NCA Criminal Procedure

NCA Criminal Procedure

GLOSSARY
Note: s.2 CC (Interpretation) contains definitions of all terms used in the CC. Absolute jurisdiction offence: an offence listed in s.553. These offences can only be tried by a provincial court judge, and so the accused has no election. Ancillary powers doctrine: the process through which new police powers can be created at common law. The test for the creation of ancillary powers is drawn from the British case R v Waterfield, which is applied in Canada today in a way quite distinct from the approach in its country of origin. Arrest: an arrest consists of words of arrest accompanied either by the touching of the person with a view to detention or by the person submitting to the arrest. The word “arrest” need not actually be used, provided the accused can be reasonably supposed to have understood that she was under arrest. Arrest powers are given in the Criminal Code to everyone, including private citizens, and additional arrest powers are given to property owners and peace officers. Attorney General: AG has jurisdiction over all or most matters of criminal law, including lawmaking and prosecutions. The AG is given various discretionary powers in the CC, some of which must be exercised personally and some of which can be exercised on his behalf by a Crown prosecutor. Bail (judicial interim release): the process by which a justice can release a person who has been accused of an offence until the trial is held. Bail can be granted either unconditionally or on various conditions. Challenge for cause: the process by which the Crown or the accused can challenge a potential juror in order to suggest that the person should not serve on the jury. The most common basis is that the juror is not indifferent between the Queen and the accused, which amounts to a claim that the juror will not act impartially. Change of venue: moving the location of a trial from one territorial jurisdiction to another. Charge document: the document setting out the charges based upon which an accused will stand trial. Count: an individual charge within a single information or indictment. Crown prosecutor: a lawyer responsible for the carriage of public prosecutions on behalf of the Crown. Most public prosecutions are conducted by provincially appointed Crown prosecutors, but federal Crown prosecutors also conduct some prosecutions, particularly with regard to narcotic offences. Criminal offence: a violation of any non-regulatory offence, whether summary conviction or indictable, which is found in the CC or in other federal legislation, and which is constitutionally justified under s.91(27) of the Constitution Act, 1867. Crown election: Hybrid offences can be tried either by indictment or on summary conviction. The Crown elects which mode of trial will be used.

Curative proviso: a portion of the rules governing appeals that permits an appeal to be dismissed despite the presence of a legal error at trial, if it is found that the error is harmless and does not cause a miscarriage of justice. Cartilage: the area surrounding and associated with a dwelling house. Detention: a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel, but might be prevented or impeded from retaining and instructing counsel without delay. The restraint of liberty might arise because of physical constraint, or because a police officer or other agent of the state assumes control over the movement of a person by a demand or direction. Direct indictment (“preferred indictment”): a Crown prosecutor has the ability, under s.577 CC, to prefer a “direct indictment”, which has the effect of requiring an accused to be placed on trial for the indictable offence charged therein, either without a preliminary inquiry having been held or completed, or despite a discharge at the preliminary inquiry. This power can be used with personal consent in writing of the AG or Deputy AG. Disclosure: the right of a person charged with an offence to be informed of all relevant evidence, whether incriminatory or exculpatory, in the hands of the Crown. DNA warrant: a warrant issued under s.487.05 CC authorizing the taking of bodily samples from a person for the purpose of DNA analysis. Election (as to mode of trial): an accused who is charged with an indictable offence is in most cases offered a choice as to mode of trial: superior court judge with a jury, superior court judge alone, or provincial court judge. Exclusive jurisdiction offence: an offence listed in s.469 CC. These offences (barring prosecutorial consent) can only be tried through a jury trial in a superior court of criminal jurisdiction, and so the accused has no election. General warrant: a warrant issued under s.487.01 CC that authorizes the bearer to use any device, investigative technique, procedure, or anything described in the warrant that would constitute an unreasonable search and seizure if it were not authorized by warrant. Hybrid offence: an offence that may be prosecuted either on indictable or as a summary conviction offence. Implementational duties: the obligation imposed on the police to act toward a person who has been arrested or detained and has asserted the right to counsel in particular ways, including facilitating that person‟s contact with counsel, and holding off from attempting to elicit incriminating information until the person has had a reasonable opportunity to do so. Indictable offence: the more serious category of offences, which have no minimum penalty but can carry sentences as severe as life imprisonment without possibility of parole for twenty-five years. Indictable offences are tried on an indictment and might have a preliminary inquiry. In most cases, an accused has an election as to mode of trial, though this is not the case for absolute jurisdiction offences or exclusive jurisdiction offences.

Indictment: a document prepared once an accused has been committed for trial after a preliminary inquiry, though it can also be laid without a preliminary inquiry having been conducted. This document specifies the particular offence or offences with which the accused is charged, and is the document based upon which the trial for an indictable offence will occur. An indictment can contain any number of “counts”. Form 4 – Heading of Indictment (p. 1703) Her Majesty the Queen – Against – (name of accused) 1. That he (state offence) 2. That he (state offence) Information: a document sworn in front of a justice of the peace, alleging that a person has committed an offence. An information is required for the issuance of some process, such as an arrest warrant, and is the document based upon which the trial for a summary conviction offence will occur. Informational duties: the obligation imposed on police to inform a person who is arrested or detained of particular pieces of information, such as the right to counsel, the existence of legal aid, and the telephone numbers for duty counsel. Investigative detention: the common law police power to briefly detain an individual, where on an objective view of the totality of the circumstances there is a clear nexus between the individual to be detained and a recent or on-going criminal offence, and the decision to detain is reasonable based on all the circumstances, including the extent to which the interference with individual liberty is necessary to perform the officer‟s duty, the liberty interfered with, and the nature and extend of that interference.  i.e. police officer questioning one near a burglary who fits the description. Joinder: joining more than one count, or more than one accused, on a single information. Jury: the triers of fact. Normally consist of twelve individuals selected after a process involving challenge for cause and peremptory challenges. Jury array: a large number of potential jurors summoned to court from whom the actual jurors for a particular trial will be chosen. Justice: as used in the CC, a justice of the peace or a provincial court judge. Peremptory challenge: the right of the accused or the Crown to object to a member of the jury array being chosen to serve on the jury, without being required to offer any explanation for the objection. The Crown and the accused each have a limited number of peremptory challenges, which varies with the offence charged (s.634 CC).  Peremptory – leaving no opportunity for denial or refusal, imperative, dictatorial: a peremptory command. Preliminary inquiry: a hearing conducted in accordance with Part XVIII CC, before an accused is placed on trial for an indictable offence. An accused either can be committed for trial or discharged at the end of the preliminary inquiry. Originally a preliminary inquiry was presumptively require in the case of all indictable offences, although it could be waived, but in its current form the preliminary inquiry is held on request and might be restricted to particular issues.

Production: the right of a person accused of a criminal offence to be provided, in some cases, with information that is in the hands of third parties but not in the hands of the Crown. Promise to appear: a written promise in accordance with Form 10 CC to attend court at a particular place and time. A potential basis upon which bail can be granted (p.1722 CC). Prosecutor: In public prosecutions, the prosecutor will be the AG. Psychological detention: the term used to describe a situation when a person is not in fact required by law to comply with the demands of a peace officer, but is unaware of that fact and reasonably believes that she has no choice but to comply. Quash: to set aside a decision (such as discharging an accused at a preliminary inquiry or issuing a search warrant) so that it no longer has effect. Reasonable expectation of privacy: the amount of privacy which a person is entitled to expect in a free and democratic society. Privacy consists of at least personal, territorial, and informational privacy. Recognizance: a written acknowledgement in accordance with Form 11 CC of responsibility for a debt not to exceed $500, to be forfeited upon failure to appear in court. A potential basis upon which bail can be granted (p.1723 CC).  Similar to a „promise to appear‟, however, a sum of money will be forfeited here upon failure to appear in court. Search: any investigative technique that infringes on a person‟s reasonable expectation of privacy. A search conducted without a warrant is prima facie a violation of the right in s.8 of the Charter to be free from unreasonable search and seizure. Search warrant: a warrant issued under s.487 CC authorizing the bearer to search a building receptacle or place and seize evidence or other specified items. Severance: a judicial decision not to try more than one accused, or more than one count, on the same information. Stay of proceedings: an order preventing, either temporarily or permanently, any further action on a prosecution. Crown prosecutors have a power under the CC to temporarily stay proceedings for a period not exceeding one year, and judges can permanently stay proceedings as a remdy for a Charter breach. Summary conviction offence: a generally less serious category of offences that carry less severe penalties (in most cases a maximum of six months imprisonment), and that cannot be prosecuted more than six months after the date of the offence. Summary conviction offences are tried on an information and the trial necessarily takes place in front of a provincial court judge. Summons: a written notice issued by a judge or justice in accordance with Form 6 CC, requiring the person to whom it is given to appear in court at the stated place and time (p.1717 CC). Surety: a third party who agrees to forfeit a sum of money if the person for whom she stands surety fails to appear in court in accordance with the terms of recognizance.

Telewarrant: a procedure authorized under s. 487.1 CC allowing certain types of warrants to be obtained by means of telecommunication where it is impracticable for the peace officer to appear personally to make application. Undertaking: a written promise given by an accused person to a peace officer (Form 11.1) or a judge or justice (Form 12) to appear in court at a stated place and time to comply with other directions (pp.1724 and 1725 CC). Warrant: a judicial authorization given to peace officers empowering them to perform particular actions, such as to search a location or arrest a person. Types of Offences Summary Conviction  Less serious, lighter penalties, less complex procedures, less than 2 years  Probably no jury Indictable Offence  More serious, higher penalties, more complex procedures, more than 2 year  Preliminary inquiry, and trial by jury Hybrid Offence  Choice by Crown whether to proceed under indictment or summary conviction The Criminal Charge Laying Charges Definition of Information  A document sworn in front of a justice of the peace, alleging that a person has committed an offense. o Information is required for the issuance of some process, such as an arrest warrant, and is the document based upon which the trial for a summary conviction offense will occur.  The time when information is laid before a justice = the point at which the individual passes from being a “suspect” to being an “accused”. o This means that the system has stopped trying to discover who committed an offense and will become focused on proving the guilty of one particular person. An information may be sworn by any person who has reasonable grounds to believe that an offense has been committed. o No person may be considered an accused person in the absence of a charge and no court can have jurisdiction over the prosecution of an accused in the absence of a charge.

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s.504 CC  The justice receives the information. This section stipulates what is required in an information. s.507 CC

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The justice considers the substance of the informant‟s allegations. In this judicial function, the justice exercises discretion as to whether it is appropriate to take any action or to require the accused person to answer the charges.

Process  In Canada, public prosecutions begin when an information is laid by a public officer. S. 504 CC states some elementary requirements that must be met before a justice may receive and consider information. o Therefore, information must be in writing, under oath, and must allege the commission of an offence by an identifiable person.  It must also contain allegations that affirm the territorial jurisdiction of the justice before whom it is laid.  The informant must declare in the information that he has reasonable grounds to believe that an offense has been committed. o Grounds for such a believe need not be based on the personal knowledge of the informant, but may be based on reports that he has received.  However, the person swearing the information must personally hold the necessary belief. o E.g. insufficient for an officer to lay an information simply on the basis that she was instructed to do so. Once the information has been received under s. 504 CC, the justice who received the information must consider the substance of the informant‟s allegations, under s.507 CC. o The justice may exercise discretion as to whether it is appropriate to take any action or to require the accused person to answer the charges (this hearing is generally NOT conducted in open court).  The justice will examine the allegation of the informant and may ask questions of that person or any other witness where he considers such evidence necessary or desirable to ascertain the basis of the informant‟s belief that an offense was committed.  The justice is not obliged to observe the rules and principles governing the admissibility of evidence at a preliminary inquiry or trial. Upon considering the information, the justice must decide whether to endorse it. The Code does not state any standard to be applied in this decision. The justice need only be satisfied that there are reasonable grounds, as disclosed in the information and any evidence adduced in support thereof, to believe that the offence was committed by the person named. If the justice is satisfied, she will sign the information. This endorsement marks the moment at which a charge is formally laid and a prosecution begins. At this point, the person named in the information is an accused person before the court. The judge must refuse to issue process if he is not satisfied that it discloses reasonable grounds to believe that an offence has been committed. However, a refusal to issue any process by one justice does not prevent the informant from seeking a summons or warrant from a different justice based on the information.

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The Charge Document Information Indictments and Direct Indictments

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Charges are laid by means of information. When an accused is tried by a provincial cout judge, that information is the relevant documents. When the accused is NOT tried by a provincial court judge a different document, an indictment, is prepared. o Most commonly, the indictment is prepared following the preliminary inquiry and can include any charge on which the person was order to stand trial.  Whether the trial proceeds by information or indictment, it is the starting point for the trial and sets out the case the accused has to meet.

Direct indictments  S.577 CC allows for “direct indictments”, which permit the prosecutor to prefer an indictment when the accused has not been given the opportunity to request a preliminary inquiry. o The preliminary inquiry has been commenced but not concluded, or the accused was discharged following the preliminary inquiry.  This power also applies where a committal for trial has been quashed (R v. Charlie), or where a trial judge has specially declined to order an accused to stand trial on a charge not laid but disclosed in the evidence at the preliminary (R v. McKibborn).  As a special power, a Crown prosecutor can only prefer a direct indictment with the personal consent in writing of the AG or Duputy AG. o The AG‟s power to authorize a direct indictment cannot be reviewed by a court (R v. Balderstone).

Jurisdiction Jurisdiction to Prosecute  Almost all criminal cases are public prosecutions conducted by agents of the AG. o However, anyone may commence a prosecution by laying an information.  If the information is sworn, a private prosecution may proceed unless the case is taken over by the AG. Public Prosecutions  The AG is the principle law officer of the Crown, which means that he or she is the chief barrister and solicitor for the government. o Prosecutions are almost never conducted personally by the AG, but by persons who are legally authorized to act in his name.  The role of the AG is: o Requirement of consent to the prosecution of some offences; o Deciding whether to proceed by direct indictment; o Whether to assume carriage of a private prosecution; o Whether to enter a stay of proceedings; o Whether to proceed by indictable or summary conviction procedure in the case of a hybrid offense; o Whether to withdraw a charge, consent to an adjournment, launch an appeal, etc… As the prosecution‟s discretion is derived from the royal prerogative, the courts will rarely interfere with the manner in which it is exercised.

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In the absence of gross abuse or ill-will, the courts will not contradict or challenge decisions that are reserved to the prosecution.

Private Prosecutions  A private prosecutor is any prosecutor under the Code who is NOT an agent of the AG. o The growth of the AG as the public prosecutor has diminished the frequency and significance of private prosecutions.  However, assuming that a judge receives and endorses the information, the informant becomes the prosecutor.  In all cases, indictable or summary, the AG may interfere in a private prosecution for the purpose of assuming the carriage of the prosecution or for the purposes of entering a stay of proceedings.

Territorial Jurisdiction  As a general rule, a person can only be held liable under Canadian criminal law for an offence that he commits within Canadian territorial limits – s.6(2) CC. o Exceptions  CC includes within Canada any offence committed within territorial seas off Canadian shores.  SCC held that if an offence is committed abroad but has a “real and substantial” connection to Canada, it falls within the class of offences committed in Canada (Libman v The Queen).

Charter (and jurisdiction)  Unlikely to have much influence on investigative techniques employed abroad. Foreign officials cannot be expected to comply with Charter standards and their failure to do so will not give rise to a Charter violation. o E.g. U.S. police do not have to give a warning in accordance with s.10(b) requirements.  However, if the conditions in which a statement was obtained are particularly egregious, it is possible that attempting to introduce that evidence at trial in Canada might constitute a s.7 violation. R v Cook (1998) Facts: two Canadian police officers went to the US and interrogated an accused after having been given him a s.10(b) warning that was clearly deficient. Held: the Charter applied. HOWEVER R v Hape (2007) Facts: Canadian police participated in several warrantless searches in the Turks and Caicos islands that, if conducted in Canada, would have violated s.8. There was no evidence in the case as to whether the searches complied with Turks and Caicos law. Held: Charter did NOT apply. Hape approach – two questions: (1) Is s.32, which makes the Charter applicable only to Canadian state actors, met?

Although, even if a Canadian state actor is involved, the Charter will only apply if there is an exception to sovereignty, such as evidence that the foreign state consented to the application of Charter standards. (2) If question (1) is met, whether admitting evidence obtained through the foreign investigation renders the trial unfair, thus giving rise to a s.7 violation. In most cases, neither part of the test will be met. Thus, the Charter has minimal impact on investigations conducted outside Canada. Place (jurisdiction) of where to prosecute and other issues:  A criminal prosecution will typically be conducted in the judicial district within which an offence is alleged to have been committed. The Code provides that if the offence is alleged to have occurred in an unorganized area it may be prosecuted in the nearest judicial district (s.480 CC).  Not all offences are committed in a single place. As a result, there can be jurisdiction in more than once country, provinces, or judicial district. While no province or territory may assert jurisdiction over an offence wholly committed in another, a prosecution may be conducted in any province or territory in which an element of the alleged offence occurred. This principle allows for concurrent jurisdiction. R v Bigelow (1982) Facts: the accused was charged with detaining a child with intent to deprive the mother of lawful custody. He had picked up the child for an access visit in Ontario and then flown to Alberta before the scheduled time to return the child. Accused’s argument: the offence of “detaining” had not occurred in Ontario but in Alberta, therefore the Ontario trial court did not have jurisdiction. Ontario CA’s reasoning: s.478 would prevent an Ontario court from trying an offence “committed entirely in another province”. However, noted that offences could have elements that mean they were committed in more than one province, and identified three such grounds: (1) Continuity of operation (2) Commission of an overt act (obvious act) (3) The generation of effects. Ontario CA Held: the commission of the overt act of boarding a plane with a child in Ontario, that this act was part of a pre-planned scheme, and that the mother was deprived of her custody rights in Ontario because of this act, was sufficient to give Ontario court‟s jurisdiction. Change of venue: s.599 CC provides that a change of venue may be ordered if it is “expedient to the ends of justice”.

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The Significance of the Charge In Canada, a trial is NOT an inquiry into whether the accused has committed some criminal offence. It is a trial to determine whether the Crown prosecutor can prove the specific allegation that has been made, beyond a reasonable doubt. The accused is in jeopardy of conviction only for the offence charged, and for any offences that are “included” in the criminal charge.

R v G.R. (2005) S.C.J. No.45 The accused is in jeopardy of conviction only for the offences charged. Facts: R was charged with committing incest with his daughter. At the time of the alleged incest, the daughter was in fact between the ages of five and nine. R was convicted of attempted incest.

In the Court of Appeal, the Crown conceded that there was insufficient proof with respect to attempted incest, but argued that R should be convicted of sexual interference and sexual assault. The court acquitted R of attempted incest and held that sexual interference and sexual assault are not included offences of incest. Held: Since the same set of facts may give rise to different charges, it is fundamental to a fair trial that an accused know the charge or charges he or she must meet. The Crown did not allege that the daughter was below the age of consent, and there is nothing in the nature of the offence of incest as described in the Criminal Code or the wording of the indictment to put R on notice that he was in jeopardy of a conviction for sexual assault or sexual interference. The proper focus is on what the Crown alleges, not on what the accused already knows. An accused will often know a good deal more about the circumstances of an offence than the police or Crown will ever know, but it is not enough for the Crown to say to an accused "you know perfectly well what you're guilty of". The basis of our criminal law is that he or she is only called upon to meet the charge put forward by the prosecution. In this case, lack of consent (or the age of the daughter) was not part of the charge put against R. The Crown thus seeks to have R convicted of charges which require the prosecution to establish elements (non-consent in the case of assault or the age of the victim in the case of sexual interference) which were not part of the allegations against him at trial. An important function of an indictment is thus to put the accused on formal notice of his or her potential legal jeopardy. Here, R was informed of the "transaction" that gave rise to the charge of incest, but he was not notified that in meeting that charge he was also required to defend against the offences of sexual assault and sexual interference. The corollary, however, is that acquittal on the charge of incest does not provide R with a defence of autrefois acquit (basically „double jeopardy‟) to any future charge of sexual assault or sexual interference. The Validity of the Charge Joinder and Severance of Charges Joinder – It is now possible to hold a trial on one or more indictments simultaneously ... Severance – The Code gives little in the way of guidance regarding severance decisions, stating only that the court may do so where “the interests of justice so require (s.591(3) CC). A preliminary inquiry judge does not have jurisdiction to sever, it must be done by the trial judge ( R v Hynes). Normally, an application to sever is made on a pre-trial basis because the decision will dictate the course of the trial. Courts have developed considerations to take into account when deciding whether to sever counts:  Society has an interest in avoiding a multiplicity of proceedings  The factual and legal nexus between the counts  The complexity of the evidence  Whether the accused wishes to testify on some counts but not on others  Whether similar act evidence will be introduced (R v D.A.C.) Joinder and Severance of Accused The general rule is that accused who are alleged to have committed a crime together should be tried together (R v Chow). A trial judge does have discretion to sever the trials in accordance with s.591(3) CC where it is required in the interests of justice. Content of Charges s.581(3) CC sets out the rules for the „count‟ statement: “a count shall contain sufficient detail of the circumstances of the alleged offence to give the accused reasonable information with respect to the act or omission to be proved

against him and to identify the transaction referred to but otherwise the absence or insufficiency of details does not vitiate the count”. The court has noted that there are two interrelated rules dealing with indictments: (1) s. 581(3) CC – dealing with insufficient detail, and (2) the “surplusage rule” (extra/unnecessary), dealing with additional, unnecessary detail. The general rule is that the purpose of each count in an indictment is to put the accused on notice of the case to be met.  A count must have sufficient detail and an accused is normally entitled to expect that the Crown will be required to prove all the details of any allegation made.  However, it is open to a court to find that detail actually provided in a count is “surplusage”, therefore that a fact need not be proven, despite being alleged. R v N.C. (1991) Facts: the accused was charged with trafficking in cocaine, though the evidence at trial showed that the substance she had claimed to be cocaine was actually a mixture of baby powder and aspirin. This would have been an offence nonetheless, since the Narcotic Control Act provision also made it an offence to traffic in any substance held out to be a narcotic. Held: having charged the accused with trafficking in cocaine, the Crown was obliged to prove that the substance actually was cocaine: their failure to do so would mean she must be acquitted. R v Saunders (1990) Facts: the Crown charged a number of accused with conspiracy to import heroin. The charge would have been perfectly acceptable had it not specified which narcotic was to be imported. Held: having specified heroin, the Crown was obliged to prove that the conspiracy related to that narcotic in particular. HOWEVER Vezina Facts: the accused was charged with fraud in an information that specified the Bank of Montreal as the victim. In fact, the Crown was unable to prove that the Bank of Montreal would have suffered any loss from the accused‟s fraud. Held: the information would initially have been valid, even if it had not specified a victim. Accordingly, it did not matter that the Crown was unable to prove the particular allegation, which was mere surplusage. REASON FOR DIFFERENCE IN DECISION – PREJUDICE: Whether a detail will be considered surplusage, or whether the Crown will be held to proof of fact, depends on whether the accused‟s defence will be prejudiced. For example:  In Saunders, one accused had taken the stand to testify that he had been involved in one of several conspiracies to import narcotics, but not in the particular conspiracy that was to import heroin. In that case, not holding the Crown to proof of the particular narcotic alleged would have been prejudicial.  In Vezina, the Court concluded that the accused would not have conducted their defence in any different manner had the allegation that the Bank of Montreal was the victim not been made, therefore the accused no prejudice. Given the absence of prejudice to the accused, the Crown was not to be held to proof of that fact. Remedies for a Defective Charge Potential Remedies

Much of early case law dealt with quashing charges against an accused based on defects in form. In Canada, however, there has been “a gradual shift from requiring judges to quash to requiring them to amend in the stead: in fact, there remains little discretion to quash (R v Moore). There are 3 possibilities arising out of an error in an indictment: (1) It is so flawed that it is an absolute nullity, then a trial judge has no jurisdiction to hear the matter, and the charge is quashed. (2) The charge might be flawed, but not so flawed that it is a nullity; in that event the trial judge is to amend the charge. (3) See p.303 The interest being protected for the accused is clarity at trial. R v Moore (1988) 1 S.C.R. Although Moore stressed the preference for an amendment over quashing, was an unusual circumstance in which a technical error led to acquittal. Facts: Moore was charged on an information that was incorrectly quashed. The Crown laid a new charge and proceeded to trial on the new information, obtaining a conviction. SCC Held: the original quashing was an error and that the charge should have been amended (had the Crown appealed the first trial judge‟s decision, this would have been the result). However, the Crown did not appeal the decision, and so the first judge‟s decision had to stand because the Crown was not entitled to avoid an appeal simply by laying a new information. Therefore, the accused was able to plead autrefois acquit at the subsequent trial. R v Tremblay (1993) 2 S.C.R. Facts: the accused were charged with keeping a bawdy house for the purpose of practicing of acts of indecency. The accused called an expert witness and arranged their entire defence around the argument that the acts performed were not indecent. After all the defence evidence had been presented, the Crown made two applications to amend the charge, first to delete words “the practice of indecency”, and when that was refused, to change it to “the practice of prostitution”. SCC Held: the trial judge had been correct to refuse the amendment. It might have been allowable much earlier in the trial, but it would have caused irreparable prejudice at the stage it was brought. Further remedy – s.587 CC: when a count is flawed a further remedy is to order the Crown to provide particulars. Particulars are intended to clarify the charge against the accused, in order to provide clear information as to the offence charged...  i.e. R v Thatcher – the accused‟s request for particulars was refused (p.305-306). The most likely result from some defect in a charge is an amendment. What is considered to be a defect in a charge? A charge is defective when it departs from the “golden rule”, laid down in R v Cote (1978) S.C.R. – the accused is entitled “to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial” Insufficient Charges s.581 CC – a count must contain sufficient detail to give the accused reasonable information and to identify the transaction. In deciding the sufficiency of a count, courts frequently make reference to the test is R v Brodie. Brodie test – the indictment must lift the charge “from the general to the particular”.

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However, for insufficiency to have any greater impact, a count must violate the standard in Moore (an error egregious enough that the charge must be quashed) or Cote and be so badly drawn up that it does not give the accused notice of the charge. This standard is rarely met.

Time – the court has held that “time is not required to be stated with exact precision unless it is an essential part of the offence charged and the accused is not misled or prejudiced by any variation in time that arises” (R v Douglas).  Unless time is of the essence in a charge, the time that the offence occurred is not an essential element.  The time of an offence normally does not need to be proven, even if it is stated in the count.  It does not matter that the wrong time was stated UNLESS, i.e. an accused was entitled to take items or perform actions (such as fly a plane) during some periods.  This approach is consistent with the surplusage rule (p.308). i.e of insufficient charge: R v Henyu (1980) Facts: An information was quashed at trial for failing to disclose an offence known to law on the basis that it failed to explicitly allege that the accused had caused bodily harm, one of the elements of the offence. CA Held: in stating that the accused had stabbed the victim, bodily harm was sufficiently implied. It is common for charges to be laid by simply repeating the language of the Code section that creates the offence, as stated by s.581(2) CC. i.e. of insufficient charge: Wis Development (1984) – the court accepted that a charge laid in that form was insufficient when it simply said that the accused “operate(d) a commercial air service”, without anything more. REASONING: the phrase covered a “multitude of activities”, ranging from hauling passengers to allowing an aircraft to be photographed for liquor advertisement, and therefore the information was void for not meeting the sufficiency standard of s.510(3) CC. Duplicitous Charges Duplicitous count: is one that charges the accused with committing two different offences, and it is objectionable because the ambiguity prevents the accused from knowing the case to meet. The duplicity rule limits a count to a single legal issue.  Where insufficiency asks whether an accused has been given too little information, duplicity in effects suggests that the accused has been given too much information.  Thus, possible to have multiple counts, but each count must only have one legal issue or else it is confusing for the accused to know the case to be met. Courts have not found the duplicity rule to be easily violated: Sault Ste. Marie – the court found a count non-duplicitous that charged the accused did “discharge or cause to be discharged or permitted to be discharged or deposited” pollutants into a river. REASONG: the court held that section had not created several different offences but only one offence, polluting, which could be committed in a number of ways. The accused would have no doubt about the case to meet, and so no objection should be taken to the charge.  This approach is consistent with the idea that a jury must be unanimous to find an accused guilty of an offence, but need not be unanimous with regard to how the accused committed the offence (Fischer).

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Further, an information that contains two counts separated by the word “alternatively” is not duplicitous since it would not be a single count charging more than one offence (Brewer).

Possible remedy for a duplicitous count – s.590(2)(b) CC allows an accused to apply to have a count that is “double or multifarious” either amended or divided into two or more counts. Only the trial judge has jurisdiction to divide a count.  Lilly – i.e of when a count should have been divided in order to make it easier for the jury to comprehend.  Litchfield – i.e. of a count division order which should not have been made by the judge since it complicated the matter.

The Adversarial Proceeding The Adversarial Process  A trial is the opportunity for the Crown prosecutor to prove the specific allegation made in the charge (information or indictment) beyond a reasonable doubt. Pleas s.606 CC sets out the ONLY available pleas to an accused:  Guilty  Not Guilty  Special Pleas o Autrefois acquit, autrefois convict, and pardon (all manifestations of the rule against multiple convictions). Plea of Guilty  Amounts to an admission by the accused of actus reus and mens rea. o It is in effect a waiver of the right to a trial. Plea of NOT guilty  Is not a claim of innocence by simply a demand that the Crown proves all the elements of the offence and disprove the existence of any defenses. o It puts the any defense available in issue, including, but not limited to, not criminally responsible by reason of mental disorder. No Plea  When an accused refuses to plead, the judge is to enter a plea of not guilty. Guilty with an Explanation  A judge receiving a plea of guilty with an explanation should NOT accept it. o The accused wants to explain, the accused is required to plead NOT guilty. Withdrawing a guilty plea  An accused can later withdraw a guilty plea if “there are valid grounds for his being permitted to do so”. o E.g. If the accused had been pressured by counsel into entering a guilty plea, the accused might successfully withdraw the plea.

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E.g. The accused actually plead guilty in order to obtain an immediate fine rather than spend a week in custody awaiting trial or to avoid a more serious charge. Taillefer (p.314)

Accused to be Present  S.650 CC requires an accused (other than a corporation) to be present in court during the whole trial, and therefore present for the plea. o S.800 CC permits an accused charged with a summary conviction offence to appear by counsel. Accused can enter a plea via electronic appearance. Order of Trial Trial Procedures  The procedure governing trials are set out in parts XIX, XX, and XXVII CC. o A trial is to proceed continuously, but the judge can grant adjournments. o The accused is to present for the trial, but a judge is allowed to excuse the accused from attending.  The CC now permits the attendance of the accused at trial by video link.  If the accused absconds during trial, the court can either issue a warrant for the accused arrest and adjoun the trial OR continue the trial without the accused. o In the later case, the defense counsel can continue acting for the accused and the accused‟s right to full answer and defense will NOT be violated. o The Judge can ask questions during the trial, although doing so can raise issues as to whether there is a reasonable apprehension of bias. o Juries are also entitled to ask questions, within limits. Opening Statements  The Crown presents its case first, and as a matter of practice, can begin with an opening statement to the jury explaining its theory of the case and the evidence to be called. o The Crown is not obliged to call every witness it indicates will be called, but it risks the jury drawing some type of adverse inference.  Normally, the defense is NOT entitled to make an opening address to the jury immediately following the Crown‟s opening remarks.

Presentation of the Crown’s Case  Following the opening statement, Crown counsel is required to present evidence proving the charges and the accused is entitled to cross-examine the Crown witness (not entitled to cross-examine all though).  Evidence that was taken at a preliminary inquiry can be used at a trial in some circumstances, s.545 CC allows a trial judge to imprison a witness who refuses to testify for periods of up to 8 days at a time. Presentation of the Defense Case Application for a Directed Verdict  In limited circumstances the trial judge has the authority to direct that an accused will be acquitted (common law power).

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Recently, the SCC has modified the procedure so that trial judges are to withdraw the case from the jury and enter the acquittal personally, but the name has remained. o Where the Crown has failed to provide evidence on some essential element of the offense, the trial judge can direct the acquittal of the accused. The accused can make a motion at the close of the Crown‟s case and the judge is to rule on it at that time.  The accused is entitled to know the result of that motion before deciding whether to call evidence in the defense. o A trial judge cannot direct an acquittal on the basis of the Crown‟s evidence of identification is manifestly unreliable.  E.g. Because the trial judge is not permitted to weigh the strength of the evidence at all. The test for a directed verdict is the same as that for a preliminary inquiry judge in deciding whether to send a matter to trial. o “Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.  There, a directed verdict is not available where the Crown‟s evidence is weak. It is ONLY possible where there is a COMPLETE absence of evidence on some point that must be proven. A directed verdict can be granted on the charge laid but the trial must be allowed to proceed in order to decide whether the accused is guilty of any included offences. Example, R v Titus, the court agreed that it would be possible to direct an acquittal on a first degree murder charge, but allow the trial to continue to see whether the accused was found guilty of second degree murder.

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Defense of Presentation of Evidence  An accused who does not make, or does not succeed in, an application for a directed verdict is then entitled to call evidence, or otherwise make a full answer and defense. o The defense can call witnesses, including witnesses the Crown has decided not to call. o The accused is a competent witness, but is NOT compellable, and the failure to testify cannot be made the subject of comment by the judge or prosecutor (Canada Evidence Act, s.4(6)). This statutory provision is consistent with the accused right to silence and the presumption of innocence. o Normally, the defense CANNOT cross-examine its own witnesses, though in certain situations this is permitted. Reopening the Crown’s Case  The Crown is expected to present all of its evidence before the defense is called upon. o The trial will move closing arguments once the defense has completed called all of the evidence it wishes.  “Splitting the case” occurs when leading some of the Crown‟s evidence after the accused‟s case has been presented. o This is prohibited because the accused is entitled to know the full case against him before deciding whether to remain silent or take the stand.  However, in exceptional cases, the Crown can apply to reopen its case and call further evidence, at the discretion of the trial judge.

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The “Keystone Principle” in deciding whether to allow the Crown to reopen its case is whether the accused will be prejudiced in making a defense. o Test, “The ambit of a trial judge‟s discretion to allow the Crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused defense as the trial progresses…” (M.B.P. p.322).  IF the Crown is allowed to “split the case” there are limitations on the evidence that may be presented: o The evidence ought to be new evidence, in the sense that it could not have been foreseen by the Crown and was in the interest of justice. It is not relevant whether the Crown was at fault to discover the evidence. o The focus is on the prejudice of the accused, which is the same whether the Crown had acted diligently or not.  The rationale for this rule is that the accused is entitled to know the case to meet before beginning the defense and that case may be at great risk of changing if the Crown is permitted to reopen. o See, R v. Sylvester (Trial Judge allowing new evidence).

Note:

Rebuttal Evidence  Rebuttal evidence is permitted, o “Where the defense has raised some new matter or defense, which the Crown has had no opportunity to deal with and which the Crown or the plaintiff count not reasonably have anticipated.  However, rebuttal will NOT be permitted regarding matters, which merely confirm or reinforce earlier evidence in the Crown‟s case which could have been brought before the defense was made (Krause).  In other words, rebuttal evidence must concern matters that the Crown is reasonably surprised to find in issue. o R v. Biddle held, “the evidence should not have been allowed in rebuttal and should have been presented as part of the Crown‟s original case. The Crown was able to present the witness as part of its original case, and its failure to do so prevented the accused from knowing the entire case to be meet before testifying.

Sur-rebuttal Evidence  The accused‟s right in s.650 (3) CC to make full answer and defense after the close of the Crown‟s case applies where the Crown has led rebuttal evidence permitting the accused to lead sur-rebuttal evidence. Reopening the Defense Case  Addresses to the Jury  Closing arguments by Counsel  Charging the Jury 

The Judge gives the jury instructions (jury charge) once counsel has presented their cases.

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The Purpose of the jury charge is to “decant and simplify” the case (R v. Jacquard). An accused has a right to a properly instructed jury, but NOT a perfectly instructed jury.  S.650.1 CC permits a judge to confer with the crown and the defense with regard to what matters should be explained to the jury.

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A jury charge is a matter of common law and so a judge has latitude in structuring them: o Trial judges are permitted to experiment with new approaches to instructing a jury. o The judge‟s charge should be fair, dispassionate, and should be the last thing said to the jury before they commence their deliberations.

Length of the charge:  R v Fell – trial judge gave a four-day charge which was upheld in the Ontario CA since there was nothing inaccurate in the charge. This is consistent with allowing the trial judge to structure a charge. Elements of a charge:  A charge should review facts, the prosecution‟s theory of the case, the accused‟s theory of the case, and the defences which arise for the jury. Defences: the trial judge should charge on all defences that arise on the facts, whether the accused has raised them or not (Faid). Inadequacies:  the charge must be viewed as a whole, and inadequacies in one portion might be compensated for sufficiently in other parts so that the entire charge is acceptable (Jacquard). “It is the overall effect of the charge that matters” (Daley). Judge‟s role/limitations:  Even though the jury is the trier of fact, a trial judge is entitled to offer opinions on matters of fact in the course of the instructions to the jury. However, the trial judge must not remove the decision from the jury by instructing them to convict. Such an instruction violates an accused‟s s.11(f) right to trial by jury. o Thus, there is no “directed verdict of conviction” that is analogous to a directed verdict of acquittal. The Presumption of Innocence and the Ultimate Standard of Proof  The accused is presumed to be innocent, a right guaranteed by s.11(d) Charter. This means that ultimately, at the end of the whole case, the Crown must prove the guilt of the accused beyond a reasonable doubt. o This is the Crown‟s ultimate burden in both a criminal or regulatory prosecution.  The meaning of proof beyond a reasonable doubt is described in R v. Lifchus and in R v. Dinardo

R v Lifchus (1997) Meaning of “proof beyond a reasonable doubt” FACTS: Lifchus was a stockbroker convicted of fraud at trial. He claimed the trial judge misdirected the jury by instructing them that "proof beyond a reasonable doubt" was to be determined according to its ordinary, every day meaning. The Manitoba Court of Appeal allowed his appeal and directed a new trial. The Crown appealed to the Supreme Court of Canada. In issue was the meaning of "reasonable doubt.

HELD: Appeal dismissed. The trial judge failed to explain the standard of proof fully and properly to the jury. Reasonable doubt has a specific meaning in the legal context, which should be explained to jurors. The trial judge should have explained that reasonable doubt was inextricably intertwined with the presumption of innocence and that the burden of proof rested on the prosecution and never shifted to the accused. A reasonable doubt was a doubt based on reason and common sense logically derived from the evidence or absence of evidence, and did NOT involve proof to absolute certainty. Reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context. It could not be said that the verdict would necessarily have been the same had the trial judge not erred. R v S.(J.H.) (2008) Meaning of “proof beyond a reasonable doubt” FACTS: Appeal by the Crown from decision of the Nova Scotia Court of Appeal setting aside the conviction of the respondent for the sexual assault of his stepdaughter. The respondent was tried before a judge and jury. ISSUE: The issue at trial was whether the alleged events had ever happened. The complainant and the respondent were the principal witnesses. The trial judge charged the jury on the credibility of the witnesses and specifically instructed the jury that the trial was not a choice between two competing versions of events. The jury returned a verdict of guilty. A majority of the Court of Appeal set aside the conviction and ordered a new trial on the basis that the jury was not clearly instructed by the trial judge that lack of credibility on the part of the respondent did not equate to proof of his guilt beyond a reasonable doubt as required by R. v. W. (D.). HELD: Appeal allowed and conviction restored. A general instruction on reasonable doubt without adverting to its relationship to the credibility or lack of credibility of the witnesses left open too great a possibility of confusion or misunderstanding. It had to be made crystal clear to the jury that the burden never shifted from the Crown to prove every element of the offence beyond a reasonable doubt. Where credibility was important, the trial judge's instructions could not leave the jury with the impression that it had to choose between the two versions of events. Lack of credibility on the part of the respondent did not equate to proof of his or her guilt beyond a reasonable doubt. When read as a whole, the charge did not leave the jury with any misapprehension as to the correct burden and standard of proof to apply. The trial judge explained that any reasonable doubt had to be resolved in favour of the respondent. She explained that even if they did not accept all of the respondent's testimony, they could still accept some of it. She also told the jury that they could not decide the case simply by choosing between the evidence of the complainant and that of the respondent. She reminded the jury, in that context, that they had to consider all of the evidence when determining reasonable doubt. The charge was sufficient. R v Dinardo (2008) The trial judge must explain how he resolved difficulties in a trail in order for an accused to have a meaningful right to appeal. FACTS: Dinardo, a cab driver, was convicted of sexual assault and sexual exploitation of a passenger, who is mildly mentally challenged. At the commencement of the trial, a voir dire was held to determine whether the complainant was competent to testify. The trial judge concluded that the complainant's deficiency did not mean that she could not testify, and that it would be up to him to determine her credibility. The complainant's answers on the central parts of her allegations were consistent, essentially. However, she gave contradictory answers on many

points. She also gave conflicting testimony about inventing the allegations. Dinardo testified and denied the allegations against him. In assessing the complainant's credibility, the trial judge emphasized that she did not contradict herself on the important aspects of her allegations. He also concluded that her evidence at trial was corroborated by her out-of-court statements made shortly after the alleged incident. A majority of the Court of Appeal upheld the convictions on the basis that the trial judge's reasons, although succinct, made it clear why the trial judge disbelieved Dinardo. Although the inconsistencies in the complainant's testimony were not specifically addressed by the trial judge, they related primarily to peripheral matters and the evidence allowed for appellate review of the correctness of the decision. The trial judge erred in using the complainant's prior consistent statements to corroborate her evidence, but the majority concluded that the improper use of the statements did not justify a new trial because Dinardo suffered no prejudice. The dissenting judge would have allowed the appeal and ordered a new trial, the trial judge's reasons being insufficient. Dinardo appealed his conviction on the grounds that the trial judge misdirected himself on the issue of credibility and failed to provide sufficient reasons to allow for meaningful appellate review HELD: Appeal allowed. A new trial is ordered. Reasons are sufficient when they respond to the case's live issues. The complainant's truthfulness was a live issue, and the trial judge erred by failing to explain how he reconciled the inconsistencies in the complainant's testimony, particularly on the issue of whether she invented the allegations. The defence rested on the overall lack of credibility and reliability of the complainant's testimony. It was incumbent upon the trial judge to explain, even in succinct terms, how he resolved these difficulties to reach a verdict beyond a reasonable doubt. His failure to do so deprived Dinardo of his right to a meaningful appeal. Where the trial judge's reasoning is not apparent from the reasons or the record, the reviewing court should not substitute its own analysis of the evidence for that of the trial judge, as the majority of the Court of Appeal did here.  Other Burdens While the Crown prosecutor must prove guilt beyond a reasonable doubt at the end of the case, there are other burdens of proof that operate during the criminal process.

R v Arcuri (2001) S.C.J. The question to be asked by a preliminary inquiry judge as to whether there is a case to answer (i.e. to go to trial) = whether there was any evidence upon which a reasonable jury properly instructed could return a guilty verdict. (Note: this is the same test for a directed verdict) FACTS: Appeal by the accused Arcuri from a decision of the Ontario Court of Appeal which affirmed a preliminary inquiry judge's decision committing him to stand trial. Arcuri was charged with first degree murder. At the preliminary inquiry, the Crown's case was entirely circumstantial and Arcuri called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected Arcuri's submission that the Crown's evidence had to be weighed against that of the defence. After considering the evidence as a whole, the judge committed Arcuri to stand trial for second degree murder. Arcuri argued that the judge erred in refusing the weigh the evidence. Arcuri's application for certiorari was dismissed. HELD: Appeal dismissed. The question to be asked by a preliminary inquiry judge was whether there was any evidence upon which a reasonable jury properly instructed could return a guilty verdict. Where the Crown's evidence included circumstantial evidence, the judge had to engage in a limited weighing of the whole of the evidence. In this case, the preliminary inquiry judge considered the evidence as a whole before committing Arcuri to trial. There was no reason to believe that the judge had arrived at the wrong result. Defences: “air of reality”

Even the accused must at times satisfy an evidential burden in order to have a matter placed in issue. Indeed, if the accused wants to have a defence considered, the accused must show that the defence has an “air of reality” to it. If the accused succeeds, the judge must consider the defence, and in a jury trial must direct the jury on the law that applies to that defence: R v Cinous and R v Fontaine illustrate this. R v Cinous (2002) S.C.J. A judge should only put a defense to the jury if it has an “air of reality”. FACTS: Appeal by the Crown from a decision of the Quebec Court of Appeal overturning a conviction and ordering a new trial. The accused Cinous was charged with the first-degree murder of Vancol. Cinous had collaborated with Vancol and Louis in the theft and resale of computers. He claimed that he began hearing rumours that Vancol and Louis intended to kill him. He decided to participate in another theft with them to determine if this was true. They met at his apartment and departed in his van. Cinous testified that he became convinced that Vancol and Louis wanted to kill him when he saw the type of gloves they were wearing, which he associated with situations where bloodshed was expected. He pulled into a populated and well-lit gas station and bought a bottle of windshield washer fluid. He claimed that it did not occur to him to run away or call the police. When he returned to the van, he pulled out his gun and shot Vancol in the back of the head. The trial judge allowed the defense of self-defense to be put to the jury, but Cinous was still found guilty of second degree murder. The Court of Appeal held that the defense wasn't properly explained to the jury. HELD: Appeal allowed. Cinous's conviction was restored. A defense was to be put to the jury if and only if it had an evidential foundation. The judge had a positive duty to keep from the jury defenses that lacked an air of reality. The question was whether there was evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The air of reality test had to be applied to each of the three elements of self-defense under section 34(2) of the Criminal Code. With respect to the first element, it was possible for the jury to reasonably conclude that he was going to be attacked, and this belief was reasonable. There was also an air of reality to Cinous's perception that the attack would be deadly. However, it had to be established that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. In this case, there was absolutely no evidence from which a jury could reasonably infer the reasonableness of such a belief. As one of the conditions of self-defense was not met, the defense lacked the required air of reality and should never have been put to the jury.  Chief Justice and Bastarache J. later reiterated that “a single air of reality test applies to all defenses”. R v Fontaine (2004) S.C.J. FACTS: The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, “We‟re coming to get you, pigs.” The accused later heard from a coworker that the victim had been offered a contract to kill both of them. Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. The co-worker came by to check, but noticed nothing unusual. During the night, after smoking marijuana, the accused thought he heard someone breaking into his home. He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. Seeing the victim at the garage the next day, the accused shot and killed him. Before a judge and jury, the accused pleaded mental disorder automatism. Several psychiatrists gave evidence. The judge refused to put this defense to the jury on the ground that the required evidential foundation had not been laid. The accused was convicted of first degree murder. The Court of Appeal quashed the conviction and ordered a new trial.

HELD: The appeal should be dismissed. The accused‟s defense of mental disorder automatism should have been put to the jury.  It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.  The air of reality test is concerned only with whether or not a putative defense should be “put in play”, that is, submitted to the jury for consideration. This idea was crucial to the finding in Osolin that the air of reality test is consistent with the presumption of innocence guaranteed by s.11(d) of the Charter  In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. See Osolin, supra; Park, supra. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defense witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. o The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defense. That question is reserved for the jury. See Finta, supra; R. v. Ewanchuk,[1999] 1 S.C.R. 330. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. See R. v. Bulmer,1987, [1987] 1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assess whether the defense is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.  If there is any or some such evidence, then the air of reality hurdle is cleared. If there is no such evidence, then the air of reality hurdle is not cleared. . . . Presumptions There are numerous rules of evidence called “presumptions” that operate to assign burdens of proof on the accused. A presumption is a rule of law that directs judges and jury to assume that a fact is true (known as the “presumed fact”) in any case where the Crown proves that another fact is true (known as the “basic fact”), unless the accused can rebut the presumed fact according to the assigned standard of proof. Those presumptions known as “mandatory presumptions” can be rebutted by the accused simply by raising a reasonable doubt about whether the presumed fact follows from the basic fact. Where a mandatory presumption is rebutted, the “presumed fact” falls back into issue notwithstanding the presumption, and must be proved by the Crown in the ordinary way, without the assistance of the presumption. Other presumptions operate as “reverse onus provisions”, deeming the presumed fact to exist whether the Crown proves the basic fact unless the accused disproves the presumed fact on the balance of probabilities. A presumption can be easily recognized as a “mandatory presumption” because the legal rule raising the presumption will use the term “evidence to the contrary” to describe the burden of rebuttal. A presumption will be interpreted as a “mandatory presumption” where it fails to set out the required standard of rebuttal because of s.25(1) of the Interpretation Act. Many presumptions operate in alcohol driving prosecutions and are used to determine whether the accused has more than a legal amount of alcohol in his blood while driving or having care or control of a motor vehicle. See for example, s.258(1)(a), [a reverse onus provision] and ss.258(1)(c), (d.1) and (g), all mandatory presumptions. Presumptions are prima facie contrary to the Charter and must be saved under s.1.

R v Oakes (1986) 1 S.C.R. FACTS: This was an appeal by the Crown from a judgment of the Ontario Court of Appeal dismissing its appeal from a judgment of the Provincial Court convicting the accused of simple possession on a charge of possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act. See 83 DRS P16-513 and P16-514 for the judgments of the Provincial Court and the Court of Appeal. The Court of Appeal held that s. 8 of the Narcotic Control Act was unconstitutional as violating s. 11(d) of the Charter. Section 8 constituted the "reverse onus" clause under which if the accused was found in possession of a narcotic he was presumed to be in possession for the purpose of trafficking and must be convicted of trafficking unless he rebutted the presumption. The constitutionality of this question was again raised on the Crown's appeal to the Supreme Court of Canada. HELD: The appeal was dismissed. The presumption of the accused's innocence was protected expressly by s. 11(d) and inferentially by s. 7 of the Charter. Section 8 of the Narcotic Control Act infringed s. 11(d) of the Charter by requiring the accused to disprove the existence of a presumed fact. There was no rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking. As regards the applicability of s. 1 of the Charter, the presumption was that Charter rights were guaranteed unless a right was shown to fall within the exceptional criteria justifying the right being limited. The standard of proof was a preponderance of probabilities. The Court was not satisfied that the limitation of the right in s. 8 of the Act was reasonable and demonstrably justified in a free and democratic society. R v Boucher (2005) S.C.J. No.73  The Neutral Impartial Trier Another critical component of the accusatorial system is the presence of a neutral, impartial trier of law (to make legal decisions) and a neutral impartial trier of act (to make factual findings at the end of the trial). In Canada more than 95% of all criminal trials are conducted by a judge alone, so the performs the role of the both the trier of law and the trier of fact. o Where there is a jury trial, the judge acts as the trier of law, and the jury acts the trier of fact.  This means the judge makes all legal and procedural decisions during the trial, and directs the jury by training them in the law that applies. The jury then makes the factual decisions and renders the holding. In Canada the appropriate sentence is a question of law and therefore determined by the judge and NOT he jury.

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Powers of the Court Control over the Court Process  A trial judge has significant discretion in how a trial runs, including the ability to curtail cross-examination, prevent irrelevant or harassing questions, and ask questions of witnesses. o However, such interventions can violate an accused right to a fair trial.  To determine whether the accused is prejudiced by the judges intervention ask, o “Whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial” (R v. Valley (1986)).

Judge’s Power in Court  The CC gives judges the power to: o Grant adjournments during trials or other proceedings; o Decide to exclude any or all member of the public from all or part of the trial (s.486 CC).  A trial judge who does not grant a request for exclusion in a sexual offense case must give reasons for not having done so (s.486(3) CC).  This power to exclude the public conflicts with the hallmarks of a democratic society (i.e. freedom of the press and violates s.2(b) Charter, but saved by s.1).  See guidelines to exclude public on p.341. o Judge can permit a support person to a witness who is (i.e. disabled, under 18, etc…) (s.486.1 CC). o Judge can allow a witness to testify outside the courtroom, behind seen or other device to avoid face-to-face confrontation, but eh accused is still able to see the wintess (s.486.2 (1) CC). o The judge can intervene to ask questions personally and express opinions on the facts.  The trial judge‟s behaviour must not create a reasonable apprehension of bias (i.e. rudeness may not cross the threshold if equally rude to both parties. If a judge carries questions too far it may create a bias and may need to order a new trial. Note: Even though the jury is the trier of fact, a trial judge is entitled to offer opinions on matters of fact in the course of the instruction to the jury. However, the trial judge must not remove the decision from the jury by instructing them to convict. Such an instruction violates s.11(f) right to a fair trial by jury. o R v Krieger – the trial judge deliberately directed the jury to retire and return with a verdict of guilty. o R v Gunning – the trial judge directed the jury that one of the elements of the offence in question had been proven by the Crown. HELD: this was an error. Publication Bans Publication bans should be exceptional since they prevent public knowledge of court proceedings and are therefore in conflict with the open court principle.

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Statutory Publication Ban S. 486.4 CC  Allows a publication ban on any information that would identify the complainant or a witness in a trial for a variety of listed sexual offenses. The provision violates freedom of the press, but is saved by s.1. The judge is required to order the ban in such a situation. s. 486.5 CC  The ban is discretionary, the judge must balance interests of the system with the witness. s. 276.3 CC  Prevents reporting of information regarding an application to admit evidence of pervious sexual activity. o YCJA – No one may publish information identifying a young person as being dealt with under the Act.

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Similarly, no one may publish information identifying a young person who was a victim or a witness at proceedings concerning another young person.

Common law publication bans: Dagenais v CBC (1994)  TEST: whether a fair trial was compromised, and the Court had formulated a test that only asked about that interest. R v Mentuck (2001)  TEST: Mentuck recognized that a broader range of interests might need to be contrasted to the freedom of expression. Dagenais/Mentuck  TEST: a publication ban should only be ordered when: o (a) Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and o (b) The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. The person seeking the publication ban has the onus. In Dagenais, the publication bans were not justified because there were various alternatives such as adjourning trials, changing venues, etc. In Mentuck, the ban on the names of particular officers was justified since they were using their real names, and therefore their safety and the integrity of the undercover investigations would have been jeopardized. The ban on reporting the technique in general was not justified because the court was unconvinced that a serious risk to the effectiveness of the technique would arise if its existence were reported in newspapers. Contempt of Court This common law power is expressly preserved by s.9 CC.  Contempt can cover a variety of behaviours, including the insolence (defiance) to the court or refusal to answer questions while under oath. o The accused, witness or counsel all can be cited in contempt. The power to punish for contempt is intended to maintain the dignity of the court and to ensure a fair trial.  However, it must be made clear to the jury that the accused‟s guilt in the contempt proceeding cannot be used to assess guilt in the actual trial. Mistrials  A trial judge has the authority to declare a mistrial at virtually any point in the proceedings: from as early as the jury selection stage to as late as the post-conviction but pre-sentence stage. o Although it is typically the accused who applies for a mistrial, it is also open to the Crown to do so. It is a discretionary decision, and, although it is subject to appeal, an appeal court should only interfered if the trial judge proceeded on some wrong principle.  A mistrial does not allow the accused to plead autrefois acquit or autrefois convict.

Possible reasons to declare a mistrial:  Inappropriate publicity or other errors during jury selection,  Improper comments by the Crown prosecutor during an opening statement or closing submission,  Inadmissible evidence accidentally being given to the jury. Note: A mistrial is NOT automatically granted in the case of such errors, instead is a remedy of last resort. o Therefore, a trial judge should first try to remedy whatever prejudice has arisen by less drastic means before granting a mistrial. Other remedies instead of a mistrial might include: o An adjournment; o Reopening the case; o Instructing the jury that they are to ignore the submissions or information they ought not to have heard. Role of the Prosecutor The prosecutor is an advocate, BUT also a quasi-judicial officer. o This means that the prosecutor CANNOT act solely as an advocate, but must make decisions in the interest of justice and the larger public interest, including the interests of the accused.

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R v Cook (1997) 1 S.C.R. 1113 Same principle in R v Jolivet (2000) 1 S.C.R. 751 The crown is not required to call every witness with relevant information. FACTS: This was an appeal by the Crown from a decision of the New Brunswick Court of Appeal which allowed the accused Cook's appeal from conviction, set aside the guilty verdict and ordered a new trial. Its decision was based on the trial judge's failure to inquire why the prosecution refused to call the victim as witness. Cook was charged with assault causing bodily harm of a male and with two counts of sexual assault of a female. ISSUE: At trial, the Crown did not call the male victim as witness. No objection was raised regarding this failure to testify and the accused declined to call evidence. In issue was whether the Crown had a mandatory duty to call certain witnesses as part of its case in chief. Defence opposed the Crown's discretionary authority to call witnesses on the grounds that it caused prejudice to the accused and thus led to an unfair trial. HELD: The appeal was allowed. There was no duty upon the Crown to call witnesses nor a specific duty to call the complainant or victim. The Crown had discretionary authority to choose which witnesses to call. Such discretion was an essential, although not absolute, feature of the criminal justice system. There was no prejudice to the accused. The trial judge did not err in failing to inquire why the Crown chose not to call the victim. Note: In choosing not to call a witness who has been announced, the crown risks the jury drawing some type of adverse inference, and the accused would normally be entitled to point out the charge to the jury when making closing submissions.

Example of prosecution charging for improper purposes

R v Proulx (2001) S.C.J. No.65 FACTS: Appeal by the plaintiff Proulx from a decision of the Quebec Court of Appeal dismissing Proulx's action against the Crown for malicious prosecution. In 1986, the Crown determined that there was insufficient evidence to charge Proulx with the murder of his former girlfriend. Five years later, the Crown was advised by a retired police investigator who had worked on the case and by a radio station of a potential new identification witness. At the time, the radio station and the investigator were being sued by Proulx for defamation. On the basis of this new evidence, the Crown decided to prosecute Proulx for first degree murder. Proulx was convicted at trial and acquitted by the Quebec Court of Appeal. He then brought an action for damages for malicious prosecution against the Attorney General of Quebec. The Superior Court found the Attorney General liable for over a million dollars in damages, but a majority of the Court of Appeal dismissed the action. HELD: Appeal allowed. This was one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted. The Crown did not have reasonable and probable cause upon which to found the murder charge, and it was motivated by an improper purpose. It must have been clear to the Crown in 1991 that the evidence could not have properly resulted in a conviction. In particular, the eyewitness evidence was flagrantly inadequate. The improper purpose arose because of the mixing of a private interest, defence of the defamation suit, and a public interest, the prosecution. Krieger v Law Society of Alberta (2002) S.C.J. No. 45 FACTS: Appeal by the Law Society of Alberta from a decision allowing an appeal by Krieger and the Alberta Minister of Justice and the Attorney General from the dismissal of Krieger's application for an order that the Society did not have jurisdiction to hear a complaint against him. Krieger was assigned as Crown prosecutor in a murder trial against Ward. He received preliminary blood test results implicating a person other than Ward, but advised Ward's counsel that the test results would not be available before the preliminary inquiry. Counsel learned about the results at the preliminary hearing and complained to the Deputy Attorney General. Krieger was reprimanded and removed as prosecutor. Six months later, Ward filed a complaint with the Society. The Deputy Secretary referred the complaint to the Conduct Committee Panel. Krieger argued before the Committee that it did not have jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor. He and the Attorney General also argued that Rule 28(d) of the Alberta Code of Conduct, which required Crown prosecutors to disclose evidence in a timely manner, was ultra vires the Province. HELD: Appeal allowed. Rule 28(d) was not ultra vires the province. The Rule's pith and substance was directed at governing the ethical conduct of lawyers. As such, it solely applied to matters of professional discipline and did not intrude upon the Federal area of criminal law and procedure. Pursuant to the Legal Professions Act, the Society had the jurisdiction to regulate the conduct of all Alberta lawyers, including Crown prosecutors. The Society had the jurisdiction to review the conduct of a prosecutor to determine whether he or she acted dishonestly or in bad faith by failing to disclose information in a timely manner. This was so notwithstanding that the prosecutor's employer, the Attorney General, had reviewed Krieger's conduct from the perspective of an employer.  Role of the Defense The Defense counsel is an officer of the court and therefore must be respectful and honest with the court and must not attempt to mislead the court as to the state of the law. o Subject to this and the rules of law and ethics, the defense counsel is obliged to act solely in the interests of the accused, advising the accused on the implications of pleading guilty, securing advantage of all procedural and constitutional protections available to the accused that are not properly waived

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If the accused pleads NOT guilty, preparing the case fully, challenging the sufficiency of prosecutorial evidence, and advancing all defenses that properly arise.

GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION  Police Powers Police officers are independent of the Crown prosecutor in Canada. o This independence is important to permit the prosecutor to act as a quasi-judicial officer, and not to get too close to the mindset of investigator. Still, the police will often seek legal advice from Crown prosecutors, including on the wording of search warrants and the like. In the interests of securing liberty, the powers of the police are constrained by law, although can be derived from statute, common law and by implication from statute and common law. Police powers are also significantly limited by the Charter, most significantly s.8 (unreasonable search or seizure) and s.9 (arbitrary detention). Courts have undertaken a careful balancing of police powers in an attempt to ensure respect for liberty, without undermining the effectiveness of police investigations and law enforcement. o The law of evidence supports limits on police powers. Although not covered in this examination, individuals have the right to remain silent in their dealings with the police, what they say cannot be admitted if it is not “voluntary”. Where there has been an unconstitutional search or arbitrary detention, evidence that has been obtained as a result may be excluded from consideration. Police officers also have significant obligations to perform in securing the right to counsel for the subject, again, obligations that go beyond this examination. SOURCES OF POLICE POWER Statute  The primary source of police powers is the Criminal Code: s.494-528  allows officers (and others) to arrest an accused or compel an accused‟s appearance in court. s.25-33  allows the use of force to execute powers authorized by law. s.487  general search warrant, allowing a justice to issue a warrant authorizing the search of a “building, receptacle or place” and the seizure of evidence found there. s.487.01  allows a peace officer to apply for a warrant to “use any device or investigative technique or procedure or do anything” that would be an unreasonable search and seizure if it were not done under a warrant. s.487.11  a peace officer may “exercise any of the powers described in subsection 487(1) [search warrants] or s.492.1(1) [tracking devices] without a warrant if the conditions for

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obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant”. s.487.1  allows officers to apply for a warrant to obtain a blood sample or a search warrant by telephone. s. 25  permits police officers, under various circumstances, to perform acts that would, for any other person, constitute a crime. It permits the police to break the law in the course of investigations. Other non-Code statutes: Provincial legislation  has authorized random stops of vehicles used to check for both mechanical fitness and impaired drivers. Ontario Coroners Act  authorizes taking samples of bodily fluids in the investigation of deaths. Customs Act  authorizes searches of people crossing the border to enter Canada. Firearms Act  authorizes inspectors without a warrant to enter premises, including dwelling houses, to search for prohibited firearms on reasonable grounds. R v Kokesch (1990) – “this Court consistently had held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language. Common Law Three sense in which police have common law powers: a) Historical Common Law Powers b) New Common Law Powers – the “Ancillary Powers” Doctrine c) “Default” Common Law Powers a) Historical Common Law Powers Historical common law powers include: (i) the power of the police to search incident to an arrest; or (ii) to enter a private dwelling in “hot pursuit” of a person fleeing arrest. Cloutier v Langlois (1990) 1 S.C.R. Confirmed the power to search incident to arrest. This power, the Court said: “holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner‟s escape or provide evidence against him”. Example of Cloutier applied broadly search incident to arrest in searching a vehicle in Ontario: R v Speid (1991) Held: that a search of a vehicle that was still in the vicinity of the arrest was validly incidental to the arrest, even though it did not take place at the time of the arrest, and despite the fact that a warrant had been refused.

R v Caslake (1998) 1 S.C.R. PRINCIPLE: Court had rewritten the allowed purpose for search incident to arrest Allowed purposes for search incident to arrest: “ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee‟s trial.  Greater emphasis on gathering evidence. Note: Reasonable and probable grounds are not generally a requirement of search incident to arrest; that is precisely why the separate “incidental” power has arisen, to allow a search flowing from nothing more than the fact of an arrest (p.16). However, R v Golden decided that restrictions were needed:

R v Golden (2001) 3 S.C.R. The power to search incident to an arrest includes a strip search, however, to do more than conduct a “frisk” search, police must have reasonable and probable grounds to believe that a strip search is necessary in the particular circumstances of the arrest. Further, such searches must be conducted at a police station unless the police have reasonable and probable grounds to believe that the search cannot be postponed. (ii) to enter a private dwelling in “hot pursuit” of a person fleeing arrest: Eccles v Bourque (1975) 2 S.C.R. police have the power at common law to arrest within a private dwelling and laid down rules for entering the dwelling without permission of the owner. R v Macooh (1993) 2 S.C.R. Held: in cases of hot pursuit, the right to arrest within a dwelling without a warrant extends beyond indictable offences to cover provincial offences as well. Warrantless entry into a dwelling is prima facie unreasonable, unless in hot pursuit. Otherwise, warrantless entries to arrest would prima facie violate the Charter. b) New Common Law Powers – the “Ancillary Powers” Doctrine It is always possible for new police powers to be created. The ancillary powers doctrine allows courts to create and authorize new common law police powers. Question - In the absence of any statutory authority, can the common law power make the act lawful? TEST – Waterfield test (England) “first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associate with the duty”.  The SCC relied on this test to support police powers to protect foreign dignitaries, to enter premises without a warrant or reasonable grounds to investigate a shooting, to stop cars randomly to check for impaired drives, to set up roadblocks, to forcibly enter an apartment to investigate a disconnected 911 call, etc.  Waterfiled was not intended to allow the creation of new common law powers, rather as a way of understanding the limits on existing police powers (p.18). c) “Default” Common Law Powers Prior to the Charter, there was effectively no basis to exclude relevant evidence in Canada. As long as the evidence was reliable, the means by which it had been obtained virtually did not

matter. s.24(2) allows, in some cases, for the exclusion of evidence. However, where no Charter violation is found, the pre-Charter position on evidence still applies.  This means that the Court is effectively authorizing the police to engage in particular activities despite the absence of any statutory power. An accused has a s.8 (unreasonable search and seizure) right if she has a reasonable expectation of privacy. The Court has also defined various circumstances in which an accused does not have such an expectation. BUT, in most cases, a warrantless search is prima facie illegal and will violate s.8 if not justified is some way. Examples of no reasonable expectation of privacy:  R v Plant (1993) – electricity consumption records. Thus, obtaining electricity consumption records does not bring into play any reasonable expectation of privacy (s.8).  R v Edwards (1996) – a guest in an apartment generally has no reasonable expectation of privacy engaged by a search of that apartment.  R v Belnavis (1997) – Passengers do not normally have an expectation of privacy in a motor vehicle. o Thus, police have the power to search apartments and vehicles as long as they are seeking to incriminate a guest or passenger, rather than the tenant or driver. Consent R v Esposito (1985) “Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he, as a general rule, has no power to compel the person questioned to answer. ... If, however, the suspect chooses to answer questions put to him by the police, his answers are admissible if the prosecution established that his statements were voluntary. Police lineups – a suspect need not agree to a lineup, but evidence that the accused refused to appear in a lineup CAN be introduced at trial. Further, if the suspect does not participate, the police are permitted to obtain information in other ways, i.e. by simply showing only the accused to a witness. DNA samples – SCC held to take a DNA sample provided for the investigation of one offence, and use it for the purposes other than those consented to, violates the guarantee against unreasonable search and seizure, specifically in the investigation of another offence (R v Borden). HOWEVER, if an accused consensually provides DNA without attaching limits to their potential use, then the accused no longer has a reasonable expectation of privacy in the sample and the police are free to use it in any way they wish. Consent issues – Court has noted that mere compliance is not sufficient to show that the accused is actually consenting. Most people are not aware of the limits of police power and are frequently unaware that they could refuse to comply with a request. In those circumstances, it cannot really be said that the accused has consented. Examples of NON-consensual actions: Dedman – Pulling a car over to the side of the road when directed to. R v Mellenthin – Emptying the contents of a sports bag. R v Therens – Complying with a breathalyser demand without first calling counsel. Revoking consent – Even if given initially, consent can be revoked. R v Thomas (1993) 1 S.C.R.

PRINCIPLE: consent can be revoked even if initially given. FACTS: police entered a house where a noisy party was taking place, eventually leading to a confrontation in which they arrested the owner of the house for assaulting a peace officer in the execution of duty. HELD: the only basis on which the police were in the house was by the consent of the owner, and that consent had been withdrawn before the confrontation arose. Accordingly the police were not acting in the execution of duty and the accused was acquitted. Search and Seizure Baron v Canada (1993) 1 S.C.R. Court must balance private vs government interest. SCC noted: “the decision to grant or withhold the warrant required the balancing of two interests: that of the individual to be free of intrusions of the state and that of the state to intrude on the privacy of the individuals for the purpose of law enforcement”. Hunter v Southam (1984) 2 S.C.R. Court must balance private vs government interest AND (later) a search without a warrant is prima facie unconstitutional SCC noted: the question was “whether in a particular situation the public‟s interest in being left alone by government must give way to the government‟s interest in intruding on the individual‟s privacy in order to advance its goals, notably those of law enforcement”. That is, priority was to be given to the individual interest. Despite the decision in Hunter v Southam, the state‟s statutory ability to intrude on the individual has become much greater. CanadianOxy Chemicals Ltd. (1999) 1 S.C.R. – This case illustrates little evidence of priority being given to the individual‟s interest. What is a “Search” & “Seizure”? Search A state investigative technique is or is not a search depending on whether it infringes on a person‟s reasonable expectation of privacy.  See examples of searches on p.62.  An investigative technique will not count as a search only where it does not intrude on a reasonable expectation of privacy. Seizure Whether the accused‟s reasonable expectation of privacy was infringed (same approach applied to decide whether a search occurred).  See examples of seizures on p.63. Evidence “seized” vs Evidence “found” If the police take a sample of blood from a car seat at the scene of an accident such action will not infringe the accused‟s reasonable expectation of privacy and will not be a seizure (R v Leblanc). Nor is it a seizure where bodily samples were abandoned by an accused. R v Stillman (1997) 1 S.C.R.

HELD: “where an accused who is not in custody discards a Kleenex or cigarette butt, the police may ordinarily collect and test these items without any concern about consent. A different situation it presented when an accused in custody discards items containing bodily fluids:.  Thus, it was held that the accused had not abandoned a tissue, since he was in custody for many days and could not possibly avoid creating bodily samples at some point. R v Nguyen (2002) (Ont. C.A.) HELD: a seizure and a s.8 violation occurred when police officers offered an accused a piece of gum while transporting him from detention to court, knowing that he would need to discard the gum before he entered the courtroom. Searches with a warrant Historically, search warrants only authorized police to search a place, NOT a person. 1) Searching Places: s.487 s.487 CC – general search warrant.  s.487 allows the issuance of a warrant for the search of a “building, receptacle or place” and the seizure of evidence found there if satisfied on oath of reasonable grounds that evidence falling into one of four categories will be found.  Who can issue warrant – a warrant must be issued by a justice. A justice of the peace or a provincial court judge is impartial. o Hunter v Southam requirement that prior authorization for a search should come from someone “entirely neutral and impartial”; not necessarily a judge. o An impartial decision maker is required because the decision requires the balancing of two interests.  Responsibility of search – A justice must be sure that some particular person is charged with responsibility for the search. o “There must be some person responsible for the way the search is carried out” (R v Strachan)  Limits on search – The power to search is limited to a “building, receptacle or place”, NOT a person or to take samples. o s.487.05 CC – allows for warrants to take bodily samples in order to obtain DNA.  “Place” – includes the area surrounding a building, which means to search the exterior of buildings and the surrounding area. o A warrant to search the area around a house (the cartilage) does NOT include the ability to seize items found inside the house, while a warrant to search a house might not include the ability to search the area around the house.  Sufficiency of information – The justice must be satisfied of more than the possibility that evidence will be found, otherwise intrusions based on suspicion would be too readily permitted (Hunter). o The affidavit supporting the warrant “... must set out the facts fully and frankly for the authorizing judge ... but also clear and concise (R v Araujo).  Ex parte – Warrants are issued on an ex parte (without notice of the other party) basis: the need for effective law enforcement certainly justifies not informing a suspect in advance of a search that will take place.  Appeal – An accused may appeal the issuance of a warrant after the fact.  Information (hearsay/privilege) – Information justifying the issuing of a warrant can be hearsay and may be privileged in order to protect the informer.

Information to be legally gathered – The information justifying a warrant must have been legally gathered, if gained through a Charter violation, it will be quashed. o Kokesch – marijuana, see p.67. o Evans – marijuana smell – when the police approach the residence to knock on the door for other purposes, their behaviour constitutes a warrantless search, which is prima facie unreasonable. o Duong – narcotics – if the police approach for other legitimate reasons, but then discover evidence giving them reasonable grounds to search, there will be no Charter violation. s.487(1) allows a warrant to be issued where there are reasonable grounds to believe that the search will find: (a) anything on or in respect of which an offence has been committed (b) anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence (c) anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant (c.1) any offence related property (property that has been or will be used in committing an indictable offence). Note: these purposes for a search are broad, but they are not unlimited.  Specificity in warrant – insufficient for police to say that they believe some evidence will be found, they must inform with some reasonable degree of precision what evidence will be found. o Times Square – an application for a warrant that specified one publication by name, but otherwise only indicated that “other obscene materials” would be found was quashed with respect to all but the one, named magazine. o The degree of specificity required varies with the type of offence. o The warrant must be specific so that the person whose property is searched is sufficiently informed of the reason for that search (Alder). o Specificity is consistent with balancing individual and state interest. If not, then the warrant begins to look for like “a fishing licence” (Genest). o HOWEVER – s. 489 CC – allows the police who are searching under a warrant to seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained by, were used in, or afford evidence concerning an offence. Thus, as long as the warrant was validly issued, then the intrusion on the suspect‟s privacy has been justified.  Time of issuance – s. 488 CC – a warrant shall be executed by day unless reasonable grounds for executing it by night are provided to the issuing justice. Search of the Person: DNA warrants The greater intrusiveness of allowing a search directly affecting bodily integrity is balanced by greater protections for privacy. DNA warrant requirements:  A provincial court judge be satisfied by information on oath that a bodily substance connected with an offence has been found, that a person was a party to the offence, and that DNA analysis of the substance will provide evidence about whether the bodily substance was from that person.  DNA warrants are limited to “designated offences”, which consist of a list of offences in 487.04. This list consists predominantly of sexual offences and offences causing death or bodily harm, and hijacking, robbery, and arson.  p.71...

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Constitutionality: DNA warrant provision survived Charter scrutiny in S.A.B. DNA databank: Where an accused in convicted of a primary designated offence, the court shall order a DNA sample to be taken for the DNA databank. In the case of a secondary designated offence, the court may make such an order if satisfied it is in the best interest of the administration of justice to do so.  The taking of DNA samples does not constitute a punishment within the meaning of s.11 anymore than the taking of fingerprints or other identification measures (R v Rodgers). “impression warrants”: handprint, footprint, tooth impression, or impression of any part of the body. Other Statutory Search Warrant Provisions s.256 CC  warrants to obtain a blood sample from a person suspected of driving while impaired. s.492.2 CC  warrants to attach a tracking device to a vehicle or any other thing o Wise – Held: a tracking device, which only determines the location of the item to which it is attached, is a minimal intrusion on privacy. s.492.2 CC  Warrant to install a number recorder on a telephone Part IV CC – wiretaps  All show the need to balance the interests of the individual and the state. The tracking device and number recorder warrant each expire after sixty days. s.117.04 CC  allows the police to seek a warrant to search for and seize a weapon on the grounds that it is not in the interests of safety for the person to have it. However, the Ontario CA struck down this provision as too sweeping and failed to comply with the Hunter standards. Reviewing Warrants (p.78)  The Code contains no provisions that allow for an appeal from the decision to issue a warrant. Nonetheless, it is possible to challenge the issuance of a warrant. Certiorari is available to review the process by which the warrant was issued, though this approach has been called an “idle exercise” since it does not result in either the return of the items sized or their exclusion as evidence. o The effect of quashing a warrant is to render the search warrantless, which means that it was prima facie unreasonable and in violation of s.8. Central issue in reviewing a warrant – whether the requirements for its issuance under the Code have been met. For example, if the warrant fails to adequately describe the premises to be searched or the offence under investigation, the warrant can be quashed. Central question in reviewing a warrant – the reviewing judge does not decide whether the warrant should have been issued. Rather, the question is whether there was evidence upon which the issuing judge could have decided to issue the warrant. The actual result of the search is not relevant on review. On review, evidence that was used in support of the warrant may be excised from the application – Information that was misleading, or that the police should have known was not true may be removed from the material that potentially justified the issuance of the warrant. Equally, if evidence used to justify the warrant was obtained through a Charter breach, that evidence will also be excluded. The question then becomes whether the remaining evidence could have been sufficient to justify issuing the warrant.

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While fraud does not automatically lead to quashing a warrant, it now seems clear that reviewing courts can quash a warrant based either on (1) the inadequacy of the material remaining after some information is excised, or (2) based on behaviour of the police that intentionally misled or otherwise subverted the process of prior authorization.

Searches Without a Warrant Hunter v Southam – a warrantless search is prima facie unreasonable under s.8. As a result, every warrantless search power must be made consistent with minimum Charter standards set out in R v Collins. 1) Reasonable Expectation of Privacy Hunter – SCC made clear that s.8 was intended to be a “broad and general right to be secure from unreasonable search and seizure”. The important issue was privacy. Therefore, warrantless searches are inextricably intertwined with privacy concerns. Wong – The correct question is to ask about “the standards of privacy that persons can expect to enjoy in a free and democratic society.  Thus, for example, a person whose property is stolen still has a reasonable expectation of privacy in that property, despite the obvious fact that the thief has, at least temporarily, rendered that interest ineffective in any practical sense (R v Law). In contrast, if a person has genuinely abandoned an item then she can no longer expect to assert any privacy interest over it, and so the reasonable expectation is lost (Stillman). Balancing interests:  On the individual side, a person has a greater privacy interest when the search involves a body cavity as opposed to the trunk of one‟s car. On the state interest side, a person should reasonably expect less privacy while crossing an international border, or when placing items in a school locker where school officials are required to provide a safe environment and to maintain order and discipline.  Similarly, where an item has been stolen, the owner has not lost all privacy interests, but does have a reduced expectation of privacy because it is reasonable to expect the police might need to examine the property in the course of investigating the offence (Law).  i.e. of state interest – search incident to arrest is justified not because a person arrested has a lesser expectation of privacy, but because the immediate interest of the state in protecting the security of the arresting officers and others increases at the point of arrest (R v Caslake).  i.e. of state interest – DNA evidence is significant, since it is a powerful tool either to show guilt or innocence.  Where an accused has no reasonable expectation of privacy, any state investigative interest will outweigh the accused‟s interests, and we need go no further in deciding how the balance is to be struck – any search will be reasonable.  An illegal search of a vehicle in which there is said to be a reduced expectation of privacy is a less serious violation. Reasonable expectation is not an all-or-nothing issue:  person speaking in the presence of others has accepted the risk of being seen and heard by those present, but that does not imply any agreement to a permanent electronic record of the remarks being made (Wong). Privacy interests alleged must be that of the accused: One cannot object to an unreasonable invasion of another‟s privacy. Edwards

Facts: police searched an apartment rented by the accused‟s girlfriends. They did not have a warrant for the search, and did not believe they had reasonable grounds to obtain a warrant. Issue: did the accused have a reasonable expectation of privacy in his girlfriend‟s apartment? Held: No s.8 right, Edwards was only a “privileged guest”, lacking the ability to regulate access to it by others. Normally, a warrantless search would violate s.8. Edward’s TEST – The issue was determined by “the totality of the circumstances”:  Presence at the time of the search;  Possession or control of the property of place searched;  Ownership of the property or place;  Historical use of the property or item;  The ability to regulate access,  The existence of a subjective expectation of privacy; and the objective reasonableness of the expectation. Belnavis – Based on the Edwards test, a passenger in a vehicle had NO reasonable expectation of privacy. Thus, no s.8 violation, despite a warrantless search that the trial judge found to have taken place without reasonable and probably grounds. R v Arp – when the accused voluntarily provided a blood sample, he ceased to have any reasonable expectation of privacy in it. However, when a blood sample has been taken for a particular purpose, an accused retains privacy interests in the sample. The court in Tessling has concluded that a reasonable expectation of privacy includes at least three separate types of interests: Personal privacy – i.e. whether one can be strip-searched, generally attracts the highest level of protection. Territorial privacy – relates to searches of places and is contingent on the particular place being searched. i.e. a person typically has the greatest degree of privacy in a home, less in a motor vehicle, and less still in a prison. Informational privacy – i.e. information which tends to reveal intimate details of the lifestyle and personal choices of the individual. Also, information an accused may wish to keep confidential is protected by s.8.  i.e. Tessling Facts: court was considering whether a warrantless overflight by the police with an infrared camera over his house following a tip that he was conducting a marijuana grow operation, violated the accused‟s s.8 right. Held: the pattern and amount of heat being emitted by the accused‟s home was taken not to be a territorial privacy issue but one of information. This information was held to be meaningless, and therefore did not attract informational privacy.  i.e. Plant – an accused‟s electrical consumption records were not subject to a reasonable expectation of privacy.  R v LaChappelle – an accused‟s behaviour while in an ambulance or the undetectableby-human-senses odours coming from belongings, to be mere information. There was no reasonable expectation of privacy at all, therefore no search in the meaning of s.8, and thus no violation occurred. Post facto nature of determinations: In advance one might easily be able to say “a warrant should be obtained in these circumstances”, courts are often confronted after the fact with situations where the police did obtain a warrant and a finding that they needed one will mean there was a s.8 violation.  Lower courts are concluding that every case must be judged on a post facto basis.

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This is why the definition of a reasonable expectation of privacy is seen as a moving target.

2) Are the Collins Criteria Met? Once it has been determined that an individual has a reasonable expectation of privacy, the issue becomes whether the search itself is reasonable. Three-part test for answering whether the search is reasonable: (a) Is the search authorized by law? (b) Is the law itself reasonable? (c) Was the manner in which the search was carried out reasonable? (a) Is the search authorized by law? The police derive authority from three sources: (i) statute (ii) common law (iii) consent (i) Authorization by Statute Warrantless powers to search are found in the Code and the CDSA (Controlled Drugs and Substances Act). Since warrantless searches are prima facie unreasonable (Hunter), these statutory powers depend on the existence of some out-of-the-ordinary situation. CDSA – s.11, s.11(5), s.11(7) CC – s.487.11 – allows warrantless searches in exigent circumstances.  These provisions intend to balance the potentially competing interests of individuals and law enforcement.  i.e. warrantless searches of a vehicle may be more readily allowed, since there could be a danger of a vehicle leaving the scene, but have refused to create a blanket exemption for vehicles in general.  What matters is the impracticability of obtaining a warrant in the particular case: “exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search of seizure is delayed (Grant). CC – s.117.03, s.447(2), s.462(2) (ii) Authorization by Common Law a) General b) Search incident to Arrest  When the police have validly arrested a person they are entitled, within some limits, to search that person.  This does not require that the police have reasonable grounds for the search.  The search is justified because the police have an increased need to gain control of things or information following an arrest, which outweighs the individual‟s interest in privacy.  Although in principle warrantless searches are intended to be the exception rather than the rule, as a matter of fact searches incident to arrest are generally taken to constitute the majority of searches conducted by police.  Cloutier – the search can extend not only to the accused, but also to the surrounding area. Thus, it may include the building or vehicle in which the accused is arrested.  Homes – searches of a home incident to arrest are not allowed, other than in exceptional circumstances (Ontario CA). Exceptional circumstances are situations in which a

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particularly compelling state interest arises, for example, a risk of physical harm to those at the scene. Time – a search incident to arrest can precede the formal arrest, however, the grounds for the arrest must have already existed. Time limit – no strict time limit on how long after the arrest the search can take place. i.e. a search of a vehicle six hours later could still be incidental to the arrest depending on the factors affecting the timing. The further in time, less likely to be incident to arrest. Three questions to determine if incident to arrest: was the arrest lawful? Was the search truly incidental to that arrest? Was the search conducted in a reasonable manner? (see p.99). Bodily samples – since evidence, such as DNA, is not in danger of being destroyed or altered, bodily samples cannot be seized as an incident to arrest. Strip searches – strip searches cannot routinely follow on arrest. A routine strip search conducted in good faith, without violence, will violate s.8 if there are no compelling reasons for the search in the particular circumstances. Must have reasonable grounds to strip search instead of usual pat-down. Body cavity search – same analogy as strip searches, even though no court decision. Limitations – the search must be related to the actual arrest made. For example, where an accused is arrested for traffic violations, a search incident to the arrest does not justify looking in the trunk of the car (once the officer‟s safety has been secured, nothing more is justified). Similarly, an accused that is known to have a history of drug offences cannot be searched for drugs if the actual arrest is for a traffic violation (Golden).

c) Search During an Investigative Detention An investigative detention is defined precisely by the absence of reasonable grounds for an arrest. As a result, a search cannot automatically be conducted in such circumstances. Rather, there must be independent reasonable grounds specifically justifying the search. Mann (2004) SCC 52 Facts: Mann had been stopped in connection with a break and enter and so may have had tools that could be used as weapons, and was stopped after midnight in an area with no other people around. Held: the initial pat-down search was justified, however, there was no justification for going beyond this. On the initial pat-down the officer felt something soft in the accused‟s pocket, but that did not reasonably give rise to safety concerns, and so the officer was not justified in then reaching into the pocket to see what was there. Thus, the search violated s.8. The court found the violation serious enough to justify the exclusion of the evidence under s.24(2). Exigent Circumstances (iii) Authorization by Consent A warrantless search will be authorized if the suspect consented to the search. Issues surround whether the consent was valid and its extent. R v Wills – “acquiescence and compliance signal only a failure to object; they do not constitute consent”. Several conditions need to be satisfied – “In order for consent to operate as a waiver of s.8 rights, the Crown must establish on balance that i) there was a consent, express or implied; ii) the giver of consent ... see p.106. Counsel – When the search is nominally conducted with the suspect‟s consent, the police are required to suspend the search until the suspect has had the opportunity to consult with counsel (Debot). Limits – an accused can sometimes attach limits to the extent of the consent.

Borden PRINCIPLE: police can only use consent evidence to the extent given by the accused. Facts: police were investigating an accused in connection with two sexual assaults. A DNA sample was left at the scene of the first offence, but not the second. The accused was arrested for the second assault, and as part of their investigation the police asked him whether he would supply hair samples and a blood sample. Their primary motive was in fact to see whether the sample would connect Borden to the first offence. They did not specifically disclose that fact to him, though the consent form he signed was deliberately worded to use the plural: “investigations”. Held: Borden had not consented to the use of his bodily samples in connection with the first investigation. Since there was also no statutory or common law authority allowing police to use them, the seizure was not authorized by law and his s.8 right was violated. Arp PRINCIPLE: the police must disclose any specific uses they intend at the time they take the sample. However, if further possible uses arise later, there is no bar to using the sample. Facts: the accused had consented to provide hair samples in connection with a murder investigation. He was informed that any evidence arising from the samples would be used against him. In fact, he was discharged at the preliminary inquiry for that offence, but three years later after providing the hair samples he was investigated for a second murder. Police used a warrant to obtain the hair samples, and DNA testing linked him to the second murder. Accused’s argument: relying on Borden, he objected to use of the sample provided for one investigation in a different investigation. Held: the court dismissed the appeal. In the absence of a specific limitation to his consent, the accused had given up any expectation of privacy in the hair sample. His s.8 right was not violated. “if neither the police nor the consenting person limit the use which may be made of the evidence then, as a general rule no limitation or restriction should be placed on the use of that evidence ... the obligation imposed on the police in obtaining a valid consent extends only to the disclosure of those anticipated purposes known to the police at the time the consent was given”. b) Is the Law Itself Reasonable Little work is done at this stage in the Collins test. c) Is the Manner in Which the Search Is Carried Out Reasonable? Even if a search power exists, a court can find that the actual search in question was unreasonable because of the manner in which it was conducted. The “manner” refers specifically to the physical way in which the search is carried out. Collins Facts: the accused was searched for drugs by an officer who grabbed her by the throat at the first moment. Held: a search power did exist, but noted that “without very specific information, a seizure by the throat, as in this case, would be unreasonable”. R v Thompson Facts: a wiretap authorization allowed the police to tap not only the accused‟s telephone, but also other telephones to which he might resort, including payphones. Held: The court acknowledged that it was authorized by law. However, no restrictions had been placed on the wiretap, such as only allowing interception when there were reasonable grounds to

believe the accused was using the public telephone at the time. On those facts, “given the extent of the invasion of privacy authorized in this case, a total absence of any protection for the public created a potential for the carrying out of searches and seizures that were unreasonable. E. Variations on the Hunter v Southam Standard Slight variations of the rules exist: i) searches under an administrative scheme and ii) searches of press offices.  Other Investigative Powers The police may employ investigative techniques other than searches with or without a warrant.

General Warrants s. 487.01 CC (General Warrant Provisions)  Intended to provide for warrants to perform investigative techniques not covered by CC. o These are described as filling the gap left by s.487 and other warrant provisions. R v Wong (1990) 3 S.C.R. The case resulted in Parliament enacting s.487.01. FACTS: the police had placed a small video camera in a hotel room to record activities within. Had they wanted to audiotape the room, they would have had to comply with the Code provisions dealing with wiretaps. Police argument: however, those provisions make no mention of video cameras, so the police argued that they needed no special permission. Thus, in the absence of specific limitations, they were free to use whatever investigative means they chose. HELD: rejected police argument.  Individuals are to be free from state interference unless such interference is specifically authorized. o In the absence of authorization, video surveillance fell into the general category of warrantless searches, which are prima facie unreasonable (Hunter). o “... s.8 was designed to provide continuing protection against unreasonable search and seizure and to keep pace with emerging technological development”. o It is a decision for Parliament to create authorization for video surveillance. HOWEVER: Parliament‟s response to this decision was to enact s.487.01, which is aimed at avoiding loss of evidence in cases of video surveillance, and in essentially any other situation. s.487.01 CC – creates warrants to “use any device or investigative technique or procedure or to do any thing described in the warrant that would if not authorized, constitute an unreasonable search and seizure.  Thus, Parliament took a decision, Wong, that relied on the assumption that there need to be limits to police investigative techniques and used it to justify a provision creating an unlimited range of potential police investigative techniques.  It is hard to reconcile this approach with the conclusion in Hunter v Southam (119-120). o s.487.01 seems to be justified only for the purpose of furthering a government objective. s. 487.01 vs s.487  Both depend on reasonable grounds being established by an information provided on oath  Both do not permit interference with bodily integrity, and can be subject to conditions

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s.487.01 is more broad because it allows a search for physical evidence and allows the police to use any device, technique, procedure or “do nay thing”. R v Noseworthy – “do any thing” in s.487.01 is to be read literally and broadly and is not limited to things like the use of devices. S.487.01 allows an application based not just on reasonable grounds to believe that an offence has been committed, but on the basis that an offence “will be committed” – “anticipatory search warrant”. Although it cannot interfere with bodily integrity, such a search is not limited to a building, receptacle, or place as s.487 is. Three ways make it more restrictive than s.487 – (i) the warrant can only be issued by a judge or justice, not by a justice of the peace (ii) the judge can attach conditions “to ensure that any search of seizure authorized by the warrant is reasonable in the circumstances” (iii) there is a specific requirement that the judge be satisfied that “it is in the best interests of the administration of justice to issue the warrant”. POWERS OF DETENTION

Definition of Detention (different from arrest)  Detention can have more than one meaning, in this context, it is detention at the investigative stage that is relevant (those detentions most similar to arrests in their duration).  s.10 gives various rights on arrest or detention, including the right to counsel. o The primary purpose of granting Charter rights on detention, in particular the right to contact counsel, is to protect the detained from possible selfincrimination Detention can include not only those situations where the police have an actual legal power to compel a person to remain, but also some situations of “psychological detention”. o Examples include breathalyser demands at the side of the road, breath samples, ...  Dedman v The Queen – the fact that a person has complied with a police request to stop is NOT sufficient to make the stop voluntary and therefore NOT a detention.  R v Simmons – routine questioning of everyone entering the country by customs officials is NOT a detention. o However, though singling out a particular person for a strip search is.

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Police questioning – (unsettled as to whether this is detention) Not every conversation between a police officer and an individual should automatically be considered a detention. E.g. police interviewing the witnesses to a traffic accident should NOT be obliged to warn each of them of the right to counsel.   Detention test – factors to consider (p.130). In practice, courts applying these factors (p.130) most frequently seem to find that a person, whether stopped on the street or questioned at a police station, was not detained and so had no s.10(b) right.

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In street encounters this result is often reached because the police did not if fact have the power to detain the accused and testified that they would have allowed the person to leave had they tried to do so.

H.(C.R.) Facts: the police, with no basis for suspicion, requested the names of several youths walking on the street, ran their names through CPIC, then arrested one for violating a curfew in a probation order. Held: No detention was found by the Manitoba CA. Reasons: the police did not block the youths‟ path with their car, did not physically impeded their progress, and testified that they would have let the youth leave had they refused to give their names.  Common Law Powers of Detention Some powers of detention exist by statute, i.e. breathalyser demands and random routine traffic stops. Detentions created by common law are more controversial and the court have used the Waterfield test to create new common law police powers.

Dedmad ISSUE: the court considered the R.I.D.E. program of randomly stopping vehicles with the goal of detecting impaired drivers. No statutory authority allowed the stops, so the question became whether they were authorized at common law. HELD: Yes, common law authorized it. Waterfield TEST – involves asking two questions of the conduct of the police:  “(a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law; AND  (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty”. REASONING: the random stops satisfied both aspects of the test. Preventing crime and protecting life and property by controlling traffic, the goals of the R.I.D.E. program, were well within the scope of duties of police. Given the seriousness of the problem of impaired driving, the need to deter it, the fact that driving is a licensed activity, the well-publicized nature of the program, and that the stop would be of a short duration and minimal inconvenience, the interference was deemed not unreasonable. Accordingly, the use of power was not unjustifiable and the police were authorized to make the stops at common law. CRITIQUE: criticized for its use of Waterfield, which was actually intended as a way of understanding the limits on existing police powers, not as a method of creating new powers. Nonetheless, its use to expand police powers is well-entrenched in Canadian law. Ladouceur HELD: random stops of vehicles under a statutory scheme do not violate the Charter. A power to stop, which lies in the absolute discretion of a police officer, does violate the prohibition against arbitrary detention in s.9. However, a majority of five judges concluded that concerns about highway safety meant that the violation was justified under s.1. Wilson (1990) PRINCIPLE: A detention will not be arbitrary in the meaning of s.9 if it is based on criteria that are reasonable and can be clearly expressed. Calderon (2004)

PRINCIPLE: s.9 will be violated if the criteria used to detain is unreliable and arbitrary. FACTS: police stopped a vehicle based on what they claimed a drug-interdiction course had taught them were indicators that the occupants were drug couriers. The indicators relied on included the presence of cell phones, a pager, a road map, some fact food wrappers, two duffel bags and the notion that the car being driven seemed too expensive „for what the driver and the passenger looked to me”. HELD: police violated s.9 based on their criteria to pull them over. All of those factors were neutral and were unsurprising items to find in a car. The officers acknowledge they never found drugs on anyone based on this criteria before. Therefore, the stop based on these neutral and unreliable factors was an arbitrary detention.  Investigative Detention First suggestion of a power of investigative detention was in Simpson – there was no general power to detain, but a person could be briefly detained for questioning “if the detaining officer has some „articulable cause‟ for the detention”. o Creating a power to detain for investigative purposes short of arrest dramatically weakens the protection in s.9.

Mann PRINCIPLE: “investigative detention” power – police officers who do not have reasonable grounds to arrest a person have the power to stop that person for investigative purposes nonetheless, if they have “reasonable grounds to detain”. The Mann investigative detention power is quite limited. The court specifically states that it is not creating a general power of detention for investigative purposes. The court describes the power: “The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer‟s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. ... The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer‟s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test”. It is clear from this description that police cannot detain a person because they are suspicious in some general way. Rather, they must be suspicious of a particular crime already known to them. The court specifically rejects as not relevant any consideration at this stage of whether an accused is in a “high crime area”; suspicions must be specific to the accused. R v Suberu (2007) (on appeal to SCC) PRINCIPLE: “without delay” does not mean “immediately” in s.10(b). FACTS: an accused had been subject to investigative detention but not told of the right to counsel, and who gave incriminating answers to questions before he was so informed. In addition, evidence was found by the officer during his detention before the accused was given his s.10(b) rihts. CA HELD: no s.10(b) violation on the basis that the words “without delay” in that section were not equivalent to “immediately”. That meant that the police were not required to inform every suspect immediately of the right. Rather, the police could wait a short period of time in order to determine whether anything but a very brief detention was necessary. CRITIQUE: this approach seems inconsistent with the general approach to Charter rights. In essence, the reasoning amounts to saying that one cannot have both brief investigative detentions and s.10(b) rights, and therefore there will be no s.10(b) rights in this context.

Police Roadblocks Clayton FACTS: the police received a report of men with guns in a parking lot (and describing particular vehicles), and in response the police set up a roadblock. They stopped all vehicles leaving the parking lot, whether they matched the vehicle description or not, and Clayton and Farmer were both found to have handguns. ISSUE: was there a violation of the accused‟s s.9 right not to be arbitrarily detained? HELD: there would be no violation if the police had acted lawfully, and the real issue became whether the police had a power to set up the roadblock. Since they had no statutory power, the only possibility was being authorized by common law. Thus, the Waterfield test needed to be passed. It passed for the majority and expanded the Waterfield approach. EFFECT: if Clayton is followed, it will dramatically expand police powers. Mann “the police may act only to the extent that they are empowered to do so by law”.  That amounts to saying that the norm is for the police to be unable to interfere with individual liberty, no matter how reasonable it might be to do so, unless they have been given a specific power. Clayton The police have the power to do anything that is reasonable. Thus, the norm is that police are empowered to act, with an exception for cases where that can be shown to be unreasonable.  Dramatically expands police powers.

THE ABILITY TO BREAK THE LAW: SECTION 25.1 ss.25.1-15.4:  permit designated police officers to break the law. All these provisions do is protect particular officers from criminal liability in particular situations. They create a new police power essentially. (see p.143)  Basically, designated officer are permitted to break the law if, in their judgment, that is a reasonable choice. Guidelines: o The designation is to be made on the advice of a senior official officer. o The power is intended for officers performing undercover work. o Officer can be designated on an emergency basis in exigent circumstances, but such a designation expires after a maximum of 48 hours. o Limits on the designation (see p.144) GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED  Securing Jurisdiction over the Accused and Interim Release The police have specified powers to arrest individuals. So too do non-police officers. o The common theme in the relevant legal provisions is that arrest – taking physical control over the subject – is to be used as a last resort when other measures available for ensuring the good conduct and attendance before the criminal justice process are not practical or desirable. These less intrusive modes of securing attendance include the appearance notice, the promise to appear, and the summons.

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If an individual is arrested, he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending the trial.

Jurisdiction over the Accused  No court can adjudicate in the hearing of a particular person UNLESS it also has jurisdiction over the accused. o The court will have jurisdiction over the person of the accused if she is within the territorial limits of the court‟s jurisdiction OR the accused has otherwise been lawfully ordered to appear before that court (s.470)  Even if a court has jurisdiction over an accused, it may be lost (p.51). o There are some persons over whom the courts have no jurisdiction: persons under 12, who are presumed by s.13 CC to be incapable of crime and persons immune from prosecution (diplomats).

Jurisdiction in Time Indictable offences  Not generally barred by a period of limitation or prescription. This means that offences committed many years previously might still be prosecuted, subject to considerations about the quality of evidence. Summary conviction  Are barred six months following the completion of the offence. No retrospective application  Criminal offences do not have retrospective application. o In other words, a court has no jurisdiction to try a charge of conduct that was not an offence when it occurred.  Confirmed in CC and s.11(g) Charter. Exceptions – R v Finta – exception to this principle for war crimes allegedly committed in Europe during WWII. Such crimes were recognized as crimes in international law at the time of their commission.  s.11(b) Charter – right to trial within a reasonable time, not an aspect of jurisdiction. o Unreasonable delay has two possible causes: (1) it may be attributed to one of the parties or the court. (2) institutional delay attributable to the absence of adequate resources.

ARREST  Arrest is only one of the methods that can compel the appearance of an accused before a court. Part XVI contains provisions that allow an accused to be brought to court by two other methods, a summons or an appearance notice.  Arrest: consists of words of arrest accompanied either by touching a person with a view to detention, or by the person submitting to the arrest. o The word “arrest” need not actually be used, provided the accused can be reasonably supposed to have understood that she was under arrest.

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Arrest is a continuing act, starting with the moment of custody and extending until the person is either released from custody or brought before a justice and detained.

ARREST WITH A WARRANT  A warrant can only be issued after an information that sets out the reasonable grounds to believe that a person has committed an offence is laid before a justice. o A warrant must name or describe the accused, set out briefly the offence that the accused is charged with, and order that the accused be brought before a justice to be dealt with according to law.  Arrest warrants do NOT expire, but simply remain in force until executed.

s.29 CC –  requires an officer executing a warrant to have it where it is feasible and provide it where requested. o requires anyone who arrests, with or without a warrant, to give notice to the arrested person of “(a) the process or warrant under which he makes the arrest; or (b) the reason for the arrest” R v Gamracy FACTS: an officer made an arrest, but only told the accused that there was an outstanding warrant. The officer did not have the warrant itself nor did he know what offence the warrant dealt with. HELD: this was sufficient compliance with s.29. The arrest was NOT an arrest with a warrant, but a warrantless arrest under s.495(1)(c). In that even, “there is a warrant” was held to be sufficient notice of the reason for the arrest. NOTE: Gamracy is a pre-Charter case, s.10(a) creates the constitutional right to be informed promptly on arrest of the reasons therefore. It therefore remains unclear whether this case still is law. ARREST WITHOUT A WARRANT  Warrantless arrests are governed by s.494 (“citizen‟s arrest”) and 495. s.494(1)  Creates arrest powers available to anyone s.494(2)  Creates a special arrest power relating to property owners. s.495(1)  Creates arrest powers available only to peace officers.  The different powers of arrest are defined by two variables: o (i) indictable offences vs criminal offence; o (ii) “finds committing” powers vs “reasonable belief” powers

Finds committing powers  requires that the person arresting have actually witnessed the commission of the offence. o A subsequent acquittal of the accused on the charge for which she was arrested does not retroactively invalidate the arrest power (R v Biron).

Reasonable belief powers  Reasonable grounds to believe that an accused has committed an offence requires that the person performing the arrest subjectively believes that the person has committed the offence, and that the belief is objectively justifiable. o In other words, a reasonable person standing in the shoes of the arresting officer would have also believed that grounds for arrest existed. More than mere suspicion is necessary, but the police are not required to have a prima facie case before arresting.  Both the subjective and objective tests must be met. o The objective standard for a warrantless arrest, therefore, is the same as that required for obtaining an arrest warrant. Section 494 Arrest Powers  s.494(1) – citizen and s.294(2) – property owner: anyone other than a peace officer who makes an arrest is required to deliver the arrested person “forthwith”, as soon as reasonably possible. Section 495 Arrest Powers s.495(1)(a) – is taken to require that the officer has personally witnessed the offence, believes on reasonable grounds that the offence has been committed, or believes on reasonably grounds that the offence is about to be committed. s.495(1)(b) – authorizes an arrest at any time where the officer witnesses the actual commission of the offence. s.495(1)(c) – the power to arrest without warrant on the basis that a warrant exists. s.495(2) – limitation 3) Other Criminal Code Arrest Powers (p.180) s.199(2), s. 31 SUPPORTING POWERS s.25(1) CC  anyone making a lawful arrest is justified in using as much force as necessary to do so, provided she is acting on reasonable grounds. s.26 CC  anyone is criminally responsible for using excessive force. s.28(1) CC  anyone arresting the wrong person under a warrant is not criminally responsible, provided he believed in good faith and on reasonable grounds that the correct person was being arrested. s.28(2) CC – same applies to anyone assisting. Dwelling house:  Peace officers are now required to obtain specific authorization on an arrest warrant if they wish to enter a dwelling house in order to effect the arrest (p.183). o A peace officer can enter without a warrant in exigent circumstances. o Procedure for entering house (p.184). o Although the Code only permits warrantless entry in exigent circumstances, there is also a common law exception in the case of hot pursuit. “Hot pursuit” refers to situations where there is “continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction”.

E.RIGHTS ARISING ON ARREST There exist (1) statutory provisions and (2) Charter rights arising on arrest. Statutory Protections arising on arrest Criminal Code provisions Charter Rights Arising on Arrest s.10 – creates specific guarantees arising on arrest (or detention).  The impact of s.10 has largely been to add additional requirements to the information to be given to an accused at the time of an arrest. s.10(a) – an accused is to be informed promptly of the reasons for the arrest or detention.  Evans: this right “is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reason for it”.  This section has provided less protection than it might, however. The test focuses on what the accused can reasonably supposed to have understood, rather than on any precise words used. For example, Latimer – the court relied on Evans to find that the accused knew he was in an extremely grave situation with regard to his daughter‟s death, and therefore there was no s.10(a) violation.  Purpose of s.10(a) – allowing an accused to decide whether to submit to an arrest s.10(b) – guarantees the right “to retain and instruct counsel without delay and to be informed of that right”.  Purpose of s.10(b) – to provide an accused with an opportunity to be informed of her rights and obligations and to obtain advice on exercising those rights and fulfilling those obligations. In particular, upon the arrest the accused has been deprived of liberty and may need legal assistance in regaining it. Equally, nor more importantly, the accused is at risk of self-incrimination and is in need of legal advice, particularly advice about the right to silence and how to exercise it.  In most cases, a failure to comply with the right to counsel will not be saved by s.1  However, it is possible for a statute to prescribe a limit on s.10(b). Accordingly, it has been determined that statutory limits that prevent an accused from having access to counsel prior to blowing into a roadside screening device or performing roadside sobriety tests can be justified (R v Thomsen). Informational Duties s.10(b) specifically sets out the requirement that an accused must be informed of the right to retain and instruct counsel without delay. This is normally done through a “standard caution” that is distributed to police officers, which they read to the accused. Where special circumstances do exist the police must take additional steps to be sure the accused comprehends the right, i.e. language difficulties, a known or obvious mental disability, or any genuine inability to comprehend the right.  The police must give the accused information about access to counsel free-of-charge for persons who meet the financial criteria set by provincial Legal Aid  Accused should be told how to gain access to the service, i.e. by giving the telephone number  However, s.10(b) does not impose an obligation on provinces to have a Legal Aid scheme. Practically speaking the court left provinces with little choice.

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The police also must not act to undermine the right, by making disparaging comments about counsel‟s loyalty, commitment, availability, or the amount of legal fees. o Offering a one-time only plea bargain with a time limit that expires before an accused will be able to reach counsel is a s.10(b) violation. Counsel should be present unless the right has been waived.

Implementational Duties  In addition to informing an accused of the right to counsel, two further correlative duties can arise on arrest: o (1) where an arrested person has indicated a wish to speak to counsel, the police must provide that person with a reasonable opportunity to do so.  Manninen – the accused was arrested at a private business and the court found there was no reason that the accused could not have used the telephone there. o (2) When an arrested person has requested counsel the police must hold off from questioning or otherwise seeking to elicit evidence from that person until she has had a reasonable opportunity to contact counsel.  Manninen – there was a s.10(b) violation when the police immediately questioned the accused and paid no attention to his expressed wish to speak to counsel R v Ross – s.10(b) violation where the accused was required to participate in a lineup after having been unable to reach his counsel at 2:00 am. Court held that it was unsurprising that counsel could not be reached at that hour, and there was no urgency to conduct the lineup. This also applies to breathalyser test (Prosper) Implementational Duties factors:  Implementational duties ONLY arise when an accused has actually indicated a wish to speak to counsel.  Implementational duties can be waived, though informational ones virtually cannot be. o For example, an arrested person could explicitly decline to contact counsel. But, cooperating with the investigation by answering questions or participating in a line up will not constitute a waiver. Implementation duties can be lost. o For example, in Tremblay, the accused was waiting for counsel in order to delay a breathalyzer test. Obiter, the court created a “reasonable diligence rule”. o Smith – failed the “reasonable diligence rule” when he decided not to call his lawyer‟s office because only his office number was listed and he did not expect that his lawyer would be in the office at that time (probably delaying).

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Waiver: Rule – an implicit waiver of Charter rights must be clear and explicit. Silence – silence would NOT be a clear and explicit waiver. But, silence would be a failure to request counsel, or a failure of reasonable diligence, which leads to the conclusion that the arrested person was not entitled to the implementational duties. Questions:

A person who has been arrested and has already spoken with counsel may then be questioned by the police. A person is not required to answer questions, but that does not mean the police are not entitled to ask them. COMPELLING APPEARANCE The result is an attempt to satisfy the needs of the state to ensure that accused persons are present for their trials while, at the same time, using those powers with as much restraint as possible. The code provides powers to police to require an accused to attend court through some type of written demand, or to arrest the person: preference is given to not arresting. Thus, if possible, appearance should be sought without arrest and detention. The Code provides that, where a person is released, preference should be given to the means of compelling appearance that is least onerous, especially as regards the imposition of a money debt as a form of security. 1) Compelling Appearance Pre-charge (i.e. situations where the police have been present at the crime itself, such as a fight outside a bar, and have acted immediately to intervene and arrest or deal with those involved) If a peace officer decides that a person should be prosecute, there are various ways to compel that person to attend court before an information is laid and he is actually charged. The most obvious is to make an arrest without a warrant. Other procedural mechanisms include in the Code an appearance of notice, a promise to appear or a recognizance. s.495(2) – makes a preference for less intrusive means. s.496 – if the officer decides, under s.495(2), not to arrest, s.496 authorizes the officer to issue an appearance notice. appearance notice – Form -9 (failure to appear is an offence under s.145, and an arrest warrant can be issued under s.508)  s.497(1) – an officer can decide after arresting a person to release that person with the intention to compel her appearance by means of a summons or an appearance notice. Promise to appear – Form 10 (failure to appear is an offence) Recognizance – Form 11 (failure to comply is an offence) 2) Compelling Appearance Post-charge (i.e. the police (i) investigate a crime, (ii) decide who they believe is guilty, and (iii) lay a charge before a justice in order to compel that person to appear.) In these circumstances the justice will issue process in the form of either a summons or a warrant. Summons – a document issued by the court commanding the accused name therin to attend court. It recited the offence(s) charged with. Form 6. Arrest warrant – includes same information as a summons, but adds a command to a peace officers within the local jurisdiction to arrest the person charged and to bring her to court. s.507(4) – directs a justice to issue a summons unless there are reasonable grounds to believe that a warrant is necessary in the public interest. If a person is arrested and the police decide not to release under any of the various provisions, that person must be brought before a justice without unreasonable delay, and in any case within twenty-four hours. JUDICIAL INTERIM RELEASE (BAIL) (p.161-167)  The provisions are structured on the general assumption that an accused should be released pending trial and with as few restrictions as possible. o An accused is presumed to be entitled to release and the Crown must justify each increasing step of intrusiveness. There are exceptions for s.469. Once the hearing is held, s.515 directs that the justice shall order that the accused is released on an

undertaking without conditions, unless the Crown shows cause as to why something more restrictive is justified. s.515(2)(a-e) – sets out the range or restrictions on liberty, short of detention, that can be imposed on an accused as conditions of release (i.e. bail with money mostly). s.515(1)  Specifies that there are only three grounds on which continued detention of an accused may be ordered: o (1) the detention is necessary to ensure the accused‟s attendance in court; o (2) the detention is necessary for the protection or safety of the public; o (3) on 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 ...  “any other just cause” were struck down as too vague in R v Hall, the rest was upheld. R v Hall (2002) FACTS: Appeal by Hall from the dismissal of his appeal from the dismissal of his application for habeas corpus. A woman's body was found with 37 knife wounds. The medical evidence indicated that the assailant had tried to cut off her head. The murder caused significant public concern and fear. Hall was charged with first degree murder due to compelling evidence, including footprints from shoes he allegedly wore containing the victim's blood. He applied for bail. The judge held that it was not necessary to deny bail on the grounds that Hall would not attend in court, or for the protection or safety of the public pursuant to section 515(10)(a) and (b) of the Criminal Code. However, the judge held that Hall's pre-trial detention was necessary to maintain confidence in the administration of justice pursuant to section 515(10)(c) due to the fear that was prevalent in the community, the nature of the offence and the strength of the Crown's case against him. Hall argued that section 515(10)(c) violated his rights not to be denied reasonable bail without just cause and to be presumed innocent under the Canadian Charter of Rights and Freedoms. HELD: Appeal dismissed. The phrase under section 515(10)(c) on any other just cause being shown, and without limiting the generality of the foregoing violated the Charter as it permitted detention by virtue of a vague legal provision. However, the phrase maintain confidence in the administration of justice was neither unconstitutionally vague nor overbroad. It balanced the rights of the accused and the need to maintain justice in the community, and could stand alone as a functioning whole. The appropriate remedy was to sever the void phrase from the section. There was no error in the decision by the trial judge that it was necessary to deny Hall's application for bail in order to maintain public confidence in the justice system. Getting Ready for Trial  Disclosure A key right of the accused, and an important obligation on the Crown is to make full disclosure of the fruits of the investigation (all information gathered by or made known to the police during the investigation) to the accused. o All of the fruits of the investigation are to be disclosed save what is clearly irrelevant or privileged. The law of privilege is covered by the law of evidence but the most relevant privileges should be flagged here. Disclosure is to be made before the accused is called upon to elect his mode of trial for s.536 indictable offences.

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The accused may also seek to secure relevant “third party records” – relevant documents that are not the fruits of the investigation that are under the control of persons other than prosecution and police. Where third party records are sought, complex applications must be brought, which differ depending on whether the charge is a sexual offence prosecution or some other offence. If issues arise as to whether proper disclosure has been made, the assigned trial judge should ordinarily resolve them. As a practical matter, this requires early assignment of a trial judge who can address these matters.

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R v Stinchcombe (1991) 3 S.C.R. 326 An accused person had a right, under s.7 Charter, to disclosure of the Crown‟s case. FACTS: Appeal from a decision dismissing the appellant's application for disclosure of statements made by a witness to an RCMP officer after the preliminary inquiry. The Crown did not call the witness at trial. The trial judge held that the Crown was not obligated to disclose the statements made at the interview. HELD: Appeal allowed. A new trial was ordered. The Crown has a duty to disclose all relevant information to the defence. Although the Crown has a discretion regarding the withholding of information and the timing of disclosure, this discretion is reviewable by the trial judge. Information should not be withheld from the defence, if this would impair the right of the accused to make full answer and defence. The Crown was NOT justified in refusing to disclose the statements on the ground that the witness was not a credible witness. The issue of credibility was to be determined by the trial judge after examining the statements. “In this case, we are told that the witness gave evidence at the preliminary hearing favourable to the defence. The subsequent statements were not produced and therefore we have no indication from the trial judge as to whether they were favourable or unfavourable. Examination of the statements, which were tendered as fresh evidence in this Court, should be carried out at trial so that counsel for the defence, in the context of the issues in the case and the other evidence, can explain what use might be made of them by the defence. In the circumstances, we must assume that non-production of the statements was an important factor in the decision not to call the witness. The absence of this evidence might very well have affected the outcome”. IMPORTANCE: Thus, the Canadian Constitution was interpreted to allow criminal defendants to make a full and complete answer in their defence. Previously, they had to rely on the prosecution to give them the details of the government‟s case; prosecutors in the Marshall case showed that they could not always be relied upon to do so. This case also reaffirmed the principle that the government has to prove guilt. Now it must provide information that might help defendants prove their innocence. DISCLOSURE (p.197-222). R v Taillerfer (2003) SCC 70 “The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of the Crown‟s discretion to refuse to disclose information that is privileged or plainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea. Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produces notwithstanding that they are not proposed as Crown witnesses. This Court has also defined concept of “relevance” broadly ...”

CONTENT OF THE RIGHT TO DISCLOSURE 1) Creation of the Right: R v Stinchcombe In Stinchcombe, the Court found a duty of the part of the Crown to disclose its evidence to the accused. It pointed out:  that the Crown‟s role is NOT to obtain a conviction BUT to lay all relevant evidence before the court. Any information in the hands of the Crown is; therefore, not a tool to convict the accused, but the property of the public to be used to ensure that justice is done.  the Law Reform Commission found that increased disclosure actually leads to an increase in cases settled, guilty pleas entered, and charges withdrawn, thereby decreasing Crown and court workload.  Some risk to informers may come from disclosure, but determined that this only affects the manner and timing of disclosure, not the general principle.  Disclosure may allow an accused to tailor a defence to anticipate the prosecution‟s case, but held, that fairness to the accused requires that the accused see the evidence in advance. The Court concludes that “there is a general duty on the part of the Crown to disclose all material it proposes to sue at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it”. This is guaranteed by the Charter. 2) Structure of the Right  Whether evidence appears to be inculpatory or exculpatory is irrelevant of the obligation to disclose. The Crown is required to disclose on the request of the accused, made any time after a charge is laid. Disclosure ought to be made prior to election or plea, so that the accused can take the disclosed material into account in making a decision on those issues.  The obligation to disclose is a continuing one, and the Crown must disclose any additional information it receives. Equally, the defence has a continuing obligation to seek disclosure, and is not entitled to assume that it has received all relevant information.  The right to disclose is not absolute: o The Crown “need not produce what is clearly irrelevant”. o The “rules of privilege” interact with the Crown‟s obligation to disclose. It may be necessary to protect the identity of informers. This gives the Crown discretion with regard to timing and manner. o The need to complete an investigation may justify the Crown in delaying some disclosure.  R v Egger (1993) – if it is of some use, it is relevant and should be disclosed. 3) Remedy for Breach of What Right: Disclosure or Full Answer and Defence? The Crown‟s discretion with regard to disclosure can be reviewed by the trial judge if defence counsel disagrees with the way in which it has been exercised. Important cases for remedy are Carosella, La and Dixon. The Original Position: Remedy for Non-disclosure Carosella (1997) 1 S.C.R. 80

Disclosure is an independent right guaranteed by s.7, not merely an aspect of the right to full answer and defence. Prejudice is not relevant to whether that right has been breached – prejudice was only relevant at the remedy stage. FACTS: an accused was charged with gross indecency. Before contacting the police, the complainant had visited a rape crisis centre and been interviewed by a social worker, who took notes of the conversation. The accused later applied for production (third party) of the records, but by that time they had been destroyed (Centre‟s policy to do so). ISSUE: The Court therefore had to determine whether the non-production of the notes violated the accused‟s Charter rights, and if it did whether a stay was the appropriate remedy. The issue was whether disclosure is, in itself, a right implicit in s.7, or whether s.7 protects the accused‟s right to full answer and defence, one aspect of which is the need for disclosure. HELD: the breach of the obligation to disclose “is a breach of the accused‟s constitutional rights without the requirement of an additional showing of prejudice ... the breach of this principle of fundamental justice is in itself prejudicial. “if the material which was destroyed meets the threshold test for disclosure or production, the appellant‟s Charter rights were breached without the requirement of showing additional prejudice”. However, prejudice would remain relevant at the stage of determining remedy of this analysis. Remedies range from adjournments to a stay of proceedings. The court reaffirmed that a stay should only be granted in the clearest of cases, and concluded it was the appropriate remedy here. Stays can be justified on either of two bases: (i) where prejudice to the accused cannot be remedied or (ii) where there would be irreparable prejudice to the integrity of the justice system if the prosecution were continued. Both tests were met. (Alternatively, a stay could be justified because of the deliberate decision of an agency that receives government funds to destroy documents, conduct designed to defeat the processes of the court). b) The Later Position: Remedy for Failure of Full Answer and Defence La, reaffirms the principle in Carosella, however, in its actual result, it diminishes the significance of that principle. La (1997) 1 S.C.R. 80 FACTS: a police officer tape recorded an interview with the complainant in a sexual assault case at a time prior to any charges being laid. The complainant was a thirteen year-old runaway, and the interview was conducted in connection with a secure treatment application. By the time the accused came to trial, the police officer had lost the forty-five minute tape, thought he did testify that the complainant told a few lies on it. Trial judge held: the non-disclosure of the tape impaired the accused‟s ability to cross-examine the complainant and entered a stay of proceedings. The accused did not receive disclosure, which alone constitutes a violation of s.7 without a showing of prejudice. SCC HELD: the accused‟s s.7 right was not violated at all. Despite best efforts on the part of the police, the Court found that evidence will sometimes be lost. Where the Crown can show that the evidence was not lost due to unacceptable negligence, the duty to disclose is NOT breached. It will still be possible for the accused‟s right to full answer and defence to be breached. However, this will only be the case if the accused can establish actual prejudice. In this particular case, the tape was relevant enough to meet the standard for disclosure in Stinchcombe, but fell short of establishing a serious impairment of the right to make full answer and defence. EFFECT: in practical terms, this removes much of the effect of the finding in Carosella that disclosure is a right in itself. Now in many cases, given La, the accused will have to show a breach of the right to full answer and defence, and so will need to show some prejudice from the non-disclosure.

Dixon illustrates this pulling away from the standard in Carosella: Dixon (1998) 1 S.C.R. 244 FACTS: ... During the trial several of the defence counsel became aware of the undisclosed statements, but decided, based on summaries, not to request copies of the statements themselves. Only after the trial was over did the defence counsel review the statements. Two statements contained information, while not of enormous significance, met the Stinchcombe threshold and should have been disclosed. HELD: “the right to disclosure is but one component of the right to make full answer and defence. Although the right to disclosure may be violated, the right to make full answer and defence may not be impaired as a result of that violation”.  This undid the main effects of having made disclosure an independent right in Carosella. Also, defence counsel knew or should have known, of the possible undisclosed evidence – “defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence. Just as the Crown‟s disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel‟s obligation to be dully diligent in pursuing disclosure – duty of due diligence. Taillefer “Infringement of that right [disclosure] is not always an infringement of the right to make full answer and defence. There are situations in which the information not disclosed will meet the minimum test set out in Stinchcombe while having only marginal value to the issues at trial. To determine whether there is an infringement of the right to make full answer and defence, the accused will have to show that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial process.  In Dixon and Taillerfer, it was only after finding a breach of the right to full answer and defence that the Court considered remedy. Dixon’s THREE-PART TEST: (1) Was the accused‟s right to disclosure breached?  This incorporates the Stinchcombe rules. (2) If so, did that violate the accused‟s right to make full answer and defence?  The accused must show that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process (see 208 details). (3) If so, what remedy should be granted? Given this three-part test approach, it remains true, that disclosure is an independent right and that it is not necessary to show prejudice to establish a breach of that right. Dixon‟s test is state as applying to situations where the non-disclosure is raised after trial. Where the accused requests a remedy prior to that, an order for disclosure or an adjournment might be a sufficient remedy. C. CONFLICTING PROTECTIONS: DISCLOSURE AND PRIVILEGED INFORMATION Because the obligation to disclose is not absolute, “the Crown may justify non-disclosure in circumstances where „the public interest in non-disclosure outweighs the accused‟s interest in disclosure”. 1) Informer Privilege Informer privilege is a longstanding common law rule, reiterated in Bisaillon v Keable (1983). The identity of police informers is entitled to the highest level of protection, not only to protect the individuals concerned, but also to preserve that investigative method. If those with

confidential information about crimes were not confident that their identities would be protected, they would be far less likely to report that information to the police. Judges should not attempt to edit a tip sheet and order the edited tip sheet disclosed.  Bisaillon – “information regarding police informer‟s identity will be a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice”.  “innocence at skate exception” – i.e. the informer is a material witness, etc, will information be revealed.  Stinchombe – disclosure is subject to privilege. 2) Solicitor-Client Privilege McClure – the obligation to disclose arises only when the accused‟s innocence is at stake. McClure TEST – two-stage innocence at stake test (see p.212). A McClure application is intended to be a last resort. The accused must be unable to prove innocence in any other way. All sources of evidence against the accused must be decided first. The person whose privilege is being infringed will enjoy use and derivative use immunity concerning the information released. 3) Counselling Records An accused‟s right to see psychiatric, medical, or other counselling records regarding a complainant, particularly complainants in a sexual assault trial. Claims by an accused for access to such records are governed by ss.278.1 to 278.91 CC. Most commonly, what will actually be at issue is “production” (the handing over of documents in a third party‟s hands), not “disclosure” (the handing over of documents in the hands of the Crown). The accuses faces a higher burden than normal in obtaining access because: the accused‟s greater interest of privacy, the fact that third parties have no obligation to assist the defence, and that records are not part of the case the accused has to meet. O’Connor – two stage process for deciding whether third-party records should be produced: First stage: accused must persuade the judge to examine the record personally. Second stage: having looked at the records, the judge is required to decide whether to release it or some portions of it to the accused (see p.216-17 for guiding factors to consider here). Statutory response to O’Connor – ss.278.1 to 278.91 CC. The statutory scheme is broader than O‟Connor. The statutory scheme was eventually upheld by the SCC in Mills. Summary – Three sets of rules: Stinchcombe – material in the hands of the Crown O’Connor – rules for production of records in the hands of third parties, but those have been replaced by ss.278.1 to 278.91 in most but not all instances.  Preliminary Inquiries As indicated, at the preliminary inquiry, the judge must determine whether the Crown has presented a prima facie case. If so, the accused is committed to stand trial and the prosecutor will be called upon to draft an indictment, which will replace the original information as the new charging document. o If the Crown does not establish a prima facie case, the accused is discharged and the prosecution on the charge that has been laid ends – in effect, the accused who was “charged” is “discharged”.  A discharge at a preliminary inquiry is not, however, an acquittal. The prosecution can relay the charge and try again, but will not do so unless

important new evidence is uncovered. The AG also has the authority to lay a direct indictment (s.577 CC), which gives jurisdiction to a court to try the accused. The direct indictment can be used to re-institute a prosecution after a preliminary inquiry discharge, or to bypass a preliminary inquiry altogether by indicting the accused directly to trial. There is no entitlement to a preliminary inquiry in summary-conviction matters. A. INTRODUCTION  In principle, one of their central functions is to serve as a screening mechanism for unmeritorious prosecutions. o Most preliminary inquiries result in an accused being committed for trial. Note:  Charter remedies are not available at a preliminary inquiry. Since 2004 amendments to the Code have altered the nature of the preliminary inquiry and it can no longer be said that its primary function is to test the sufficiency of the prosecution case as a whole. o The central feature of those amendments is that a preliminary inquiry will be held only upon the request of a party (almost always the accused). In the absence of a request the accused will simply be committed to stand trial on a date fixed by the court. o As now conceived, the preliminary inquiry is a limited examination of the sufficiency of the prosecution case with regard to specific issues and the evidence of specific witnesses. It has been reformed by Parliament as a limited and focused examination to obtain discovery of evidence under oath.

JURISDICTION  The authority of a justice to conduct a preliminary inquiry is strictly statutory under Part XVIII of the Code. o A judge has no power to grant any remedy other than those contemplated by the Code. 1) Commencement 2) Scope The scope of the inquiry is defined by s.535 CC, which directs the justice or judge to inquire into the charge of any indictable offence or any other indictable offence in respect of the same transaction disclosed by the evidence. The code was amended in 1985 to allow the judge to commit the accused for trial on any indictable offence disclosed by the evidence at the preliminary inquiry (i.e. judge can change second degree to first degree murder). Thus, this extension of jurisdiction implies that the judge must be alert throughout the preliminary inquiry to the possibility that offences other than those stated in the information may be disclosed by the evidence. s.601 gives the judge broad powers to amend the charges in the information at the preliminary inquiry. The judge may amend the information to ensure that the charges conform with the evidence. 3) Multiple Accused and Multiple Counts In view of the limited statutory jurisdiction of the judge at the preliminary inquiry, he has no power to order the severance of accused or accounts. If multiple accused are charged in a single information, each is entitled to make a request for a preliminary inquiry, as is the prosecution. 4) Presence of the Accused

The accused is entitled to be present at the preliminary inquiry.  s.537(1)(j.1) – allows the judge a discretion to excuse the accused from all or part of the inquiry.  s.537(1)(j) and(k) – allow the accused to appear by an electronic connection.  s.544 – if the accused absconds during the preliminary inquiry, he is deemed to have waived the right to be present. o Counsel for the accused is entitled to act for the absconding accused. o The justice is entitled to draw an adverse inference.

5) Constitutional Issues SCC decided that a court conducting a preliminary inquiry is not a “court of competent jurisdiction” under the Charter. Thus, the only forum for a constitutional remedy is the court of trial (Mills and Hynes).  This raises the odd spectre that the allocation of jurisdiction under an ordinary statute can relieve the judge of the obligation to observe the supreme law of the country.  However, it is consistent with the idea that the function is modest and with the notion of economy and efficiency. EVIDENCE Admissibility  Evidence at the preliminary inquiry is taken under oath and recorded. o As at trial, prosecution witnesses are heard first and may be cross-examined by the accused or counsel.  Evidence tendered must comply with principles and rules of admissibility that apply at trial. s.540(7) – A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.  This provision is peculiar, especially in view of the reform in favour of a limited preliminary inquiry.  This provision provides a party with an opportunity to lower the bar of admissibility.  Critique – this section is too broad. Cross-examination of Prosecution Witnesses The defence (accused personally or through counsel) is entitled to cross-examine prosecution witnesses at the preliminary inquiry. The justice has the power to stop any part of examination or cross-examination that is “in the opinion of the justice, abusive, too repetitive or otherwise inappropriate” – s.537(1.1). Address to the Accused 4) Defence Evidence The defence is also entitled to adduce evidence, including testimony by the accused, but it is not obliged to call witnesses. s.715 – if evidence was taken on oath at the preliminary inquiry in the presence of the accused, and the witness either refuses to testify or is dead, insane, too ill to travel, then that evidence can be introduced at trial.

5) Publication Bans  Proceedings are open unless there is some specific basis for exception. It may be the subject of public comment, unless the judge orders otherwise.  s.537(1)h and 486 – gives the judge discretion to exclude the public from court.  Witnesses are excluded until they have given their evidence.  Typically, the presentation of evidence at the preliminary inquiry is the subject of a ban upon publication in a newspaper or broadcast. The legislative rationale for these orders is that the accused, who is presumed innocent and is not in jeopardy or conviction at the preliminary inquiry, should be shielded from adverse publicity before trial.  A publication ban is imposed b order of the justice before any evidence is taken: it is discretionary if sought by the prosecution, and mandatory if sought by the accused.  If the accused is not represented by counsel, the Code obliges the judge to inform him of the right to seek a publication ban. COMMITTAL Section 548 CC directs the justice or judge at the preliminary inquiry to commit the accused for trial on any indictable offence if the evidence in support of that charge is sufficient. It also requires that the accused by discharged in respect of any charge on which the evidence is not sufficient. Everything turns, therefore, on what is meant by “sufficient” evidence. Shephard – TEST – sufficiency test at the preliminary inquiry: Whether a reasonable jury, properly instructed, could find the charge proved beyond reasonable doubt. Where the prosecution case on an element is circumstantial: Arcuri – the justice should undertake a limited weighing of the evidence, including any defence evidence, to determine whether a reasonable trier of fact could return a finding of guilt.  A “limited weighing” of circumstantial evidence therefore requires the judge to consider whether, if believed, the evidence could support inferences in favour of the prosecution and whether it could be considered reliable or credible. If so, the accused should be committed. Discharge  If the accused is discharged at the preliminary inquiry, there is NO acquittal and thus he CANNOT claim protection against double jeopardy if the prosecution should subsequently proceed against him on the same charge or a related charge, either by means of a fresh information or a direct indictment. o As the accused was never in jeopardy of conviction at the preliminary inquiry, the discharge cannot constitute a final judgement (R v Ewanchuk). REVIEW OF PRELIMINARY INQUIRY DECISIONS The Code sets out no procedure for appealing the decision to commit or discharge at a preliminary inquiry, and so no appeal is possible. This means that review of such a decision can only be made on the basis of an action for certiorari. Certiorari will only be granted if the judge has fallen into jurisdictional error. s.577 – Crown can prefer a direct indictment despite the discharge. s.548 – requires a preliminary inquiry judge to discharge the accused if “on the whole of the evidence no sufficient case is made out”. The Jury Trial

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If a jury trial is to be held, a trial judge is assigned, and a jury is selected.

Selecting mode of trial (p.54-58)  In general, under s.536(2), the accused is asked to elect a mode of trial. o However, if the offence is listed as in the absolute jurisdiction of a magistrate, then the accused does not elect and is tried in provincial court. Hybrid offence  Crown should elect whether to proceed by indictment or summary conviction. o Summary  Whether automatically or by election, the accused enters a plea and will be tried on the information in Form 2. Thus, NO jury. o Indictable  The trial must be by judge and jury unless some other part of the Code specifies otherwise (s.471). The net effect is that a few offences, such as murder and treason listed in s.469, are required to be tried by jury, while a few indictable offences, such as theft not exceeding $5000, cannot have a jury. But, for all other indictable offences an accused can choose between any of the three modes of trial. Note: Note: An accused can elect not to have a jury, except for the offences listed in s.469 (s.558). An accused can elect not to have a jury, even for the offences listed in s.469, with the AG‟s consent.

Accused refuses to elect mode of trial  If the accused refuses to elect, then according to s.565(1)(c) the trial will be by judge and jury. Note: AG – even if the accused does not want a jury, the AG can compel a jury trial if the offence is punishable by more than 5 years, under s.568.

JURY SELECTION s.471 – every indictable offence shall be tried by judge and jury “except where otherwise expressly provided by law”. Jury array  the large number or prospective jurors summoned to the courtroom in order for the selection to take place. Provincial Legislation Jury Selection Procedures – Creating the Jury Array Disqualifications – frequently appear to be based on two general justifications: (i) That the potential juror would face a conflict in serving on a jury, or (ii) That what the juror does in everyday life is more important than, or for some other reason justifies a general exemption. i.e. people involved in law enforcement are typically disqualified from jury service, judges, lawyers, articled clerks or those simply who have a law degree, or if have a criminal record. Doctors in some provinces. Criminal Code Jury Selection Procedures – Choosing the Jury from the Jury Array a) Mechanics of Selecting Jurors See p. 276 for procedure to select from jury array.

b) Exemptions s.632 – allows a trial judge to excuse jurors based on any of three grounds: (i) personal interest in the matter to be tried, (ii) relationship with the judge, prosecutor, accused, etc. (iii) personal hardship or other reasonable cause. c) Challenges for Cause Challenge for cause is not intended to be a means for counsel to find out why type of person the juror is, or to decide whether to use a peremptory challenge. If the judge permits a challenge for cause to be heard, it is tried by the two jurors most recently sworn or by two people appointed b the judge if no jurors have yet been sworn. The trial judge should instruct the triers that they are to decide whether the juror is impartial on a balance of probabilities. s.638 – sets out the grounds upon which a juror may be challenged for cause. Canadian approach to decide whether a juror is not indifferent: “Canada has taken a different approach (than US). In this country, candidates for jury duty are presumed to be indifferent or impartial. Before the Crown can challenge and question them, they must raise concerns which displace that presumption” (R v Williams).  Counsel will not be allowed to ask questions regarding a challenge for cause without first satisfying the judge that there is some reason to doubt the juror‟s indifference.  “not indifferent” means “not impartial” or “prejudiced”. There are four relevant types of potential juror prejudice: (i) Interest prejudice – arises when the juror has a direct interest in the trial, i.e. family member (ii) Specific prejudice – consists of attitudes or beliefs about the particular case, gained through media coverage or some other source, that might prevent the juror being impartial (iii) Generic prejudice – consisting of stereotypical attitudes (iv) Conformity prejudice – when a juror might feel influenced by strong community feelings about an expected outcome. (see p.281 for process). Because counsel must state the basis for challenging the juror beforehand, but will likely in face know very little about the juror, there are practical obstacles that sometimes prevent challenges for cause from even occurring, let alone succeeding (p.282-283) Williams – a realistic possibility of prejudice must be shown. Williams signalled that trial judges should be more open to being persuaded that there is a realistic potential for partiality. R v Wilson – challenges for cause based on the realistic potential for racist attitudes should be allowed to any black accused in Ontario without further empirical evidence of racism R v Koh – allowed challenge for cause by any accused belonging to any visible minority. R v Find Facts: accused wished to be allowed to question jurors in order to decide whether to challenge them for cause, on the basis that the case concerned sexual assaults against children. The accused argued that there was a realistic potential that some jurors would be unable to act impartially because of the nature of the charges Held: rejected accused‟s argument. Court found that the evidence presented did not show a realistic possibility of prejudice. Peremptory Challenges  Allow the accused or the Crown to dismiss a potential juror without explanation (s.634). o Unlike challenges for cause, peremptory challenges are limited. R v Pizzacalla – the Ontario CA ordered a retrial in a case where the Crown used its stand-aside power (peremptory challenge) to produce an all-female jury in a sexual assault case. HOWEVER, the SCC seemed to approve of Pizzacalla in R v Bain when the Crown did the same in another sexual assault case.

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Pre-Trial Motions In either judge alone or jury trials, there will often be preliminary legal issues to be resolved before the trial gets going. o These will ordinarily be dealt with by the assigned trial judge. In a jury trial, it is often convenient to assign the judge and to dispose of these matters before a jury is selected, or if the motions can be resolved expeditiously, select the jury and require it to leave the courtroom until the motions are completed.

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PRE-TRIAL MOTIONS AND CONFERENCES Timing and Means  In contrast to pre-trial motions, pre-hearing conferences are not intended to determine matters: “s.625.1 does not bind either the Crown or defence to a particular position”. o i.e. a Crown prosecutor might indicate at a pre-hearing conference a lack of intention to use a statement given by the accused, but then at trial seek to introduce the statement. The prosecutor is entitled to change strategy despite representation made at the pre-hearing conference. o i.e. the defence may indicate at a conference that the issue in a sexual assault trial will be consent, but then argue at trial that no sexual relations occurred. Particular Pre-trial Motions  Discussed here will be pre-trial motions concerning: o (a) applications for change of venue, o (b) applications regarding fitness to stand trial, and o (c) Charter applications regarding the right to a trial within a reasonable time. a) Change of Venue  At common law, trials are to be held in the area in which the offence occurred. o However, it is still possible to apply to change the venue. s.599 – allows either the defence or the Crown to apply for a change of venue of the grounds that;  (a) it appears expedient to the ends of justice; or  (b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held. Note: As a practical matter, change of venue applications in fact turn on whether pre-trial publicity has made it too difficult for an accused to obtain a fair trial without one. o The essential issue is whether there is strong evidence of a general prejudicial attitude in the community as a whole. In addition, that prejudice must not e capable of being cured by safeguards in jury selection, by instructions from the trial judge to the jury panel, or by the rules of evidence.  R v Eng – no change of venue on a retrial even though the initial trial had a change of venue because the court held that enough time had passed to mend any prejudice (p.259).

b) Fitness to Stand Trial

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This issue looks at whether the accused suffers from a mental disorder, and so is related to the ultimate issue of whether an accused will be found not criminally responsible under s.16. Everyone is presumed fit to stand trial (s.672.22). o Fitness applications need not be made pre-trial, and can be brought any time prior to verdict. The defence and the Crown are each entitled to appeal the decision of a fitness hearing.

c) Charter Motions Only two motions will be considered here: (i) applications concerning the right to a trial within a reasonable time, and (ii) applications dealing with abuse or process. i) Trial Within a Reasonable Time s.11(b) Charter – guarantees any person charged with an offence the right “to be tried within a reasonable time”. Exceptional delay – refers to delay that is out of the ordinary. Rahey – a decision that normally would have been made in a few days was adjourned by the trial judge nineteen times for a total duration of eleven months. Institutional delay – delay that is within the ordinary times of the particular jurisdiction, bu that is unacceptable compared to some external standard. R v Askov – SCC suggested a guideline of six to eight months delay from the time of committal to the start of a trial.  The court relied on statistics showing that the Brampton court in question was dramatically slower than any other court in North America.  This decision led to very large numbers of decisions being dismissed Morin – adopted a stricter test. An accused must show some particular prejudice in order to succeed in a s.11(b) claim. Morin affirmed Askov’s, but to avoid the problems that had arisen post-Askov, added that these times were simply guidelines, not absolute limitation periods.  Absent proof of serious prejudice, s.11(b) claims have become less likely to be granted  (case where court justifies no prejudice since an accused can benefit from a Charter remedy caused by delay). Kalanj – s.11(b) does not include pre-charge delay (i.e. where an accused has been arrested and fingerprinted but no charges are laid for eight months, that delay is not calculated into the s.11(b) equation). Smith – “some delay is inevitable”. At what point does the delay become unreasonable? Four general considerations must be weighed: 1) the length of the delay 2) waiver of time periods 3) the reasons for the delay, including a) inherent time requirements of the case, b) actions of the accused c) actions of the Crown d) limits on institutional resources e) other reasons for delay 4) prejudice to the accused. The burden of proof to show a Charter violation rests on the accused. (ii) Abuse of Process and Fair Trial Rights a. Abuse of Process b. Stay of Proceedings

At least two criteria must be met before a stay will be the appropriate remedy: (1) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) No other remedy is reasonably capable or removing that prejudice.  Therefore, a stay should only be granted where it is the only remedy that will serve. THE TRIAL VERDICT Jury Trials Where there has been a jury trial, the judge will “charge” the jury on the relevant law, and the jury will retire to deliberate, returning with a general verdict (i.e., a verdict delivered without reasons). If there is a conviction, the judge will conduct a sentencing hearing and impose sentence. JURY DELIBERATIONS 1) Jury Sequestration  The verdict, whether for conviction or acquittal, must be unanimous. o If the jury is ultimately unable to reach unanimity then s.653 permits the trial judge to discharge the jury and order a new trial. Outside contact with juror: R v Mercier – a new trial was necessary when a Crown prosecutor entered the jury room in the jury‟s absence and erased some words from the blackboard. 2) Exhorting the Jury Although the trial judge can discharge the jury under s.653 and order a new trial, normally the first step is to call the jury in and exhort them to reach a verdict.  Exhorting a jury properly is a delicate task. A judge should not express an opinion on the facts during an exhortation, even though that is permissible in the original charge.  The exhortation should not suggest that one or another group‟s opinions on the evidence is preferable.  The exhortation is to focus on the process of deliberation itself, and encourage the jury members to listen to and consider one another‟s views.  Jurors should not be encouraged to change their minds for the sake of conformity, and no deadline should be imposed. 3) Rendering a Verdict The verdict announcement is made by the jury foreman. It is possible to request that the jury be polled – every juror be asked individually about the verdict. After the jury has been discharged by the trial judge neither it nor the trial judge has any further authority to act.  R v Head – i.e. the trial judge was functus officio and no longer had jurisdiction to inquire into the matter or correct any error, and therefore that acquittal had to stand.  R v Burke – trial judge and many others misheard the foreman, understanding him to say “not guilty”. Since leaving the incorrect acquittal in place would have led to a miscarriage of justice, a mistrial was declared and a new trial ordered. 4) Jury Secrecy

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Judicial Verdicts Where there has been a judge alone trial, the judge will render the verdict. o The judge is obliged to give reasons for decision.  If the accused is convicted, the judge will then conduct a sentencing hearing.

Duty to Give Reasons (p.370-372)  Although there is no general duty for a trial judge to give reasons in every case, the Court made clear in Sheppard that in many circumstances the failure to do so, or to do so adequately, will be an error of law giving rise to a ground of appeal. o Trial judges are not required to explain their entire reasoning process in detail, rather they are only required to give reasons that the parties can understand and that permit appellate review.  It can be an error of law to provide insufficient reasons (two stage process p. 370). Sheppard – Court laid down general guidelines when a trial judge had a duty to give reasons: 1. The delivery or reasoned decisions is inherent in the judge‟s role 2. An accused person should not be left in doubt about why a conviction has been entered. 3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. 4. Reasons perform an important function in the appellate process. 5. Etc. - The duty to give reasons also applies to acquittals. - Time delay.  Double Jeopardy and Issue Estoppel Where a verdict has been rendered, the accused cannot be tried again for the same offence OR for an offence based on the same factual allegations he has been acquitted or convicted of. o Moreover, under the doctrine of issue estoppel the Crown is prevented from attempting in future proceedings from re-litigating factual issues that have already been decided against the Crown.

R v Mahalingan (2008) S.C.J. No. 64 FACTS: Appeal by the Crown from a decision of the Ontario Court of Appeal ordering a new trial for Mahalingan. Mahalingan was acquitted on the charge of attempted murder but convicted of aggravated assault. The eyewitness who identified him testified that Mahalingan had telephoned him from jail shortly before the trial commenced, asking that he not testify against him. Mahalingan was subsequently charged with attempting to obstruct justice. The Crown adduced evidence of the telephone call during the obstruct justice trial mirroring that put forward at the attempted murder trial. However, Mahalingan was acquitted. Mahalingan appealed his conviction on the charge of aggravated assault, arguing that his acquittal for obstructing justice should be accepted as fresh evidence. He also argued that, based on the doctrine of issue estoppel, evidence of the telephone call was improperly admitted at the first trial. The Court of Appeal unanimously allowed the Mahalingan's appeal and ordered a new trial on the ground that the trial judge had failed to correctly charge the jury. Further, a majority of the court would have granted the application and ordered a new trial on the basis of the fresh evidence application. HELD: Appeal dismissed. Issue estoppel did not mean that every piece of evidence led in a first trial and leading to an acquittal was inadmissible in a subsequent trial on another matter. The accused claiming issue estoppel bore the burden of showing that a particular issue

was decided in his or her favour in a previous proceeding. The concern for finality was inconsistent with retroactive application of issue estoppel. Issue estoppel could not operate retrospectively to result in evidence being redacted from the record on a prior trial. The version of issue estoppel adopted by the majority of the Court of Appeal cast the principle too broadly. The Court erred in holding that the subsequent verdict of acquittal on the charge of obstruction of justice required it to find that the witness's evidence of the telephone call from the accused was wrongly admitted in the first trial. The acquittal in the second trial could not operate retrospectively to render the evidence inadmissible in the earlier case. However, the Court of Appeal correctly ruled that the jury charge in the first trial was inadequate and a new trial was correctly ordered on that ground. SENTENCING General Principles of Sentencing CC Sections 718, 718.01, 718.1, 718.2, 718.3, 719 s.718 – Purpose of sentencing – The section enumerates the objectives of sentencing. s.718.01 – Offences against children s. 718.1 – The section codifies the principle of proportionality. s.718.2 – This provision requires the sentencing court to take into account specified principles. (a) a sentence should be increased or reduced to account for any relevant aggravating circumstances ... (i), (ii), (iii) ... (v) (b) a sentence should be similar to sentences imposed on similar offenders for similar offences (c) consecutive sentences (d) ... (e) aboriginal offenders s.718.3 – (see commentary) The section describes the degree of punishment that may be imposed upon D, in the discretion of the court, and the circumstances under which cumulative punishments may be imposed. s.719 – (see commentary) This section determines the commencement date of the sentence imposed upon a person convicted of a criminal offence.  Sentencing Definitions A suspended sentence is a legal construct. o Unless a minimum punishment is prescribed by law, the court has the power to suspend the passing of sentence (generally for a period of three years) and place the offender on probation. It is the passing of the sentence, not the sentence itself, that is being suspended. This means that if the defendant is convicted of another offence during the period when the passing of sentence had been suspended, then the offender may be sentenced for the original offence. Suspended sentence is necessary for probation, but in cases where the penalty is recorded as suspended sentence it is often given to mitigate the effect of the penalty. It is common practice for judges to hand down a suspended sentence to first-time offenders who have committed a minor crime, and for prosecutors to recommend a suspended sentence as part of a plea bargain. In Canada, a suspended sentence still results in a criminal record even though it is possible that no time is served or other penalty incurred.

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Those imprisoned for multiple crimes, will serve either a consecutive sentence (in which the period of imprisonment equals the sum of all the sentences) or a concurrent sentence (in which the period of imprisonment equals the length of the longest sentence). o If a sentence gets reduced to a less harsh punishment, then the sentence is said to have been "mitigated". Rarely (depending on circumstances) murder charges are "mitigated" and reduced to manslaughter charges. Cumulative sentence - When a criminal who has been convicted of two or more different crimes, instead of sentencing him for both the crimes separately he can be sentenced for both of them jointly and would be asked to serve for the crime with the longer time of imprisonment. Examples of Factors to Consider in Sentencing

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R v Sweeney (1992) Factors to consider in sentencing AND sentencing principles AND retribution is NOT a factor to be considered in the sentencing process (OVERRULED by R v C.A.M.). FACTS: convicted of one count of criminal negligence causing death, one count of driving with a blood alcohol level in excess of .08 and one count of failing to remain at the scene of an accident. Sweeney was 20 years old at the time of the offence. He was sentenced to four and one half years‟ imprisonment on the first count, six months concurrent on the second and six months consecutive on the third. His right to drive was suspended for 15 years. The court allowed the appeal from sentence. ON APPEAL FOR SENTENCE: the court decided there was an error in principle when the trial judge used a sentencing starting point of five years‟ imprisonment for all drinking and driving offences causing either death or bodily harm. New sentences:  Criminal negligence causing death – 18 months‟ imprisonment less on day. o The reason for deducting a single day from the 18 months was to indicate that, for this offender, provincial time would have been more appropriate than federal time.  Impaired driving – remained the same.  Failing to remain at scene of the accident – remained the same.  Driving prohibition also remained at 15 years. Wood J.A. (McEachern concurring): “While the proper role of this Court on a sentence appeal is to determine the fitness of the sentence imposed according to the application of recognized legal principles, we do not perform that function in a legal vacuum devoid of any understanding of the realities of life to which our decisions must be applied”. Factors to consider:  Drunk driving is an enormous social problem. The numbers alone tell us that. o The sentences imposed on drinking/driving offenders who have caused death or bodily harm have increased dramatically in the last decade, but the average penalty imposed for the simple impaired driving or related offences has not.  Proportionality – any punishment meted out must bear some direct proportionality to the moral culpability of the offence for which it is imposed.

Victim impact statement (s.722) – permits a judge to consider a written statement by the victim of an offence, or by the victim‟s close relatives, in which the harm done by the commission of the offence is described. Parliament sought to ensure that the Courts would not overlook the consequences to the victims of a crime when considering the seriousness of the offence committed. o They are permissive, not mandatory. o They do not purport to require the sentencing Court to take a retributive approach when sentencing an offender. o The dilemma facing the sentencing Court is to balance a proper consideration of the consequences of a criminal act against the reality that the criminal justice system was never designed or intended to heal the suffering of the victims of crime. The Principles of Sentencing While consistent treatment of like cases is an important goal in a principled approach to sentencing, the principle of accountability requires that the aggravating and mitigating circumstances peculiar to each offence and each offender be taken into account. Therefore, each sentence must, to some extent, be tailor-made for the circumstances peculiar to its own case. Sentencing goals: (i) General deterrence  The legal sanction imposed on actual offenders will discourage potential offenders. o It is questionable to assume that the greater the sanction, the less likely people will commit the crime. (ii) Specific deterrence (iii) Isolation  Isolation is achieved primarily by a sentence of imprisonment. It is justified as a “goal” of sentencing by the proposition that so long as an offender is separated from society, he or she cannot re-offend. In terms of the protection of society, it is the option of last resort. Experience teaches us that most people emerge from prison a worse threat to society than when they entered. Thus care and restraint must be exercised when imposing a sentence of imprisonment even when the goal is to isolate the offender. o The chronic alcohol abuser, whose inability to refrain from driving a motor vehicle while intoxicated is demonstrated by a number of previous convictions for drinking/driving-related offences, presents as a candidate for an isolative sentence unless the Court is persuaded that rehabilitative treatment can and will be undertaken with a reasonable prospect of success. (iv) Rehabilitation Rehabilitation cannot be achieved through the imposition of custodial sentences. Wood J.A.: “in my view it is self-evident that rehabilitation remains the only certain way of permanently protecting society from a specific offender.” The requirements of accountability and proportionality can be met with carefully crafted terms and conditions which both restrict the individual‟s freedom and enhance supervision of the rehabilitative process. (v) Denunciation Wood J.A.: “I would affirm this Court‟s rejection of that theory of sentencing as declared in R v Hinch. That means that denunciation as a goal of sentencing must be strictly limited to ensuring that sentences imposed for criminal convictions are proportionate to the moral culpability of the offender‟s unlawful act”. It is associated with retributive theory.

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(vi) Just Deserts Wood J.A.: “I am of the view retribution and „just deserts‟ are indistinguishable. Accordingly, I am of the view that it has no place in a principled approach to sentencing”. Canada „jails‟ too much Canada has one of the highest per capita imprisonment rates of the so-called western industrialized world. Studies have concluded that “we jail too many people for too long”. I believe that the fundamental purpose of sentencing can be achieved without contributing to that problem. IMPORTANCE: Denunciation and Just Deserts were considered irrelevant considerations in sentencing (OVERRULED in R v C.A.M.). R v C.A.M. (1996) 1 S.C.R. Retribution is a relevant factor to be considered in the sentencing process. FACTS: the accused pleaded guilty to a number of sexual offences inflicted upon his children. The trial judge called the offences egregious and sentenced the accused to a cumulative sentence of 25 years‟ imprisonment. The CA reduced the sentence to 18 years and 8 months. ISSUE: did the CA err in holding that retribution is not a legitimate principle of sentencing? SCC HELD: Lamer restored the 25 years‟ imprisonment. Thus, the CA did err, retribution is a legitimate principle of sentencing. Lamer‟s Reasons: “It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law (as La Forest J stated in R v Lyons (1987) 2 S.C.R.). The Canadian Sentencing Commission in its 1987 Report on Sentencing Reform also endorsed retribution as a legitimate and relevant consideration in the sentencing process”. “In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be “just and appropriate” under the circumstances”. “The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with “vengeance” in common parlance. But retribution bears little relation to vengeance”. Vengeance – represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution – represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender‟s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. My opinion – it appears that the same conclusion/sentence may be reached whether using a vengeance approach or a retribution approach, however, the process is justified under the retribution approach since it is considering mitigating factors to reflect punishment. On the other hand, retribution seeks to punish out of malice instead of reasoned conclusions. R v Priest (1996) (Ont. C.A.)

PRINCIPLES: Prevalence of the crime AND Youthful First Offender AND Proportionality AND The Role of the Courts. FACTS: the accused was a19-year-old first offender. He had no prior record. He pleaded guilty to breaking and entering a convenience store and stealing computer games and accessories worth approximately $2,700. All of the stolen property was recovered and there were no aggravating features. There was no presentence report or other information about the accused‟s background, family, roots in the community, education or work history. Taking judicial notice of the prevalence of the crime of breaking and entering in the community and stating that general deterrence was for that reason the primary sentencing consideration, the trial judge imposed a sentence of one year‟s imprisonment. The accused appealed. HELD: even where break and enter is prevalent in a community, it is a circumstance to be taken into consideration, but not the exclusive consideration. The trial judge was entirely wrong saying general deterrence was the paramount objective in sentencing this accused. The sentence imposed by the trial judge in this case was wholly disproportionate to what occurred. There were a number of mitigating factors that were completely ignored by the trial judge. Intervention was required by the court. Prevalence of the Crime  R v Sears (1978) – prevalence of a particular crime in the community can never be more than one factor to be taken into account.  R v Rohr (1978) – The 16-year-old appellant had no prior record but was sentenced to six months imprisonment pursuant to the trial judge‟s policy of imposing lengthy jail terms even on first offenders for break and enter because of the increase in the number of break-ins in the community. Martin J.A. made it clear that even where break and enter is prevalent in a particular community, it is a circumstance to be taken into consideration, but not the exclusive consideration.  “This court has stressed that before imposing a sentence of imprisonment upon a first offender, the trial judge should have either a presentence report or some very clear statement with respect to the accused‟s background and circumstances ... The trial judge has a duty to consider whether any disposition other than imprisonment would be appropriate. Based on the scanty information before him, the trial judge would have no means of determining that imprisonment was the appropriate sanction for this appellant”. Youthful First Offender  The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.  This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. o These principles have now been codified in ss.718 and 718.2 CC o i.e. s.718.2(d) – an offender should not be deprived of liberty “if less restrictive sanctions may be appropriate in the circumstances”. o i.e. s.718.2(e) – all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders Proportionality

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s.718.1 – A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R v M (C.A.) 1996 1 S.C.R. – Lamer: “... the principle of proportionality expresses itself as a constitutional obligation. A legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s.12 of the Charter”. The sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Mitigating factors – The appellant had no prior record; he confessed to the offence; he returned all of the stolen goods; and he pled guilty at an early opportunity. The trial judge was required to give effect to these mitigating factors in imposing sentence on this appellant.

The Role of the Courts Trial judge: the citizens of Hearst must know that the court is doing its job. s.718 – the purpose of sentencing is also to contribute to respect for the law and maintenance of a just society. Respect for the law is not enhanced when overly harsh sanctions are imposed and a trial court ignores well established sentencing principles. The trial judge does not fulfil its duty to fashion a sanction that will contribute to the maintenance of a more just society when it imposes a sentence on the offender that is far beyond the usual penalty imposed for this offence in other parts of the province and the country. CC – sentence is to be imposed is in the discretion of the trial judge. The various principles and objectives of sentencing set out by this court and in the CC are designed to guide the exercise of the discretion. R v Boucher (2004) O.J. No. 2689 (Ont. C.A.) PRINCIPLE: example of the punishment fitting the crime even though death did not ensue by chance. FACTS: Appeal by the Crown from the sentence imposed against Boucher on his conviction of attempted murder. Boucher was convicted of attempting to murder and two counts of threatening his wife. Boucher drove to his estranged wife's home while intoxicated. The wife attempted to get away in her vehicle but was followed by Boucher. The wife testified that Boucher drove his car into hers and caused it to spin. Boucher's vehicle drove into a ditch. Boucher telephoned a family member and stated that he had tried to kill his wife and himself. Boucher testified that he only intended to talk to his wife. The trial judge found that his evidence was not credible. Boucher was sentenced to two years less a day imprisonment in addition to 28 months credit for time served on the attempted murder charge. He was also sentenced to 30 days concurrent imprisonment on each threatening charge. The sentence was followed by a two year probation period. Boucher was 53 years old. He had no prior criminal record. Boucher spent 14 months in presentence custody. The trial judge rejected the suggestion that Boucher had accepted the end of his marriage but found that a longer probation period was sufficient. HELD: Appeal allowed. Boucher was sentenced to two years less a day followed by three years probation. The sentence was unfit. The absence of physical injuries was a function of chance in this case. The offence was a domestic offence, which was an aggravating circumstance. Boucher's actions were premeditated.  Tools of Sentencing Incarceration

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Conditional Sentence of Imprisonment Probation and Community Service Fines Discharges Recognizance Orders Restitution Victim Surcharges Sentencing Aboriginal Offenders Punishment of Organizations Parole

Procedure CC sections 720, 721, 722, 723, 724 s.720 – The section requires that sentencing take place expeditiously after a finding of guilt s.721 – Requires a probation officer to prepare a pre-sentence report when ordered to do so by a court. s.722 – Victim impact statements s.723 – The section codifies procedural aspects of the sentencing hearing. P and D are entitled to make submissions to call any relevant evidence, before the court passes sentence. s. 724 – The section deals with fact-finding for sentencing purposes. Incarceration CC sections 732, 743, 743.1, 745, 718.3(4) s.732 – a court may order that a sentence of 90 days or less be served intermittently (stopping or ceasing for a time). s.743 – Everyone who is convicted of an indictable offence for which no punishment is specially provided is liable to imprisonment for a term not exceeding five years. s.743.1 – Where D‟s sentence consists, in whole or in part, of a term of imprisonment, this section generally determines the place of imprisonment (i.e. if two year or more must be in a penitentiary – s.743.1(1)). s.745 – The section prescribes the sentence to be pronounced against a person to be sentenced to imprisonment for life, except where D, under the age of eighteen years at the time of the commission of the offence, has been convicted of first or second degree murder. s.718.3(4) – defines the circumstances in which a convicting court may direct that terms of imprisonment may be served consecutively. The order must be made explicit, otherwise the terms will be served concurrently. Conditional Sentence of Imprisonment CC sections 742, 742.1, 742.3, 742.6, 742.7 s.742 – The section defines “change”, “optional conditions” and “supervisor” for all Code conditional sentences provisions s.742.1 – This section authorizes service of a sentence of imprisonment in the community, but limits the circumstances in which a sentencing judge may permit D to do so. s.742.3 – s.742.3(1) sets out the compulsory conditions and s.742.3(2) the optional conditions of a conditional sentence order. s.742.6 – Procedure on breach of condition. s.742.7 – where D has been sentenced to imprisonment while at large under a conditional sentence, the conditional sentence is suspended, unless the court orders otherwise. R v Proulx (2000) 1 S.C.R. 61

FACTS: Appeal by the Crown from the Court of Appeal's decision allowing Proulx's appeal from sentence of 18 months incarceration. Proulx consumed alcohol at a party and drove home. He was 18. He drove his car into an oncoming lane. Another driver was seriously injured, and one of Proulx's passengers died. Proulx was in a coma. He pleaded guilty to dangerous driving causing death, and dangerous driving causing bodily harm. The judge held that a conditional sentence under section 742.1 of the Criminal Code would be inconsistent with denunciation and general deterrence. The Court of Appeal substituted a conditional sentence. HELD: Appeal allowed, and original sentence restored. As Proulx had served the conditional sentence, the sentence was stayed. Parliament intended conditional sentences to be more punitive than suspended sentences with probation, so that conditional sentences were to restrict the offender's liberty. Pursuant to section 742.1, the prerequisites to conditional sentences were that the offence not be punishable by a minimum term of imprisonment, the court must impose a term of two years or less of imprisonment, and the safety of the community would not be endangered. The judge was not required to impose a fixed term of imprisonment before considering the possibility of a conditional sentence. The community safety criterion was a condition precedent to the assessment of whether a conditional sentence would be fit and proper. The phrase safety of the community referred to the threat posed by the specific offender. The risk of the offender re-offending and the gravity of the damage that could ensue in the event of re-offence were the two factors to be taken into account. Once the prerequisites were met, the final consideration was whether a conditional sentence would meet the fundamental purposes and principles of sentencing under sections 718 to 718.2. It was unnecessary to establish judicially created presumptions that conditional sentences were inappropriate for specific offences. It would be an error in principle not to consider the possibility of a conditional sentence seriously when the three criteria were met. Where a combination of punitive and restorative objectives could be achieved, a conditional sentence would likely be more appropriate than incarceration. In imposing conditions, the judge was to consider whether the conditions ensured the safety of the community, whether they were tailored to fit the particular circumstances of the offender and the offence, that punitive conditions such as house arrest should be the norm, and that the conditions were realistically enforceable. The sentence imposed on Proulx was not demonstrably unfit, and the Court of Appeal should not have substituted its own opinion for that of the sentencing judge. Probation and Community Service CC section 731, 732.1, 732.2, 733.1 s.731 – The section describes the circumstances in which a probation order may be made. s.732.1 – Conditions of a probation order. s.732.2 – The section defines the commencement and duration of a probation order, and the circumstances under which it may be varied or revoked. s.733.1 – The section creates a hybrid offence of failure or refusal to comply with a probation order, and authorizes its trial in various territorial jurisdictions. R v Sangster (1973) FACTS: the trial judge had given a suspended sentence of five years‟ imprisonment and placed the accused on probation for three years. HELD: the Crown‟s appeal was dismissed. Kaufman: “I do wish to point out that the true intent of s.731 is to suspend “the passing of sentence”, and not the sentence itself. Probation possibilities

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The court may fine the accused and place him on probation or the court may imprison the accused and place him on probation (The imprisonment in such a case cannot be for a period longer than two years: R v Nutter) The court cannot fine the accused and place him on probation and imprison him (R v Smith). s.732.1 – the court may prescribe, besides the statutory conditions listed, “such other reasonable conditions as the court considers desirable for securing the good conduct of the accused and for preventing a repetition by him of the same offence or the commission of other offences”. The condition imposed then cannot be as additional punishment. R v Ziatas – the trial judge, on an assault charge, fined the accused and place him on probation for one year with the condition the he not operate a motor vehicle during that period. Held: the condition was struck out because it was an additional punishment. R v Gladstone – the accused was convicted of breach of a regulation under the Fisheries Act and the court made it a condition of probation that he surrender his permit to fish for a period of one month Held: the appeal court allowed the accused‟s appeal because the condition attached to the probation order was inappropriate for several reasons: (1) first, have suspended sentence, he in effect punished the accused by depriving him of his permit to fish for a period of 30 days. (2) secondly, ... his reliance on fishing as a Native (3) thirdly, the primary purpose of the condition was not directed to the rehabilitation of the accused. (4) fourthly, ... A condition of probation under s.732.1, that the accused be required to report to and be under the supervision of a fisheries officer for a fixed period of time would have been more appropriate. It would have had the primary purpose of encouraging the rehabilitation of the accused. R v Pawlowski – the accused‟s probation order which provided for restitution also contained a condition that he pay costs of $1000. Dickson, J.A., struck out the condition as illegal.

Fines CC sections 734, 734.6, 734.7, 736 (Note – there is no fine-option program in force in most provinces, including Ontario), 787 s.734 – authorizes the imposition of a fine of D who is not an organization, for any offence than one for which there is a minimum term of imprisonment. s.734.6 – Civil enforcement of fines, forfeiture s.734.7 – Warrant of committal s.736 – Fine option program. Permits the discharge of a fine by an individual accused, in whole or in part, by earning credits for work performed during a period of not more than two years in a fine option program ... s.787 – The section enacts general punishment provisions for summary conviction proceedings and prescribes the maximum term of imprisonment in default of payment of a pecuniary penalty. Discharges CC section 730 s.730 – The section governs the availability, operation, effect, and enforcement of absolute and conditional discharges including rights of appeal from each disposition. R v Derksen (1972)

PRINCIPLE: courts should not hand out absolute discharges simply because it‟s a first offence. FACTS: on a charge of possession of cannabis resin, the prosecutor asked that the court grant an absolute or conditional discharge since it was a first offence. HELD: a discharge should be used frugally, selectively and judiciously, as Parliament obviously intended. If it is considered that an absolute or conditional discharge is the appropriate penalty for a first offence under this section, then Parliament should so declare. The courts should not compromise or circumvent the law. R v Fallofield (1973) FACTS: The appellant, a corporal in the Canadian Armed Forces, with an excellent record, was found guilty of stealing some pieces of carpets valued at $33. He was making some extra money by working for a moving company. In the course of a delivery of a refrigerator to an apartment building he and his two colleagues took some left-over pieces of carpeting which he thought to be scraps. The judge refused to grant him a conditional discharge in the belief that such procedure could be applied only where there was a case of strict liability or where the offence was completely unintentional or unavoidable. HELD: The appeal was allowed and an absolute discharge granted. The judge erred in applying a wrong principle. There was nothing in the language of the section that so limited its application. Upon review of the authorities the Court found that the section could be used in respect of any offence other than an offence for which a minimum punishment was prescribed by law or the offence was punishable by imprisonment for 14 years or more. There were two conditions precedent to the exercise of the jurisdiction, namely, that it was in the best interest of the accused and that it was not contrary to the public interest. The powers given by s. 662.1. should not be exercised routinely or as an alternative to probation or suspended sentence. Applying these principles this was a case where it was proper that such discharge be granted. The Court had jurisdiction to vary the sentence on appeal under s. 614(1). Under s. 601 the word "sentence" in Part XVIII included a disposition made under s. 662.1. Section 603(1)(b) conferred a right of appeal against a sentence and so against such a disposition. Effect of a discharge  The granting of a discharge does not mean that an accused has no criminal record.  s.730(3) CC – a discharged accused “shall be deemed not to have been convicted of the offence”.  Criminal Records Act – one subject to a discharge could apply to the Parole Board, subject to a shorter waiting period, for a pardon. A pardon “vacates” a record. What is the legal effect of a discharge?  If the question is “Have you been convicted?” it would appear that the discharged accused can answer “No”.  If the question is “Do you have a criminal record?” it seems that the answer still has to be “Yes” unless the time period for non-disclosure has arrived. Presumably a discharged accused can still apply for a pardon. After such a pardon the answer could presumably be “No” to both questions, otherwise the application for pardon would be meaningless. Recognizance Orders (a bond or obligation of record entered into before a court of record or a magistrate, binding a person to do a particular act) CC section 810, 810.1 and 810.11 s.810 – This section provides a statutory procedure to obtain an order that requires a person to keep the peace and be of good behaviour, notwithstanding the absence of a formal criminal prosecution.

s.810.1 – A person who causes in another a reasonably-grounded fear of a listed sexual offence in respect of one or more persons under 16 years of age, may be required to enter into a recognizance. s.810.11 - ? R v Budreo (2000) O.J. No. 72 PRINCIPLE: s.810.1 was upheld as constitutional. FACTS: Appeal by Budreo from the dismissal of his application for a declaration that section 810.1 of the Criminal Code was unconstitutional. Budreo was a paedophile with a long record of sexual offences against young boys. Section 810.1 of the Criminal Code permitted the court to impose a recognizance on any person likely to commit a sexual offence against a child under 14 years of age, and to prohibit that person, for up to one year, from engaging in certain activities or attending certain places where children under 14 were likely to be present. The recognizance could be imposed even though the person had not committed an offence, and had no previous criminal record, if an informant feared on reasonable grounds that an offence would likely be committed. The Crown sought a recognizance against Budreo following his release from prison. Budreo unsuccessfully brought an application to prevent the hearing from being held, and for a declaration that section 810.1 was unconstitutional because it violated sections 7, 9, 11 and 15 of the Charter. HELD: Appeal dismissed. Section 810.1 deprived Budreo of his liberty, but the restrictions were in accordance with the principles of fundamental justice. Section 810.1 did not create a status offence, as it was a preventive provision, not a punitive provision, and was not about Budreo's status, but about his present risk of future dangerousness. It was not overbroad, as its objective was important and the means chosen to attain it were reasonable. The restrictions did not involve detention or imprisonment and were proportional to the societal interest in the protection of young children. They were narrowly targeted to meet Parliament's objective. To insist on a requirement of a previous criminal record or a specific offence would have undermined the purpose of the section, as it would require a child to be victimized before the Crown could act. The availability of pre-trial arrest and detention was necessary in some cases to prevent harm to children pending a hearing, and was not overly broad. The procedural safeguards were sufficient. The availability of the recognizance on the basis of the fear of an informant did not render section 810.1 void for vagueness because the fear was required to be based on reasonable grounds. The trial judge correctly read down the requirement that a judge shall cause the parties to appear before the provincial court judge to a discretionary requirement, by reading in the word may in place of shall. It was not unconstitutional to allow pre-hearing arrest and detention because these were discretionary orders.

Restitution CC sections 738-741.2 inclusive s.738 – D may be ordered to make restitution to the victim for the cost of property damage, etc. s.739 – Where property obtained by D‟s offence has been conveyed to a person acting in good faith, etc., D may be ordered to pay restitution to a third person where ... s.740 – priority to restitution. s.741 – Enforcing restitution orders/Moneys found on the offender may be applied to restitution. R v Dashner – the accused, convicted on two counts of assault causing bodily harm, was fined and placed on probation. One condition of the probation order required the accused to pay each victim $500. Held: this condition was struck out on appeal.

Victim Surcharges CC Section 737(1) s.737(1) – An offender who is committed or discharged under s.730 shall pay a victim surcharge, in addition to any other punishment imposed on the offender (i.e. 15% of any fine). Sentencing Aboriginal Offenders CC section 718.2(e) s.718.2(e) – “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. R v Gladue (1999) 1 S.C.R. FACTS: Appeal by Gladue from sentence. Gladue, an aboriginal, pleaded guilty to manslaughter in the killing of her common law husband. She was sentenced to three years in prison. Gladue had quarrelled the victim on the night in question regarding his infidelity. She had been drinking heavily and stabbed him twice with a knife. The trial judge considered the mitigating factors that Gladue was a young mother, had no criminal record other than for impaired driving, attended substance abuse counselling, upgraded her education, and had a medical condition. Her family was supportive. The trial judge also considered the aggravating factors related to the commission of the offence and the sentencing principles of general deterrence, denunciation and the need to rehabilitate the accused before rejecting a suspended or conditional sentence. The judge found there were no special circumstances arising out of the aboriginal status of Gladue and the victim. Both lived in an urban area that was off- reserve and not within the aboriginal community. The British Columbia Court of Appeal dismissed her appeal from sentence. Gladue appealed to the Supreme Court of Canada. HELD: Appeal dismissed. Pursuant to section 718.2(e) of the Criminal Code, different considerations had to be taken into account when sentencing an aboriginal offender. Section 718.2(e) applied to all aboriginal offenders wherever they resided. Although the sentencing judge may have erred in limiting the application of section 718.2(e) to aboriginal offenders living in rural areas or on-reserve, and did not appear to have considered the systemic or background factors which may have influenced Gladue to engage in criminal conduct, it was not in the interests of justice to order a new trial. The offence was very serious. The sentence of three years imprisonment was not unreasonable for this offence by this offender. Also, Gladue was granted day parole after six months in a correctional centre and was granted full parole a year ago. The resulting sentence of six months and subsequent controlled release was in the interests of both the accused and society. s.712(e) CC Analysis  Judges must consider all available sanctions other than imprisonment.  Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.  Attention should be paid to the fact that Part XXIII, through ss.718, 718.2(e), and 742.2(e), has placed a new emphasis upon decreasing the use of incarceration.  Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community.  In sentencing an aboriginal offender, the judge must consider: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

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(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. If there is no alternative to incarceration the length of the term must be carefully considered. s.718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. Applies whether on or off reserve. The jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence. Punishment of Organizations

CC sections 718.21, 735 s.718.21 – This section lists several factors that a sentencing judge is required to take into account in imposing sentence on an organization. Parole CC sections 743.6, 745.2 s.743.6 – Eligibility for parole (delayed) s.745.2 – Parole recommendation by the jury R v Zinck (2003) S.C.J. No.5 FACTS: Appeal by Zinck from a decision by the Court of Appeal dismissing his appeal from sentence. Zinck shot his neighbour in her home. She died and Zinck was charged with second degree murder. He was 56 at the time of his trial and had an extensive criminal record that included a robbery conviction, and parole and probation violations. Zinck did not remember the killing, as he was extremely intoxicated. He stated that he had killed a burglar. Zinck pleaded guilty to manslaughter and was sentenced to 12 years imprisonment. The period of parole ineligibility was delayed for six years pursuant to section 743.6 of the Criminal Code. Zinck argued that the imposition of delayed parole required evidence of special or exceptional circumstances, which had not been established. He also argued that the Crown was required to give notice that it intended to seek delayed parole. HELD: Appeal dismissed. Where delayed parole was permitted pursuant to section 743.6, the judge had to first determine the appropriate punishment for the crime. Thereafter, the judge was required to consider whether to impose delayed parole. The Crown had the duty to establish that such an order was required, giving priority to the principles of deterrence and denunciation, and based on the evidence at trial and the sentencing hearing. While delayed parole was out of the ordinary, consideration of the issue did not require a special hearing where evidence of unusual or extraordinary circumstances had to be introduced. The Crown was not required to give written notice of the intention to seek delayed parole. Section 743.6 merely required that the issue be raised in a fair and timely manner in order to allow the offender to respond effectively. With regard to Zinck, the order for delayed parole was justified on the evidence. As well, the hearing did not breach the rules of procedural fairness as Zinck was given the opportunity to respond to the Crown's request for delayed parole. APPEALS AND REVIEW

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Appeals of Final Decisions and Judicial Review of Interim Decisions ONLY final verdicts can be appealed, interim decisions CANNOT. o Interim decisions can, however, be the subject of judicial review applications where jurisdictional errors occur.  Judicial review may be necessary, for example, to challenge preliminary inquiry results, to seek or quash publication bans, or to suppress or access third party records; in these cases if we wait until the end of the trial, the damage sought to be prevented may have already occurred, hence the judicial review application. In the case of appeals, different grounds of appeal and procedural routes apply, depending on whether an offence has been prosecuted summarily or indictably.

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APPEALS  Rights of appeal are entirely a creature of statute. o The Code creates separate sets of rules for appeal of indictable offences and of summary conviction offences. APPEALS OF INDICTABLE OFFENCES 1) Appeals by the Accused a) Overview of Appeal Provisions s.675(1)(a) – a person can appeal a conviction based on a question of law alone (with leave of the court of appeal), on a question of face, on a mixed question of law and fact, or on any ground of appeal “that appears to the court of appeal to be a sufficient ground of appeal” s.686(1)(a) – These bases for appeal pass through three “filters” found in s.686(1)(a), each limiting the grounds upon which an appeal might succeed.  If an appeal is granted under s.686(1)(a), then the court of appeal quashes the conviction and can either acquit the accused or order a new trial. (b) Appeal Provisions in Depth i) Standard of Review Housen v Nikolaisen: SCC considered the standard of review for each ground: Questions of law – the standard of review is correctness. An appellate court can substitute its opinion for that of the trial judge. Questions of fact – higher standard of review. A finding of fact should not be overturned in the absence of a “palpable and overriding error”, which amounts to “prohibiting an appellate court from reviewing a trial judge‟s decision if there was some evidence upon which he or she could have relied to reach that conclusion”. See p.356 for rationale of this approach. Questions of mixed law and fact – could be correctness standard or require a palpable and overriding error. ii) Unreasonable Verdicts The basic standard for assessing whether a verdict is unreasonable is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered. This test entails both subjective and objective elements, and the SCC has been reluctant to label it as one or the other.  It asks whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it.

iii) Errors of Law and Miscarriages of Justice s.686(1)(a)(ii) – permits an appeal to be granted in the case of “a wrong decision on a question of law”. s.686(1)(1)(iii) – permits an appeal based on “a miscarriage of justice”. (See p.361 for difference between error of law and miscarriage of justice). iv) The “Curative Proviso” s.686(1)(b)(iii) – allows an appeal court to dismiss an appeal despite an error of law provided that “no substantial wrong or miscarriage of justice has occurred”. TEST – requires that there is a reasonable possibility that the verdict would have been different had the error ... not been made (Khan). v) Procedural Irregularities s.686(1)(b)(iv) Appeals by the Crown s.676 – Crown appeals are brought.  The Crown‟s right of appeal is narrower and contains nothing equivalent to the accused‟s s.686(1)(a)(i). o That is, the Crown cannot appeal on the basis that an acquittal was unreasonable or could not be supported on the evidence. s.676(1)(a) – “any ground of appeal that involves a question of law alone”. s.676(1)(d) – the Crown can appeal an accused‟s sentence with leave. The Crown is required to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred, and the Crown has a heavy onus in doing so (R v Sutton).  i.e. R v Graveline Where the court of appeal grants an appeal from an acquittal in a trial by judge alone, it has two choices: to order a new trial or to enter a conviction. 3) Other Appeal Related Issues a) Statutory Powers on Appeal b) Fresh Evidence on Appeal R v Palmer – Court laid down guidelines for the introduction of fresh evidence on appeal: 1) ...4) (see p.368) Note: evidence sought to be introduced must have been capable of admission at the initial trial: hearsay or opinion evidence that would not have been admissible at trial is no more admissible on appeal. R v Trotta – fresh evidence was admitted and a new trial was ordered in light of evidence that the testimony of a pathologist called by the Crown was unreliable. APPEAL TO THE SUPREME COURT OF CANADA ss.691 to 695 – create a right to appeal decisions of a court of appeal regarding indictable offences to the SCC.  An appeal to the SCC can ONLY be based upon a question of law.  For the most part, appeals are permitted in only two circumstances: o (1) where a judge of the court of appeal dissents on a question of law, or o (2) when the SC gives leave to appeal a question of law.

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However, if an accused was acquitted at trial but that acquittal was replaced with a conviction on appeal, then a further basis for appeal is allowed. o In that case, the accused can appeal on any question of law, whether there was a dissent in the court of appeal or not. Even if the SC grants leave to appeal on a question of law, that does not preclude it from ultimately concluding that the issue raised is not one of law after all, and dismissing the appeal on that basis.

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REVIEW OF PRELIMINARY INQUIRY DECISIONS (p.247-249)  The Code sets out no procedure for appealing the decision to commit or discharge at a preliminary inquiry, and so no appeal is possible. o This means that review of such a decision can only be made on the basis of an action for certiorari.  Certiorari will only be granted if the judge has fallen into jurisdictional error. s.577 – Crown can have a direct indictment. s.548 – requires a preliminary inquiry judge to discharge the accused if “on the whole of the evidence no sufficient case is made out”. JUDICIAL INTERIM RELEASE (Bail) – s.515 CC General approach taken toward bail  The approach taken to judicial interim release = a statutory preference for interfering with liberty as little as necessary. The provisions are structured on the general assumption that an accused should be released pending trial and with as few restrictions as possible. The Code creates a “ladder” approach – an accused is presumed to be entitled to release and the Crown must justify each increasing step of instrusiveness (there are exception for s.469 offences). Delay  An accused must be brought to a justice without unreasonable delay, a rule meant to guarantee speedy consideration. However, the justice that the accused is taken to can adjourn the bail hearing by up to three days without the consent of the accused. Procedure Once the hearing is held, s.515 directs that the justice shall order that the accused is released on an undertaking without conditions, unless the Crown shows cause as to why something more restrictive is justified. For this reason, these are often referred to as “show cause” hearings. Conditions of Release  s.515(2) sets out the range of restrictions on liberty, short of detention, that can be imposed as conditions of release: o (a) an undertaking with conditions; o (b) a recognizance without sureties and without deposit – that is, the accused promises to pay a sum of money if she does not appear as required; o (c) a recognizance with sureties – that is, a third party also agrees to owe the debt if that accused does not appear;

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(d) a recognizance without sureties but with a deposit of money “or other valuable security” – this condition can only be imposed with the consent of the prosecutor, and; (e) a recognizance with or without sureties and with a deposit of money or other valuable security if the accused is not ordinarily resident in the province or within two hundred kilometres of the place in which he is in custody.

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A judge cannot make any order under paragraphs (b) to (e) unless the prosecution shows cause.

Conditions on conditions ss.515(4) - 515(4.3) provide conditions that may, or must, be imposed when an order for release is made under s.515(2).  All of these are related to the objectives of ensuring the accused attends court or ensuring the safety of the community while s/he is on release.  Release conditions should be realistic rather than “setting the accused up to fail” (R v Thomson).  There must be some type of causal relationship between the crime charged and the particular conditions imposed, i.e. could still impose a curfew if offence happened during the day (R v Patko). Continued detention rather than bail The remaining possibility, beyond the various forms of release in s.515(2), is that the Crown might show cause as to why the accused should remain in custody until trial. s.515(10) specifies that there are only three grounds on which continued detention of an accused may be ordered. The first two are relatively uncontroversial: (a) The detention is necessary to ensure the accused‟s attendance in court; or (b) The detention is necessary for the protection or safety of the public.  The justice is directed to consider “all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”. The third ground is more controversial: (c) On any other just cause being shown ... where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances ...  The opening words of the section “any other just cause” were struck out, on the ground of vagueness. The rest of the section was upheld (R v Hall).  The majority noted that this ground should be used sparingly and that detention based solely on it would only be justified in rare cases (R v LaFrambroise).

Exceptions to the general approach There are two exceptions s.515(6) and s.469 offences. s.515(6) – lists a number of offence for which the onus is reversed (the accused has the onus of showing cause that detention is not justified, upheld under Charter). For the offences listed in this section, the justice is directed to order that the accused shall be detained unless the accused shows cause not to do so. s.515(6)(a) – the offence charged was alleged to be committed while the accused was already out on bail;

s.515(6)(b) – the offence charged was a criminal organization, terrorism, or national security offence and accused is not ordinarily a resident in Canada; s.515(6)(c) – the offence related to failing to attend court as ordered by some previous process; s.515(6)(d) the offence was punishable by life imprisonment under the CDSA s.469 offences – most common is murder s.515(11) – a justice has no authority to release the accused and must order her detained to be “dealt with according to law”. In this event, the accused will, in accordance with s.522, be taken before a judge of the superior court – no one else is authorized to release a person charged with a s.469 offence before trial. In this hearing, there is again a reverse onus, with the accused being required to justify release (s.522(2)). If the accused is ordered to be released, any of the ordinary conditions of release can be imposed. Review (appeal) of release or detention A decision made by a justice concerning release or detention may be reviewed by a judge upon application by the accused or the prosecutor (s.520 and s.521). Principles of admissibility s.518 – sets out the principles of evidence at a bail hearing – allows the justice to “receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”. If violating release conditions An accused who has or is about to violate some condition of release can be arrested, with or without a warrant (s.524). CLASSIFICATION OF OFFENCES Definitions Superior court of criminal jurisdiction (s.2 CC) – in Ontario, the Court of Appeal or the Superior Court of Justice. Jurisdiction s.468 Superior court of criminal jurisdiction – Every superior court of criminal jurisdiction has jurisdiction to try any indictable offence.  The indictable offence trial jurisdiction of the superior court of criminal jurisdiction is exclusive for the offences listed in s.469. s.469 Court of criminal jurisdiction – Every court of criminal jurisdiction has jurisdiction to try an indictable offence other than (a) an offence under any of the following sections: (i) s.47 (treason) (ii) s.49 (alarming Her Majesty) (iii) s.51 (intimidating Parliament or a legislature) (iv) s.53 (inciting to mutiny) (v) s.61 (seditious offences) (vi) s.74 (piracy) (vii) s.75 (piratical acts) (viii) s.235 (murder) (b) Accessories – ... (c) Corrupting justice – ...

(c.1) Crimes against humanity – ... (d) Attempts – ... (e) Conspiracy – ... Commentary: A court of criminal jurisdiction has jurisdiction to try any indictable offence, except those listed in ss.469(a)-(e), which must be tried in the superior court of criminal jurisdiction. Offences triable only on indictment  Indictable offences (treason, felonies, and misdemeanours) o Triable only by judge and jury Indictable offences are divided into three categories: (1) The most serious offences are given into the exclusive jurisdiction of the superior Court of criminal jurisdiction (see ss. 468 and 469). (2) The least serious indictable offences are absolutely within the jurisdiction of a Magistrate (see s.553). (3) For the great bulk of the indictable offences remaining, the accused is entitled to choose the mode of trial. Under s. 536(2), the accused will be put to an election and will be asked to choose whether to be tried by a provincial court judge without a jury, a judge without a jury or a court composed of a judge and jury. An accused who does not elect a mode of trial will be deemed to have elected trial by judge and jury (s.565(1)(c)). Exclusive jurisdiction of the superior court VS Absolute jurisdiction of the Magistrate Superior Court – has exclusive jurisdiction: no other Court can try these offences. Magistrate – has absolute jurisdiction: the Magistrate is absolutely entitled to try these offences in the sense that he is not dependent on the accused‟s electing to be so tried. Other Courts of criminal jurisdiction are nevertheless entitled to try the accused for offences within the Magistrate‟s absolute jurisdiction should the matter come before them. Notwithstanding that the accused has elected trial by Magistrate, the Magistrate may decide that the matter should be proceeded with by a Judge or jury (s.555), and the Attorney General may also override an accused‟s decision and compel a jury trial where the offence is punishable by more than five years (s.568). Summary conviction offences Part XXVII of the CC sets out procedure for the trial of summary conviction offences (i.e., trial before a provincial judge without a jury and without a preliminary inquiry). The maximum penalty for any summary conviction offence unless otherwise provided is $2000 or six months‟ imprisonment or both (s.787(1)). Punishment 787 (1) General penalty – except where otherwise provided by law, every one who is convicted of an offence punishable on summary conviction is liable to a fine of not more than two thousand dollars or to imprisonment for six months or to both. (2) Imprisonment in default where not otherwise specified - ... Commentary – applies where the imposition of a fine or the making of an order for the payment of money is authorized by law, but not provision is made for the imposition of imprisonment in default of payment. The default term in such cases may not exceed imprisonment for six months. Crown election offences

In some instances the legislation makes the offence punishable on indictment or on summary conviction at the option of the Crown. Only when the prosecutor elects to proceed by indictment does the accused have the choice under s.464. EXCLUSION OF EVIDENCE OBTAINED CONTRARY TO THE CHARTER s.24(2) – gives a judge discretion to exclude evidence obtained in violation of a Charter right where “having regard to all the circumstances, the admission of the evidence in the proceeding would bring the administration of justice into disrepute”. R v Buhay (2003) 1 S.C.R. FACTS: the police conducted a warrantless search of a bus locker, where they found marihuana. The Court found that the search of the locker violated the accused‟s right under s.8 of the Charter to be free from unreasonable search and seizure, and so the question became whether the evidence of the marihuana should be excluded under s.24(2). HELD: the findings of the trial judge which are based on an appreciation of the testimony of witnesses will be shown considerable deference. It was well within the trial judges (Aquila) judicial discretionary power to conclude that the admission of the marijuana in this case would cause greater disrepute to the justice system than its exclusion would, and such decision is very well within the limits of reasonableness. Law – this Court grouped the circumstances to be considered under s.24(2) into three categories which trial judges are to consider: (1) The effect of admitting the evidence on the fairness of the subsequent trial, (2) The seriousness of the police‟s conduct, and (3) The effects of excluding the evidence on the administration of justice (1) Trial fairness The trial judge was correct in concluding that admission of the marijuana seized following the search of the locker does not affect adjudicative fairness. The appellant has not been conscripted (self-incriminating evidence) against himself in the creation of evidence and the evidence preexisted the violation of the Charter. (2) Seriousness of the Breach The seriousness of the police‟s conduct depends on “whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant (Therens). It is also relevant to consider whether the violation was motivated by a situation of urgency or necessity. Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant. The court may also look at some or all of the following factors: the obtrusiveness of the search, the individual‟s expectation of privacy in the area searched and the existence of reasonable and probable grounds (R v Caslake). Trial judge: “The violation was serious and was not simply a technical one. The court is concerned at the casual approach that the police took in infringing the accused‟s rights in these circumstances. It is this court‟s view and concern that if the evidence was to be admitted in this trial that it may encourage similar conduct by police in the future”. Also, the trial judge was particularly influenced by the fact that the police officers could have obtained a search warrant, but that they did not do so. He cited Collins, “In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter, which is a factor supporting the exclusion of evidence”. The officer‟s subjective belief that the appellant‟s rights were not affected does not make the violation less serious, unless his belief was reasonable.

I share the trial judge‟s view that the fact that obtaining a warrant did not even cross the mind of one officer demonstrates a certain casual attitude toward the appellant‟s Charter rights. Moreover, the admission of Constable Riddell that he did consider obtaining a warrant but that he thought that he lacked sufficient grounds to get one also suggests blatant disregard for the appellant‟s rights. Moreoever, there was no situation of urgency or necessity, as there was no immediate danger that the evidence would be lost, removed or destroyed, nor was an imminent threat posed by the marijuana in the locker. The police could have secured the evidence by other means without infringing the appellant‟s rights, by obtaining surveillance of the locker, for example. Factors in favour of admission of evidence The search was not especially obtrusive and the appellant had a lesser expectation of privacy than there is in one‟s body, home or office. (3) The Effect of Exclusion on the Reputation of the Administration of Justice Whether excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it. This factor is generally related to the seriousness of the offence and the importance of the evidence to the case for the Crown. In this case, the conviction turned on the admissibility of the evidence. It was thus essential to the Crown‟s case. R v Duguay (1985) “Frequent resort to the exclusion of evidence will create a perception by the public that the criminal justice system is a sort of legalistic game in which a misstep by the police confers immunity upon the accused. This perception will most certainly bring the administration of justice into disrepute”.