SECTION 8 UNREASONABLE SEARCH & SEIZURE : Did X violate Y s section 8 rights when they searched? : Section 8 states that everyone has the right to be secure against unreasonable search or seizure. The SCC is Hunter held that the purpose of section 8 is to protect a person s reasonable expectation of privacy (REP), and that s. 8 is only engaged where the thing or place seized or searched is one over which a person has an REP. The test for what constitutes a search under s.8 was set out in Evans by the SCC as anything done as an investigative technique or with an investigative purpose that intrudes upon an accused person s REP. <Insert case analysis and conclusion> SUB-: Did Y have an REP in? : The SCC in Wong held that whether we have an REP in something is a normative question: Would reasonable Canadians expect privacy in a thing or place of this nature? The Court in Wong also held that since the analysis is normative in nature, an accused person does not lose an REP in something they use for an illegal purpose. In Edwards, the Court held that whether there is a REP is to be determined by assessing the totality of circumstance, including: - Presence at time of search - Possession or control of the property/pace 1
- Ownership - Ability to regulate access - Subjective expectation of privacy - Objective reasonableness of the expectation A second test, relating primarily to informational forms of privacy, was set out in the SCC by Plant and involves an assessment of whether the thing being searched reveals a biographical core of personal information. <analysis> CONCLUSION: Based off the totality of circumstances, it can be concluded that there was (not) a (lower/higher) REP in the, therefore section 8 was (not) engaged when X searched it. (In the event that the above analysis is incorrect, we will carry on the analysis as if there was a REP. SUB- Was the search conducted reasonably? The SCC in Hunter also said that a warrantless search in the context of the criminal law is prima facie unreasonable but might still be reasonable if the Crown can establish a lawful exception on a balance of probabilities. This might include: - Exigent circumstances (pursuant to s. 487.11 of CC: police have grounds to obtain a warrant but due to exigent circs, obtaining it first is not practicable) - Other authority at common law or statute; or - Consent The SCC in Collins added the additional requirement for a search to be reasonable under section 8: the search must be carried out in a reasonable manner. <analysis> 2
CONCLUSION If (there were exigent circumstances/the search was conducted reasonably), then there is no violation of section 8. If (there were not exig circ/the search was not conducted reasonably), then section 9 was violated when the officer. Was Y searched upon arrest in violation of section 8? (In addition to what was said above about section 8) Once again, according to the SCC in Hunter, a warrantless search in the criminal law is prima facie unreasonable but might still be reasonable if, on a balance of probabilities, there were exigent circumstances, other authority or consent. The SCC in Collins added the additional requirement for a search to be reasonable under section 8: the search must be carried out in a reasonable manner. Here there was other authority: the common law doctrine of search incident to arrest. The SCC in Cloutier held that where police carry out a lawful arrest, they may carry out search incident to arrest without requiring further grounds the authority from the search flows from the authority of the arrest. Police are authorized to carry out a pat-down search, to check a person s pockets, bags and immediate surroundings, if they do so for a criminal justice purpose connected to the reason for the arrest, including safety or the preservation or gathering of evidence. The search may also extent to a person s immediate surroundings including a bag or the inside of a car in which a person is found. (Cloutier, Caslake) The search should not be carried out to intimidate or be abusive (Cloutier). 3
The SCC in Caslake held that whether a search is truly incident to arrest depends on whether it was subjectively conducted for a purpose connected to the reason for arrest and that connection is objectively reasonable. <application> If the arrest was lawful, then the search would be authorized, including a search of Y s - assuming the officer carried it out with the subjective purpose of gathering or preserving evidence or for safety, and that it was carried out in a reasonable manner. CONCLUSION: If the arrest was lawful, the search incident to arrest was lawful. If the arrest was unlawful, so too was the search, thus violating section 8. SECTION 9: ARREST AND DETENTION Was the arrest lawful under section 9? Section 9 states everyone has the right not to be arbitrarily detained or imprisoned. The SCC in Grant has held that an arrest or detention is arbitrary under s. 9 if it is not authorized by law, or if the law under which it is authorized is itself arbitrary or unreasonable. The law authorizing this arrest can be found in section 495(1) of the CC, which permits a PO to arrest where they have reasonable grounds to believe an indictable offence has been committed. 4
The SCC in Debot held reasonable grounds to by synonymous with reasonable grounds to believe and defined this to mean a reasonable probability of something. <analysis did the PO have reasonable probable grounds for the arrest?> CONCLUSION Should the argument that the PO did have reasonable probable grounds to arrest Y be proven on a balance of probabilities, the arrest would be lawful. If it fails this standard, the arrest would not be lawful and would thus constitute a breach of section 9. Was the detention lawful under section 9? At common law, police have a power to detain a person briefly for investigative purposes. They may carry out an investigative detention when they have a) a reasonable suspicion that the detainee is connected to the offence being investigated and b) where the detention is reasonably necessary on an objective view of the totality of the circumstances. (Mann) Whether the officer s suspicion was reasonable is assessed objectively. (Mann) Investigative detention is distinct from what the SCC call preliminary investigative questioning which is merely when they question a suspect not detained. When an individual is being detained, their rights under 10(a) and (b) are engaged. In Grant, the SCC articulated a test for deciding whether a detention for the purpose of section 9 has occurred. A person is detained where there is significant: physical restraint or psychological compulsion (legal or non-legal). 5
<analysis was the accused detained?> CONCLUSION: By considering the above criteria in their totality, a reasonable person under Y s circumstances would conclude they were (not) subject to a (physical restraint/psychological compulsion) and were, as such, (not) detained. SUB- Were there reasonable grounds for the detention? : (In addition to what was said above about the common law) Police may carry out an investigative detention when they have reasonable suspicion and the detention is reasonably necessary on the totality of the circumstances. (Mann) The reasonableness will be assessed based on its duration, an articulable cause, the nature and extent of the interference and the seriousness of the offence. (Mann) <analysis> There were (not) reasonable grounds for the detention, therefore Y s section 9 rights were (not) violated in terms of detention. CONFESSIONS A res gestae statement is a spontaneous statement during or right after the crime. If it were a res gestae statement it s admissible. (no voluntariness analysis). 3 WAYS IN CHALLENGING THE ADMISSIBILITY OF A CONFESSION: 1. The Common Law Confession Rule 2. The right to counsel s.10(b) under the Charter 3. The right to silence s.7 under the Charter 6
COMMON LAW CONFESSIONS Were Y s statements obtained contrary to the common law Confessions Rule? At common law, a confession or statement is inadmissible unless the Crown can prove beyond a reasonable doubt that it was made voluntarily. (Boudreau) The SCC in Oickle established a two-stage test to determine the voluntariness of a confession: 1. Would the police trickery and conduct shock the community? If yes, the statement is involuntary. If not: 2. Does the evidence meet a general voluntariness analysis? Crown has to prove BARD that a statement made to a Person in Authority is voluntary in the sense that: a. the accused s will was not overborne by one or more strong inducements, or a significant degree of oppression (or a combination thereof), and b. the accused did not lack an operating mind The standard for operating mind is low: ie. simply knowing what they are saying and that it may be used by the police to their detriment. (Oickle, Whittle) There needs to merely be a reasonable possibility that the accused s will was overborne. <analysis> CONCLUSION Crown has (not) proved BARD, that the statement was (not) voluntary as it was (not) overborne by one or more strong threats or inducements, by oppressive or by trickery and did (not) have an operating mind and therefore, the statement is (not) automatically excluded. 7
SECTION 10(B): RIGHT TO COUNSEL Was the statement obtained from Y obtained in violation of section 10(b)? Section 10(b) states: everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right The SCC has held that the right comprises of a set of informational and implementational components which police must fulfill in order to avoid breaching the right. To fulfill the information component, police must a) advise the person that they have a right to consult counsel without delay; and b) advise of the availability of legal aid or free duty counsel and provide numbers. (Brydges, Bartle) If the person does not validly waive their right, then police have a set of implementational duties, including the obligation to provide the accused of a reasonable opportunity to speak to duty counsel or counsel of choice in private without delay and to hold off on questioning until then. (Manninen, Brydges) The SCC in Brydges set out the test for a valid waiver of 10(b): whether the waiver was a) clear and unequivocal, and b) made when the person is fully aware of the consequences of waiving the right. The SCC in Whittle held that an accused has an operating mind or sound mind when knowing what they are saying and that it may be used by the police to their detriment. <analysis> In this case, Y was arrested and thus 10(b) was clearly engaged. <Were the informational and implementational components met?> 8
CONCLUSION 10(b) was (not) breached. ADDITIONAL NOTES LIMITS TO RIGHT TO COUNSEL o Acc d must be reasonably diligent in the exercise of 10(b) or it lapses. If they cannot reach counsel of choice after reasonable efforts are made over a reasonable period of time, they must settle with duty counsel. (Smith, Ross) o No right to 10(b) during to have counsel present during an interrogation, unless youth. (Sinclair) o No right to further consultation with counsel after initial consultation (Sinclair) UNLESS there is a change in circumstance such as: a) New procedures involving detainee (ex request to go in line-up, polygraph) b) Change in jeopardy (ex charge from manslaughter à murder) c) Reason to believe initial consultation was deficient or detainee didn t under consequence of waiver of 10(b) (ex didn t have a chance to speak in private at first; was drunk at first, etc) SECTION 7: RIGHT TO SILENCE Were Y s section 7 rights violated by? (ex. the UO s eliciting of conversation?) The right to silence is protected in section 7 as a principle of fundamental justice. The right applies only to those detained or arrested, but not prior. (Herbert) In Herbert, the SCC set out a two-part test for whether the right to silence has been breached on a balance of probabilities: 1. Where the accused can establish they lacked an operating mind; or 9
2. Police conduct effectively and unfairly deprived them from exercising a free choice to speak to authorities. Once an accused has consulted counsel, even if they express the will to remain silent, police may continue to question. On its own, the fact that police continue to question a suspect despite repeated assertions of the will to remain silent does not constitute a violation of the right to silence under section 7. (Herbert, Singh) Once an accused exercises the right to counsel, expresses the desire to remain silent, and is held in police custody, police may seek to obtain evidence through the use of an undercover officer or informant. In these cases, the UC/informant must not actively elicit evidence through questioning. Active eliciting violates the right to silence. (Herbert, Liew) An undercover agent or informer elicits information where they direct the conversation to a material issue, rather than allowing the conversation to unfold naturally. (Broyles) SECTION 24(2): EXCLUSION OF EVIDENCE Should evidence obtained through a Charter breach be excluded from proceedings? Where an accused establishes that a Charter right has been breached in the course of an investigation or prosecution, section 24(2) of the Charter allows for the exclusion of the evidence obtained as a consequence of the breach. Section 24(2) states: Where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 10
The general question to be asked under 24(2) is: whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. (Grant) Assessing this requires considering three lines of inquiry i. The seriousness of the Charter-infringing conduct: ii. The impact of the breach on the accused s Charter-protected interests. iii. Society s interests in the adjudication of the case on its merits: a. Does the Charter breach undermine the reliability of the evidence? The statements are not real evidence so no. b. Is the evidence essential to the Crown s case? 11