The Criminal Trial Flashcards
R. v. Sinclair
facts
December 14, 2002 Trent Terrence Sinclair was arrested in Vernon, BC and charged with second-degree murder. Sinclair declined to speak with a lawyer after being advised of his right to retain any lawyer of his choosing
At the police station, he was allowed to contact a lawyer of his choice, and he spoke to his lawyer
Later that afternoon, a police sergeant began a video interrogation of Sinclair. The accused stated on a number of occasions that he had nothing to say and wanted to speak with his lawyer again.
The police officer told Sinclair that he had the right to choose whether to talk or not, but refused his request to speak with a lawyer again.
The officer continued questioning Sinclair for nearly five more hours. During this time, Sinclair implicated himself in the murder.
he was placed in a cell with an undercover police officer and made further incriminating statements to that officer. Sinclair later accompanied police to the location where the victim had been killed and participated in a video re-enactment of the crime.
Legal issue
Have police infringed Sinclair’s rights as guaranteed by the Charter’s s. 10(b) which ensures “that people have a chance to challenge the lawfulness of an arrest or detention”
Decision
In a 5–4 judgment in October 2010 the Supreme Court of Canada dismissed Sinclair’s appeal.they decided that the charter does not guarentte the right to have a lawyer present during an interrogation
section 8 of Charter
right to be free from unreasonable searcha and seizure, must not be arbitrary and must be based on reasonable and probable grounds
r v jordan (2016)
charged with drug possession for the purpose of trafficking, argued that he waited too long (49.5 months) s. 11(b) Charter right “to be tried
within a reasonable time” had been violated.and the SCC agreed
r v Fearon
Kevin Fearon arrested in connection with armed robbery. police officer conducted a pat down search, found a cell phone in Mr. Fearon’s pocket. cell phone was not password-protected or locked. officer examined the contents of the cell phone and found photographs of a gun and cash as well as an incriminating text message. The cell phone was searched again without a warrant at the police station to determine to whom the text message was sent. The examination showed that it was only a draft that had not been sent to anyone. Months later a warrant was obtained and another search conducted, but this
yielded no new evidence.
At trial, Mr. Fearon argued that the first two
examinations of his phone violated his s. 8(right to be protected against unreasonable search and seizure)
rights and that the evidence gathered
through these searches should be excluded
under s. 24(2) (to get rid of any evidence deemed inadmissable). The trial judge found that the
warrantless searches did not constitute a
breach of his rights under s. 8 of the Charter,
and the photos and text message were
admissible as the search of the cell phone
was incident to Mr. Fearon’s arrest. The
accused was found guilty of robbery with
a firearm and related offences.
In a split decision, the appeal was dismissed
and the evidence against Mr. Fearon was
ruled admissible.
r v patrick
Police in Calgary suspected Russell Patrick was operating an ecstasy lab in his home. On six separate occasions in December 2003, they seized several green garbage bags located inside open garbage cans that Patrick had placed for collection adjacent to a public alleyway behind his house. The police did not have to step onto Patrick’s property to retrieve the bags, but they did have to reach over his property line to retrieve them. In four of the bags, police found items indicating an ecstasy lab operation and used this evidence to obtain a search warrant for Patrick’s home. The officer
with the search warrant remained outside until he was advised that the home was secure and safe to enter.
More evidence was seized during the search; Patrick was arrested and charged with producing, possessing,
and trafficking in a controlled substance.
At his trial in 2005, Patrick argued that his s. 8 Charter right had been violated and testified that he had
asked to see the warrant. The officer claimed he did not recall this request. The trial judge rejected Patrick’s
claim, finding the search of his home lawful, and found him guilty on all three charges.
Patrick appealed his conviction In a 7–0 judgment
on April 9, 2009, the SCC rejected Patrick’s appeal.
r v Am
the principal of a Sarnia high school issued a standing invitation to the police to bring sniffer dogs into the school if such dogs
were ever available. The police took advantage of this invitation on a few occasions. On November 7, 2002,
three police officers and the sniffer dog arrived at the school and asked the principal for permission to
conduct a search for drugs; the principal gave them permission. The officers then conducted a warrantless
and random search of the school. Prior to their arrival, the principal was not aware that the police would
be conducting a search on that day.
Over the public address system, the principal instructed the students to remain in their classrooms
while the search was conducted; the search took nearly two hours. During a search of the gymnasium, the
sniffer dog showed interest in an unattended backpack lying against the wall. An officer searched the bag
and found a quantity of marijuana, psilocybin (magic mushrooms), and drug-related paraphernalia. The
owner of the backpack, A.M., was arrested and charged with possession for the purpose of trafficking in
respect of both drugs.
At trial in Youth Justice Court, A.M. argued that the evidence seized should be excluded because his s. 8
Charter rights, protection against unreasonable search and seizure, were violated. The trial judge accepted
this argument and A.M. was acquitted of the charges on June 9, 2004. The Crown appealed this decision,
and the appeal was heard ,the Ontario
Court of Appeal dismissed the Crown’s appeal and affirmed the trial judgment.
r v grant
Mr. Grant, a young black man, was walking down the street when he came to the attention of the two plainclothes officers. As they drove past, Mr. Grant stared at them and started to fidget with his coat and pants, prompting the officers to request that the uniformed officer stop and speak with Mr. Grant to determine if there was any cause for concern. The uniformed officer approached Mr. Grant on the sidewalk and requested that he provide identification. Mr. Grant was behaving
nervously and was about to adjust his jacket
when the officer asked Mr. Grant to keep his hands in front of him. After observing the exchange from their car, the two plainclothes police officers approached the pair on the sidewalk and identified themselves as police officers. The three police officers blocked Mr. Grant’s path on the sidewalk and asked if he was in possession of anything that he
shouldn’t be. Mr. Grant told the police that
he was in possession of “a small bag of
weed” and a firearm. At this point the officers arrested and searched Mr. Grant, seizing a bag of marijuana and a loaded gun. They advised him of his right to counsel and took him to the police station.
Mr. Grant alleged that his rights under ss. 8(search and seizure) , 9 (arbitrarily detained or imprisoned) and 10(b) (imposes a duty upon the police to provide information and access to a legal aid lawyer if needed, including help in contacting them.) of the Charter had been violated. The trial judge found that Mr. Grant was not detained before his arrest and that ss. 9 and 10(b) of the Charter were not infringed. The gun was admitted into evidence and Mr. Grant was convicted of firearm offences. Mr. Grant appealed the decision to the SCC. The SCC held that Mr. Grant was psychologically
detained when he was told to keep his hands in front of him and when the police officers stopped him from walking away. As a result, Mr. Grant was arbitrarily detained in violation of s. 9 of the Charter. The right to counsel arises immediately upon detention and the police failed to notify Mr. Grant of his right to speak to a lawyer before they began the questioning that led to discovery of the firearm. Therefore, the majority of the SCC concluded that Mr. Grant was also denied his right to counsel in violation of s. 10(b) of the Charter.
THE GRANT TEST –
WHETHER EVIDENCE
SHOULD BE EXCLUDED
UNDER S. 24(2)
After determining that Mr. Grant’s Charter
rights were violated, the court addressed the
application of s. 24(2) of the Charter.
created a new three-part test to
determine whether admitting evidence
obtained by a Charter breach would damage the reputation of the justice system.
- The seriousness of the Charter-
infringing state conduct
This inquiry focuses on the severity of the state conduct leading to the Charter breach. It includes an analysis of whether the breach was deliberate and whether the
officers were acting in good faith. The more severe or deliberate the police conduct that led to the Charter violation, the more likely
the evidence will be excluded.
In Grant, the SCC ruled that the police did not deliberately intend to illegally detain the accused. Furthermore, the court found no evidence that the accused was
a target of racial profiling or any other discriminatory police practices.
- The impact of the breach on the Charter-
protected interests of the accused
Depending on the Charter right engaged,
this could include an analysis of the
intrusiveness into the person’s privacy, the
direct impact on the right not to be forced
to incriminate oneself, and the effect on the
person’s human dignity. The more serious
the infringement on the accused rights,
the greater the likelihood the admission
of the evidence would undermine the
justice system.
In Grant, the court concluded that the
impact of the Charter breach on Mr. Grant’s
protected interests was significant; however,
the breach was not at the most serious
end of the scale to warrant excluding the
evidence of the marijuana and the gun.
3. Society’s interest in the adjudication
of the case on its merits
This inquiry focuses on how reliable the
evidence is in light of the nature of the
Charter breach, the importance of the
evidence to the Crown’s case and the
seriousness of the offence.
In Grant, the SCC held that the firearm was
highly reliable evidence and essential to
uncovering the truth in the case.
r v hart - mr big operations
The police were convinced that Hart had killed his daughters, but they did not have sufficient evidence to charge him. The investigation subsequent-ly went cold. Two years later the police decided to target Hart in a Mr. Big operation. According to the Supreme
Court, these operations follow a familiar script. First, undercover officers approach the suspect and begin
to socialize and work together. Second, over a period of several months, the suspect is assigned simple and
apparently illegal tasks. The suspect is rewarded financially and socially by the group. The suspect is then
introduced to the boss of the fictitious organization, Mr. Big, to whom the suspect confesses to the crime
under investigation.
In February 2005, Hart was recruited into a fictitious criminal organization. At the time, Hart, who had
only a grade 5 education, was unemployed and socially isolated. Over the next four months, Hart worked
with two undercover police officers, participated in 63 scenarios, and was paid over $15,000. As part of that
work, Hart travelled to Halifax, Montreal, Toronto, and Vancouver, all at the organization’s expense. These
undercover officers eventually became Hart’s best friends. According to one of the officers, Hart confessed
to having drowned his daughters.
The operation concluded in a meeting between Hart and Mr. Big, the leader of the fictitious criminal organization that Hart believed he was working for. Mr. Big questioned Hart about the death of his daughters, and he confessed. Two days later, Hart went to the scene of the drowning with one of the undercover officers and explained how he had killed his daughters. Hart was arrested and charged with two counts of first-degree murder.
Issue: At trial in 2007, Hart argued that the confessions should be excluded from evidence since they had violated his rights under s. 7 of the Canadian Charter of Rights and Freedoms and the evidence should be excluded under s. 24 of the Charter.
Descion
In a landmark decision released on July 31, 2014, the Supreme Court ruled that all of Hart’s confessions
should be excluded from evidence. The Court ruled that current law does not provide adequate protection
to accused persons who confess during Mr. Big operations.
The Court did not ban Mr. Big operations but established a two-step test for trial judges to apply to the
tactic. The first step must determine whether the confession is reliable and would not unfairly prejudice
the accused at trial. The second step addresses the risk of police misconduct. The trial judge will examine
whether the confession was obtained through violence or abuse. As a result of this decision, the Crown
decided to withdraw the charges against Hart. According to the Crown, “there was no longer a reasonable
likelihood of conviction.”
r v. spencer
arrested while driving a vehicle used in several of 18 robberies with which he was ultimatley charged. his girlfriend was arested for one of these robberies. Spencer offered to confess if police allowed him a visit to his girlfirend and promised not to charger her for the robbery. police told him they would make a request to the crown but could not guarentee anything. He was charged then argued his confessions were inadmissable and his s. 11 charter rights were violated. The SC rules that the confessions were voluntary and they did not violate his rights
Accused
the person who is alleged to have committed the criminal offence, and who has been charged with committing it. Before being charged, a person may be known as the “suspect.” During
trial proceedings the accused is sometimes called the ‘defendant’. If found guilty, the accused may be called the ‘offender’ or ‘perpetrator’.
Defence Counsel
A defence counsel is hired by a person charged with a criminal offence and represents that person in the court process. A defence counsel’s job is to make sure someone accused of a crime gets a fair
trial. To do this, defence counsel brings evidence to the court and draws the court’s attention to any flaws or weaknesses in the crown’s evidence and arguments. It is the defence counsel’s job to protect client’s right to a fair trial and to ensure that any reasonable doubts concerning the crown’s case are presented to the court.
Duty Counsel
paid by Legal Aid Canada to aid a person who cannot afford to hire a defense counsel. They can give advice and basic
assistance with the court process. They cannot replace a lawyer on a file and instead can only help out on a given day by assisting the accused with asking for a delay, doing some simple plea- bargaining with the crown, conducting bail hearings, and assisting with guilty pleas and
sentencing.
Witnesses
Witnesses are members of the public who have some knowledge about the accused or the event and are brought into the courtroom to give evidence that helps a judge or jury decide the outcome of the case. If such a person testifies in a
trial, she/he will be under an oath to tell the court only the truth about what she/he has seen and/or heard. With very rare exceptions (see expert witness), a witness in court can only testify about what she/he has personally seen and/or heard.
Court Reporter
A court reporter is a court official who keeps a written record of everything that is said in the courtroom. Lawyers, the judge, and the jury can refer back to these records in order to see if witnesses have changed their testimony during the course of a trial or if something that someone has said has been forgotten or misquoted. The judge can also refer back to these notes when writing their final decision. Many court reporters use recording devices to back up their written/typed notes. The transcript produced by the court reporter is essential for any subsequent appeal.
Court Clerk
A court clerk is a court official who assists the judge with keeping the courtroom running smoothly. Court clerks swear in witnesses, mark exhibits, open the court, call for adjournments and close the court.
