Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)

A. Impact of the Charter

Procedural and substantive criminal law has been shaped and expanded by the Charter since its introduction in 1982. Consideration of sections 7 – 15 of the Charter, in addition to the remedial s 24, is required to properly understand the constitutional guarantees that profoundly influence criminal law.

A compilation of Charter decisions is available at the UBC Law Library, and includes decisions in such areas as arrest procedures, the right to counsel, the admissibility of illegally obtained evidence at trial, search and seizure, and the right to be presumed innocent until proven guilty.

The Charter provides for two types of sanctions. First, where a law is found to violate the Charter, section 52 of the Constitution Act applies to render the law "of no force or effect". Where an individual's right or freedom has been infringed upon, not by impugned legislation but by the acts of an agent for the state (e.g. the police), the aggrieved person may apply under s 24(1) of the Charter for an appropriate remedy. In the case of illegally obtained evidence, that evidence could be excluded by the operation of section 24(2).

Section 8 of the Constitutional Question Act, RSBC 1996, c 68 requires that 14 days' notice be given to opposing counsel where the constitutional validity of a law is challenged, or where an application is made for a constitutional remedy under section 24(1) of the Charter. Note: To challenge legislation or seek a remedy under section 24(1) separate notice must be given to both provincial Crown Counsel and the federal government. For an application to exclude evidence under section 24(2) of the Charter notice is typically given in the arraignment report. Note: notice to seek to exclude evidence under section 24(2) of the Charter is not required by the Constitutional Question Act, but a failure to alert Crown Counsel in a timely manner to an application to exclude evidence under section 24(2) of the Charter has been met in a number of decisions with the court applying its considerable powers to control its own processes against the party who failed to provide adequate notice.

B. Section 1 of the Charter

The Canadian Charter of Rights and Freedoms, enacted in 1982, changed criminal law so that an accused had constitutionally guaranteed rights that could not be infringed unless the government could show that such an infringement was demonstrably justified in a free and democratic society.

Section 1 of the Charter is often referred to as the "reasonable limits clause" because it is the section that can be used to justify a limitation on a person's Charter rights. Charter rights are not absolute and can be infringed if the Courts determine that the infringement is reasonably justified.

Section 1 arises in cases where a Charter infringement is being argued. In order for the Charter infringement to be justified, the government has to prove to a court that its actions satisfy the steps in a section 1 analysis. The standard of proof is the civil standard – on the balance of probabilities, which is not as difficult to prove as the criminal standard of beyond a reasonable doubt.

The Oakes Test is a legal test created by the Supreme Court of Canada in the case R v Oakes, [1986] 1 SCR 103. R v Oakes provided the Court with the opportunity to interpret the wording of section 1 of the Charter and to explain how section 1 would apply to a case. The result was the Oakes Test – a test that is used every time a Charter violation is found.

The Oakes test sets out several criteria to determine if a violation can be justified under section 1.

• There must be a sufficiently important objective to warrant the overriding of the Charter right.
• There must be a rational connection between the objective (i.e. the policy) and the means chosen (i.e. the law).
• The means chosen should constitute a minimal impairment of that Charter right, and
• The harm done by the means chosen should be proportionate to the government's objective (e.g. the more harmful the violation, the more important the objective must be).

C. Right to a trial within a reasonable time: s 11(b)

Section 11 – Any person charged with an offence has the right: (b) to be tried within a reasonable time;

In addition to the right to make full answer and defence, any person "has the right to be tried within a reasonable time". When assessing what constitutes "a reasonable time", a judge will look at (i.) the actions of the accused, (ii.) any prejudice to the accused caused by the delay, (iii.) institutional delay, (iv.) the interests designed to be protected, and (v.) the relative seriousness of the charge, in order to determine whether the administration of justice would be brought into disrepute by allowing the prosecution to continue in light of the delay (see R v Askov, [1990] 2 SCR 1199, R v Morin, [1992] 1 SCR 771, and R v Fagan, 1998 CanLII 5018 (BCCA)).

D. Finding legal counsel and other assistance where person is arrested and detained: s 10(b)

Section 10 – Right on arrest or detention: (b) to retain and instruct counsel without delay and to be informed of that right;

If an accused has been denied bail (detained), it is usually a sign that the offence is serious. LSLAP cannot act for them and the client should be referred to professional counsel. Nevertheless, it is important to have some knowledge of Charter issues relating to arrest and detention.

Under section 10 of the Charter, everyone has the right on arrest or detention:

• to be informed promptly of the reasons for that arrest or detention,
• to be informed of the right to remain silent,
• to retain and instruct counsel without delay and to be informed of that right, and
• a detainee should be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel (R v Brydges [1990] 1 SCR 190).

The wording of the Charter suggests that the right to counsel is not absolute, but rather that it is available only to a person who is under arrest or in detention. The Charter right to counsel is thus triggered where a person is arrested or detained (R. v.Grant, above).

Under s 10(b), the arresting officer has a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel (R v Manninen (1987), 34 CCC (3d) 385 SCC)). The arrested person has both the right to Legal Aid counsel and the right to be informed of this right: see R v Brydges and R v Prosper (1994), 33 CR (4th) 85 (SCC).

Issues may arise at trial when an accused gave a statement to the police or provided bodily samples of some sort. In such cases, defence counsel should seek to have the evidence excluded under section 24(2) of the Charter.

Note: Brydges' Line is a province-wide service that is available for arrested persons 24 hours a day, 7 days a week. A lawyer is always available to speak to the person for free.

Note: Detention under sections 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. See R v Grant, [2009] 2 SCR 353, for more details.

E. Lawful arrest

Section 9 – Right not to be arbitrarily detained or imprisoned.

An unlawful arrest may vitiate the authority of a search or may be the basis of a Charter argument that the client was arbitrarily detained contrary to s 9 of the Charter.

1. Police powers

The police may arrest without warrant any person who is committing an offence of any type or who they believe on reasonable and probable grounds has committed or is about to commit an indictable offence (Criminal Code, s 495(1)). The police officer's belief must be more than a mere "suspicion".

Where the police believe on reasonable and probable grounds that a person has committed or is about to commit a summary offence, a hybrid offence, or an indictable offence listed in section 553 of the Criminal Code, that person cannot be arrested without warrant unless:

• a) the public interest requires it, and
• b)there are reasonable and probable grounds to believe that the person will fail to attend court (Criminal Code, s 495(2)).

"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.

A client 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

Some of the relevant sections of the Code are:

• a) ss 25 – 27: use of force, liability for excess force, use of force must be reasonably necessary,
• b) ss 494 and 495: arrest without warrant by private citizen, police officers,
• c) ss 496, 497, 498 and 499: appearance notice, release from custody,
• d) s 501: appearance notice, promise to appear, recognizance,
• e) ss 503 and 515: judicial interim release (bail),
• f) ss 145, 498 and 510: failure to appear, and
• g) ss 511 – 514: warrant to arrest.

Sections 7, 10, and 24 of the Charter have some measure of effect on arrest procedure, particularly in relation to the conduct of arresting officers and the admissibility of evidence: see R. v.Stevens, [1988] 1 S.C.R. 1153. There is also well-developed case law on arrest procedure. See Christie v Leachinsky, [1947] AC 573 (HL) and section 29 of the Criminal Code.

F. Search and seizure: s 8

Section 8 – Right to be secure against unreasonable search and seizure.

1. Search of premises, vehicles, and interception of private communications

In general, police must have a search warrant to search a person's premises (see R v Feeney, [1997] 2 SCR 13). However, there are exceptions where exigent circumstances exist to allow warrantless searches.

If a person can establish a reasonable expectation of privacy over the area searched, then a valid search and seizure requires prior authorization by a Justice of the Peace, who must be satisfied that reasonable grounds exist to believe that an offence has been committed, and that evidence of that offence will be found in the place being searched.

As a general rule, a search of premises must be based on reasonable grounds. If a search is conducted merely on a suspicion, the search will likely constitute a violation of section 8 of the Charter. In the case of R v Kokesch (1990), 61 CCC (3d) 207 (SCC), the search was held to be unreasonable even though a warrant had been issued, because the basis for the warrant was unreasonable and an unlawful search of the premises, based merely on suspicion. As a result, the search warrant was struck down and the search was deemed warrantless.

Practice Recommendation - Challenging a Search Warrant

To challenge a search warrant one should first seek disclosure of the Information to Obtain (ITO), which is the affidavit sworn in support of obtaining the search warrant. When assessing the ITO, first determine if the affidavits filed in support of the warrant establish reasonable grounds for searching the location, based on the contents of the ITO (assuming the contents are true). If the contents of the ITO do not establish reasonable grounds to believe items relevant to an offence will likely be found in the search location then an application may be made as a facial validity challenge to the ITO. If the ITO on its face provides sufficient grounds to issue a warrant then the ITO must be compared to the information the police had available at the time they applied for the search warrant to assess whether the police made full, fair and frank disclosure of all material relevant to the request to search that location. The ITO as an ex-parte application should provide full fair and frank disclosure of all material facts relevant to the police investigation and knowledge of the place searched at the time the ITO was sworn. If there are important errors or omissions in the facts stated in the ITO then an application can be made to cross examine the affiant of the ITO as a sub-facial challenge to the ITO, in an effort to show either that had the true state of affairs been disclosed in the ITO, the warrant would not have been issued or that the police intentionally misled the authorising justice. See R v Garofoli [1990] 2 SCR 1421 and R v Araujo [2000] SCC 65 for more information on challenging search warrants.

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 any items seized should be excluded from evidence.

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).

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).

G. Right to remain silent: s 7

Section 7 – Right to life, liberty, and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (fundamental justice includes the ability to make a full answer and defence, the right to silence, and the right to a fair trial, meaning that there is a right to Crown disclosure).

1. General right of silence

There is a basic right to remain silent when encountering police officers that applies before and after arrest. A police officer has no right to take a person to the police station for questioning unless that person has been arrested or goes voluntarily.

An accused has the right to remain silent when questioned after arrest. This silence cannot be used in court to imply guilt – an accused is protected from self-incrimination by silence. The police must inform the accused of the right to remain silent and that anything he or she does say may be used as evidence.

An accused should be further advised that when they are being questioned any conversation with police can only hurt them. Police will usually ask the accused for "their side of the story". What police are looking to obtain are admissions like "I was there, but I didn't do that". This would be a confession that the accused was present at the scene, which the Crown may not otherwise be able to prove.

It is best for an accused to say nothing to the police until after consulting a lawyer. This applies even when an accused plans to plead guilty, because there may be a valid defence to the charge that the accused does not know about. For further information, see R v Hebert (1990), 57 CCC (3d) 1 (SCC).

2. The modern confessions rule: Oickle

The modern confessions rule is outlined in R v Oickle [2000] 2 SCR 3. A confession or admission to a police officer (or other authority figure like transit police or private security officers) by an accused will not admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness. The burden of proving voluntariness falls on the Crown to prove beyond a reasonable doubt. It is the job of defence counsel to raise a reasonable doubt as to the voluntariness of the statement Consider all relevant factors to determine whether the confession was voluntary.

When arguing that a confession was not voluntary, consider the following:

• a) Threats or promises: fear of prejudice (if the accused was told "it would be better to confess") or hope of advantage (this does not have to be aimed at the accused, but can entail promises of reducing the charges),
• b) Oppression: this includes subjecting the accused to inhumane conditions, depriving of food, clothing, water, sleep, medical attention, counsel, or prolonged intimidating questioning,
• c) Operating mind: whether the accused knew what he was saying and that it could be used against him, and
• d) Other police trickery: police may be persistent and accusatorial but not hostile, aggressive and intimidating to the point where the community may be shocked by police actions.

3. Exceptions to the general right of silence

a) Motor vehicle drivers

Pursuant to section 73 of the Motor Vehicle Act, the driver (not passenger) of a motor vehicle must stop when asked to do so by a readily identifiable police officer and give his or her name and address and that of the vehicle's owner.

b) Pedestrian offence

A person who commits a pedestrian offence must state his or her name and address when asked by a police officer or that person may be subject to arrest (City of Vancouver, By-law No 2849, Street and Traffic By-law (10 May 2005)).

The decision of the Supreme Court of Canada in Moorev The Queen (1978), 43 CCC (2d) 83 (SCC) suggests that the same is true for offences committed while riding a bicycle. While the police have no power to arrest a person for this type of summary conviction offence, they may do so lawfully if it is necessary to establish the identity of the accused.

c) Federal statutes

Various federal statutes have provisions requiring that questions be answered: see Canada Evidence Act; BC Evidence Act, RSBC 1996 c 124; Excise Act, RSC 1985, c E-13; Income Tax Act; Immigration and Refugee Protection Act, SC 2001, c 27; and Bankruptcy and Insolvency Act, RSC 1985, c B-3.

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 ace 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))

Section 24 – (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 this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute.

Section 24 of the Canadian Charter of Rights and Freedoms provides remedies to those whose Charter rights have been violated. The burden lies on the applicant to establish a Charter violation. The standard is based on a balance of probabilities. Once the Charter violation is proven, the focus shifts on matters concerning the possible effects on the fairness of the trial if the evidence was admitted. The three factors to be balanced in order to determine if the evidence should be excluded are: i) the seriousness of the Charter infringing state conduct, ii) the impact of the Charter breach on the accused’s interest, and iii) society’s interest on the adjudication of the case on its merits (R v Grant). The burden is on the accused to establish on a balance of probabilities that evidence should be excluded under section 24(2). See R v Harrison 2009 SCC 34, [2009] 2 SCR 494 for more information on the section 24(2) test.

The type of remedy a court gives normally depends on the type of government action that violates the Charter. If a government official took the action – for example, a police officer conducted an unreasonable search – the court will give an individual remedy that helps just the victim of the search (in that example, the court may say that the drugs found during the illegal search can't be used as evidence in the criminal trial. This helps the accused person, but it doesn't change the law for anyone else). In other cases, the court may be able to do something else, like stop a prosecution (a judicial stay of proceedings), order one side to pay the other side’s legal costs, or declare that certain rights were violated.

It is good practice to advise the Crown ahead of time before making a Charter argument. In the Charter notice the clinician should provide the Crown with sufficient particulars of the argument, including the alleged breach, the remedy sought, and the witnesses required for the application (Voir Dire). Cite cases on which the clinician intends to rely.