Criminal LAW 420C Term 1

Transcription

1 Criminal LAW 420C Term 1 Intr t Criminal Law - Criminal law is imprtant because: Interact with cncepts f human cnditin; law prhibits certain cnduct by individual Law reflects sciety s cllective mrality/values Tensin between state actin and individual liberties (Charter rights) Fundamental principles f justice Learn hw crimes and punishments are defined, and defenses t them Principles f statutry interpretatin Criminal Justice System & Criminal Prcedure Intr t Criminal Justice System -Criminal laws passed by legislative branch, enfrced by executive branch and applied by judicial branch Exclusive authrity fr passing criminal law given t Parliament in Cnstitutin: Criminal Cde Drugs are majr surce f prsecutin: Cntrlled Drugs Substance Act (CDSA) Criminal laws updated by Parliament t address safety, mrality r health cncerns in natin - Prvincial legislatures have pwer t pass and enfrce laws with prhibitins and penalties, even jail Regulatry; nt criminal ffenses (e.g. Highway Traffic Safety Act) Driving ffenses represent cntinuum (prv t fed); e.g. speeding vs dangerus driving -Enfrcement by executive branch: plice (municipal and RCMP) and Crwn prsecutrs Plice detect crime (r it s reprted), frm investigatin, lay charges, file reprt with Prsecutr s ffice, then Crwn prsecutes individual until verdict and sentencing -Judges make laws related t defenses, nt ffenses (criminal cmmn law); defenses can be in Cde -What is a crime? Statute that includes a prhibitin and penalty, enacted t serve public purpse such as peace, rder, security, health, mrality (SCC) Any act/missin deemed injurius t public and prsecutable in criminal prceeding -3 stages f Canadian criminal law: : Statutes and cmmn law derived frm England : First Criminal Cde f Canada enacted (came int frce 1893) : Majr revisins/mdernizatin t Cde (nw updated regularly, theretically) -All criminal ffenses are in Cde r CDSA Only remaining ffense fr judges t determine = cntempt f curt (specifically nt defined) -Aspects f adversarial/accusatry system: 1. Triers f law (judge) and triers f fact (judge r jury) relatively passive but make decisin at end Jury trials: judge gives charge, jury decides what evidence they believe / level f dubt Jury verdict can nly be set aside by declaring mistrial (e.g. tainted evidence) Judge-nly (mst): Referees curtrm, hears evidence/ cunsel submissins, decides 2. Cunsel represents parties and expected t argue their side Each respnsible fr martialing evidence and advancing their wn case; nt required t help the ther side 3. Prf beynd a reasnable dubt required Higher than balance f prbabilities (civil standard); nt as high as abslute certainty, but clser t certainty 1

2 Prsecutr has nus t prve guilt; accused need nt prve inncence (right t silence) 4. Trial by jury available fr serius cases Indictable ffenses (murder, sexual assault); mst ffenses are hybrid -Structure and hierarchy f curts: Levels f curts that hear criminal trials: Prvincial Curt f Alberta (Criminal Divisin) Judges appinted by prvincial legislatures frm bar Hears trials fr all crimes but s.469 (murder) Superir Curts f Alberta (ABQB and ABCA) Judges appinted by PM with assistance f fed Minister f Justice Decisin frm ABCA with dissent = right f appeal t SCC, therwise seek leave Federal Curt f Canada (trial and appeal divisin) Judges appinted federally; deal with all fed laws except Criminal Cde & CDSA -Precedent and stare decisis Decisins f higher curts binding n lwer curts; biter cmments nt binding but persuasive -Criminal lawyers = prsecutrs and defense cunsel Federal prsecutrs: CDSA and nn-criminal federal statutes (e.g. Fd and Drug Act, Fisheries) Prvincial prsecutrs: all Criminal Cde ffenses Prsecutrs have wide range f pwers including discretin whether r nt t prsecute Prsecutin standard: Reasnable likelihd f cnvictin (mre likely than nt) Crwn must cnsider: what material evidence is likely t be admissible, weight t be given t admissible evidence, likelihd f viable (nt speculative) defenses Prsecutrs nt seeking cnvictin but have duty t press case t its natural strength Public duty t lay befre jury what it cnsiders credible evidence relevant t crime Crwn must als cnsider public interest in favur f and against prsecutin Main differences: Crwn must fully disclse evidence/infrmatin fr case t defense Defense lawyers must fllw rule f law, rules f ethics and rules f evidence; within that, fight as hard as pssible fr client -R v Nixn (SCC) Facts: Crwn agreed t pursue lesser charge (fine, nt criminal), then reneged; defense asked curt t frce Crwn t renew deal (bth sides rely n ther t keep their wrd) SCC prvided analysis f Crwn s duties and rights: Decisin t lay r stay charges, take ver private prsecutin, r accept plea t lesser ffense lies slely with Crwn (nt subject t review absent abuse f prcess) Overview f Criminal Prcedure -3 types f ffenses: Straight indictable ( felnies in US): e.g. murder Hybrid (crwn can elect t prceed summarily r by indictment): e.g. theft Summary ( misdemeanrs in US) -General prcedure: Crime alleged t have been cmmitted Plice investigate (length f investigatin varies widely) Plice lay charge (swear infrmatin befre judge/justice f peace) Prsecutin takes ver sn after arrest with Infrmatin Fr minr ffenses, accused can be released n prmise t appear ; fr majr ffenses, may be released with cnditins r n bail Fr 469 ffenses (murder), nus n defense t prve why he shuld get bail 2

3 All ther ffenses; crwn must shw cause (prve why he shuldn't get bail) 3 grunds t ppse bail (Crwn s discretin): Primary - ensure they attend curt Secndary - fear f endangering public r impeding case Tertiary - release wuld bring administratin f justice int disrepute Set trial date r chse nt t; if evidence strng, may reslve befre trial (guilty plea) If Crwn elects indictment, accused has chice between straight t trial r preliminary inquiry Hearing cnducted t determine Is there any evidence upn which a reasnably instructed jury culd cnvict? lwer standard than beynd reasnable dubt Allws bth sides t test strengths/weaknesses f case and witnesses If n sufficient evidence fund, judge decides charge(s) must be dismissed Trial is set; functin f Infrmatin ends and Crwn files indictment Accused enters plea and electin f jury r judge-nly is determined Judge vs jury: strategic chice depending n ffense, wh judge is, will accused testify Crwn can file direct indictment: n prelim, g straight t trial in superir curt -Trial prceeding: Crwn gives pening statement; defense nly gives statement if it calls a case later Jury swears ath t stay impartial and d their best Crwn calls first witness, then fllwing witnesses (all bund by ath) direct examinatin fllwed by crss-examinatin by defense fr each (different rules/strategies fr direct vs crss) All supprting dcumentatin filed and real evidence submitted is brught int Crwn s case Crwn clses case; defense has chice t call r nt t call Accused s right t silence cannt be used against them t infer guilt Defense s case fllws same prcedure; finishes with the defense rests Bth sides give clsing arguments (submissins t jury/judge with their theries) In jury trial, judge gives charge (applicable law, standard f prf, evidence, etc.) Jury deliberates until reaching unanimus verdict; hung jury results in mistrial Jury delivers verdict; if acquitted, accused free t g; if cnvicted, sentencing takes place Bth sides make submissins fr prper sentence (smetimes jint recmmendatin) 30 days t file ntice f appeal t higher curt, if lsing side believes errr f law was made Vast majrity f trials never get appealed Evidence and the Charter Evidence -Crwn must prve case beynd reasnable dubt piece-by-piece by intrducing evidence -4 general surces f evidentiary rules: 1. Criminal Cde 2. Statute/Canada Evidence Act (pertains t evidence fr all federal statutes, Criminal Cde, CDSA) 3. Cmmn law (judge-made evidentiary rules that evlve with time) 4. Charter f Rights and Freedms Charter evidentiary rules are entrenched; take precedence ver the ther 3 Sme cmmn law rules have taken n cnstitutinal glss (e.g. cmmn law cnfessins rule adpted as part f s.7 prtectins) -T be admissible, evidence must meet 4 qualificatins: 1. Relevant t fact in issue 2. Prbative value exceeds its prejudicial effect 3

4 Prbity is essentially synnymus with relevance; highly prbative vs speculative 2 kinds f prejudice: mral (draw cnclusin abut accused because they are bad persn ) and reasning (prcess becmes distrted thrugh imprper use f evidence) 3. Nt excluded under cmmn law r statutry exclusin rule 4. Cmplies with Charter Evidence can be excluded at this stage if btained in unlawful manner by state -Examples f admissible/inadmissible evidence: Accused s criminal recrd is imprtant piece f evidence excluded under 2 nd test- extremely mrally prejudicial ( a dg that bites ), and 3 rd test- cmmn law rule that Crwn cannt intrduced bad character references (unless accused intrduces his character first) Cmplainant's sexual histry n lnger admissible evidence (since 90s); reasning prejudice Sme rare exceptins (e.g. recent cnsensual sex b/n accused and cmplainant) Als excluded under s.276 f Criminal Cde (inadmissible if prpsed t make cmplainant less credible r mre likely t have cnsented) Accused s cnfessin meets all qualificatins Highly relevant and prbative (n ne lies t put themselves at disadvantage) Nt excluded under cmmn law r statute (except cmmn law cnfessins rule) Nt excluded under Charter as lng as it desn t breach a right Cnfessin is exceptin t the general hearsay rule (statement against interest) -Hearsay rule Tw defining features: 1. Out-f-curt statement intrduced t prve cntents f statement 2. Absence f cntempraneus pprtunity t crss-examine declarant f statement Classic hearsay situatin invlves 4 elements: Declarant, Recipient, Statement, Purpse Typically excluded because: Can t simply accept truth withut pprtunity t test; crss-examinatin crucial Witnesses are human beings wh can suffer frm insincerity, frgetfulness, bias Exceptins: dying declaratin, statements against interest Other exceptins intrduced in 90s frm series f cases (e.g. KGB; yung child tld dctr abut mlestatin by family member, later frgt) Hearsay admissibility turns n purpse f its being tendered e.g. is it being used nt fr truth f its cntents but t explain events in lgical fashin r crrbrate ther evidence E.g. plice dispatched n call fr suspected impaired driver (nt admitted t determine identity but t explain why next thing happened) E.g. statements/actins by thers prvking vilence r rage in accused Exceptins: cnfessins t nn-authrity figures, verheard cnfessins - Cmmn law cnfessins rule Applies t any statement (ne wrd/sentence) r even a gesture (shrugging) Whenever Crwn wants t tender statement given by accused t persn in authrity, must prve it was vluntary beynd a reasnable dubt Persn in authrity: agent f the state Individual frmally engaged in arrest, detentin, examinatin f prsecutin f accused Subjective and bjective elements: Accused must believe it is a persn f authrity wh can influence prceedings Actual relatinship between agent receiving statement and plice/prsecutin Accused must prve persn receiving statement was agent; difficult if undercver cp After persn f authrity is prven, cmmn law cnfessins rule engages 4

5 Typical circumstances f invluntariness: 1. Inducement (quid pr qu): Statement made as result f fficer s threat r prmise Desn t matter if fficer kept their wrd; nt permitted t make deals Individual circumstances f accused cnsidered; may take mre t induce sme If inducement was a threat, might als fall under categry 2 2. Oppressin Overbearing actin that may raise dubt abut vluntariness E.g. physical manipulatin (keeping accused in cld cell then bringing int warm rm); actual vilence; psychlgically verbearing (hard t prve) 3. Operating mind Accused must have cnscius mind; aware he is speaking Age and intelligence nt relevant; can t be extremely high r drunk SCC: sufficient cgnitive capacity t understand what he is saying and ability t knw evidence can be used against him 4. Plice trickery May be excluded under cnfessins rule; trickery is a high standard E.g. Nt just undercver but imitating Legal Aid lawyer telling him t cnfess Vluntariness prven in a vir dire Held anytime evidence sught t be admitted by a party (usually Crwn) is cntested Trial within a trial ; cnducted by trier f law nly Evidence intrduced, witnesses examined, arguments given, judge decides if Crwn has prven beynd reasnable dubt that evidence is admissible If Crwn fails t prve vluntariness, remedy is exclusin Histrically, evidence was rendered inadmissible because inaccurate, but derivative evidence that crrbrated part f statement culd still be admitted With Charter, breach f cmmn law cnfessins rule has cnstitutinal status - cnsidered breach f s.7 (right t silence and right against self-incriminatin) Any evidence derived frm breach may be rendered inadmissible under s.24(2) Test: wuld admissin f evidence bring the administratin f justice int disrepute? Derivative evidence Defense must shw link between invluntary cnfessin and finding f evidence If sle reasn fr finding it was unlawful cnfessin, curt likely t exclude If evidence is extremely reliable and significant, curt likely t admit Balancing act; evlves ver the years with different makeup f curts Cnstitutinal right t silence under s.7 is rted in tw cmmn law cncepts: Cnfessin rule (prperly btained by authrities) Privilege against self-incriminatin (nt required t speak t plice r testify at trial) Cnfessins rule applies whether in plice custdy r nt When detained by plice, mre rbust applicatin -Sectin 10 f Charter s.10: Every individual has the right n arrest r detentin t: a. Be infrmed prmptly f reasns fr arrest/detentin b. Retain and instruct cunsel and be infrmed f that right c. Have validity f detentin and be released if detentin is nt lawful Applies nly after detentin; distinguishing feature frm cnfessins rule First 2 rights trigger immediately n detentin: 5

6 a) If charge changes (e.g. cmplainant dies), must be infrmed again b) If nt given chance t speak with lawyer within minutes, anything said may be inadmissible; if jepardy changes, must be given anther pprtunity 3 types f detentin: Physical (handled by fficer in sme manner) Psychlgical with legal cnsequences (cmply because legally cmpelled) Psychlgical withut legal cnsequences (nt legally cmpelled but persn reasnably believed they were detained) Mst difficult fr curt t determine Often peple assume lawful authrity means they must cmply Cnsider circumstances: purpse f detainment, nature f cnduct, characteristics f accused Burden f prf Crwn must prve vluntariness f statement beynd reasnable dubt Accused carries burden f prf fr Charter breaches Must prve n balance f prbabilities: 1. Charter right applied, 2. Right was breached, and 3. Evidence shuld be excluded Once detentin/arrest established, accused must shw if he was tld why; just enugh infrmatin t cnvey reasn (nt ften an issue) Right t Cunsel: s.10(b) Fr right t cunsel t be effective, must have access t lawyer s advice befre being questined r required t give statement Balance playing field against verwhelming/cercive pwer f state Breach cmmnly results in statement being excluded; cnnects t right against self-incriminatin and right t silence 'Bridges call': since this case, accused must be given wrking phne and legal aid 24/7 lawyer t give basic advice Must exercise reasnable diligence; can t wait until chsen lawyer available Exceptin: curt fund in Thmpsn while pulled ver fr radside test (screening device) yu are detained but n right t speak with lawyer Infrmatinal and implementatinal cmpnents: Infrmatinal: tell accused abut right t cunsel withut delay Objective - did circumstances exist that shuld've led plice t realize accused didn't understand their rights? (language, age, capacity) Can be waived if a reasnable basis fr plice t cnclude that accused understd the waiver and hw rights can be exercised Implementatinal: give accused pprtunity t exercise right Only defeated if accused is nt reasnably diligent in pursuing it, waives it, r exigent circumstances discurage it (Crwn must prve) If accused is duly diligent but cannt cntact cunsel, right t cunsel has nt been satisfied and prtectins remain intact R v Sinclair (Oct 2010) Rati: It is up t accused t exercise right t cunsel diligently; nt an nging right Facts: S arrested fr murder; 2 brief phne cnversatins with lawyer (3 mins each); said he was satisfied with advice dn t say anything imprtant and plice may lie and exaggerate t get cnfessin ; when cp brught frward incriminating evidence, accused asked t speak t lawyer again; tld he exhausted his right Majrity (5): 6

7 10(b) des nt mandate defence cunsel be present during interrgatin Right t legal advice is relevant t situatin; yur right is tempral, nt nging "Upn arrest r detentin" = discrete pint in time (must balance with need fr plice investigatins t prceed reasnably and efficiently) Once yu exercise r waive yur right t cunsel, it is exhausted Exceptins: irregular prcedures, change in legal jepardy, accused nt understanding legal advice (r plice undermine it) Detainees have abslute right t silence, s ultimate pwer; unless situatin changes that initial advice is adequate Binnie J (dissenting): Right t cunsel must be effective and nging (therwise just play a recrding) As infrmatin unflds in investigatin, accused may need mre rbust advice Interviews are a test f wills; plice wear them dwn, build up trust Unless fficer is very verbearing, n quantitative limit t repeated questining Fish & Lebel (dissenting): Majrity rule recgnizes new plice pwer fr unlimited interrgatin f detainees wh chse t remain silent; undermines presumptin f inncence and implies duty t cperate with state R v Herbert; s.7 rights shuld be mre rbust when detained, nt less French versin f 10(b): right t assistance f lawyer implies thrughut R v Willier Rati: N duty n plice t ensure quality f accused s right t cunsel Facts: Accused requested t speak with certain lawyer but culdn t get in tuch; spke t duty cunsel briefly Held: If nt satisfied with advice, call anther lawyer right then; yur right is exhausted nce yu emerge frm phne bth; plice need nt be cncerned with quality Reasnable amunt f time t cntact chsen lawyer depends n case, but time is essential t plice and accused must shw due diligence Prsper warning: can't cntact chsen lawyer, then chse nt t cntact any ther cunsel; plice must warn yu f circumstances accmpanying ceding f legal right R v Taylr Rati: Until access t cunsel given, plice must delay questining r btaining evidence Facts: car accident, plice arrested T fr impaired driving causing bdily harm based n visible signs; infrmed f right t cunsel, T said yes lawyer n stretcher in ambulance; never given chance t call lawyer in hspital; bld taken was tested, ver legal limit Issue: Can bld sample frm hspital be admitted as evidence fr impaired? SCC fund the fficer frgt implementatinal part f 10(b); n right t cunsel given Held: Duty t infrm arises immediately upn arrest and duty t give pprtunity arises when detainee asks t exercise right; must hld ff questining r btaining evidence Crwn bears burden f shwing delayed access t cunsel was reasnable; if bvius impediments (e.g. accused is uncnscius r desn t speak English) must wrk arund it Curt fund serius breach and applied Grant analysis t determine admissibility R v Hart Rati: Cnfessins arising frm Mr. Big peratins are presumptively inadmissible Facts: H s daughters drwned; Mr. Big undercver peratin set up; paid $15K, given fancy lifestyle, ffered prtectin/friendship as c-cnspiratr in criminal peratins; cnfessed t drwning daughters and shwed fficers hw he pushed them int water 7

8 Issue: Cmmn law cnfessins rule desn t apply t undercver peratins b/c n belief f speaking t agents f state; Charter 10 (a) and (b) nt applicable because nt arrested r detained; cncern that statements arise frm manipulatin r cmpulsin Held: Evidence shuld be excluded Reasns (McLachlin CJ): Cnfessin resulting frm Mr. Big peratin like this is prejudicial (bad character evidence) and pssibly invluntary (pwerful inducements) Currently allwed under exceptin t hearsay rule New cmmn law rule: these cnfessins are presumptively inadmissible; Crwn must establish n balance f prbabilities that prbative value utweighs prejudicial effect (same test as all ther statements, except presumptin) Prbity/reliability: length f peratin, nature f relatinship, presence f threats, plice cnduct, circumstances f accused, descriptin f mundane factrs, leads t discvery f ther elements f crime Prejudicial effect: Mral (evidence f ther crimes) and reasning (distracts jury frm fact-finding) SCC fund evidence mre prejudicial than prbative; H vulnerable, n external reliability, n prf withut cnfessin, mnths f bad character evidence Mr. Big and Undercver Operatins Reliability: plice can mislead accused abut factual circumstances r evidence they have, but NOT abut law r legal jepardy (culd lead t breach f 10(a)) Greater imbalance between accused and plice = mre likely finding f inducement t give false cnfessin -Sectin 8 f Charter S.8: Right t be secure against unreasnable search and seizure Persnal right that prtects individuals, nt plice nt abslute privacy in all situatins T be applicable: 1. Must have privacy recgnized by curts, 2. Activities invlved must be described by search r seizure, 3. Must be carried ut by agents f the state Searches can be made: Generally made under warrant authrized by JP based n swrn evidence; different levels f search warrant garner higher judicial authrizatin Searches incidental t arrest; upn arrest fficer can d pat dwn and search immediate vicinity if subjective and bjective belief that it will affrd evidence f that crime If arrested at hme, cannt search area arund yu (higher degree f privacy) Accused carries burden t prve n balance f prbabilities that s.8 was breached and that evidence shuld be excluded under 2.42(2) R v Cllins Rati: Officers need reasnable and prbable grunds t cnduct search (nt hunch) Facts: Cllins grabbed by undercver fficer in bar (identified as cp t her) by thrat t prevent frm swallwing drugs he thught were in her muth; herin balln in hand Seminal case n recgnizing right f privacy under s.8 (als represents first generatin f remedy fr exclusin analysis cases) SCC held: Search will be recgnized as reasnable nly if: i. Authrized by law ii. Law itself is reasnable iii. Carried ut in reasnable manner Officer claimed he had credible hunch based n experience; curt said suspicin is nt enugh t base a search n; AND carried ut in vilent manner (breached 1 and 3) 8

9 If search dne withut warrant and nt incidental t arrest, presumptively assumed t be unreasnable - nus n Crwn t prve reasnableness n balance f prbabilities Accused applied t have evidence excluded frm trial. Must prve: i. She had a right f privacy ii. Right f privacy under s.8 was breached iii. Remedy favurs exclusin f evidence This is still gd law, but test fr exclusin (iii) has since changed R v Chubak Rati: As lng as fficer subjectively and bjectively believes search is linked t initial purpse f arrest and will affrd evidence, they can search anything incidental t arrest Facts: Officer arrested C n side f rad fr weapns charge; develped suspicin that he pssessed drugs as well; searched whle vehicle including small tin ABCA held: N evidence fr fficer s subjective belief that tin culd nt pssibly cntain evidence in supprt f weapns charge; watered dwn rule but law in AB Warrantless searches prima facie unreasnable, but can be permissible if dne incidental t arrest in interest f "ensuring public and plice safety, prtecting evidence frm destructin and discvery f evidence fr trial" Berger (dissenting): If search fr drugs ccurs unrelated t reasn fr initial arrest, separate purpse shuld nt serve t allw that search withut warrant (need t arrest fr bth ffenses t have prper dual purpse) R v Patrick Rati: N right t privacy ver garbage (abandned prperty) Facts: Accused's garbage searched at back f prperty; readily accessible but fficers had t reach ver prperty line (trying t find evidence fr drug lab) Held: Accused must establish a legal right t privacy. If abandned, yu've given up reasnable expectatin f privacy; even if evidence can be used against yu criminally Test: did accused have subjective belief in cntinuing privacy interest? Was it bjectively ascertainable? Analysis: Unclear whether cp trespassing t get garbage is a breach f right t privacy -Right t privacy in cmputer age (4 cases) R v Cle Rati: Right t privacy ver cmputers including wrk nes (level varies); need warrant Facts: Teacher dwnladed phts f student t his cmputer; reprted by tech rutinely checking schl laptps; fficer didn't get search warrant; nt required then Held: Search withut prir authrizatin breached s.8; evidence admissible (gd faith) Analysis: Cnsider wh cmputer was wned by and whether waiver f privacy was signed; n balance, mst peple d nt have fully separate wrk and persnal devices Tech searching cmputer was nt breach f privacy = within schl s rights Handing ver t plice fr nn-cnsensual examinatin by state = illegal search Gd faith Charter breach can be treated leniently especially if law is unclear; deliberate breaches treated mre seriusly Discverable evidence less likely t bring admin f justice int disrepute Abella J (dissenting): plice knew searching prperty required a warrant, and n effrt made t determine what private infrmatin C might want t prtect; serius breach, n exigent circumstances justifying including evidence R v Vu Rati: Separate search warrant required t search cmputers (heightened right f privacy) 9

10 Facts: Plice searched huse fr evidence f drugs/criminal activity; fund marijuana, tw cmputers and cell phne; typically, search warrant gives fficers right t search all "receptacles" (anything that can hld r receive smething); searched laptps Held: Warrant t search hme didn t give fficers authrizatin fr that specific search Nw, fficer swearing infrmatin t get warrant must shw credibly-based prbability that search f that particular cmputer wuld affrd evidence f alleged crime R v Fearn Rati: Scpe limited fr cell phne search; search incidental t arrest must fllw certain parameters Facts: Cell phne was searched incidental t arrest; fund inculpatry draft message and pht that helped Crwn establish F cmmitted rbbery Held: Search incidental t arrest is exceptinal because n warrant required and n reasnable/prbably grunds needed. The fllwing parameters must be fllwed: i. Arrest must be lawful ii. Search must be truly incidental (valid law enfrcement purpse: fficer r public safety, preservatin f evidence, r discvery f evidence if investigatin significantly hampered withut search) iii. Nature tailred t purpse f search: nly recent messages r calls can be validly searched (but deeper searches in circumstances f prn) iv. Officer must take detailed ntes f search that was cnducted R v Spencer Rati: Users f internet have right t keep private their names frm being assciated with particular cntent Facts: Plice fund evidence f child prngraphy; requested IP address frm internet prvider (reasns t believe custmer is dwnlading prn); used t be permitted Held: Nw plice must get search warrant frm judge (prductin rder) t cmpel internet prvider t give name and address related t that IP address -Sectin 24(2) f Charter Since 1982, there is a remedy available when Charter rights breached: exclusin In a trial vir dire, applicant must prve n balance f prbabilities that: Right was breached (cunsel, privacy, etc) Evidence btained frm breach must be excluded t preserve integrity f justice system Must shw causal relatinship b/n breach and discvery f evidence S. 24(1): nt relied n ften in criminal law (breach f rights against discriminatin) S. 24(2): Any evidence btained in manner that infringed Charter rights shall be excluded IF all circumstances lean tward bringing the administratin f justice int disrepute Ask "whether a reasnable persn, infrmed f all relevant circumstances and the values underlying the Charter, wuld cnclude that the admissin f the evidence wuld bring the administratin f justice int disrepute" 3 generatins f exclusin f evidence cases: 1. R v Cllins: Factrs: type f evidence, seriusness f breach, wilful/inadvertent, circumstances/urgency, imprtance t case, ther techniques available Factrs were gruped int 3 categries: 1. Fairness (mst impt), 2. Seriusness, 3. Reputatin f System) 2. R v Stillman (peak in 1997; started with Melinville in 1992): Mre rbust exclusin (previusly, statements frm Charter breach were excluded but derivative evidence was admitted). In 90s, cnscriptive evidence likely excluded. Accmpanied by public utcry. 10

11 3. R v Grant (2009): Mre Cnservative SCC, sharp swing t right. Fairness n lnger seen as distinct branch f analysis but verall gal (subtle but majr change). Grant Analysis (takes place n vir dire): 3 branches (all weighed equally and based n circumstances f individual case): i. Seriusness f breach: flagrant r inadvertent? Mre serius cnduct creates greater need fr curt t distance themselves frm it by excluding. ii. Impact f breach n rights f accused: technical r invasive? Breach resulting in cnfessin r invasin f hme/bdy/cmputer favurs exclusin. iii. Sciety s interest in adjudicatin f case n merits: Is evidence highly reliable? Seriusness f crime? Only piece f evidence in case (cuts bth ways)? Derivative evidence: Befre, Crwn had t prve n balance f prbabilities they wuld have fund derivative evidence anyway (discverability). NOW nus is placed n defence t prve Crwn wuldn't have fund it - if unclear, it favurs inclusin R v Harrisn Facts: Cp fllwed H, pulled ver fr missing frnt license plate (but AB vehicle in ON); had disqualified license; in search incidental t arrest, fund 35kg f ccaine Curt applied Grant analysis: Reliable evidence and serius crime, but wilful and flagrant cnduct f fficer (knew he had n grunds t pull ver); impactful breach f s.9 Held: Evidence excluded; turned n fficer s knwledge that he wasn t fllwing law Cmpare t Cle where fficer didn t knw he needed warrant t search cmp In Vu, cp didn t knw separate warrant needed fr laptp s evidence included In Fearn, similar gd faith breach (rule hadn t been established yet) R v Mrelli (2012) Facts: Cps issued warrant t search persnal cmputer fr evidence f prn; ITO t get warrant based n misleading, inaccurate, incmplete infrmatin Held: Breach f s.8 right; Curt applied Grant analysis; evidence excluded Nt dne in bad faith but highly intrusive search; Crwn wuld have n case withut; admissin wuld bring lng-term admin f justice int disrepute Duty n plice t be full, frank and cmplete in disclsure; taken n their wrd at time Onus f Prf -3 burdens f prf: Legal burden r ultimate/persuasive burden: prve r disprve fact in issue accrding t relevant standard befre trier f fact Prsecutin must prve accused s guilt beynd reasnable dubt N reverse nus n accused t prve inncence (except exclusin in vir dire) Crwn must prve ALL the essential elements f ffense: i. Occurred within that jurisdictin ii. Identity f culprit was the accused iii. Elements f ffense: actus reus and mens rea Case-t-meet burden: adduce sufficient evidence t raise issue as t existence r nn-existence f fact in issue (warrant trier f fact s cnsideratin f issue) Crwn must bring frward at least sme evidence n each f elements f ffense fr trier f fact t cnsider it if nt, defense can request directed verdict f acquittal Fr every legal burden, an intermediate CTM burden exists CTM burden decided by trier f law - beynd reasnable dubt nt required 11

12 Quantitative, nt qualitative: is there sme evidence n which reasnably instructed jury culd cnvict? (air f reality test) Tactical burden r practical/cmmn sense burden: falls n party when adverse evidence is adduced by ppnent (shifts ver curse f trial depending n reliability f each witness) Assessment each cunsel must make f case t determine tactically whether t call mre evidence n particular issue - Why am I ging t trial? -R v Wlmingtn (1935 HL) Rati: Glden thread runs thrugh cmmn law: burden remains n Crwn t prve accused s guilt beynd reasnable dubt Facts: W s wife died by gunsht; neighbur heard sht and saw W leave; W claimed accident Issue: Trial judge tld jury that nce Crwn prved the deceased died by an act f the accused, yu are t presume he intended t d s (murder unless accused can prve therwise) - wrng Held: Presumptin f inncence and prf f guilt beynd a reasnable dubt are tw principles f fundamental justice Fr hmicide, must prve bth vluntary act and "malice f the accused", either expressly r thrugh implicatin where it is "intentinal and unprvked" -Jury Charges Used t be variety f language used t explain burden f prf; resulted in sme unfair results Nw mst judges use authritative scripts t explain reasnable dubt and burden f prf in jury charge; If these cncepts are missing, autmatic grund fr appeal Still many differences b/n jury charges; e.g. hw clse reas.dubt is t abslute certainty 'Sure' is the nly descriptr that has been upheld as being acceptable when explaining reasnable dubt, BUT nly after full explanatin has been given t jury Credibility: Trial judge can never say 'Yu have t decide wh yu believe, Crwn r accused' 1. Infers accused bears nus f prving his versin f events is mre likely nt true 2. Implies accused must raise reasn why cmplainant has this stry (mtive) 3. Ignres the fact that accused might nt be believed but still be nt guilty 3-part test when accused testifies n behalf f himself in criminal trial (R v DW): 1. If yu believe accused's evidence, yu must acquit 2. If yu dn't believe accused's evidence but it adds t circumstances f case and brings up reasnable dubt, yu must acquit 3. Even if nt left in dubt by accused's evidence, are yu cnvinced beynd a reasnable dubt n the evidence yu have? - R v Lifchus (1997 SCC) Rati: Prf beynd a reasnable dubt inextricable frm presumptin f inncence; prper explanatin f reasnable dubt is essential element f jury charge Facts: Accused charged with fraud against emplyer; trial judge erred in charge t jury (n definitin f reasnable dubt - rdinary, everyday wrds ) Issue: Shuld cncept f reasnable dubt be explained t a jury, and if s, hw? Held: Cannt be a fair trial if jury desn't understand prf beynd a reasnable dubt Jurrs must knw difference b/n balance f prbabilities and abslute certainty Reasnable dubt can be held by inarticulate jurr, s shuldn't require it t be smething yu culd give a written reasn fr Cry J set ut principles and prvided suggested charge fr future judges t use Prf beynd reasnable dubt shuld be explained carefully in terms f negatives (what it's nt e.g. haunting r substantial dubt); can be fllwed with sureness 12

13 - R v Laytn (2009 SCC) Rati: Where jury asks fr clarificatin n standard f prf, judge must assist them in understanding what is required f them Facts: Sexual assault case hinged n cmplainant s credibility; trial judge read mdel charge but jury had questin abut difference b/n abslute certainty and bal. f prb.; fell int errr f rereading riginal charge, nt addressing questin, and sent them back t cntinue deliberating Held: Errr: must g beynd riginal instructins; elabrate r invite back fr further clarity Judges wary t g beynd Lifchus charge and use synnyms/ther adjectives t describe reasnable dubt in fear f misleading jury Nt nly did judge nt answer the specific questin psed by jury but erred by ending with: there s very little I can add t clarify the cncept f reasnable dubt -Presumptins Crwn must prve all elements f ffense beynd a reasnable dubt, but certain things are difficult t prve; presumptins perate t presume a fact has been prved when it hasn t Presumptins cme in varius frm and are distinguished in 4 main ways: N Basic Fact/Basic Fact: Basic Fact: Presumptin at law withut a basic fact being prven first Presumptin f inncence Presumptin f sanity (Crwn need nt prve everyne in right mind) Basic Fact: Crwn prves basic fact which leads t anther fact being presumed If in driver s seat, deemed t be in care and cntrl f mtr vehicle Permissive/Mandatry Permissive/nudging inferences: n prf f basic fact, trier f fact MAY, but nt must, infer that presumed fact is the case Dctrine f recent pssessin (if fund in recent pssessin f stlen prperty, may be guilty nt nly f pssessin but als theft/rbbery) Sane and sber persn intends natural cnsequences f actins Mandatry: if basic fact prved by Crwn, trier f fact MUST presume secnd fact is the case Often defined in statute but many struck dwn fr breaching s.11(d) E.g. ld Narctic Cntrl Act: nce Crwn prved accused pssessed narctic, presumed guilty f pssessin fr purpse f trafficking) R v Oakes: SCC struck dwn s.8 fr ffending presumptin f inncence; uncnstitutinal t require accused t prve he wasn t pssessing fr that purpse; culd be cnvicted despite reasnable dubt Cnclusive/Rebuttable Cnclusive: cannt be rebutted by any evidence (rare and statutry) Rebuttable: n prf f basic fact, presumed fact is assumed but accused may rebut presumptin by tendering evidence fr trier f fact (2 pssible standards) Standard f prf fr accused Balance f prbabilities: the wrd established indicates this standard applies Evidence t the cntrary: must raise a reasnable dubt R v Laba (1994 SCC) Rati: Nt ratinal t presume frm fact that ne has purchased r sld mineral that transactin was illegal; balance f prbabilities is t nerus fr accused t meet 13

14 Facts: L charged with selling/purchasing stlen precius metal; reverse nus clause in Criminal Cde (if smene is fund selling r purchasing rck/precius mineral, deemed guilty unless he establishes he is wner r agent acting under lawful authrity) Issue: Des s.394(1)(b) infringe n s.11(d) f Charter and is it a reasnable limit? Held: Prvisin vilates s.11(d) because a persn can be cnvicted despite a reasnable dubt, breaching presumptin f inncence; fails Oakes (s.1) test Changed frm balance f prbabilities ( establishes ) t evidence t cntrary R v Keegstra (1990 SCC) Rati: Wilful prmtin f hatred is a reasnable limit n freedm f expressin and presumptin f inncence Facts: Teacher cmmunicated anti-semitic messages t students; charged with willful prmtin f hatred; claimed law infringed his freedm f expressin in Charter Issue: Des law infringe freedm f expressin and presumptin f inncence? ABCA: infringed s.11(d) and s.2(b), struck dwn under Oakes test; ONCA (similar case): n infringement f either; SCC had t settle law fr the natin Held: Law breaches freedm f expressin under s.2(b) and presumptin f inncence under s.11(d) by putting reverse nus n accused t prve hate speech was true n BOP Upheld as reasnable limit in free & demcratic sciety under s.1; injury caused by hate prpaganda ( nt all expressin is equally deserving f prtectin ) Actus Reus -Every criminal ffense requires: a guilty act (r missin) superimpsed temprally at least t sme degree with a guilty mind (intentin) -Actus reus fr an ffense can be: Act: perfrmance f activity (tuching) r prductin f specified cnsequences (killing persn) Omissin: duty n accused t d smething and failing t meet that duty E.g. failing t prvide necessaries f life fr child; failure t appear in curt - R v Dunlp (1979 SCC) Rati: Mere presence at scene f crime is nt enugh t grund liability Facts: Wman gang raped by crwd f peple watching; she testified that accused raped her Issue: If we cnclude that accused were present but didn t cmmit rape, wuld they be guilty? Held: A persn is nt guilty merely because he is at scene f crime and des nthing t prevent N duty t prevent a crime, s n actus reus (wuld be different if accused had actively dne smething like hlding victim dwn, kept watch, prevented escape, etc.) - R v Mre (1979 SCC) Rati: When persn is seen by fficer cmmitting any ffense, they have duty t prvide name and address fr purpse f identificatin Facts: M cnvicted fr ging thrugh red light n bike and nt giving fficer name and address; bstructing plice/peace fficer (criminal ffense) Majrity: fficer has duty t enfrce the law; when he sees ffender break any law, he must find ut that persn's name; failing t prvide r lying is bstructing an fficer in his duty Psitive duty n mtrists t prvide name when caught cmmitting ffense Hwever, fficer must SEE r have reasnable grunds t believe persn has cmmitted ffense (mere suspicin is nt enugh t cause duty t arise) 14

15 Dissent: just because fficer has duty t enfrce law desn't equal crrespnding duty t break right t silence and give ne's name; fficer culd have arrested and btained ID thrugh ther means; n vilatin made by accused (mre relevant pst-charter?) -Vluntariness A culpable act r missin must be cmmitted vluntarily Distinguish frm mens rea (intentin) R v Therux [1993 SCC]: actus reus has its wn mental element distinct frm mens rea An act must be vluntary; mre than a reflex actin E.g. f nn-vluntary: heart attack r seizure while driving, bee sting, sleepwalking Easier t cnsider whether the act was nt vluntary was it cmpelled by frce r infirmary that seriusly disrupted cgnitin? Act dne with gun t head still vluntary; yu had cgnitin even thugh n real chice Duress: mrally invluntary but nt truly invluntary under actus reus Autmatism: if drunk t pint where mind detaches frm reality, actins nt vluntary BUT Criminal Cde nw prevents self-induced intxicatin frm being used as defense t any ffense including assault/sexual assault, where accused departed markedly frm standard f reasnable care generally recgnized in sciety R v Wlfe (2001 SCC) Facts: Cmplainant tld nt t cme in htel but entered anyway; rdered t leave and called plice; cmplainant punches accused; in reflex actin, hit cmplainant with phne Held: this was a reflex actin = n actus reus and encunter was trifling -Causatin Part f actus reus; difficult t distinguish between an act and its cnsequences Tw-part test develped by SCC: 1. Factual: Did the act cause in fact the cnsequence (e.g. but fr the act, the cnsequence wuld nt have ccurred)? 2. Legal: Can the accused be held legally respnsible fr causing the cnsequence (did the act cntribute beynd the de minimis range t resulting harm)? If s, guilty. Nw psitive language: actin must cntribute in a significant way t the harm De minimis An act must be mre than trifling t cnstitute a crime Theretically legal principle exists but never applied by SCC except relating t causatin R v Kubassek (2004 ONCA) Facts: K went t a church, same-sex marriage taking place; started disturbance; pastr asked her t stp; she shved him; pastr didn't fall but almst stumbled ver pew Held: Recgnized de minimis principle but did nt apply; lking at entire cntext, shve represented vilent interruptin f peaceful marriage celebratin (may have been trifling in a bar r different setting) Crwn must prve fr every ffense: Jurisdictin, Identity, Actus Reus and Mens rea Fr charge with causatin element fr mre serius ffense, must prve beynd reasnable dubt riginal ffense and resulting harm resulted frm accused s act Is accused still respnsible fr unreasnable actins f intervening third parties? Three causatin issues: a. Hw significant must the act be as the cause f the cnsequential result? b. What is legal effect f unreasnable actin f victim which results in victim suffering greater harm? 15

16 c. What is legal effect f third parties which might have intervened r cntributed t resulting harm? E.g. Criminal Cde ss. 224, 225 and 226 (hmicide): Where persn des anything causing death f a persn, he causes the death ntwithstanding anything that culd have been dne t save him Ntwithstanding any prper r imprper treatment applied in gd faith Ntwithstanding that cause f bdily injury nly accelerated a disease/disrder R v Smithers [1978 SCC] Rati: If unlawful act cntributes beynd de minimis range t resulting harm, unlawful act caused it (even thugh ther factrs may have exacerbated) Facts: Deceased taunted S in hckey game; after game S punched in head; deceased dubled ver, thers tried t pull S away; hard kick t stmach; fell n back gasping and stpped breathing in 5 mins; death due t chking n vmit (aspiratin f freign materials); had a rare malfunctining epigltis Held: Guilty f manslaughter. SCC set ut 3 imprtant causatin rules: Determinatin f causatin t be made by trier f fact cnsidering all evidence (expert and lay) Rule: accused's actin may merely be cntributing cause utside de minimis range f resulting harm/death in rder t cnstitute legal causatin (as ppsed t factual causatin); tw-part questin But fr actins f S, resulting vmiting, chking and death wuldn t have ccurred; cntributed beynd trifling way 'Thin-skull' rule applies t criminal law (ne wh assaults anther must take his victim as he finds him) R v Nette (2001 SCC) clarificatin f Smithers test Rati: If an act cntributes in a significant way t resulting harm, liability is established Facts: Tied up 95-yr ld wman after rbbery; died f asphyxiatin frm upper airway bstructin (dentures came lse and clthing wrapped arund head became tight); jury rejected claim that he just ransacked hme and left her k Issue: Is accused respnsible fr resulting death despite leaving victim alive? Held: Yes, accused caused resulting death Majrity: New psitive language test is clearer Judge can use negative de minimis r psitive significant language In determining whether persn can be held respnsible fr causing smething, must be determined bth in fact and in law Hw victim came t death and whether they shuld be held respnsible Minrity: Agreed with guilt f accused but disagreed with changing language f test (results in higher threshld) R v Maybin (2012 SCC) culminatin f causatin law Rati: 1. Smithers-Nette test MUST be used fr determining causatin, 2. Reasnable freseeability and intervening actr can help apply test but nt replace it, 3. Start with factual causatin analysis, then fr legal causatin ask: "were actins a significant cntributing cause?", 4. Thin-skull rule is nt intervening act r cnditin - part f taking yur victim as yu find them Facts: Tw brthers playing billiards; deceased tuches T's ball; T starts beating him; M assists; deceased falls n pl table mtinless; buncer intervenes, punches him in back f head; all 3 charged with manslaughter 16

17 Lwer curt: all 3 nt guilty b/c death culd've been caused by brthers r buncer (reasnable dubt fr bth); negated legal standard f prf Held: SCC applied test frm Smithers and Nette: Did brthers unlawful act cause in fact death f victim (evidence-based) But fr brthers actins he wuld nt be left n pl table in vulnerable psitin fr further harm t ccur Did brthers unlawful act cause in law death f victim (respnsibility) Brthers acts were significant cntributing cause t death Attribute blame/mral respnsibility despite later acts ccurring Tw justificatins fr causatin rules: Always starts with an unlawful act (yu live with cnsequences f yur actins) Sentencing cnsiders myriad f factrs, including t what degree was accused respnsible fr cnsequences? Intervening Acts (nvus actus interveniens) Lng-held principle that legal causatin nt fund when accused's acts d nt cntribute t cnsequence, usually because anther act intervenes If secnd actin verwhelms riginal illegal act, curt may find break in legal causatin Tempral analysis is part f cnsideratin (victim dies mths later frm cmplicatins) 2 analytical tls can help determine causatin (NOT replacing test): Reasnable freseeability test: was general nature f intervening act and accmpanying risk/harm reasnably freseeable? In Maybin, curt fund when starting bar fight there culd be ptential harm by thers; it's nt precise actins that must be reasnably freseeable but general nature f physical interventin by thers Intervening act rule: des new event result in accused s actins nt being significant cntributing cause f harm/death? Original actr can be abslved f respnsibility if act is merely setting r intervening act is s verwhelming that it makes riginal act histry In Maybin, curt fund act f buncer didn t verwhelm riginal acts R v Blaue (1975 Eng) Facts: Stabbing victim refused bld transfusin which wuld've saved her life Held: Stabbing caused her death factually, and legally her nn-interventin due t religius grunds is similar t thin-skull rule (take yur victim as yu find them) - still perative and substantial cause f death R v Smith (1955 Eng) Facts: Deceased stabbed, lung punctured; drpped and medical interventin prly applied; had he been given prper treatment, 75% chance f survival Held: Stabbing was still perating and substantial cause f victim's death s.225 Criminal Cde: where persn causes bdily harm resulting in death, caused death despite immediate cause being prper/imprper treatment R v Winning (1973 ONCA) Facts: W lied abut credit card histry; Eatn's didn't rely n this, did separate investigatin and still gave her card; W charged with fraud Held: N causatin prven: lss was based n wn actins, nt W s unlawful act 17

18 Mens Rea -Latin maxim: "An act des nt make a man guilty f a crime unless his mind als be guilty" -Subjective rthdxy: mind f accused (what he was thinking r knew at time f act) Vs bjective: Guilt fr sme ffenses in Criminal Cde can be established by failing t live up t reasnable persn standard (crimes even thugh n subjective intentin) E.g. criminal negligence causing bdily harm, dangerus driving, careless strage f firearm; Parliament decided these acts f negligence shuld be criminal (deterrence) Crwn must prve all elements f ffense: Jurisdictin, Identity, Actus Reus, Mens Rea Cnfessin can be easiest way fr Crwn t prve mens rea Crwn can als ask trier f fact t infer guilty mind lking at all circumstances 2 rutes are available when less than full knwledge r less than full intentin exist: True knwledge (gld standard) à Willful blindness True intentin (gld standard) à Recklessness (further frm true intentin; nt same standard as willful blindness) Cmmn law cncepts; nt typically included in the prvisins in Criminal Cd Crwn must prve accused s persnal knwledge r intentin, r his persnal awareness f the need t inquire but failed t inquire t remain purpsely ignrant (willful blindness), r the accused s prceeding in the face f a risk that he became aware f (basic recklessness) Willful blindness State f mind in which persn 1. Becmes aware f need fr inquiry and 2. Declines t make inquiry because he/she wishes nt t knw the truth r wishes t remain ignrant Advertent ignrance; curt can nly find willful blindness where it can almst be said the accused knew but wanted t be able t deny knwledge Very clse t true knwledge Subjective cncept; cnsider circumstances and cgnitive abilities Recklessness State f mind in which persn 1. Becmes subjectively aware f danger r risk and 2. Prceeds in curse f cnduct that creates danger r risk Subjective cncept; aware that prhibited cnsequence is likely r prbable Tw distinct cncepts: willful blindness refers t knwledge f present circumstances, recklessness t knwledge f future risks In recklessness, act is being dne; in willful blindness, mre abut smething nt being dne -Knwledge-Based vs Cnsequence-Based Offences Fr knwledge-based ffenses, true knwledge and willful blindness apply Fr cnsequence-based ffenses, true intentin and recklessness apply Criminal Cde may prvide signs abut mens rea that is required: Terms like knws r knwingly indicate knwledge-based Sme ffenses can lend themselves t either willful blindness OR recklessness R v Blndin [1971 BCCA] Facts: B cnvicted fr imprting narctics; 23 lbs hash in scuba tank thrugh custms; tank searched; B said he "didn't knw what was in there"; "knew smething illegal, was paid t bring it t Canada, but didn't knw it was drugs" Issue: Did Crwn have t prve B knew actual substance r simply any prhibited drug? Did they nly have t prve he knew cntrary t Custms Act? 18