasonably related to offence) as an incident to lawful arrest (Cloutier, Belnavis, Caslake)

(2) the power to frisk search a person as part of a "investigative detention", [Mann]

(3) enter and search dwelling if in lawful hot pursuit of a suspect,

(4) enter and search dwelling to preserve life or prevent injury, [Godoy]

(5) enter and search a dwelling to make an arrest pursuant to an arrest warrant [see Landry as modified by Feeney], and

(6) power to conduct a warrantless sniffer dog search in a public place based on reasonable suspicion [Kang-Brown and A.M.].

CRITIQUE of Search and Seizure Process

-Law Reform Commission of Canada study showed 60% of search warrants issued in 1980 were defective b/c

  • No RPG in information
  • Specific place to search or items to be seized not specified
  • IN 1994: showed 39% invalid (usually because no RPG)
  • In 2000: higher rate of error

-Even if a warrant is technically invalid, a PO who executes warrant in good faith and had sufficient info to justify warrant even if not in the information, the court will likely admit any seized evidence (R v Harris 1996) BUT some courts might exclude evidence if search warrant was ‘careless’ (R v Hosie 1996)

ARREST AND DETENTION

Can arrest without a warrant if RG to believe A has committed (is committing or is about to commit) an indictable offence s495(1)

Ancillary Power – Rules

IF POLICE HAVE POWER TO ARREST

Arrest powers include or trigger a number of ancillary powers (these powers only kick in IF there is first the power to arrest)

  • power to enter and search a dwelling house without a warrant to effect an arrest
  • Pre- Charter: In Landry
  • Police had power to forcibly enter and search (if necessary) without consent in order to arrest person as long as:
  • RPG person sought is in the house
  • Provided proper announcement made before entry (as long as it doesn’t create danger for PO)
  • Post- Charter Feeney (limits Landry)
  • Power of warrantless entry to arrest must be cut back b/c of charter so even there are RPG to arrest need to limit police power given privacy interests
  • Unless it is an emergency to prevent harm or destruction of evidence (s529.3), should always attempt to get a warrant prior to arrest if there are RPG to arrest (telewarrant is ok!)
  • power to search without warrant incidental to arrest
  • can search an arrested person for evidence and weapons (do not need RPG for search) (Cloutier)
  • if car A is using is reasonably connected to offence, PO may seize it without a warrant as an incident to the arrest (Caslake)
  • Caslake: if accused arrested in vehicle for ppt then can search vehicle for more drugs
  • BUT!
  • If accused stopped for speeding or unpaid traffic tickets search of trunk is not justified or authorized b/c it wouldn’t aid wrt reason why stopped (Belnavis)
  • If lawfully arresting or detaining person in car/home/etc can seize evidence of any crime that is in plain view

Power of Entry Separate and Apart from Arrest Powers

  • common law power to forcibly enter residence without a warrant to prevent death or injury
  • R v Godoy: CL policy duty to protect life and liberty justifies forced entry if there is a 911 call which is interrupted

WHEN IS THERE A DETENTION?

Context

unless police have lawful authority to arrest or detain, individual has right to walk away – “where this choice has been removed – whether by physical or psychological compulsion – the individual is detained” (Grant)

Rule

Forms of detention: physical detention, legal compulsion psychological detention, no actual legal compulsion psychological detention (see Outline)

To determine if detention under “no actual legal compulsion psychological detention” (Grant)

-the circumstances giving rise to the encounter as would be reasonably perceived by the individual

  • CONSIDER GENERALITY OF PO CONDUCT: whether PO were providing general assistance, maintaining general order, making general inquiries regarding a particular occurrence, or singling out the individual for focused investigation

-The nature of the police conduct

  • Language used, use of physical contact, place where the interaction occurred, presence of others and the duration of the encounter

-Particular characteristics of circumstances of the individual where relevant

  • Age, physical stature, minority status, level of sophistication

Examples of Charter Detention according to Grant:

-Medical Emergency: not a detention b/c non-adverserial role, assisting injured

-Accident or Crime Scene: bystanders at a scene of the accident are not detained BUT if police zero in and indentify bystanders as potential suspects then might be detained

  • Police can ask general questions and citizens entitled to refuse to answer and continue on their way (JJ Harper, Grant, Suberu)

-Proactive Preventative Neighborhood Policing: not detention if general inquiry BUT once become “inherently intimidating” then detention

  • When say “Hold on – I need to ask you a question”  it is a detention in Grant, not a detention in Suberu
  • In Grant: blocked path, flashed badge, ordered to keep hands in front, racialized youth
  • In Suberu: officer’s words were initial not follow up, Suberu did not initially refuse to stop, PO didn’t zero in on Suberu as suspect yet just attempting to orient to scene, PO did not attempt to search – interacted was polite and unstrained

-Note: Binnie (dissent in Grant): racialized and marginalized groups “ even more so than others…may feel unable to choose to walk away”

Once detention is proved then accused Charter Rights of s9 and s10 kick in!

-Suberu: have right to counsel without delay once detained so PO must inform of s10b rights upon detention

INVESTIGATIVE DETENTIONS

Context

Concept of ID originally, narrowly construed in R v Simpson and though expanded in R v Mann, the power of ID was remained to some extententrelatively narrow; however, through Clayton this power of ID has become a fairly broad and general police power.

Rule

To justify an investigative detention:

-Consider whether ID justified as reasonably necessary based on totality of circumstances (Clayton)

  • 1. nature of the situation (incl. seriousness of offence)
  • 2. info known to police about crime/suspects
  • 3. whether geographic/temporal scope of ID is reasonably tailored to offence
  • look at geographical scope: generally should be relatively contained but no explicit limit
  • look at temporal scope
  • ID should be brief (Mann)
  • 4. stop is no more instrusive than ‘reasonably necessary’  must balance risk to public and liberty of citizens since this is a broad general power
  • Detainee is not obliged to answer police questions (Mann)
  • At minimum – accused should be told of reasons for detention under Charter s10(a) (Mann)

Police have the power to:

-set up roadblock of all vehicles leaving parking lot b/c risk of handguns to the public (Clayton)

-ID warranted if individuals fit general description of suspects EVEN if vehicle was not one of the vehicles identified (Clayton)

-Frisk or protective patdown search justified as part of ID if reasonable grounds safety at risk (Mann)

  • In Mann justified b/c accused of B&E and logically possible had B&E tools that could be used as weapons
  • In Clayton justified b/c possession of weapons (handguns)

Police do not have the power to:

-search beyond protective pat-down is not reasonable – cannot start searching for evidence (Mann)

  • search and seizure of marijuana not reasonable

Criticisms of ID – even if ID might be necessary in particular cases this power should be construed as narrowly as possible in order to recognize and respond to the potential abuse of powers that may be exacerbated through ID

-linebtwn being able to leave and feeling compelled to stay

-creates higher risk by expanding police powers that ID will target marginalized groups

  • people from the street
  • racial profiling (Brown)

-racial and social profiling and ID

  • difficult for accused to prove on BOP real reason for police stop
  • investigative stops often don’t result in charges therefore legitimacy is rarely reviewed by courts UNLESS complain is lodged through court system but this is timely, expensive and because of what marginalized groups have been treated by the courts unlikely to be accessed
  • low standard of ‘reasonable suspicion’ creates space for police to lie
  • leads to distrust of police and loss of faith in fairness of system
  • what necessary means is open to PO’s discretion (Mann – frisk search)

CONFESSIONS

Context

Original confessions rule discussed in Ibrahimrequired Crown to prove beyond a reasonable doubt that the confession was voluntary; however, overtime this rule was altered by case law. In Oickle, SCC discusses modern confessions rule which is then affirmed, further interpreted and applied in Spencer.

Rule

TODAY, For a confession (statements made by A to PIA) to be valid Crown must prove (Oickle):

Note: If accused does not believe they are talking to a person in authority then not a voluntary confession (confession not admissible in Rothman b/c thought inmate)