Test: Whether It Is in the Public Interest to Do So
1
Exam
When a person is arrested, how to decide whether to take them into custody
Test: whether it is in the public interest to do so
Continuing effects
To obtain evidence
Other factors….
What happens when you take them in?
Within 24 hours they need to have the chance to talk to justice
They can adjourn
Crown can adjourn (for up to 3 days)
S 516
Release/detain – onus is on the Crown (515(10)) – show cause hearing
At bail hearing, 3 grounds on which court may detain
Flight risk
Substantially likely to reoffend (public safety)
Maintaining public confidence in the administration of justice
If released, on bail, what happens if you breach?
Could be charged with a new offence (breach of recognizance)
Warrant for arrest issued (524)
Then brought back and have a new hearing under 524 finding (effectively another bail hearing)
Loose rules (522/523)
If you have more than one outstanding information and detained at bail hearing, are you auto detained on all of them?
Depends on jurisdiction
If from different jurisdictions, no.
When bail hearing on specific information, there may be an order with respect to the information. The other informations are not before the court and therefore not affected by this order – have to either go back to other jurisdiction to deal with those
Can’t be detained on info unless court you are before made that order
Sometimes other jurisdiction will send informations to this court
If detained, there are 5 ways to challenge it
Review at 30 days on summary
Review at 90 on indictable
Supreme court to review it
Crown consent
Once trial begins, court can revisit the question of bail
If the above 5 are not employed and detained person wants to know when they will be released,
Either when acquitted, or
When sentenced, or
Charge is stayed
1. Process:
What are three grounds for detention under 515(10)?
What happens when an accused breaches bail?
If you have more than one information outstanding and you are detained at a bail hearing, are you automatically detained on all of them?
How might a person be released at or before trial if detained?
If none of these methods is employed, when will a person be released?
2. Sentencing
When can a court sentence a person to custody? After finding of guilt and if there are no reasonable alternatives (718.2(e))
718.2 principle that stands above all – proportionality (says gravity of offence should be proportionate to punishment)
What is the overriding or primary principle of sentencing in the Code? (718.1)
When will a penalty under the Criminal Code or other statute be found to be in violation of s. 12?
· So unfit that it is grossly disproportionate
Is deportation to face death penalty a violation of s. 7?
· Only not contrary to Charter under exceptional circumstances
To which offences do conditional sentences still apply?
· When max 2 year jail sentence, no minimum, no firearms, max is 10+ years, not serious personal injury
· 2 prong test:
o Must be able to prove not threat to public safety
o Not contrary to other principles of sentencing
Is available for crimes of violence, no minimum, Crown says ok
When can an appellate court overturn a sentence imposed at trial?
· Need 2 things: (Proulx)
o Error in principle
Eg Failure to consider a relevant factor
Eg Overephasizing one factor on its own
o Leading to sentence that is demonstrably unfit
3. Mental Health:
What happens if a person is found unfit to stand trial?
· Receive treatment for a period of time to see if they become fit
What happens if they’re found NCR?
· If they aren’t getting better, still unfit, where do they go? How to get them home?
o 672(54) go to review board. 2 choices for what to do with them?
Conditional discharge, or absolute discharge
· Absolute discharge not an option - If at hearing the court finds that they are not ever likely to become fit, can grant a Stay (if not likely to pose a danger to society, etc.)
o Every 2 years, Crown needs to establish prima facie case to keep prosecution alive
o 3 choices for what to do with NCR
Absolute discharge
Conditional discharge
Keep in hospital
· Section 16 test for NCR – know it !
o At the time of the offence, accused suffers from disorder
o That renders him incapable of appreciating the nature and quality of the act
o Or knowing that it was wrong
· Before found NCR or unfit, how can you be ordered to get treatment?
o Once you’re found unfit, provision says you need to
o If you won’t voluntarily, how do they do that…
Under Civil Mental Health Act
· Take person to doctor, doctor says treatment
4. Ethics:
In what three circumstances may defence counsel withdraw as counsel three months before trial on a relatively minor matter?
· If breakdown of relationship with client (conflict of interest)
· Not getting paid
· Want you to do something unethical
On the eve of, or during trial, when might she withdraw?
· Ethical dilemma (perjury etc)
· Breakdown of the relationship
5. Participation offences:
What is the difference between counselling an offence that is not committed and conspiracy?
· Counselling an offence not committed:
o AR: inducement/encouraging someone to do something
· Conspiracy:
o AR: needs to be an actual plan to do something
What is the difference between counselling an offence that is committed and abetting a crime under s. 21(1)(c)?
· Counselling an offence that is committed:
o Must actually actively do something to counsel
o Or
o You can counsel and then the event happens 2 weeks later
· Abetting:
o Merely being present
o Or
o Must actually be involved in the offence
What is the mens rea for the offence of being a party under 21(1)(b)?
· Need 2 things:
o Intent to help
o Knowing the general nature of the offence (or wilful blindness) – Briscoe (party to murder case)
· For murder:
o Knowing that the death is likely (or wilful blindness)
Where someone is charged with attempted murder, what is the necessary mens rea?
· Specific intent to do the thing at issue
What is the mens rea for attempt generally?
· Ancio
o Specifically intend to do that thing (meaning to cause death)
Anything below attempt is inadequate (recklessness, willful blindness not enough)
What is the actus reus for counselling a crime that is committed?
· Active inducement/encouragement
o Eg Tell someone to do something but they do it in a slightly different way than planned, AR still made out
What is the actus reus of attempt?
· Steps beyond mere preparation
o Established when they make one step after preparation is complete. How do we know when its complete? (eg case where the guy interviewed women but didn’t actually offer anyone a job –Deutch)
§ Depends upon proximity of completed offence (how many more steps were necessary – space, time, steps to be completed)
When is a person a party as opposed to a mere bystander?
· Something more than mere presence (Jackson – case re grow op)
o Presence that is consistent with innocence
When might mere presence suffice to make a person party?
· Prior knowledge, or there to watch out for eg police, or to encourage
6. Person Injury offences:
Can a person commit an assault without making physical contact?
· By act or gesture, threatening force and having the person reasonable fear that you are actually going to do it
o Eg guy who goes to movie theatre and threatens girl
What is the mens rea for uttering threats?
· Intention that the words will intimidate or instill fear , or simply that it will be taken seriously
· Threat doesn’t necessarily matter what the specific intentions were (objective test)
-what is the mens rea for criminal harassment?
· Knowing the complainant is harassed or being reckless or being wilfully blind
7. Possession offences:
-in Terrence, the court set out the elements of joint possession (4(3)(b)):
· Need 3 elements:
o Knowledge of the nature of the thing
o One of the two has to physically possess it
o Consent
Terrence says there must be some measure of control
You cannot have personal possession under (4(3)(a)) without…?
· Knowledge (need to know that you have it and need to know what it is)
What is the doctrine of recent possession?
· In plain English, without a reasonable explanation can infer part of previous offences (theft, B&E, robbery)
o Eg Campbell - case about girl driving stolen car from hookup with random guy, said she didn’t know was stolen. Crown can draw inference that you knew was stolen because was so close to the itme the crime occurred.
When will it not be applied?
· Can’t draw inference if an explanation is given which “might reasonably be true” (very low threshold)
Due Process
Crime Control v Due Process
What is meant by due process in the American context is synonymous with the Principles of Fundamental Justice in Canada, as laid out by Lamar in BC Motor Vehicle Case. Due process is an old concept with roots back to the Magna Carta. “No man, of what state of condition he be, shall be put out of his lands or tenements nor be taken, nor disinherited, nor put to death, without he being brought to answer by due process”. Due process in Canada is captured in s.7 of the Charter through the words “fundamental justice”. In BC Motor Vehicles, Lamar stated that fundamental justice is entrenched through provisions 8-14 of the Charter, as well as s.7 which describes fundamental justice.
Due process is important because we don’t want social unrest, we don’t want Canada to slip into a dictatorship and because we want to limit state conduct to preserve humanity. Due process is important to limit the state’s conduct so as to protect a minimum level of individual dignity and equality that we associate with being human (Dworkin-like argument).
Due process stands opposite to a crime control model which places an emphasis on crime prevention, victim’s rights, police powers, minimizing procedural hurdles for police, and a finding of factual guilt. The due process model places an emphasis on procedural fairness, defendant’s rights, limiting police powers to avoid oppressive conduct and a finding of legal, not factual guilt.
The Charter protects core human rights by preventing cruel and unusual punishment/treatment as well as preventing arbitrary detainment. The entrenchment of rights in the constitution affected the model in Canada by shifting the criminal process away from the truth seeking function of the court. Due process is not specifically entrenched in the Charter.
Arrest, Detention and Bail
General Points on the Law of Arrest:
The general points on the law of arrest: police may question, but if not detained, people are free to refuse to cooperate. Police can detain where they have a reasonable suspicion tying an individual to an offence and may also detain for investigative purposes. Detention should be brief, with limited authority to search.
When can the police arrest:
A PO may arrest where he has: 1) reasonable grounds to believe an individual has committed or is about to commit an indictable offence, or 2) finds an individual committing any offence, 3) believes a person is subject to an arrest warrant (s.495).
When carrying out an arrest, the PO may exercise search powers incident to the arrest.
When can a citizen arrest:
A citizen can arrest where they have reasonable grounds to believe an individual is committing an indictable offence or has committed either a summary or indictable offence and is being freshly pursued by someone with lawful authority to arrest, he or she may carry out a citizen’s arrest (s.494).
A PO or citizen may use as much force as is reasonably necessary to effect a lawful arrest (s.25(1)).
Martin:S.494: this section describes the power of any person, whether or not he is a peace officer, to arrest another person without a warrant. Subsection (1) grants to every person the authority to arrest without warrant another person in two circumstances. If a person is found committing an indictable offence, he may be arrested without a warrant by any other person. A person who is not a peace officer may also arrest without a warrant another person whom the individual making the arrest has reasonable grounds to believe has committed a criminal offence and has escaped from, and is being freshly pursued by persons with the lawful authority to make the arrest. Subsection (2) states that anyone who is either owner of, in lawful possession of, or has been authorized by the owner of the person in lawful possession of property, may arrest without a warrant a person whom he finds committing a criminal offence in relation to or on that property. Subsection (3) requires that any person, other than a peace officer, who arrests another person without a warrant, must deliver the arrested person forthwith to a police officer.
The arrest of a citizen by another private citizen is a governmental function to which the Charter applies and thus a search incident to that arrest must comply with s.8 of the Charter (Lerke). A citizen must have reasonable grounds to believe that a person was apparently in the process of committing an indictable offence in his or her presence (Abel). “Forthwith” does not mean instantly but merely as soon as is reasonably practicable under all the circumstances (Cunningham).
After Arrest
Once arrested, section 495(2) and 496 direct that in the case of summary, hybrid or section 553 offences (those in the absolute jurisdiction of the Provincial Court), police should release a person on an appearance notice (with or without conditions) unless the officer has reasonable grounds to believe that the person’s continued detention is necessary to ensure their appearance in court, or it is necessary in the “public interest” (ex: to establish ID, preserve evidence, prevent continuation of an offence, or for safety reasons).
Martin:S.495: Subsection (2) limits the powers of arrest without warrant available to a peace officer. A peace officer shall not arrest a person without warrant for an indictable offence within the absolute jurisdiction of a provincial court judge, for a Crown election offence, or for a summary conviction offence, in any of the circumstances set out in subsection 2(d) and (e). In other words, the peace officer should arrest without warrant persons committing the offences listed in paras. (a), (b) or (c) only where it is necessary to establish the identity of the person, to preserve evidence of the offence, to prevent the continuation of or repetition of the offence, or to secure the attendance of the accused in court.
Where an officer does not arrest the person by virtue of s.495(2) because the accused is alleged to have committed a hybrid offence, a summary conviction offence or an offence listed in s.553 and there is not cause for arrest to, for example, establish identity, preserve evidence, prevent commission of an offence, or ensure attendance in court, then he shall issue an appearance notice under s. 496. The officer may release not only for the offences described in s.495(2) but for any offence punishable by imprisonment for five years or less.
S.496: This section authorizes a peace officer to issue an appearance notice where the officer decides not to arrest a person on the basis of subsection 495(2).
If the police do not release a person immediately after arrest, they may do so later under s. 497, applying the same test for public interest in s. 495(2), plus the consideration of whether detention is necessary to protect a victim or witness.
Martin:S.497: This section sets out the powers of a police officer to release a person who has been arrested without a warrant. Subsection (1) provides that where a peace officer arrests a person without a warrant for an offence set out in s.496(a), the officer must, as soon as practicable, release the person from custody with the intention of issuing a summons. The peace officer may also decide to issue an appearance notice to the person and then release him. However, the officer shall not release the accused if the officer believes on reasonable grounds that the accused’s detention is necessary in the public interest or because the accused will fail attend court.
Once returned to the station, an officer in charge may release a person arrested in a wider range of offences than those set out in s.495(2), to also include offences punishable by up to 5 years in prison, applying the same test as in 497, but in this case, the office can impose a more restrictive set of conditions (a cash recognizance of up to $500).
Section 503 (2.1) allows for “police bail” release on any offence aside from those in s.469 (murder) on a range of possible convictions (similar to those imposable by a judge at a bail hearing). If a person is not released, they must be brought before a justice or judge within 24 hours or as soon as is practicable (s.503).
Martin:S.503: Subsection (2) provides that where a police officer or officer in charge is satisfied that a person described in subsection (1) should be released upon conditions, that officer may make such a release in accordance with s. 498(1)(b) to (d). In addition, the officer can require the accused to enter into an undertaking containing the conditions set out in subsection 2.1. Note in particular that the officer may impose conditions necessary to ensure public safety and security of any victims or witness.
Note that police may only enter a dwelling house without a warrant in order to carry out an arrest if there are exigent circumstances – meaning, in this case, imminent danger of bodily harm or death, or where there is reason to believe that entry is necessary to prevent against the imminent loss or destruction of evidence of an indictable offence (s. 529.3).
Martin:S.529.3: This section provides statutory authority for a police officer to enter a dwelling-house to effect an arrest although the officer does not have warrant or specific authorization from a judicial official to enter. This section defines some of the circumstances in which warrantless entry may be made. Subsection (2) defines certain exigent circumstances justifying the warrantless entry. They include where the officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death or where the officer has reasonable grounds to believe that entry is necessary to prevent the imminent loss or destruction of evidence. Note the different standards of belief depending on the reason for entry.
If an arrest or detention is carried out unlawfully or without authority or is unreasonable, it violates section 9 of the Charter (and possibly also s7, 8, and 10).
Safeguards on arrest:
Police cannot arrest without reasonable and probable cause. Safeguards that are in place to ensure that a person is not arrested arbitrarily include: that you need a warrant, reasonable or probable grounds and that you have to deal with Charter rights protection (s.9 protects against unnecessary state interference). The CC mandates that a person be released after arrest unless it is “necessary in the public interest” because of s.7 charter rights and the right to be innocent until proven guilty.