The Charter and Criminal Investigations Flashcards
S8 of charter
● Section 8 of the Charter: Everyone has the right to be secure against unreasonable search and seizure.
○ protects ‘reasonable expectations of privacy’ (R. v. Edwards, Supreme Court 1996):
What are factors in reasonable expectation of privacy
1) presence at the time of the search;
2) possession or control of the property or place searched;
3) ownership of the property or place;
4) historical use of the property or item;
5) ability to regulate access;
6) existence of a subjective expectation of privacy; and
7) objective reasonableness of that expectation.
8) The list is non-exhaustive. The reasonableness of the expectation is to be assessed on the totality of the circumstances.
Describe requirements for search and seizure to meet s8
● S/S must usually must be permitted by prior and written authorization (a warrant) provided by someone impartial and capable of acting in a judicial capacity to be considered reasonable.
○ Based upon reasonable and probable grounds that the evidence, items, or persons to be searched or seized will be found at the location in question. → not just a hunch
○ An investigative authority cannot provide itself with its own written authorization, since the authority cannot be deemed impartial or capable of acting in a judicial capacity in such circumstances.
○ The search must also be carried out in a reasonable manner (i.e., not in an abusive fashion).
Exceptions where a warrant is not needed for a search/seizure to meet s8
● Hunter v. Southam → A search conducted without a warrant is prima facie unreasonable.
○ Exceptions where a warrant is not needed:
○ 1) Consent, the accused must be informed by the investigative authorities of his constitutional right to refuse consent, and must be made aware of the potential consequences of consent (e.g. evidence uncovered during a search can be used against the accused subsequently in court).
○ 2) Exigent circumstances - where the evidence would be lost, or harm would result to the public, if the police took the time and effort to get a warrant.
○ 3) Plain view → but The obtaining of the plain view has to itself be constitutional
○ 4) Search incidental to arrest, must be pursuant to a valid objective - Cloutier v. Langlois
■ assuring officer safety
■ removing objects that can be used to escape
■ discover evidence for the crime that the accused is already charged with
What happens if a search warrant is partially based on tainted, or unconstitutionally obtained information?
● Judge must excise that info
● Must then assess the info that is left, and decide whether it provide reasonable and probable grounds to justify a search and seizure.
● If info left isnt enough to be reasonable probable grounds, S/S violates s8
What places have which level of reasonable expectation of privacy based on case law?
● Searches of a private residence, very high scrutiny
● Searches that invade a person’s bodily integrity (e.g. strip searches, taking a DNA sample) also attract high scrutiny
● There is a reasonable expectation of privacy in motor vehicles, but not as high as for private residences
● There is a lower expectation of privacy for border crossings and airport terminals. → legislation s98 allows search
● There is a lower expectation of privacy in schools
● There is an expectation of privacy in hotel rooms.
● There is NO expectation of privacy in discarded trash
* If a regular person makes a discover and brings to policy, s8 is not applicable
Requirements for search and seizure of cell phones?
Searching Cell phones:
● Could have exigent circumstances
● Otherwise, cloutier/langlois applies - search incident to arrest.
–> Search incidental to arrest, must be pursuant to a valid objective - Cloutier v. Langlois
■ assuring officer safety
■ removing objects that can be used to escape
■ discover evidence for the crime that the accused is already charged with
● BUT you can only search recent stuff. Not clear what is most recent
● Police must keep log of what they searched. Must document why they searched it. Log is made available for review.
What does the informational component of the right to counsel involve?
The Informational Component
1) Detainee must be informed of access to Legal Aid, if meets the prescribed financial criteria. (R. v. Bartle)
2) Detainee must be informed of access to duty counsel, who will provide free, immediate, and temporary legal advice, provided such services exist in the jurisdiction. If a toll free number for duty counsel exists, it must be provided. (R. v. Bartle)
3) The info provided must be timely, comprehensive, and comprehensible. (R. v. Pozniak)
4) No constitutional requirement to determine whether the detainee understands his or her rights, unless that detainee provides positive indications of otherwise. (R. v. Evan)
5) Fundamental relationship between the right to counsel and the right to be informed of the reasons for arrest or detention under s.10(a).
a) If there has been a fundamental or discrete change in the purpose of the investigation, one involving an unrelated or more serious offence, the detainee must again be informed of the right to counsel. (R. v. Evans)
6) If an accused initially expresses a desire to consult counsel, but indicates a change of mind, police must inform him of his right to counsel again. (R. v. Prosper)
What does the implementational part of the right to counsel involve?
1) Obligation to provide a reasonable opportunity does not arise until the detainee expresses a desire to exercise right (R. v. Manninen)
2) Until the reasonable opportunity has been provided, police may not continue to question or otherwise elicit incriminating evidence from the detainee. (R. v. Manninen)
3) Police may question without the reasonable opportunity where there exist exigent circumstances. (R. v. Prosper)
a) Mere evidentiary or investigate expediency does not amount to exigent circumstances.
4) Jurisdictions are not required to implement a duty counsel system. Where none exists though, the meaning of a reasonable opportunity to consult counsel will be affected. The police may be required to wait until the next day to continue their investigations (for a breathalyzer, this might be a big deal)
5) If accused is not reasonably diligent about exercising his right to counsel, the police duty to hold off until a reasonable opportunity is provided is suspended. (R. v. Tremblay)
6) Detainee must be provided the opportunity to consult counsel in privacy, whether or not the detainee expresses a desire for privacy. (R. v. Playford (Ont. C.A.))
7) Detainee may waive right to counsel. Standard is high. Must be clear and unequivocal, free and voluntary, and made with full knowledge of the rights being surrendered. (R. v. Smith)
Disclosure requirements under s11(d)
Interpreted as part of the right to full answer and defence under s. 11(d)
● Disclosure must include not only inculpatory evidence, but also exculpatory evidence.
● Only concerned with evidence directly in possession of the Crown.
○ Evidence in the possession of third parties is governed by special rules in the CC. (e.g. police disciplinary records).
● Police have duty to take reasonable steps to preserve evidence for disclosure to Crown.
○ Greater potential relevance, the more likely the police will be under a duty to preserve.
○ If Crown and police either fail to preserve, or if evidence in their possession becomes lost, they must provide a reasonable explanation for the loss.
○ Otherwise, there may be a violation of the right to disclosure.
● In order to establish a violation of the right to disclosure, the accused must establish that there was a real possibility that:
○ 1) the evidence could have been used in meeting the case for the Crown or
○ 2) that the evidence could have been used to advance a defence or
○ 3) that the evidence could have affected a decision as to the conduct of the defence (e.g. whether or not to put the accused up on the stand).
● Remedy:
○ If the failure to disclose causes irreparable prejudice to the accused’s right to full answer and defence, a stay of proceedings is appropriate.
○ Otherwise, send back for re-trial if it only affected procedural fairness during the first trial.
Requirements to establish a violation of the right to disclosure of the accused
● In order to establish a violation of the right to disclosure, the accused must establish that there was a real possibility that:
○ 1) the evidence could have been used in meeting the case for the Crown or
○ 2) that the evidence could have been used to advance a defence or
○ 3) that the evidence could have affected a decision as to the conduct of the defence (e.g. whether or not to put the accused up on the stand).
Remedy for violation of disclosure rules
○ If the failure to disclose causes irreparable prejudice to the accused’s right to full answer and defence, a stay of proceedings is appropriate.
○ Otherwise, send back for re-trial if it only affected procedural fairness during the first trial.
Describe Implied Undertakings
The Implied Undertaking - Disclosure is given to the defence only for the limited purpose of defending the accused during prosecution.
● Disclosure doesnt become property of accused or defense lawuer. Remains property of crown.
● If someone wants to switch council, new lawyer will need to contact you or crown can decide to give it to them
● Bad idea to give personally to accused because they might not give it back
● Give them another avenue by which they can get the evidence
Major charter issues in crim investigations
Search and seizure (s8)
Right to counsel (s10(b))
Right to disclosure (s11(d))
