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Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"
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Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) (view source)
Revision as of 17:57, 29 December 2020
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"Public interest" includes the need to establish the person's identity, the need to secure and preserve evidence, and the need to prevent the continuation or repetition of an offence or the commission of another offence. | "Public interest" includes the need to establish the person's identity, the need to secure and preserve evidence, and the need to prevent the continuation or repetition of an offence or the commission of another offence. | ||
An accused who is not arrested should be released with an appearance notice. Note that there are instances where even though an arrest was unlawful, the person’s detention will not be deemed arbitrary. See sections 8, 9, 10, and 11 of the Charter for relevant constitutional provisions. | |||
Regular citizens also have a right to detain people they see committing a crime. Under s 494(1) of the Criminal Code, anyone can arrest a person without warrant if they find the person committing an indictable offence, have reasonable grounds to believe the person has committed an indictable offence, or if they see a person being pursued by anyone who has lawful authority to arrest the person. Section 494(2), meanwhile, gives store detectives the authority to arrest shoplifters. Under this section, a property owner or an agent working on the owner’s behalf may arrest without warrant any person who is committing a criminal offence in relation to the owner’s property. | |||
=== 2. The ''Criminal Code'': the law of arrest and release === | === 2. The ''Criminal Code'': the law of arrest and release === | ||
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== F. Search and seizure: s 8 == | == F. Search and seizure: s 8 == | ||
Section 8 – Right to be secure against unreasonable search and seizure. | Section 8 – Right to be secure against unreasonable search and seizure. | ||
A breach of an accused’s rights against unreasonable search and seizure may result in the exclusion of evidence obtained during a search. | |||
=== 1. Search of premises, vehicles, and interception of private communications === | === 1. Search of premises, vehicles, and interception of private communications === | ||
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A warrantless search is presumed to be unreasonable and the onus is on the party seeking to justify the search and seizure to rebut this presumption: see ''Hunter v Southam Inc'', [1984], 2 SCR 145. The Supreme Court, however, has recognised several situations where authorities may conduct a search without warrants – for example where evidence of the offence is in plain view, or where the occupant of the premises has consented to the search. | A warrantless search is presumed to be unreasonable and the onus is on the party seeking to justify the search and seizure to rebut this presumption: see ''Hunter v Southam Inc'', [1984], 2 SCR 145. The Supreme Court, however, has recognised several situations where authorities may conduct a search without warrants – for example where evidence of the offence is in plain view, or where the occupant of the premises has consented to the search. | ||
A search warrant authorizes the police to enter and search a specific location during a specific period of time and an occupant of the premises to be searched has a right to view the search warrant before the search is conducted. An occupant should check the address on the warrant and the time that the search is authorized to ensure that the warrant actually authorizes the search. Unless the warrant states that the police may enter and search your specific address during the time the police arrive at your address then the occupant should point out to the police that the warrant is either not for the occupants' address or has expired and may refuse police access to the residence. If the police nonetheless insist on entering the location and searching it, there is little practically speaking that can be done to stop the search while it is occurring, there may however be a civil right of action against them in trespass and a strong argument in any subsequent criminal case that | A search warrant authorizes the police to enter and search a specific location during a specific period of time and an occupant of the premises to be searched has a right to view the search warrant before the search is conducted. An occupant should check the address on the warrant and the time that the search is authorized to ensure that the warrant actually authorizes the search. Unless the warrant states that the police may enter and search your specific address during the time the police arrive at your address then the occupant should point out to the police that the warrant is either not for the occupants' address or has expired and may refuse police access to the residence. If the police nonetheless insist on entering the location and searching it, there is little practically speaking that can be done to stop the search while it is occurring, there may however be a civil right of action against them in trespass and a strong argument in any subsequent criminal case that any items seized should be excluded from evidence. | ||
=== 2. Search after valid arrest and search of person === | === 2. Search after valid arrest and search of person === | ||
At common law, upon a lawful arrest an officer acquires an attendant right to search for officer safety and evidence (see ''R v Klimchuk'', [1991) 67 CCC (3d) 385 (BCCA). (Please review the section on Lawful Arrest above). | At common law, upon a lawful arrest an officer acquires an attendant right to search for officer safety and evidence (see ''R v Klimchuk'', [1991) 67 CCC (3d) 385 (BCCA). (Please review the section on Lawful Arrest above). | ||
Where no arrest has taken place, a peace officer may also acquire a more limited right to search for officer safety. If an officer has reasonable grounds to suspect that an individual has a specific | Where no arrest has taken place, a peace officer may also acquire a more limited right to search for officer safety. If an officer has reasonable grounds to suspect that an individual has a specific connection to a crime and detains that individual for further investigation, then incidental to this investigative detention, the officer may engage in a limited pat-down search confined in scope to locate weapons; see ''R v Mann'', [2004] 3 SCR 59. | ||
For more information on searches of the person, see ''R v Debot'' (1989), 52 CCC (3d) 193 (SCC), ''R v Ferris'', [1998] BCJ No 1415 (CA), and ''R v Simmons'' (1988), 45 CCC (3d) 296 (SCC). | For more information on searches of the person, see ''R v Debot'' (1989), 52 CCC (3d) 193 (SCC), ''R v Ferris'', [1998] BCJ No 1415 (CA), and ''R v Simmons'' (1988), 45 CCC (3d) 296 (SCC). | ||
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=== 4. Exception to right against self-incrimination: breathalyser sample === | === 4. Exception to right against self-incrimination: breathalyser sample === | ||
Where a police officer, on reasonable and probable grounds, believes a person has alcohol or a drug in their system, that officer may require a sample of breath to be produced. A person who refuses to comply with a valid breath demand without a reasonable excuse for refusing may | Where a police officer, on reasonable and probable grounds, believes a person has alcohol or a drug in their system, that officer may require a sample of breath to be produced. A person who refuses to comply with a valid breath demand without a reasonable excuse for refusing may face criminal charges for failure to provide a breath sample. See Chapter 13: Motor Vehicle Law for more information. | ||
== H. Admission of evidence obtained illegally (24(2)) == | == H. Admission of evidence obtained illegally (24(2)) == | ||
