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

# 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).

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 ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96068_01 Constitutional Question Act]'', RSBC 1996, c. 68, which requires that notice of this challenge be given to both provincial and federal prosecutors.

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

:'''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 they had no choice but to comply. ''See [https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html?searchUrlHash=AAAAAQAJciB2IGdyYW50AAAAAAE&resultIndex=1 R v Grant]'', [2009] 2 SCR 353, for more details.

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 accused was arbitrarily detained contrary to s 9 of the ''Charter''. This may result in exclusion of evidence such as items seized during the arrest.  

The police may arrest without warrant any person who is committing a criminal offence of any type or who they believe on reasonable and probable grounds has committed or is about to commit an indictable offence (''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]'', s 495(1)). The police officer’s belief must be more than a mere “suspicion”.

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 ''[https://www.canlii.org/en/ca/scc/doc/1988/1988canlii44/1988canlii44.html?searchUrlHash=AAAAAQALciB2IHN0ZXZlbnMAAAAAAQ&resultIndex=2 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 ''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]''.

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.

In general, police must have a search warrant to search a person’s premises (see ''[https://www.canlii.org/en/ca/scc/doc/1997/1997canlii342/1997canlii342.html?searchUrlHash=AAAAAQAKciB2IGZlZW5leQAAAAAB&resultIndex=1 R v Feeney]'', [1997] 2 SCR 13). However, there are exceptions where exigent circumstances exist to allow warrantless searches.   

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 they may therefore 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.

At common law, upon a lawful arrest, an officer acquires an attendant right to search the arrestee for officer safety and evidence (see ''[https://www.canlii.org/en/bc/bcca/doc/1991/1991canlii3958/1991canlii3958.html?searchUrlHash=AAAAAQAMciB2IGtsaW1jaHVrAAAAAAE&resultIndex=1 R v Klimchuk]'', [1991] 67 CCC (3d) 385 (BCCA)). Such a search requires a lawful arrest and is subject to a challenge if the arrest was not lawful (see '''Section E''' on Lawful Arrest, above).

For more information on searches of the person, see ''[https://www.canlii.org/en/ca/scc/doc/1989/1989canlii13/1989canlii13.html?searchUrlHash=AAAAAQAJciB2IGRlYm90AAAAAAE&resultIndex=1 R v Debot]'' [1989] 2 SCR 1140, ''[https://www.canlii.org/en/bc/bcca/doc/1998/1998canlii5926/1998canlii5926.html?searchUrlHash=AAAAAQAKciB2IGZlcnJpcwAAAAAB&resultIndex=1 R v Ferris]'' [1998] BCJ No 1415 (CA), and ''[https://www.canlii.org/en/ca/scc/doc/1988/1988canlii12/1988canlii12.html?searchUrlHash=AAAAAQALciB2IHNpbW1vbnMAAAAAAQ&resultIndex=1 R v Simmons]'' [1988] 2 SCR 495.

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).  

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.

The decision of the Supreme Court of Canada in ''[https://www.canlii.org/en/ca/scc/doc/1978/1978canlii160/1978canlii160.html?searchUrlHash=AAAAAQARbW9vcmUgdiB0aGUgcXVlZW4AAAAAAQ&resultIndex=1 Moore v The Queen]'', [1979] 1 SCR 195 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, the police may do so lawfully if it is necessary to establish the identity of the accused.

Various federal statutes have provisions requiring that questions be answered: see ''[https://laws-lois.justice.gc.ca/eng/acts/c-5/ Canada Evidence Act]'', RSC 1985, c C-5; ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96124_01 BC Evidence Act]'', RSBC 1996 c 124; ''[https://laws-lois.justice.gc.ca/eng/acts/e-14/index.html Excise Act]'', RSC 1985, c E-13; ''[https://laws-lois.justice.gc.ca/eng/acts/i-3.3/ Income Tax Act]'', RSC 1985, c 1 (5th Supp.); ''[https://laws-lois.justice.gc.ca/eng/acts/i-2.5/ Immigration and Refugee Protection Act]'', SC 2001, c 27; and ''[https://laws-lois.justice.gc.ca/eng/acts/b-3/ Bankruptcy and Insolvency Act]'', RSC 1985, c B-3.