SOME CONCERNS RELATING TO THE CANADIAN CHARTER OF RIGHTS...
Transcript of SOME CONCERNS RELATING TO THE CANADIAN CHARTER OF RIGHTS...
SOME CONCERNS RELATING TO THE
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
by
D. W. PERRAS, Q. C.
)
SOME CONCERNS RELATING TO THE
CANADIAN CHARTeR OF RIGHTS AND FREEDOMS
TABLE OF CONTENTS
I. INTRODUCTION ..•.••.•...••••.••..•.•.•.•••. page 1
II. CHARTER GENERALLy....... • . • . . . . . . . . • . . ... page 4
ill. SOME SPECIFIC CONCERNS RELATING TO THE CHARTER
1.
2.
3 •
4.
Section 1
Section 7
Section 8
Section 9
· ...................... . • •••••••••••••••••••• • 0' •
· ....................... . · ...................... .
page 6
page 9
page 13
page 21
5. Section 10 ....................... page 25
6. Section 11 ....................... page 28
7.
8.
9.
10.
ll.
12.
13.
Section II (c)
Section II (e)
Section II (f)
· .................. . · .................. . · .................. .
Section 12
Section 24
Section 32
Section 52
· ..................... . · ..................... . and 33 ............... .
· ..................... . 14. RETROACTIVITY RELATING TO THE
page 33
page 36
page 38
page 38 page 40
page 47
page 48
CHARTER. page 49
IV. CONCLUSIONS
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SOMK CONCEBNS RELATING TO THE
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
I. INTRODUCTION
The Canadian Charter of Rights and Freedoms is
contained in the. Constitution Act 1-981 t Part I, Schedule B.
As this paper was being prepared the House of Lords
gave third reading to the Bill. Undoubtedly, sometime
in 1982 the Canadian Charter of Rights and Freedoms will
be -applicable in Canada.
Our -Charter of Rights after a great length of
labour (which almost resulted in a still birth) will
breathe and take life and nurture from the Canadian
judiciary. To say that the making of the Charter of Rights
was surrounded by controversy, is to put a polite and bland
stamp upon the negotiations. One well known public
observer labelled the Constitution, brought about by
wheeling and dealing at the last moment at 3:30 a.m., as
a "Constitution born of adultery ... l Nevertheless, Canada
will have a Charter of Rights and Freedoms, which accord-
ing to section 52, IIis the supreme law". Hence the Charter
will have a far greater impact upon Canadians than the
anemic Bill of Rights passed in 1960.
The Charter creates new substantive rights as
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well as new procedural rights.,. that come into play at the
time of investigation, at the time of arrest or detention
and, at the time of trial.
Fortunately or unfortunately, the language
used from time to time in the Canadian Charter bears a
striking resemblance to the language used by the Americans
when they adopted their Bill of Rights in 1791. The effect
of this close similarity in phraseology between the
Canadian and the American Bill of Rights invites, actually
begs, comparison. The invitation to compare is all the
more compelling because of the vast body of American
legal precedent that has been built up over the last
150 years, particularly by the United States S~preme Court.
In my view the temptation for Canadian lawyers and the
judiciary as well to dip into American law will be imposs
ible to resist., However, I would sound a note of warning.
May I sugges't we proceed wi th caution and develop a
Canadian approach to our Charter, as apposed to adopting
American excesses, (sometimes quite amusing} because of
our zeal to be perceived as a liberalized modern day
"with it" country.
When one takes a cursory look at the history
surrounding the conception of the Arnercian Constitution,
it is noted that the basic aim of the delegates, who
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gathered at State House in Philadelphia in September of
1787, was to -build a political frame work to protect
property against revolutionary-' expropriation and to
l 'b f ' 1 2 secure 1. erty rom a tyrannl.ca ggvernment.- The
delegates were lead in their historic deliberations by
General George Washington, and assisted by other very
famous men- such as Benjamin Franklin and Alexander
Hamilton, to name seve'ral. The American Constitution
was signed by 39 delegates (20 of whom were lawyers)
on September 17, 1787. By June 21st, 1788, nine states
had ratified and the Constitution became e'ffective. The
Bill of Rights (the first 10 amendments)· was promised to
allay criticism and attract state ratification. In
November of 1791 the first ten amendments were added
and became effective December 15, 1791, in a frontier
nation.
The Canadian Charter, it is fair to say, has
not been created out of a need for protection from
revolutionary expropriation or a tyrannical government.
The motivation behind Canada's Charter is not so easily
understood. The thrust for a Charter in Canada appears to
be motivated much more for political and -economic reasons
than as- a result of the needs of the people living in
a highly technological era.
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In sport, the similat_;ity b~tween_ toe. United.
States and Canadian Charters is absolutely remarkable,
bearing in mind the circumstances surrounding the birth
of each.
In any event, I propose -to examine key areas
of the Charter and in so doing hopefully. to better
understand the rights, freedoms, duties, responsibilities
and procedures that flow- from the Charter. Where
possible, time and space permitting, I will try to make
known my COncerns having regard to Anglo-American practice
and precedent.
It is my intention to focus on-the Charter
generally, and· in particular on sections 1, 7 to 14,
24, 32, 33, 52 and on the aspect of retroactivity.
II. CHARTER GENERALLY
To begin with, it is noted Canada is founded on
the supremacy of God and the rule o-f law. -I am not sure
of the significance of the suprema_cy of God, but am
reassured by the statement regarding the rule of law.
Obviously western democracy is based upon the rule of law.
The "rule of law" is only as good as those who administer
justice, therefore, I suggest we must bend every effort
to bring common sense and decency to our Charter.
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One rather major change that appears to flow
from the Charter is the power the Charter gives to the
judiciary 0, It would appear that,-the courts will now have
power to strike down laws made by parliament or the
legisla-ti.J.res. If ·this observation is correct, then such
"striking power!! is a radical departure from democracy
as wee understand it in Canada. For eJ{ample, under section
-~a court could strike down a limitation on a right or
freedom on the footing that such limitation was not
reasonable nor justifiable in our democractic society.
Whatever test is used to determine unreasonable limits
must be carefully crafted, otherwise the decision to
strike down becomes subjective and therefore unpredictable.
The Charter also provides for some new rights
as well as enshrining pre-existing rights and freedoms.
In addition, new procedures are prescribed but without
ve-ry much in the way of guidelines. Obviously, everyone
will be anxious and puzzled at times by the new legisla
tion and how best to make it work. For example, everyone
charged with nan offence" has a guaranteed right lito be
tried ·within a reasonable time". What is a reasonable time?
When does time start to run? What happens if the trial
doesn't proceed in a reasonable time? Does it matter
haw;" the delay was caused. When will an applicant
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under section 24'move to exclude evidenqe, obtained by
infringing or denying -rights under the Charter? Will
the application be made before trial or during trial?
Such questions remain to be answered by the judiciary
who will be early taxed with numerous and sundry such
problems, including such exotic questions as whether
derivative or secondary evidence is admissible even though
primary evidence is excluded pursuant to the provisions
of section 24.
In passing, it is noted that the American Bill
of Rights has no limiting provision comparable to that
which appears in section I. Nor do the Americans have
an equivalent to our section 32, and the U.S. Bill of
Rights definitely does not have an equivalent to our
section 33 (the notwithstanding clause).
Finally, our Canadian Bill of Rights, while
subject to legal interpretation from time to time, has
not provided or generated a great deal of litigation,
but nevertheless has provided some useful decisions to
perhaps help in determining the path our Charter will
follow.
III. SOME SPECIFIC CONCERNS RELATING TO THE CHARTER
1. SECTION I
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The first specific section that I would like to focus on·is section I, which guarantees the Charter
rights and freedoms subject to reasonable limits prescribed
by law demonstrably justified" in a democracy.
There are- several important features about
section I. First, it guarantees rights and freedoms.
Secondly, the section provides for reasonable limits upon
rights and freedoms. The limitation feature in section
I is not duplicated in the American constitution and makes
common sense. The Charter in effect-is attempting to
strike a balance between the individual and the good of
society. Thirdly, section I presumably provides the
judiciary with power to strike down unreasonable limits
placed on the guaranteed rights and freedoms.
There are many questions about section I, for
example, what is encompassed in the term IIlaw"? Does it
include case- law, statute law, regulations, Orders-in-
Council, common law, all of these, or only some? Who
has the onus if there is an issue about a limitation on
a right or freedom? What standard does the onus impose
upon the applicant? How does one establish that a
reasonable limit prescribed by law is demonstrably
justified in a free and democractic society?
Perhaps a test for resolving an issue r_elating
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to limitations on rights might include-the" following
factors:
(i) is the lim! t based in law
(ii) has the party supporting the l-imi t satisified the court that the limit is proper in a democracy; like Canada, having regard to the rights of society and the individual
(iii) if society is threatened by the right or freedom then the limit must prevail.
The final observation on section I is that it
must be borne in mind that section I applies to all
sections of the Ch~rter and therefore to all rights and
freedoms.
In closing, On this section it is my earnest
submission that our judiciary not follow the American
pattern of striking down legislation as was done in
Griswold v. Conn. (1965) 381 U.S. 479. In Griswold
the U.S. Supreme Court struck down state legislation
and in so doing, in my view, used an excessive but
amusing reach by saying;
liThe foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed -by emanations from those guarantees that help give them life and substance ..• various guarantees create zones of privacy. il
Justice Douglas went on to remark that the Conn. state
legislation invaded one of the zones of privacy and there-
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fore was unconstitutional.
The prospect of our Charter having penumbras
formed by emanations from the guarantees is a little
star.tling to say the least. In short,r my concern here
is that the judiciary use common sense, and proceed
cautiously before striking down legally prescribed laws
that place limits upon the guaranteed rights and freedoms.
No right or freedom can exist in a vacuum, nor attain
a state of "untouchableness" or be absolute.
I am reminded of one of Ogden Nash's poems.
It runs something like this:
"Consider the Auk: Becoming extinct because he forgot how to fly, and could only walk. Consider man, who may well become extinct Because he forgot -how to walk and learned how to fly before he thinked. 1I
2. SECTION 7
The next specific area of concern is
section 7. This section, in some respects, is a lot
like the American 5th amendment. Our section gives
the right to life, liberty and security of the person.
It further provides that any deprivation of the above
rights can only be accomplished in accordance with the
principles of fUndamental justice. The Amercian amend-
ment provides that there can be no deprivation of life,
liberty or property without ·'due process of law".
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The obvious guestion here is what is
meant by the phrase "principles of fundamental justice"?
Is this phrase to be equated with the American 5th
amendment phrase "due process of law"? In any event,
what is meant by either phrase, that is what is included
in the term?
Looking first at the American scene, while
interesting, is not terribly illuminating in terms of
defining, with precision, the term "due process".
In Twining v. New Jersey 1908 211 u.s. 78 due process
is equated with an ancie-nt procedure and fundamental
principles. Palko v. Conn. 1937 302 U.S. 319 equates
due process with fundamental fairness-a universal sense
of justice. Herbert v. Louisiana 272 U.S. 312
equates "due process" with "fundamental principles of
jus.tice which lie at the base of all our civil and
poli tical institutions". More recently Betts v. Brady
1942 316 U.S. 455 proferred a test as follows:
"does the conduct of ·the police or the prosecution or the conduct of the trial after an appraisal of the totality of the facts consitute a denial of fundamental fairness shocking to the universal sense of justice."
Ten years later in Rochin v. Calif. 1952 342 U.S. 165
the united States Supreme Court in considering the
nature of due process remarked;
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IIdoes the proceedings offend those canons of the decency and fairness which express the notions of justice of English speaking peoplesll ... standards of justice are -not authoritatively formulated anywhere as though they were specifics ... so rooted in 'the traditions and conscience of our people as to be ranked as fundamental or implicit in the concept of ordered liberty.1I
While the American caSes are not precise,
it is clear that the heart of due process is fairness.
The Canadian scene is not replete with
judicial writings on the te,rm "fundamental justice".
However, the 70lS saw several occasions to consider the
phrase. In Hogarth (1972)·7 C.C.C.(2d) 567 the court
held notice was required pursuant to the principles of
fundamental justice. In Lowry and Lepper (1972) 6 C.C.C.
(2d) 531 the Supreme Court held that an accused had been
denied a II fair hearing II when he had not been given an
opportuni ty to be heard on sentencing at the Court of
Appeal level after a -conviction was entered on appeal.
In Gilberg and The Queen (1974) 15 C.C.C. (2d) 125
the Alberta Court of Appeal held that a refusal of an
adjournment to an accused charged with a serious offence,
and who was not responsible for any delay in the proceedings,
was denied natural justice including his right to make
full answer and defence. On the other hand, in Re Ewing
and Kearney and The Queen (1973) 15 C.C.C.(2d) 107
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the B.C. Court of Appeal,held that tpe accused were not
depri ved of a fair he_arin9 in accordance with the principles
of fundamental justic~, where trial proceeded in
absence of counsel for accused. Apparently they were
unable to retain counsel.
Perhaps our Supreme Court in Duke v. The
Queen 1972 18 C.R.N .. 8. 302 stated it best in considering
the term "fundamental justice" when the court held that
this means;
(i) (ii) (iii) (iv) (v)
- act fairly - in good faith - without bias - with judicial temper
allo\'d.ng the parties to state their case
In summary then, in all likel~hood the
phrase "principles of ,fundamental justice ll will be
equated with the American term "due l?rocess II. In my
view the only real difference will be in the emphasis
given to the phrase, that is will Canadian courts opt
for a very liberalized ,interpretation or a moderate
interpretation along the_ lines of the Duke case.
My concern here is that our judiciary not
get carried away with their new found power to the point
of excess that leaves the general public wondering
just what service does the judicial system provide in
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in a democracy. Again a plea for common sense is not
out of order having regard to the uncertainty wrought
by the American courts in their unrelenting ultra
technical approach to the administration of justice.
3. SECTION 8
Our next excursion is to view section 8,
which simply put is that everyone has the right to be
secure against unreasonable search or seizure. Section
8 looks very simple and straight forward. However, our
section 8 is quite similar to the American 4th amendment,
which says the people are to be secure in their persons,
houses, papers and effects, against unreasonable searches
and seizures and no warrants shall issue but upon probable
cause.
Both -the Amercian Bil-l of Rights and the
Canadian Charter look simple and straight forward, i.e.
securi ty from unreason-able search and sei zure.
The American 4th amendment has spawned a
great deal of litigation about the- efficacy of searches
and seizures, warrant authorized or otherwise. I have
no doubt that this section of our Charter, in combination
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with section I, 24, 32 and- 52 will also generate a great
number of issues that will fall to be examined under the
judicial magnifying glass. Even the dullest of us who
call ourselves barristers and solicitors and have licenses
to practice will be able to visualize an application
under section 24(2) to exclude evidence obtained by the
investigating authorities in cicumstances that suggest
unreasonableness. Or if you can not visualize that
application, perhaps an applicati,on under section 24 (2)
to exclude evidence of a provincial statute violation
obtained without warrant. In this latter situation,
one relys on section 32, which makes the Charter apply
to provincial l.egislation and section 52 which provides
that the Charter is supreme, unless of course, the
province is so bold as to invoke expressly section 33,
the so called !lnon obstante!l clause. In any event,
the pOint I am making here is that any lawyer worth a
whit and with half an imagination can foresee the
possibilities that arise for disrupting, and even
shattering the crown's case whether the offence is under
the Criminal code or some obscure provincial statute,
or municipal bylaw. Of course, those practicing lawyers
with- full imaginations will be able to foresee an
endless array of sectional permutations in the Charter
allowing them abundant opportunities to forestall a
success full prosecution against their innocent client.
In 1914 in Weeks v. U.S. 232 U.S. 383
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the U.S. Supreme Court held that evidence obtained by
an illegal search was ~nadmissible since the procedure
denied "due process ".
In 1949 the u.s. Supreme Court in Wolf v.
Colorado 1949 338 U.S. 25 refused to extend the Weeks
ruling ,to state courts dealing with state crime. The
Court noted, after an :,i!ndepth survey. of the law, that
thirty states had rejected the Weeks doctrine and that
the . _ten_ United Kingdom and British Commonwealth
jurisdiction who had considered the issue of illegally
obtained evidence held that if the evidence was relevant
-it was adtnissib:be. However, in 1961, because of an
astute Mi"ss Mapp, who refused three Cleveland police
officers admittance to her apartment without a warrant,
(the police forced an entry on the pretext of looking
for a bomber but- were satisfied to leave upon seizing
pornographic material) the U.S. Supreme Court had a
further opportunity to consider the issue of the admissibi
lity of illegally obtained evidence. This time the court
held that- the evidence was inadmissible having been
obtained without warrant and that such rule applied
to state courts dealing with state crimes.
While the United States Supreme Court
pontificated the state courts fretted and grew increasingly
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uneasy about the Mapp rUling.
There is no doubt that the exclusionary
rule in the U.S. is the subject of growing criticism.
-(For example, see Wingo; "Qrowihg Disillusionment With
the Exclusionary Rule" S5 South W.L.J. 573; Wright,
IIMust the Criminal Go Free if the Constable Blunders?"
50 Tex L. Rev. 736.)
As a result of the impracticalness of the
exclusionary rule in the U.s. a number of exceptions
have developed. These exceptions often take the fopm of
ni fty little doctrines, for example, the "plain view
doctrine", as set out in Harris v. U.S. 1968 390 U.S. 234
where it was observed that:
"It has long been settled that objects falling in the plain view of an officer who has a right- to be in the position to have that view, are subject to seizure and may be introduced into evdience. 1I
The following is a list of exceptions,
by and large, to the exclusionary rule relating to search
and seizure:
(a) Stop and frisk in street encounters Terry v. Ohio 1968 392 U.S. 1
(b) Search incident to arrest Carroll v. U.S. 1925 267 U.S. 132
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(c) Items in plain view Harris v. u. S. (supra)
(d) abandoned property Hester v. U.S. 1924 U.S. 57 and Abel v. U.S~ 1960 362 U.S. 217
(e)- Exigent circumstances (i) Hot pursuit
Warden Maryland Penitentiary v. Hayden 1967 387 U.S. 294
(ii) Report of presence of bomb People v. Superior Court of San Francisco 1970 6 Cal App. (3d) 379
(1 v) Shots from a building
(v)
People v. Robinson 1969, 269 Cal. App. (2d) 789
Fighting fire People v. Miller (1966) 245 cal. App. (2d) 112
(vi) Seizures at Transport terminals parish v. Peyton 1969 408 F 2d 60
(vii) Well being of person searched Vauss v. U.S. 1966 370 F 2d 250 (person found unconscious)
(f) Consent Schneckloth v. Bustamonte (1973) 36 L.Ed. 2d 854
(g) Border searches
(h)
U.S. v. Ramsey 1977 431 U.S. 606 Carroll v. U.S. (1925) 267 U.S. 132
Body (i)
searches in certairi circumstances custom ,searches Murgia v. U.S. 1960 285 F 2d 14
(H) Other State v. Ramos 1969 11 Ariz. App. 196
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(i) Stomach pumping It is to be noted this is a controversial procedure. See Rochin -V. california 1952 342 u.s. 165 anc Blefare v. U.S. 362 F 2d 870
(j) Blood tests or samples Schmerber v. California 1966 384 u.s. 757 It is noted this general approach
(in Schmerber) probably applys to urine samples, saliva, -hair et cetera.
The above examples _are but a few to
illustrate the numerous exceptions to the general rule
that unless 'evidence is seized pursuant to a warrant or
obtained on probable cause, it will not be admissible in
court proceedings. A cursory look at the cases flowing
from the fourth and fifth amendments to the U.S. Constitu-
tion is but a g~impse of the legal thicket that surrounds
the two amendments that give rise to a majority of cases
wherein the exclusionary rule is invoked during trial
or perhaps motions to suppress.
There is little in the way of canadian
legal precedent to assist the judiciary in interpreting
section 8. Such is not surprising since there is no
rule absolutely excluding illegally obtained evidence.
In Canada the rule has generally been that if the evidence
is relevant and probative it is admissible. However,
this approach may change, undoubtedly will change, some
what simply because under section 24(2) the court can
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exclude evidence obtained by infringing or denying
Charter rights. I propose to deal at a later time with
the implications of section 24, therefore suffice it to
say that the potential for .an e&clusionary rule exists
in our Canadian Charter.
Several concerns relating ,to section 8
come to mind. First of all; I have a concern about the
drafting of warrants to s,earah and seize. My concern is
that from here on in the investigating authorities
and Crown be meticulous about establishing reasonable
grounds upon which to found a warrant. If the grounds
are not reasonable, the warrant will be attacked,
perhaps quashed, and of course, the Crown is then faced
with an application to exclude evidence. Perhaps,
rightly so, for I am given to understand that a very
substantial percen-tage- of search warrants issued are
defective (so says the Law Reform commission after a
recent survey) .
Another concern I have in this general area
relates to items seized during the course of a warranted
search, but not described or set out in the warrant.
Will these items be returned under the warrant? Will
-they be admissible -at any subsequent trial? To some
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extent section 445 o'f the Code may answer, the questioh
since that section provides for seizure of unspec~fied
things upon reasonable grounds.
Perhaps a major-difference be~ween the
American and Canadian positions is the fact that the
Canadian Charter does not appear to insist upon a warrant
being obtained, since section 8 simply gives the right
to be secure against unreasonable search or seizure, while
the U.S. Bill of Rights provides against unreasonable
searches and seizures and provides that no warrants
~hall issue but upon probable cause.
The common feature, -relating to search and
seizure, in both Constitutions is the security against
unreasonable search and 'seizure. The unknown factor is
the presence or absence of a warrant in the Canadian
process. So far as I am able to ascertain the legal
approaches of the two countries are very dissimilar.
For example, in Rochin (supra) the U.S. Supreme Court
held evidence obtained by pumping the stomache of the
defendant to retrieve swallowed narcotics was so shocking
that the evidence could not be admitted. ,In Reynen v.
Antonenko 1975 20 C.C.C. (2d) 342 a Canadian court held.
in a civil proceedings, that a forced removal of drugs
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from the plaintiffs rectal passage did not constitute
trespass, or an invasion of privacy sufficient to attract
a damage award. However, in view- of the Canadian Charter
provisions one can only wonder if the decision would be
the s arne today.
In conclusion, the provisions of section 8
of the Canadian Charter will very likely spawn much litiga
tion and ·.very likely provincial statutes that- allow
warrantless searches, without the necessity of reasonable
grounds, will in all probability be struck down as
-inconsistent with the Charter or perhaps on the footing
that such provisions are unreasonable limits upon the
right to be secure. Too, I submit there is sufficient
scope in our Charter and sufficient significant differences
between the Canadian and U.S.A. Cbnstitutions that there
will be no need to refer to eJ:{otic American cas.e law to :
develop a cornmon sense Canadian approach.
4. SECTION 9
Turning now to section 9, it is Observed
that everyone has the right not to be arbitrarily detained
or imprisoned.
Justice Arnup held in Lenitz v. Ryan (1972)
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9 c. c. c. (2d} 182 that arbitrary means being unreasonab,le
or capricious with no adequate determing principle or
standard. Standard dictionary definitions of arbitrary
support Justice Arnup's view. Such being the case then
it can be assumed section 9 is a guarantee against
unreasonable detention, arrest or imprisonment.
Of course, u.S. law is based on an inter
pretation of the fourth amendment that requires IIprobable
cause II. However, the courts appear to equate the terms
lIunreasonable" and IIwi thout probable cause 11 • Berger v.
New York (1967) 388 u.s. 41. In U.S. v. Brignoni - Ponce
1975 422 U.S. 873 the U.S. Supreme Court held that the
fourth amendment applys to all seizures of the person
including seizures that involve only a brief detention
short of traditional arrest. TOO, the U.S. ,law (Beck v.
Ohio 1964 379 U.S. 89) encourages the obtaining of a
warrant becaus.e that provides for objective pre-determina
tion of probable cause, as opposed to hind sight justifica
tions and its short comings.
The. standard test in the u.S. is, would the
facts available to the officer at the moment of seizure
or the search, warrant a man of reasonable caution in
believ.ing that the action taken was appropriate - Terry v.
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Ohio 1968 392 U.S. 1. Perhaps the most succinct summary
of justifiable police intrusion :upon a citizen in a
public place is found in People v. Jackson 1980 72 App. Div.
(2d) 149 where the court held there were three levels of
intrusion short of arrest:
(1) an approach requesting information (2) a more intensive inquiry if activated
by a founded suspicion that criminal activity is afoot
(3) a forcible stopping and detaining"',when the officer entertains a reasonable suspicion that the person - has committed - is committing - or is about to commit a felony or
misdemeanor
In short, in the U.S. "without probable
causel! is" equated with "unreasonable", and if a detention
or arrest is not well founded then any evidence secured
as a result of the un1awful1 arrest is inadmi-ssible in
evidence. For example, in Davis v. Mississippi 1969 394 U.S.
721 the Supreme court held finger pri'nts of the accused
were inadmissible in evidence becaus,e t,he arrest was
illegal in that there was no probable cause to found the
warrant.
However" trying to capture the essence of
"probable cause" in browsing American cases can be most
frustrating. At best an understanding of the term can
only be fragmentary, a patch work concept gleaned from
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judicial prounou'ncements upon particular factual contexts'.
It would appear however, that warrantless arrests in the
U.S. must be predicated upon reasonableness or the
equivalent of ttprobable cause II.
The Canadian position appears to be much
less litigated, for obvious reasons. In any event, now
that there is a right against, arbitrary detention and
imprisonment, it is my feell-ng that there will be much
more litigation oVer the meaning and significance of
temporary detentions. For example, will our courts,
having regard to the proVisions of section 9 follow
our Supreme Court ruling in Chromiak v. The Queen 1980
12 C.R.N.S. 300, where it was held that detention for
the purposes of a breath test demand was not a detention
under the Bill of Rights. I suspect that unless there is
reasonable grounds for s~ch detentions that the courts
will not follow Chromiak nor Dedman for that matter.
The next question, of course, is even if
section 9 is violate~ of what significance is that?
The significance lies in the opportunity to seek a
definitive remedy under section 24(2) by having the court
exclude evidence obtained by infringing or denying the
right under section 9. Too, if a citizen is "detained ll
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he must be promptly informed of his rights pursuant to
section 10. If the section la- right is further viola ted
then additional ammunition is available for a section
24 application.
In short, with a little imagination
learned defence counsel will be able to ingeniously
argue section 24 exclusion applications based upon
infringements of rights granted by- sections 8 and 9.
5. SECTION 10
Section lO(a) grants the right to be
promptly informed of the reasons for arrest or detention.
This right is not new and shouldn't cause any great problem
except that a violation of section 10 (a) could' result in
an admissible piece of evidence '(a confession for example)
being excluded pursuant to an application under section 24.
The more interesting change in section 10
is the right under 10(b) to be informed of the right to
retain and instruct counsel without delay. This right
has- the imprint of United States practice allover it.
Section lO(b) effectively incorporates several U.S. Supreme
Court decisions. First, in Gideon v. Wainwright 1963 372
U.S. 335 the U.S. Supreme Court -invoked the 6th and 14th
amendments and overturned Gideon1s conviction for having
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broken and entered a poolroom. Mr. Justice Black, in
delivering the court's judgment said:
"The rights of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedur~l and substantive safe guards designed to -assure fair trials befot'e impartial tribunals in whiCh every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charge4 witn crime has to ~ace his accusers wi thout a lawyer to assist him."
Secondly, in Miranda v. Arizona (1966) 384 U.S. 436 the
U.S. Supreme court overturned a conviction for kidnapping
and rape in essenqe holding that Miranda had not been
apprised of_ his right to counsel, and therefore his
constitutional rights had been violated and his subsequent
confession was therefore inadmissible. Whether Canadian
courts will r~le confessions inadmissible, where obtained
in breach of IO(b) remains to be seen. However, a
combination of a section IO(b) violation and a section 24
application will likely raise difficulties in several areas,
including interrogations, line ups, and perhaps pre trial
psychiatric examinations.
Obviously the investigative authorities
have to be instructed to inform an individual of the
reasons for his detention and to inform him/her of the
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I /
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)
right to. retain and instruct counsel without delay.
Another concern that I have is once the pro
posed accused has been informed of his rights to. counsel,
will there be an obligation .en the authorities to. obtain
a waiver of J;ight to. counsel. This Ie-ads to. a consider-
ation of the necessity for explicit waivers, general
wai vers Qr implied waivers. The case of North Carolina v.
Butler 1979 441 u.s. 269 illustrates the potential problem.
Butler was arrested and convicted of kidnapping. and
armed rObbery. The victim of the robbery, though wounded,
survived arid testified. During ·the investigation Butler
was warned pursuant to. Miranda. The court overruled the
conviction saying the statement was not admissible since
there was no. explicit waiver to counsel.
On appeal it 'was further held:, (Mr. Justice
Stewart delivering the judgment)
II ••• an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived his right to remain silent or the right to counsel guaranteed by the Miranda case. 1I
Our Supreme court in Korponey v. Attorney General of Canada
Jan. 26, 1982, while not obviously dealing with _waiver in
tlE con text of our Charter may nevertheless have fore-
shadowed the courts approach when Mr. Justice Lamer
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said;
" .•. the validity of such a waiver, and I should add that that is so of any waiver, i'8 dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. II
Are we into the c.omplexiti€!,S of waiver
as a res_ult of the enshrinement of the right to be
informed about the right to counsel in our Charter.
I suspect that defence lawyers are already tubbing
their hands in glee over the possibilities that infringe
ments of section 10 rights pose.
In closing, the judiciary will have a
rather interesting time in determining what evidence,
obtained in the course of infringing or denying certain
rights, if admitted would bring the administration of
justice into disrepute. Will harmless violations
a-ttract exclusion rulings Or will the court save exclusion-
ary rulings for activity that "shocks the conscience U ?
Only time will tell.
6. SECTION 11
Section 11 of our Charter grants nine
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)
additionai rights', so_me of which are already well
enshJi:ined in our judical system. For example 11 (d) i. e.
the right to· be presume¢! innocent until proven guilty
according to law in a fair and public hearing by an
independent and impartial tribunal, is well entrenched
and should not cause any undue concern.
The "most interesting new right in section
11 is the right "to be tried wi thin a reasonable time ".
There is really no helpful law in Canada on this issue.
The Canadian Bill of Rights has no similar provision. An
infringement of this right will probably trigger an
application under section 24 for a Stay of Proceedings
or an outright dismissal. Section ll(b) likely applys to
provincial statute offences because of the rather broad
wording in the opening part of section 11, i.e.,
"charged with an offence ". Hence, administrators of
justice must be aware of and prepared to provide for
trials on all fronts within a reasonable time.
_The phrase "wi thin a reasonable time ll has
not been specifically judicially considered even though
similar phrases such as '~orthwit~have been; as well
as "unreasonable delay".
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It is my view that the judiciary in
considering the matter of "trial within a reasonable
time" will want to consider the following factors:
(i) all the circumstances of the case
(ii) -conduct of the accused
(iii) seriousness of the charge
(iv) granting or denying of release
(v) p~oblems in obtaining witnesses for the court
(vi) complexity of the evidence
(vii) public interest
At the moment there are no guidelines as
to what is a reasonable time. Should the Federal
Government bring in the proposed Omnibus Bill to amend the
Code, there are time limitations in that Bill which
undoubtedly will become a legislative yardstick to assist
in determining reasonable time for trial. For example,
it is my understanding, that under proposed section 462.5(1)
s_ununary trials shall commence within six months from the
day of first appearance. On the other hand, if a
preliminary inquiry has been held then the trial shall
commence within six months from committal. Obviously
there are exceptions and provisions for extensions,
but basically the proposed section would not conflict
with the Charter right.
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)
In short,'- -the situation for administrators
of justice would appear to oe as follows when both pieces
of legislation are in place:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
- time runs from first appearance
- provisiens are mandatory
- .only .one extensien allewed
- no appeal available
- some delays excluded
- previsions apply to preliminary and trials
- apply whether in custody .or net
- remedy is dismissal .or stays .of proceedings etc. (when using's. 24 of Charter)
- onus en Crown to satisfy ceurt regarding an extens ien.
Obvieusly, in some centers .obtaining a
trial date will be a preblem. Net .only will a trial date
be a problem but crime labs may alse be stacked up so
that analyses are not available quickly eneugh.
The Omnibus Bill rules will be very handy
and persuasive guidelines fer Charter right· .of IItrial
within a reasenable time". Accordingly, I suggest that
investigating and prosecuting authorities be instructed
as follows:
(i) keep meticulous notes_ on delays
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(ii)' keep records on files up to date regarding delay and reasons therefore
(iii) make applications for extensions of time as Soon as possible
(lv) do not set summary trials or preliminary inquiries 6 months ahead
(v) major cases, i.e., fraud et cetera, will be Q.iff-icult and therefore the court ought to be apprised of the situation at an early date in order to expedite the setting aside of sufficient blocks of time to accommodate the preliminary or trial
As usual there are plethorae of American
cases dealing with the 6th 'amendment right to a speedy
trial. The usual consideration relates to the reason for
delay. The U.S. Supreme Court in Barker v. Wingo (1972)
407 U.S. 514, resigned itself to a balancing test,
requiring that cases be approached on an ad hoc basis but
suggesting four factors that ought to receive considera-
tion, namely:
(i) length of delay
(ii) reaSOn for delay
(iii) defendants assertion of his right
(iv) prejudice to the defendant.
Barker conunitted murder on July 20; 1958 ,an,d was finally
tried on October 9, 1963. -Barker, through counsel, made
no objection to the continuances sought by the State.
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)
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)
Interestingly enough_, in Strunk v. u.s.
(1973) 412 U.S. 434 the U.S. Supreme Court observed
that unintentional delay such -as overcrowded courts or
understaffed prosecutors are among the factors to be
we.ighed less heavily than intentional delay, calculated
to hamper defence.
In closing then, it would appear there will
be litigation involving section ll(b) of the Charter
arid- its guarantee of trial within a reasonable time,
whatever that is.
·7. SECTION 11(0)
Section 11(0) appears to advance into a
constitutional right those principles of law -that prevented
an accused from self-incrimination at trial. Section
11(0), however, appears broader than previous law indicated.
First of; all, the right applies where "an offence ll has
been charged and where !lproceedings" are under way.
Offence could be a provincial or municipal offence and
proceedings might be anything from a psychiatric
evaluation at the request of the court to a trial. The
right given under ll(c} may apply, for example, to
disciplinary proceedings related to police or to -an inmate
being disciplined while in custody.
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It is my view, that, because of the wording
of 'section 11 it would not apply-to such ~xercises as:
(i) a line up parade: vide Marcou'x 1975 24 C.C.C. 1
(ii) br,eathe test on demand, vide R. v. Curr 1972 7 C.C.C. 181
(iii) blood samples; vide Devison 1974 21 C.C.C. 225
(iv) a Crown arranged psychiatric examination Sweeney (no. 2) 1977 35 C.C.C. (2d) 45
In closing, an area that will probably be
tested is the application of a reverse onus clause to a
person charged with an offence. Are the courts likely
to consider a reverse onus clause a IIreasonable 1imitation ll
upon the right·not to be compelled to self-incriminate.
The answer, if I may be so bold, is probably
not insofar as most reverse onus claus.es under the
criminal Code are concerned. See for example, R. v.
~rany, Zikan and Dvorak (1979) 46 C.C.C.(2d) 14 and R.
v. Proud1ock (1978) 43 C.C.C. (2d) 321. On the other hand,
I am not prepared to hazard a guess about reverse onus
clauses that appear in provincially drafted legislation.
Provincial legislation is usually quite different from
jurisdiction to jurisdiction, and sometimes poorly
drafted and ill conceived.
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It would appear that when one reads section
11(c) in conjunction with section 13 of the Charter an
accused-witness has a great deal of protection against
self-incrimination. While the protections existed at
law in the form of legislation and case precedent,
certain procedures were required to invoke said protections.
For example, if a witness was asked a question, the answer
to .which would incriminate, the-witness, in order to be
protected against that answer would be expected to
respond with, "I refuse to answer on the grounds that
my answer will or may incriminate II and then proceed to
answer the question. Another practice was to ask -the
court for the protection under the C.E .A.- and provincial
Act before answering lethal questions. In any event, it
would appear that such practices need no longer be of
concern having regard to the rather specific language in
section 13. While the Charter shield is now automatically
available for previous testimony that incriminates, the
shield will not protect against perjury or the giving of
contradictory eviden,ce.
In short, the accused witness will be
guaranteed tHe right not to self-incriminate by testimony,
compelled or otherwise.
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8. SECTION 11 (e)
This section provides for the right of
reasonable bail. The United States eighth amendment
provides that excessive bail shall not be required. The
leading American case of Stack v. Boyle (1951) 342 U.S.l
held that the primary pu~pose of bail is to assure the
presence of the accused at trial and that bail set at a
figure -higher than an. amount reasonably calculated to
fulfill this purpose is excessive under the eighth
amendment. Reasonableness in the American context is
judged in terms of the individu'al defendant. For example
in Cresta v. Eisenstadt 1969 302 F. Supp 399, the court
found that $100,000 bail not excessive considering the
following:
(i) motive -for flight was strong since maximum. penalty was life
(ii) accused offered no evidence of facts to militate against flight
(iii) a half million dollars involved in the -robbery waS still unrecovered
(iv) prosecution had a strong case
Generally speaking the U.S. courts consider
the following fac'tors: vide People v. Terrell 1970
309 N.Y.S. 2d 776 and Delaney v. Shobe 1959 3468 2d 168
(i) nature of the offence
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(ii) penalty for offence
(iii) ability of accused to .give bail
(iv) character and reputation of accused
(v) health of accused
{vi} character and strength of evidence
(vii) probability of accused appearing
'(viii) forfeiture of other bonds
(ix) whether accused under bond _in other cases
(x) whether accused a fugitive from justice when arres ted
While there is not an abundance of case law
on the concept of "reasonable bail U in Canada there
certainly. is in the U.S.A., and accordingly one need only
browse the American legal precedents for .awhile in order
to find a specific case that will cover any fact situation.
However, I suspect our Canadian approac~ having regard to
section 457 of the criminal Code, will not likely change
substantially.
One rather interesting practice prevalent in
the United States- is that of "station house bailll. A
schedule is set by the courts and bail can be immediately
posted at the police station in accordance with the
schedUle. For example, in the District of Columbia the
schedule authorizes police officers to set bail only at
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the figure stipulated, i.e., simple assault; $500.00;
attempted robbery, $3000.00; robbery, $5000.00. In
Ohio the figure for simple assault is $25.00. In Illinois
it is $200.00 for most misdemeanors, while in New York
the figure is $500.00.
The advantage is immediate release where
means are available. The disadvantage is that the concept
discriminates against the indigent.
Do we need a set schedule for bail in
canada to assist in expediting release of the haple_ss
citizen arrested for a summary conviction offence? In
short should we consider the mechanical mechanism of
IIstation house bail ll ?
9. §.~ON l1(f)
It would appear that this section makes no
real changes to the law as we now know it. The one
question that may arise from time to time is the question
of waiver, and one need 'only keep in mind what 'Mr,. Justice
Lamer said in Korponey (supra}.
10. SECTION 12
This section provides that everyone has the
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-right not to be subjected to any- cruel and unusual
treatment or punishment. Our section is quite similar to
the American eighth amendment that provides that no
"cruel and unu$ual punishrnent rT is to be inflicted.
In 1972 in F\lrman v. Georgia 408 U.S. 238
the Supreme Court held that;
lithe imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments"
The cases referred to were fu~ (murder), Jackson (rape),
and Branch (rape); all were black.
On the issue of the death penalty our
Supreme court in R. v. Miller and Cockriell (1976) 31 C.C.C.
(2d) 177 upheld the penalty. The· Chief Justice eschewed
the- American Supreme court app.roach to the death penalty I
on several grounds, namely canada has one criminal code;
there is no provision for sentencing by juries, as is
the case in the U.S. where the experience has been
discriminatory, wanton and freakish; there is wide
judicial review available in canada; there is a limited
range of capital offences and finally the Government can
commute.
Fortunately, this review is all academic at
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this time, since we' no longer have the death 'penalty' in
canada.
Perhaps the 'term "treatment" in section 12
will provide further opportunities for judicial scrutiny.
Penal situations have been examined somewhat: vide R. v.
Hatchwe11 1974 1 W.W.R. 307; McCann et a1 v. The Queen
1975 29 C.C.C.(2d) 337. However, I suspect there is
room for further examination into penal practices. In
addition, those who are held in mental institutions
under Lieutenant Governor's order may well complain
about· cruel and unusual treatment or punishment. Too,
once the Young Offenders Act is made law, there will
likely be complaints pursuant to section 12 surrounding
treatment of young offenders, particularly so if the age is
moved up to 18.
11. SECTION 24
Section 24 is one of the most interesting
sections in the Charter of Rights and Freedoms. Section
24(1) provides that "anyone ll whose rights have been
infringed or denied may apply to a court of llcompetent
jurisdiction" to obtain a remedy. Section 24(2) provides
for the exclusion of evidence obtained by infringing
or denying Charter rights if the admission of such
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evidence would "bring the administration of justice into
disrepute" .
Several questions arise at the outset.
For example, what is a court of competent jurisdiction?
When that question is- posed, it is really asking can a
bourt seized with a criminal case dispense a civil
remedy? Section 24 is not abundantly clear, on this
issue, but it makes sense that a civil cQurt would
furnish civil remedies such as damages, injunctions, and
declarations where guaranteed Charter rights and freedoms
have been infringed or denied. On the other hand,
criminal courts ought to be in a position to furnish
criminal remedies such as, adjournment, costs, in limited
circumstances, the exclusion of evidence and perhaps
stays of proceedings, where Charter rights have been
infringed or denied.
Another interesting feature of section 24,
is whether it is the appropriate vehicle for applications
that may arise under section 52, that is applications to
strike down on the footing that the impugned legislation
is inconsistent with the Charter. If section 24 is the
vehicle then cases like Borowski would not be appropriate.
Simply put, people like Borowski would not have standing
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because their rights or freedoms under the Ch.arter had
not been infringed or denied. In other words, before an
application under section 24 is available the applicant
must be able to demonstrate that his/her Charter rights,
as limited by section 1, have been infringed or denied.
If the individual passes that threshold criteria, then
he/she may look for an appropriate and just remedy.
On the other hand, applications under
section 52 may stand on their own and if so then cases
such as Borowski, Dec. 1, 1981 S.C.C., Thorson [1975]
1 S.C.R. 13 and McNeil [1976J 2 S.C.R. 265 will survive.
Another issue that arises is that of the
victims of. crimes and their status to make an application
under section 24. A reading of section 32 leaves some
doubt as to whether a victim would have standing, simply
because section 32 appears to provide that the Charter
applies only to federal and provincial governments and
not against persons accused of criminal conduct. If
this observation is anyWhere near accurate thenit would
appear that victims of crime have no remedies under the
Charter, unless they are victims at the hands of govern
ment.
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)
)
)
)
One further matter to consider is the
exclusi.onary test posed in ,section 24(2). In short( a
court shall exclude evidence obtained by infringing or
denying Charter rights, provided the court is satisfied
that to admit such evidence would bring the administra-
tion of justice into disrepute.
First of all, there would appear to be a
number of steps to negotiate before an applicant is
successful;
(i) an infringement or denial of a Charter right or freedom, as limited by section 1
(if) that evidence was obtained by the denial or-infringement of the Charter right
(iii) establish that, having regard to all the circumstances, the admission would -bring the administration of justice into disrepute
The next int~resting exercise is to try
and determine what the phrase "bring the administration
of justice into disrepute" means. The phrase is one that
many lawyers love to use because it sounds great, appears
to- expose -uridesirable practices, and has the ring of
vindication attached to it, in the name of justice.
Indeed, the term is very elastic and is most difficult
to define. Perhaps the Supreme Court of Canada fore-
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shadowed what the approach. ought to be in the Rothman
(1981) 59 C.C.C. (2d) 30 case. Rothman, in essence,
was tricked into giving a confession, by placing a
police officer in the same cell. The officer pretended
to be a truck driver picked up for a traffic violation.
The confession was held admissible and Justice .. Lamer
during the course of his judgment" talked in terms of
police conduct that II s hocked the community". He gave
three examples of shocking conduct;
(i) a police officer disguised as a priest and receiving a confession
(ii) the-police informing a diabetic suspect that the needle they were administering was insulin, when it was really a truth serum
(iii) a police officer pretending to be a legal aid lawyer and receiving a confession from an accused.
While the "shocking to the community II test sounds
appropriate, it is really not very practicable or workable.
In essence, it comes down to the courts subjective
determination of what is shocking.
In Rochin v. California (supra) the United
States Supreme Court refused the entry of evidence
because as Frankfurter, J. says, "This is conduct that
shocks the conscience".
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)
)
)
The Rochin test was eschewed by the· same
court in rrvine v. California (1954) 347 U.S. 128.
The court said:
"However obnoxious are the facts in th_e case before us, they do hot involve coercion, violence or brutality to the person, but rather a trespass to property, plus eavesdropping. II
This statement by the court ih 1954
limited the previous IIshock the conscience" test and posed
a three point criteria of~
(i) (ii) (iii)
coercion violence brutality
as a practical gU-ideline for assessing evidence obtained
illegally.
In Irvine, Justice Clark was most critical
of the Rochin test saying7
IIIn truth, the practical results of this ad hoc approach is simply that'when five Justices are sufficiently revolted by local police action, a conviction is overturned and the guil ty may go free. Rochin bears witness to this. We may thus vindicate the abstract principle of due process, but we do not shape the conduct of local police one whit~ unpredictable reversals on dissimilar fact situations are not likely to curb the zeal of those police •..• II
In short then, la shock the conscience or
community testll for determining the admissibility of evidence
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illegally obtained is. of little real use for trial judges
who, day to day, will be asked to exclude evidence under
section 24(2) because it brings the administration of
justice into disrepute.
The next obvious question then is if not
a II s hock ll test, then what test? Perhaps as a starting
point we adopt th'e criteria o'f coercion, violence or
brutality plus assess whether the impugned evidence is
relevant, reliable and its probitive value is such that
it exceeds any prejudicial effect.
If such. a criteria is adopted we likely
achieve protection for the accused from coercion,
violence and brutality, plus winnow out irrelevant or
unreliable testimony, thereby giving the finder of facts
the greatest amount of useful evidence that from a
common sense point of view is properly admissible
thereby allowing the fact finder the greatest opportunity
to .do the best possible job for both the accused and
society.
Perhaps I can close this part by referring
to U.S. v. Payner 1977 434 F Supp 113 where the court said;
UAltho the exclusion of wrongfully
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)
)
long.
gathered evidence preserves important s-ocial interest, judicial suppre-ssion of relevant and reliable evidence is never ordered lightly because society has important and substantial interest which require the admission of all relevant and reliable evidence in a criminal prosecution. 0 • The most notable social interest which favours admis sion of evidence is the -concept that the trier of fact performs a truth- seeking' fUnction for both society and the accused. The truth seeker can perform its essential social function of issuing 'accurate adjudications bf--factual guilt or innocence only if the law insures the presentation of the fullest range- of relevant evidence to the trier of fact. 1I
12. SECTION 32 and 33
These two sections need not detain us
The main message in section 32 is that it makes
the Charter apply to Parliament and the Government of
each province.
It appears that the Charter does not apply
to individuals. Hence, if an individual not associated
with government infringes or denies the Charter rights
of someone, then that latter person may have no remedy
under the Charter.
Section 33 surprisingly allows Parliament,
or a legislature of a- provinc~ to expressly declare that
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a piece of legislation sh_all operate,_ notwithstanding
provisions of the Charter~
The real· question is what province would
run the political risk of declaring. that its legislation
take precedence over the Charter. I suspect most
provincial government~ since they presumably had a hand
in building the Charter, will want to see the edifice
apply uniformly- across Canada, and therefore for the
most part will take the position that they will abide
by the Charter and will try to adapt provincial legislation
accordingly.
Section 33 could be viewed as a safety
valve only to be used in some crises or emergency~ other
wise if used frequently, the general populace would
perhaps rise up and vote such insensitive governments
to oblivion.
13. SECTION 52
This section is of some interest and
concern for several reaSOns. First, it provides for
the supremacy of the Constitution. Secondly, it
provides that any law that is inconsistent is of no
force and effect. Thirdly, the main concern is does
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)
)
)
One h.ave the right under section 52 to apply to a court of
competent jurisdiction for an order striking down
inconsistent leg~ation whether it- is federal or provincial,
or is one relegated to the remedy provided for in section
24. If the remedy is under ·section 24, then the next
question is how does one obtain- s.tanding to pursue a
section 24 remedy that is just and appropriate. It
appears if section 24- is the only avenue open that one
must first establish an infringement or denial of
one of his/her guaranteed Charter rights. Having
established such infringement or denial then the remedy
to strike down the inconsistent- legislation could proceed.
If sec-tion 24 is the 'only avenue open then men like
Thorson, MCNeil and Borowski will be short circuited,
again time will tell.
14. RETROACTIVITY RELATING TO THE CHARTER
There appears to be two main areas of
concern involved. First, when the Charter is given
full force and effect in Canada, will it reach back and
if so how far? The practical answer is that it will
likely speak prospectively for a number of reasons. Firstly,
fresh legislation in the past (for example the privacy
legislation) was not given a retrospective application,
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vide: R. v. Lesarge 1975 26 C.C.C. (2d) 388. Secondly,
the general conunon law rule that applies to leg"islation
dealing with substantive rights suggests that retrospective
relief is not given unless the legislation clearly says
so. The Charter of Rights certainly does not contemplate
retrospective relief. Thirdly, from a practical and
common sense point of view I i't would be impossible for
enforcement officials to anticipate the exact c'hanges
and to act on the said changes before they become the
law of the land.
The second major area of concern is with
respect to rulings from the Supreme court.
In the united States some confusion pre-
vails as to the effect of Supreme Court rulings in the
matter of retroactivity-. Linkletter v. Walker 1965 381
U.S. 618 and Johnson v. New Jersey 1966 384 U.S. 719
when read together appear to set out the following
guidelines for considering retroactivity in relation to
judgments.
First, in terms of timing the following
criteria apply 1
(i) those cases in line for _direct review will be affected
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(ii) and a decision is final when availability for appeal has expir.ed
Secondly, .the fairness of the trial or
th.e in tegri ty of the fact finding -process will be
pivotal in deciding whether a decision has retroactive
application.
Thirdly, the factors to consider in deter-
mining retroactivity are:
(i) pri.or history of the rule in question
(ii) -i ts purpose and. effect
(iii.) whether retrospective operation will further or retard the rule
(iv) effect on administration of justice
An example of a case that was given
retrospective effect was Gideon v. Wainwright (supra)
because the ruling, i.e., entitlement to counsel, had a
direct bearing upon the integrity of the fact finding
process or fairness of trial.
On the other hand, Escobedo and Miranda
(supra) were limited in application to trials commencing
on or after the decisions. Two main reasons appear
for the limitation. First, the rulings in Escobedo and
Miranda arose as a result of rulings on issues that
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preceded the fact finding process, and secondly, to give
retroactive effect to such rulings would severely dXS'llupt
the administration of justice, because it would necessitate
hearings on excludability. Such hearings would be
greatly disadvantaged because evidence would haye been
destroyed, misplaced or forgotten, and besides there were
other protections to advance rulings like Escobedo and
Miranda~
The common sense approach suggests emphasis
be placed on' the integr-ity of the fact finding process
or trial. After all, the trial is indeed the pivotal
point in the administration of justice.
IV. CONCLUSIONS
This material has been long, and I'm sure
tedious, therefore, I will try to close out by making
several observations. Definitive conclusions On the
many issues are very difficult and at best one can only
make an educated guess.
First of all, the Charter'of Rights and
Freedoms grants new substantive and procedural rights,
guaranteed for all Canadian citizens subject to legal
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limitations, but with provision for corrective remedy
in event of infringement or denial. The Charter is
supreme and laws federal or provincial inconsistent
therewith are of no effect unless expressly declared
otherwise.
Secondly, upon implementation the judiciary
will be ear,ly taxed with numerous problems arising from
perceived denials of Charter rights. Until Canadian
precedent is established there will be a great temptation
to seek solutions from the- abundant American legal
experience with their Bill of Rights. I strongly urge
our judiciary to proceed cautiously and not to embrace
American precedent with open arms and closed minds.
While American decisions can at tim~be helpful and instruc
tive, they can also be excessive, confusing and inappropriate.
Bear in mind the American Constitution was conceived
for very different reasons than our~ and is substantially
different from oul'S in several respects, for example,
section land 24.
Thirdly, I suggest as lawyers we all look
optimistically upon the opportunity to play a significant
role in shaping our Cha-rter for -the benefit of all
Canadians.
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Lastly, let me close by saying, we have
in Canada a unique opp~rtunity to participate in the shaping
of the law that will emanate from Charter issues, there
fore, let us bring to that exercise good will and common
sense so that the public will respect and be confident
in the administration of civil and criminal justice.
D. W. Perras, Q.C.
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1. McLeans -- IIThis is the Way We Build Our Land"
Alla'n Fotheringham
2. The Living U.S, Constitution, Saul K. Podover
1. Modern Criminal Procedure 4th Edition by Kamisar, Lafave and Israel American Case Book Series St. Paul, Minn., West Publishing Co.
2. Constitutional Rights of the Accused Pretrial Rights 1972 and Cununulative Supplement issued Nov. 1980 by Joseph- G.· Cook
3. Appendix (a) Selected provisions of the United States Constitution
(b) Canadian Bill of Rights
·:.'
APPENDIX A
, SELECTED PROVISIONS OF THE UNITED STAtES~ , CONSTITUTION . .,
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ARTICLE I
Section 9. • .. • [21 The privilege of thlt Writ of Habeas Corpus shall not be suspended.
unless when In Cases of RebellIon or Invasion the publlo Safety may require It.
[31 No Bill of Attalndet'" or ex post Cacto Law shall be passed.
ARTICLE III Section 1. The Judicial Power ot the United States, shall be vested In
one supreme Court, and In such inferior Courts as the Congress may from time- to time ordain and establish. The Judges, both. of the supreme and in· terior Courts, shall hold their Off1ces during good BehavIour, and shall, at stated Times, receIve for their Services a Compensation. which shall not be diminished during their Continuance In Office .
. Section 2, [lJ The judicial Power ·shalt extend to all Cases, in Le,.w and Equity. arising under this Constitution, the Laws of the United States; and Treaties made, ot'" which shalt be made, under their Authoritn-to all Cases affecting Ambassadors, othel'" public Ministers and consulsj-to all Cases of admiralty and maritime Jurlsdlcttonj-to Controverslea to which the. United States shall be a Party;-to Controversies· between two or more States; -between a State and Citizens of another State;-between CItizens of different StateSj-between Oith:elis of the same State claiming Lands under- the Grants ot different States, and between a State, or the Citizens· thereof, and foreign States, Oltbens or Subjects.
[3] The trial at all Orimes, except In Cases 0(" rmpeachment, shall be by Jury~ and such Trial shall he held In the State where the said Crlm.es shalt have been committed; but When not committed within any State. Ule Trial shall be at such Place ot'" Places as the Congress may by Law have directed.
SectIon 3. [1] Treasou against the United States, shall consist only In levying War against them, or, in adhertng to thele Enem.1eB, giving them.. Aid and COI)lfort. No Person shall be- convicted of Treason unless on the Te8tt~ mony of two Witnesses to the same ovett Act, or- on Confession In open. Court.
(2] The Congress shall have Power to declare the PunIshment of Trea.· son, bul; no Attainder of Treason shall work Corruption. of Blood, or Forfeiture. except dutlng the Life of the- Person attal nted.
ARTICLE IV
Section 2, [1J The Citizens of each State shall be enUtled to all Prlvl~ leges- and Immunities of Citizens in the several States.
[2] A Person charged in any State with Treasoll. Felony, or other Crime, whO" shall flee trom Justice, and be tound in another State, shall on demand. of tile executive Authority ot the State trom which he fled, be de· livered up, to be removed to the State having Jurisdiction of the Cdme.
ARTICLE" VI
.[2] This Constitution, and the Laws of the- United States which shall be made In Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law.
AMENDMENT'I [17911
Congress shall make no law respecting an establishment of religion, or prohibiting the free e:o:erclse thereof; or abridging the freedom ot speech. or
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AMENDMENT XIII [1865]
Section 1. Neither slavery nor Involuntary servitude, except as a punIShment ror crime whereof the party shall have been duly convicted, shall exist wllhln the United States, or aDY place subject to their jurisdiction.
Section 2. Congress shall ha.ve power to" enforce this article -by appro.prlate legislation.
AMENDMENT XIV (1868]
Seetlon 1. _All persons born or naturalized In the- United States-, and !luhject to the jurisdiction thereof, are citizens of the United States aod of the State wherein they radde. No State shall make or enforce any law which shall abrl!lge the privileges or ImmunlUes of citizens ,of the United, States~ nor shall any State 'deprive aliY person of.. lUe, Uberty. or properly, withOut due process of law; nor deny to. any pe[soo within its. ju[fsdlction the equal ·proteCltion or the laws:
Section 5. The Congress shall haVe pOwer to- antorca, by appropriate legislation, the provisions of this article.
AMENDMENT" XV [1870J
Section 1. The tight of clti:r.ens. of the United States to vote shall not be denied or abddged by the United States or by any Stat& on account of race, color, or previous condition of servitude.
Section 2. The COngress shall have p.ower to enforce' this: article by" appropriate legislation.
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of the press: or the rlgllt of the people peaceably to assemble, nnd to tlon the Government [or a. redress of grievnnces.
AMENDMENT II [1791]
peti-I
A welt regulated M11Itta, being necessary to the security of a froo Stato, the right of the people to keep and bear Arms, shall not b9' Infringed.
AMENm.mNT III [1791]
No Soldfcr sllall, In time of peace be quartered In any house, without tIle consent of the Owner, nor In time of war, but in a manner to be prescribed by Ia.w~
AMENDMENT IV (1791]
The right of the people to be secure In their persons, houses, pnpers, and effects, against unreasonable searches and seizures, shall not be violated, and no \Vnrnmts shall Issue, Qut upon probable cnuse, supported hy Oath or afflrmntion, and particularly describing the place to be searched, and the persons or things to be seized. -
AMENDMEN'l! V [1'191]
No person shall be held to answer for a capital, or- otherwise Infamous crime, unless on a pre.sentment_or-Indlctment of a. Grand Jury, e)Ccept In aases arising in the- land or navn,l forces, or- In tile MlUtla, when In actual fJervlce In time of \Var or pubUc danger; nor_shall any porson be subjoat for the same oflenae to be twice put In jeopardy of life _or 11mb: nor shall be aompe\lod in any criminal case to be a witness against himself, nor be deprived of !tfe, lib· erty, or property, without due process of law; nor ·shall privata proPt'lrty. be taken fot" pub!tc use, without just compensatiQn.
AMENDMENT VI (1791]
In all criminal proseautlons, the Mcused shan enjoy the right to a speedy and public trial, by an Impartlat Jury of the State and district Wherein the crime shall ha\'e been aommittod, which district shaH Imve boen prevIously asaertalned by law, and to be Informed of the nature and cause of the accusation; to be cOnfronted with the witnesses against him:. to have aompulsory process for- obtaining witnesses in bls favot", and to have the Assistance of Counsel tor- his defence-.
AMENDMENT vn [1791]
In Suits at common law, where the value In controversy shall exaeed twenty dollnrs-, the- right ot trial by- jury shall be prese:rved, and no fact tried by,jury, shall be otherwise re-examined In any Court of the United Statcs~
than aacordlng to the rUles of the common law.
AMENDMENT VIII (17911
Excessive ball shall not be required, nor excessive fines Imposed, nor- cruel and' unusual punishments inWcted.
AMENDMENT IX [17911
The enumerntlon in the Constitution, Of certain rights, shall not be construed to deny or disparage otliers retained by the people,
AMENDMENT X [1'191] , The powers not delegated to the United States by the Constltutfon, nor
prohlhlted by it to tho States. are reserved to the States respectlvely, or ta the people.
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CANADIAN BILL OF RIGHTS
ApJX:ndlx Dr to R.S.C. 1910
An Act lor the Recpgnldon and Protection of Human Rights and' F'undarnentaf Freedoms, 1960 (Can.). c. H.
As flmended by 1910~1I~12,' c. 38, s. 29.
The Pal'I1amel)t of Canada, affirmIng that" the Canadian Nation Is founded upon prlncipies that acknowledge the supremacy of Gad, the dignity and worth of the human person and the position of the family 1n a -society of free men and free instltutlons;
AfHnnlng also that men and institutions remain free only when treedam is founded upon respect for ,moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and- fUndamental freedoms derived ir_om th.em, In a But of Rights which shall relied the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
THEREFORE. Her Majesty, by and with the advice and consent of th~ Senate and House of Commons of Canada, enacts as follows:
PART I
BILL OF-RIGHTS
1. It- Is hereby recognized and declared that- In Canada there have existed and shall continue, to exist without discrimination by reason of race" national origin, colour. religion or sex~ the following human rights and fUndamental freedomS',- namely,
(a) the right of the Individual to Ufe, Uberty, security of the person -and enjoyment- of property, and the right not to be deprived thereot except by due process at law;
(b) the right of the Individual to equality betore the- la\v and the protection ot the law.
(a) freedom of-religIon; (d) freedom of speech; (6) freedom at assembly and association; and (f) !reedom of the press.
2. Every law at Canada_ shall.- unless it IS expressly declared by an Act of the Parllament of Canada that it shall operate- notwithstanding the Oaf'l{ldian Bm: of'Rights, be so construed and appUed as not to abrogate, abrIdge or infringe or to authorize the abrogation. abridgment or lntril'lgement of any of the rights or freedoms herein recognized and declared. and In particular. no law of. Canada shall be construed. or applied so as to
(a) -authorlz& or effect the-arbitrary detention, Imprisonment or exileof. any person;
(b) impose or authorIze- the imposition of cruel and unusual treatment 01'" punishment;
(a) deprive a person who has been arrested or detaIned (1) at the right to be Infonned promptly of the reason for his
arrest or detention.
53. MISCELLANEOUS STATUTES
(ll) of the right 'to retain and instruct counsel without delay, or (iii) of the remedy by way of habeas corpus for the determination
of the valldlty of his detention and for his release It the detention Is not lawful;
(d) authorize a court, tribunal, commission. board or other authOrity to compel a person to give evidence If he Is denied counsel, protection against selt crtmlnatfon Of other constitutional safeguards;
(El) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obUgations:
(I> deprive a person Charged with a criminal offence of the right to be presumed !Mocent untH proved guilty accordbtg to law in a fair and public hearing b1 an Independent and impartial tribunal, or of the right to reasonable hall without just cause~ or
(g) deprive a person of the right to the assistance of an interpreter in any proceedings In which he Is Involved Or In which he Is a party or a witness, before a court, commission, board or other tribunal, If he does not understand 01"'" speak the language IIY which such proceedings are conducted.
-3, The Minister of Justice shalt, in accordance with such regulations as may be prescribed by the GoveroQr in Council, examine- eVery regulation transmitted to the Clerk of the Privy Council for registration pursuant t(} the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons, In order to ascertain whether any of the provisions thereof are Inconsistent with the purposes and provisions of this Part and he shall report any such Inconsistency to the House of Commons at the first convenient' opportunity. 1970-71·72, c. 38, s. 29.
4. The provisions of -this Part shall be known as the Canadian Bur of Rights. '
PARTrr
5". (1) Nothing in Part I shall be construed to abrogate or abridge any human right or -fundamental freedom not enumerated therein that may have existed In Canada at the commencement of this Act.
(2) The expression "law or Canada" in Part I means an Act of the Parliament of Canada enacted before or after the coming-into force of this Act, any order, rule or regulation thereunder, and any law In force In Canada or In any part of Canada at the commencement of this Act that Is subject to be repealed, abOlished or altered by the Parliament of Canada.
(3) The provisions of Part I shall be construed as extending only to matters coming within the Iegislatlve authority of the Parliament of Canada.
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