Table of Contents
Sentencing......
Parameters of the Criminal Justice System......
Division of Powers......
Codification......
Vagueness, Overbreadth, and Uncertainty......
Construction vs. Interpretation......
The Constitution and Criminal Law......
Investigation of Crime......
Search and Seizure......
Arrest......
Search Incident to Arrest......
Detention......
Confessions......
Right to Silence......
Right to Counsel......
Case Study – The Investigation of Drunk Driving......
The Trial Process......
(Evidence and Proof)......
Actus Reus......
Contemporaneity......
Voluntariness......
Action, Omission, and Status......
Consequences and Causation......
Mens Rea......
Symmetry......
Forms of Mens Rea......
Subjective Forms......
Intent :......
Knowledge:......
Recklessness:......
Willful Blindness:......
Objective Forms......
Criminal Negligence......
Penal Negligence......
Constitutional Limitations......
True Crimes v. Regulatory Offences......
Strict and Absolute Liability......
Sexual Assault (Case Study)......
Modern Development of Sexual Assault......
Consent (Mistake of Fact)......
Defences......
Mistake Defences......
Mistake of Fact......
Mistake of Law......
Mental Condition Defences......
Intoxication......
Mental Disorder (NCRMD)......
Unfit to Stand Trial......
Automatism......
Provocation......
Pressure / Extremity Defences......
Self Defence......
Duress......
Necessity......
Crim Outline
Detention
- Were they detained? Grant
- Were there grounds for detention? Clayton
- Did the Officer Act Lawfully? Suberu
- Can the Officer Conduct a Search? Mann
Confession (CLCR – Charter s.7)
-Oikle has the accused’s voluntariness been affected?
- Threat / promise/ inducement Ibrahim
- Oppression --> Ward
- Lack of operating mind Whittle
-Was the influence such that the accused’s will was overbourne?
- Oikle Spencer
Search and Seizure
Sentencing
Purposes of Sentencing (from s. 718 of the CC)
a)denounce unlawful conduct
b)deter offender and other persons from committing offences
c)separate offenders from society
d)assist in rehabilitating offenders
e)provide reparations for harm done to victims or community
f)promote a sense of responsibility in the offenders
1995 brought a cluster of amendments to the CC, including s. 718 - outlined the purposes of sentencing
- 718.1 outlines that the sentence must fit the crime
- 718.2 outlines the mandatory circumstances that hove to be considered
- highlights how imprisonment should be seen as a last resort (d)
-718.2 (e)
- “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, WITH PARTICULAR ATTENTION TO THE CIRCUMSTANCES OF ABORIGINAL OFFENDERS”
R v. Gladue
-A judge should take SYSTEMIC and background factors behind the person being brought to court
-Judges should consider other forms of sentencing (Aboriginal justice systems)
-718.2(e) should be considered remedial – addressing an imbalance
-Extended consideration to aboriginal people not living on reserves
Parameters of the Criminal Justice System
Harm Principle
Stems from Liberal response to paternal structure of legal systems
-people are at their best when most free
-state should have as limited a role as possible
-morality is not enough for freedom-restricting laws
Debate
-Wolfenden Report
- Report of the Departmental Committee on Homosexual Offences and Prostitution
- Based on Liberal theories – state cannot create morality based laws
-Sir Patrick Devlin
- Morals are part of the fundamental structure of a society – “part of the community of ideas”
- Morality cannot be removed from Crim Law – should be determined by consensus
-Hart
- Law and morality are separate
- Devlin’s guide merely pandering to current social climate – law must be more objective
R v. Malmo-Levine (Marijuana possession – “Harm Reduction Club”)
- Is liberal harm principle a fundamental principle of justice?
- Not a legal principle – it is a legislative objective (policy rather than law)
- No societal consensus
- Not a manageable standard
-Harm not considered in this case to be a necessary component of the fundamental principles of justice
Division of Powers
Federal government has exclusive jurisdiction to legislate on Criminal Law and Procedure in Criminal Matters
“Pith and Substance”
-Matters that are in “pith and substance” Criminal Law are under Federal authority and ultra vires provinces Switzman v. Ebling (1957)
R v. Morgentaler
- Definition of what is considered criminal law and thus under federal jurisdiction fluxuation over time
- Board of Commerce(1922) – very narrow
- P.A.T.A (1931) – very broad
Reference re Firearms Act (AB challenges Parliament’s authority over gun control)
-SCC ruled that gun control was fundamentally an attempt to regulate risk of harm to persons – and thus fell rightfully within federal jurisdiction
-Three elements to a criminal law for the purposes of s.91(27)
- Prohibition
- Penalty
- Criminal Law Purpose aimed at some evil or injurious effect
-very broad scope of federal power through Crim Law
R v. Morgentaler
-Nova Scotia Medical Services Act which prohibited abortions outside of a hospital was unconstitutional
-Attempt to restrict socially undesirable conduct – pith and substance crim law
-Ultra vires provincial authority
Codification
General Principles
-1950 Revisions – No Common Law offences Frey v. Fedoruk
-Charter s. 9 – Prohibits being convicted by anything other than a Criminal Offense passed under a Statute pursuant to the Criminal Law power by the federal government
Common Law still Influences Offences
R v. Jobidon (man killed in bar brawl)
-In making judgment common law precedent was considered
-“an archive in which one may locate situations and forms of conduct to which the law will not allow a person to consent”
-Common law can be used in interpreting the terms of the Crim. Code
Common Law Defences are Allowed
R v. Amato
-entrapment upheld as proper Common Law defence
-Common Law defences redound to the liberty of the accused – respond to situations in which the codified law seems unfair (justice system favors liberty of the accused)
Vagueness, Overbreadth, and Uncertainty
Vagueness
-Principle of fundamental justice that laws not be too vague (s.7)
- “Fair notice to the Citizen” – a workable standard of conduct (not formal notice – ignorance of the law is no excuse)
- Limitation of law enforcement discretion – conviction cannot automatically flow from a decision to prosecute
-simply being difficult to interpret ≠ unconstitutional vagueness – must be basically unintelligible
R v. Nova Scotia Pharmaceutical Society
-“undue competition” is too vague to be constitutionally prohibited
Overbreadth
-A law has reached beyond the purpose of its legislation – means of enforcing are too sweeping in relation to objective
-Arbitrary – if you punish someone for behavior not related to the original legislation then their rights are being infringed upon for no reason
R v. Heywood (1994, SCC)
-(conviction of a man with two prior convictions of sexual assault)
-s. 179 (1)(b) offense for a person with a past sexual violence conviction to be “found loitering in or near a school ground, playground, public park or bathing area
-HELD
- S.179(1)(b) is overly broad - violates the right to liberty under s. 7.
- Geographical scope
- Temporal scope
- Persons encompassed
- Overly broad terms are not essential in order to achieve aims of legislation
Courts can interpret legislation in order to avoid arguments of unconstitutional vagueness and overbreadth
Canadian Foundation for Children, Youth and the Law v. Canada (2004, SCC) (sphere of non-criminal conduct concerning physical contact with children)
- A law is unconstitutionally vague if
- It does not provide adequate basis for legal debate
- It does not sufficiently delineate any area of risk
- It is not intelligible
- Court interprets s.43 of CC to avoid vagueness or overbreadth
- References can be used to specify meaning (international treaties, judicial consideration, legislative intent)
Construction vs. Interpretation
Purposive Interpretation
-Must look to the legislative purpose before using principle of strict construction R v. Stevens
-If, after the normal process of statutory interpretation the law is still ambiguous – THEN doctrine of strict construction is applied
Strict Construction
-reflects idea that there is something wrong with depriving someone’s fundamental liberty when Parliament’s law is unclear or when there is not fair notice
-Strict construction only used when you have considered context, plain meaning, etc. and there are still “real ambiguities” in the law
R v. Paré (1987, SCC) (murder – degree hinges on distinction between “while committing” and “after having committed”)
-Court must ascertain the meaning of words when read in context of the scheme of legislation
-Strict construction only need be applied AFTER this interpretive process
The Constitution and Criminal Law
General Application
-s.1 - all rights are guaranteed but subject to “reasonable limits…as can be demonstrably justified in a free and democratic society”
-s.7 - right to life, liberty, security of person and not to be deprived of those rights except in accordance with the fundamental principles of justice
- 7 – 14 – protect those subject to criminal investigation, charged or tired for criminal offenses, or punished for a crime
- 8 – 10 – protect those subject to investigation by the state
- 11 – 14 – protect those who are charged or tried for offenses
-s. 15(1) every individual is equal before the law – no discrimination
Basic Structure of a Charter Claim
- Core
- s.1 Charter – all rights are guaranteed but subject to “reasonable limits…as can be demonstrably justified in a free and democratic society”
- governed by Oakes Test
- s.52(1) Constitution Act – Constitution is supreme law of Canada, and any law that is inconsistent with the Charter is (to the extent of the inconsistently) of no force or effect.
- s.24(2) Charter – in any proceedings where you find the breach of a charter right, the evidence should be excluded if it is established that its admission would “bring the administration of justice into disrepute”
- governed by Grant Test
- Structure
- (1) Breach of a right?
- (2) if so, should there be a remedy?
- Two Basic Claims
- s.1 – A law breached my rights, and therefore the remedy is that the law should be invalidated
- s.24(2) – a state action (official) has beached my rights, therefore the remedy should be the exclusion of evidence
Claim 1 – A law breached my rights (s.1 Analysis) OAKES TEST
R v. Oakes (1986, SCC) (Constitutionality of Narcotics Control Act)
-Even if NCA violated 11(d) of Charter, it can still be upheld as reasonable under s.1 of Charter
-In this case, law was a substantial and pressing concern of sufficient importance to warrant overriding a constitutional right – however it was not sufficiently rationally connected to the objective
-Failing one step means you do not need to apply the next steps
-Test
- (1) was the breach “prescribed by law”?
- (2) Does the offending law pursue a pressing and substantial objective?
- (3) Is the law proportional?
- rationally connected to the objective
- Minimally impair the rights in question
- Benefits outweigh the deleterious effects
Claim 2 – A state official breached my rights (24(2) Analysis) GRANT TEST
Progression
R v. Collins (1987)
-preliminary test
- (1) would admitting evidence adversely affect fairness of trial?
- (2) how serious was the Charter violation?
- (3) would exclusion of evidence bring the administration of justice into disrepute?
R v. Stillman
-augmented the Collins test
-Fairness of trial (1) will be affected when the evidence is:
- Conscriptive – self incrimination under duress
- Not Discoverable – Crown would not otherwise have found the evidence
R v. Buhay (2003) (incriminating evidence in bus locker)
-Tension between principles in Collins Test
-Police activity constituted a serious breach of constitutional rights – evidence was not admitted
- Seriousness of breach depends on “whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant”
- “good faith” of officer is important – cannot be claimed if violation is committed on the basis of a police officer's unreasonable error or ignorance (police conduct in this case was “sinister”)
-So – based on Collins test the evidence was eliminated for failing step (2) – BUT Crown argued that exclusion of evidence would bring administration of justice into disrepute (3)
- Offence was serious, evidence central to Crown’s case
Commentators worried that Collins test sets up an automatic exclusionary rule at the first stage
R v. Grant (2009) (Police detain and arrest Grant in breach of Charter rights)
-A fair trial is "is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused"
-Modern Test for Admissibility of Evidence
- A court must assess and balance the effect of admitting the evidence having regard to:
- (1) the seriousness of the Charter breach
- (2) the impact of the breach on Charter rights of the accused
- (3) society’s interest in the adjudication of the case on its merits
-More flexible then Stillman test
-Judge must weight the various factors
Due Process v. Crime ControlPacker
-Crime Control
- “assembly line” metaphor
- goal is the conviction of the guilty
- core value is truth
-Due Process
- “obstacle course” metaphor
- goal is the protection of rights and interests
- core value is fairness
Investigation of Crime
Search and Seizure
Charter s.8 – everyone has the right to be secure against unreasonable search and seizure
-Interpreted to protect a Reasonable Expectation of Privacy Hunter
-Reasonable search Hunter “gold standard”
- Prior Authorization
- Reasonable and Probably Grounds for Search
- Search Conducted Reasonably and Within Scope of Warrant
-no requirements when there is no “reasonable expectation of privacy” Tessling
R v. Collins to establish reasonableness of warrantless Search
- (a) the search was authorized by law (statute or common law)
- (b) the law is itself reasonable
- (c) the search was carried out in a reasonable manner.
Hunter v. Southam Inc. The meaning of “reasonable law” in Collins test
-(CIA 10(1) found to be inconsistent with Charter – unconstitutional search)
-Purpose of s.8 is to protect a reasonable expectation of privacy
-When does the public’s interest in being left along get trumped by the state’s interest in achieving its goals?
- (a) Balance of Interests Assessed before the intrusion – obtain a warrant
- (b) Independent commission must grant authorization
- (c) Balance of Interests assessment will vary with the severity of the predicted harm and the severity of the state infringement
- (d) Courts should not read into or read down legislation authorizing search to make it consistent with the Charter
Hunter “ Gold Standard” Search
-(1) Prior Authorization
-(2) Reasonable and Probable grounds for search
-(3) Search was conducted Reasonably and within the scope of the warrant
In a warrantless search – Onus is on the Crown to prove the reasonableness of the search
R v. Duarte
-right to privacy = the right of the individual to decide when, how, and where they will divulge personal information
-Police officers or their agents surreptitiously recording conversations with suspects was ruled to be unconstitutional violation of privacy
R v. Wong (videotape in hotel room used as evidence of “gaming house”)
-Held with Duarte – surreptitious recording = violation of reasonable right to privacy
- Acknowledged stricter standard for government than for civilian third parties
- expectation of privacy as against the state
-recording was a violation of s.8 rights – HOWEVER the admission of the evidence would not bring the justice system into disrepute
- good faith on the part of the police officers
R v. Plant (police assessing hydro-consumption without warrant)
-s.8 protects “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination…”
R v. Edwards
-man had no reasonable expectation of privacy in girlfriend’s apartment
-he had no authority to regulate access to apartment – could not expect to be free from interference or intrusion
“Totality of the Circumstances” Test Edwards
- Key test to determine if a reasonable expectation of privacy exists
- Presence at the time of the search
- Possession/control of the property or place searched
- Ownership of the property/place
- Historical use of the property/item
- Ability to regulate access
- Existence of a subjective expectation of privacy
- Objective reasonableness of the expectation
R v. Tessling (FLIR “heat” image taken of accused’s home)
-“totality of the circumstances” test used
-FLIR imaging held not to touch “the biographical core of personal information”
-Reasonable search
- Non-invasive
- Information produced was mundane
-Distinction between:
- Personal privacy
- Territorial privacy
- Informational privacy
R v. Kang-Brown (2008)
-using drug sniffing dogs to detect odor of narcotics (without reasonable grounds for search) is breach of s. 8 rights
-differentiated from the type of “meaningless” information gleaned through Thermal Imaging scan in Tessling
-some reasonable expectation of privacy in this case (personal territory) – though it can be rebutted by reasonable suspicion
R v. A.M. (sniffer dogs invited to school – detect drugs in backpack – search)
-technically a warrantless search of backpack
-sniffer-dog search will be reasonable if the officer has “reasonable grounds to suspect the presence of contraband”
Arrest
Charter S.8 - Freedom from arbitrary arrest or detention
R v. Storrey (1990)
-“a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds.”
- Reasonable and Probable grounds must be:
- Subjectively held (by police officer)
- Objectively seen
Arrest Procedures without a Warrant
-Peace Officer
- Indictable Offence - Can arrest anyone committing any offence or that they suspect has committed an indictable offence (or is about to)
- “Less serious offence” – must have reasonable grounds to suspect public interest considerations are at risk
- public interest CC 495(2)(d) & (E)
- Establish identity of person
- Secure or preserve evidence
- Prevent continuation or repetition of offence
- Prevent person from absconding
-Not Peace Officer (Citizen’s Arrest)
- CC 494 – Citizen’s arrest when:
- someone is committing indictable offence
- reasonable grounds that someone has committed indictable offence and is being freshly pursued by police
- Must deliver the person to police officer as soon as possible
Search Incident to Arrest
Cloutier v. Langlois
upon ARREST the individual affecting the arrest can perform a search with no extra cause
Search (UPON DETENTION) is a Power not a Duty
-Generally to search for weapons or evidence that could be destroyed
-Must be for valid objective:
- Criminal Justice
- Safety of the Police
- Securing Evidence
- Preventing Escape
-Must not be done in an abusive manner
Does not extend to bodily substances DNA as in Stillman
Strip Searches
-Not part of searches incident to arrest R v. Golden
-Constitutionally valid when
- Conducted following lawful arrest
- For the purposes of discovering weapons or evidence related to arrest
- Police establish reasonable and probable grounds
- Conducted in a reasonable manner
-Must be done at police station except in exigent circumstances