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)

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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).
== 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.
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