Charter Section 8 and Search Warrants

Chapter 13

• To allege a Section 8 Charter right violation, a person must prove a reasonable expectation of privacy was violated by police or authorities.
• The Grant test determines if evidence should be excluded under Section 24(2) of the Charter after a Section 8 violation.
• Court considerations for the Grant test include:
  • Seriousness of the Charter breach
  • Impact of the breach on the accused's interests
  • Society's interest in a trial on the merits
• A search warrant is defined by the Supreme court as
  • An order by a justice under statutory powers
  • Allows a named person to enter a specified place
  • Permits the search and seizure of property that could afford evidence of a crime
• A Section 487 warrant grants the right to search a place, not a person.
• A warrant is required for law enforcement to conduct a search
  • Unless exigent or urgent circumstances exist
  • Unless a right to search is based on common law
• Common Law exceptions:
  • Incident to a lawful arrest
  • During an investigative detention
  • Upon informed consent
• A provincial court judge or justice of the peace can issue a warrant to search a place.
• Only a judge of the provincial or superior court can issue a warrant to search a person.
• A search with a warrant must follow the Collins test and be reasonable to be constitutional.
• A warrant to search a place must have:
  • Sufficient detail of the suspected offence, including section number, date, time, victim's name, and manner of commission.
  • A list of items to be seized, described well enough for identification.
  • A clear description of the place or receptacle to be searched.
• The common law allows searches without a warrant:
  • Incident to a lawful arrest
  • During an investigative detention
  • Upon informed consent

Chapter 14

• A charge is laid under the Criminal Code when an officer appears before a justice.
• The officer swears an "information" document outlining reasonable grounds for the charge, and the justice agrees.
• Not all accused persons are arrested and held in custody until trial
  • It would cause a large number of people incarcerated without being found guilty
  • This creates and conflict with Charter section 11(d), which presumes innocence
• There are two processes for laying an information
  • The officer is not always able to swear an information before advising the accused of the charge
  • The officer may encounter a person committing an offence and won't have time to lay the information first
  • The officer must advise the accused of the charge, issue an appearance notice, or arrest them without a warrant
• A summons is a court order for the accused to attend court on a specific date/time to answer the charge in an information.
• Failure to attend court as required leads to further charges of failure to appear.
• When laying an information, an officer can request the issue a summons or an arrest warrant.
• The justice must not grant an arrest warrant unless satisfied, on reasonable grounds, that the arrest is in the public interest.
• Section 495(1) of the Criminal Code allows an officer to arrest without a warrant if:
  • They have reasonable grounds to believe the person committed or is about to commit an indictable offense
  • They find the person committing any offense (indictable or summary conviction)
  • They have reasonable grounds to believe there is an executable warrant for the person's arrest
• Limitations exist on an officer's power to arrest without a warrant.
• Section 495(2) of The Criminal Code states that even with arrest power under 495(1), an officer should not arrest for:
  • Less serious indictable offenses in section 553
  • A hybrid offence
  • A summary conviction offence
• Unless there are reasonable grounds to believe it is in the public interest or believe the person may not appear in court.
• Determining if an arrest without a warrant is in the public interest requires considering the need to:
  • Establish the person's identity
  • Secure or preserve evidence related to the offense
  • Prevent continuation/repetition of the offense or commission of another offence
• An appearance notice is a specified document that requires the accused to attend court on a set date and time to answer the criminal charge.
• Failure to appear leads to arrest/further criminal charges for failing to appear like disobeying a summons.
• Section 494 of The Criminal Code permits a private citizen to arrest someone they find committing an indictable offense
  • Or someone they believe with reasonable grounds has committed any crime while being pursued by police.
• Property owners or their agents can arrest someone committing a criminal offence related to that property.
  • The arrest must occur within a reasonable time after and only if a police officer is unavailable to make the arrest instead.

Chapter 15

• An accused who has been arrested is not held in custody until trial
  • Section 11(d) of the Canadian Charter of Rights and Freedoms presumes innocence until proven guilty.
  • Release is important, restricting liberty only as needed.
• When deciding whether to release an accused, the officer must consider the need to:
  • Establish the accused's identity
  • Secure or preserve evidence related to the offense
  • Prevent continuation/repetition of the offense or commission of another offence
  • Ensure the safety/security of any victim/witness
• Before releasing the accused, the officer must be satisfied that there are no reasonable grounds to believe that the accused will not attend court if released.
• Documentation for police release includes:
  • An appearance notice
  • A summons
  • An undertaking with conditions
• Bail hearings have different types:
  • Regular bail hearing: The Crown must show cause why the accused must be held in custody awaiting trial on a balance of probabilities.
  • Reverse-onus bail hearing: The accused must prove, on a balance of probabilities, why they should be released awaiting trial.
  • Bail hearing for offences listed in section 469: There is no automatic right to a bail hearing for these offences; the accused must apply to the superior court for bail.
• A reverse-onus bail hearing is in certain circumstances or offenses, the onus shifts from Crown to accused including cases when:
  • The accused is charged with an indictable offense other than one listed in section 469, committed while out on bail.
  • The charged offense is related to criminal organization, terrorism, trafficking, firearm offences
  • The accused is charged with an indictable offence, and is not a Canadian resident
  • The accused is charged with failing to appear at court or breaching a bail condition
  • Accused is charged with an offence under the Controlled Drugs and Substances Act that carries a potential life sentence
• An accused arrested without a warrant, not released by the officer or OIC (Officer in Charge), or arrested on a warrant:
  • Is entitled to a bail hearing within 24 hours for any non-section 469 offense or as soon as possible if a justice is not available in that time
• A Justice must grant bail to an accused unless belief exists, based on:
  • The primary ground, that the accused is unlikely to appear at court
  • The secondary ground, that the accused poses risk to public safety if released
  • The tertiary ground, that confidence in the administration of justice will be lost if the accused is released
• The court will consider community ties, including family, friends, employment, and permanent residence when examining whether the primary ground has been met
• The court also examines the accused's record where those accused will are less likely and those who don't appear for court is more likely to flee or fail to attend.
• Courts consider the seriousness of the offense, the accused's record, strength of the case, and the threat to victims, witnesses, or the justice system regarding safety if released.
• Accused gang or organised crime affilitation means it's more likely to that they will re-offend if released.
• A Justice must release an accused on an undertaking without conditions unless the Crown demonstrates more restriction are needed.
• If restrictive conditions are applied, the accused may also be released on:
  • An undertaking with conditions
  • A recognizance without sureties and conditions
  • A recognizance with sureties and conditions
  • A recognizance without sureties but with conditions and a cash deposit with the court
• If an accused isn't ordinarily resident in the province in which they are in custody they may be released on a recognizance with or without sureties, and deposit of cash wth conditions.
• A Justice may place any conditions listed in section 515(4) of the Criminal Code including reasonable conditions, but the least restrictive must be used.
• A surety promises the court to watch over the accused and pay money if the accused breaks conditions or fails to attend court.
• Section 520 of the Criminal Code says An accused can seek a review of a bail order to challenge denial of bail or conditions that are unfair.
• Under section 521, similarly, the prosecution can ask to review a bail hearing if they object to an order to release the accused pending trial or the adequacy of the bail conditions.
• The application for a bail review is made to a superior court judge.

Chapter 16

• A summary conviction offense charge begins with an informant, usually a police officer.
• The informant appears before a justice to swear an information, starting the legal process.
• An indictment is the document under which an indictable offense is prosecuted.
• All criminal charges start with swearing an information.
• When the matter is sent to the Superior Court, the Crown attorney prepares and signs an indictment.
• The indictment replaces the information at that point.
• This single transaction rule is that each count in an information refers to only one incident.
• Indictments and preferred indictments serve the same purpose
  • That purpose is underpinning indictable prosecution in Superior Court.
• Normally, after the preliminary inquiry. an accused is committed to trial.
• If accused waive the preliminary inquiry a Crown attorney must sign the indictment.
• Sometimes, the prosecution chooses to proceed directly without a preliminary inquiry or after is discharged following one
• This can occur by preferring a direct indictment signed by the Attorney General.
• Courts can broadly amend defective informations.
• Amendments are allowed unless the information fails to disclose an offense known to law
  • Or if the amendment would cause prejudice the accused that could not be cured by adjournment.
• Counts containing more than a single transaction are considered duplicitous.

Chapter 17

• The Crown must provide disclosure which allows the accused to defend answer fully.
• Disclosure promotes a more efficient criminal justice system by facilitating guilty pleas and waiving evidence, when appropriate.
• Disclosure requests must be made in writing to the Crown's office.
• The Crown must disclose all relevant information to the accused, regardless of whether they intend to use it at trial or whether it is helpful to the Crown.
• A preliminary inquiry determines if there is enough evidence to send the accused to trial.
• The test is whether a reasonable jury, properly instructed, could convict the accused based on the evidence.
• The defense uses preliminary inquiries to obtain disclosure and assess the Crown's case by cross-examining and assessing the credibility of Crown's witnesses.
• A pre-trial conference is held to discuss a fair and expeditious hearing for charges
  • These matters can include substantive inquiries in dispute, simplification of issues, making admissions of guilt or facts, the appropriate sentence, and various procedural issues.
  • These issues include scheduling, pre-trial applications or motions, resolution of outstanding disclosure and interpretations, and the necessity for any trial technology.
• The pleas available to a charged person in a criminal offense are:
  • Guilty
  • Not Guilty
  • Autrefois Acquit
  • Autrefois Convict
  • Pardon

Chapter 18

• Criminal rules dictate trial procedures and pre-trial issues.
• The rules is to ensure that proceedings are efficient.
• There is no single source of the Criminal code.
• Some are located in the Criminal code
• Most territories/provinces have their own rules
• It is best practice to refer to the code and the rules of court.
• Rules are generally applied and province-wide
• Practice directions give specifics and are may be issued only to regions by a chief justice.

Chapter 19

• Juries have 12 people selected by Crown/defence from a panel
• Juror names selected randomly by Court clerk
• Judge can excuse or “stand by” a juror with cause
• Numbers of challenges for case are unlimited (crown/defence)
• Peremptory challenges have limited quantities
• Crown statements normally made at trials
• defense statements made at later points
• Options, evidence and calls be discussed
• Closing arguments made by trial.
• After this, there is judge decisions.

Chapter 20

• General deterrence stops public crimes
• Specific deterrance stops individual crimes
• A sentence must the moral offense of the act.
• Morally reprehensible crimes get harsher penalties.
• Pre-sentence reports made by probation officers including offender's behaviour, attitude, amends, guilt, and sentences.
• Reports recommend appropriate sentences by sentencing judges.
• Victim statements include offense effect and are accounted into sentencing.
• Discharge is an absolute for guilt. suspension applications can suspend after time.
• Probation has community time
• Conditional sentences lead to custodial jail.
• Sentencing judges determine judges locations.
• Federal and provincial sentencing factors.
• Federal penitentaries last two years or greater.
• Canadian parole suspend records if the applicant is of good character
• Canadian parole suspends if the applicant behaves civilly.