Criminal Procedures and Evidence PDF

Charging, Arrest and Detention Class 5 Private prosecutions Section 504 allows “anyone who on reasonable grounds believes that a person has committed an indictable offense may lay an information in writing and under oath before a judge.” However, the crown may take over p...

Charging, Arrest and Detention Class 5 Private prosecutions Section 504 allows “anyone who on reasonable grounds believes that a person has committed an indictable offense may lay an information in writing and under oath before a judge.” However, the crown may take over private prosecution and then stay the charges or continue as a conventional prosecution. Attorney general’s control over prosecutions 1.Stay of proceeding: stay means stop of proceeding. The Crown may reactivate within a year; otherwise it would be treated as it was never commenced. 2. Withdrawing the charges. Once the charges are withdrawn, a new charge must be laid to recommence 3. The Crown call for no evidence at trial. The court MUST dismiss the charges by making a finding of not guilty. The Crown can commence the proceedings only by appealing the acquittal. Information( the first step in criminal Proceedings) could be laid by: Either Or OR, 1. laying information by 1. Laying information before a means of a justice (Sworn Statement) telecommunications 2. Holding a hearing into the devices that produces a matter by the justice written documents. 3. Signing the information by 2. The justice of the peace must the justice state that the information is 4. Endorsing the existing true. (such a statement is compelling documents such deemed to have been made as an appearance notice or under oath). replacing the document 3. Signing the information by with summons ,or arrest the justice warrant by the justice 4. Endorsing the existing compelling documents such as an appearance notice or replacing the document R. v. Pilcher The requirements of a valid information The Court held that the “Police officer must have probable ground to believe in the truth of the information. It does not mean that police officer must have personal knowledge of all the facts or even most of the facts …but police officer can be satisfied by any means …e.g. reliable reports made by other person in the course of the investigation.”  R. v. Jeffrey & R. v. Buchbinder and Venner A justice receiving information must perform a ministerial function and a judicial function in determining to issue process. (e.g. compelling attendance of an accused). A justice has an obligation judicially, not arbitrarily, to hear the allegation, and be satisfied to its truth, before endorsing the information. Ministerial means: an act done after ascertaining the existence of a specified state of facts in obedience to a legal order without exercise of personal judgment or discretion In Buchbinder, the Court concluded that in determining to issue process a judge does not have investigatory power, rather judicial function..i.e. to test the quality and sufficiency of the evidence of the complainant and satisfy himself as to whether or not there are reasonable and probable grounds to believe that a certain person or persons has committed the offense set out in the information.  Arrest without warrant (any person) 494. (1) Any one may arrest without warrant (a) a person whom he finds committing an indictable offence; or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person. (2) Any one who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. (3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.  Powers of police officers S 31 gives police officers the power to arrest anyone breaching the peace. Moreover, S.495 maintains that (1) a peace officer may arrest without warrant (a) a person who has committed an indictable offense or who, on reasonable grounds he believes has committed or is about to commit an indictable offense, or (b) a person whom he finds committing a criminal offense (distinguish (a)). A person whom he has reasonable grounds to believe that a warrant of arrest or committal , in any form set out in part XXVII in relation thereto is in force within the territorial jurisdiction in which the person is found.  R. v. Storrey The Supreme Court held that the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.  R. v. Biron -- Explaining the term “find committing” in section 495(1)(b) Biron was arrested and charged with causing a disturbance in a public place and (consequently) resisting a peace officer in the execution of his duties. Biron was acquitted of disturbance and convicted on resisting. The Supreme Court of Canada found that although Biron was acquitted from the charge of disturbance, he could be correctly convicted of resisting a peace officer because “ find committing” means “what was apparent to the police officer.”  Explaining the term “find committing” (Cont) Under Roberge case, “finding committing” means: peace officer’s (one who conducted the arrest) reasonable and probable grounds for believing an offense has been committed. The Saskatchewan Court of Appeal did not follow this line of analysis in R. v. Janvier concluding that smell of marijuana in a vehicle does not justify searching it. The Court concluded that a reasonable officer needs more evidence to concluded the presence of further unsmoked marijuana.  S. 9 of the charter and R. v. Duguay and R. v. Grant S. 9 of the charter states that “everyone has the right not to be arbitrarily detained or imprisoned”. In R. v. Duguay, the Ontario Court of Appeal held that unlawful arrest or detention is not necessarily arbitrary. The Court held that “not every unlawful arrest necessarily falls within the words ‘arbitrary detained’.” This logic was not followed in Grant(2009), where the Supreme Court of Canada made it clear that every unlawful detention is necessarily arbitrary under S.9. Note: unlawfulness or lawfulness is an issue decided only in a court of law. Random stop by the police and S. 9 The Supreme Court in Hufsky and in Ladouceur held that random stop is arbitrary detention, nevertheless the court allowed it under section 1 of the charter (the violation of a charter right “S.9”) as demonstrably justified in a free and democratic society. Note that Hufsky dealt with random spot check at fixed location while Ladouceur dealt with the justification of a roving random stop.  R. v. Mellenthin In Mellenthin, a police officer improperly asked the defendant about the contents of a gym bag on the front seat beside him. After a series of questions by the police officer and responses by the defendant, the police officer established reasonable grounds to believe the defendant was in possession of marijuana. The Supreme Court of Canada held: “The appellant was detained at a check stop. While he was so detained, he was subjected to an unreasonable search. To admit the evidence obtained as a result of an unreasonable search of a motorist in a check stop would render the trial of the appellant unfair. Admitting such evidence would thus bring the administration of justice into disrepute. The evidence derived from the unreasonable search cannot be admitted.”  R v. Nolet Defendants were travelling in an empty 53-foot commercial tractor-trailer unit licensed in Quebec. When pulled over by an RCMP officer in a “spot check”, it emerged that the truck’s registration was not prorated to include the province. The appropriate fuel sticker had expired. The appellant Nolet produced a logbook that was incomplete. One discovery led to another and in the end the police found $115,000 in cash in the truck and 392 pounds of marijuana, valued at somewhere between $1.1 million to $1.5 million, concealed in a secret compartment in the trailer. The appellants were charged in a multi-count indictment alleging (1) trafficking, (2) possession of marijuana for the purposes of trafficking, and (3) possession of proceeds of crime in excess of $5,000. The trial judge found Charter breaches and excluded the evidence (2006 SKQB 393, 283 Sask. R. 159). She R v. Nolet (Cont) The Saskatchewan Court of Appeal found no charter violation and ordered a new trial. The accused appealed. The Supreme Court unanimously dismissed the appeal. Investigative Detention R. v. Simpson (Ontario Court of Appeal) The accused was a passenger in a vehicle stopped by the police after visiting a “crack house”. After the vehicle was stopped, the constable searched the accused and seized 10 g of cocaine. The court held “where the police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law. That law may be specific statutory authority power or it may be the common law”.  R. v. Simpson (Cont) The court held “there is no (currently) statutory power allow police to detain individuals for investigatory purposes”…under common law detention (for investigatory purposes) MAY only be justified if the detaining officer has some “articulable cause” for the detention…a hunch based entirely on intuition gained by experience cannot suffice. …the articulabe cause inquiry is only the first step to determine lawfulness of the police conduct.” The court found no articulable cause and acquitted the accused. Class discussion on the implications of the decision. R. v. BROWN (racial profiling) (Ontario Court of Appeal) With respect to stopping suspect who is driving a vehicle, The court held the “the question is whether the police officer who stopped the motorist had an articulable cause for the stop. An articulable cause exist where the grounds for stopping the motorist are reasonable and can clearly be expressed. If the police officer stops a person based on his or her color the purpose is improper. … The accused has to prove on balance of probability that there was no articulabe cause for the stop.”  R. v. Mann (Supreme Court of Canada) Police stopped an aboriginal after receiving a radio dispatch message detailing a break and enter in progress. The officer in the process of searching the accused reached into the accused’s pocket and found a small plastic bag containing marijuana. The Supreme Court excluded the evidence and acquitted D. R. v. Mann (Cont) The court held that : police may detain an individual for investigating purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat down search must be conducted in a reasonable manner.  R. v. Mann (Cont) …in this connection I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police… Evidence obtained in this case is inadmissible because searching the suspect went beyond pat-down. In short: the only search power available during an investigating detention is a search for safety reasons where there are reasonable grounds to believe that the accused may have a weapon.  R. v. Yeh Following the same line of analysis, the Saskatchewan Court of Appeal unanimously held that police cannot lawfully employ sniffer dog to search for drugs in conjunction with a brief investigative detention. The court emphasized that two forms of search should remain separate: the investigative detention search which aims to ensure officers’ safety and the search for drugs which requires reasonable suspicion of criminal activities. R. v. Clayton and Farmer The Supreme Court of Canada, with respect to roadblocks, concluded that police may detain vehicles. The test of totality of the circumstances apply. Once the police stop the vehicle, the police may be justified, depending upon the circumstances, to conduct a search incident to arrest.