Overview of the Criminal Law

Basic Principles & Objectives of Criminal Law & Sentencing

  • Gladue: It is not the offender's burden to prove their history is a link to the situation they are now in. Rather, the Court must consider & give weight to causal factors.
  • The goal of defence counsel should be to promote rehabilitation and reparations for victims (e.g. through restorative justice). Incarceration does not appear to prevent re-offending, but rather simply removes threats from society.
  • Two Models of the Criminal Justice process (Kent Roach)
  • Crown Control Model: Assembly Line Model (Efficiency).
  • Due-Process Model: Obstacle Course (Protection of rights).
  • Aboriginal viewpoints on the Criminal justice system:
  • Combative nature not recognized.
  • Acting as a witness is a foreign concept.
  • Elders are not really analogous to judges since Elders impart wisdom, etc.
  • Juries are strangers.
  • Crime system: Punish offenders. Aboriginal system: Restitution for victims.

Limits of the Criminal Law (Morality v. Harm Principle)

  • Malmo-Levine: Pot case. Harm principle is not necessary (conservative view). Based off 19th century views of immorality (sin) needing to be criminalized.
  • Labaye:Sex-club. Harm principle should at least be a factor due to morals of a diverse society (John Stuart Mills liberal view).

Ultra Vires Constitution

  • If a law is in pith & substance criminal it is in the exclusive jurisdiction of the Federal Government under s.91(27) (Reference re: Firearm Act{guns = inherently dangerous}).
  • Provinces administer justice and can make regulations, but if the regulation is in pith & substance criminal, it is ultra vires (Switzman{communist propaganda}; Morgentaler)

Codification Through the Criminal Code

  • s.8(3) Common Law Defences: This code provision is not frozen in time and the Court can recognize new common law defences (e.g entrapment in Amato).
  • s.9(a) No Common Law Offences: Enacted in 1955. The court generally did not recognize new common law offences anyways (Frey v. Fedoruk).
  • Jobidon (Sopinka dissent): Creates new common-law offense through interpretation of the criminal statute {consenting to a fight in a bar}.

Interpretation of Criminal Laws

  • Doctrines underpinning the Criminal Law: Predetermination, Vagueness, Overbreadth, Strict construction of penal statutes.
  • Predetermination: The law is fixed and cannot be charged retroactively (s.11 Charter).
  • Vagueness: Need clarity of what the law is. If a law is too vague, it is in breach of s.7 of the Charter. Court might use a limiting interpretation (Nova Scotia Pharmaceuticals) or find void if it does not provide an adequate basis for legal debate & analysis, delineate an area of risk or is non-intelligible (Foundation for Children, Youth and the Law).
  • Overbreadth: An overbroad law is inherently unjust under s.1 or s.7 of the Charter. Four ways a law can be overbroad: Scope, Temporal, Broadness, Notice (Heywood).
  • Scope: Embraces all parks, regardless of remoteness/devoid of children.
  • Temporal: Prohibition for life with no review possible.
  • Broadness: The number of people affected is too broad.
  • Notice: Insufficient notice of enforcement to the Accused.
  • Strict Construction: When interpreting, anything that restricts liberty should be strictly construed. Only applies if ambiguity remains after a contextual analysis (Paré).

Section 1 of the Charter; Is the Breach of Charter Justified? (Oakes Test)

  • The entire Charter is limited under s.1 that “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.”
  • What is a "reasonable limit" under s.1 of the Charter? 3 stepOakes test:
  • Was the violation prescribed by law? (if yes = justified)
  • Did the offending law pursue a pressing and substantial objective?
  • Is the Law proportional?
  • Rationally connected to the substantial objective?
  • Minimally impair the right in question?
  • Do the Salutary benefits of the law outweigh its deleterious effects?
  • If the law is in breach of the Charter, found invalid under s.52 of the Charter.

Section 24(2) of the Charter; Exclusion of Evidence (Grant Test)

Pre-Grant: Collins test (Trial fairness; seriousness of breach; disrepute of administration of justice). Stillman 1997 test (Conscriptive (compelled breach of charter)?; Otherwise discoverable?; Seriousness of breach (Buhay: motivation, other means of obtaining evidence, how important is evidence/seriousness of offence)?; Disrepute of admin. just.?)

Grant Test: Would a reasonable person, informed of the circumstances and the values of the charter, conclude that the admission of this illegally obtained evidence would bring the administration of justice into disrepute?

  • Seriousness of Breach:
  • Preserve public assurance in rule of law.
  • Won’t condone serious deviation.
  • Don’t associate courts with illegal police conduct.
  • Intent of person who gathered the evidence; willful infringement should not be condoned while good faith infringement more likely to be admitted.
  • Cote- If evidence was discoverable by lawful means, it makes the police conduct more serious if they obtained it w/o using the lawful means.
  • Impact of Breach on Protected Rights:
  • Things like right to personal integrity more serious than right to privacy in car. i.e. body search breach very serious.
  • Technical breaches less serious than complete deprivation of rights: i.e. informed of rights to silence but way they were told was technically defective.
  • Don’t want to send message that right can be swept aside no matter how valuable.
  • Cote - If evidence was discoverable by lawful means, it lessens the impact on the accused’s rights b/c the police could have found this evidence anyways. Totally illegal searches more intrusive.
  • Society's Interest in the Abjudication of the Case on its Merits:
  • Usually weighs in favour of admitting the evidence.
  • Favours truth seeking function of law: reliable, relevant evidence should be admitted. Body samples in particular b/c they are usually so reliable, however body evidence usually excluded b/c of steps above.
  • Importance of evidence to the prosecutors case.
  • Just b/c it is reliable evidence doesn’t mean it has to be in society’s interest to admit, although likely to mean that because concern is with long-term goal not immediate effects.
  • Doesn’t matter what the charges in the present case is, b/c court is taking long-term view of administration of justice, not short term.

As a general rule, the court will admit reliable evidence when it is the result of an inadvertent infringement that doesn’t heavily impact rights; it will exclude evidence that is the result of intentional or deliberate infringement and severely impacts individual rights.

Investigation of Crime

Search & Seizure

Pre-Charter: No one had the right to search a person or place w/out express legal authority.

  • s.8 Charter: Right to be protected from unreasonable search & seizure.
  • This guarantees a reasonable expectation of privacy (Hunter v. Southam); examine the totality of circumstances to determine to determine if the expectation exists (Edwards):
  • Does accused have subjective expectation and is this reasonable?
  • Does the person have ownership/control over the property?
  • Was the person present at the time of search?
  • Was the property in a public vs. private place?
  • Intrusiveness (lack of indicates no reasonable expectation: Buhay, Wong)

Place / Reasonable Expectation of Privacy / No [or lower] Reasonable Expectation of Privacy
Personal / Stillmanin your own bodily samples (blood, saliva, hair, etc.) / Patrickno R.E.P. in garbage bags left for collection at the edge of one's property.
House / Feeney in private dwelling house. / Edwardsno R.E.P. in girlfriend's apartment.
Tesslingno R.E.P. in heat pattern radiating from house.
No R.E.P. in publicly available hydro records
Place of Business / Hunter v. Southam against search and seizure of business records. / Thomson Newspaper distinguished Hunter - an order to produce business records (as opposed to an entry and search)
Car / Harrisonowner/operator has R.E.P. in closed areas (glove compartment/trunk etc.) / Belnavisno R.E.P. in contents of the car where the accused is merely a passenger in the car.
Public Place: locker / Buhay accused had R.E.P. in rented locker in bus depot. / R. v. M.(M.R.):lower R.E.P. for high school students in backpacks, lockers etc. (i.e. search by school officials without warrant based on reasonable suspicion.)
Dog Sniffer / Kang-Brown and A.M:lower R.E.P. against dog sniffing in bus depot and school (i.e. warrantless based on reasonable suspicion.)
Surveillance / Wong that police will not surreptitiously video surveil the accused's hotel room where he has invited strangers to gamble. / LeBeau and Lofthouse… no R.E.P. (despite guards posted) for sexual activity in a public washroom
Communications / Duartethat private conversations will not be electronically intercepted.

If there is REP then Collinstest of whether the search was conducted reasonably...

  • By what legal authority is the search conducted?
  • Warrant: only where RPG to find evidence in the place and that an offence was committed; granted by a judge (HvS).
  • No warrant necessary if:
  • Exigent circumstances (e.g. life in danger)(s.487(11);HvS).
  • At border (Simmons).
  • Waived s.8 rights (if voluntary/informed of effect).
  • Risk evidence will be destroyed (Grant).
  • Power to search incident to a lawful arrest (Cloutier).
  • Frisk search as part of an "investigative detention" (Mann)
  • In lawful hot pursuit of a suspect.
  • Have the proper procedures for executing a search warrant & search been followed?
  • Was there actual RPG of the thing being searched for and that a crime was committed (HvS)? Police knowledge must be objective, not subjective (Simpson).
  • RPG higher for body searches; lower if State security at risk.
  • Not necessarily automatic exclusion of evidence if improper warrant (Leon).
  • PO must have the warrant on them (s.29); search during day (s.488); identify their presence, reason for search; and s.25 of Code permits use of reasonable force.
  • Is either the authority or procedure contrary to s.8 (Hunter v. Southam)?
  • Law must provide a system of pre-authorization (except in exigent circumstances)
  • Pre-authorization must be given by independent/impartial person (e.g. Judge).
  • Only authorized if there are Reasonable and Probable Grounds (RPG).
  • Exceptions where reasonable suspicion will suffice:
  • Students by school officials (including lockers),
  • Dog sniffing in schools, bus depot, other public places,
  • Breath samples in a roadside screening test,
  • Weapon search incident to a field detention.
  • If contrary to s.8, is it justified under s.1?
  • Look to common law exemptions above. If not exempted, do a s.24(2) analysis.
  • If breach is not justified, what is the appropriate remedy? (s.24(1) of the Charter)

Critiques: Many search warrants lack RPG or specificity. Even if warrant is found invalid, evidence is often admitted regardless through ss.24(2).

Arrest & Detention (See Ferguson Chart)

Duties & Powers that apply on arrest:

  • Searching a Home to make an arrest:
  • Landry (1986): Can enter & search as long as RPG & announce.
  • Feeney (1997): Challenged Landry under s.8 of Charter; REP in home.
  • Enter & Search a home to detain only acceptable w/ warrant IF (s.529 CC):
  • Lawful grounds to arrest the person
  • RPG the person is in that residence
  • Can enter w/out warrant if in hot pursuit; risk of destruction of evidence; prevent injury/death (but cannot search for evidence beyond preventing harm (Godoy)).
  • If 911 call made, but no one speaks, PO has authority to enter.
  • Searching a Person that is being arrested:

Search Ancillary to arrest / Can Search / Can’t Search
Person / CloutierSCC 1990
If police have power to arrest someone, they have ancillary power to search them and take any property connected to offence or any weapon. At common law -just suspicion needed, not RPG.
Car
RPG that you will find evidence related to offence that arrest is for / R v. Caslake SCC 1998
Can search/seize car for more drugs when RPG b/c accused arrested in vehicle on charges of possession.
Can also seize anything in plain view. / Belnavis SCC 1997
Can’t search trunk of car when stopped for speeding or arrested for unpaid fines.
Body Samples / StillmanSCC 1997
Common-law power to search w/ arrest does not apply to body samples
Frisk Search / Cloutier SCC 1990
Unpaid parking tickets, and person being verbally abusive
  1. Search for weapons or evidence
  2. No separate RPG that these things are on their person
  3. Must be done in reasonable manner, for legitimate law purpose

Strip Search
Removal or rearrangement of a person’s clothing to allow for visual inspection of private areas (Golden) / R v. Golden SCC 2001
Test to allow strip search:
a)Follows lawful arrest
b)For purpose of finding evidence or weapons
c)RPG needed
d)In reasonable manner see RBHS
-Fewer officers
-At police station
-Not removing all at once
-Same gender searcher / R v. Golden
Failed reasonable manner requirement b/c done in a restaurant back room.
There is no automatic authority to conduct a strip search incident to arrest; incredibly invasive breach of Charter rights & gendered aspects.

Investigative Detentions

  • Investigative Detentions are different than Arrests and can occur if there is reasonable suspicion that the person was involved in a crime.
  • Mann (kangaroo pouch): Must be reasonable in all circumstances to suspect the person. No obligation on the detainee to answer questions. Detainee must be informed of reason for detention.
  • Simpson (crack house): Suspicion must be objective and not based on flimsy sources (e.g. intuition, unreliable/unknown informant).
  • Clayton (parking lot guns): Frisk found lawful even though vehicle didn't match the one described in report. Broadens the test to consider circumstances:
  • Nature of the situation (including seriousness of offence).
  • Information known to the police about the crime or suspect.
  • Whether the nature of the stop is tailored to the offence (length, place, etc)
  • Whether the stop is no more intrusive than reasonably necessary.
  • Brown (racism): Concerns over discretion available to police officers in racial profiling. Had no reason to pull over, then found evidence of guilt afterwards.
  • When does detention happen and s.9 of Charter kick in? (Grant & Suberu)
  • When the person no longer has the choice to leave due to physical or psychological compulsion by PO (ability to walk away).
  • Can be legal psychological compulsion (e.g. Road-block) or they reasonably believe they do not have any choice (Therens).
  • Consider: The circumstances giving rise to the encounter; Nature of police conduct (language, physical contact, presence of others, place, duration); Characteristics/circumstances of the individual (age, minority status, physical stature, sophistication).
  • Examples: No detention in medical emergencies. Detention if bystander at crime-scene is a suspect; no detention if general inquiries re: info. Pro-Active policing: no detention if general inquiries, changed in Grant when told to keep hands in front of him and other police officers approached (all examples Grant).
  • Suberu (Liquor robbers): Initial talking is not a detention (factors: police just arrived at scene; nature of police conduct; conversation not strained).
  • Powers incidental to Investigative Detention (Mann):
  • Can do a pat-down for weapons, but not other evidence (e.g. soft baggie).
  • Must have reasonable grounds that safety of someone is at risk.
  • Search must be conducted in a reasonable manner.

Confessions (Voluntariness)

  • Ibrahim/Boudreau: Original common-law confession rule. The crown must prove it is voluntary, not obtained by fear of prejudice or hope of advantage exercised or held out by a person of authority. Even minor/hope threat. No requirement on the police to give warning statement might be used against them.
  • Reasoning: Avoid unreliable confessions (Wray).
  • Must be made to a person the Accused believes to be in authority (e.g. PO, prosecutor, etc.). If not (e.g. undercover inmate, Mr. Big Sting), statement is admissible evidence (does not consider reliability) (Rothman).
  • Police conduct must be so shocking to bring the administration of justice into disrepute (e.g. chaplain or legal aid)(Lamer dis. Rothman).
  • Hart(Mr.Big Sting):When the State recruits an accused, presumed to be inadmissible, unless it does not shock public's view of morality.
  • Requires an "operating mind"
  • Clarkson (drunk wife): Accused must understand what they're saying (reliability) and the consequences (fairness).
  • Whittle (more restrictive): Requires sufficient cognitive ability to understand what is being said and understand warnings that evidence will be used. Does not require ability to make good, reasoned choices.
  • Oickle: THE MODERN TEST (USE THIS FIRST) (narrows Ibrahim)
  • Crown must prove that beyond a reasonable doubt the accused's choice to speak was voluntary in the sense that it was overborne by threats, inducements, oppressive circumstances or lack of an operating mind.
  • Restated: Was the CHOICE voluntary rather than the confession.
  • Intended to protect the rights of the accused AND not unduly impair police investigations (sometimes confessions are only means to solve a crime; confessions are powerful pieces of evidence).
  • To be overborne by inducement/threat must have a quid pro quo promise and even then, may not be a statement overborne.
  • Oppressive circumstances include deprivation of food, water, sleep, clothing, unrelenting questioning/lies.
  • Lack of operating mind re: Whittle.
  • Police trickery that would 'shock' the public re: Lamer in Rothman.
  • Spencer (criminal protecting girlfriend): Court divided about whether Oickle changes the law; majority finds it does. Must lose all will to resist PO.
  • Minority think Oickle changes only true quid pro quos being inadmissible.
  • If confession is "voluntary" at common law, do a s.24(2) test for admittance (rare).

Confessions (Right to Counsel {s.10(b) of the Charter})

  • You can only waive your right to counsel if it is "clear" and "unequivocal" with full knowledge of the right and effect of waiving it (Clarkson).
  • High standard aimed at fairness to accused.
  • Lack of operating mind will indicate these factors are not met (Clarkson).
  • Police must provide (and facilitate if requested) detainee a reasonable opportunity to retain and instruct counsel AND must cease questioning until they have had a reasonable opportunity to do so (Manninen).
  • Includes being informed of availability of legal aid (Bridges).
  • Includes waiting until office hours are open/lawyer is reachable (Prosper).
  • Sinclair(repeated requests for counsel): An accused is only afforded an initial consultation with a lawyer for s.10(b) right to be met. Cannot have a lawyer present in interrogation. Can only re-consult with counsel if new procedures are implemented (new charges, polygraph or line up, new information presented).
  • Majority: Counsel's job is to determine whether to cooperate with police or not; does not give guarantee to wise decisions, just initial advice.
  • Dissent: In order for the right to be meaningful, law must evolve to reduce the power gap between the State and the detainee. Should have counsel present.

Confessions (Right to Silence {Imbedded in s.7 of the Charter})