Criminal Law Process - University of Victoriaweb.uvic.ca/~lssweb/wp-content/outline_uploads/6-Criminal_Law_Fall... · R. v. Manninen (1987) 16 R. v. Brydges ... •one of the leading

Criminal Law ProcessOutline for LAW 102 Y02 as instructed by Prof. Chris Tollefson

Brian EberdtUniversity of Victoria • October 5, 2008

Criminal Law Process • Fall Outline 1

Overview of the Criminal Law! 5

Basic Principles and Objectives of the Criminal Law 5

Purposes of Sentencing (from s. 718 of the CC) 5

Sentencing Options 5

R v. Gladue (1999) 5

Limits of the Criminal Law 6

Constitutional Division of Powers: Hydro Québec 6

The Charter 6

Re ss. 193 and 195.1(1)(c) - The Prostitution Reference (1990) 6

R v. Malmo-Lavine (2003) 6

The Criminal Law, the Constitution, and Codification 7

R v. Morgentaler (1993) 7

Re: Firearms Act (2000) 7

Codification 7

Amato v. The Queen (1982) 7

Jobidon v. The Queen (1991) 8

United Nurses of Alberta v. A.G. (1992) 8

The Interpretation of Criminal Laws 8

Vagueness and Overbreadth 8

Strict Construction vs. Interpretation 9

R v. Paré (1987) 9

R v. Goulis (1981) 9

The Criminal Law and the Charter of Rights and Freedoms 9

R v. Oakes (1986) 10

Exclusion of Evidence 10

R v. Collins 10

R v. Stillman 10

The Investigation of Crime ! 11

Introduction 11

Turpel-Lafond’s Aboriginal Critique of Criminal Justice 11

Search and Seizure 12

Hunter v. Southam Inc. (1984) 12

Thompson Newspapers Ltd. v. Canada (1990) 12

R v. LeBeau and Lofthouse (1988) 12

R v. Wong (1990) 12

R v. Duarte (1990) 12

R v. Edwards (1996) 12

R v. Belnavis (1997) 12

R v. Tessling (2004) 12

Arrest 13

R v. Golden (2001) 13

R v. Landry (1986) 13

R v. Feeney (1996) 14

Racial Profiling and Detention 14

R v. Brown (2003) 14

R v. Simpson (1993) 14

R v. Mann (2004) 14

Confessions: Voluntariness 15

Boudreau v. The King (1949) 15

Rothman v. The Queen (1981) 15

Clarkson v. The Queen (1986) 15

R. v. Oickle (2000) 15

Confessions: The Right to Counsel and the Right to Silence 16

R. v. Manninen (1987) 16

R. v. Brydges (1990) 16

R. v. Prosper (1994) 16

R. v. Hebert (1990) 17

R v. Osmond (2007, BCCA) 17

R. v. Singh (2007) 17

A Case Study on Traffic Stops 17

R. v. Therens (1985) 18

R. v. Thomsen (1988) 18

R. v. Hufsky (1988) 18

R. v. Ladouceur 18

R. v. Obranski; R. v. Elias (2005) 18

Prosecution of Crime and the Trial! 19

Introduction to the Trial Process 19

U.S.A v. Burns and Rafay (SCC, 2001) 19

The Role of Counsel 19

R. v. Stinchcombe (1991) 20

Pre-Trial Release 20

R. v. Pearson 21

R. v. Morales 21

R. v. Hall 21

Classification of Offences and Preliminary Inquiries 21

Juries 21

R. v. Kent et al. (1986) 22

R. v. Pizzacalla (1992) 22

R. v. Biddle (1995) 22

R. v. Parks (1993) 22

Overview of the Criminal LawBASIC PRINCIPLES AND OBJECTIVES OF THE CRIMINAL LAW

Purposes of Sentencing (from s. 718 of the CC)a) denounce unlawful conductb) deter offender and other persons from committing offencesc) separate offenders from societyd) assist in rehabilitating offenderse) provide reparations for harm done to victims or communityf) promote a sense of responsibility in the offenders

•sentencing reminds us that we’re to apply justice in an individualized way•1995 brought a cluster of amendments to the the CC, including s. 718

•outlined the purposes of sentencing•718.1 outlines that the sentence must fit the crime•718.2 outlines the mandatory circumstances that hove to be considered

•highlights how imprisonment should be seen as a last resort (d)•742.1 gave new sentencing power to the courts

•allows them to grant house arrest for sentences of 2 years or less

Sentencing Options•absolute discharge - no criminal conviction is made•conditional discharge - requires that accused maintain certain conditions upon release•probation - like above, but with more complex conditions and consequences•fine - common, yet ineffective sentence, often paired with other options•restitution - allows offender to make right by directly impacting those affected by the offenc•intermittent - allows offenders to serve time, while being released to work their jobs•specific prohibitions - prohibit offender from certain activities (e.g. driving)

• such prohibitions may last for the offender’s entire life

R v. Gladue (1999)• facts: aboriginal woman accused of murdering her boyfriend while under the influence of alcohol•one of the leading cases in the sentencing of aboriginal offenders• received sentence for federal term of imprisonment•on appeal, lawyers argued that the judges failed to take into account the relevant sentencing provi-

sions (relating to aboriginal offenders)•due to the seriousness of the offence, the appeal was overturned


•decision was partly motivated by motivations of general deterrence•Hamilton presents an interesting contrast because he was part of a disadvantaged group, but it was

not aboriginal, thus, she was not protected by the provisions

LIMITS OF THE CRIMINAL LAW

Constitutional Division of Powers: Hydro Québec•Hydro Québec showed the extent of to which the government will go to extend the breadth of its

criminal law power• the only limits on the federal government’s ability to assert its power

•where it can be shown that it is interfering with provincial jurisdiction•where it can be shown that it is trying to do something else under the guise of its criminal law

power (colourability)

The Charter•efforts to limit the government’s criminal law power are evidenced in the Charter•generally, we deal with ss. 2 and 7•s. 7 was meant to be a backstop for ss. 8-14

•although its inclusion did not seem overly significant at the time, it has become contentious in nu-merous cases

• its impact is largely a part of its vagueness•essentially, s. 1 allows the Crown to circumvent most of the Charter in special circumstances

• tests of s. 1 must go through the Oakes Analysis (after having gone through a s. 2 analysis)•analyses of s. 7 do not go on to analyse ss. 1 or 2, the law will require amendment

Re ss. 193 and 195.1(1)(c) - The Prostitution Reference (1990)•contested the sections of the CC that dealt with ‘communicating for the purpose of prostitution’ and

the ‘presence of bawdy houses’ (note, the numbers are different now)•SCC found

• they were in violation of s. 2(b) of the Charter•BUT they were allowable by s. 1 in order to control public nuisance and prostitution

• it was also argued that there was a s. 7 violation, criminalizing an activity that was not prima facie illegal

•Dickson J. said that they provisions were not so vague as to constitute such a reading

R v. Malmo-Lavine (2003)• issue: whether the possibility of imprisonment for possession of a small amount of marijuana was

constitutional•what does this legal possibility represent?

•principal argument: was a violation of PFJ•decision: the possibility did not violate Charter values•harm principle

•has been fundamental to law, historically• the case raises questions of whether this type offence should be reconsidered under the harm

criteria•although discarded here, the harm principle can be useful in other analyses of the law


•two requirements of PFJ•conformity to social consensus•adequate precision to yield a manageable standard against which to measure deprivations of

life, liberty or security of the person• the use of this test was deemed to be to vague for legal application

•realistically, few principles could pass the PFJ test absolutely

THE CRIMINAL LAW, THE CONSTITUTION, AND CODIFICATION

•the cases examined here are examples of how the federal government has attempted to use its fed-eral power over criminal law to strike down Provincial power

•government is allowed to do so if it advances public policy (e.g. protection of public health, the envi-ronment)

• fed. governs procedure•prov. maintains their courts and some penal facilities• limits on federal power

• legislation must not be colourable•effect must not transgress CCRF

•courts tend to be deferential toward parliament when granting federal power•ours is viewed to be a fairly centralized justice system

R v. Morgentaler (1993)•Sopinka J. held that the province was attempting to introduce criminal legislation, disguised as health

legislation• it was very much like colourability•prov. legislation was struck down

Re: Firearms Act (2000)•Alberta argued that parliament couldn’t implement gun control•SCC found that it was within their jurisdiction

Federal vs. Provincial Offences•provincial offences are defined by provincial statutes (even though they’re non criminal)•generally, provincial offences will not impose a prison sentence (it must be < 6 mos.)

Codification

The Code on Codification•s. 8.3 affirms the role of the courts upholding common law offences and adapting•s. 9 affirms the rationale: so that everyone knows what the rules are

Amato v. The Queen (1982)• common law defences are okay


Jobidon v. The Queen (1991)• s. 265(1)(a) states that the victim’s lack of consent is an essential part of an offence• issue: can the Crown ask the court to ignore the clear wording of CC where it’s a fist fight

• this amounts to asking the court to create a new offence•held: the court can ignore consent in the context of a fist fight

United Nurses of Alberta v. A.G. (1992)•after labour dispute, nurses ordered back to work, although not all obeyed•order was filed for their being in contempt of court

• this is the only Common Law defence that remains after codification•nurses advanced two arguments

• codification is a PFJ - rejected by the courts; many countries operate without code• contempt of court is overly vague - rejected by the courts; they knew what they were doing

The Code at a Glance

Part Contains

I •s. 2 with all the definitions

II - XII • substantive criminal law•definitions of offences

XIII •expansions to the term of criminal liability• intents

XIV - XXVIII •most substantive part; criminal procedure•XVI - sentencing•XX - trial procedures

THE INTERPRETATION OF CRIMINAL LAWS

Vagueness and Overbreadth•courts have recognized these issues in their relation to s. 7 and PFJs•vagueness

• failure to give notice to the accused regarding an act’s criminality• imprecise definition of criminality•Canadian Foundation for Children, Youth and the Law v. Canada (A.G.) (2004)

• law was found to be overly vague • there was a contrast in judicial activisim

•McLachlin (majority) - provision need not be struck down because limits can be read in•Arbour (dissent) - reading in all those limits would be absurd

• the issue surrounded the constitutionality of a defence, not an offence•R v. Nova Scotia Pharmaceutical Society (1992)

•affirms the existence of a void for a vagueness doctrine under the Charter•stated that fair notice is not a central concern in the vagueness doctrine


•overbreadth•unhindered and unfettered use of the law•R v. Heywood (1994)

•held: the law was overly broad, but not overly vague•“vagueness refers to situations where the means of criminality are not well defined - over-

breadth is where the means go too far” (Cory J.)

Strict Construction vs. Interpretation

R v. Paré (1987)•generally, the CC is always meant to be construed in a manner that is most favourable to the ac-

cused•here, we see that this principle is not always the case; there must first be an ambiguity• facts: accused commits indecent acts then murders the victim

•he argued they were separate offences, nullifying 1st degree murder charge• this defence would only be warranted on a strict construction

•statutes should be interpreted using a purposive approach

R v. Goulis (1981)• states that when a word has two accepted meanings, both may apply•Martin J.A. interprets ambiguity (around the word “conceals”) in favour of the accused

THE CRIMINAL LAW AND THE CHARTER OF RIGHTS AND FREEDOMS

Section Application

1 • if a law has been found to be unconstitutional, courts may use this section to vali-date it; “to such reasonable limits...as can be demonstrably justified in a free and democratic society.”

8 •has become more relevant with expansion of information technology

9 •covers rights against unjust detention•comes into play with issues of racial profiling and ‘luring in’ offenders

10 •defence counsel will want to invoke detention, it allows for new rights•habeas corpus ensures that all detentions are lawful

11 •creates new rights for the defendant upon being charged

12 •has come up in light of punishment of Canadian citizens that might occur in other countries

24(1) •a trial court is a court of “competent jurisdiction”•covers other remedies: dismissal of charge, no change, restitution


Section Application

24(2) •exclusion of evidence - usually handled during the voir dire•the admission of any excluded evidence will result in a mistrial

R v. Oakes (1986)• considers the constitutionality s. 8 of the Narcotic Control Act

•it was found that it did not satisfy the component of proportionality•Oakes argues that the phrase “prescribed by law” has been used differently in different cases•Dickson J. held that it was unconstitutional for the Narcotic Control Act to place the onus on the ac-

cused to prove that their possession was not for the purposes of trafficking•s. 11(d) protects the rights to be presumed innocent until proven guilty

•see Layli’s chart for review of the Oakes test

Exclusion of Evidence

R v. Collins• sets out three factors that must be considered when asked to exclude evidence

1. Trial Fairness• rationale: it would be repugnant for the accused to testify against themselves at trial

2. Seriousness of the Breach•examines the conduct of police•defence will try to characterize the police’s actions as deliberate

3. Effect of excluding the evidence•whether there would have been another way to secure the evidence without a breach•would the administration of justice be put in to ill repute upon such a disclusion

R v. Stillman•adds a framework to the first part of the Collins test (conscription)• forces court to ask the question: would the inclusion of the evidence affect trial fairness•determination involves two questions

•Was the evidence conscripted (forcing the accused to participate in its creation)?• if derivative evidence flows from the conscripted evidence, then it would also be excluded

•Was the evidence discoverable?•prosecutors must prove that, on a balance of probabilities, the evidence would not have

been found• in that case, it turned out that a lot of the evidence was conscripted

R v. Buhay (2003)•accused placed incriminating evidence inside a bus station locker, that was raided by the police• the evidence was not conscripted - it was pre-existing• the conduct of the police in the case had a lot to do with Buhay’s acquittal

• they did not obtain a warrant when they knew they should have• this showed that they possessed a casual approach toward the Charter


•adds the third branch of the Collins test: would exclusion bring admin. of justice into disrepute

The Investigation of CrimeINTRODUCTION

“Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice” - Kent Roach•discusses the balance between crime control vs. due process•crime control

•aim was to process max number of criminals•precedence was placed on discovering truth of factually guilty before fair treatment•prevalent theory in pre-Charter era

•due process•allow for greater protection of the accused’s rights through fairer trial process

•before s. 24(2), many rights of the accused were violated•effect of the Charter

• recognized rights of the accused•caused many new delays•allows for verdicts such as in R v. Stinchcombe, making the trial process more fair

• the debate continues today

Turpel-Lafond’s Aboriginal Critique of Criminal Justice•outlines the incompatibility btwn Aboriginal CJS and Euro-Canadian CJS•adversarial system is the element that is most out of line with Aboriginal values•concept of legal counsel is also at odds

• in Aboriginal community, accused should defend themselves•Aboriginal system focuses on a community developed resolution

•accused should be repaying debt to their victim, not society as a whole•monetary compensation does not make sense in this scheme

•Lafond also discusses the over-representation of Aboriginals as criminals, coupled with their under-representation on the jury

• fortunately, there are more Aboriginals entering decision-making roles in CJS

Royal Commission on Aboriginal Peoples•proposes possible means with which to alleviate some of the concerns and incompatibilities raised

above

Gender Issues•gender does matter in criminal law•many aspects of the CJS overlook that unique needs of women as citizens and law-abiding persons

•many of these oversights centre around domestic abuse situations•notes how these oversights are particularly detrimental for Aboriginal women


SEARCH AND SEIZURE

Hunter v. Southam Inc. (1984)•very significant case for affirming the impact of the CCRF on the CC•held: warrantless searches and seizures are unreasonable•people should be entitled to a reasonable expectation of privacy•affirms U.S. ruling that the aim is to protect people not places

Thompson Newspapers Ltd. v. Canada (1990)•very similar to Hunter v. Southam•held: there must be a threshold of proof that the search for documents is warranted•again, a lack of warrant makes a search prima facie unreasonable•distinguished between a search and a seizure•although a demand for documents did not violate s.8, it did amount to a seizure

• thus, the search in Hunter, does not make the seizure in this case unreasonable

R v. LeBeau and Lofthouse (1988)•held: because they were in a public washroom, they did not have a reasonable expectation of pri-

vacy

R v. Wong (1990)•although one would usually have a reasonable expectation to privacy in a hotel room, Wong had

opened the room to virtually anybody to increase business in gambling operation•due to the developments that had occurred in the law since LeBeau, the courts reason differently•opens up the debate over whether engaging in illegal activities should affect s. 8 rights

R v. Duarte (1990)• issue: the constitutionality of obtaining recordings of the accused’s phone conversation, without auth.• La Forest J. asserts the balance between crime prevention and rights protection•ultimately, such recording does violate s. 8•walks through the Collins test, noting that the evidence would have been discoverable otherwise•here, the state was making a recording that couldn’t be cross-examined

R v. Edwards (1996)•accused was deemed not to have a right to privacy in his girlfriend’s home

R v. Belnavis (1997)•SCC found that passenger had no reasonable expectation of privacy to her trunk while travelling

R v. Tessling (2004)•RCMP used a FLIR camera to determine that excess heat was coming from Tessling’s house

• this became the basis for a search warrant for his house• Tessling argued that obtaining such an image constituted a search, violating s. 8 rights•SCC overturned Ontario CA ruling


•Binnie J.: privacy must be balanced with the public concern for safety, security, and suppression of crime

•he creates a new type of privacy•FLIR image was more focussed on informational privacy than territorial privacy

•we now have three types of privacy, as created by Binnie J.•personal - bodily integrity, right not to disclose objects or matters we wish to conceal• territorial - protects hierarchy of places: home, car, office, etc.• informational - protects biographical core; information that reveals intimate details of lifestyle

and personal choices• the argument to protect “people not places” recurs

ARREST

Arrest in Statute•ss. 9 and 10 of the Charter are particularly relevant here•CC covers arrest in the following sections

•s. 495(1) - indicates when an officer may arrest• s. 495(2) - indicates when an officer may not arrest

•only recently has a discussion begun regarding detention•s. 507(4) allows police to get a warrant when they where the suspect is

Search Powers Incident to Arrest• in pre-Charter days, officer could conduct a search (usually pat-down)• in Cloutier v. Langois (1990), SCC says that the search must not be abusive and it must be for a valid

purpose, such as:•ensure officer’s safety• to secure an individual when handcuffing them• to search for evidence that is related to the offence for which accused has been arrested

R v. Golden (2001)• facts: police conducted an abusive frisk in a semi-public place•defence noted that, if Cloutier test were applied, officers were within their rights

•but this was distinguished from Cloutier because this involved a strip search• the judge suggests that there should be legislation dealing specifically with strip searches

When can an officer affect an arrest in a dwelling house without a warrant?•Landry and Feeney are effective in illustrating the difference between pre and post-Charter principles

R v. Landry (1986)•although the case was decided in 86, it arose before the Charter came into effect• sets out the Common Law position in clear terms

•was based in crime control• in order for an officer to make an arrest, they needed

•reasonable, probable grounds that suspect committed an offence•reasonable, probable grounds that suspect was in the premises• to inform suspect they were entering the premises (often through yelling upon breaking the door)


R v. Feeney (1996)• characterizes the Landry warrantless arrest conditions as overly expansive• in spite of disagreement with Landry, Sopinka J. held that the officers didn’t even comply to the con-

ditions that it set out (they did not have probable grounds)•held: if there are no exigent circumstances and it is a dwelling house, officers must obtain warrant• resulted in the imposition of a new requirement in s. 529(1)

RACIAL PROFILING AND DETENTION

•in reality, value, prejudices, and biases do play a role in policing•cases will most often involve s. 9; right not to be arbitrarily detained or imprisoned•racial stereotypes often intersect with other stereotypes (e.g. gender, age)•most police agree that stereotypes play some role in their conduct•at what point does this profiling step over the line established in s. 15; protecting minority rights

R v. Brown (2003)• facts: Brown, a Toronto basketball player, was pulled over by the police, subsequently arrested for

DUI•defence: Brown was pulled over because he was a casually dressed, black man, not because he was

driving drunk• sought exclusion of breathalyzer evidence because it was obtained contrary to s. 9 rights

•ultimately, case was disposed on basis of the bias of trial judge•African Canadian Clinic intervened with the following

• racial profiling is where criminal activity is attributed to a group in society based on race, result-ing in the targeting of members of that group

R v. Simpson (1993)• facts: police stopped Simpson while exiting an unconfirmed “crack house”

•asked him to exit his vehicle, notice lump in his pocket, ask him to remove it, discover it is cocaine• the search constituted the ‘touching’ of his pant pocket

• this does amount to a detention•officer argued that the grounds for search were that Simpson was coming out of a crack house

• they could have shown proof that it was, but it is likely that they did not have any•emergence of the standard of “articulable cause”•held: at Common Law, an officer may only detain an individual when they have an articulable cause

•evidence was excluded•note: William Saffar of New York Times, argues that the real meaning of “articulable” is that it al-

lows the user to defer interpretation to a judge

R v. Mann (2004)• facts: police detained, an aboriginal man, arguing that he matched the description of suspect of

nearby B & E•upon searching, found significant quantity of marijuana


• the scope of the power to detain is addressed by the SCC•majority expresses preference for “reasonable grounds” over “articulable cause”

• they were already familiar with its usage in the context of arrest•held: the police officers did have “reasonable grounds” to conduct a “protective search”•note: the fact that the object was soft would negate the validity of such a search - the object was soft• two Charter sections are triggered

•10(a) - right to be informed of reasons for detention• court does not place a heavy burden on the officers in this regard•nevertheless, it was significant that this was mentioned

•10(b) - right to retain counsel and be informed of that right• the court does not address this issue out of the wish to not set a precedent allowing people to

call their lawyers in this situation• the facts of this case did not entirely lend themselves to handling this issue

CONFESSIONS: VOLUNTARINESS

•definition: a statement made, in an investigative setting, to a police officer or someone acting on be-half of the state

• it’s essential that the confessor know that they are speaking to such an authority•admissibility of a confession is determined in the voir dire

•the primary criteria in this determination is whether the confession was made voluntarily•confession must be shown to have been obtained in the proper manner, beyond a reasonable

doubt•a test of voluntariness will either be based on reliability or due process (seen in Boudreau)

•no reason to exclude a confession for lack of due process unless it lacks reliability•even today, officers are permitted to lie to the accused, within limits, in order to help obtain a confes-

sion•as the issue evolves in the cases, reliability begins to take precedence over due process

Boudreau v. The King (1949)•establishes the fundamental question of voluntariness in assessment of a confession’s admissibility

Rothman v. The Queen (1981)• facts: accused disclosed incriminating evidence to a disguised officer in prison•“privilige against self-incrimination” was deemed not to be relevant in the case

Clarkson v. The Queen (1986)• issue: the admissibility of a confession made by an accused while in an intoxicated state without the

benefit of counsel• reiterates the tension between reliability and due process•elaborates the s. 10(b) jurisprudence•sets the stage for Oickle

R. v. Oickle (2000)• facts: accused produced confession after very lengthy interrogation


• the court is forced to resolve the tension between reliability and due process•both threats and oppressive circumstances are deemed to vitiate voluntariness• court sees no qualitative difference between reliability and due process

• instead, there’s a spectrum of concerns in determining voluntariness• four categories of concern

1. were there threats and promises that could have overborne the will of the individual to make a choice

2. was there, in all the circumstances, oppression on the part of the authorities3. did the accused have an operating mind - were they capable of making a choice4. what was the nature of the police trickery

•majority and dissent agree on this analysis, but disagree on its application•dissent

• claim that the majority ignores the synergistic impact of the four categories•held: confession was allowed, Oickle was convicted

CONFESSIONS: THE RIGHT TO COUNSEL AND THE RIGHT TO SILENCE

•because of the accused’s lack of familiarity of what they’re allowed and not allowed to say, their s. 10(b) rights to counsel often become relevant

•Clarkson and Manninen illustrate the informational component of s. 10(b); police must inform them of the right, as well as assisting them in exercising the right

R. v. Manninen (1987)• facts: police arrested accused for store robbery•officers ignored his s. 10(b) rights•Lamer J. outlines two duties that officers have to the accused

•avail him/her of reasonable opportunity to exercise the right•cease questioning if accused has expressed intention to exercise the right

•held: accused rights had been infringed

R. v. Brydges (1990)• facts: accused was arrested on second degree murder, requested free legal aid, none available• resulted in the establishment of a telephone Legal Aid service to be made available to those accused• this was only established in Ontario

R. v. Prosper (1994)• facts: accused arrested on a Saturday afternoon for drunk driving

•exercised s. 10(b) rights, made 15 calls to different lawyers from a list•no lawyers were available•subsequently, Prosper blew a breathalyzer test over the limit

• there was no toll-free Legal Aid number in Nova Scotia (where this occurred) at the time•reveals the government’s concern not to spend funds on legal aid•dissent argues that it would be absurd to “hold-off” when there’s an urgency to obtaining the evi-

dence• in drunk driving cases, there is an urgency to obtain evidence; intoxication is ephemeral

•held: appeal allowed, acquittal restored


R. v. Hebert (1990)• facts: accused arrested on robbery charge, exercises 10(b), upon being advised, decides not to

make a statement, placed in cell with undercover cop who solicited incriminating statements• court agrees that, if exercise the right, it must be respected

•but here, Hebert exercises the right and ends up speaking anyway, only to the wrong person• court ruled that, if your behaviour is inconsistent with your exercising the right, you’re liable• court says this type of evidence is admissible unless cellmate subverts the right•dissent prefers a more binary approach to interpreting the right; you either have it or you don’t

R v. Osmond (2007, BCCA)•facts:

•accused of 1st degree murder, arrested on a Friday afternoon•exercised his rights to counsel, called, but the advice was insubstantial

• the operator who was on the phone that night could not remember the call•police thought that they had given him his right by allowing the phone call•gave two incriminating confessions over the weekend

• the case reveals the consequences of not building a program that is constitutionally insufficient•defence argues that it’s insufficient for the Brydges operator to tell you that you should remain silent•held: appeal allowed, new trial ordered

• judge had difficulty with the reliance on the confession, when they had the DNA evidence• it’s likely, in the new trial, that Osmond will be convicted based on the DNA evidence

R. v. Singh (2007)•answers some the questions left by Hebert • facts: Singh accused of second degree murder resulting from a stray bullet shot outside a pub

• requested his right to silence 18 times, eventually ended up speaking at officer’s request•officer said that he was going to get Singh to speak at some point•Singh did not say he was the shooter, but said enough to incriminate himself

•we see how, as a result of Hebert, the right is almost illusory•defence claims no difference between silence rule and s. 7 analysis• court responds, if voluntariness test is not met, you have a right to silence

• therefore, the two tests are redundant•held: appeal dismissed, police are permitted to actively “persuade” accused to give up their right to

silence• the right to silence is “a right not to speak, not a right not to be spoken to,” (Charron J.)

•dissent: Singh’s right to counsel was undermined each of the 18 times• split: 5:4, evidence of a healthy debate

A CASE STUDY ON TRAFFIC STOPS

•essentially, a traffic stop does violate the driver’s rights under ss. 9 and 10(b)• thus, the Crown is forced to use s. 1 to justify these breaches

•concerns some of the more complicated and litigated sections of the CC•structured around three offences

1. Impaired Driving - operating a motor vehicle while impaired•must prove impaired driving, indicia of impairment

2. 0.08 - driving while your blood alcohol is in excess of 0.08 mml/L


•only admissible if the test was taken within the first two hours after driving•afterwards, the courts must bring an expert to deem that the blood alcohol would have been

at an illegal level while driving• if it’s impaired 0.08, there’s a lot to litigate

3. Refusal - a refusal to provide a blood or breath sample when requested•courts are very reluctant to defend excuses• this is much easier to defend the 0.08 offence

R. v. Therens (1985)• facts: accused collided with tree, officer demanded breathalyzer at station which he provided, was

never informed of his right to counsel• foundational case around ‘what is detention’•here the question was whether, while police were investigating him, he was detained•courts ruled for a broad purposive interpretation of 10(b)•held: evidence excluded under s. 24(2)

R. v. Thomsen (1988)• issue: does use of roadside screening device constitute detention?•court says that if you’re stopped and there’s a demand that you blow into the screening device, you

do so forthwith• the use of those words is implies a nullification of the right to counsel• thus, parliament has decided that they don’t want to give suspected intoxicated drivers a right to

counsel• the issue was whether or not that breach can be justified under s. 1

• instead, they deemed that, given the greater social evil of impaired driving, it was justified

R. v. Hufsky (1988)• facts: Hufsky was stopped as part of a check-stop• issue: whether an officer randomly stopping a vehicle breaches s. 9 rights•court says it is a breach, but it’s justified because it’s part of a well-advertised program designed to

combat a social ill

R. v. Ladouceur•here, the stop was completely arbitrary• judges used the same justification as Hufsky, although there was no well-advertised program•Sopinka J. (dissenting) states that this case is the last straw; decision is under the pretext of empower-

ing police• split: 5:4

R. v. Obranski; R. v. Elias (2005)• issue: whether asking about alcohol consumption or administering sobriety tests breaches 10(b)

• if yes, does s. 1 justify it• court agrees that asking, without informing 10(b) rights, offends Charter•Charron J. (majority) says it is justified by s. 1• the judges invoke a law that isn’t even at issue in the case• this represents a serious misstep on the behalf of the Supreme Court

•questions their intent


Prosecution of Crime and the TrialINTRODUCTION TO THE TRIAL PROCESS•wrongful convictions are one of the most troubling aspects of our legal system

•problems contributing to this are pervasive throughout the system•sometimes the overeagerness of the Crown to win cases results in wrongful convictions

• it’s often forgotten that the aim is not to ‘win’•Crown must act as an officer of the court

Preventing Wrongful Convictions• in 2002, the CC was amended so that the process of obtaining a reviewing was more straightfor-

ward (Ministerial Review: Truscott)•upon handling one of these cases, the court may admit, remit, or dismiss the application

Legal Aid• the country is in a state of crisis when it comes to legal aid•currently, Ontario is one of the better provinces, with BC being quite poor•right now, it is even difficult for middle class citizens to secure legal aid

U.S.A v. Burns and Rafay (SCC, 2001)•here, a citizen is being extradited for a criminal matter to face the death penalty• two stages of extradition

•sitting before a Canadian judge to determine whether or not the charge would be criminal in Canada

• if it is, the Minister would have to allow extradition•held: the minister can say that they will only extradite if they don’t impose the death penalty

Judging, Stereotyping, Racism• in RDS v. The Queen a judge made comments regarding the prejudice of the police officer

•at SCC, majority found that this was a case of contextualized judging

R. v. Marshall (NS, 1972)pp 185

R. v. Marshall (NSR, 1983)

Royal Commission on the Donald Marshall Jr. Prosecution (1989)pp 198

THE ROLE OF COUNSEL

Crown and Defence


•on either side, one must act as an officer of the court•you’re duty bound to uphold the administration of justice•not mislead the court

•actively or passively•act in a responsible and respectable manner•ensure that the court is aware of the applicable law•be fair and honest in summarizing the evidence

• to increase credibility, it’s useful to cite opposing authority•although cases become very adversarial and lawyers become highly antagonistic, you have a duty

of respect, collegiality, and honesty to other members of the profession

Distinctions Between Crown and Defence

The Crown•duty bound to ensure that justice is done•duties (outlined on pp 221 of RHT)

•work effectively with police•ensure security of confidential informers•discontinue trial when it endangers the security of a confidential informant• release all relevant evidence to the court in order for justice to be done

Defence Counsel•unlike Crown, defence’s duty is to one person•“fearlessly raise every issue to advance every argument, to ask every question, however dis-

tasteful, that you think will help your client’s case”•a large part of the responsibility is to prepare adequately• try to talk all relevant witnesses (for both sides)

R. v. Stinchcombe (1991)•emphasizes the Crown’s obligation to make a full disclosure•as a fair trial right, it’s connected to ss. 7 and 11(d)• there are cases when a judge will stay the proceedings in response to the Crown’s lack of coopera-

tion, raised in R. v. O’Connor (1995)

Basi and Virk (BCSC, ongoing)•defence discovered that disclosure had not taken place

PRE-TRIAL RELEASE

Plea Bargaining• today, most accused are unrepresented

•here the court must ensure that there is not a pre-mature plea• if you’re representing, it’s your duty to ensure that your client’s defences are heard

Bail• important to secure for the client because

•you won’t know when the trial will be held, it might be a long time


•it is difficult to communicate with your client while in detention; heavy supervision• three grounds by which to detain people

•primary: attendance at trial• secondary: protection and safety of the public• tertiary: administration of justice

•s. 515(1) states that the onus is on the Crown•under a s. 469 offence, the accused may not get bail from a judge•s. 515(6) outlines where a client is on bail and they’re charged with another offence•s. 515(2) outlines a ladder of conditions where the onus is on the Crown

•what Crown must prove in order to justify detention•s. 515(4) sets out other conditions that can be put into orders for release

R. v. Pearson•questions the constitutionality of having a reverse onus on offences outside of s. 469• court holds that s. 515(6)(d) does not violate s. 11(e) of the Charter

R. v. Morales•added the tertiary ground to give some structure to situations in which there is difficulty in justifying

the release of a person solely on the terms of public interest (s. 515(10)(c))• Lamer J. argues that “public safety” should be justified, doesn’t violate s. 11(e)

R. v. Hall•argues that the tertiary ground is unconstitutional• they apply the Oakes test to come to their conclusion• court finds that only the first few words, “on any other just cause,” are unconstitutional

CLASSIFICATION OF OFFENCES AND PRELIMINARY INQUIRIES

SEE HANDOUT FOR THIS

JURIES

Generally• juries are composed of 12 people

•number must not fall below 10•alternates will be selected to ensure this

• they’re typically under compensated•generally, there will only be a jury in more serious offences•eligibility

•dealt with by provincial law under the Jury Act•must be Canadian citizen of majority age• ineligible if convicted with criminal offence, in the field of law, over 65, and others

• jury’s verdict must be unanimous


Jury Selection•160 people called in through mailed notices, developed from phone lists• it is only possible to change the array on the grounds that it’s been subject to impartiality

•an unrepresentative pool will create an unrepresentative jury•each member is called to the front of a room•Crown and Defence are each given a number of peremptory challenges (s. 634)

R. v. Kent et al. (1986)•defence argued that the jury did not sufficiently represent native community

R. v. Pizzacalla (1992)• trial was found to be partial due to a gender imbalance•Crown was found to have attempted to create an all female jury against the male accused•Crown used stand-asides to achieve this - the practice is no longer used (as of R. v. Bain)

R. v. Biddle (1995)•again, all female jury against male accused•disputes actual effect of gender imbalance, but is concerned with the perception

Challenge for Cause (s. 638)•allows prosecutor or defence to unlimited challenges based on certain criteria (including impartiality)

R. v. Parks (1993)• further opens the door for dealing with impartial juries• trial verdict was overturned because judge failed to allow a challenge for cause• the defense wanted to ask questions about whether a juror might be biassed due to the type of of-

fence and the accused’s race•on appeal, the questioning regarding the type of offence (drugs) was not allowed, but race was

deemed okay•generally, courts are reluctant to expand the right of questioning beyond the narrow ambit of where

there is widespread discrimination of a particular segment of society that might bring about impartial-ity (see R v. Find)

R. v. Williams (1998) [defended by a UVic grad]•also dealt with race•new trial was allowed


Documents

Criminal Law Process - University of Victoriaweb.uvic.ca/~lssweb/wp-content/outline_uploads/6-Criminal_Law_Fall... · R. v. Manninen (1987) 16 R. v. Brydges ... •one of the leading