Shared Flashcard Set


CDN Criminal Procedure
Dean Anand's 2014 Course
Criminal Justice

Additional Criminal Justice Flashcards




R v O'Connor 1995 SCC
R v Tobiass 1997 SCC
R v MacDonnall 1997 SCC
R v McCrea 2004 BCCA
O'Connor: abuse of process remedies (s24(1) subsumed under s.7; still only in "clearest of cases" will a STAY be appropriate: (1) prejudice to accused via conduct of trial; (2) no other remedy will satisfy;
Tobiass: (3) balance interests of society to have trial on its merits or to grant the STAY; "so egregious that the mere fact of going forward in light of it will be offensive" (rare!)
MacDonnall: AoP stay only where fair trial is impossible
McCrea: ALL three have to be met for a STAY
R v Mack 1988 SCC
R v Barnes 1991 SCC
ENTRAPMENT where (obj/subj):
(1) police provide accused with opportunity to commit offence w/o RS of criminal activity; OR
(2) police go beyond providing the opportunity and induce the commission of the offence
Barnes: inquiry in to relatively broad location (Granville St) despite no evidence of trafficking in particular location
R v Collins 1987 SCC
24(2) Exclusion of Evidence
Collins: CAT 1: unfair trials bring admin of J in disrepute (exclude conscripted evidence; OR... CAT 2: seriousness of the Charter violation (ie conduct of the police: GF? technical? urgency?)
R v Burlingham 1995 SCC
R v Stillman 1997 SCC
Conscripted Evidence
- whether "real" or confession, if it's derived from conscripted evidence in violation of Charter than it's conscripted
- if conscripted, Collins CAT 1 met and no need to move on: PUNT IT for the sake of trial fairness
Stillman: if Crown proves on BOP that the evidence was discoverable w/o violation, move on to Collins' CAT 2
R v Grant 2009 SCC
3 STEPS for 24(2) apps: assess/balance effect of admitting evidence re society' confidence in sys of J, considering (DO THESE EVERY TIME):
(1) seriousness of the offending state conduct that led to discovery of evidence (causal connection is relevant, including urgency/need to preserve evid.)
(2) extent that breach undermined interests protected by right (fleeting? technicality?)
(3) whether truth-seeing functino of crim trial process is better served by admission/exclusion (reliability & importance are relevant here)
R v Grant 2009 SCC
Types of evidence (re 24(2) apps):
Statements by accused - presumptive, general, but not automative exclusion
Bodily Samples - greater the intrusion, more likely to be excluded (but Grant (3) leans toward inclusion)
Non-Bodily Physical Evidence - usually search&seizure, so greater REP, greater chance of exclusion
Derivative Evidence - more likely to be otherwise discover, more likely to be admitted (real, thus reliable)
Hunter v Southam 1984 SCC
- purpose of s.8 is to protect people, not places
- s.8 protects people's REP
For legis. search power to be reasonable under s.8:
(1) warrant is required (where feasible in situat.)
(2) warrants issued on RPG (offence has been committed and evidence will be found)
(3) authorizing person must be impartial/neutral
- warrantless searches are PRESUMPTIVELY unreasonable
R v Collins 1987 SCC
assessing reasonableness under s.8:
(1) must be authorized by law (SL or CL)
(2) law itself must be reasonable (re Hunter v Southam)
(3) search must be carried out in reasonable manner in accordance with original reason for search
R v Dyment 1988 SCC
Three zones of privacy:
(1) the person / bodily integrity (pat downs, samples)
(2) territorial (home, car, handbag)
(3) informational (medical, ID, educational records)
- s.8 protects against both searches and SEIZURES
- still use Hunter and Collins standards
R v Kokesch 1990 SCC
R v Evans 1996 SCC
R v Edward 1996 SCC / R v Belnavis 1997 SCC
R v Plant 1993 SCC
Kokesch: one has a REP in the perimeter of their home
- no CL to trespass
Evans: can't "knock and sniff" if cops' intent is to gather evidence (Vu: intent was to return evidence)
- implied invitation only for sake of communication
- evidence in breach can't be basis for subsequent warrant
Edwards/Belnavis: bundle of property rights determine territorial REP
Plant: informational REP to biographical core of personal info which is meant to be controlled by the person
R v Tessling 1993 SCC
informational & territorial privacy REP:
(1) what was the subject matter?
(2) did accused have direct interest in it?
(3) was there a subjective EP in it?
- this is presumed unless contrary proven
- voluntary abandonment?
(4) was that expectation obj. reasonable? if so, consider proprietary bundle of rights, public/private location, reasonableness of search
R v Kang-Brown 2008 SCC
R v M(A) 2008 SCC
K-B: one has a REP in air around their bag
- s.8 engaged by sniffer dogs, BUT:
BARE MAJORITY endorsed CL power of using sniffer dogs on basis of RS so long as evidence is tendered to the high accuracy of the dog in question
M(A): supported K-G that RS required for CL-dog search power, and that dog's reliability was important
R v Patrick 2009 SCC
- used Tessling test
- no REP found in garbage
Abandonment: an obj. conclusion inferred from conduct of individual claiming s.8 (done or not done)
R v M(M.R) 1998 SCC
R v Chang 2003 ABCA
- due to growing dangers and particular nature of school, reduced REP
- warrantless searches OK if school rule broken
- deference to school auths. (re situat. and RS)
- evidence handled by school auth.s can be admitted
- private mall sec. guard's primary purpose was to protect property, and thus not an agent
- IF primary purpose was to discover evidence, then they'd be a state agent
R v Stillman 1997 SCC
R v Debot 1989 ONCA
R v Caslake 1998 SCC
CL search incident to arrest:
(1) valid arrest
(2) search must be incident to (temporal link)
(3) search must be reasonable in light of reason for arrest (no anal search for parking violations)
Debot: search incident to doesn't have to be BEFORE arrest
Caslake: officer must subj. have a CL purpose for SITA (safety re weapons, preventing escape, OR preserving evidence)
R v Golden 2001 SCC
Strip Search: removal of all or some of the clothing of a person to permit a visual inspection of a person's privat areas or undergarments
- should be in private setting by same-gender officer
- PF unreasonable due to intrusiveness
(1) RPG for arrest
(2) RPG that SS is necessary (weapons or evidence)
(3) SS should be conducted at station
(4) field SS only in exigent circumstances
(5) demonstrate that SS was conducted reasonably
- burden on police/crown
R v Mellenthin 1992 SCC
R v Borden 1994 SCC
To be a VALID consent search:
(1) must be given voluntarily (no threats or coercion)
(2) consent must be informed:
(a) knowledge of the right to refuse
(b) knowledge of the investigative purposes for which consent is sought
- authority derived from individual (not law) and thus can be taken away (but not after evidence found)
R v Law 2002 SCC
Plain View Doctrine:
(1) police in position they are lawfully entitled to be
(2) evidence discovered purely within the authority they had (and not via probing beyond this entitlement)
(3) illicit nature or evidentiary value must be immediately obvious
- if warranted search, only (3) is necessary
R v Buhay 2003 SCC
R v Godoy 1999 SCC
Buhay: REP in locker's contents
- due to proprietary rights via Edwards
- locker opened by guards didn't destroy REP
Godoy: search pursuant to emergency
- CL power to enter dwelling re RPG an occupant in distress
- ancillary powers limited to entitlement to enter, locate and confirm caller's safety
- no authorization for general search while there
R v Latimer 2001 SCC
Arrest consists of the actual seizure or touching of a person's body with a view to his or her detention.
- alternatively, the pronouncing of words of arrest
- here, use of words "detention" satisfied an arrest as the accused could reasonably understand his rights and the situation (in custody and not free to leave)
R v Biron 1975 SCC
R v Storrey 1990 SCC
R v Grant 1993 SCC
R v Gramracy
Biron: "finds committing" = "apparently committing"
Storrey: an officer may arrest w/o warrant where HE has subj. RPG that accused has committed an indictable offence
Grant: an unlawful detention/arrest is necessarily arbitrary under s.9
Gramracy: officer must either inform accused of reasons for arrest (by warrant or otherwise)
R v Feeney 1997 SCC
Feeney: (codified in ss529-529.5 of CC)
- unless in hot pursuit, can't enter a dwelling to arrest someone
- warrant issued where JP satisfied that RPG accused committed the offence, and RPG that they will be there
R v Therens 1985 SCC
R v Thomson 1994 NBQB
R v Grant 2009 SCC
R v Suberu 2009 SCC
Detention is:
- any form of compulsory restraint (physical or psychological)
- demand/direction of officer that effectively assumes control over an individual's freedom of movement
- KEY: individual submits in deprivation of liberty and reasonably believes no choice otherwise
Thomson: roadside screening device = detention (reasonable belief that refusal would have consequences)
Grant: detention determined obj. from circumstances
- consider: (a) circumstances; (b) nature of police conduct; (c) particular characteristics/circum. of indiv.
Suberu: at the outset of an investigative detention, accused must be given s.10(b) rights
R v Simpson 1993 ONCA
R v Dedman 1981 ONCA
Detention pursuant to ancillary powers (re SL and CL)
- must serve purpose of preventing crime, preserving peace, protecting life & property
- can't be unjustifiable use of powers
- REQ: articulable cause ("objectively discernable facts to suspect that the detainee is criminally implicated" ≠ a 'hunch') = RS
- req'd RS might only justify a brief detention
- a too long detention engages s.9
R v Lewis
R v Mann 2004 SCC
Lewis: anon. tip with very specific info about suspect not enough to constitute RPG for ARREST, but it might provide RS for investigative detention
Mann: stopped a man in vicinity of B&E who matched description "to a tee"
- CL detention for investigative purposes ok w/ "reasonable grounds" for nexus between indiv. and recent/ongoing offence (in totality of circum.)
- if obj. grounds for justifiably belief they are armed, pat-'em-down
- these CL detentions should be "brief"
R v Ladouceur 1990 SCC
R v Mellenthin 1992 SCC
Lad: random/roving stops contrary to s.9 (arbitrary) but upheld by s.1 to combat drunk driving, etc
- must be related to cars and driving
Mellenthin: inquiries beyond cars/driving transform stop in to arbitrary-not-justified-by-s.1
R v Oickle 2000 SCC
R v Spencer 2007 SCC
- Crown must est. BARD that confessions are volunt.
Oickle: statements made inadmissible if not made voluntarily
Spencer: statement induced by promise inadmissible if will overborne by promise
R v Black 1989 SCC
R v Borden 1994 SCC
Black: informed decision only if charges are known
Borden: right to counsel only satisfied w/ full knowledge of jeopardy faced
R v Feeney 1997 SCC
R v Brydges 1990 SCC
R v Bartle 1994 SCC
Feeney: 10(b) rights must be given IMMEDIATELY "on arrest or detention"
Brydges: police must tell accused/detainee of existence of legal aid or duty counsel (regardless of whether indiv. expresses a belief that he cannot afford a lawyer)
Bartle: must be told of ALL available legal services (including 1-800 #)
- waiver of 10(b) must be (a) clear and unequivocal; (b) made w/ full knowledge of the right being waived
R v Manninen 1987 SCC
- no waiver of 10(b) by answering questions
- once counsel asked for, TWO implementation duties imposed upon police
(1) must provide reasonable opp. to exercise the right
- delay justified only in urgent/dangerous circums
- no "one phone call rule"
- must be given privacy for the call (Playford)
(2) holding off (questioning) duty
R v Leclair 1989 SCC
R v Smith 1992 SCC
Leclair: refusal to call another lawyer is not a waiver => assertion of right to counsel of choice
- detainee must be reasonably diligent in exercising their right to counsel
Smith: repeatedly refused to call lawyer, made inculpatory statement = not reasonably diligent
- reassertion later didn't give rise to another holding off duty
R v Burlingham 1995 SCC
egregious violations of 10(b):
- failure to hold off when accused requested counsel
- belittling of accused's counsel
- making plea offer w/o counsel & directly to accused
R v Clarkson
R v Prosper 1994 SCC
R v Sinclair 2010 SCC
Clarkson: waiver must be voluntary and with appreciation of consequences (can't be drunk)
Prosper: if 10(b) invoked, but later changed their mind, information obligation is retriggered
Sinclair: defence counsel does not have to present throughout interrogation
- change in circum. must be obj. to retrigger duties
- undercover prisoner trickery ≠ punting of inculpatory statements (still voluntary BARD)
R v Hebert 1990 SCC
right to silence is a PFJ
Triggered (a) by saying it/nothing; (b) in detention
(1) questioning in absence of counsel, only after counsel retained
(2) right to silence only after detention
(3) right does not affect voluntary statements
(4) right not violated if undercover cops observe but do not elicit inculpatory statement
- undercover agents may not actively coax someone such as to negate choice to remain silent
R v Stinchcombe 1995 SCC
Right to full answer and defence is a PFJ => triggered by timely request by counsel or accused
- no reciprocal duty of disclosure on def. except re alibis, expert testimonies, Charter apps
Obligation not absolute:
(1) irrelevance (but err on side of disclosure)
(2) can withhold re privileged informants (unless they will be witnesses)
(3) delay to protect ongoing investigation (rare)
R v Mills 1999 SCC
(1) Disclosure to TJ
- accused must est. that record sought is relevant to an issue at trial or competence of witness
- balancing of right to full answer and complainant/witness' right to privacy
(2) Disclosure/production to accused
- TJ runs through these salutary/deleterious effects in absence of parties
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