Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"

{{LSLAP Manual TOC|expanded = criminal}}

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 sets out several criteria to determine if a violation can be justified under section 1:  

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

The appropriate remedy for the State’s breach of one’s s. 11(b) rights is a judicial stay of proceedings arising from s. 24(1) of the ''Charter''. One can make a ''Charter'' challenge for the breach of s. 11(b) under the ''Constitutional Question Act'', RSBC 1996, c. 68, which requires that notice of this challenge be given to both Provincial and Federal prosecutors.  

* to be informed of the right to remain silent;

* to retain and instruct counsel without delay and to be informed of that right; and

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 (see ''R. v. Grant'', below).  

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.

== E. Lawful arrest ==

* ss 511 – 514: warrant to arrest.

== F. Search and seizure: s 8 ==

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

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.

{| class="wikitable"

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 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 authorizing justice.

|}

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 a specific address during the time the police arrive at the occupant’s address then the occupant should point out to the police that the warrant is either not for the occupant’s 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 ===

== G. Right to remain silent: s 7 ==

'''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.

=== 2. The modern confessions rule: ''Oickle'' ===

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

A person who commits a pedestrian offence must state their 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)).

==== c) Federal statutes ====

(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 the proceedings would bring the administration of justice into disrepute.  

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 only applies to the person whose rights were breached (i.e., the court may say that the drugs found during the illegal search cannot 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.  

=== 1. Other Charter Remedies Obtained through S. 24(1) ===

{{LSLAP Manual Navbox|type=chapters1-7}}