Framework for the Charter Answers
1. Does the Charter apply?
2. Is a Charter right breached?
3. Can the law be saved under s 1?
4. What remedy should be available?
What is the Purpose of the Charter?
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
Section 1 – Reasonable Limits to Rights and Freedoms
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”
Cases
R. v. Oakes – Narcotics Control Act said that if a person is found in possession of narcotics, he is presumed to be in possession for the purpose of trafficking. Held: violates s.11(d) and is not justified under s.1
R v Hall: Charged with murder. Reverse onus on the accused to show why he should be released since he is charged with murder.
Propositions
OAKES
The onus on proving that a limit is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation (ie the State)
The standard of proof is the civil standard – on the balance of probabilities
In determining whether a law should be upheld under s. 1, courts are to be guided by those values and principles essential to a free and democratic society. These include respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identify, and faith in social and political institutions which enhance the participation of individuals and groups in society
The provision in violation must be prescribed by law (not vague, published)
The presumption of innocence (s.11(d)) is crucial in our system of criminal justice.
OAKES TEST:
1) Is the provision’s objective related to concerns that are pressing and substantial?
2) If so, are the means used to achieve the objective disproportionate?
CONSIDER:
- Is there a rational connection between the means and the objective?
- *Has there been minimal impairment?
o Requires a “rational basis” for minimal impairment (doesn’t have to be best measure): McKinney
o Is it an absolute prohibition?
- Balance between benefits of legislation and harm caused by it → overall effect?
Government may legitimately employ more restrictive measures if they are more effective in accomplishing the objective and are not redundant: Keegstra
“Pressing and substantial” is too strict for s.15: Andrews
HALL
11(e): not to be denied reasonable bail without just cause;
Dialogue or Abdication
o The test for impermissible vagueness is whether the law so lacks precision that it fails to give sufficient guidance for legal debate
o Can a vague law meet the criteria of “prescribed by law” in s 1? if a law is too vague law does not prescribe it. There is a section 1 argument here as well. This argument usually fails.
o A law that we don’t know what it means is unreasonable. Could be struck down.
o Infringement was not justified in a free and democratic society pursuant to s 1.
o Laws are of necessity general statements that must cover a variety of situations. A degree of generality is therefore essential, and is not to be confused with vagueness, which occurs when the law is so imprecise that it does not permit legal debate about its meaning and application.
Take into account: fear prevailed in the community; the grievousness of the offence and that the Crown’s case was strong.
S 515(10) (c ) infringes s 11(e) in part by the phrase “on any other just cause being shown and within limiting the generality of the foregoing”.
Morales: struck down authorized pre-trial detention if it was in the “public interest”, on the ground that it was vague, imprecise and authorized a standard less sweep that would permit a court to order imprisonment whenever it sees fit.
SCC shut down the “public interest” and this is their response to it. If this got struck down again their could enact a “not-withstanding clause”
Section 2(b) – Freedom of Expression
“Everyone has the following freedoms…(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media communication”
Cases
R. v. Keegstra - Keegstra was a teacher who taught his anti-Semitic views to his classes. Convicted of hate speech. Challenged law. Dismissed.
Canada v JTI MacDonald: In response to the decision in RJR, Parliament enacted the Tobacco Act and Regulations.
What is the purpose of s 2(b)?
1. Seeking and attaining truth
2. Participation in social and political decision making
3. Individual self-fulfilment & human flourishing
What does s 2(b) protect?
· Freedom of expression à activity is expressive if it attempts to convey meaning
· “The term expression as used in 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed.” [para 30]
· Infringed:
o Purpose to infringe or
o Effect is to infringe
The SCC has found that commercial expression, pornography (Butler), hate speech (Keegstra) and even deliberate falsehoods (Zundel) qualify as expression.
Propositions
KEEGSTRA
The scope of s.2(b) is very wide
Hate speech falls within the scope of s.2(b).
Violence ≠free speech à Threats will not be the exception. What is required is the actual violence. This is consistent with Dolphin.
Section 2(b)’s Core Values: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated
The further an activity is from s.2(b)’s core values, the less protected it will be.
Not all expression is equally worthy of protection
Test for Infringement:
1) Is activity of claimant within sphere of freedom of expression?
a. Does activity convey or attempt to convey a meaning?
b. NOTE: Content of expression is irrelevant (but no violence as expression) → very broad test
2) Is **purpose or effect of government action to restrict freedom of expression?
a. If yes, then is it justified by s.1?
b. If no, then s.2(b) not violated
i. Unless claimant shows that activity supports s.2(b) values
**Look at the purpose of the provision at the time of the Enactment
Other Points
Picketing = freedom of expression: Dolphin Delivery
But picketing shouldn’t be permitted to harm 3rd parties: Dolphin Delivery
Defamatory libel = freedom of expression (but can be justified under s.1): R. v. Lucas
JTI MacDonald→ Freedom of the Press
Canada v JTI MacDonald
The tobacco Act and regulations infringes s 2(b) of the Charter, but the infringement is reasonable and can be justified under s 1
To refute a claim of vagueness and over breadth, need:
1. Provision must give adequate guidance to those expected to abide by it
2. It must limit the discretion of state officials responsible for its enforcement.
Need to be flexible in our application of s 1.
· Objective: the broader the objective = more difficult to satisfy minimal impairment.
· Rational Connection: it must be possible to argue that the means may help to bring about the objective.
· Minimal Impairment: On complex social issues, the minimal impairment requirement is met if Parliament has chosen one of several reasonable alternatives.
Section 2(b) Response Guide
The Charter applies to [party] because…
INTRO
[Claimant] has a potential argument that [impugned section] is in breach to his/her right to freedom of expression under s.2(b). The scope of s.2(b) is broad and includes any activities which conveys, or attempts to convey, a meaning (Irwin Toy); however, it should be noted that violence does not qualify as freedom of expression (Keegstra).
In establishing a framework for a s.2(b) test, the Court in Keegstra made it clear that not all forms of expression are worthy of protection and that the further an activity strayed from the core values of s.2(b), the less protected it would be.
NATURE OF THE EXPRESSION
Here, the expression is…
To determine whether this falls within the sphere of freedom of expression we must consider the whether the expression conveys or attempts to convey a meaning. At this point, the actual content of the speech is irrelevant (Keegstra)
Here [the claimant] is definitely attempting to conveying a meaning because [activity] is generally seen as an activity which conveys a meaning [for picketing, cite Dolphin Delivery]
IS THE PURPOSE OR EFFECT OF THE GOVERNMENT ACTION TO RESTRICT FREEDOM OF EXPRESSION?
To answer this, a Court must look to the purpose of the provision at the time of the Enactment (Keegstra) and determine whether it restricts either the content or form of the expression. Given [evidence – object of Act, external source, wording of Act], the purpose [impugned section] is to…
→ If yes, then go straight to OAKES TEST
→ If no:
[Impugned Section] does not appear to have a purpose or even effect to restrict freedom of expression. Because of this, the only argument left for [the claimant] is that [expression activity] supports the s.2(b) values.
→ [Activity] is congruent with [core value] because…
OR
→ [Activity] is not congruent with any of the core values therefore there is no reason to strike down [impugned section] by virtue of s.52(1) Constitution.
Section 7 – Life, Liberty, and Security of the Person
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
ONUS: Under s.7, complainant has dual burden of proving breach AND non-compliance with principles of fundamental justice
There is no absolute right; the right is based upon the deprivation. This confined to a person. Corps cannot fall under s 7.
A Breach of s 7
1. Deprivation: Life, liberty, security of the person
2. By State (Dolphin, McKinney): Action, Law
3. Contrary to Principles of Fundamental Justice: Legal principles, consensus, identifiable
If there is a breach under s 7 then there is no s 1 argument.
Cases
Ref Re s.94(2) → Criminal Realm – the section imposed automatic liability on offenders (those caught driving on a suspended licence) H: doesn’t comply with principles of fundamental justice
Rodriguez v. BC → Criminal Realm – woman with Lou Gehrig’s wanted help committing suicide. Aiding suicide was illegal. Argued s.7 included right to die. H: law was a violation of s.7 but was in keeping with principles of fundamental justice
Chaoulli v. Quebec → Economic Realm – Quebeckers prohibited from private health insurance H: delayed treatment violates s.7
Omar Khadr v Canada: 15 year old held at Guantanamo Bay. Held: The Gov’t of Canada is required by s 7 of the Charter to request Mr. Khadr’s repatriation to Canada.
Propositions
REFERENCE RE S.94(2)
Section 7 Analysis Process – Onus for 1 & 2 on claimant:
1. Has the right to life, liberty or security of the person been violated?
2. Is the violation in accordance with fundamental justice?
3. If so, is the violation a reasonable limit under s.1?
Charter can apply to procedural and substantive provisions (pro = way law carried out; sub = nature of right and scope of interpretation)
Absolute liability cannot be combined with a punishment of imprisonment
Absolute liability disposes of the mens rea requirement to prove an offence
Principles of fundamental justice:
- Term is a qualifier of the right not to be deprived of life, liberty or security of the person
- Are to be found in the basic tenets of our legal system – not in the realm of general public policy
- Principle at Bar: There is a generally held revulsion against punishment of the morally innocent
o Absolute liability punishes those without mens rea
- The possibility of a s.7 breach = a breach
- There will remain certain public welfare offences where the public interest requires them to be absolute liability offences (pollution?)
- Section 1 will rarely save a breach of s.7 because of s.7’s internal limitations, except in times of hardship, war or natural disaster
- Ss.8-14 are examples of deprivations of s.7 rights which are not in keeping with fundamental justice
RODRIGUEZ V BC
“Security of the Person” = a notion of personal autonomy involving control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress
“Principles of Fundamental Justice”
- Are found in the basic tenets of the legal system
- Must be identified with some precision
- Must be able to be applied such to yield an understandable result
- There must be a consensus that they are vital or fundamental to our societal notion of justice
- Must be legal principles
There needs to be a balancing between individual and societal interests while looking at principles of fundamental justice before you can determine whether there is a consensus over them (McLachlin dissents on this point explaining that balancing at this point would make it harder for the claimant to prove a breach. Accordingly, balancing should only occur in a s.1 analysis)
Sanctity of life is the principle, however, autonomy is not a principle.
CHAOULLI
Principle of Fundamental Justice at Bar: laws which affect life, liberty or security of the person shall not be arbitrary
Under s.7, complainant has dual burden of proving breach AND non-compliance with principles of fundamental justice
Only when Parliament’s social policies infringe protected rights will the courts step-in
- UNLESS the government has shown a careful, surgical crafting of the procedure
Serious psychological effects may engage s.7 protection for security of the person
- These can be triggered by delays in obtaining medical treatment which affect patients physically or psychologically: Morgentaler
A law is arbitrary where it bears no relation to, or is inconsistent with, the objective that lies behind it [per McLachlin: “not necessary” to the objective → is this an efficacy argument that courts should not be engaging in?]
- The onus of showing lack of connection rests with the claimant
- The more serious the impingement on the person’s liberty and security, the clearer the connection must be
→ There must be a clear connection between the object of the law and the means used to achieve that objective where such law impinges on a person’s liberty.
Question? If a law is “unnecessary” does this make it “arbitrary”? [150] : You can have an unnecessary law that is still consistent and bear relation to the objective.
OMAR KHADR
3 significant facts relevant to his application
1. Khadr was given no special status as a minor
2. Had virtually no communication with anyone outside of Guantanamo
3. Was subjected to the so-called frequent flyer program. (torture)
Detained without legal representation, no access to his family and with no Cdn consular assistance.
Gov’t argue that there is no duty to protect citizens under international law or under the CL No right to diplomatic protection under international law.
Does Cdn have an obligation to protect K?
The Charter applies to the Cdn agents who travelled to GB and questioned him. K’s detention is illegal under US and international law
To be recognized as a principle of fundamental justice
o A legal principle
o For which there is a broad consenus about its fundamental character in respect of the fair operation of the legal system
o Which is capable of being defined with sufficient precision to be used as a manageable standard for the measurement of deprivations of life, liberty and security of the person
Established Principles of Fundamental Justice
| Laws shall not be arbitrary | Chaoulli |
| There is a generally held revulsion against punishment of the morally innocent | Reference Re s.94(2) |
| Laws must not be too vague | Ontario v. Canadian Pacific |
| The means used to achieve an objective must be reasonably necessary i.e. cannot be overbroad | Heywood |
| Criminal offences with prison sentences must have a mens rea element | Vaillancourt |
| Government decisions shouldn’t shock the conscience (torture) | Canada v. Schmidt |
| Right to silence and to not have silence used against you | R. v. Hebert |
| Young people entitled to a presumption of diminished moral culpability | R. v. D.B. |
| Sanctity of life is the principle, however, autonomy is not a principle. | Rodriguez v BC |
Section 7 Response Guide
The Charter applies to [party] because…
INTRO
INTRO
[The claimant] may have an argument that his/her s.7 rights to life, liberty, and security of the person have been violated. This right protects both substantive and procedural rights in that it regulates due process as well as the scope of interpretation for provisions (Ref Re s.94(2)). Denial of any of the rights under s.7 is only constitutional if it is in accordance with the principles of fundamental justice (Ref Re s.94(2)).
Section 7 will be seen as breached if [the complainant] can prove breach and non-compliance with the principles of fundamental justice (Chaoulli)
HAS S.7 BEEN BREACHED?
Yes, the right to [life/liberty/security of the person] has been breached because it violates [life/liberty/security of the person] by…
[Security of the Person is the notion of personal autonomy involving control over one’s bodily integrity free from state interference and free from state-imposed psychological and emotional stress (Rodriguez). Even delays in obtaining medical treatment can trigger this right where it affects people physically or psychologically (Chaoulli)]
[Liberty is the notion of freedom of movement and freedom of choice]
The government might argue that it is possible to apply [the impugned provision] without violating s.7 by…; however, even the possibility of a breach is equivalent to an actual breach of s.7 (Ref Re s.94)
IS THE VIOLATION IN ACCORDANCE WITH THE PRINCIPLES OF FUNDAMENTAL JUSTICE?
To answer this, we must first find a principle of fundamental justice (“POFJ”). Rodriguez says that these must be legal principles which reflect the basic tenets of the legal system, about which there is sufficient societal consensus, and can be identified with enough precision to yield an understandable result. In identifying a new POFJ, the Majority in Rodriguez wrote that the court can’t just look at the claimant’s viewpoint, but must consider society’s interests before determining a consensus (McLachlin J, writing in the minority, rejected this because doing so would make it harder for a claimant to prove a breach and thus such balancing should only occur in a s.1 analysis.)
→ There is an established POFJ from [case] that… [see notes on s.7 for specifics and application]
OR
→ The POFJ applicable here might be… because…
By [activity of violation], the government is breaching this POFJ. Generally, unless Parliament has shown a careful, surgical crafting of a social policy, the Courts will intervene with a policy which violates a Charter right (Chaoulli). Here, the government has/hasn’t displayed care and consideration because…
Therefore, [the impugned provision] is in direct violation of s.7. The internal limitations provided by the POFJ mean that a violation of s.7 will rarely be saved by s.1, except in times of extreme hardship, war, or natural disaster (Ref Re s.94(2)).
Section 8 – Unreasonable Search & Seizure
“Everyone has the right to be secure against unreasonable search or seizure”
§ Once a law is found to be unreasonable under s8, there will not be an analysis of s1
The Common Law Power to Search
Searches can be valid for 3 reasons:
1. Search as incident to arrest
2. Search in an emergency
3. Search by consent
- Landlord cannot consent to a search of a tenants apt
- Manager of hotel cannot let police into a hotel room
- Mom cannot give police permission to search your room. You have an expectation of territorial privacy
- You cannot give consent to police to search you roommates room but can for common area
Cases
Hunter v. Southam → Combines Investigation Act s.10 provided for broad powers of search and seizure; HELD: in breach of s.8
Edwards v. The Queen → drug dealer hid his stash in his girlfriend’s couch, police likely breached her s.8 right to privacy, but dealer couldn’t rely on this because he had no reasonable expectation of privacy in her home
R. v. Tessling → police took thermal image of T’s house from plane, causing them to infer the existence of a grow-up and thus get a warrant
R v Patrick à search and seizure of the appellant’s garbage was not unreasonable
Propositions
HUNTER V. SOUTHAM
- Section 8 protects people, not places
- Section 8 does not authorize a search and seizure, but rather acts as a limitation on the powers of search and seizure set out in the Criminal Code
- Right to a reasonable expectation of privacy, did not say a right to privacy.
- Starting point is that the search is unreasonable if there is no search warrant unless the Crown can establish that it is reasonable.
- The guarantee of security from unreasonable search and seizure only protects a reasonable expectation
- A warrantless search is prima facie unreasonable unless the Crown can establish on the balance of probabilities:
1) That there was prior authorization for the search; ( to prevent unauthorised searches)
2) Given by an independent, impartial person; (a person capable of acting judicially-usually a judge)
3) The law itself must be reasonable; (law to be valid to authorise a search and seizure)
- A balance must be struck between a person’s right to be left alone by the government vs. government’s interest in intrusion for goals such as law enforcement
- There is no requirement for a connection between the rights protected by s.8 and a property interest in the premises searched.
- When s.8 is breached DO NOT go to s.1 because an unreasonable search or seizure will not pass the Oakes test
EDWARDS V. THE QUEEN
- The privacy right allegedly infringed must, as a general rule, be that of the accused person who makes the challenge.
o The intrusion on the privacy rights of a third party may, however, be relevant in the second stage of the s.8 analysis.
- An important aspect of privacy is the ability to exclude others from the premises
- The Common Law gives 3 valid bases for a warrantless search:
1) Search incident to an arrest
2) Search in an emergency
3) Search by consent
R. V. TESSLING
- There are 3 types of privacy interests:
1) Personal Privacy: protects bodily integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal
2) Territorial Privacy: a sliding scale of privacy of the home – home → perimeter of home → commercial space → private cars → in a school → in a prison. The places are a tool for determining the reasonableness of a person’s expectation of privacy.
3) Informational Privacy: the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others
- Section 8 seeks to protect the biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual
- The issue isn’t whether the search method is in general public use, but rather the nature and quality of the information about activities in the home that the police are able to obtain
- Seriousness of the offence is irrelevant to whether respondent had a reasonable expectation of privacy
|
Other Points
A search will be reasonable where (Collins):
- It is authorized by law;
- The law itself is reasonable; and
- The manner in which the search is carried out is reasonable
R. V. PATRICK
· Expectation of privacy is a normative rather than a descriptive standard.
· The purpose of s 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property, which the accused has discarded. [23]
· Must look to the totality of the circumstances
· The appellant had a direct interest not only in the garbage itself but, in particular, its informational content.
· A warrantless search of a private place cannot be justified by the after-the-fact discovery of evidence of a crime.
· The police activity provided very accurate and persuasive evidence of illegal activity in the house
· The reasonableness of the individual is to be tested on the objective branch of the privacy analysis.
o Although territorial privacy is implicated better to look to informational privacy
o The reasonableness line must relate to the conduct of that individual and not to anything done or not done by the garbage collectors, the police or anyone else involved in the subsequent collection and treatment of the ‘bag of information’.
o Abandonment occurred when the appellant placed his garbage bags for collection in the open container at the back of his property.
o Must be a balance between privacy and the legitimate demands of law enforcement and criminal investigation.
Notes from Lecture:
Framework for a valid law
1) Need prior authorization à where feasible
a. Prima facie à warrantless search = unreasonable
b. Burden shifts to Crown to justify search
2) Authorization by a neutral & impartial person à capable of acting judicially
3) Based upon reasonable grounds
a. Credibly-based probability replaces suspicion
Challenge to a Law
1) Breach of the Charter
a. Challenger must prove this.
b. Balance of probabilities
2) S 1 à give the gov’t an opportunity to save it.
a. Crown must prove this.
b. Balance of prob?
3) S 52(1) à “no force and effect”
** If you have a breach of s 8, then you will go to 52
** Generally you go to s 1 but not when dealings with s 8.
Objective Reasonableness
· In this respect, regard must be had to:
o The place where the alleged “search” occurred; is it a business or a home. Higher standard for home.
o Whether the subject matter was in public view
o Whether the subject matter had been abandoned; has he abandoned the heat? There needs to be intention to relinquish.
o Whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
o Whether the police technique was intrusive in relation to the privacy interest. Probably not its outside. What has been emitted from the house.
o Whether the use of this evidence gathering technique was itself objectively unreasonable.
o Whether the informational content exposed intimate details of the respondent’s lifestyle or information of a biographical nature? No just gives heat. Don’t know the basis of what is causing the heat.
R v Kang-Brown [2008] SCC 18 (you and the sniffer dog)
· An airport? Yes
· At a bus station? Finds cocaine, found that they did not have reasonable suspicion. To call in the dog, you need reasonable suspicion.
· At a mall? To intrusive
Section 8 Response Guide
INTRO
[Claimant] may have a claim that their reasonable expectation to privacy under s.8 may have been violated.
Section 8 is applied using a broad, purposive analysis to protect people, not places (Hunter v. Southam) as well as to protect the biographical core of personal information that a person doesn’t wish to share with government (Tessling). The guarantee in s.8 only extends to a person’s reasonable expectation to be free from unreasonable search and seizure (Hunter v. Southam). Therefore, it is first necessary to determine whether [claimant] has a reasonable expectation of privacy using the test from Tessling before we can do a s.8 analysis.
DOES [CLAIMANT] HAVE A SUBJECTIVE EXPECTATION OF PRIVACY?
Here, the subject matter is [subject matter] which [claimant] clearly would have had a direct interest in because… [Subject matter] falls into the [Personal/Territorial/Informational] privacy interest as [relevant privacy interest] is defined as…
DID [CLAIMANT] HAVE A SUBJECTIVE EXPECTATION OF PRIVACY IN THE SUBJECT MATTER?
The privacy right allegedly infringed must, as a general rule, be that of the accused person who makes the challenge (Edwards).
WAS THE EXPECTATION OBJECTIVELY REASONABLE?
Consider:
a. Was subject matter in public view? [the place where search occurs greatly influences reasonableness of the expectation]
b. Was it abandoned?
c. Was info already in the hands of 3rd parties; if so, was it subject to confidentiality?
d. Was police technique intrusive?
e. Was use of the technology objectively unreasonable?
f. Did it expose intimate details?
[Ultimately, there must be a balance struck between a person’s right to be left alone and the government’s interest in law enforcement however, there must be credibly-based probability for a crime (Hunter v. Southam)]
Here, it is/isn’t reasonable to think that [claimant] had a reasonable expectation of privacy in [subject matter]. At the end of the day, the quality of the information contained in [subject matter] will/won’t disseminate private information about how [the claimant] lives his/her life (Tessling).
HAS BREACH OF THIS EXPECTATION OCCURRED?
Having established a reasonable expectation of privacy, we now can consider breach of s.8. A search will be reasonable where it is authorised by law, the law itself is reasonable, and the search was carried out reasonably (Collins). [for warrantless searches – see presumption in Hunter]
If a breach is found, it is not justifiable under the Oakes test because having found that a law provides for “unreasonable” search or seizure, it is illogical to then try to prove its reasonableness under s.1 (Hunter v. Southam).
[Consider whether there has been breach]
Section 10(b)- Arrest or Detention
“ Everyone has the right on arrest or detention…(b) to retain and instruct counsel without delay and to be informed of that right.”
S 10(b)
· Information: Right to Counsel, Duty to Counsel, Telephone, Legal Aid
· Implementation: Private, Cease questioning until contact, Reasonable opportunity
· Only have to caution once, but better for the police if they do it when they re-question someone.
· Has to be by a state agent,
Detention
o Can occur by way of demand or direction
o Detention is in the mind of the accused.
The Right to Silence
o Fundamental principle
o To accord to the detained person a free choice on the mater of whether to speak to the authorities or to remain silent.
Cases:
R v Manninen: guy robs a mac milk store. The evidence obtained was self-incriminatory.
R v Singh: man murdered outside bar. Singh identified himself after exerting his right to silence 18 times.
MANNINEN
Section 10 is triggered immediately on arrest or detention
10(b) imposes two duties on the police in addition to the duty to inform the detainee of his rights
1. The police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay
2. Imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel.
For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.
If a suspect states that he wished to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel.
The use of self-incriminatory evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and thus will generally bring the administration of justice into disrepute.
SINGH
Under CL the Crown bears the onus of establishing voluntariness.
Under Charter, the accused bears the burden of establishing a violation on the balance of probabilities.
The appeal solely concerns the s 7 right to silence
· The principle against self-incrimination is a broad concept from which a number of rules can be derived.
· The Charter provides residual protection to the principle through s 7.
· The right to remain silent is part of the basic tenets of our legal system and became constitutionalized under s 7.
The Confessions Rule
· Only applies in respect to statements made to a person in authority
· For there to be a breach it must be involuntary.
· The CL recognizes the individual’s right to remain silent but not the right not to be spoken to by state authorities. Police persuasion does not breach the right to silence.
· Parameters of the rule are tailored to counter improper interrogation techniques that produce false confessions.
Fish Dissent
· Detention can have a significant impact on the suspect and cause them to feel compelled to give a statement
· Totally under the control of the police, did not have the freedom of unescorted movement and relied on his jailors for the necessities of life. Powerless to end the interrogation until he made incriminating statements.
· Read together s 10(b) and s 7 confirm the right to silence in s 7
Section 10(b) Response Guide
INTRO
[Claimant] may have a claim that their right to counsel under s 10(b) may have been violated.
The rationale for this right is the need to ensure that everyone who is detained has the opportunity to learn immediately of his or her rights and obligations under the law.
S 10(b) of the Charter affords [the accused] not only the right to counsel but also the right to be informed of that right.
IS THE ACCUSED DETAINED?
Detention can occur by way of demand or direction. However, detention is in the mind of the accused.
An individual in police custody is in a vulnerable situation and is entitled to the assistance of someone knowledgeable in the law and independent of the State.
DID THE POLICE BREACH HIS RIGHT?
The police must provide [the accused] with a reasonable opportunity to exercise the right to counsel, and they must cease questioning [the accused] or attempting to elicit information until her or she has had an opportunity to confer with counsel (Manninen).
Here, [the accused] stated that he wished to retain counsel . All questioning must cease until he has been afforded the opportunity of consulting counsel. [The accused] must be able to make a free and informed choice as to whether or not to speak.
HAS THE ACCUSED INVOKED RIGHT TO SILENCE?
The right to silence is not expressly stated in the Charter. However, it is a principle of fundamental justice. It is necessary that the detained person [the accused] make a free choice on the mater of whether to speak to the authorities or to remain silent.
Here, the [accused] provide statements that caused him to self-incriminate himself due to the persistence of the police. However, The CL recognizes the individual’s right to remain silent but not the right not to be spoken to by state authorities. Police persuasion does not breach the right to silence. [the accused] must prove that the statements were involuntary.
CONCLUSION
The use of self-incriminatory evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and thus will generally bring the administration of justice into disrepute.
Section 11(d) – Presumed Innocence, Fair Trial
“Any person charged with an offence has the right…(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”
The presumption of innocence (s.11(d)) is crucial in our system of criminal justice: Oakes
Section 11(d) only arises when you are charged with an offence
The Purpose
1. Must prove a person is guilty BEYOND A REASONABLE DOUBT
2. The state bears the BURDEN OF PROOF
3. The process must be lawful and fair
Can protect the standard of proof i.e. “beyond a reasonable doubt” or “on the balance of probabilities” or “evidentiary burden”
Generally, the accused need only raise a defence and the Crown must then disprove it beyond a reasonable doubt
Generally, reversing the onus on an accused to prove a defence based on a mental element (e.g. mistake belief) puts the accused in a better position and thus will be accounted for during minimal impairment. However, by making the accused prove on the balance of probabilities it is more likely the innocent will be convicted.
Generally, reversing the onus on an element of the offence such as consent for rape cases will but the Crown in a better position because they no longer need to prove it and it’s probably equally hard for the accused to prove. Again, this will get consideration during minimal impairment.
Absolute liability disposes of the mens rea requirement to prove an offence: Reference Re s.94(2)
For a s.11(d) breach, during deleterious effects portion of the Oakes test ask “will more innocent people be accused as a result of the breach?”
PROBLEM QUESTIONS
S 16(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virture of subection (2), until the contrary is proved on the BOP
Burden of Proof
(3) the burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the part that raises the issue.
Does s 16 breach s 11(d)? Can it be saved under s 1?
This has a reverse onus. Is this a defence or an element of defence? This is a defence. Whenever an onus is placed on an accused (offence or defence), or relieves the crown from having the burden of proof then this violates 11(d). Any burden on the accused in a breach of 11(d). However, the accused is in a good position to tell about us their mental state. Crown has already proven the accused liable for the crime beyond reasonable doubt. S 16 was upheld as valid law.
Section 15 – Equality Rights
(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.
(2) Subsection 1 does not preclude any law, program or activity [aimed at improving conditions for disadvantages groups/people]”
**Only applies to individuals not corporation
**Came into effect three years after charter introduced to give legislatures time to review existing laws
Framework and Evolution of section 15
1. Prior to Andrews, the test was the “similarly situated” one (i.e. persons alike should be treated alike). Andrews modified s.15 to be read as prohibiting only violations of equality that amount to discrimination. To make this determination, use contextual approach (i.e. content of law, its purpose, effects on those whom it applies and excludes).
2. The “every law test” - Any law showing differentiation would automatically violate s. 15(1), then govt would have to justify it under s. 1. This was rejected
3. The “reasonable and fairness test” – consider the reasonableness and fairness of any impugned legislation. Only go to s1 for exceptional circumstances. i.e. war. McLachlin was importing s1 into the s15 analysis. This was rejected
4. In Andrews the judge selected the “enumerated or analogous grounds test”: discrimination must relate to the 9 enumerated grounds or be analogous to them.
5. Law modified this test. In Law there is a violation of s.15 if, based on reasonable person in claimant’s circumstances (taking into account contextual factors) there was a violation of human dignity due to the gov’t’s legislation.
Bliss case: pre-charter case that went to the SC. Women who became pregnant were denied unemployment insurance. Said they were being discriminated on the basis of their sex. “under the law” all pregnant women were treated equal. No specific discrimination. After this case, the courts wanted to make sure that s 15 had more meaning.
Bill of Rights: does not give the notion that the list is not exhaustive. It is restrictive.
Cases
BC Law Society v. Andrews – permanent resident non-citizen was precluded from writing Bar during 3-year wait time for citizenship
Law v. Canada – widow couldn’t get deceased husband’s pension benefits until age 65 simply b/c she <45 when he died. H: not discrimination
Auton v. BC – argument that gov’t failure to fund certain treatments for autistic children is discriminatory
R. v. Kapp – commercial fisherman argued aboriginal fishing licence granted during closed season violated his s.15 rights. H: saved by s.15(2)
Propositions
ANDREWS
- Section 15 must be interpreted with sufficient flexibility to ensure protection of equality rights
- Section 15 is mainly concerned with the impact of the law on the individual or group concerned
- Citizenship is analogous to national origin.
- EQUALITY→ the broad purpose of s.15 is to ensure that all persons are treated by the law on a footing of equality with equal concern and respect
- DISCRIMINATION → the specific purpose of s.15 is to protect against the evil of discrimination
- DISCRIMINATION → may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing a burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of the society
- DISCRIMINATION → must be based on the enumerated or analogous grounds
- A complainant under s.15 must show 1) unequal treatment/differential impact; 2) that legislative impact is discriminatory
- Two-Step Test
1. need a distinction based on enumerated or analogous grounds,
2. need the discrimination to be prompted by way of discrimination.
LAW V. CANADA
- Discrimination must be proven on a substantial sense – beyond mere proof of a distinction on enumerated and analogous grounds
- The purpose of s.15(1) is to assure human dignity by preventing imposition of disadvantage, stereotype or prejudice
o “Human Dignity” = a group or individual feeling of self-respect and self-worth
- A distinction in treatment ≠discrimination for s.15 purposes if it does not violate human dignity, and particularly if it also helps improve the position of disadvantaged individuals or groups.
- Because equality is a comparative concept, relevant “comparators” must be established; within the scope of the ground(s) of alleged discrimination claimed, a court may refine a claimant’s comparison, should it be insufficient or inaccurate [see Auton]
- To determine if claimant’s human dignity is demeaned, start by looking at it subjectively from claimant’s perspective, then look at his assertion objectively from the perspective of a reasonable person
Section 15 Test from Law:
A) Distinction or differential treatment between claimant and comparator group (distinction b/w groups in purpose or effect)
B) Based on the enumerated or analogous grounds
a. “Analogous” = personal or immutable characteristics
C) That amounts to substantive discrimination (adversely affecting human dignity in purpose or effect) → no need for claimant to bring evidence of violation to human dignity…the courts can figure that out
“Substantive discrimination” = treating likes unalike is not sufficient for discrimination – the law may be required to take into account the differing situations of people: Eldridge
4 Factors Going to Discrimination:
o pre-existing disadvantage or vulnerability;
o government consideration of claimant’s disadvantaged situation;
o the ameliorative purpose or effect
o the nature and scope of the interest affected
AUTON
- Court must look at the wording of the impugned section(s)
- The benefit claimed must be provided by law
- The court is under no obligation to create a particular benefit
- Discrimination may be direct or indirect. DIRECT: clear from wording of statute; INDIRECT: arbitrary exclusion of a certain group
o Indirect test: whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislation is intended to address
How to properly identify the comparator group:
- The starting point is that chosen by the claimant, but the court can substitute in a more appropriate group
- The comparator should mirror the characteristics of the claimant group relevant to the benefit or advantage sought, EXCEPT for the personal characteristic related to the enumerated or analogous ground raised for the basis of discrimination
- If relying on disability for ground, the claimant may compare to those suffering a different disability or one of greater severity
Analogous vs. Non-Analogous Grounds
| ANALOGOUS | NON-ANALOGOUS |
| Citizenship (Andrews) | Province of residence (Turpin) |
| Marital Status (Hodge) | Criminally-sentenced prisoners (Sauvé) |
| Sexual orientation (Vriend) | Marijuana users (Malmo-Levine) |
| Aboriginality (Corbiere) | Member of RCMP (Delisle) |
| | Being a worker covered under Worker’s Comp Act (Re WC Act) |
| | Residence in one town rather than another (Siemens) |
KAPP
- In essence, s.15(2) seeks to protect efforts by the state to develop and adopt remedial schemes designed to assist disadvantaged groups
- Section 15(2) does not create the statutory obligation to establish ameliorative programs
- A program ameliorating the disadvantage of one group, while excluding other groups from such program, is not equivalent to “reverse discrimination”
Test for s.15(2):
→ If valid under s.15(2), then it trumps s.15(1) and the law will be valid
A program does not violate s.15(1) if the government can demonstrate that:
1) The program has an ameliorative or remedial purpose; and
2) The program targets a disadvantaged group identified by the enumerated or analogous grounds
→ To determine “purpose” ask whether it was rational for gov’t to conclude means chosen would reach its ameliorative goal
→ ameliorative purpose may be one among many purposes
→ “ameliorative” ≠ laws meant to restrict or punish
→ not all members of the group need to be disadvantaged, so long as the group itself is disadvantaged
If a law is valid under s 15(2) there can be no breach of s 15(1). Therefore:
If a claimant proves unequal treatment under the law;
1. Government may defend by bringing itself under s 15(2)
2. If gov’t cannot rely on s 15(2) then you are back into s 15(1).
Notes:
Some Principles
· Particular disadvantage is required
· General disadvantage is NOT required
· You will need to identify a valid comparator group
· Discrimination must be on listed or analogous grounds
· Analogous grounds generally involve “immutable” personal characteristics
· Discrimination may be unintended
· Discrimination under s 15 may be saved under s 1.
Factors in Determining a Comparator Group
· First, the choice of the correct comparator is crucial, since the comparison between the claimants and this group permeates every stage of the analysis.
· Second, while the starting point is the comparator chosen by the claimants, the Court must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate.
· Third, “mirror the characteristics” of the claimant or claimant group relevant to the benefit or advantage sough.
The Baier Result:
· No basis for identifying occupational status as an analogous ground on the evidence presented in this case.
· Neither the occupational status of school employees nor that of teachers have been shown to be immutable or constructively immutable characteristics.
· School employees cannot be characterized as a discrete and insular minority.
· The appellants have not established that the occupational status of school employees is a constant marker of suspect decision making or potential discrimination.
Section 15(1) Response Guide
The Charter applies to [party] because…
INTRO
Here, [complainant] may have an argument that [section of Act] is a breach of his/her equality rights under s.15(1) because it …
The specific purpose of s.15(1) is to fight the evil of discrimination while ensuring the law treats all persons on equal footing with equal concern and respect (Andrews). Discrimination, according to Andrews, is a distinction (intentional or not) based on personal characteristics of the individual or group which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed on others.
Therefore, to establish a breach [complainant] must display a distinction on the enumerated or analogous grounds amounting to substantive discrimination (Law v Canada)
COMPARATOR GROUP
Before finding a distinction or differential treatment, it is important to determine whom such a distinction is in relation to. Finding this comparator group from the start of the analysis is important because it is relevant throughout the entire s.15(1) analysis (Auton).
The starting point is the group alleged by the claimant; however, the Court may make any adjustments it feels is necessary to ensure that the group mirrors the characteristics of [the complainant] relevant to the benefit or advantage sought, EXCEPT for the personal characteristic related to the enumerated or analogous ground (Auton).
The comparator group here would be…
[note: if distinction and grounds are clear, just say: there is a clear distinction based on [ground] and raise get to the main aspect of argument]
IS THERE A DISTINCTION?
In determining whether a law makes a distinction, the Court must look to the wording of the impugned provision (Auton). Here, the law [in purpose/effect] permits [comparator group] to [perform activity x] while preventing [the claimant]’s group from doing so. [Justify effectual distinction if necessary]
ENUMERATED/ANALOGOUS GROUNDS
The distinction must fall within the grounds enumerated within s.15(1), or in any analogous grounds (Law).
IF RELEVANT: Analogous grounds are basically personal characteristics that someone is born into (Law). SCC has accepted marital status, sexual orientation, citizenship (or non-citizenship), off-reserve residence for Aboriginals. Not accepted: marijuana users, workers denied right to sue their employers by worker’s compensation schemes and RCMP treated differently then other federal employees. The courts seems to require the characteristics cannot be changed ie race or that the gov’t has no legitimate interest in expecting us to change to receive equal treatment under the law ie. Religion.
Here, the distinction is clearly based on…
→ Address the 4 factors in determining whether there is discrimination…
SUBSTANTIVE DISCRIMINATION
The distinction, alone, still is not sufficient to amount to discrimination (Law). The requirement established by Law is that the distinction must adversely affect human dignity – this is to be determined by the Courts and no evidence need be adduced by the claimant.
Whether the complainant’s human dignity – that is, their self-worth and self-respect – is adversely impacted, is to be determined using a subjective-objective viewpoint (Law). Firstly, the court will look at the situation from the claimant’s perspective, then test that perspective using that of a reasonable person.
→ Address whether the effect of the law is detrimental to the claimant’s human dignity…
In considering whether this distinction amounts to discrimination, a Court should consider any pre-existing disadvantage or vulnerability, government consideration for such, any ameliorative purpose or effects of the law, and the nature of the interest affected (Law).
CONCLUSION
Therefore, this distinction [does/doesn’t] amount to substantive discrimination to [claimant’s group].
SEE OAKES TEST
Section 15(2) Response Guide
The Charter applies to [party] because…
INTRO
Section 15(2) is an exception to s.15(1) which seeks to protect efforts by the state to develop and adopt remedial schemes designed to assist disadvantaged groups (Kapp). Thus, where a discriminatory provision can be shown to be ameliorative, it can be saved without proceeding through a complete s.15(1) analysis. However, it is necessary to establish that it is in fact discriminatory. Here, the scheme [is/is not] discriminatory based on..
To qualify under s.15(2), the government must show that [the impugned section] has an ameliorative or remedial purpose and that it is targeted at groups disadvantaged on the enumerated or analogous grounds (Kapp).
AMELIORATIVE/REMEDIAL PURPOSE
An ameliorative purpose may be one among many; however, it cannot be meant to restrict or punish (Kapp). The purpose here is to…
The government here appear to have had a rational basis for believing that [means] would achieve [ends] (Kapp). Therefore, [impugned section] has an ameliorative/remedial purpose.
TARGET GROUP
The target recipient of the benefit is the…
This group is disadvantaged on the basis of [enumerated or analogous ground].
While not all members of the group need to be disadvantaged, the key here is that the group itself is disadvantaged (Kapp).
Because this law falls in the exception created by s.15(2), it is unnecessary to consider a s.15(1) analysis.
→ IF s.15(2) FAILS → go to s.15(1)
Section 24(1)- Enforcement of guaranteed rights and freedoms
“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
Cases:
R v Ferguson- Ferguson testified that Varley had attacked him when he entered the cell. Wanted a constitutional exemption. Argued that 4 year mandatory min sentence for manslaughter with a weapon constitutes cruel and unusual punishment contrary to s 12 of the Charter
Exclusion of Evidence Under the Charter
· S 24(2) has to be read with s 24(1).
· Cannot use s 24(1) to exclude evidence have to look at s 24(2) in terms of evidence
· Key in s 24(1) à Do you have standing?
· If you have standing, move to s 24(2).
FERGUSON
Constitutional Exemptions:
· Cdn law does not recognize the availability of a constitutional exemption on a case-by-case basis.
· The impact of granting constitutional exemptions in mandatory sentence cases on the values underlying the rule of law.
Four Considerations for constitutional exemptions
· Jurisprudence
o Has not been conclusively decided, however, the weight of authority is against them. à Cautionary note
· The need to avoid intruding on the role of Parliament
o Granting a constitutional exemption would not be a lesser intrusion on Parliaments legislative role.
o Contradicts Parliaments intent in passing mandatory min sentence legislation.
· The remedial scheme of the Charter
o S 52(1) provides for a remedy for laws that violate Charter rights either in purpose or in effect
o S 24(1) provides a remedy for gov’t acts that violate the Charter
o If all constitutional effects of laws are remediable on a case by case basis under s 24(1), then all charter violates could be addressed under this power leaving no need for s 52(1)
o S 24(1) is acting under a valid law but improperly. Ie. Police officer choking Ruby in Collins.
· The impact of granting constitutional exemptions in mandatory sentence cases on the values underlying the rule of law.
o It is fundamental to the rule of law that “the law must be accessible and so far as possible intelligible, clear and predictable”.
Section 24(2) – Exclusion of Evidence Bringing the Administration of Justice into Disrepute
“Where [someone applies to the courts for violation of their Charter rights], a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
Cases
R. v. Collins – woman suspected of drug trafficking throat tackled by police. This led to him discovering heroin in her possession
Stillman v. R – police forced DNA evidence from boy accused of murder who wished to remain silent. Is any of such evidence admissible?
Grant:
Propositions
COLLINS
NOTE: COLLINS HAS BEEN OVERRULED. IT IS NO LONGER GOOD LAW.
A search will be reasonable where:
a. It is authorized by law;
b. The law itself is reasonable; and
c. The manner in which the search is carried out is reasonable
- It is whether the admission of evidence would bring the administration of justice into disrepute that is the applicable test
- Seriousness of the offence cannot justify an unfair trial (using evidence attained through a breach)
o However, the more serious the offence, the more damaging to the system’s repute would be an unfair trial
Proving a Claim Under Section 24(2) – Onus on claimant on balance of probabilities:
1) Breach of Charter
2) Connection between breach and evidence
a. Temporal Test (R. v. Strachan)
i. Did the breach precede the evidence? (No need for ‘but for’ test, but it will satisfy the connection if present)
ii. Is the evidence sufficiently connected with the breach and not too remote?
3) Disrepute to administration of justice (Collins Test)
a. Impact on trial fairness
i. Unfair if it is not ‘real’ evidence (is a confession or “emanated” from the accused → DNA, semen etc...)
ii. APPLY STILLMAN TEST
b. Seriousness of the violation of the right [part b and c are alternatives - SCC clarifies in Stillman]
i. Was the Charter violation serious or was it merely technical in nature?
ii. Was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
iii. Did it occur in circumstances of urgency or necessity?
iv. Were there other investigatory techniques available?
v. Would the evidence have been obtained in any event?
c. Effect of excluding evidence
i. Would excluding the evidence mean that the person is acquitted?
ii. How would the public view the exclusion given the seriousness of the crime?
STILLMAN
Test for Trial Fairness of Evidence
1. Is evidence non-conscriptive? (No impact on trial fairness – continue to steps b and c of Collins’ test)
2. Is the evidence conscriptive?
a. Requires accused’s participation
b. Includes evidence derivative to a confession (like where the gun is hidden)
3. ‘But for’ [without] conscription, would the evidence have been discoverable?
a. From an Independent Person?
b. Would it have been discovered in any event?
4. No → Unfair to trial process → disrepute to admin of justice → exclude
5. Yes → Consider seriousness of breach and disrepute to admin of justice (steps b and c from Collins’ test)
- Conscriptive evidence = compelled self-incriminating statement or something emanating from the body
- It is because the accused is compelled as a result of a Charter breach to participate in the creation or discovery of self-incriminating evidence in the form of confessions, statements or the provision of bodily samples, that the admission of that evidence would generally tend to render the trial unfair
- generally, statutory authority or consent is required to take bodily samples; therefore compelled evidence breaches Charter for purpose of self-incrimination and will result in an unfair trial
Searches Incidental To arrest – s.8:
- Search incidental to lawful arrest requires: 1) arrest to be lawful [reasonable and probable grounds]; 2) search conducted “incidental” to arrest; and 3) the manner in which the search is carried out must be reasonable
- Incidental purpose of warrantless search = to ensure person arrested isn’t armed or dangerous and to preserve evidence that may go out of existence or be otherwise lost
GRANT
Discoverability has been watered down, the issue of derivative evidence has also been watered down. Grant is more flexible so you have to be more creative in your arguments.
A new three-step analysis has been adopted, which, among other things,
1. Treats statements and bodily samples differently for the purposes of admission,
2. Reduces the importance of discoverability,
3. Renders the seriousness of the offence almost immaterial under sections 24(2), and
4. Discontinues the past practice of asking the pro-admissibility balancing question of whether exclusion will bring the administration of justice into disrepute, and replaces it with a consideration of the impact of exclusion on the public interest in the truth-seeking function of trials.
A more flexible test (Grant Test)
1) The seriousness of the Charter infringing state conduct (admission may send the message the justice system condones serious state misconduct). – look at officer here.
a. Police officers àbad faith: wilful disregard, abuse of process, threats or good faith: inadvertence.
b. Discoverability
c. Urgency à the more urgent the situation, may do things or think they don’t have time do to the proper process
d. Systemic problem: officers up the chain condone behaviour.
R. v. Strachan: In “emergency” cases, where public or police safety is at stake, a more generous approach is taken. The fact that the initial delay in providing the right to counsel was caused by the desire of the police to get a potentially volatile situation under control assisted in justifying the ultimate admission of the evidence.
2) The impact of the breach on the Charter- protected interests of the accused (admission may send the message that individual rights count for little)- Look at citizen here.
a. Big? Trivial?
b. How intrusive? Particularly with searches
c. Type of evidence
d. Discoverability could lessen the impact of the breach.
Statements: the degree of intrusion that occurs when statements are unconstitutionally obtained is high
Bodily Samples: The degree of intrusion caused when bodily samples are secured depends upon the extent to which privacy, bodily integrity, and human dignity are compromised given the nature of the samples and the manner in which they are secured.
Non-bodily physical evidence: The significance of the im-pact of the violation where non-bodily physical evidence is obtained turns primarily on the manner of discovery and the degree to which the manner of discovery undermines the Charter-protected privacy interests of the accused, although privacy interests related to the nature of the non-physical evidence also
can be considered.
Derivative evidence: real evidence discovered as a result of unconstitutionally obtained statements. The degree of intrusion will generally be significant, unless
· the breach had no real impact on the Charter-protected interest of the accused to make an informed choice about whether to speak to the authorities;
· it can confidently be said that the statement in question would have been made notwithstanding the Charter breach; or
· it can confidently be concluded that there is a likelihood that the derivative evidence would have been discovered even had there been no Charter violation. Where this conclusion can be made, the significance of the intrusion varies with the degree of likelihood that discovery would have occurred in any event.
3) Society’s interest in the adjudication of the case on its merits (search for the truth)
a. Reliability of the evidence: bodily stuff is highly reliable, statements may not be.
b. Importance of the evidence: the more important, the more important to the truth finding.
· No mandatory exclusion.
· Trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s 24(2) analysis.
· Cut Both Ways Argument
o The majority allowed that the seriousness of the offence may be a “valid consideration,” but then effectively neutralized its impact by noting that seriousness “has the potential to cut both ways.” à The public has a heightened interest in seeing a determination on the merits where the offence is serious, [but] it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high
o Seriousness of the alleged offence: cuts both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. The short term public clamour for a conviction in a particular case must not deafen the s 24(2) judge to the longer-term repute of the admin of justice.
· Seriousness (fact specific), Impact (danger), Societal (effect)
MUST ASK:
It must be the Accused’s Charter Rights that are violated
It must be the Accused’s Charter Rights that are violated
o R. v. Paolitto, the accused could not rely on subsection 24(2) to exclude handwriting samples that had been obtained from an accomplice in violation of the accomplice’s right to counsel
o R. v. Edwards: the accused did not have a reasonable expectation of privacy in his girlfriend’s apartment because he was merely a frequent visitor who did not contribute to accommodation costs and had no right to exclude others from the premises.
Must be violated by a State Agent
o R. v. Shafie: a private investigator hired by the employer of a person suspected of theft was not required to provide a subsection 10(b) right to counsel warning before questioning the suspect because the investigator was not a state agent. Hence, subsection 24(2) could not be used to exclude the “uncautioned” statement.
o A medical doctor who took a vial of blood from a suspect at the request of the police has been held to be a state agent
o R. v. M.(M.R.) it was held, using this test, that a school principal was not a state agent when he searched a student for drugs after requesting a police officer to be present because the principal would have searched the student in the form and manner he did even if the police had not been present
o A private citizen will also be acting as a state agent if their primary purpose in acting is to discover evidence with a view to criminal charges. The private citizen exercises his powers of arrest on behalf of the state and, therefore, an unreasonable search pursuant to such an arrest may lead to the exclusion of the evidence found.
Section 24(2) Response
INTRO
Here, [the accused] may have an argument that their right under s 24(2) was violated when the police [apply facts].
THE SERIOUSNESS OF THE STATE CONDUCT
Here, [the accused] would argue that the conduct of the police was serious in that [apply facts] . By admitting the evidence, the courts may send the message the justice system condones serous state misconduct. The main concern is to preserve confidence in the rule if law and its processes.
Here, [there was] or [were not] extenuating circumstances ie the need to prevent the disappearance of evidence or emergency, which may satisfy the seriousness of police conduct that results in a Charter breach. [apply facts…]
Police officers àbad faith( wilful disregard, threats, abuse of process) good faith: inadvertence.
Discoverability
Urgency à the more urgent the situation, may do things or think they don’t have time do to the proper process
Systemic problem: officers up the chain condone behaviour.
THE IMPACT OF THE BREACH
Here, [the accused] would say the breach impacted greatly on the protected interests of [the accused]. The more serious the incursion on [the accused] interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
Here, the [unreasonable search] contrary to [s 8] of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.
If applicable:
As the statements made by the accused to the officer caused him to self-incriminate himself, the Crown must prove beyond a reasonable doubt that it was made voluntary.
The seriousness of the police conduct and the impact on [the accused] rights of taking the bodily evidence may vary. Plucking a hair may not be, strip search is.
Take into Account:
Big? Trivial? à breach
How intrusive? Particularly with searches
Type of evidence
Discoverability could lessen the impact of the breach.
SOCIETY”S INTEREST
Would the truth-seeking function of the criminal trial process be better served by admission of the evidence, or by its exclusion.
If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of the exclusion of the evidence.
The public likes to see justice be served.
a. Reliability of the evidence: bodily stuff is highly reliable, statements may not be.
b. Importance of the evidence: the more important, the more important to the truth finding.
OUTCOME
S 24(2) is not a remedy for police misconduct (Collins). Just tries to prevent bringing the admin of justice into further disrepute.
Section 32 – Application of the Charter
“This Charter applies: (a) to the Parliament and government of Canada in respect of all matters within authority… (b) to the legislature and government of each province in respect of all matters within authority…”
Cases
Dolphin Delivery – CL injunction against striking picketers. Injunction held to violate s.2(b) but justified under s.1
McKinney v U of Guelph – mandatory retirement policy at U. Challenged as breach of s.15. Held: University wasn’t “government”
Hill v Church of Scientology – Hill sues church for CL defamation. Church argues that CL breaches s.2(b). Held: yes, but justified under s.1
Propositions
DOLPHIN DELIVERY
- Charter applies to Common Law by virtue of s.52 Constitution which says Constitution (and thus Charter) is supreme law and that any law inconsistent with it is invalid to the extent of the inconsistency
- Section 32 limits Charter application to activities of governments and legislatures.
- Charter doesn’t apply to private parties unless one of the parties relies on a law which is in violation of the Charter
- Charter applies to government decisions under legislation and to CL where it is the basis of government action (prerogative powers)
- Courts are not “government” under s.32 → they are neutral actors. If they were government, floodgates would open for all private litigation
- But Courts must implement and develop the CL in accordance with the Charter
SUMMARY:
- Legislation = Government Action
- Common Law = NOT Government Action
- Government + Common Law = Charter Applies
- Government + Legislation = Charter Applies
- Private Party + Common Law = No Charter (though may be subject to Charter values…see Hill v Scientology)
- Private Party + Legislation = Charter Applies
Blainey Case: Girl wants to play hockey on boys team. A law suit btw private parties, charter applied as one of the parties acted on the authority of a statute which infringed charter right of another), but not when a matter strictly between private parties (but judges should make decisions with Charter values in mind).
MCKINNEY V UNIVERSITY OF GUELPH
- Just because a body is set-up by statute, doesn’t mean that every aspect of their functioning is government action → otherwise, this would permit private corporations to be government.
- Government cannot determine who the university hires as faculty, who they admit, and most of the individuals who sit on the boards of universities are not appointed by the government (universities act on their own initiative)
- Acting for a public purpose doesn’t necessarily mean [a university] is government
- Actions taken by statutory compulsion indicate government
- Substantial government funding doesn’t prove government
- Gov’t cant interfere as it would lead to breaches of academic freedom.
- “Government Actor” requires party in question to be engaged in activities subject to government → Does government control the action?
- If entity is subject to government policy, this is a strong indication of government
HILL V SCIENTOLOGY
- CL rules must uphold Charter values – those that underlie each right
- Two private parties can invoke Charter where the CL rule violates a Charter value
- Before striking down CL rule, courts should try to modify it first to align with Charter values
Two-Tier Test For Private Parties:
1) Were defendant’s actions governmental in nature (Eldridge)?
2) Is there a breach of Charter value? [Onus on complainant to prove breach of value and that breach wasn’t justified (loose Oakes test)]
Contrast Cases
Stoffman v. Vancouver General Hospital
- Hospital had mandatory retirement policy
- 14 of 16 board members were directly appointed by the government and the hospital was funded by government
- SCC: Nonetheless, despite this appointment and substantial funding, the hospital board still was not government
Kwantlen Faculty Association v. Douglas College
- College board appointed by provincial government
- Minister could establish and issue directions and approved the board’s by-laws directly
- SCC: Charter did apply in negotiations for retirement provisions because government had more of a direct impact
Eldridge v. A-G of British Columbia
- Government had a policy that hospitals would provide the deaf with interpreters
- One hospital had not implemented that policy
- Eldridge successfully argued that it was against s.15 of the Charter for a hospital to not implement this policy for the deaf
- SCC: hospital not government but the Charter applies to it for the purpose of the government policy because the hospitals actions are “governmental in nature”
Other Stuff
The Charter applies to corporations for the purpose of sections 2(b), 8, 11(c) ‘not to be compelled as a witness’
Section 32 Response Guide
INTRO
The first issue to address is whether the Charter applies to [possible government actor].
- Legislation = Government Action
- Common Law = NOT Government Action
- Government + Common Law = Charter Applies
- Government + Legislation = Charter Applies
- Private Party + Common Law = No Charter (though may be subject to Charter values…see Hill v Scientology)
- Private Party + Legislation = Charter Applies
A) The situation here lends itself to argument as to whether [possible government actor] is subject to the Charter. According to McKinney, the question to ask is whether the government effectively controls [action by possible gov’t actor].
→ Look at factors from McKinney
→ Look to Stoffman v. VGH and to Kwantlen v. Douglas College
B) Eldridge held that if an entity’s actions were governmental in nature – that is, they implement government policy – they will be considered “government” for the purpose of s.32.
→ Look to Eldridge and Kwantlen v. Douglas College
C) For Private Parties
→ Were Government’s Actions Governmental In Nature? (Eldridge)
→ Is there a breach of a Charter Value?
Interpretation of the Charter of Rights and Freedoms
The Charter enshrines six broad categories of rights:
1. Fundamental freedoms of conscience, religion, thought, belief, opinion, expression, assembly and association
2. Democratic rights: right to vote, guarantee of regular elections etc
3. Mobility rights to enter and leave the country. Right to reside in and gain livelihood in any province.
4. Legal rights: right to counsel, protection against unreasonable search and seizure, s 7, and the right not to be deprived of except in accordance with principles of fundamental justice
5. The right to equality before and under the law.
6. Language rights
These rights are both guaranteed and made subject to limitations in section 1 of the Charter. Includes a number of interpretive provisions: s 25, s 27, s 28. Also significant to interpretive issues is the specific remedial clause in s 24.
Original Intent vs Interpretative Tools
The courts have adopted a two-step approach of interpretation and justification:
Purposive Method: dominant approach to interpretation.
o Hunter v Southam: SCC distinguished the method of statutory construction from that of constitutional interpretation.
o Kapp: adopts evolving and flexible approach
o Tessling: rejects original intent, focuses on evolving.
o Rights and freedoms are not frozen in content and had to remain susceptible to evolve in the future.
o The original intent approach was rejected as being inconsistent with the idea of an enduring constitution. à must be capable of growth and expansion.
o The original intent of those who drafted the Charter will not be conclusive in its interpretation for two reasons: statements of intent of individuals is an unreliable guide to discerning the intent of others who took an active role in the creation of the Charter. AND adoption of a strict interpretivist approach would freeze the meaning of the Charter at a particular time.
o Given the rejection of the original intent approach, Court in Hunter v Southam applied the purposive approach.
The Contextual Approach
o Will most often be used to impose some definitional limits on Charter rights and when the court assess whether a limit on a Charter right is reasonable under s 1 of the Charter
o This approach is generally taken when interpreting s 7 and s 15. à social and political context of the Charter claim is important
Reconciliation of Competing Rights
o SCC rejected a hierarchical approach to rights that places some charter rights above others.
Application of the Charter to Corporations
· S 2” Everyone” has the following fundamental freedoms…a) freedom or conscience and religion. à corps do not have religion or conscience
· 2(b) freedom of thought, belief, opinion and expression àYes, JTI MacDonald
· s 7 “everyone” has the right to life, liberty and security of person à corps do not have, people do.
· S 8 “everyone” has the right ...unreasonable search or seizure à Yes, hunter & southam
· S 9 “everyone” has the right ..arbitrarily detained.. à no, how do u detain a corp
· S 10 “everyone” has the right on arrest or detention.. à no, corp.
· S 11 “any person” charged with an offence.. c) not to be compelled to be a witness in proceedings à no corp
· S 13 “a witness… protection against self-incrim” à corps do not. Cannot imprison a corp
· However, a corp may challenge a law that violates a person’s constitutional right
EVIDENCE: Collins, Stillman & Grant Article by Stuesser
The Common Law
· With the exception of involuntary statements, the probative value of evidence does not change because it was obtained illegally
· Courts throw out involuntary statements not because they were obtained improperly but bc there was concern they could be unreliable.
· This led courts to reject involuntary statements but to accept any real evidence that was discovered as a result of those statements
· In taking this approach, the court was not saying that saying that they did not care if police officers broke the law. They were saying that at the trial of the accused, the issue is whether the accused acted illegally, and relevant reliable evidence on that question should be admitted. The time to deal with the illegality of police conduct is in other legal proceedings about the police officer’s conduct.
· Prosecution and disciplinary action against police officers were rare. Many believed that this harmed the repute of the administration of justice. Citizens were prosecuted for breaking the law, but police illegalities were ignored.
· It was not until 1982 that things changed with the proclamation of the Charter and the adoption, in section 24(2), of an exclusionary rule for unconstitutionally obtained evidence.
The Charter
· Since the Charter will be violated by almost any illegal investigative technique, most evidence obtained illegally by state agents is now subject to potential exclusion under this provision
· It was agreed that unconstitutionally obtained evidence would be excluded, but only in those cases where its admission would bring the administration of justice into disrepute. Canadian courts have therefore struggled with when to exclude evidence.
· The Court offered little technical guidance but that changed in 1987 with Collins.
o Organized the factors to be considered in a section 24(2) application according to the effect that the admission of the illegally obtained evidence would have
o The Court introduced a “fair trial” theory, holding that the admission of unconstitutionally obtained, self-incriminatory evidence would render the trial unfair and should be more prone to exclusion than real evidence, the admission of which would not tend to undermine trial fairness.
o At the time the self-incrimination concept was confined to statements. This then progressed to the accused into the investigative process, including forcing the accused to participate in a police lineup,9 or by securing bodily samples from the accused,10 but by 1997 it was equating these forms of compulsion with self-incrimination
· R. v. Stillman imposed a highly technical analytical structure that saw the creation of separate tests for the exclusion of compelled conscriptive evidence and non-conscriptive real evidence
o At the time the self-incrimination concept was confined to statements. This then progressed to the accused into the investigative process, including forcing the accused to participate in a police lineup,9 or by securing bodily samples from the accused,10 but by 1997 it was equating these forms of compulsion with self-incrimination
o Compelled conscriptive evidence was subject to almost automatic exclusion unless the Crown could prove it was “discoverable,” (i.e., it would have been discovered even without the Charter breach) while a more flexible balancing test was to be used for non-conscriptive real evidence
· R v Grant rejected the Collins/Stillman framework
o With the decision in R. v. Grant, that “fair trial” theory has been pushed aside. Currently, the “main concern” behind exclusion is seen to be the need to “preserve public confidence in the rule of law and its processes
o The key concept that drives the present law is therefore “condonation theory.” (seriousness and significance of the breach)
o The more serious the violation and the more significant the consequences are, the greater the need for courts to distance themselves from the violation by excluding the evidence
o The Grant court not only abolished the “two-box” approach and jettisoned the Collins/ Stillman fair- trial theory, the Court has also:
§ Rejected the equation of self-incrimination and other conscriptive evidence;
§ Reduced the role “discoverability” plays; and
§ Marginalized the reliance that can be placed on the seriousness of the offence as a relevant factor in section 24(2) reasoning
o The Court held that the Collins/Stillman fair trial theory “wrongly equates bodily evidence with statements.” The accused whose bodily samples are taken is not being used as a “witness” against himself. Statements create new information, but bodily samples exist
Where will the largest impact by Grant be felt?
The largest impact of Grant will be felt in alcohol driving cases. On a day to day basis it is samples secured in alcohol driving offences that have historically been the most common subject of Charter exclusion applications. These cases invariably involve detentions that trigger Charter obligations, and the law surrounding alcohol driving investigations is complex. Courts applying the Collins/Stillman framework routinely excluded such samples, thereby destroying the Crown case, often because of “minor” violations. The Grant decision has now changed things. It characterizes the collection of breach samples as “relatively non-intrusive,” and uses them as an illustration of intrusions that are “less severe in terms of privacy, bodily integrity and dignity,” and more apt to result in admission
R v Harrison
o Cop was initially going to pull over for missing front license plate but then realized it was an Alberta car, which does not require. He was driving at the speed limit
o He testified that he nonetheless chose to pull the vehicle over because abandoning the detention might have affected the integrity of the police in the eyes of observers, an explanation that the trial judge disbelieved
o The police officer ran a computer check on the licence and determined it was rented in British Columbia. Aware that drug couriers often use rental vehicles; and because the vehicle was traveling at the posted speed limit in an area where traffic customarily exceeded the speed limit (a mode of driving the officer interpreted as suspicious) the police officer had a hunch that the vehicle was carrying drugs
o On approaching the vehicle he determined that the driver had a suspended licence. He arrested the driver and then searched the vehicle, ostensibly as a search “incidental to arrest,” which he claimed to have conducted to find the missing driver’s licence.
o The officer then discovered boxes in the cargo area, containing 35 kilograms of cocaine. This evidence was obtained in a manner that violated the Charter because the detention that occurred when the police officer directed the vehicle to stop was arbitrary
o The search of the vehicle was illegal and therefore contrary to section 8 of the Charter, as it was not a valid search incidental to the arrest. These breaches led directly to the discovery of the evidence.
o The officer’s conduct showed a reckless and blatant disregard for Charter. The evidence was highly reliable and crucial to the Crown case, which favoured admissibility.
HELD: The evidence was excluded. 1) that the stop and search of the vehicle without any reasonable ground. 2) the misleading testimony by the Cop
Comparisons with American Approaches
MIRANDA RULE: in Fish J Dissent in Singh
· For more then 40 years, it has been the law in the United States where a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease (Miranda v Arizona)
· The critical safeguard identified in the passage at issue is a person’s right to cut off questioning
· The U.S. Supreme Court affirmed that “Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts
· Miranda can hardly be said to have paralysed criminal investigations in the US. And there is no evidentiary basis for suggesting that it would do so in Canada.
Freedom of Speech s 2(b) as discussed in Keegstra
· Collection of fundamental rights has been protected for over 200 years.
· First Amendment doctrine à to protect offensive, public invective as long as the speaker has not knowingly lied and there exists no clear and present danger of violence.
· S 1 has no equivalent in the US, it is a balancing provision.
· If values fundamental to Canadian conception of a free and democratic society suggest an approach that denies hate propaganda the highest degree of constitutional protection, it is the approach that must be employed.
R v Harrer involved an application by the accused to exclude statements made to American authorities while she was being detained in the US. Although the American authorities complied with the requirements of the law in the US, had a Canadian peace officer conducted an interview in the same fashion, the accused’s right to counsel would have been violated. It was nonetheless impossible for Harrer to rely on the Charter’s exclusionary remedy in subsection 24(2) because there had been no misconduct by Canadian state agents and therefore no Charter breach.
