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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)
Revision as of 19:26, 23 August 2023
, 19:26, 23 August 2023no edit summary
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| To challenge a search warrant, the defence/accused should first seek disclosure of the Information to Obtain (ITO), which is the affidavit sworn in support of obtaining the search warrant. | | To challenge a search warrant, the defence/accused should first seek disclosure of the Information to Obtain (ITO), which is the affidavit sworn in support of obtaining the search warrant. | ||
There are three ways to | There are three ways to challenge the validity of a warrant issued on the strength of the ITO: | ||
# Facially Invalid: 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. | # Facially Invalid: 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. | ||
# Facially Valid, but with insufficient factual grounding | # Facially Valid, but with insufficient factual grounding: If the ITO does not reflect the true state of the police investigation at the time the ITO was drafted, and those omissions or mistakes were material to the issuance of the warrant, an application can be made. | ||
# Facially Valid with Sufficient Grounds, but the police engaged in an abusive process in obtaining the ITO. | # Facially Valid with Sufficient Grounds, but the police engaged in an abusive process in obtaining the ITO. | ||
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). | 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 authorising justice. | ||
See | |||
See '[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii52/1990canlii52.html?searchUrlHash=AAAAAQAMciB2IGdhcm9mb2xpAAAAAAE&resultIndex=1 'R v Garofoli'' [1990<nowiki>]</nowiki> 2 SCR 1421] and [https://www.canlii.org/en/ca/scc/doc/2000/2000scc65/2000scc65.html?searchUrlHash=AAAAAQAKciB2IGFyYXVqbwAAAAAB&resultIndex=1 ''R v Araujo'' [2000<nowiki>]</nowiki> 2 SCR 992] for more information on challenging search warrants. | |||
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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. | 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. | ||
== G. Right to Remain Silent: s 7 == | == G. Right to Remain Silent: s 7 == | ||
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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. | 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 they do say may be used as evidence. | 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 they do 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”. Police are looking to obtain 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 have otherwise been able to prove. | |||
It is best for an accused to say nothing to the police | It is best for an accused to say nothing to the police. This applies even when an accused plans to plead guilty because there may be a valid defence to the charge about which the accused does not know. For further information, see [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii118/1990canlii118.html?searchUrlHash=AAAAAQAKciB2IGhlYmVydAAAAAAB&resultIndex=1 ''R v Hebert'' [1990<nowiki>]</nowiki> 2 SCR 151]. | ||
=== 2. The Modern Confessions Rule: ''Oickle'' === | === 2. The Modern Confessions Rule: ''Oickle'' === | ||
The modern confessions rule is outlined in | The modern confessions rule is outlined in [https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html?searchUrlHash=AAAAAQAKciB2IG9pY2tsZQAAAAAB&resultIndex=1 ''R v Oickle'' [2000<nowiki>]</nowiki> 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 be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness. The burden of proving the voluntariness of a confession falls on the Crown to prove beyond a reasonable doubt. However, if it appears that the Crown can satisfy that burden, the accused should consider calling evidence regarding the voluntariness of the confession so as to cast doubt on the voluntariness of that confession. | ||
When arguing that a confession was not voluntary, consider the following: | When arguing that a confession was not voluntary, consider the following: | ||
# '''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); | |||
# '''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); | |||
# '''Oppression''': this includes subjecting the accused to inhumane conditions, depriving them of food, clothing, water, sleep, medical attention, counsel, or prolonged intimidating questioning; | # '''Oppression''': this includes subjecting the accused to inhumane conditions, depriving them of food, clothing, water, sleep, medical attention, counsel, or prolonged intimidating questioning; | ||
# '''Operating mind''': whether the accused knew what they were saying and that it could be used against them; and | # '''Operating mind''': whether the accused knew what they were saying and that it could be used against them; and | ||
# '''Other police trickery''': police | # '''Other police trickery''': police are permitted to be persistent and accusatorial but not hostile, aggressive, or intimidating to the point that the community may be shocked by police actions. | ||
=== 3. Exceptions to the General Right of Silence === | === 3. Exceptions to the General Right of Silence === | ||
==== a) Motor Vehicle Drivers ==== | ==== 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 their name and address and that of the vehicle’s owner. | 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 their name and address, and that of the vehicle’s owner. | ||
==== b) Pedestrian Offence ==== | ==== b) Pedestrian Offence ==== | ||
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, | 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, [[chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://bylaws.vancouver.ca/2849c.PDF|By-Law No 2849]], ''Street and Traffic By-Law'' (June 13, 2023])). | ||
The decision of the Supreme Court of Canada in | 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<nowiki>]</nowiki> 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 alleged violator. | ||
==== c) Federal Statutes ==== | ==== c) Federal Statutes ==== | ||
Various federal statutes have provisions requiring that questions be answered: see | Various federal statutes have provisions requiring that questions be answered in specific situations: 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-14]; [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]. | ||
=== 4. Exception to Right Against Self-Incrimination: Breathalyser Sample === | === 4. Exception to Right Against Self-Incrimination: Breathalyser Sample === | ||
Where a police officer, on reasonable and probable grounds, believes a person has alcohol or drugs 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 face criminal charges for failure to provide a breath sample. See '''Chapter 13: Motor Vehicle Law''' for more information. | Where a police officer, on reasonable and probable grounds, believes a person has alcohol or drugs 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 face criminal charges for failure to provide a breath sample. See '''Chapter 13: Motor Vehicle Law''' for more information. | ||
== H. Admission of Evidence Obtained in Contravention of ''Charter'': (24(2)) == | == H. Admission of Evidence Obtained in Contravention of ''Charter'': (24(2)) == | ||
:'''NOTE:''' It is good practice to advise the Crown ahead of time before making a ''Charter'' argument. In the ''Charter'' notice, the accused 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''). The accused should cite cases on which they intend to rely | :'''NOTE:''' It is good practice to advise the Crown ahead of time before making a ''Charter'' argument even if the only remedy sought is under section 24(2). In the ''Charter'' notice, the accused 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''). The accused should also cite cases on which they intend to rely. | ||
S. 24 (2) 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 | |||
Section 24(2) of the ''Canadian Charter of Rights and Freedoms'' provides a remedy to those whose ''Charter'' rights have been violated and are later in a proceeding where evidence obtained related to that ''Charter'' violation is sought to be introduced. 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 to matters concerning the possible effects on the fairness of the trial if the evidence was permitted to be used in a trial against the person whose ''Charter'' rights were breached. The three factors to be balanced in order to determine if the evidence should be excluded are (1) the seriousness of the ''Charter'' infringing state conduct, (2) the impact of the ''Charter'' breach on the accused’s interest, and (3) society’s interest on the adjudication of the case on its merits (see R v Grant 2009 SCC 32). 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 for more information on the section 24(2) test. | |||
=== 1. Other Charter Remedies Obtained through S. 24(1) === | === 1. Other Charter Remedies Obtained through S. 24(1) === | ||
Section 24(1) permits a court to craft any remedy it considers appropriate and just in the circumstances. One commonly sought remedy is a judicial stay of proceedings under section 24(1) for an abuse of process. However, such a remedy is only provided in the clearest of cases and is rarely granted other than for delay. Recent case law has somewhat reinvigorated the doctrine of abuse of process and examined the potential for alternate remedies to judicial stays of proceedings where police conduct was abusive. See [https://www.canlii.org/en/ca/scc/doc/2014/2014scc52/2014scc52.html?searchUrlHash=AAAAAQAIciB2IGhhcnQAAAAAAQ&resultIndex=1 ''R v Hart'' 2014 SCC 52]. | |||
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