mod 6 - Criminal Procedure

Question 1

Criminal procedure

Answer 1

• criminal procedure is the law that sets the rules as to how criminal offences can be investigated, prosecuted and tried

Question 2

A. Investigation

Answer 2

• responsibility for the investigation of crimes rests largely with the police
• most investigations start with a complaint from a member of the public or as a result of the police themselves detecting evidence that a crime has been perpetrated
• police are given very broad powers of investigation and they can question witnesses and suspects, detain individuals, search places, seize items
• The law of criminal procedure seems to constrain the exercise of these powers
• if the police determine that a crime has probably been committed they are entitled to lay charges and arrest suspects

Question 3

B. Prosecution

Answer 3

• responsibility for the prosecution of crimes rest with the Crown attorney’s offices
• crowns are quasi-judicial officers whose task is to achieve justice, not to obtain a conviction (although they are frequently the same thing)
• crowns screen cases and prosecute only those cases that are in the public interest and for which there is a reasonable prospect of conviction
• prosecutor must disclose, all the evidence gathered in the police investigation, to the accused in advance of trial

Question 4

C. Trials

Answer 4

• in Ontario there are two trial courts: the Ontario court of justice and the superior court of justice
• most trials are before the judge alone in the Ontario court of justice
• some more serious charges are before the judge alone or the judge and the jury in the superior court of justice
• In a judge alone trial, the judge decides the facts
• in a jury case the jury decides the facts, the judge directs them as to the relevant law

Question 5

Trial options

Answer 5

• trial options are determined by the nature of the alleged offence
• there are three types of offences: Indictable, summary conviction, and hybrid

Question 6

Indictable

Answer 6

• indictable: felony offences, most serious (accused has right to decide if they want to be tried by judge or jury alone)
• accused sometimes has the right to a preliminary inquiry (court process meant to screen out frivolous prosecutions and can afford the accused an opportunity to probe the crown’s case, if a preliminary is held, the trial occurs in the superior court)

Question 7

Summary conviction

Answer 7

• summary conviction: the most minor offences (accused has no options, they will be tried by the judge alone)
• example public nudity

Question 8

Hybrid

Answer 8

• hybrid: can be tried either as indictment or summary conviction (prosecution gets to choose)
• once prosecution chooses, the accused has the trial options

Question 9

Defense (fights for accused)

Answer 9

• normally performed by private lawyers, personally paid by the accused or legal aid
• a narrow roll, directed exclusively at protecting the clients interests (subject to duties owed to the court)
• no duty to disclose defence case to prosecution

Question 10

A. Arbitrary detention

Answer 10

• the police often detain people when investigating offences
• meaning they assume control over the movement of a person either psychologically or physically
• little statutory regulation of this
• s. 9 of the charter protects against arbitrary detention
• arbitrary detentions occur lawfully when police stop all individuals to see if they are drinking and driving

Question 11

Arbitrary detention - exceptions

Answer 11

• however, the police do have the power to detain for investigative purposes when the detention is not arbitrary but also not authorized by powers of arrest

Question 12

Investigative detention

Answer 12

• police have the power to detain for investigative purposes when: they have reasonable grounds to detain, and the detention is reasonably necessary in the circumstances: the overall decision to detain is a reasonable one

Question 13

Reasonable grounds to detain

Answer 13

• A reasonable suspicion in all the circumstances that a person is connected to a particular crime
• there must be a clear nexus between the individual to be detained and a recent on-going criminal offence
• cannot be based on a hunch, or mere intuition
• not a high standard (higher than mere suspicion but lower than reasonable grounds to believe)

Question 14

detention must be reasonably necessary in the circumstances

Answer 14

• the detention must be of brief duration and cannot become a de facto arrest with all its accompanying restraint

Question 15

R. v. Mann

Answer 15

• two police officers received a radio dispatch message detailing a break and enter in progress in a neighbouring district of downtown Winnipeg
• suspect was described as a 21-year-old aboriginal male, approximately 5‘8“ tall, 165 pounds, clad in a black jacket with white sleeves
• as the officers approached the scene of the reported crime, they observed an individual walking casually along the sidewalk
• the officers stopped the appellant, Philip Mann, and asked him to identify himself
• they testified that the individual matched the description of the suspect to the tee (was not the suspect)
• during the pat down search, one officer felt a soft object in his pocket, the officer reached in to the pocket and found a small plastic bag containing marijuana (and two pills)
• The appellant was subsequently arrested and cautioned for the offence of possession for the purpose of trafficking marijuana
• they concluded they were reasonable grounds for protective search of the appellant
• however, the decision to go beyond this initial pat-down and reach into the appellant’s pocket was an unreasonable violation of the appellant’s reasonable expectation of privacy
• the seizure of the marijuana from the appellant was unlawful in this case

Question 16

Investigative search

Answer 16

• a power of search incident to investigate detention exists, although searches are not permitted in all circumstances
• the officer must reasonably believe that his or her own safety, or the safety of others, is at risk
• the search must be confined in scope to an intrusion reasonably designed to locate weapons, not evidence
• the search must also be carried out in a reasonable manner

Question 17

B. Search and seizure

Answer 17

• police often search premises, places and people during investigations
• when they find items or information of interest, they seize it for use in a prosecution
• search and seizures can adversely impact a person’s privacy and liberty
• as a result, the law exhibits a preference for prior judicial authorization: warrants

Question 18

Warrants

Answer 18

• many provisions in the criminal code authorize searches and or seizures, usually but not always under warrant
• warrants are issued by judicial officers based on reasonable grounds to believe that an offence has occurred and that evidence of the offence will be found at the location sought to be searched
• reasonable grounds exists where credibly-based probability replaces suspicion (this does not require proof even on a balance of probabilities, if the inference of specific criminal activity is a reasonable inference from the facts, the warrant can be issued)

Question 19

Reasonable expectation of privacy

Answer 19

• a warrant is only required, however, where police conduct will invade a person’s reasonable expectation of privacy
• not every act of search or seizure does that (e.g. searches of public hydro records, the common hallway of some apartment buildings)
• determining when someone has a reasonable expectation of privacy can be very controversial (e.g. emancipation’s from home, records of internet usage)

Question 20

Warrantless searches

Answer 20

• the law also authorizes the police to conduct warrantless searches in a number of situations
• the most common and probably most significant situation is when a person is searched incident to one’s arrest

Question 21

Search incident to an arrest

Answer 21

• Cloutier v. Langlois SCC “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”
• no requirement for reasonable grounds to believe evidence will be found
• must be a lawful arrest
• must not be conducted in an abusive fashion
• search must be incidental to arrest: the police must be attempting to achieve some valid purpose connected to the arrest

Question 22

Valid purposes for a search include:

Answer 22

• discovery of an item that may be a threat to the safety of the police, the accused or the public
• discovery of an item that may facilitate escape
• discovery of evidence of the offence for which the accused is being arrested, or prevention of its destruction

Question 23

Search incident to an arrest - more rules

Answer 23

• the police can generally search, incident to arrest and without warrant, almost anything within arrestee’s immediate control (e.g. bags, car, cell phones, but not one’s home)
• no firm time limit on when the search can be conducted, but it is usually shortly after the arrest
• a frisk search of the person is generally permitted, but more invasive searches, like strip searches, are only permitted if the police have reasonable grounds for concluding that the search is necessary in the particular circumstances of arrest

Question 24

R. v. Caslake

Answer 24

• the appellant’s car was observed by the side of the highway by officer Kamann
• the officer parked behind the car, got out of his vehicle and saw the appellant in tall grass off the roadway
• the appellant said he was peeing the in bushes
• the officer went to the bushes after a saw a plastic bag containing marijuana
• he then pursued and overtook the appellant’s car and arrested him for possession of narcotics
• a few minutes later an RCMP officer arrived on the scene and took custody of the appellant (6 hours after the arrest, the RCMP searched the appellant’s car without a warrant or the appellant’s permission)
• he found cocaine and money
• according to his testimony, the search was conducted pursuant to an RCMP policy which requires that an inventory be taken of the condition and contents of a vehicle that has been compounded by the RCMP during the course of investigation
• if the RCMP officer had searched the car for the purpose of finding evidence which could be used at the appellant’s trial on the charge marijuana for the purpose of trafficking, this would have been well within the scope of the search incident to arrest
• however, this was not the reason for the search

Question 25

C. Right to counsel

Answer 25

• section 10(b) of the Charter guarantees the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right
• counsel acts as a buffer between the individual and the more powerful state
• counsel can advise as to the individual’s rights and obligations, how the individual should exercise their rights, and how the individual might be able regain their liberty

Question 26

What must the police do?

Answer 26

• informational duties (what the detainee must be told)
• implementational duties (what must be done to enable the detainee to exercise their rights, conditional on reasonable diligence of detainee)

Question 27

Informational duties

Answer 27

• on arrest or detention, the police must advise the detainee:
• that they have the right to retain and instruct (consult) with counsel
• that they have the right to retain and instruct counsel without delay, or as soon as reasonably possible
• of the opportunity to obtain counsel free of charge where they meet the prescribed legal aid financial criteria
• of the opportunity and means to access duty counsel

Question 28

Duty to facilitate

Answer 28

• the police must facilitate access to counsel and provide a reasonable opportunity for the detainee to contact counsel
• this usually includes the duty to offer the detainee the use of a telephone at the earliest reasonable opportunity
• this can sometimes include the duty to afford the detainee an opportunity to make more than one phone call and call more than one person
• this includes the duty to afford the detainee an opportunity to consult with counsel in private

Question 29

Duty to hold off

Answer 29

• the police must cease questioning or otherwise attempting to elicit evidence from the detainee until she has had a reasonable opportunity to retain and instruct counsel
• police are entitled to question a detainee once they have had a reasonable opportunity to retain and instruct counsel

Question 30

Reasonable diligence

Answer 30

• duties to facilitate and hold off are conditional upon detainee exercising reasonable diligence in availing herself of her rights
• detainee must indicate that they want to contact counsel
• detainee must also make resealable efforts to contact counsel of choice

Question 31

D. Right to Silence

Answer 31

• the police will sometimes exert considerable pressure on the detainee to speak and incriminate themselves
• a detainee, however, has a constitutional right to choose whether or not to speak (right to remain silent)
• not an absolute right can be discharged only by waiver
• the police can question the detainee after they have had the opportunity to speak to counsel
• asserting the right to silence does not mean questioning must stop
• the police can use legitimate persuasion to encourage the detainee to speak (Hebert)

Question 32

Right to silence - 2

Answer 32

• what constitutes legitimate means of persuasion is determined by the common law voluntariness rule (Oickle)
• generally speaking, the police are not entitled to:
• threaten a detainee with violence or other adverse consequences if they do not confess
• promise a detainee something concrete if they confess (bail, reduced charges)
• create an atmosphere of oppression
• deprive the detainee of an operating mind (provide detainee with alcohol)
• play a shocking dirty trick (pretending to be a lawyer)

Question 33

Right to silence - 3

Answer 33

• police are not required to inform the detainee of the right to silence, this is counsels job
• detainee does not have the right to have a lawyer present during questioning

Question 34

E. Exclusion of Evidence

Answer 34

• a person whose charter rights are breached can apply to have evidence obtained in connection with the breach excluded from trial
• the accused bears the burden of showing that their rights were breached and that exclusion from evidence is the appropriate remedy
• a charter breach does not necessarily result in the exclusion of evidence
• in considering whether to exclude evidence the question is whether admission of the evidence could bring the administration of justice into dispute

Question 35

The exclusion of evidence - Grant

Answer 35

• section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns
• the goal is to maintain the integrity of, and public confidence in, the justice system in them long term
• the focus is not only long term, but prospective
• when faced with an application for exclusion, a court must assess, (1) the seriousness of the charter infringing state conduct, (2) the impact of the breach on the charter protected interests of the accused, (3) and society’s interests in the adjudication of the case on its merits

Question 36

Exclusion of evidence - summing it up

Answer 36

As a general rule, evidence is more likely to be excluded when

• the police ignore established limitations on their power
• they significantly (and unlawfully) interfere with the privacy, dignity, autonomy, or liberty of the accused
• the resulting evidence is of questionable reliability