Charter and Criminal Law

The Charter and Criminal Law

• Bedford (2013, SCC) sets out the minimum requirements a law that negatively impacts a person's life, liberty, and security of the person.
  • The requirements are arbitrariness, overbreadth, gross disproportionality, and vagueness.
• Principles of fundamental justice (PFJs) are the basic values underpinning our constitutional order and offer a standard precise enough to gauge violations (Malmo-Levine).
• The right to silence (Hebert) and the right to make full answer and defence (Stinchcombe) have been recognized as PFJs.
• The harm principle is rejected as a PFJ, but the Court holds in Samaroo that s.11(h) sufficiently protects against the double jeopardy rule.
• The section 7 analysis concerns "capturing inherently bad laws that take away LLSP in a way that runs afoul of these basic values."
• PFJs ensure basic fairness when the state gathers evidence and conducts prosecutions, particularly by enlisting the accused against themselves (Self-incrimination).
• Fair notice necessitates ensuring citizens are aware of what behavior constitutes a crime.
  • Fair notice also ensures that when charged, the charge specifies the state's allegation and that the accused has access to all evidence for a full defence.
• PFJs protect the rights of the accused by circumscribing the state's discretion to investigate and prosecute, limiting enforcement discretion.
• Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (PFJ) per Charter, section 7

Overbreadth and Vagueness Doctrine

• A law is void if it is too vague or if the means used are disproportionate to the object of the law.
• The court may also "read down" vague language to make it constitutionally compliant (CFCYL).
• The "rule of law" basic principle underlies the principle of void for vagueness in criminal law (NS Pharmaceutical).
  • This means being ruled by law, not arbitrary power, requiring that people know what the law commands or forbids.
• Both doctrines relate to how Parliament defines a prohibition.
  • Vagueness relates to notice to the accused and their right to make a full answer and defence, while overbreadth relates to proportionality or constraint of rights.

R v Heywood

• A loitering offence was challenged for persons with a criminal record for sexual violence near school grounds, playgrounds, and bathing areas.
• The accused argued the prohibition was overbroad and should not be a basis for liability.
• geographically overbroad as it covered areas where there may not be kids
• temporarily overbroad as it applied accused person for life
• quantitatively overbroad as provision did not distinguish between different types of offenders
• newly enacted s.161 is more carefully restricted in scope, demonstrating that it's possible to achieve the legislation's object even when applied narrowly.

Dissent

• Provision is proportionate to level of risk associated with accused's record so is NOT overbroad and reasonable requirement to give notice to accused

R v Nova Scotia Pharmaceuticals

• The accused argued that a section of the predecessor to the Competition Act was unconstitutionally vague where the offence was to “lessen, unduly, competition.”
• Vagueness is a recognized PFJ, but the impugned law was not unconstitutional in this case.

Canadian Foundation for Canadian Youth and Law (CFCYL) v Canada (AG)

• Concerns a 2004 challenge to the constitutionality of a statutory defence to assault charges available to parents and teachers under s.43 of the CC.
  • The section allows force by way of correction toward a pupil or child, as long as it is "reasonable under the circumstances.”
• CFCYL argued that s.43 violates the s.7 security right of children inconsistently with the PFJs of overbreadth and vagueness.
  • They presented evidence that corporal punishment of kids under 2 or over 12 is psychologically harmful and that corporal punishment with objects is also harmful.

Issue

• The issue was whether s.43 violated s.7 for overbreadth and vagueness.
• PFJs were used to uphold the validity of the law and the court used them to "read down" the section, limiting application and ensuring the meaning is neither vague nor overbroad.
• As a result, s.43 precludes punishing kids below 2 or over 12, using objects, or blows to the head.
• Dissenters argued the judicial function was impermissibly broadened and Parliament should take on a remedial role, given the vagueness and overbreadth concerns.

Charter, section 1 and R v Oakes

• The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  • Once the charter violation has been established the government has burden to prove a REASONABLE limit, PRESCRIBED by law and that it can be demonstrably justified in a free and democratic society.
  • This is ONLY done is exceptional instances like natural disaster, epidemics, war etc.
  • Prosecution for PPT under former Narcotics Control Act with Oakes in possession of 10 1gm vials of hash oil and $619 in cash.
  • Oakes argued a constitutional challenged to reverse the onus under s.8 instead of giving evidence

Held

• s. 8 of the NCA violated the POI protected under s.11(d) because it allows for an accused to be convicted even though there may be a reasonable doubt as to a legal element of their guilt (here the “purpose” for the possession).

R v Oakes Test for Justification under section 1:

• Was the violation “prescribed by law.”?
• Does the offending law pursue a pressing and substantial objective?
• Is the law proportional?
  • Is the law rationally connected to the pressing and substantial objective?
  • Does the law minimally impair the right in question?
  • Do the salutary benefits of the law outweigh its deleterious effects?

Harm Principle and R v Malmo-Levine, R v Caine

• SCC has grappled with the intersection between law and morality in cases pertaining to sex work, consensual infliction of harm, pornography, obscenity and indecency, drugs, and physician assisted suicide.
• Wolfenden Report identifies three functions of criminal law
  • preserve public order and decency
  • protect citizens from what is offensive or injurious
  • safeguards against exploitation and to corruption of others, particularly the vulnerable.

Facts

• Challenge to criminalization of non-medical use and possession of cannabis under section 7

Issue

Is the criminalization of non-medical cannabis outside the scope of the criminal law?

Held

• № "liberty" right to smoke cannabis. Harm principle NOT a PFJ because a PFJ requires significant social consensus that it is a votal principle and must be precise enough to yield a manageable standard to measure deprivations of life, liberty and security of the person. No significant social consensus, nor a precise or manageable standard in this case. Even if harm was a PFJ, use involves a "reasoned apprehension of harm” for the average users.

Dissent Per Arbour J

• Where state resorts to imprisonment, a minimum of harm is an essential element of offense here, possession does NOT entail a "reasoned risk of harm to others”)
• Evidentiary record shows a very low quantum of harm to society at very high cost. Per Lebel and Deschamps JJ:
• Disagree that harm is a PFJ, but hold that criminalization of possession combined with imprisonment violates section 7 (arbitrariness and gross disproportionality)

R v Labaye

• The appellant seeks to harness harm principle to interpret s.210 of the CC and Note that this is not a challenge to the constitutionality of the provision.
• Section 210(1) makes it an offence to keep a bawdy house with punishment can be punished by two years in prison where a bawdy house is defined in the Code as a place kept, occupied, or resorted to by one or more persons for the purpose of prostitution or the practices of acts of indecency.

Issue

• Were acts at club were “indecent” per “bawdy house” provisions?

Held

• Indecency-related offences must be judged within harm rather than morals-This represents move that has occurred over time. To Establish a Theory of Harm Proposes a theory of harm that involves two steps:
  • Has Crowne established a harm or risk of harm to others grounded in our fundamental laws- impact to liberty, predispose anti-social behaviour, psychological of physical harm?
  • AND is the degree of barm incompatible with funtioning of society- harm?
• Applied to these facts, no harm found on step 1 of the test.
• Harm is NOT the exclusive standard for assesing community tolerance or criminality.
• Prefer more objective approach inter allia on the location of the acts; warning to public etc.

Exclusion of Evidence under Charter, section 24

• Anyone whose rights have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
• Where in proceedings under ss. 24(1), a court concludes that evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that...the admission of it into the proceedings would bring the administration of justice into disrepute. Summary of s.24(2) Test
• Threshold Requirement: was the evidence obtained in a manner that infringed or denied a Charter right or freedom?

1. There must be a nexus between the Charter breach and the evidence (Beaver).
2. Evidence will not be "obtained in a manner" that breached the Charter when the police made a "fresh start" from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous (Beaver) by, for example, later complying with the Charter. Note that a fresh start will not cure an earlier Charter breach, but will merely permit evidence obtained dissociated from that Charter breach to be admitted.
3. Having regard to all the circumstances, would admitting the evidence bring the administration of justice into disrepute (Grant)?
4. Evaluate the impact of the admission on public confidence in the administration of justice over the long term, balancing the Factors.

R v Collins Facts

• Officer jumps woman in a bar and puts her in a chokehold. She and her husband were under surveillance for heroin possession. The choke hold was to prevent her swallowing a condom. The condom was found in her right hand. Issue : Should the condom be excluded from evidence on the basis of a section 8 breach?

Three key Sets of Factors to Examine when Admissibility of Disputed Evidence:

1. Will admission of evidence affect trial fairness? (admission of "real evidence" will not normally affect trial fairness: while admission of "conscripted" evidence normally will undermine trial fairness)

• a.A distinction emerges between "real" and conscripted evidence.

2. How serious was the breach? (was it committed in good faith or was inadvertent or of a merely technical nature or was it deliberate, willful or flagrant? Was there urgency to prevent the loss or destruction of the evidence? Could other investigative techniques have been used?)

• a.Need to look closely at motives and patterns of police conduct.*

  3. Would exclusion of the evidence bring the administration of justice into disrepute? (how serious was the Charter breach? Admission of conscripted evidence will bring administration into dispute. Must also consider the seriousness of the offense)

• a.SCC cautions that regular admission of unconstitutionally obtained evidence can bring administration of justice into disrepute. Courts should not weigh the seriousness of the offense as invariably as weighing against exclusion.*

R v Stillman

• Conscripted evidence = evidence accused compelled to help the state produce
• The issue in this case is the distinction between direct and derivative.
• Presumption is admission of conscriptive evidence makes trial unfair unless otherwise discoverable.
• If evidence was conscripted the Exclusion is based on Collins Test.

###R v Buhay

• Police smelling pot open locker (without warrant) found pot put back to conduct further survellience.
• Accused justifies exclusion as s. 8 breach
• SCC applies Collings/Stillingdon to non-conscriptive real evidence

1. Seriousness of breach and key issues re “deliberate, willful if not flagarat urgency

2. serousness of the crime, nature of police conduct while not intend punish police must not condone

R v Beaver

• Evidence will not be obtained in a manner that breached Charter when police make fresh start and comply

R V Grant and the Facts

• -Two plainclothes and one uniform Officer Confront young black man on straight impede path while appearing fidgety. Asking what “shouldn't have " lead to small bag of weed and gun. Also the Accuseed detains but not read Rights..

• Is the gun and weed included under s. 24(2).The Test is UN constitutional evidence must be exclusive. Three lines Inquiry balanced to determine to what extent the administrating of Jstice would impact: 2. Impact of infringement on Charter Protected Rights of Accused. 4 Society's interest is based upon each case’s "Merits," i. v. "type" of offence

• • Bodily Evidence Court Retreat and Less Addmissible
• • Non-Bodily More Flexible

• Derivative- Court Need Not Prove Discoverabilty

• R v Harrison

  1 Released concurrently with Grant

Facts-

• Pull Over of a Vehicle With Illegal Front Plate Lead To the officer Noticing Car had "Lived-In" look Issue-The officer then arrests for driving while suspended (while searched trunk for licence found cocaine)
• Blatant and “Wiful disreguard" for charter.
• A violation of The Charter Is Aggrivated because it's Misleeding trial.

Rv Cote Facts

• Reporting of a Spouse injured lead to warrant less search and effectively detained then Charter in early AM to ask question to which Police are Determined In violation of the s. 7 - 10th of Charter.. Issue includes exclusion under s.24(2) .and what SCC allows that lead the acquittal being resort.
• The Breach was serious- infringing and tainted warrant. And as of the Grant's Test of lawfulness vs the infringement (note gun is good derivative of derivative evidence ) is justice peace was deceieved whe police had to Get search warrant -Very 2rd serious on Accused with REPs as Interregation and Durartion and is discover ability

R v Le

High crime area. high crime area when without RPG Police Enter Backard yard confront 5 racialized man but Tj finds 8 or 9 Breach Not to be Exclusion on Basis of Order and the court will consider the accussed DETENTION three factor test + was it was arrbitary

• The focus in on " long system" + in good faith
• Lacks significant
• interaction and impact significant

R v Omar

• TJ admit evidence (due officers and the crime's seriousness) and Finds sections 8 and 9 BREACHED

##The court must dissociate itself from conduct/ behaviour and its the onus of police to state its case

The early Application of Q v Zachrias

ACC Pulled Over Illegal tinted windows A "miniscule" of sect. 9th but a" diminised Reps for a reason "

• There was evidence of a" diminished " , the facts actually are inclined towards exclusion a fact to include .

Exclusion of Evidence Test: R v Beaver:

• Test includes whether the evidence is obtained is it is the unhelful mislleading if The prior connection breach. + that No" stricat "
• No and L s that error SCCS that can't justiffied the exculsuion

Sentencing

• The fundamental part of sentencing Is to maintain Just and Society with one of more sanctions.
• (1) denounced unlawful,

2. deter offender , 3 rehibilate, and*

• (3) provide that the sense responsibility.*.

" Fit Sentence” requires that there is clear indication from the section 7 - 7.2+ must be part of the " both “Gravity the offer

• code provides for max sentence including mandatory sentence

R v Smith and Ellis

Judges take account and address of victims from black communities .and sentencing options should be in clear indications and are. 4 options include; discharges (without "RECORD" )prohibiton

• Crown has the power to "appeal at the "sentence And crown should consider that it is a public health risk The the role of the court is not that (with "Public Wareress" - or increase * *

V Search and Seizure and the Carter

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Principle

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Section 487 the Warrant

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Section 189 - Plain Vew

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Facts R v Collins

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