SentencingGladue (1999, SCC)Aboriginal woman was provoked verbally while drunk, killed him with a knife.

Decision: s.718(e) — sanctions other than imprisonment, especially regarding Aboriginal of-fenders. If imposing a conditional sentence in a community, care should be taken to ensure that the community (on-reserve or off) would be an effective non-custodial sentence. The par-ticular offence, circumstances of the offender, socio-economic difficulties of Aboriginal commu-nities, and use of customary law should be taken into account. Denunciation and deterrence must play a role

Hunter (1999, SKCA): court increased trial judge’s sentence, disposed of Gladue principles given the circumstances.

Sackanay (2000, ONCA): Affirmed Gladue. Sentences should not be automatically reduced for Aboriginal offenders, but the systemic factors and hardships that bring Aboriginals before the court should be taken into account.

Ipelee and Ladue (2012, SCC) Both breached orders, sentenced to 3 years. SCC held that 1-year was more fit after reviewing 718(e) and Gladue principles.

Unclear as to whether 718(e) applies only to Aboriginals or to other racialized groups.

Borde and Hamilton (2003): African Canadian, poor, low-education, unemployed.

Borde: young black male, crimes were serious enough that the systemic and background fac-tors would not affect the length. Could affect a future case.

Hamilton: cocaine charge, both accused were black single mothers. Court considered other cases, but systemic and background circumstances allowed conditional sentences of imprison-ment.

Golden (2001): Black Canadians as well as Aboriginals are over-represented in the criminal justice system, this is an effect of the “war on drugs”. Young black women are disproportion-ately represented in cocaine offences, often they live in poverty and need the money.

CC Provisions — Sentencing718. contribute to respect for the law and the maintenance of a just, peaceful and safe society718.1 Fundamental Principle: sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender 718.2: other principles

1

Harm PrincipleJohn Stuart Mills, HLA Hart: criminal law should prevent harm to others. Lord Devlin, Conservative view: primary function of criminal law is to enforce morals regardless of harm to others.

Wolfenden Committee: 1. To preserve public order and decency2. To protect citizens from what is offensive or injurious3. To provide sufficient safeguards against exploitation and corruption of others, particularly

the vulnerable.

Jobidon (1991): Criminal law does not allow consenting adults to intentionally inflict bodily harm on one another in street fights, etc. Intentional infliction of serious harm on others is morally wrong. Individual freedom of choice gives way in such circumstances.

Brown (1993, HL): consent to sadomasochistic sexual encounters by adults is not a defence to criminal charges of assault and wounding. Majority based on Devlin, dissent based on Wolfenden and Mill.

Welch (1995, Ont CA): even if sadomasochistic sexual activity is consensual, it is contrary to the criminal law because it is “inherently degrading and dehumanizing”.

Fraser Committee, 1985: Liberal view — criminal law ought not to involve itself in adults private affairsConservative view — certain shared moral values that should be protected by the criminal lawFeminist view — “free to act without restraint” is of limited value where fundamental inequali-ties exist. “Harm” is too narrow, must go beyond physical harm and include psychological and social. Sexism in pornography and prostitution creates a social harm leading to violence against women and children. Committee recommended decriminalization of prostitution of-fences.

Constitutional FrameworkRe Assisted Human Reproduction Act (2010, SCC)Narrow scope to criminal law power. Refusal for exemption for Insite workers under s.56 of Controlled Drugs and Substances Act was not ultra vires the criminal law power. However, this violated the s.7 “life, liberty, and security of person” rights of those using the Clinic, so SCC or-dered the Minister to grant the exemption

Competition Act, 1985 — creates serious offences for price-fixing, is valid under s.91(2), trade and commerce. Serious offences are valid under the criminal law power (AG Canada v. Cana-dian National Transport (1983, SCC))

Hauser (1979, SCC)Narcotic Control Act/Controlled Drugs and Substances Act — legitimate under POGG

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Criminal CodeJeremy Bentham: liberal view, only criminalize “harm to others”. Punishment = deterrence. James Fitzjames Stephens: enforce morality. Punishment = revenge or retribution.

Came into force in 1892. Not the Code Bentham advocated, wanted clear and accessible.

Amato (1982, SCC) Recognized that not all defences could be codified in the Code because there are too many possibilities. Common law defences adopted through s.8(3) are not “frozen in time”, i.e. they are not limited to common law defences recognized at the time of the original CC in 1892. SCC recognized the defence of entrapment which was not in the CC at the time and was arguably not a common law defence in 1892.

Canadian CC of 1892 attempted to codify all common law crimes, but they put in 8(3) just in case they forgot one, stating that any common law crimes not included in the CC still continued in force.

Contrary to Bentham, Parliament eradicated common law offences since pretty much every-thing was in the Code. A court may still impose punishment for “contempt of court” under s.9 of CC (United Nurses of Alberta).

Contempt of court is the only common law offence that exists in Canadian criminal law. Courts sometimes rely upon common law to interpret the scope or meaning of offences that exist in the CC.

Frey v. Fedoruk (1950, SCC)SCC was reluctant to create new common law crimes even before section 9(1) was enacted in 1953-54.

Jobidon (1991, SCC)Charged with manslaughter in a drunken bar fight.

The crime of assault was codified verbatim from the common law, so s.265 must be coloured by common law limitations on the element of consent in assault. A principle of common law stated that it would be against public policy to allow fighting with the intent to cause bodily harm to be legal. Since intention to cause bodily harm was illegal, consent to the fight could not be a valid defence.

Held: Accused convicted.

Dissent, Sopinka J: Majority essentially created a new common law offence by using the com-mon law on consent to assault in a way that directly ignores the language of s.265 of the CC. There was consent to the fight, therefore consent to assault.

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Doctrines of Overbreadth and Strict ConstructionOverbreadth: analyzes whether a law is broader than reasonably necessary to pursue a legiti-mate purpose. - A law which restricts freedom more than necessary is fundamentally unjust because it vio-

lates a citizen’s s.7 ‘right to liberty” in a way that encroaches on “principles of fundamental justice”.

- A limitation on freedom broader than necessary is not reasonable, and thus constitutes an of-fence of s.1 of the Charter.

Heywood (1994, SCC) RBCS p.34 FactsMan convicted of sexual assault was found loitering in or near a playground (s.179(1)(b) of CC states that a person with a past sexual violence conviction may not loiter in or near a school ground, playground, public park or bathing area).

Decisions. 179(1)(b) of the CC as it was then drafted was overly broad and thus offended s.7 of the Charter, and therefore of no force and effect. • Geographically — embraces all public parks and beaches regardless of whether there are

children present • Temporally — apparently applies for life without process for review• Encompasses too many people• May be enforced with no notice to the accused

VaguenessA law is “unconstitutionally vague if it does not provide an adequate basis for legal debate or analysis” or “does not sufficiently delineate any area of risk”. Certainty is not required, but it must outline a “risk zone”.

Canadian Foundation for Children (2004, SCC)Issue: is s.43 of CC authorizing the use of force “by way of correction toward a pupil or child…if the force does not exceed what is reasonable under the circumstances” void because of vagueness or overbreadth?

Foundation argued that it was overly broad because it covered persons who should not be rea-sonably included (children under 2 and over 12) since empirical evidence shows it is respec-tively ineffective and psychologically harmful.

DecisionIn light of the restricted interpretation placed on s.43, the section is no longer overly broad and did not now apply to children under 2 or over 12. An adult may use force to restrain or remove an adolescent from a situation, which is not corporal punishment. S.43 does not allow force that is not corrective or that is unreasonable, so it is not overbroad.

Dissent, Arbour J: Unconstitutionally vague. Too much work must go into making it constitu-tionally sound and precise: “child” must be construed as one of a particular age, parts of the body excluded, implements prohibited, etc. This does not constitute reading down, but rather judicial rewriting of the legislation (quote from Heywood). Strict Construction4

Because criminal statutes restrict liberty and impose punishments, laws should be “strictly con-strued” to benefit the accused.

Bell ExpressVu (2002, SCC)S.C. of penal statutes only applies where there is a true ambiguity in the provision AFTER the court has applied a contextual approach to interpreting the provision.

Paré (1987, SCC)S.214(5)(b): murder is first degree murder when the death is caused by a person while the per-son is committing indecent assault. Paré killed the victim two minutes after assaulting him.

DecisionLiteral meaning of “while” to mean “during” may not be the “contextual” meaning. The literal meaning runs contrary to common sense. “While” here does not require exact coincidence, but rather a close link between assault and death. If they form part of a continuous sequence of events forming a single transaction, then the death can be said to be caused “while committing the assault”. No need to resort to strict construction of penal statutes.

Challenging a LawOakes test: was there a Charter infringement? Was the infringement valid?

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Exclusion of Evidence, pre-GrantS.24(2) of the Charter:1. Was there a Charter violation? 2. If yes, was evidence obtained as a result of the Charter violation? 3. If yes, should the evidence be excluded from the trial? (If it’s admission would bring the ad-

ministration of justice into disrepute, then YES, it should be excluded)

Collins (1987, SCC) Test to answer the third question: 1. Trial fairness 2. Seriousness of the breach3. Whether exclusion would cause more disrepute than inclusion Stillman + Buhay = more complete

Stillman (1997, SCC) CP p.81Deals with Collins issue of 1. “trial fairness”. a) Was the evidence conscriptive? • Conscriptive evidence: evidence in which the accused has been compelled, in violation of his

or her Charter rights, to participate in its creation or discovery by means of statements, use of the body, bodily samples, or derivative evidence.

b) If yes, was it otherwise discoverable? • The Crown bears the burden of establishing discoverability by showing:

• 1. that an independent source for the evidence existed, OR• 2. that the police would have found it anyway.

If the evidence is conscriptive but otherwise lawfully discoverable, go to Collins factors 2 and 3. If it is conscriptive but not otherwise discoverable, admission of the evidence will affect trial fairness (because it is self-incriminating) and will generally be excluded without considering 2 and 3. (The “automatic” exclusion came under increasing attack and was abandoned for a new test in Grant in 2009.)

Buhay (2003, SCC) CP p.86 Deals with Collins issue of 2. seriousness of the breach. FactsBus depot locker, security guard smelled marijuana. PO seized bag of marijuana without a warrant. 4 main factors: 1. Was the Charter breach made in good faith (if PO’s mistake is unreasonable or negligent,

this cannot be claimed), inadvertently, or was it merely technical? Or, was it deliberate, wil-ful, or flagrant?

2. Was the violation motivated by urgency or necessity? • No3. Could the evidence have been obtained by other means? • Yes. Could have gotten a warrant or staked out the locker. 4. How obtrusive was the search and what was the expectation of privacy? • here, not much, because it was a bus depot locker and not the home, office, body

3. Disrepute 6

2 factors: 1. Seriousness of the offence2. Importance of the evidence • Even if the offence is serious and the evidence vital, Courts will often exclude the evidence

where the violation was serious and blatant (otherwise the Courts would be condoning bla-tant Charter violations)

• If the Charter violation is serious, but not willful or blatant, then non-conscriptive evidence like the drugs in Buhay will usually be admitted.

Grant (2009, SCC) CP p.95 (100)FactsThree POs — two plainclothes, one in uniform — were on patrol for purposes of monitoring an area with a history of assaults, robberies, and drug offences. Grant was stopped by police, asked if he had anything he shouldn’t. Fidgeted with jacket, made PO suspicious, other two of-ficers took up position behind the first PO. Grant admitted he had a firearm and some mari-juana. They arrested him and seized the marijuana and a loaded gun. Advised him of right to counsel.

Issue: Should the evidence be excluded?

New test: Would a reasonable person, informed of all the relevant circumstances and values underlying the Charter, conclude that the admission of the evidence would bring the adminis-tration of justice into disrepute? Lines of inquiry: 1. The seriousness of the Charter-infringing state conduct

1.1. Inadvertent or minor?1.2. Wilful or reckless disregard of Charter rights? 1.3. Good faith on the part of police?1.4. Part of a pattern of abuse?

2. The impact of the breach on the Charter-protected interests of the accused 2.1. Interests engaged by the infringed right (does it send the wrong message?) 2.2. Degree to which the violation impacted on those interests (serious, intentional?) 2.3. If an illegal search, does it intrude on an area with a high expectation of privacy or

that demeans dignity? 3. Society’s interest in the adjudication of the case on its merits

3.1. Is the illegally obtained evidence reliable? 3.2. How important is the evidence to the Crown’s case? 3.3. Seriousness of the offence

Balance the three and decide whether the administration of justice would be brought into disre-pute by its inclusion.

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Search and Seizure pre- Charter • Legal authority must be found either in statute or at common law. This authority will set out

the scope of the search and indicate whether it must be conducted with a warrant or not. • Warrant = prior approval for search. PO swears an information before a JP, if JP is satisfied

that there are reasonable grounds for the search, they issue a search warrant. • ss.487, 488, 489 require a search with a warrant, or since 1985, a telewarrant. • S&S powers may be granted under various federal/provincial statutes (eg, Drugs & Sub-

stances Act, Motor Vehicle Act, etc.), though a s.487 CC search warrant may also be used for federal statutes.

Main Common Law powers of search: • power to search a person without a warrant as an incident to lawful arrest (Cloutier)• power to frisk search a person without a warrant as part of an “investigative detention”

(Mann) • power to enter and search dwelling without a warrant if in lawful hot pursuit of a suspect• enter and search dwelling without a warrant to preserve life or prevent injury (Godoy) • enter and search a dwelling to make an arrest pursuant to an arrest warrant (Landry as modi-

fied by Feeney)• conduct a warrantless sniffer dog search in a public place based on reasonable suspicion

(Kang-Brown and A.M.)

Procedure for SearchIf a search is conducted under the authority of a warrant, • were all procedures for issuing the warrant followed?

• necessary requirements provided for in the statute authorizing the search • reasonable and probable grounds for believing that the searched-for materials will provide

relevant evidence of the offence and that the materials will be found in the specified place• enforcement, s.29 CC

• a) PO must have warrant with them where feasible, AND must produce it upon request • b) s.488: search warrants shall be executed by day, unless otherwise authorized• c) Common law requires PO, where feasible,

• to announce their presence (i.e. knock)• to identify themselves as a PO• give reason (we have a warrant to search…)• request entry

• d) s.25 CC permits use of reasonable force to administer the law (including searches), but the PO will be liable in criminal law and tort for any excessive use of force

Cornell (2010, SCC) Divided SCC held that the police’s execution of a search warrant for drugs in a home without knocking and announcing their entry (ramming open the door and running through the house with masked faces) was a reasonable search under the circumstances of this case, and not in violation of s.8 of the Charter.

Golden (2001): No automatic authority to conduct strip searches incident to arrest. Must have R&P grounds to believe the strip search is necessary to discover weapons or evidence related.

Search cases: Questions to Ask Yourself8

1. By what legal authority is this search conducted?2. Have the proper procedures for issuing and/or execution of the search been followed?3. Is the authority for or procedure for the search contrary to s. 8 of the Charter - i.e. the

right to be secure against unreasonable search and seizure?

Post-CharterReasonable Expectation of Privacys.8 now guarantees the right to be secure against unreasonable search or seizure.

Collins (1987) For a search to be “reasonable” under s.8 of the Charter, it must: 1. be authorized by law in statute or CL2. the authorizing law must itself be reasonable3. the “authorized” search must be carried out in a reasonable manner.

Hunter v. Southam (1984) Issue: Are the S&S provisions in s.10(1) and (3) of the Combines Investigation Act in violation of s.8 of the Charter?

s.10(1) — authorized Director of Investigation to enter and seize documents that the Director believed were relevant to investigation. s.10(3) — Before entering and seizing, Director shall get a certificate of authorization from a member of the Restrictive Trade Practices Commission.

Decision“Purposive approach” to interpreting the Charter. The purpose of s.8 is to protect people and property. It is designed to protect a right of privacy. The right against unreasonable search and seizure can be viewed as an entitlement to a reasonable expectation of privacy from government intrusion. To do so:

1. There must be a means to prevent unreasonable search before it happens = must have a warrant. (this criteria was met here)

2. The assessment of whether a search is justified must be done in a judicial fashion by an in-dependent, impartial person. (The RTPC was not independent or impartial because it has a significant investigatory function — like a PO issuing their own search warrant.)

3. A citizen’s privacy must not be interfered with unless there are reasonable and probable grounds to believe an offence has been committed and evidence is to found regarding that offence in the place to be searched. 3.1. Reasonable and probable standard could be:

3.1.1. Lower if state security is at risk3.1.2. Higher if the search involves an invasion of bodily integrity

This was not present in the CI Act, therefore the sections are unconstitutional and of no force or effect.

**Note: Because the first criteria is to have a warrant, all warrantless searches are prima fa-cie unconstitutional unless it is not feasible to obtain a warrant.

To gain s.8 protection, you must establish that you had a reasonable expectation of pri-vacy that was invaded. Look at totality of circumstances, eg. subject matter of search (com-9

puter address/informational privacy in Spencer, body fluids (Stillman), body parts, dwelling house (Tessling)) If there is no reasonable expectation of privacy, the state may conduct a warrantless search. s.8 may be waived if consent to the search is voluntary and informed as to the true purpose of the search.

Spencer - summary of totality of circumstances

Wong (1990, SCC)Video recording in the hotel room was unreasonable S&S under s.8 of the Charter. No REoP from others in the room since they could have reported him to the police. Police acted in good faith, so evidence was admitted. Lamer dissented and said there was no reasonable expecta-tion of privacy since he extended the invitation to many strangers.

Now. s.487.01 exists (since 1993) and this allows for a warrant for video surveillance or other devices (eg. tracking devices).

Edwards (1996, SCC): No reasonable expectation of privacy in girlfriend’s apartment.

Belnavis (1997, SCC): A passenger in a car has no REoP with respect to the search of bags in the passenger portion of the car (excepting maybe a purse or backpack which the passenger claims as their own).

Plant (1993, SCC): no REoP in publicly available Hydro consumption records.

Tessling - grow-op suspected, not R&P grounds to believe, overhead RCMP flight detected heat. SCC held that one does not have a reasonable expectation of privacy in the heat being radiated from their home (technology does not reveal source of or purpose for the heat).

Lack of intrusiveness is a factor in determining REoP. (Tessling, Wong, Buhay)

Sniffer dog cases:• random dog sniffing in a public place without reasonable suspicion violates s.8 of the Charter• police may perform sniffer dog searches without a warrant if there are reasonable grounds to

suspect, not believe, the presence of contra band (lowering of Hunter and Southam stan-dards)

Kang-Brown: In a bus depot, there is a reasonable expectation of privacy in bags. A.M.: Student at school. Expectation of privacy in bag.

Buhay: should have called police, smelling marijuana would have been sufficient reasonable grounds to obtain a search warrant, OR they could have called in a sniffer dog.

Gomboc (2010, SCC): Police suspected the accused was involved in a marijuana grow-op, and asked the accused’s electrical provider to install, without a warrant, a digital recording am-meter (DRA) on the accused’s power line located in a transformer box on public property. SCC held that this data can constitute sufficiently private or biographical (eg. whether anyone is home, what time occupants get up or go to bed) personal information subject to s.8 protection.

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Patrick (2009, SCC): No REoP in garbage bags in an open container at edge of property. If garbage was left on his porch or in the garage, maybe REoP would have remained.

R v. M(MR) (1998, SCC): Court held that searches of primary/elementary students persons, bags and lockers for contraband, drugs, weapons etc. by school officials is covered by s.8 of the Charter. However, school officials may conduct reasonable searches without warrant on the basis of “reasonable suspicion” (lower than H&S standards). This does not apply to POs or school officials acting as agents of the police.

The REoP of a student in attendance at a school is less than it would be in other circum-stances. In matters of school discipline, discretion and flexibility will be given to the school au-thorities, but when police conduct a body search the ordinary standard of justification applies.

Thompson Newspaper Ltd. (1990, SCC): a REoP is less for business records. Ordering a com-pany to produce documents without a warrant does not violate s.8 because it is far less intru-sive than searching premises and taking documents.

Duarte (1990, SCC): Wiretap. REoP in private conversations. Electronic interception of private communications without a warrant (wiretap warrant) violates s.8.

Search of a Cell Phone: 1. There must be a lawful arrest, 2. The search must be truly incidental to the arrest in the sense that searching the phone now,

without the delay of obtaining a warrant, appears reasonably necessary in terms of police or public safety, preserving evidence, or discovering evidence (like the location of other of-fenders or victims);

3. The nature and extent of the search is limited to the above objective and4. Police take detailed notes of what they examined on the phone and how.  The Court ac-

knowledge that these general requirements may not represent the only way a search of a cell phone incident to arrest is constitutionally valid.    

See Table of Reasonable S&S.

Harris (1987, ONCA) RBCS 193: PO seized films pursuant to a search warrant, believing the warrant was valid. Info was insufficient for the JP to determine whether there were R&P grounds. Warrant was invalid, but the evidence was admitted because 1. The PO was acting “in good faith” and 2. the police had sufficient info to justify a warrant but failed to present it all.

Hosie (1996, ONCA) RBCS 193: Court excluded drugs seized under a search warrant be-cause the info supplied by POs to obtain the warrant was “careless”. POs must not use lan-guage that would deprive a judicial officer of the ability to fairly balance the interests of the state and the individual’s privacy.

DetentionsSimpson (1993): PO may detain a person if there is a “reasonable suspicion” (objective stan-dard) that the person is involved in a crime. Lower standard than R&P grounds. • no reasonable suspicion that the accused was in possession of a narcotic because

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• information of unknown age• from an unknown source, reliability unknown• person coming out of a location where criminal activity is suspected does not automati-

cally create a reasonable suspicion • Reasonable suspicion should fall just short of “probable grounds”

Mann: Investigating a B&E, pat-down for weapons. Felt “something soft” in his front pocket. No reasonable basis to continue past a pat-down, seized marijuana excluded. Police may frisk search a person for weapons as part of an investigative detention where there are reasonable grounds to believe that the PO’s or others’ safety may be at risk.

Clayton: Investigative detention is justified if it is “reasonably necessary” based on the totality of the circumstances. 1. Nature of the situation, including seriousness of the offence2. Information known to police about the crime and/or suspects 3. Whether the detention is reasonably tailored to the offence4. The stop is no more intrusive than reasonably necessary (balance risk to public vs. liberty

of citizens)

Brown: young black male driving new SUV. Stopped allegedly for speeding, but POs detected alcohol and he was driving over .08. ONCA held they were engaged in racial profiling.

Grant: Where choice to walk away has been removed, whether by physical or psychological compulsion, the individual is detained. Reasonable person test to determine whether they were free to go.

Factors to determine whether there is a Charter detention: 1. Circumstances giving rise to the encounter (i.e. if a crime was just committed, general as-

sistance, general inquiries, or singling out an individual for focussed investigation)2. Nature of police conduct (language, physical conduct, place of interaction, presence of oth-

ers, duration of encounter)3. Characteristics of the individual: age, minority status, physical stature, level of sophistica-

tion

eg. Medical emergency, Accident or crime scene, preventative neighbourhood policing An initial, “non-detention” police encounter can turn into a detention, but police may engage in preliminary questioning of bystanders without giving rise to a Charter detention.

Suberu (2009): stolen credit card with friend, PO found them in a store. A “detention” does not necessarily arise the moment the police engage an individual for investigative purposes. Held not to be detained. Uses test in Grant. As soon as detention arises, right to counsel arises.

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Voluntariness, Admissibility of ConfessionsCommon law rules evolved from Ibrahim + Boudreau to Oickle/Spencer/Singh. Evidence must be excluded when it comes from confessions that are not voluntary.

General rule is that relevant evidence is admissible, even if obtained illegally.

Ibrahim rule (1914), adopted in Boudreau: A statement by an accused is only admissible if it is shown by the prosecution beyond a reasonable doubt that it was a voluntary statement, given without fear of prejudice or hope of advantage exercised or held out by a person in authority.

Boudreau (1949, SCC): Added to Ibrahim rule. A warning (that the accused is not obliged to say anything, but anything they say may be used as evidence), is unnecessary for a confes-sion to be voluntary (but it does make it easier).

Rationale for C.L. rule in Boudreau: concern about reliability of the confession if coerced or im-properly induced.

Wray (1971): Confessed to throwing the gun that committed the murder in the river. Also con-fessed “I killed her”. Ratio: Part of the confession may be admissible if it is proven to be true. “I killed her” was not admissible because it could not be proven.

Rothman (1981, SCC)If the Constable was regarded by Rothman as a person in authority, it was a voluntary confes-sion. Since he was not, Rothman confessed voluntarily without coercion. It was not obtained by “fear of prejudice or hope of advantage” held out by a person in authority.

Person in authority is a subjective test, not objective. Did the accused think they were talk-ing to a person in authority? NO. Therefore, the confessions rule does not apply. Dissent: He did not wish to give a statement to the police and they subverted that wish.

1. Ibrahim: Must be shown beyond a reasonable doubt that the statement was given without fear of prejudice or hope of advantage exercised or held out by a person in authority.

2. Boudreau: A warning that the accused is not obliged to speak, but anything they say may be used as evidence, is unnecessary for a confession to be voluntary (but it does make it easier).

3. Rothman: Subjective test. Did the accused think they were talking to a person in authority?

Mr. Big Confessions — Grandinetti (2005) confessions rule did not apply because the undercover POs were not “persons in authority” un-der the subjective test. However, this narrow approach does nothing to protect against confes-sions that may be highly unreliable because of the trickery used to obtain them (“abuse of process” at CL or under s.7 of Charter was rejected at trial and ABCA).

Hart (2014), the court expressed concern that Mr. Big confessions could result in wrongful con-victions. They are now presumptively inadmissible. - judge must now evaluate all circumstances: length of operation, number of interactions, na-

ture of the relationship, extent of inducements offered, any threats, conduct of interrogation, personality of accused including age, sophistication, mental health

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Moral prejudice: the jury learns that the accused wanted to join a criminal organization and committed “simulated crimes” the accused believed to be real

Exclusion of the confession is warranted if the judge concludes that the conduct of police amounted to an abuse of process.

Should Fairness be a Factor? Clarkson (1986): must have operating mind for confessions rule to apply, i.e. comprehension of what is being said (reliability), or comprehension of the consequences of making a confes-sion (fair procedures). Decided on waiver of right to counsel.

Whittle (1994): restricted operating mind test. Sufficient cognitive capacity required to under-stand what they are saying and what is said to them, including understanding of a caution that evidence can be used against them. • Mental impairment (hearing voices) does not prevent the court from declaring they had an

operating mind.

Oickle (2000, SCC)Did an inducement overbear the accused’s will? Look for a quid pro quo. Weigh the strength of the inducement in the context of the particular accused and their circumstances.

Confessions can be rendered involuntary: 1. If induced by threats or promises, an atmosphere of oppression, lack of an operating mind 2. where the police have engaged in appalling trickery

Spencer (2007): Overborne interpreted to mean ‘near mental collapse’ — high standard. Not allowed to see girlfriend until he confessed. Majority thought this was a bargaining process where the parties were not unequal. Inducement, but not strong enough to overbear a savvy criminal’s free will.

Some argue three different ways to read Oickle: 1. Oickle doesn’t change anything, but simply consolidates what was already there. 2. Oickle changes the voluntariness test by holding that in cases of inducement or oppression,

the confession is not inadmissible if the Crown proves that the inducement was not a real quid pro quo.

3. Oickle significantly changes the voluntariness rule to involve a higher standard. Asks the question of whether the inducement was strong enough to crumble the accused’s will and not only whether the inducement simply caused the accused to speak.

Even if a confession is “voluntary” per Oickle and Spencer, it may have been obtained by a vi-olation of the Charter, in which case the confession will be inadmissible if it brings the adminis-tration of justice into disrepute under s.24(2).

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Confessions and the Right to Counsel Clarkson (1986, SCC)If someone chooses to waive their s.10(b) rights, it must be made in a very clear, informed, and intelligent manner, with an operating mind. To admit the statement would bring the admin-istration of justice into disrepute.

R v. Manninen (1987, SCC) FactsArmed robbery in stolen car. M was arrested, read his rights, and said he wanted to see his lawyer. He then gave an incriminating statement. There was a telephone in the nearby office, but he did not request to use it and the police did not volunteer its use to him.

Issue: Was there a breach of s.10(b) of the Charter (right to counsel)?

DecisionPolice have two duties regarding the right to counsel: 1. The police should give the detainee a reasonable opportunity to retain and instruct counsel,

i.e. they should have told him he could use the phone. 2. The police have the duty to cease questioning or trying to get evidence from the detainee

until he has had a reasonable opportunity to speak to counsel.

R v. Brydges (1990) FactsB arrested in Manitoba on a charge of second-degree murder. Advised of right to counsel. Asked about free legal aid, was not adequately informed of availability.

Once an accused has requested the right to counsel, they must be given a reasonable oppor-tunity to consult counsel, and the state must refrain from eliciting incriminating evidence until then.

Osmond (BCCA, 2007): two-minute duty counsel phone call was not adequate access.

R v. Prosper (1994): s.10(b) right to counsel does not impose a government obligation to fund duty counsel programs for those detained outside regular business hours.An .08 breathalyzer test must be obtained within three hours

R v. Bartle (1994): ON, arrested for drunk driving and informed of rights, but was not given toll-free number to call counsel. Held that rights were violated, excluded breathalyzer sample.

R v. Sinclair (2010)Restricted scope of the right to counsel. One consultation is sufficient to satisfy the right. Ratio: A change in circumstances, not a request, will retrigger the s.10(b) right to counsel. Dissent: “Retain” = continuing relationship between accused and counsel.

R v. Taylor: Police have a duty to facilitate access to counsel at the first opportunity.

Borden (1994): Police can conduct a lawful search incident to an arrest before they have had opportunity to consult a lawyer. Right to Silence15

R v. Hebert (1990) PO posing as prisoner after H asserted right to silence. PO started conversation and was held to be eliciting information. 1. The police cannot denigrate the accused’s counsel or the advice given. 2. Statements made to an undercover PO prior to arrest or detention are not subject to the

right to remain silent. 3. Voluntary statements made to fellow cellmates are admissible if the cellmate is not acting

as a state agent. 4. A PO may listen to conversations or statements as long as they do not actively elicit info.

**A PO may continue to question and persuade the accused to speak after A has received their s.10(b) rights and asserts their right to remain silent.

R v Liew (1999): Right to silence is not violated when an undercover PO posing as a cellmate did not initiate the conversation that led to incriminating statements.

R v. Singh (2007) • Allows police to continue questioning an accused after they assert their right to silence. • Confessions rule not applicable because the statements were not obtained by inducements

or oppression.• If the accused knows it is a person in authority who is interrogating them, the confessions

rule and the right to silence are “functionally equivalent”. • If the confession was voluntary, it subsumes the right to silence. If involuntary, the right to si-

lence is infringed.

Drunk DrivingR v. Therens (1985) FactsAccused collided with a tree. The officer took him to the police station and the accused cooper-ated. Breath samples indicated his blood alcohol level was over the legal limit. He was not in-formed of his s.10(b) rights.

Decisions.235(1) of the CC allowed the officer to demand a breath sample but this violated the ac-cused’s right to counsel. 1. In using the word “detention,” s.10 of the Charter is directed to a restraint of liberty other

than arrest. 2. In addition to deprivation of liberty by physical constraint, there is a detention within s.10 of

the Charter, when a PO or other agent assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

3. Compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply.

4. S.10 applies to a great variety of detentions of varying duration and is not confined to those of such duration as to make the effective use of habeas corpus possible.

R v. Thomsen (1988)

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PO’s demand for a breath sample fit into above criteria - may have significant legal conse-quences. Evidence provided by roadside screening could not be used against T, but it might provide the basis for a s.235 breathalyzer demand. The criminal liability for refusal also consti-tuted the necessary compulsion/coercion to make this a detention. Therefore, Thomsen was detained and should have had the opportunity to obtain and instruct counsel without delay. A denial of that right was implicit in s.234.1(1) of the Code, and the court concluded that the de-nial of s.10(b) rights was justified under s.1 of the Charter.

The limitation on right to retain and instruct counsel at the roadside testing stage is reasonable because roadside breath testing increases the detection of impaired driving and the perceived risk of its detection. The right to counsel will be available at the more serious breathalyzer stage.

R v. Grant (1991): s.252(2) of CC did not authorize a demand for a roadside breath test when the police had to wait 30 minutes until another officer could bring an approved roadside screening devise. The accused’s right to counsel had been violated and in the circumstances s.252(2) did not provide a justification under s.1 of the Charter.

R v. Bernshaw (1995): The requirement to provide a sample did not require an immediate de-mand if a 15-minute wait was necessary to ensure an accurate test (i.e. the test would not be accurate if it was administered immediately after the accused had consumed alcohol). The court ruled that the accused was not entitled to counsel, as the limitation was justified under s.1.

R v. Hufsky (1988) Issue: Was the accused detained under the meaning of s.9 during a spot check procedure to check the driver’s license, proof of insurance, and to observe his sobriety? If yes, was it arbi-trary?

DecisionYes. This fell within the concept of detention outlined in Therens. PO assumed control over the movement of Hufsky by the random stop, and there was penal liability for refusal to comply with directions.

Ontario Highway Traffic Act allows a PO in the lawful execution of his duties and responsibili-ties to require the driver of a motor vehicle to stop, no restrictions. Though he was executing duties, the random stop for the spot check was arbitrary because there was no criteria for the selection of the drivers to be stopped.

A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.

But, in view of the importance of highway safety, this was a reasonable limit under s. 1.

R v. Ladouceur (1990) Same provision upheld as in Hufsky but the driver was driving with a suspended license. The court held that the legislation violated s.9.

Decision

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Cory J: As long as the police act lawfully within the scope of a statute, the random stops are justifiable under the Charter. “Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be un-dertaken based upon R&P grounds.”

Sopinka J: if sanctioned, a PO can stop any vehicle at any time, in any place, for no reason. s.9 of Charter totally negated. Would dismiss the appeal on the basis that the evidence that he was driving under suspension should not be excluded because its admission would not bring the administration of justice into disrepute.

R v. Mellenthin (1992) FactsPO asked what was in a gym bag on the front seat of the car during a random spot check. Cannabis was discovered in the gym bag when the accused opened it. Court held that s.8 rights were violated.

DecisionUnreasonable and unjustified search would unfairly affect the trial process and bring the admin of justice into disrepute. Search was not grounded on any suspicion nor any R&P cause.

R v. Orbanski (2005) and EliasFactsO was stopped because police saw him run a stop sign and then swerve across the road. PO smelt alcohol, saw glassy eyes, asked him whether he had been drinking and O said one beer. Asked to step out of the car, recite the alphabet, walking in a straight line, etc. and failed these tests. Arrested for impaired driving, advised of s.10(b) rights and failed a breathalyzer sample.

E was randomly stopped, police smelled alcohol, asked if he’d been drinking to which he said yes. Officer demanded a breath sample roadside, failed the test. Arrested and informed of rights. Consulted counsel, then failed a breathalyzer test.

Issue: Does asking about alcohol consumption or administering sobriety tests offend s.10(b), and if so, does s.1 justify the infringement?

DecisionAsking about consumption and administering tests without fully informing detainee of rights and allowing reasonable opportunity to exercise rights DOES offend the Charter. Held that this is a justifiable limitation. Dissent: limitation is not prescribed by law (i.e. in a statute), which it must be to be justified under s.1.

The CC was amended in 2008 to prescribe this limitation by law, in the Tackling Violent Crime Act.

Risk of Wrongful Conviction Royal Commission on the Donald Marshall Jr Prosecution (1989)Stabbing in a park, Marshall present with three others, victim dies. Marshall is known to the po-lice. No evidence to support that Marshall had stabbed Seale in the course of an argument. Judges of the commission were all male, all white = report taken much more seriously espe-cially since they found “The system failed Donald Marshall at virtually every turn.” 18

Police Investigation- Detective MacIntyre discounted Marshall’s version of events because

- he considered him a ‘troublemaker’, - Aboriginals were not “worth” as much as whites - used oppressive tactics to get teenage eyewitnesses (Pratico, mentally ill and Chant, on

probation) to support his assumption that Marshall was guilty - originally said they didn’t see anything

- focused on finding evidence to convict him rather than considering all evidence, contrary or otherwise

Public pressure to solve the case, existence of suspect who is “odd” or a “troublemaker”

Trial Process- standard pre-trial preparation was not followed by the Crown prosecutor (Donald MacNeil)

- he did not bother to find the reason behind the conflicting statements - did not disclose this information to defence counsel

- defence counsel let Marshall down- reason to believe they were skilled defence lawyers with considerable resources- court worker testified that they did not work as hard for Aboriginal clients

- judge refused to allow a full cross-examination of Pratico even upon being confronted with evidence that he had said he lied when he testified at the preliminary inquiry

- may have disbelieved Marshall because he is Native- his English was poor

Appeal - a court of appeal has a duty to review the record for significant errors, and ensure that any is-

sues are properly argued by counsel- the errors were so serious that a new trial should have been ordered

Correctional System- wrongfully imprisoned for 11 years beginning at age 17- released on bail (by the CA) so did not receive institutional assistance as he would have if he

had been released on parole (if he’d actually committed the crime)- system is understandably geared to assist offenders and cannot exercise control over those

who are not guilty - unique situation that the system is not set up to deal with

1983 Reference - should have been set up as a broad-ranging inquiry rather than as an appeal by Marshall- Marshall had to prepare and present a case to prove his own innocence- made unfounded conclusions regarding Marshall’s contribution to his own conviction

Racism was found to have played a role in Marshall’s wrongful conviction.

USA v. Burns and Rafay, (2001, SCC)Canadians who are accused in the US can expect to be dealt with under US law, but they will not face the death penalty because it is unconstitutional under s.7.

Wrongful Convictions19

Milgaard (1971, SKCA): 16 year old, 23 years in prison. Police coerced false statements from three young people. New evidence surfaced years later, new trial ordered but never happened. Exonerated by DNA testing in 1997. Compensation paid.

Morin (1992, ONCA): found guilty of murder and sexual assault at second trial. DNA testing carried out while second appeal was pending, 10 years after initial arrest = acquitted. Compen-sation, establishment of a commission to look into causes of wrongful convictions. - fit a profile that made people think he was the likely person (quiet, odd, etc.)

Sophonow (1981, MNCA): served almost five years in jail before conviction for murder over-turned. Released in 1985 because of serious errors in trial. Evidence too weak to order a new trial. Exonerated 15 years later. - jailhouse informants are wholly unreliable - four persons wrongfully identified him as the murderer, each identification started as “very

tentative”, but when they got to court they testified with certainty - key witness (Doerkson) was unable to pick Sophonow out of a lineup, misidentified two other

persons as the killer — inability to identify suspect should have become apparent to police

Parsons (1994, NFL): sentenced to life imprisonment, but conviction overturned and subse-quently cleared by DNA testing.

Truscott (1959, ONCA): age 14 served 10 years of sentence. August 2007, CA said miscar-riage of justice. Did not order a new trial because he would have been found not guilty.

Common Causes of Wrongful Conviction- same systemic problems

- tunnel vision by police and Crown- single-mindedly focus investigation on proving this theory- evidence ignored, discarded, or forced to fit police theory

- failure to disclose exonerating evidence- Stinchcombe (1991): prosecutors must disclose relevant evidence- Most Irish cases involved significant non-disclosure - BUT the Crown can only disclose what the police give them

- false confessions- police manipulation of false confessions- hard to believe people confess to crimes they did not commit

- disturbed persons seeking notoriety or attention, oppressive police questioning - Simon Marshall: confession, prone to lying, mental instability, inconsistencies in con-

fession should have alerted police — simply an “easy patsy” - People most susceptible: sleep deprived persons, persons suffering from withdrawal,

persons with IQ’s below average, young persons - use of jailhouse informants

- Sophonow- mistaken eyewitness evidence- junk science and false expertise

- Dimitrov convicted of murdering landlord in Ottawa based on “barefoot morphology”- assumed it was like a fingerprint- wrongfully convicted

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- Driskell “microscopic hair comparison”: hair fibres compared to hair found on victim, later DNA showed none of the hairs were from the deceased and actually were from four different people

Noble cause corruption: the police are so convinced that they have the suspect that they cre-ate or plant evidence to back up their opinion

Factual innocence does not fall within the purpose of criminal law. A criminal trial is to deter-mine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty.

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Discrimination in the Criminal Justice SystemFeminist critique: criminal law is conceived and enforced by men, for men, against men, but it masquerades as if it is objective and non-gendered. - oaths on Bibles = religious minorities must declare in court their “deviance” from Christianity- technical procedures and language of courts excludes minorities

Tran (1994): In the interests of a fair trial, the Charter guarantees translation for an accused who does not understand or speak the language of the Court. - however, competence and impartiality on the part of interpreters is a problem

s.14 is not violated if an interpreter lacks formal training or if no interpreter is provided to facili-tate communications between accused and counsel (R(AL), 1999, Man CA; Rybak, 2008 (ONCA))

References to foreignness in court proceedings: 1. Bad Apple cases: references that are obviously hostile or suggesting bias2. Hidden Agenda cases: comments made in hopes of prompting an adverse reaction to an

individual3. Apparently Benign cases: where references to foreignness seem sympathetic

Commission recommended that the relevance of all references to foreignness be scrutinized before they are introduced in court.

R v S(RD) (1997, SCC)Facts15-year-old black youth charged with assault of a PO. The only evidence was conflicting testi-mony of the accused and the arresting officer. Trial judge was black, commented that POs had been known to mislead the court in the past and to overreact to non-white groups.

Issue: Was the trial judge biased against the PO?

DecisionAccused acquitted. L’Heureux-Dubé and McLachlin JJ: Trial Judge did not in fact relate the officer’s probable over-reaction to the race of the accused, but if she had it would not have been an error.

Cory J: History of racial tension, but no specific evidence to link that to the officer’s actions. Judge may have predetermined the officer’s credibility on the basis of her own perception of racist police attitudes rather on his demeanour and testimony. Comments were unfortunate and unnecessary, but a reasonable, informed person would not conclude that this gave rise to bias.

Major J, dissenting: courts have criticized the stereotyping of people into predictable behaviour patterns. Sex work example used. Jurisprudence prohibits tying credibility to something as ir-relevant as gender, occupation, or perceived group predisposition. Trial judge’s comments fall into stereotyping the PO and therefore failed to base her conclusions on evidence.

Report of the Aboriginal Justice Inquiry of Manitoba (1991) 22

Created in response to two incidents. 1987 case for murder of Osborne. Took 16 years to bring the case to trial. 1988, Harper died after encounter with PO. The next day PO exonerated.

• Aboriginal people overrepresented and the proportion has increased significantly. • Aboriginal people receive 2.5 times more sentences that involve incarceration. • Systemic discrimination likely. • Jails do not pay sufficient attention to the importance of elders and spirituality. Absence of

elders is in stark contrast to the number of Christian chaplains. • 62% of Aboriginal inmates speak an Aboriginal language at home, but few staff in jails

speak an Aboriginal language and no programs are offered. Communication problems abound.

Aboriginal women face double discrimination. They should be given positions of responsibility in the justice system. Role of women in Aboriginal society is not well understood in non-Aborig-inal circles, but a resumption of their traditional roles is the key to putting an end to their mis-treatment.

Aboriginal Justice Systems should be put into place, including criminal, small claims, and child welfare, to include cultural laws and such part of federal and provincial laws as each commu-nity selects.

Incarceration should be a last resort and only where a person poses a threat to another individ-ual or the community, or where other sanctions would not reflect the gravity of the offence.

B. Wildsmith, “Getting at Racism: The Marshall Inquiry” (1991) Racist belief or doctrine = prejudiceRacist act or practice = discrimination

Structural racism: inequalities rooted in the system-wide operation of a society which exclude substantial numbers of members of particular ethnic categories from significant participation in its major social institutions.

“Only if the justice system eliminates race as a factor influencing negative treatment…should we refrain from calling it racist.”

Report of the Commission on Systemic Racism in the Ont. Justice System (1995) • Commission established in 1992 to inquire into systemic racism. Anti-black was a focus. Ex-

amined practices, procedures, policies in police, courts, and correctional institutions.• Perception: most people believe judges do not treat black people the same as white people• Systemic racism: the social processes that produce racial inequality in decisions about peo-

ple and the treatment they receive• Racialization: classifications of people into racial groups by reference to signs of origin, and

judgments based on these signs about their character, skills, talents, and capacity to belong in Canada

•

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• Black people are massively over-represented in prisons. Aboriginals are also overrepre-sented but to a lesser extent.

Commission recommendations: - police should be required to explain their decisions to detain people- education for judges should emphasize avoidance of discriminatory assumptions

Dominant Issue: Mandatory charging policies in family violence cases- two conflicting views about whether these policies protect women from radicalized communi-

ties- mandatory charging may be driving family abuse underground

- people who require protection but are unwilling to pursue criminal prosecution may not call for police protection from violence

- directives to charge and prosecute are not treated as mandatory by the police and attor-neys when the victim is from a racialized community

Court Dynamics- judges and lawyers frequently refer to foreign origins or backgrounds of the accused, some-

times of victims or witnesses also- generally it is hard to discern any purpose for this - occasionally it was mentioned as a reason for a harsh decision about an accused person- under-representation of racialized persons among jurors, judges, and lawyers creates a

sense of exclusion

Imprisonment after Conviction- sentencing is highly discretionary - white people are less likely to be sentenced to prison than black people

- most pronounced among those convicted of a drug offence- the average prison terms of black prisoners were shorter than those of white prisoners

- black persons are more likely to have been imprisoned before their trial, so they are given a ‘credit’ for this reason

Racism in Prison: may play a role in control within the prison- limit access to benefits like social programs, discretion to impose punishment

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Pre-Trial ReleasePre-Trial Detention is justified on the grounds that: 1. It is necessary to detain the accused to ensure their attendance in court. 2. It is necessary in the public interest or for the protection and safety of the public. 3. If necessary to maintain confidence in the administration of justice. (added after Morales)

3.1. The apparent strength of the prosecution’s case3.2. Gravity of the offence3.3. Circumstances surrounding the offence; firearm used3.4. The fact that the accused might get a very long sentence

Criminal Code s. 515 — creates presumption in favour of release. Directs courts to release people ex-cept in specific circumstances. Unless guilty plea, or section 469 offence, justice shall order release of individual with least restrictive conditions, unless the prosecutor shows cause why the detention of the accused in custody, or the applications of conditions to the release are justified. “Show Cause” Hear-ings.s. 515(2) — with or without sureties. s. 515(5) — where prosecutor shows cause for justified detention, justice shall include a statement of his reasons for making orders. 515(6) — onus on accused to show cause

indictable offences committed on bail; as part of a criminal organization; terrorist offences; weapon offences; non-resident charged with indictable offence; failure to appear; trafficking, importation of drugs

s. 515(10) — set out three grounds on which detention is justified

Reverse Onus: s. 515(6); s.522(2) for s.469 offences (murder, etc.) — accused must show why pre-trial custody is not justified.

Issue: Is this a Charter violation, and is it justified?

• Bray (1983): Reasonable limitation, even if it prima facie conflicts with s.11(e). Even if it did, it would be justified under s.1.

• Pugsley (1982): Reverse onus inconsistent with s.11(e). OVERRULED BY PEARSON• Pearson (1992): Drug trafficking creates context where “special bail rules” are justified — narrow

scope. s.11(e) creates a basic entitlement to be granted bail unless there is just cause to do other-wise.

• Morales (1992): Is s.515(10)(b) unconstitutional? • “Public interest” component is unconstitutional — struck down for vague and overbroad. Denial of

bail without just cause. Public safety grounds do not violate Charter. • Determining Just Cause under s.11(e):

• denial of bail must occur only in a narrow set of circumstances• denial of bail must be necessary to promote the proper functioning of the bail system

• bail denied to those who pose a “substantial likelihood” of reoffending or interfering with administration of justice, where this likelihood endangers the public and is necessary for public safety

• s.515(10)(c) added to CC • Hall (2002): Is s.515(10)(c) unconstitutional?

• “or any other just cause being shown” is unconstitutional and inconsistent with presumption of in-nocence. Parliament cannot confer such broad discretion on judges, but must lay out specific cir-cumstances for denial (Pearson, Morales).

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• the rest of it is constitutional. • Dissent: for five years, no evidence the bail system was in need of a tertiary ground. Court

should guard rights, uphold constitutional standards against irrational and subjective fears of the public. (c) is ripe for misuse, elevating public fears above Charter rights, threatening presump-tion of innocence.

Judicial Interim Release = bail Bail Reform Act 1972, and s.11(e) of Charter provide that those charged with an offence have the right not to be denied reasonable bail without just cause.- because he was charged with murder, Marshall, not the Crown, would have to show why his

detention was not justified - he could only be released on bail after a bail hearing in the superior court instead of a

regular bail hearing held before a JP- Aboriginals are more likely to be held in pre-trial detention

- partly to ensure they attend their trial

Pre-Trial Detention is justified on the grounds that: 1. It is necessary to detain the accused to ensure their attendance in court. 2. Detention is necessary in the public interest or for the protection and safety of the public.

Risk of conviction is HIGHER if you are in pre-trial detention. People in pre-trial detention tend to plead guilty to get it over with faster. Guilty pleas were to a certain extent induced by this.

If you’re in jail pre-trial, - lawyer has to come to you, so less opportunity to consult counsel and prepare a defence - personal and family disruption - loss of income- more severe sentences- loss of liberty, often in poor jail conditions- higher rate of guilty pleas- no opportunity to get help (eg. for drinking problem, which may be a factor in sentencing

once the trial comes around)

1 year in pre-trial is far worse than 1 year in post-trial jail. - no programs- no early release

- in post-trial, after 1/3 of time, possibility to get out on parole and then mandatory supervi-sion

When the police arrest you, they make a decision whether to give you a summons or take you to the jail. Then the officer in charge looks at it, and decides whether to release you on one of the two grounds (you’ll come to trial and you won’t reoffend).

Ladder approach, burden on the crown, the test for release or detention is 515(10)

Morales (1992, SCC)Facts

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Drug trafficking, allegedly in a major network. At time of arrest, accused was awaiting trial for assault with a weapon, an indictable offence for which he has since been convicted. Bail was denied at the hearing.

Issue: Is the secondary ground of detention constitutional?

Decision“Public interest” is too vague a term that gives courts unrestricted latitude to define any circum-stances as sufficient. Therefore, it violates s.11(e) of the Charter because it authorizes a denial of bail without just cause. Public interest is not justified under s.1.

The public safety ground does not violate s.11(e) of the Charter. It is sufficiently precise and narrow to justify pre-trial detention.

Dissent: the public interest ground is consistent with “just cause”. Broad concept that includes the interference with the administration of justice.

Hall (2002,SCC)FactsBrutal murder. General sense of fear that there was a killer at large.

DecisionBail may be denied in three situations (s.510(10)(c)): 1. To ensure the accused’s attendance in court2. To protect the public or ensure their safety3. Any other just cause being shown and, without limiting the generality of the foregoing,

where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prose-cution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

“Any other just cause” is unconstitutional. Parliament must lay out narrow and precise circum-stances in which bail can be denied. “Any other just cause” violates Morales, and is inconsis-tent with the presumption of innocence and s.11(e). The next clause is unconstitutional as well because it’s also too general. The rest of it is fine, tho.

Dissent: Contextual. Parliament waited five years before reacting to Morales, suggesting that there was no indication that the bail system required a tertiary ground. The provision is ripe for misuse, allowing irrational public fears to be elevated above the Charter rights of the accused. The court cannot consider subjective fears of members once it is determined that the accused should not be denied bail for fear of flight or threat to the public. The provision’s purpose is to allow subjective fears to form the basis on which bail is denied. Though it may cost courts pop-ularity, that does not justify a failure to uphold fundamental freedoms and liberty.

National Council of Welfare: - concerned about the treatment of poor Canadians- many low-income Canadians are imprisoned because they can’t pay fines- poor people who cannot get legal representation end up with criminal records

- condemns them to a lifetime of poverty b/c they are unable to get a job27

- low-income suspects less likely to be freed on bail- greater proportion sent to jail until trial

- Canada has twice the rate of the US of imprisonment of young people - Young Offenders Act led to an increase in incarcerated young people- solution: deal with conflicts within families, schools, community instead of locking young peo-

ple up with experienced criminals- treat young girls more severely than adults and young boys because they want to “fix” their

misbehaviour and “protect” them by criminalizing their entire social behaviour

Imprisonment may be harder for women because there are fewer women’s prisons, making the distances longer between prison and their community. A greater proportion were victims of abuse so the impact of confinement is more severe.

Classification of OffencesAvailability of preliminary hearings and jury trials depends on the classification of offence. 1. Summary

1.1. Generally up to $2000 fine, 6 months imprisonment1.2. Triable by JP or provincial court judge under Part 27 of CC

2. Indictable2.1. Three types of indictable offences 2.2. s.553, less serious indictable offences — accused cannot elect to be tried by a higher

court or with a jury2.3. s.469 — must be tried by a superior court of criminal jurisdiction WITH JURY unless

accused and AG consent to a trial by judge alone under s. 473 2.4. Remainder — may elect to be tried in one of three ways:

2.4.1. provincial court judge without a jury, without preliminary hearing2.4.2. judge with jury with a preliminary hearing2.4.3. judge with jury and preliminary hearing

2.5. Even if the accused elects for no hearing or no jury, the judge under s.555 may de-cide to hold a preliminary hearing

2.6. AG may require trial by jury under s.568 if the offence is punishable by more than 5 years imprisonment

3. Hybrid3.1. If crime is not serious, may be tried summarily. If the same crime is more serious, it

may be tried by indictment. The prosecutor elects to choose which way to proceed. 3.2. Assume it is indictable — upon arrest the PO will treat it as such. 3.3. Can be tried by either procedure, Crown’s choice

Reality: majority of accused persons are tried in provincial court without a preliminary hearing or a jury.

Information — official, formal charging document signed by a JP 1991: SCC held that the accused is now entitled to full pre-trial disclosure

Indictment — official, formal charging document after the pre-trial hearing- judge’s confirmation that there is enough information to proceed with a trial

Preliminary Inquiries• Generally available for indictable offences not tried by a provincial court judge

• not automatic28

• purpose of this hearing is to determine if there is justification for putting the accused to trial for an indictable offence

• Crown must present evidence• accused is entitled to present evidence but need not

• cannot apply at the preliminary inquiry to exclude evidence • witnesses who testify at a prelim inquiry are heard under oath and may be cross-examined • Arviv (1985): depriving an accused of a prelim inquiry does not in itself violate s.7 of the

Charter • AG or delegate can order direct indictment

• bypass constitutes going straight to trial instead of having a prelim inquiry • eg. biker gang, witnesses could be in danger, rush to trial, i.e. for a higher public interest • even if you have prelim inquiry and the judge does not commit, the AG can override it by

issuing a direct indictment • s.568 override — can have a prelim inquiry if you choose, but then goes straight to judge

and jury

CounselDefence does not have to disclose their strategy, but alibis or mental health claims must be disclosed.

Boucher (1955, SCC)The role of the prosecutor excludes any notion of winning or losing; the prosecutor’s purpose is not to obtain a conviction, but rather to put all credible evidence fairly and firmly before a judge or jury for them to decide whether the accused is guilty or not guilty. ———AG is chief prosecutor but must separate political role as a member of Cabinet from prosecuto-rial role. Can be delegated to Assistant Deputy or Director of Public Prosecutions (NS) or “Spe-cial Prosecutor”, an experienced private lawyer.

Anderson (2014, SCC)The prosecutor’s decision on charging is not reviewable by the courts unless there is abuse of process. A prosecutor’s “tactics or conduct before the court” can be judicially reviewed result-ing in penalties like contempt proceedings, cost awards, or orders to comply.

No constitutional requirement for Crown prosecutors to consider Aboriginal status when decid-ing whether to seek a mandatory minimum sentence for drunk driving.

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