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

{{REVIEWED LSLAP | date= August 1, 2023}}

Procedural and substantive criminal law has been shaped and expanded by the [https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html ''Canadian Charter of Rights and Freedoms''] since its introduction in 1982. Consideration of sections 7 to 15 of the Charter, in addition to the remedial section 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 areas such 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 three types of relief from ''Charter'' violating conduct of government agencies. First, where a law is found to violate the ''Charter'', section 52 of the [https://laws-lois.justice.gc.ca/eng/const/ ''Constitution Act''] applies to render the law “of no force or effect”. Second, 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 section 24(1) of the ''Charter'' for an appropriate remedy. Third, if the case of evidence was obtained in contravention of the ''Charter'', that evidence could be excluded from a judicial proceeding by the operation of section 24(2).

 

Section 8 of the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96068_01 ''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 not required by the ''Constitutional Question Act'', but a failure to alert the Crown 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 with remedies adversely affecting the party who failed to provide adequate notice to the other party.

Section 1 primarily arises in cases where a litigant is seeking to have a law declared of no force or effect. 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 a balance of probabilities.

The Oakes Test ('[https://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html?searchUrlHash=AAAAAQAJciB2IG9ha2VzAAAAAAE&resultIndex=1 'R v Oakes'', [1986<nowiki>]</nowiki> 1 SCR 103]) is the legal test to be applied to Section 1 ''Charter'' analysis. The Oakes Test sets out the following criteria that must '''all''' be satisfied to justify a ''Charter'' violation:  

# 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 must constitute a minimal impairment of that ''Charter'' right; and

# the harm done by the means chosen must 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) ==

In addition to the right to make full answer and defence, any person “has the right to be tried within a reasonable time”. The decision by the Supreme Court of Canada in [https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html?searchUrlHash=AAAAAQAKciB2IGpvcmRhbgAAAAAB&resultIndex=1 ''R v Jordan'', 2016 SCC 27], has addressed the issue of what constitutes a “reasonable time”. ''R v Jordan'' created presumptive ceilings, beyond which any delay is presumed to be unreasonable, of 18 months for matters proceeding in provincial courts, and 30 months for matters proceeding in superior courts.

The remedy for the state’s breach of one’s section 11(b) rights is a judicial stay of proceedings pursuant to section 24(1) of the ''Charter''. As previously mentioned, notice is required.

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

The police may arrest any person without warrant who is actively 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 (''Criminal Code'', s 495(1)). The police officer’s belief must be reasonably grounded and more than a mere “suspicion”.

However, a police officer must not arrest a person for a summary offence, hybrid offence, or indictable offence, listed under section 553 of the ''Criminal Code'' unless they are also satisfied that:

* there are reasonable and probable grounds to believe that the person will fail to attend court (''Criminal Code'', s 495(2)).

Regular citizens also have the same rights to detain people pursuant to the criminal code. Under section 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) 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.

Some of the relevant sections of the ''Criminal Code'' are:

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 SCR 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''.

 

 

 

 

* To 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 (''[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 R v Brydges]'', [1990] 1 SCR 190).

 

 

Under section 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 ([https://www.canlii.org/en/ca/scc/doc/1987/1987canlii67/1987canlii67.html?searchUrlHash=AAAAAQAMciB2IG1hbm5pbmVuAAAAAAE&resultIndex=1 ''R v Manninen'' [1987<nowiki>]</nowiki> 1 SCR 1233]). The arrested person has both the right to Legal Aid counsel and the right to be informed of this right: see [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 ''R v Brydges'' [1990<nowiki>]</nowiki> 1 SCR 190] and [https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html?searchUrlHash=AAAAAQALciB2IHByb3NwZXIAAAAAAQ&resultIndex=1 ''R v Prosper'' [1994<nowiki>]</nowiki> 3 SCR 236]. Some exceptions regarding the timing and access to these rights exist.

 

 

:'''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. It is available toll-free at

1 (800) 458-5500.

=== 1. Lawful Police Searches without a search warrant ===

In general, police must have a search warrant to search a person’s premises, vehicle, or person (see [https://www.canlii.org/en/ca/scc/doc/1997/1997canlii342/1997canlii342.html?searchUrlHash=AAAAAQAKciB2IGZlZW5leQAAAAAB&resultIndex=1 ''R v Feeney'', [1997<nowiki>]</nowiki> 2 SCR 13]). However, there are exceptions where exigent circumstances exist to allow warrantless searches. In addition, there is a recognized police power to conduct a search incidental to a valid arrest of an arrested person and the area around where that person was arrested.   

 

 

 

 

A search warrant authorizes the police to enter and search a specific location during a specific period of time. 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.

A search warrant should only be issued if the police have reasonable grounds to believe that evidence of a criminal offence will be located at the place to be searched. To obtain a search warrant, a police officer will swear an affidavit setting out why they believe there are reasonable grounds and make an ex parte application for the warrant to a judge or justice.