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× Law, Police & Court Stories

Time we started talking about law on this forum again.This one covers Fraud

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3 months 3 weeks ago #144224 by terr-y
Fraud

380 (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

(b) is guilty

(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(ii) of an offence punishable on summary conviction,

where the value of the subject-matter of the offence does not exceed five thousand dollars.
Marginal note:Minimum punishment

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.
Marginal note:Affecting public market

(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

R.S., 1985, c. C-46, s. 380; R.S., 1985, c. 27 (1st Supp.), s. 54; 1994, c. 44, s. 25; 1997, c. 18, s. 26; 2004, c. 3, s. 2; 2011, c. 6, s. 2.
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3 months 3 weeks ago #144225 by terr-y
This one covers interception of e-mail's:

Interception of e-mail

Part VI of the Criminal Code creates an offence for wilfully intercepting a ""private communication"", as well as a scheme for obtaining judicial authorization to intercept such communications. (See Appendix 1 for a description of the current interception provisions in the Criminal Code.) The requirements for intercepting a ""private communication"" are more onerous than those required to obtain a search warrant to seize documents or records (See Appendix 2). Section 183, in Part VI of the Criminal Code, defines the expression ""private communication"" to cover any oralcommunication, or any telecommunication made under circumstances creating a reasonable expectation of privacy. This appears to suggest that, once a communication is put in writing, it can no longer be considered a ""private communication"" for the purpose of the interception of communications provisions of the Criminal Code.

In fact, some courts have held that a tape-recorded message, like a written letter, did not fall within the definition of ""private communication"" because it was not reasonable for a person sending such a tape (or letter) to expect that it would remain completely private. As it was a permanent record of its contents, it could easily come into the hands of a third party. Following this line of reasoning, one could argue that e-mail communications, as they are in writing, would not come within the ""private communication"" definition. Therefore, these written records could be obtained by a search warrant.

However, some cases dealing with e-mails in Canada have taken the position that they are to be considered ""private communications."" For example, a judge in Alberta recently held that judicial authorization under Part VI was required to intercept e-mails since there was a reasonable expectation of privacy on the part of those sending and receiving them.

These decisions, along with the definition of ""private communication,"" create some confusion as to whether an e-mail should be seized or intercepted. The problem stems from how this "store and forward" technology works. It is in fact possible to access an e-mail in various places or at various stages of the communication or delivery process using various techniques. The following stages of the communication or delivery process could probably be qualified as ""interceptions"":

during keyboarding on the part of the sender of the message
during transmission between the sender's computer and the sender's ISP
during transmission from the sender's ISP to the recipient's ISP
during transmission between the recipient's ISP and the recipient's computer
during reception by the recipient of the sender's message

The way e-mail messages are transmitted, the relationship between the transmission and/or reception of the message, and the interplay between the sender and the recipient would appear to be covered by the current definition of the term ""intercept"" in the Criminal Code.

Two stages are more problematic:

while e-mail is stored at the sender's ISP
while e-mail is stored at the recipient's ISP

The acquisition of e-mails under these circumstances can on occasion be at the same time as the transmission of those e-mails, but it may also be delayed. Additionally, e-mails may be stored for long periods (weeks or months) before they are opened by the recipient. The simultaneous transmission and acquisition of the content of an e-mail could be similar to an ""interception"" under Part VI the Criminal Code. However, the acquisition of those contents when they are stored could also be considered a ""seizure"" under Part XV of the Criminal Code or, for example, under s.15 or 16 of the Competition Act.

One final situation also raises problems: seizing an opened e-mail at the recipient's ISP.

This stage is similar to the situation where a person, having read a letter, files it into a filing cabinet rather than throwing it into the garbage. Obtaining an e-mail at this stage is more analogous to a seizure than it is to an interception.

The main problem in Canada is that the capture of the contents of an e-mail in transit with a third party or waiting to be delivered could constitute an ""interception"" of a ""private communication"" under the Criminal Code, regardless of when it took place. Some claim, however, that the acquisition of an e-mail under such circumstances constitutes a ""search and seizure."" Questions have been raised as to whether the Criminal Code and other acts such as the Competition Act should be amended to clarify the type of order that should be obtained before e-mail is acquired.
Issues to be considered

should there be a specific provision in the Criminal Code in relation to how an e-mail should be acquired?
if such a provision should be included, what kind of procedural safeguards should be imposed?
should the type of order to be obtained in order to acquire an e-mail vary depending on the stage of the communication or delivery process?
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3 months 3 weeks ago - 3 months 3 weeks ago #144226 by terr-y
covers breach of contracts:
Criminal breach of contract

422 (1) Every one who wilfully breaks a contract, knowing or having reasonable cause to believe that the probable consequences of doing so, whether alone or in combination with others, will be

(a) to endanger human life,

(b) to cause serious bodily injury,

(c) to expose valuable property, real or personal, to destruction or serious injury,

(d) TO DEPRIVE the INHABITANTS of a city or place, or part thereof, wholly or to a great extent, of THEIR supply of LIGHT, POWER,GAS, or

(e) to delay or prevent the running of any locomotive engine, tender, freight or passenger train or car, on a railway that is a common carrier,

is guilty of

(f) an indictable offence and is liable to imprisonment for a term not exceeding five years, or

(g) an offence punishable on summary conviction.
Marginal note:Saving

(2) No person wilfully breaks a contract within the meaning of subsection (1) by reason only that

(a) being the employee of an employer, he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment, or,

(b) being a member of an organization of employees formed for the purpose of regulating relations between employers and employees, he stops work as a result of the failure of the employer and a bargaining agent acting on behalf of the organization to agree on any matter relating to the employment of members of the organization,

if, before the stoppage of work occurs, all steps provided by law with respect to the settlement of industrial disputes are taken and any provision for the final settlement of differences, without stoppage of work, contained in or by law deemed to be contained in a collective agreement is complied with and effect given thereto.
Marginal note:Consent required

(3) No proceedings shall be instituted under this section without the consent of the Attorney General.[YEAH WE DON'T NEED THE A/G'S CONSENT]

R.S., c. C-34, s. 380.
Last Edit: 3 months 3 weeks ago by terr-y.
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3 months 3 weeks ago #144227 by terr-y
Every Cop is guilty of this:

Intimidation

423 (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,

(a) uses violence or threats of violence to that person or his or her spouse or common-law partner or children, or injures his or her property;

(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;

(c) persistently follows that person;

(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them;

(e) with one or more other persons, follows that person, in a disorderly manner, on a highway;

(f) besets or watches the place where that person resides, works, carries on business or happens to be; or

(g) blocks or obstructs a highway.
Marginal note:Exception

(2) A person who attends at or near or approaches a dwelling-house or place, for the purpose only of obtaining or communicating information, does not watch or beset within the meaning of this section.

R.S., 1985, c. C-46, s. 423; 2000, c. 12, s. 95; 2001, c. 32, s. 10.
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3 months 3 weeks ago #144230 by terr-y
Chapter 5: Comments by Canada's Privacy and Information Commissioners

Total Number of Written Submissions Received: 5
A. General

Interception and monitoring of private communications is highly intrusive - striking at the heart of the right to privacy. The burden of proof must always be upon those who claim that some new intrusion or limitation on privacy is necessary.
Any such proposed measure must meet a four-part test:
It must be demonstrably necessary in order to meet some specific need.
It must be demonstrably likely to be effective in achieving its intended purpose.
The intrusion on privacy must be proportional to the security benefit derived.
It must be demonstrable that no other, less privacy-intrusive, measure would suffice to achieve the same purpose.

The proposed measures risk stirring up public distrust in information technology and communications generally, in the belief that they are intercepted all the time or at least that they are susceptible to interception.
The proposed powers of access to the private communications of Canadians go far beyond maintaining the capabilities and authorities available to law enforcement and national security agencies in the past.

If extended powers are indeed believed to be necessary, they must only be used and deployed to meet legitimate law enforcement objectives. The information collected through these powers must not be used for purposes unrelated to public safety.
There is also a responsibility on the part of law enforcement officials to protect the confidentiality of that information, particularly if it proves to have no relevance to their investigations.

The three departments involved in the proposal should present a clear statement of the problems faced, together with operational evidence supporting the need for enhanced interception and surveillance powers proposed in the consultation document.

Concern for the protection of privacy from unnecessary erosion should extend beyond the proposals outlined in the consultation document. In the past year, Canadians have been faced with legislation unprecedented in its capacity to diminish the privacy of individuals. This included the Anti-terrorism Act, Omnibus Bill 4234 and the privacy-invasive provisions of the Canada Customs and Revenue Agency's air traveller surveillance database. The introduction of this legislation was fragmented, with no clearly articulated context and with limited consultation or discussion.

Privacy is a constitutionally protected right. Privacy in electronic communications should only give way to law enforcement and national security needs where those needs clearly outweigh the privacy interest and then only to the minimal extent necessary. The existing Criminal Code provisions dealing with interception of private communications appropriately balance individual privacy interests against the public interest in effective law enforcement.

The Government of Canada should only proceed further with the lawful access proposals if clear evidence is offered to support the need for changes. Most certainly, the Government of Canada should not proceed simply because it is expedient to do so in the post-September 11 climate of fear and insecurity.
It is worth noting that Australia, South Africa and the UK have recently experienced strong opposition to the enactment and implementation of new lawful access legislation with similar objectives to those outlined in the Canadian consultation document.

In spite of strict regulations on its use and the criminalizing of unauthorized access to the system, the government will be unable to prevent abuse of the system in practice.

Criminals will quickly detect that they are under surveillance and will use other means of communication, while most citizens will be targets of this vast system, unable to unplug all their telephones and other communications equipment.
No evidence has been offered that existing interception and search and seizure laws are inadequate for dealing with today's electronic communications, nor does the Council of Europe Convention on Cybercrime offer a persuasive rationale for the proposals. The proposals would weaken existing legal protections of privacy in Canada without a clear and compelling justification.

Canadians are entitled to feel confident that their communications and on-line activities will not be arbitrarily intercepted or scrutinized.

The Convention has not yet been ratified by Canada, so whatever legal obligation is being asserted to implement its provisions is in fact non-existent.

If the Convention calls for unjustifiable intrusion on the privacy rights of Canadians which is inconsistent with our values and rights, the Convention should not be ratified by the Canadian government.
The government has not shown in the consultation document how it will comply with Article 15 - Conditions and Safeguards - of the Convention, in particular how it will provide adequate protection of human rights and freedoms and how it will observe the principle of proportionality. One might also ask how the imposition of the Convention could comply with its own Article 15.

B. Requirements to Ensure Intercept Capability

Any new legislation dealing with interception and seizure of Internet communications content and traffic data should be as narrow and specific as possible. Routine and exploratory electronic surveillance on a large scale must not be allowed. Overbroad measures would impair privacy rights and run afoul of section 1 of the Canadian Charter of Rights and Freedoms.

New technologies and communications services may well pose a challenge to existing interception methods and require CSPs to provide law enforcement agencies with basic interception and surveillance capabilities to achieve lawful access to them.

As stated in the consultation document, these capabilities should maintain the status quo, allowing existing state powers to be effectively applied to the new communications services. That is to say, law enforcement and national security agencies should have the same ability to intercept and monitor e-mail and cellphone communications, for example, as is now the case with letter mail and conventional wireline telephone communications.

More information should be provided on how the intercepts would be carried out, by whom and for what purposes, together with proposals on evidentiary thresholds, oversight controls and safeguards before a reasonable assessment is possible on this issue.

Requiring service providers to acquire technical capacity to provide lawful access co-opts the private sector inappropriately in state surveillance. The costs to CSPs will raise consumer prices and may diminish the competitiveness of Canada's Internet providers. The development and implementation of Internet technology will be driven by the interests of surveillance rather than by the needs or realities of Canadian business and its consumers.
Carrying out interceptions on a traditional wireline telephone system is not comparable with monitoring wireless communications systems or the Internet which can provide more personal information and be more privacy invasive. A new approach is needed rather than simply extending existing procedures to address new technologies.

The infrastructure, tools and databases necessary to provide the proposed lawful access will attract substantial interest on the part of numerous criminal organizations, terrorists and the intelligence services of countries that are not signatories to the Convention and who will be unconcerned by any possible penalties imposed for breaking the rules on access to the system.

C. Data Retention and Preservation Orders

The government should continue to resist any suggestions that general retention requirements be part of the lawful access initiative.

Preservation orders are just as dangerous and inappropriate from a privacy viewpoint as retention orders. The concept of a preservation order does not exist in Canadian law, so the assertion that this type of authority is necessary to "maintain" existing lawful access capability cannot be so.

It is not clear from the consultation document what level of proof of suspected wrongdoing would have to be presented to a judge in order to serve a preservation order on a CSP. In some circumstances it appears that no proof would be necessary - the order would simply be issued by law enforcement or national security agencies.

The judge asked to approve a preservation order may be less inclined to insist on rigorous proof that it is necessary, since the information will not be handed over to law enforcement agencies at that time. Similarly, the second judge asked to order the actual production of the information may assume that the appropriateness of the whole intrusion has already been established before the first judge.

It is possible that preservation orders could be served that covered message content rather than traffic data. ISP preserved content could then be accessed subsequently by law enforcement agencies with a search warrant which is considerably easier to obtain than an interception order.

An order requiring preservation of information at an ISP introduces additional privacy risks such as data security at the ISP as well as potential unlawful access by hackers and others.

Provisions should not be drafted that would require ISPs to retain all traffic data and content for a specific period solely for the purposes of a hypothetical law enforcement action. Such measures would be overbroad and could seriously harm Canadian privacy, as well as the business of Canadian-based ISPs. Canadians could flee to ISPs based outside Canada to preserve their privacy and cause serious damage to an industry that underpins domestic electronic commerce.

The principle of data preservation orders presents no problem, but the breadth of Articles 16 and 17 of the Convention 35 certainly does and the proposed 90, 120 or 180 day periods are too long.

Preservation orders should only apply to stored computer data (not paper records). They should only be available to support an ongoing investigation into a possible violation of criminal law.

Law enforcement agencies, consistent with section 487.11 of the Criminal Code, should only be able to secure an exigent preservation order when it would be impracticable to obtain a judicial order in the circumstances.

Requiring ISPs to track all online activities of their subscribers, so that this information could potentially be used as evidence, would require a massive investment in storage capacity for the ISPs. This could cause them to increase their fees substantially, impeding the growth of online services in Canada. It could also result in industry consolidation with negative implications for privacy and free speech.

This massive aggregation of data will be of little use to law enforcement agencies unless they have adequate resources to review and analyze the vast amounts of data that would be collected daily.

D. General Production Orders

The consultation document does not make the case for production orders - the need has not been established. However, a general production order has been proposed, which is like a search warrant without the need for a law enforcement officer to be present.

General production orders be should be available only from a judicial authority applying existing standards. It seems unclear, however, why authority to compel CSPs to provide this information should be necessary now, when law enforcement agencies have traditionally been able to obtain it.

E. Specific Production Orders for Traffic data

The assumption in the consultation document that traffic data necessarily involves a lower expectation of privacy should be called into question. In the case of regular telephone communication, telecommunications associated data consists merely of phone numbers dialled by a subscriber and the incoming phone numbers of callers who have attempted to contact that subscriber. By contrast, collection of telecommunications associated data related to e-mail and Internet communications can yield a great deal of information about the intimate details of Canadians' personal lives.

F. CNA/LSPID Information

The consultation document suggests the creation of a national database containing customer name and address and local service provider information (CNA/LSPID) for all Canadian subscribers, because law enforcement/national security agencies are experiencing difficulty in identifying the local service provider associated with a given telephone number or subscriber. A national database of this kind should not be created.
If it involves some effort on the part of law enforcement agencies to obtain CNA/LSPID information, they will think twice before seeking to secure it. Moreover, a unique identifier like a phone number when associated with a person's name and address is worthy of privacy protection. There is no need to change the current law and practice concerning access to this information.

A centralized national database registry of Internet subscribers would allow law enforcement agencies to routinely trace an IP address back to the registered user rather than requesting this information from an ISP. If carried out, this proposal would obliterate any expectation of privacy and anonymity on the Internet.

Many people have multiple e-mail accounts, both at home and at work. It is also not uncommon for people to close accounts with one ISP and create new ones with another provider offering a better deal. The logistics of creating and maintaining a comprehensive national database of up-to-date e-mail customer account information looks unworkable and also represents a drain on resources better used elsewhere.

In addition to the belief that the creation of this database would further conscript the private sector into surveillance must be added concern about the proliferation of government databases containing information about Canadians.

This proposal should not be adopted. There has been no clear justification of need on the basis that the present means of collecting subscriber information are inadequate, or that such a database will actually work and not be circumvented by criminals.

The consultation document also suggests that all service providers be obliged by law to collect, verify and maintain a record of the identity and address of all their subscribers. This would include an obligation on those selling pre-paid cellphones or phone cards to collect (and communicate to ISPs) people's sensitive information, such as driver's license and credit card numbers, before making the sale. This would be a gross invasion of privacy.

G. E-mail Interception

These questions should have been put to Canadians directly during the consultation process:
Should it be lawful to open an e-mail account in Canada without the client providing basic personal information for each e-mail address?
What are the appropriate kinds of personal information that could be collected by Canadian ISPs?
What degree of on-line anonymity would be permissible under the proposed amendments?
Would anonymous re-mailing of e-mail within Canada remain lawful?
Would encrypted e-mail be permitted within Canadian borders and, if so, on what terms?

An e-mail, which can contain text, sound and graphics files, is a rich source of intimate personal information about the sender and, potentially, about the recipient. The Alberta courts have affirmed that the recipient of the content of an e-mail enjoys a Charter-based reasonable expectation of privacy in that communication36. Existing standards respecting interception of private communications should apply to e-mail interception. The issue of how much lower the expectation of privacy is in the case of an e-mail header was left unanswered by R v. Weir.

H. Other Topics Introduced by respondents

Nowhere does the consultation document indicate that accountability measures are being contemplated.
The proposals in the consultation document call for high levels of trust by Canadians in our law enforcement and intelligence communities, without offering corresponding evidence that this kind of legal change is needed.

Broad judicial and other oversight mechanisms should be built into the lawful access proposal to ensure public accountability, transparency and scrutiny.

An oversight body should be established to enhance public confidence. This organization should require routine reporting of lawful access measures undertaken by law enforcement as well as providing an assessment of the efficiency of these measures.

Independent oversight of the nature and frequency of use of any new lawful access powers is essential, subject to the proper protection of law enforcement interests. A body such as the Security and Intelligence Review Committee of Parliament should be considered for oversight of any new lawful access to e-mail and other electronic communications data.
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3 months 2 weeks ago - 3 months 2 weeks ago #144243 by fucra
Tried to get RCMP to enforce 423 against Fortis when they cut our power but the RCMP would not do it.
Last Edit: 3 months 2 weeks ago by fucra.

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3 months 2 weeks ago - 3 months 2 weeks ago #144250 by terr-y

fucra wrote: Tried to get RCMP to enforce 423 against Fortis when they cut our power but the RCMP would not do it.


Reason behind this fucra is the fact that the rcmp do not have jurisdiction to enforce you're constitutional rights ..
They can not act outside of corporate policies without a federal court ruling or federal court order...
So if you're heart is really in having those held accountable ,you can file into federal court [fight the good fight,win an get such an order to proceed]
This is not for the faint of heart an one better know the inside of a court room [as well as what has been written over time],How such functions an be very respectful while getting you're points on record an in too evidence...Yes that's right evidence you have to have such to get that order an prove said evidence beyond doubt beyond "REBUTTAL"
Through the use of "facts" an "truth" which are two very different things in a court of law...
Facts will lead to truth,Truth will set you free as they say...LOL.
Take care,Never give up.

laws-lois.justice.gc.ca/eng/acts/c-46/section-423.html

Pictures ,videos, eye witnesses more then one,Helps when the witness does not know you at all an agrees with you on the facts.
Subpoenas learn how they work an how to use them.

Sometimes just flushing the toilet (so to speak) will do a soul good.

Enjoy the video an carry on.....





Side note:fucra


Criminal breach of contract

422 (1) Every one who wilfully breaks a contract, knowing or having reasonable cause to believe that the probable consequences of doing so, whether alone or in combination with others, will be

(a) to endanger human life,

(b) to cause serious bodily injury,

(c) to expose valuable property, real or personal, to destruction or serious injury,

(d) TO DEPRIVE the INHABITANTS of a city or place, or part thereof, wholly or to a great extent, of THEIR supply of LIGHT, POWER,GAS, or

(e) to delay or prevent the running of any locomotive engine, tender, freight or passenger train or car, on a railway that is a common carrier,

is guilty of

(f) an indictable offence and is liable to imprisonment for a term not exceeding five years, or

(g) an offence punishable on summary conviction.
Marginal note:Saving

(2) No person wilfully breaks a contract within the meaning of subsection (1) by reason only that

(a) being the employee of an employer, he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment, or,

(b) being a member of an organization of employees formed for the purpose of regulating relations between employers and employees, he stops work as a result of the failure of the employer and a bargaining agent acting on behalf of the organization to agree on any matter relating to the employment of members of the organization,

if, before the stoppage of work occurs, all steps provided by law with respect to the settlement of industrial disputes are taken and any provision for the final settlement of differences, without stoppage of work, contained in or by law deemed to be contained in a collective agreement is complied with and effect given thereto.
Marginal note:Consent required

(3) No proceedings shall be instituted under this section without the consent of the Attorney General.[YEAH WE DON'T NEED THE A/G'S CONSENT]

R.S., c. C-34, s. 380.

If you do this right ... You can get the consent they claim you need.[which is easily rebutted as further intimidation.]
(3) No proceedings shall be instituted under this section without the consent of the Attorney General.


This one hits home for me!!!

Last Edit: 3 months 2 weeks ago by terr-y.

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3 months 2 weeks ago #144259 by SuzyCreamcheeze
There is no more Law, just as there are no facts, proof or truth, no State lines, no authority, no county lines and no nations. There is, however Damage Control and, we have a Skype forum to role play in, to defend ones self in arraignment, by Socratic questioning, never getting to trial. Invitation is by personal selection, only if you know that nothing else works.

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3 months 2 weeks ago - 3 months 2 weeks ago #144267 by terr-y
15. Obedience to de facto law

15. No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.
R.S., c. C-34, s. 15.


Ok folks what you have here is OXYMORON!!!

Something defact-0 can not be in possession of anything SOVEREIGN

An we will not get into the persons b/s here either.That being that anyone who has studied already knows!:woohoo:

Charter of rights section 15

laws-lois.justice.gc.ca/eng/Const/page-15.html

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Marginal note:Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability


www.justice.gc.ca/eng/csj-sjc/just/05.html
Last Edit: 3 months 2 weeks ago by terr-y.
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3 months 2 weeks ago - 3 months 2 weeks ago #144268 by terr-y
publications.gc.ca/Collection-R/LoPBdP/CIR/917-e.htm


91-7E



SEARCH, SEIZURE, ARREST AND
DETENTION UNDER THE CHARTER



Prepared by:
Marilyn Pilon
Law and Government Division
Revised 15 February 2000

TABLE OF CONTENTS



ISSUE DEFINITION

BACKGROUND AND ANALYSIS

A. The Interpretation of an Entrenched Charter

B. Search or Seizure: Section 8

1. Application
2. A "Reasonable Expectation of Privacy"
3. Border Crossings
4. "Warrantless" Searches
5. Warrant Improperly Obtained or Executed
6. Plain View Doctrine
7. Search of the Person
8. Common Law Power of Search Incidental to Arrest
9. Electronic Surveillance
10. Breath Tests and Blood Samples
11. Garbage
12. Waiver

C. Arrest and Detention: Sections 9 and 10

1. Arbitrary Detention
a. Random Stops of Motorists

2. Right to Retain Counsel
a. The Interests Protected
b. Obligations of Law Enforcement Agencies
c. Application to Sobriety Tests

3. Habeas Corpus: Section 10(c)

D. Exclusion of Evidence under Section 24(2) of the Charter

PARLIAMENTARY ACTION

A. Bill C-109

B. Bill C-104

C. Bill C-16

CASES

SEARCH, SEIZURE, ARREST AND DETENTION UNDER THE CHARTER*

ISSUE DEFINITION

The Canadian Charter of Rights and Freedoms came into force on 17 April 1982. The legal rights guaranteed by the Charter are contained in sections 7 to 14. These sections deal with such matters as the right to life, liberty and security; the right to be secure against unreasonable search and seizure; the rights of an accused upon arrest; the right of an accused to certain proceedings in criminal and penal matters; and the right not to be subject to cruel and unusual punishment.

There are now a great number of decided cases dealing with these sections. This paper will concentrate on significant decisions of the provincial courts of appeal and the Supreme Court of Canada with respect to the provisions relating to search and seizure (section 8), arrest and detention (section 9 and section 10).

BACKGROUND AND ANALYSIS

A. The Interpretation of an Entrenched Charter

When analyzing the decisions of the courts with respect to these sections, it is important to remember that the Charter is entrenched in the Constitution of Canada and that, by virtue of section 52(1) of the Constitution Act, 1982, "the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

It could be argued that two sections of the Charter illustrate a conscious attempt by its framers to restrain the Canadian courts from achieving the level of judicial activism prevalent in the United States and to continue in some measure the Canadian tradition of parliamentary supremacy. Section 1 allows legislatures to impose reasonable limits upon rights and freedoms, while section 33 allows the legislatures to declare expressly that a statute may operate notwithstanding certain sections of the Charter.

In its decision in Southam, the Supreme Court of Canada indicated that "the task of expounding a constitution is crucially different from that of construing a statute." When considering the application of the Charter, it is important to recognize that it is a purposive document; that is, "its purpose is to guarantee and to protect within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action."

In this context of the contrast between the concepts underlying the Charter and the American Bill of Rights, this paper examines the legal rights protected by sections 8, 9 and 10. It comments on the issues that may arise from attempts to interpret and apply the various sections and goes on to discuss court decisions showing the impact of the sections on the criminal justice system.

B. Search or Seizure: Section 8

Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search and seizure.

A variety of court decisions have dealt with the question of whether searches are or are not reasonable in various situations and the ancillary question of whether evidence obtained during the searches can be adduced at trial.

1. Application

The courts have held that a corporation is included in the word "everyone," which delineates who should receive the protection of this section. It has also been noted that because the word "seizure" in this section is associated with the word "search," the protection afforded does not extend to the taking of real property by expropriation. As well, in Thomson Newspapers Ltd., the Supreme Court of Canada said that the "essence of a seizure ... is the taking of a thing from a person by a public authority without that person’s consent." Only something inanimate is subject to "seizure" because, as the Court said in this case, "the word ‘seizure’ ... should be restricted to tangible things." Thus, the "seizure" of a person’s thoughts by ordering that person to testify does not amount to "seizure" under section 8.

The Supreme Court of Canada in Hunter v. Southam Inc. determined that section 8 of the Charter was applicable to the search and seizure sections of the Combines Investigation Act. The court found these sections to be unconstitutional for two reasons. First, the person designated to authorize the search under the legislation was not capable of acting judicially because he was also charged with investigative and prosecutorial functions as a member of the Restrictive Trade Practices Commission. Second, the sections of the Combines Investigation Act that dealt with authorizing searches and seizures did not achieve the minimum standard required by the Charter. This standard is that there must be reasonable and probable grounds, established under oath, to believe that an offence has been committed and that evidence of this offence is to be found at the place of the search. Thus, the court concluded that the search and seizure sections of the Combines Investigation Act were inconsistent with the Charter and therefore of no force or effect.

Similarly in Kruger, the Minister of National Revenue had authorized under the Income Tax Act a search of both the accused’s business premises and the private residences and business premises of other named persons. This authorization was approved by a judge of the Superior Court of Quebec on the basis of an affidavit. Following the seizure, the accused made an application to the Federal Court, Trial Division, which subsequently struck down the authorization as unreasonable because it was a blanket order covering the violation of any provision of the Act and was not limited to the particular violations allegedly committed. The judgment was upheld in the Federal Court of Appeal on the grounds that the Act conferred such a wide power that it left the individual without any protection against unreasonable search and seizure.

Although the Supreme Court of Canada has subsequently held that powers of inspection conferred by certain labour legislation also come within the ambit of section 8 of the Charter, it has declined to apply the strict guarantees set out in Hunter, "which were developed in a very different context." Comité Paritaire v. Potash concerned the powers of an agency responsible for implementing an Act respecting Collective Agreement Decrees, a Quebec Act that imposed specific working conditions and wages on a given industry. The Act allowed compliance to be monitored by the Comité, who could, at the workplace, "at any reasonable time" and without a warrant, examine and copy the employer’s documents, verify wages and work hours and require the production of other information deemed necessary. Penalties for offences under the Act were exclusively in the form of fines and breach of a decree would generally lead to a civil action for wages. The Court ultimately found that "n view of the important purpose of regulatory legislation, the need for powers of inspection, and the lower expectations of privacy, a proper balance between the interests of society and the rights of individuals does not require, in addition to the legislative authority, a system of prior authorization."

2. A "Reasonable Expectation of Privacy"

In Weatherall v. Canada (Attorney General), the Supreme Court of Canada held that section 8 of the Charter was not called into play by frisk searches and unannounced cell patrols conducted in male prisons by female guards. Since "imprisonment necessarily entails surveillance, searching and scrutiny," prisoners "cannot hold a reasonable expectation of privacy with respect to these practices." The Supreme Court of Canada has since relied on the lack of such expectation to deny section 8 protection in a number of cases. For example, in R. v. Edwards, the Court held that an accused did not have a "reasonable expectation of privacy" at his girfriend’s apartment and, consequently, he could not contest the admissibility of evidence found there. Similarly, in R. v. Belnavis, a six-to-three majority of the Supreme Court agreed that a passenger in a private motor vehicle had no expectation of privacy either in the vehicle or in relation to items seized from it, unlike the driver, who was driving with the apparent permission of the owner. Likewise, in R. v. Lauda, a unanimous Supreme Court of Canada found that a trespasser growing marijuana in abandoned fields had "no reasonable expectations of privacy" in the property.

In the landmark case of R. v. M. (M.R.), a majority of the Supreme Court of Canada has also held that a student’s reasonable expectation of privacy in the school environment is "significantly diminished" because school authorities are responsible for "providing a safe environment and maintaining order and discipline in the school." Therefore, students must know "that this may sometimes require searches of students and their personal effects and the seizure of prohibited items." In the result, the court held that the seizure of marijuana from a student searched during a school dance did not infringe his rights under section 8 of the Charter. While setting out the parameters for a reasonable warrantless search in such circumstances, it must be noted that the majority decision expressly limited its findings to the elementary or secondary school milieu, with "no consideration" having been given to a college or university setting. In dissent, Mr. Justice Major agreed with the trial judge’s opinion that the vice-principal was acting as an agent of the police officer who was present at the time of the search. Major J. would, therefore have excluded the evidence because it had been obtained in breach of the accused’s section 8 Charter rights and its admission "would adversely affect trial fairness."

3. Border Crossings

The Simmons decision of the Supreme Court acknowledged Canada’s right as a sovereign state to control both who and what crosses its boundaries. The fact that those travelling through customs have a lower reasonable expectation of privacy does not, however, diminish the obligation on state authorities to adhere to the Charter, even if the grounds prompting the search are reasonable and drugs are found as a result of the search. Before any search, the inspectors must clearly explain the subject’s rights under the Charter - especially the prior right to consult a lawyer - and the right to have the search request reviewed before complying with it, as provided in the Customs Act. In Simmons, the subject remained ignorant of her legal position because she was not properly informed of these rights. As a result, the Supreme Court found that the search was unreasonable; even so, the evidence was not excluded since the customs officers had acted in good faith.

The Supreme Court of Canada had held in several cases before Simmons that the invalidity of a search power does not render evidence inadmissible if the officers conducting the search believed in good faith that the statutory provisions governing the search were constitutional. In R. v. Greffe, however, "the inference of extreme bad faith on the part of the police [arising] from their deliberate failure to provide the accused with the proper reason for the arrest" resulted in the exclusion of the seized drug evidence.

In Greffe, the R.C.M.P. had alerted customs officers in Calgary that the accused was returning to Canada with an unknown quantity of heroin. A visual search of his person was conducted after no heroin had been found in his luggage. He was not advised of his right to consult a lawyer or of his right under the Customs Act to have the search request reviewed by a justice of the peace, police magistrate or senior Customs Officer.

No drugs were found and the suspect was arrested, informed of his right to counsel and advised that a doctor would perform a body search at a hospital. During the body search a condom containing heroin was removed from the accused’s anal cavity.

The Supreme Court found that at the time of the search the police had not had reasonable and probable grounds to suspect that the accused had drugs on his person; the informer’s tip had not contained sufficient detail for the police to be sure that it was based on more than rumour. The informer had not disclosed the source of his knowledge, and the police had no indication of his reliability. Furthermore, there was confusion about the reasons the accused was given for his arrest. When combined with the lack of advice on the right to consult counsel, the "cumulative effect" of Charter violations was "very serious" and enough to warrant exclusion of the evidence.

The Supreme Court of Canada has since concluded that section 98 of the Customs Act, authorizing searches for contraband "secreted on or about" the person, applies to contraband that a traveller has ingested. In R. v. Monney, the Court concluded that a customs officer who has reasonable and probable grounds to suspect that contraband has been ingested is authorized by the Act to detain the traveller in a "drug loo facility" until that suspicion can be confirmed or dispelled. Although such action amounts to a search for the purposes of section 8 of the Charter, the Court confirmed that "the degree of personal privacy reasonably expected at customs is lower than in most other situations" and that the search in question was "reasonable for the purposes."

4. "Warrantless" Searches

In Collins v. The Queen, the Supreme Court of Canada said that the Crown has the burden of establishing that a warrantless search is reasonable; a search will be reasonable if it is authorized by a law that is reasonable and is carried out in a reasonable manner. Section 10 of the Narcotic Control Act authorizes police officers to search without warrant a place other than a dwelling-house, if they have reasonable grounds to believe that it contains a narcotic in respect of which an offence has been committed.

In the Kokesch case, the police conducted a "perimeter search" of the accused’s property in order to find evidence of cultivation and possession of narcotics for the purpose of trafficking. The Supreme Court of Canada held that, where there was a mere suspicion of the crime, such conduct amounted to an unreasonable search and seizure. The police do not have the power under the common law to trespass on private property to conduct a search.

In the Grant and Plant decisions, both released 30 September 1993, the Supreme Court of Canada clarified a number of outstanding search and seizure issues. Like Kokesch, the two cases involved warrantless perimeter searches of private dwellings in the investigation of drug offences. In R. v. Grant, the court held that "warrantless searches pursuant to section 10 of the Narcotic Control Act must be limited to situations in which exigent circumstances render obtaining a warrant impracticable," in order to avoid violation of section 8 of the Charter. Exigent circumstances would include "imminent danger of the loss, removal, destruction or disappearance of the evidence," should the search be delayed to obtain a warrant. In the absence of evidence demonstrating those exigent circumstances, two warrantless searches conducted by the police were held to be unreasonable and in violation of section 8. Even without the information gained through the warrantless perimeter searches, however, there had been sufficient information to sustain the warrant subsequently obtained by the police to search inside the house. The court nevertheless considered excluding the evidence pursuant to section 24 (2) of the Charter, because there was a "sufficient temporal connection" between the invalid perimeter search and the evidence obtained pursuant to the valid warrant. The Court ultimately decided that the administration of justice would not be brought into disrepute by the admission of the evidence of marihuana plants found in the house. Even though the warrantless perimeter search involved a trespass by state agents where there was no urgency, the police had acted in good faith, the charges involved serious indictable offences and the admission of "real" evidence would not tend to render the trial unfair.

The Supreme Court of Canada also held that valid authorization for narcotics searches may be had under the warrant provisions of the Criminal Code, as well as under those of the Narcotic Control Act; the British Columbia Court of Appeal had held that a search warrant had been improperly obtained under section 487 of the Criminal Code since warrants for Narcotic Control Act offences could only be issued pursuant to section 12 of that Act.

In R. v. Plant, six of seven judges in the Supreme Court of Canada held that there was no reasonable expectation of privacy in relation to computerized records of electricity consumption that would outweigh the state interest in enforcing laws against narcotics offences. Acting on an anonymous tip that marihuana was being grown in a basement, Calgary police had accessed utility records showing electricity consumption in the building to be four times the average of that in comparable properties. The Court held that the transaction records maintained as a result of the commercial relationship between the accused and the utility could not be characterized as confidential; the police were permitted computer access through a password and the information was also open to inspection by members of the public. Because the warrantless search of computer records was not unreasonable and did not fall within the parameters of section 8 of the Charter, evidence of the accused’s high electricity consumption could be used to support an application for a search warrant under the Narcotic Control Act; however, information obtained by warrantless perimeter search could not be so used. Concurring in the result, Madam Justice McLachlin argued that there was "a sufficient expectation of privacy to require the police to obtain a warrant before eliciting the information" relating to electricity consumption.

In R. v. Silveira, the Supreme Court of Canada considered the validity of police actions in another drug investigation where, following the appellant’s arrest, police had entered his home without a warrant in order to secure the premises and prevent the destruction of evidence. In the meantime, a search warrant was sought and obtained and a subsequent search of the home uncovered quantities of drugs and marked cash previously used by undercover officers when buying drugs from a third party. Writing for the majority, Mr. Justice Cory noted that the Crown had properly conceded that police action constituted a breach of the appellant’s section 8 rights. Nevertheless, he upheld the use of the resulting evidence after considering the three tests for exclusion under section 24 (2) as previously set out in R. v. Collins. First, because the evidence would have been found in any event, its admission was held not to affect the fairness of the trial. Second, although the facts revealed a serious Charter breach, the violation was committed under exigent circumstances with no evidence of bad faith on the part of the police. Finally, because of the seriousness of the crime and the need for the impugned evidence to prove the case, "[t]he admission of the evidence would not have an adverse effect upon the reputation of the administration of justice." However, the majority also emphasized that "after this case it will be rare that the existence of exigent circumstances alone will allow for the admission of evidence obtained in a clear violation of s. 10 of the Narcotic Control Act and s. 8 of the Charter."

With respect to other forms of warrantless search, the Supreme Court of Canada has further held that "sniffing" for marijuana at the door of a suspect’s house constituted an unreasonable search. Thus, a warrant supported by the "evidence" thereby obtained was found to be invalid. Writing for the majority in R. v Evans, Mr. Justice Sopinka acknowledged an "implied invitation" extending to members of the public, including the police, to knock in order to communicate with the occupants of a dwelling. The police had approached with the intention of securing evidence against the occupant; thus, they were engaging in a search, which the lack of any prior authorization rendered unreasonable and in violation of section 8 of the Charter. Because, however, the police had acted in good faith, the impugned real evidence (in the form of marijuana plants) existed irrespective of the Charter violation, and the violation was not particularly grave, the Supreme Court of Canada held that the evidence was admissible since exclusion would have been more harmful to the administration of justice.

In R. v. Schrieber, the Supreme Court of Canada considered whether the Canadian standard for the issuance of a search warrant had to be satisfied before the Minister of Justice could submit a letter asking Swiss authorities to search for and seize documents relating to the respondent’s bank accounts in Switzerland. In the result, five of seven justices agreed that the letter of request did not engage section 8 of the Charter. Writing for the majority, Madam L’Heureux-Dubé further held that "[n]either the actions of the Swiss authorities, nor the laws which authorized their actions, are subject to Charter scrutiny." She did concede, however, that, in the context of a criminal trial in Canada, section 7 might be applied "to justify excluding evidence obtained abroad through foreign officials where it is necessary to preserve the fairness of the trial."

In R. v. Feeney, the Supreme Court of Canada had occasion to consider the post-Charter law of arrest following forced entry into a dwelling house, with or without a warrant. The common law had previously allowed police to enter a dwelling house without a warrant, in order to effect an arrest, provided certain specific criteria were met. However, a five-to-four majority in the Feeney case decided that, post-Charter, "generally a warrant is required to make an arrest in a dwelling house," except in cases of "hot pursuit." The Supreme Court went on to say that an ordinary arrest warrant would be insufficient because it contains no express power of trespass. Privacy rights protected by the Charter "demand that the police, in general, obtain prior judicial authorization of entry into the dwelling house in order to arrest the person." Furthermore, if the Criminal Code "currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in." Because of the failure to obtain a warrant, in combination with other Charter violations, the Supreme Court of Canada excluded much of the evidence obtained as a result of a forced entry into the accused’s dwelling house and ordered a new trial.

In response to the decision in the Feeney case, the Crown sought and obtained a six-month stay of the operation of that aspect of the judgment "relating to the requirement for a warrant to effect an arrest in a dwelling." The transition period, which would have no application to the Feeney case, was scheduled to expire 22 November 1997.

On 30 October 1997, Criminal Code amendments in the form of Bill C-16 were introduced and given first reading. The amendment provided a mechanism for peace officers to obtain prior judicial authorization to enter a dwelling house for the purposes of making an arrest.

5. Warrant Improperly Obtained or Executed

In Caron, a search warrant was obtained only with respect to stolen traveller’s cheques. During the search, no such cheques were found; however, police seized a prohibited weapon, which they had had reason to believe was on the premises when they applied for the search warrant. The court held that the police should have disclosed the fact that they were looking for a prohibited weapon when they requested the search warrant. "By withholding information from the justice of the peace, and by achieving the desired result on the pretext of being interested only in other unrelated items, the informant was removing the process from the judicial arena." It was held that the warrant obtained did not provide legal authority to conduct the search for the weapon. Similarly, in the Imough case, it was learned at trial that the police officers had not had proper grounds for obtaining the warrant. The court held that to admit the evidence "would shock the conscience of the community and bring the administration of justice into disrepute having regard to the sanctity of a person’s dwelling and [the fact] that the search in this case was conducted entirely without legal authority."

Notwithstanding a properly obtained and lawful search warrant, the British Columbia Court of Appeal has excluded evidence resulting from a warrant that was executed in an improper manner. In R. v. West, the police allowed a television crew to accompany them on the execution of a search warrant that had been obtained on the basis of a media investigation. During execution of the warrant, a television camera crew had followed the police into the accused’s apartment and filmed him being arrested and handcuffed. The British Columbia Court of Appeal held that the search was unreasonable "because it exceeded the authority of the warrant and it violated, for no investigatory or juridical purpose, the highest possible privacy interest of the accused in the security of his residence." Given the seriousness of the Charter breach, the evidence obtained during the search was held inadmissible and a new trial was ordered.

6. Plain View Doctrine

In Shea, the Ontario High Court followed the "plain view" doctrine cases in the United States in deciding that, once a police officer is lawfully in residential premises, he has the right to seize articles such as narcotics that are in plain view.

7. Search of the Person

A review of the cases where search of a person was conducted seems to indicate that the courts strictly scrutinize such searches and in many cases find them unreasonable and exclude any evidence they produce. For example, in Collins, a British Columbia case, the accused was sitting in a bar which was said to be frequented by heroin users and traffickers. The accused was seized by two police officers; while one of them employed a choke hold that rendered her semiconscious, the other forced open her mouth. While this was happening, three caps of heroin dropped out of the accused’s right hand. The court held that the officers in this case had not had reasonable and probable grounds to believe that narcotics were in the accused’s mouth and that therefore the search was unlawful. The court went further and determined that to admit the evidence would bring the administration of justice into disrepute, for it would condone and allow the continuation of unacceptable conduct by the police. This decision was affirmed on appeal by the Supreme Court of Canada.

In Heisler, a random search of people entering a rock concert disclosed a large quantity of drugs in the accused’s possession. The evidence revealed, however, that there had been no grounds upon which to base the search. The Alberta Provincial Court determined that the accused had been subjected to an unreasonable search that went beyond the bounds of mere bad taste and impropriety. The evidence was excluded on the grounds that to admit it would bring the administration of justice into disrepute. In the Roy case, however, the Ontario High Court held that where posted signs declare that entry to a rock concert is conditional on submitting to a search, such a search is not in violation of section 8.

In Debot, the police received a tip from an informant that the appellant was going to take delivery of a substantial quantity of the amphetamine "speed." He was stopped, ordered from his car, and told to assume a "spread eagle" position and to empty his pockets; speed was found. Although the search was carried out without a warrant, the Supreme Court of Canada held that the police had acted reasonably and that the evidence should not have been excluded as the trial judge had ordered. Chief Justice Dickson said that, although a detainee must be informed of the right to retain and instruct counsel immediately upon detention - a requirement the police had observed in this case - and although the "spread eagle" direction amounted to a detention, the police are not obligated to suspend a search as an incident to an arrest until the detainee has had the opportunity to retain counsel.

Chief Justice Dickson went on to say that denial of the right to counsel as guaranteed by section 10 of the Charter will result in a finding that a search is unreasonable only in exceptional circumstances. A search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search is carried out is reasonable. The denial of the right to counsel does not affect the "manner" in which the search is conducted, which, according to the Court, relates to "the physical way in which it is carried out." The Court also said that "evidence obtained by way of a search that is reasonable but contemporaneous with a violation of the right to counsel will not necessarily be admitted" and, indeed, "evidence will be excluded if there is a link between the infringement and the discovery of the evidence, and if the admission of the evidence would bring the administration of justice into disrepute."

8. Common Law Power of Search Incidental to Arrest

Langlois and Bedard marked the first time the Court comprehensively considered the question of the existence and scope of the power of the police to search a person who has been lawfully arrested. In that case, the appellants were constables employed in Montreal. The respondent, Cloutier, a lawyer practising in that city, was stopped by the constables after he had committed a motor vehicle infraction. When it was discovered that a warrant of committal for unpaid traffic fines had been issued for him, he was arrested and "frisk searched" before being placed in the patrol car. Cloutier subsequently charged the appellants with common assault, contrary to the Criminal Code.

The Supreme Court analyzed the scope of the recognized and long established common law power of the police to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings in order to guarantee the safety of the police and the accused, to prevent the latter’s escape or to obtain evidence.

Following the Collins and Debot decisions, the Court held that a search will not be wrongful if it is authorized by law, if the law is itself reasonable and if the search is conducted in a reasonable manner. Therefore, since a frisk search "is a relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual," it "does not constitute, in view of the objectives sought, a disproportionate interference with the freedom of persons lawfully arrested. There exists no less intrusive means of attaining these objectives."

The Court outlined three criteria for establishing a search as reasonable and justified: (1) that the police are under no duty to search but can exercise their discretion in each case, based on the particular facts; (2) that the search is "for a valid objective in pursuit of the ends of criminal justice," such as a search for weapons or evidence; and, (3) that the search "must not be conducted in an abusive fashion."

The power of search incidental to arrest has since been held to extend to the search of a vehicle for the purposes of obtaining evidence against a driver arrested for possession of narcotics. However, a four-to-three majority of the Supreme Court of Canada in R. v. Caslake also held that a search undertaken not for that purpose, but rather to inventory the contents of the vehicle, was "not within the bounds of the legitimate purposes of search incident to arrest." Despite the resulting violation of section 8 of the Charter, the Court held that the evidence obtained in the search was admissible, since "[t]he trial was still fair, the breach was not serious, and exclusion of the evidence would have a more detrimental impact on the administration of justice than its admission."

In 1997, the Supreme Court of Canada held that the common law power of search incidental to arrest is not sufficient authority for the seizure of bodily substances for forensic DNA analysis, in the face of a suspect’s refusal to provide them. In R. v. Stillman, the court held that the accused’s section 8 rights had been violated when hair samples and buccal swabs were seized by the police, under threat of force and without any legislative authority. Furthermore, because the evidence would not have been discovered without the "conscription" of the accused [as defined by Mr. Justice Cory in Stillman] in violation of his Charter rights, the Supreme Court of Canada ruled that admitting the DNA evidence would render the trial unfair.

At the time of the arrest in the Stillman case, there was no legislative authority to seize biological samples for forensic DNA analysis, with or without the consent of an accused. Subsequent amendments to the Criminal Code, however, have since set out criteria and procedure for obtaining prior judicial authorization, in the form of a warrant, for the seizure of bodily substances for DNA analysis. Effective July 1995, the legislation allows the police to use "as much force as is necessary" to execute such a warrant, which can be issued for the investigation of only certain designated offences.

9. Electronic Surveillance

In R. v. Thompson, the Supreme Court of Canada held that the police cannot indiscriminately bug any and all pay phones that the accused might use; this would violate the public’s right to be free from unreasonable search and seizure. However, broadly-worded clauses in a judicial authorization permitting the bugging of phones at any place to which a suspect might "resort" are valid, provided the police have reasonable and probable grounds for believing that the person actually "resorts to" that place.

The Supreme Court of Canada decisions rendered on 25 January 1990 in the Duarte and Wiggins cases had a significant impact on policing methods, particularly undercover investigations involving drug and morality offences. In Duarte, the Court said that unauthorized electronic surveillance (i.e., room "bugging" or tape recording telephone conversations) and interception "of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by section 8." Until then, it had been legal for the police to intercept such communication, as long as one of the parties to the conversation consented. It is now necessary for a judge to authorize such interception in the same way as interception of an entirely private conversation ("wiretapping") where neither party has given prior consent.

In Duarte, the Supreme Court said that "the primary value served by section 8 is privacy," which it defined as "the right of the individual to determine when, how, and to what extent he or she will release personal information." Accordingly, "one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance and to which, in consequence, the protection accorded by s. 8 should be more directly aimed." The Court took the position that it could no longer allow the police an "unfettered discretion ... to record and transmit our words" without prior judicial authorization because this widespread police practice represented an "insidious danger" to the "very hallmark of a free society," namely, the "freedom not to be compelled to share our confidences with others." In Wiggins, the use of "body pack" microphones by police was also found to be unconstitutional, for the reasons expressed in Duarte.

In Wong, the Supreme Court extended even further the protection of the individual from invasion of privacy by the state. The Court held that the accused, by using public notices in restaurants to invite people to an illegal gambling operation in a hotel room, had not opened this operation to the public to the extent that it was no longer a private event. He had therefore not relinquished his protection under section 8. The Court applied the criterion developed in Duarte; it held that, although the accused had distributed public notices, these did not connote "tacit consent" to electronic surveillance by the police. Therefore, the gambling operation was still "private" and the unauthorized video surveillance by the police constituted an unreasonable search and seizure under section 8.

In R. v. Wise, the Supreme Court of Canada had occasion to consider the admissibility of evidence obtained through unauthorized installation and monitoring of an electronic tracking device. After installing a tracking device in the back seat of a car belonging to a "suspected serial killer," the police had followed the accused and obtained evidence to support mischief charges relating to damage of a communications tower worth millions of dollars.

The Court was unanimous in finding that both the installation and subsequent monitoring constituted unreasonable searches, in violation of section 8 of the Charter. However, a four to three majority held that the admissibility of the evidence must be considered in the context of a minimal intrusion of the "lessened privacy interest" attached to the operation of a motor vehicle as well as "the urgent need to protect the community." Since the location of the car at the time of the offence was "real" evidence that would not affect the fairness of the trial, and since the Court of Appeal had found that the police had acted in good faith, the majority of the Court held that admitting the evidence would not bring the administration of justice into disrepute. Relying on the Supreme Court’s earlier decision in Kokesch, however, the three dissenting justices would have excluded the evidence, since it was obtained through an illegal trespass knowingly committed by the police.

The Supreme Court has also considered the procedure for allowing the accused access to confidential "sealed packets" containing legal documents on the basis of which judicial authorization for wiretapping is granted. In Dersch v. Canada, and R. v. Garofoli, the court held that for access to be granted the accused need only make a request to examine the legal documents in the "sealed packet." Such access is necessary to permit the accused to make a full answer and defence, and in particular, to evaluate whether the wiretapping has been carried out in conformity with section 8.

Bill C-109, An Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radio Communication Act, S.C. 1993, ch. 40, was proclaimed in force on 1 August 1993. The Act addressed a number of the issues raised in the aforementioned Duarte, Wong, Garofoli and Wise cases.

For example, police may intercept private communications, with the consent of the originator or intended recipient and without prior judicial authorization, for the purpose of preventing bodily harm to the person consenting. The Act also specifically contemplates judicial authorizations for video surveillance and for the use of electronic tracking devices. In addition, it codifies procedure for courts to follow in allowing an accused access to the contents of the "sealed packet," in trials where electronic surveillance has been authorized.

10. Breath Tests and Blood Samples

The cases usually hold that compulsory breath tests do not constitute unreasonable search and seizure since they can be demanded only when there are reasonable and probable grounds to believe the motorist is impaired. The Ontario case of R. v. Fraser has determined that in the absence of reasonable and probable grounds, the taking of a breath sample amounts to unreasonable search and seizure.

The courts seem to be agreed that there is no unreasonable search and seizure where hospital personnel take a blood sample from an accused for use in treating him and where the sample is later turned over to the police pursuant to a search warrant.

In Dyment, however, the Supreme Court of Canada held that evidence concerning the results of a blood sample analysis should be excluded when a doctor who had taken a sample for purely medical purposes turned that sample over to an investigating police officer who had not noted signs of impairment and who had not asked the respondent or the doctor to provide a blood sample. The Court said that section 8 is concerned not only with the protection of property but also with the protection of the individual’s privacy against search or seizure. It considered the doctor’s action in taking the blood and the police officer’s acceptance of it as very serious Charter breaches: "A violation of a persons’s body is much more serious than a violation of his office or even his home," said the Court.

In R. v. Colarusso, the Supreme Court of Canada was called upon to consider whether police use of evidence obtained under Ontario’s Coroner’s Act constituted a breach of the accused’s section 8 Charter rights. The accused had been arrested and taken for hospital treatment, following a motor vehicle accident. The Coroner had subsequently seized blood and urine samples taken from the accused for medical purposes, pursuant to his statutory authority under section 16 of the Coroner’s Act. The samples were then given to the police for analysis. The accused was later convicted of impaired driving causing bodily harm and criminal negligence causing death, on the strength of subpoenaed evidence given by the analyst. A five-four majority of the Supreme Court of Canada held that the Coroner’s seizure was reasonable only as long as the evidence was used for valid non-criminal purposes under the Act. However, once "appropriated by the criminal law enforcement arm of the state for use against the person from whom it was seized," the seizure was unreasonable and in violation of section 8 of the Charter.

Nevertheless, the Court held that the evidence of impairment was admissible against Mr. Colarusso; this was based on a number of findings. First, the evidence was real evidence that existed prior to the infringement of section 8. Second, the hospital staff, the Coroner and the police had all acted in good faith and pursuant to what they believed to be valid statutory authority. Finally, if they had known it was necessary, the police could have obtained a warrant to seize the evidence or to obtain another blood sample. Those facts, "coupled with the aggravating circumstances surrounding the commission of the offence," caused the Court to conclude "that the administration of justice would not be brought into disrepute by the admission of the evidence."

11. Garbage

In R. v Krist, the British Columbia Court of Appeal considered whether police seizure of garbage bags left on the street for collection amounted to unreasonable search or seizure. The police used the presence of marijuana plants and other paraphernalia found in the garbage to obtain warrants to search the appellants’ home and vehicle, where additional plants and growing equipment were found. Relying on obiter comments made by the Supreme Court of Canada in R. v Dyment, the Court of Appeal found that once trash is "abandoned by a householder to the vagaries of municipal garbage disposal," he or she no longer has "a reasonable expectation of privacy in respect of it." Thus, even though its seizure was based on a tip of unknown reliability, police action did not amount to a breach of section 8 of the Charter.

12. Waiver

The Supreme Court of Canada has also had occasion to consider the nature of the consent required to waive an accused’s section 8 rights concerning blood samples for DNA analysis. In R. v. Borden, the accused had been arrested on a charge of sexual assault and advised of his right to counsel, before consenting to provide a blood sample to the police for purposes "relating to their investigations." The police had not informed the accused that he was also suspected in an earlier sexual assault and that they wanted the sample primarily for the purposes of that investigation. In the majority decision, Mr. Justice Iacobucci held that police failure to inform the accused of their predominant purpose in seeking the blood sample meant that there was no valid consent or waiver of his section 8 rights. At minimum, the police should have made it clear that the accused’s consent would be treated "as a blanket consent to the use of the sample in relation to other offences in which he might be a suspect." In the absence of such a waiver, or some other lawful authorization, the taking of blood was an unreasonable seizure. The majority of the Court also found a breach of the accused’s right to be informed of the reasons for his arrest under section 10(a) of the Charter and, consequently, his right to counsel under section 10(b). Finally, the Court concluded that admitting the DNA evidence would render the trial unfair, since it was obtained from the accused who was "completely uninformed about the main purpose of the police" in requesting it.

C. Arrest and Detention: Sections 9 and 10

These sections of the Charter state:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Standards by which the "arbitrariness" in section 9 can be measured are fast being established with successive decisions of the Supreme Court of Canada. Thus, it is arbitrary and offensive for the police, with little or no reason, to detain or arrest a person for questioning or for further investigation. It is not improper, however, for them to pursue their investigation following an arrest made on the basis of their reasonable and probable belief that the accused was committing or had committed an offence. In Storrey, the Court said that to make an arrest the police require nothing more than reasonable and probable grounds. They do not have "to establish a prima facie case for conviction before making the arrest."

With reference to section 10(a) Amos states that the Charter now enshrines what has always been the case in Canada: the law does not recognize any police right to arrest or forcibly detain any person who is not charged with an offence, merely in order to investigate an offence that the police believe has been committed.

The courts, when applying section 9, have tended not to overturn standard police practices. Thus, police demands that an accused submit to finger printing as required by law have been held not to be unreasonable or capricious. In the Beare and Higgins case, the Supreme Court of Canada held that taking the fingerprints of an accused who is in custody or is directed to appear, by an appearance notice or summons, does not violate any of sections 7, 8, 9, 10, 11(c) or 11(d) of the Charter. The Court said that fingerprinting is not contrary to the principle of fundamental justice and that the procedure is a relatively minor intrusion compared to others permitted the police at common law. Finally, although the Court acknowledged that the Charter guarantees a reasonable expectation of privacy, it held that a person arrested or charged must expect a significant loss of personal privacy.

It has also been decided that the provisions of this section are not infringed when a police officer stops a motorist on a highway for a vehicle check, and, after smelling alcohol on the motorist’s breath, demands a breath test.

1. Arbitrary Detention

a. Random Stops of Motorists

In a series of three cases (Dedman in 1985, Hufsky in 1988, and Ladouceur in May 1990) the Supreme Court of Canada pronounced on the constitutionality of police random stopping of motorists. In Dedman, Mr. Justice LeDain, for the majority of the Court, held that the 1980 Ontario R.I.D.E. program, in which police deployed checkpoints to screen impaired drivers, did not impinge a Charter right - even though the police did not have the statutory authority to conduct a random stop. The reason was that driving is a "licensed activity that is subject to regulation and control for the protection of life and property."

Mr. Justice LeDain also delivered the unanimous opinion of the Supreme Court in Hufsky, where the constitutionality of another Ontario police practice - spot check random stops - was reviewed. Unlike the R.I.D.E. program in Dedman, at issue in Hufsky was more than a search for impaired drivers. The random stops during these spot checks had a broad range of purposes, including checking for insurance papers and for the vehicle’s mechanical fitness. Mr. Justice LeDain said that the absence of police guidelines meant that the stops constituted arbitrary detention in violation of section 9 of the Charter, since the decision to stop a vehicle was made absolutely at the discretion of the police. That being said, however, his Lordship considered that the Charter limit imposed by the Highway Traffic Act was demonstrably justified in the interest of public safety. Again, for the Court, it was significant to note that driving could not be considered a fundamental right but was rather "a licensed activity subject to regulation and control."

In Ladouceur, at issue was the Ottawa police’s random stopping of a vehicle for essentially no reason and not as part of either an organized or spot check program. The Supreme Court split 5-4 in holding that this was an arbitrary stop that, following the Hufsky decision, was in violation of section 9 of the Charter. The stopping was not ruled to be unconstitutional, however, because it was a reasonable limit, demonstrably justified in a free and democratic society. The dissenting four justices agreed in the result, although they felt that allowing such a practice went beyond what the police should be enabled to do and gave them an unlimited right to stop vehicles.

In November 1992, the Supreme Court of Canada had occasion to review the extent of police powers over motorists detained at random check stops. In Mellenthin v. The Queen, the Supreme Court decided that visual inspection of vehicles with a flashlight was necessarily incidental to a check stop program carried out after dark. However, "a check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted."

2. Right to Retain Counsel

a. The Interests Protected

In Kelly, the Ontario Court of Appeal drew a distinction between the interests protected by paragraphs (a) and (b) of section 10. With respect to paragraph (a), the court held that a person is not obliged to submit to an arrest without knowing the reason for it; accordingly it is essential that the person be informed "promptly" of the reason. On the other hand, the purpose of paragraph (b) is to protect someone from prejudicing his or her legal position by saying or doing something without the benefit of legal advice. The requirement that the accused be informed "promptly" of the reason for the arrest means that the information must be given "immediately." However, the requirement that the accused be informed of the right to counsel "without delay" is not the same as requiring that the accused be informed "immediately." There may be good reason for an arrested person to be informed "without delay" of the right to counsel, but there is no essential reason why that must be part and parcel of the statement under paragraph (a) of the reason for the arrest; such a statement is really part of the arresting process itself.

In Ironchild, it was held that where an accused is asked whether he or she wishes counsel, gives an ambiguous reply and expresses only a vague desire to consult a lawyer, it is proper for the police to repeat the question without doing anything further. In the majority of other cases, however, the courts have held that this right requires that the accused be given a real opportunity to retain counsel. In the Nelson case, it was stated "there should not be a mere incantation of a ‘potted version’ of the right followed by conduct on the part of the police which presumed a waiver of the right. The thrust of this provision is the guarantee of information so that an early opportunity to make a reasoned choice is available to the accused. The purpose of making the accused aware of his right is that he may decide, and that means he should have a fair opportunity to consider whether he wishes to resort to his right."

Violation of the right to counsel has resulted in the exclusion of evidence pursuant to section 24(2) of the Charter. For example, in R. v Ross, the Supreme Court of Canada excluded identification evidence obtained during the accused’s participation in a police line-up. Police had conducted the line-up at 3 a.m., after the accused had made one unsuccessful attempt to contact counsel, and without advising him that he had no statutory obligation to participate.

Although the Supreme Court of Canada said, in R. v. Harrer and R. v. Terry, that section10(b) of the Charter did not apply to statements obtained in the United States by U.S. authorities, it has since held that the Charter can apply to the actions of Canadian authorities abroad. In R. v. Cook, Canadian police officers interrogated and obtained a statement from a suspect in a U.S. jail in connection with a murder committed in Canada. Although the trial judge and the British Columbia Court of Appeal held that the statement had been obtained in breach of section 10(b) Charter rights, both agreed that its use in evidence "did not render the trial unfair." On appeal by the accused, the Crown had argued that the Charter did not apply to evidence-gathering activities that took place outside Canada. Five of seven majority judges concluded that the Charter did apply "on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action." Relying on the general rule "that the admission of conscriptive evidence which would not have been discovered in the absence of the conscription of the accused will render the trial unfair," the court excluded the statement from evidence and ordered a new trial.

In R. v. Evans, the Supreme Court of Canada considered the extent to which arrested people must understand the police statement of their rights and when the police must reiterate the statement. When the accused in this case, who had an I.Q. of between 60 and 80, was informed of his rights and asked whether he understood them, he replied that he did not. Nevertheless, the police, who were aware of his diminished mental capacity, took him to the station and conducted interviews that eventually led to his confessions to two murders. The Court held that this was a violation of the accused’s right to counsel, and that the evidence of the confessions must be excluded under section 24(2).

In overturning the conviction and acquitting the accused, the Court categorically rejected the Appeal Court’s claim that the administration of justice would fall into disrepute if a self-confessed killer were freed merely because his right to counsel had been violated. The Court found that, due to the Charter violation, the reliability of the accused’s confessions was suspect, and he had not had a fair trial. The position of the Appeal Court had effectively presumed the accused’s guilt. A majority of the Court also held that the accused’s section 10(b) rights had been violated when the police began to suspect him of murder rather than a lesser offence but did not inform him anew of his right to counsel.

As a result of this case, police may have to make extra efforts to ensure that suspects understand their rights, particularly in cases involving children, people who do not speak the language used by the police, and those with diminished mental capacity.

The Supreme Court of Canada has since held that the right to counsel could not be validly waived by young persons who were unaware that they could face life imprisonment if their case was transferred to adult court. In R. v. I.(L.R.) and T.(E.), the Court said that if waiver is to be relied upon, the young person must know "the extent of his or her jeopardy." Stopping short of a blanket requirement that the police advise an accused of the maximum penalty he or she might face, Mr. Justice Sopinka was of the view that "the particular characteristics of young offenders make extra precautions necessary in affording them the full protection of their Charter rights."

In R. v. Whittle, the Supreme Court of Canada has also considered the mental capacity required for a valid waiver of an accused’s right to counsel. Mr. Whittle was a schizophrenic, who, at the time of his confession, was aware of what he was saying and understood the consequences, but was so disturbed that he did not care about them. Declining to impose a higher standard of cognitive ability than that required to stand trial, the Court applied the "operating mind" test; this requires "sufficient cognitive capacity to understand what he or she is saying and what is said," including the ability to understand the caution that evidence can be used against the accused. The Court found that evidence of an "nner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary."

b. Obligations of Law Enforcement Agencies

The Supreme Court of Canada has also considered whether there is an obligation upon the police to assist an accused person to exercise the right to counsel.

In Manninen, the Court held that section 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his or her rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay; this includes the duty to offer the respondent the use of the telephone. Certain circumstances might make it particularly urgent for the police to continue their investigation before facilitating a detainee’s communication with counsel; however, there was no such urgency in Manninen. Second, the police must refrain from questioning the detainee until the latter has had a reasonable opportunity to retain and instruct counsel. The purpose of granting right to counsel is not only to allow detainees to be informed of their rights and obligations under the law but also, and equally if not more important, to obtain advice as to how to exercise those rights.

In this case, the police officers had informed the respondent of his right to remain silent, but had proceeded to question him after he had "clearly asserted his right to remain silent and his desire to consult a lawyer." For the right to counsel to be effective, the accused would have to have had access to legal advice before being questioned or otherwise required to provide evidence. This aspect of the respondent’s right to counsel was clearly infringed, however, as police had continued questioning when there had been no urgency to justify it. The respondent had not waived his right to counsel by answering the police officers’ questions. Though a person may implicitly waive the rights under section 10(b), the standard is very high and was not met in this case.

In Baig, the Supreme Court held that the police obligation to provide an opportunity to retain and instruct counsel was not triggered until the accused expressed a desire to exercise that right. The corollary of this ruling would seem to be that police failure to promote the exercise of a Charter right would not amount to a Charter violation if the accused had not invoked the right.

However, in R. v Brydges, the Supreme Court has since held that an accused’s statement that he could not afford a lawyer amounted to a request for counsel. The accused, a native of Alberta who had been arrested in Manitoba for murder, was informed without delay of his right to retain and instruct counsel. He was again advised of this right at the police station. When the accused asked the investigating officer if Legal Aid existed in Manitoba, because he could not afford a lawyer, the officer replied that he thought there was such a system in the province, but made no attempt to confirm this. When then asked if he had a reason for wanting to speak with a lawyer, the accused said that he had not. After making a number of incriminating statements, the accused asked to speak with a Legal Aid lawyer. After his request had been granted, the accused declined further discussions with the police.

In upholding the trial court decision to exclude the incriminating statements because the accused’s rights under section 10(b), had been violated, the Supreme Court said that "(w)here an accused expresses a concern that the right to counsel depends upon the ability to afford a lawyer, it is incumbent on the police to inform him of the existence and availability of Legal Aid and duty counsel." Here, "the accused was left with the mistaken impression that his inability to afford a lawyer prevented him from exercising his right to counsel." The accused could not waive something he did not fully understand (i.e. his section 10(b) rights).

The decision in Brydges confirmed that the police are under two additional duties beyond that of informing the detainee of his section 10(b) rights: they "must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and ... refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity." The detainee must still exercise "reasonable diligence" in exercising this right and can, either explicitly or implicitly, waive it; however, he must understand and be aware of the consequences of so doing and any implicit waiver will be scrutinized very closely by the Court.

The Supreme Court also said that the police must advise of the existence and availability of duty counsel and Legal Aid in all cases of arrest or detention - not only those where the detainee is or appears to be impecunious. This is the case even if, following advice from the police about section 10(b) rights, the detainee does not ask to speak with a lawyer. If the accused does not make a reasonably diligent effort to exercise the right after such advice is given, then, as the Supreme Court of Canada said in the Smith case, the police are not required to refrain further from attempting to elicit evidence.

Notwithstanding Brydges, the nature and extent of the advice that must be available to an accused in order to preserve section 10(b) rights were not yet settled. In addition to requiring that detainees be advised of their right of access to duty counsel, the Prince Edward Island Court of Appeal, in R. v. Matheson, held that Brydges meant that it was "up to those responsible for the administration of justice in the Province to ensure that the service is available." Leave to appeal to the Supreme Court of Canada was granted in Matheson and in R. v. Prosper, a decision of the Nova Scotia Court of Appeal that took a different view. On appeal of those two cases, the Supreme Court ultimately held that "s. 10(b) of the Charter does not impose a positive obligation on governments to provide a system of ‘Brydges duty counsel,’ or likewise, afford all detainees a corresponding right to free, preliminary legal advice 24 hours a day."

In R. v. Burlingham, the Supreme Court of Canada had occasion to consider the obligations of police or Crown counsel with respect to plea bargains. Writing for the majority, Mr. Justice Iacobucci held that s. 10(b) "mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to accused’s counsel or to the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel." Furthermore, section 10(b) was held to prohibit police "from belittling the accused’s lawyer with the express goal or effect of undermining the accused’s confidence in and relationship with defence counsel." The majority went on to find that police had infringed Burlingham’s right to counsel by placing such an offer directly to the accused and leaving it open only for the period of time they knew that his lawyer was not available. Furthermore, because the accused’s confession, the murder weapon, and his girlfriend’s testimony would not have been available "but for" the Charter breach, all that evidence would be excluded from a new trial.

c. Application to Sobriety Tests

In Therens, the Supreme Court of Canada considered the issue of breathalyzer testing and section 10(b) rights. In deciding whether a person arrested or detained for impaired driving need be informed of the right to retain and instruct counsel before responding to a breathalyzer demand, the Court offered for the first time a comprehensive definition of the word "detention" as used in section 10 of the Charter. The Court held that detention was the restraint of liberty, other than by arrest, by the police or some other agent of the State; such restraint was not limited to physical compulsion or control. Detention would also result, said the Court, if the individual submitted or acquiesced in such deprivation of liberty (in this case as the result of a breathalyzer demand) because he or she felt "the choice to do otherwise does not exist."

The Court went on to hold that a charge of failing the breathalyzer test or refusing to provide a breath sample, contrary to section 235, would not stand if the offending motorist had not been informed of the right to retain and instruct counsel without delay. Unlike the Criminal Code provision respecting an A.L.E.R.T demand, there was no implied limit on the right to counsel contained in section 235. Therefore, any violation of rights protected under section 10(b) of the Charter would not be "prescribed by law" within the meaning of section 1. Similarly, the Court held that the police are under no obligation to comply with section 10(b) of the Charter when the person is merely charged with impaired driving rather than failure of the breathalyzer test or refusal to provide a breathalyzer sample as distinct from an A.L.E.R.T. sample; in that circumstance there is no connection between the recovery of self-incriminating evidence and a Charter violation.

Many lower court decisions have followed Therens, with interesting results. One of these is the decision of the Appeal Division of the Nova Scotia Supreme Court in Baroni, which held that the results of physical coordination and sobriety tests conducted by police officers at the roadside were to be excluded in cases where the individual tested had not been informed of the right to retain and instruct counsel as provided in section 10(b) of the Charter.

3. Habeas Corpus: Section 10(c)

Habeas corpus means literally "you have the body." It is a term for a variety of ancient writs that commanded one person detaining another to produce the prisoner before a court or judge.

In Gamble, the Supreme Court of Canada breathed new life into this procedure by ruling that habeas corpus was, in appropriate circumstances, available as a Charter remedy. In this case, the respondent had been incarcerated following his conviction for a first degree murder for which he had been tried pursuant to Criminal Code provisions that were not yet in force.

Taking what it termed "a purposive and expansive approach," the Court granted the remedy of habeas corpus. The Court held that an individual enjoyed "a residual liberty interest" found in section 7 and it was clear in this case that the respondent had been deprived of his liberty in contravention of the principles of fundamental justice.

D. Exclusion of Evidence under Section 24(2) of the Charter

Section 24(1) of the Charter provides a course of action for accused persons whose Charter rights have been infringed or denied: they can apply to a "court of competent jurisdiction" for the "appropriate and just" remedy. Section 24(2) then allows such a court to exclude evidence obtained in a manner that infringed or denied Charter rights, if admitting it into evidence "would bring the administration of justice into disrepute."

Because the Charter does not define a "court of competent jurisdiction," it has fallen to the courts to determine which tribunals have the power to exclude evidence in the circumstances described in section 24(2). For example, in R. v. Mills, the Supreme Court of Canada said that a provincial court judge presiding at a preliminary inquiry is not a court of competent jurisdiction. In Mooring v. Canada (National Parole Board), the Supreme Court of Canada also held that the National Parole Board is not a court of competent jurisdiction for the purposes of excluding evidence on the sole grounds that it was gathered in a manner that violated an offender’s Charter rights.

The Supreme Court of Canada has also said that relief under section 24(2) is available only to the person whose Charter rights have been infringed. In R. v. Edwards, the accused asked the court to exclude evidence in the form of drugs seized from his girlfriend’s apartment, allegedly in violation of section 8 of the Charter. Finding that the accused was no more than a "privileged guest," who lacked the authority to admit or exclude others from the apartment, a majority of the court held that he did not have "a reasonable expectation of privacy" on the premises. Consequently, because his own section 8 rights had not been infringed, he could not contest the admissibility of the evidence pursuant to s. 24(2) of the Charter.

The causal connection between the breach of an individual’s section 10(b) rights and the recovery of evidence was considered by the Supreme Court of Canada in the Black case. During the investigation of a charge of murder, the police recovered the weapon used, a knife, after the appellant had given them a written statement. The Court held that there had been a breach of the appellant’s rights under section 10(b); the police had continued to question her despite the fact she was drunk and despite her clear prior request for the opportunity to consult counsel. For this reason, any evidence recovered thereby and thereafter should be excluded.

In R. v. Elshaw, the Supreme Court of Canada discussed the appropriate test under section 24(2) of the Charter for admission or exclusion of a self-incriminating statement obtained in violation of an accused’s rights under section 10(b) of the Charter. The Court held that exclusion of such statements obtained in this way should be the rule rather than the exception. Finding that the evidence had contributed substantially to conviction and that there had been no evidence of any urgency or necessity to obtain information from the accused at the time of detention, the Court ordered the evidence excluded. The majority held that admission of such evidence would "generally" amount to a substantial wrong or miscarriage of justice. For that reason, section 686(1)(b)(iii) of the Criminal Code could not be used to correct the errors made by the trial court.

In R. v. Burlingham (right to counsel) and R. v. Silveira (unreasonable search or seizure), the Supreme Court reviewed the factors previously canvassed in R. v. Collins, for the exclusion of evidence under section 24 (2). The three primary factors were held to be: "(a) does the admission of the evidence affect the fairness of the trial, (b) how serious was the Charter breach, and (c) what would be the effect on the system’s repute of excluding the evidence." The answers to those questions may depend upon a number of factors including the nature of the evidence and whether it would very likely have been obtained in some other way, the presence or absence of good faith on the part of the police, and the seriousness of the crime.

The Supreme Court of Canada has since weighed the impact of illegally obtained evidence on the fairness of a trial by considering whether the evidence was "conscriptive" or "non-conscriptive": where the accused is compelled, in violation of a Charter right, "to incriminate himself either by a statement or the use as evidence of the body or of bodily substances it will be classified as conscriptive evidence." In R. v. Stillman, the court held that the admission of conscriptive evidence will render a trial unfair if the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-concriptive means. Because an unfair trial would necessarily bring the administration of justice into disrepute, the court will, as a general rule, exclude such evidence without further deliberation.

PARLIAMENTARY ACTION

A. Bill C-109

Bill C-109, An Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radio Communication Act, S.C. 1993, ch. 40, was proclaimed in force on 1 August 1993.

The Act addressed legislative shortcomings identified in several court decisions relating to police surveillance. It also dealt with concerns about the potential abuse of developing communications technology.

B. Bill C-104

Bill C-104, An Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis), S.C. 1994-95, ch. 27.

Proclaimed in force 13 July 1995, Bill C-104 gives police the right to seek a warrant for seizure that, if granted, authorizes the taking of bodily substances for forensic DNA analysis. A warrant can be issued for the investigation of only certain designated offences; the court must also be satisfied that there are reasonable grounds to believe that the individual in question was involved and that DNA analysis will provide evidence to confirm or refute that involvement.

C. Bill C-16

Bill C-16, An Act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), S.C. 1997, ch. 39.

In response to R. v. Feeney, Bill C-16 established procedures allowing police to obtain a warrant authorizing entry into a private dwelling for the purposes of arrest or apprehension of suspects or accused.

CASES

Collins v. The Queen, [1987] 1 S.C.R. 265

Comité Paritaire v. Potash, [1994] 2 S.C.R. 406

Dedman v. R., [1985] 2 S.C.R. 673

Dersch v. Canada, [1990] 2 S.C.R. 1505

Hufsky v. R., [1988] 1 S.C.R. 621

Langlois and Bedard v. Cloutier, [1990] 1 S.C.R. 158

Mellenthin v. The Queen, [1992] 3 S.C.R. 615

Minister of National Revenue v. Kruger Inc. (1984), 84 D.T.C. 6478 (Fed. C.A.)

Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75

R. v. Amos (1982), 8 W.C.B. 183 (N.W.T. S.C.)

R. v. Baig, [1987] 2 S.C.R. 537

R. v. Baroni, Nova Scotia Appeal Division (unreported)

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387

R. v. Belnavis, [1997] 3 S.C.R. 341

R. v. Black, [1989] 2 S.C.R. 138

R. v. Borden, [1994] 3 S.C.R. 145

R. v. Brydges, [1990] 1 S.C.R. 190

R. v. Burlingham, [1995] 2 S.C.R. 206

R. v. Cameron (1984), 16 C.C.C. (3d) 240 (B.C.C.A.)

R. v. Caron (1982), 31 C.R. (3d) 255 (Ont. Dist. Ct.)

R. v. Caslake, [1998] 1 S.C.R. 51

R. v. Chapin (unreported)

R. v. Colarusso, [1994] 1 S.C.R. 20

R. v. Cook, [1998] 2 S.C.R. 597

R. v. Debot, [1989] 2 S.C.R. 1140

R. v. Duarte, [1990] 1 S.C.R. 30

R. v. Dyment, [1988] 2 S.C.R. 417

R. v. Edwards, [1996] 1 S.C.R. 128

R. v. Elshaw, [1991] 3 S.C.R. 24

R. v. Evans, [1991] 1 S.C.R. 869

R. v. Evans, [1996] 1 S.C.R. 8

R. v. Feeney, [1997] 2 S.C.R. 13

R. v. Fraser (unreported)

R. v. Gamble, [1988] 2 S.C.R. 595

R. v. Garofoli, [1990] 2 S.C.R. 1421

R. v. Grant, [1993] 3 S.C.R. 223

R. v. Greffe, [1990] 1 S.C.R. 755

R. v. Harrer, [1995] 3 S.C.R. 562

R. v. Heisler (1983), 9 W.C.B. 352 (Alta. Prov. Ct.)

R. v. I.(L.R.) and T. (E.), [1993] 4 S.C.R. 504

R. v. Imough (No. 2) (1982), Can. Charter of Rights Ann. 13-23 (Ont. Prov. Ct.)

R. v. Ironchild, Can. Charter of Rights Ann. 15-13 (Sask. Q.B.)

R. v. Kelly (1985), Can. Charter of Rights Ann. 15.2-12 (Ont. C.A.)

R. v. Kokesch, [1990] 3 S.C.R. 3

R. v. Krist, 14 July 1995, Ontario Court of Appeal

R. v. Ladouceur, [1990] 1 S.C.R 1257

R. v. Lauda, [1998] 2 S.C.R. 683

R. v. M. (M.R.), [1998] 3 S.C.R. 393

R. v. Manninen, [1987] 1 S.C.R. 1233

R. v. Matheson, [1994] 3 S.C.R. 328

R. v. Mercer (1992), 7 O.R. (3d) 9 (C.A.)

R. v. Mills, [1986] 1 S.C.R. 863

R. v. Monney, [1999] 1 S.C.R. 652

R. v. Nelson (1982), 3 C.C.C. (3d) 147 (Man. Q.B.)

R. v. Plant, [1993] 3 S.C.R. 281

R. v. Prosper, [1994] 3 S.C.R. 236

R. v. Rao (1984), 9 D.L.R. (4th) 542 (Ont. C.A.)

R. v. Ross, [1989] 1 S.C.R. 3

R. v. Roy (1985), 15 W.C.B. 347 (Ont. H. C.)

R. v. Shea (1982), 1 C.C.C. (3d) 316 (Ont. H.C.)

R. v. Silveira, [1995] 2 S.C.R. 297

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R. v. Smith, [1989] 2 S.C.R. 368

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R. v. Storrey, [1990] 1 S.C.R. 241

R. v. Terry, [1996] 2 S.C.R. 207

R. v. Therens (1985), 18 D.L.R. (4th) 655 (S.C.C.)

R. v. Thompson, [1990] 2 S.C.R. 1111

R. v. West, December 1997, British Columbia Court of Appeal

R. v. Wiggins, [1990] 1 S.C.R. 62

R. v. Whittle, 1 September 1993 (S.C.C.)

R. v. Wise, [1992] 1 S.C.R. 527

R. v. Wong, [1990] 3 S.C.R. 36

Reference re Manitoba Language Rights, [1985] 1 S.C.R. 863

Schrieber v. Canada (Attorney General), [1998] 1 S.C.R. 841

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145

Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425

Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872
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