Toronto Criminal Lawyers Blog

In Canada, all powers to search and seize are now subject to section 8 of the Canadian Charter of Rights and Freedoms, which articulates the right not to be unreasonably searched or have one’s possessions seized. As a result, sec. 8 requires that an assessment be made in each case of whether the public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals: most notably, those of law enforcement. In the case of Hunter v. Southam, the Supreme Court of Canada held that, save a few exceptions, and as a means of preventing unjustified searches, the requirement of prior authorization, such as a valid warrant, is a pre-condition for a valid search or seizure. The logical extension of this requirement amounts in principle to the rule that warrantless searches that don’t fall into one or more of the exceptions are unreasonable. This means that in most cases, the police will need a Judge or a Justice of the Peace to issue a search warrant before they can search any place or seize any property.

Reasonable Expectation of Privacy in a Motor Vehicle

Not all private property, however, commands the same level of respect for privacy from a sec. 8 perspective. By that it is meant that the courts will determine the individual’s level of expectation of privacy based on the place that is searched or the property that is seized. The higher the expectation of privacy, the more rigorously the courts will enforce the rule of prior authorization. Generally speaking, an individual will have a greater expectation of privacy in their home than they will in their car, a greater expectation of privacy in their car than in their work-locker, etc… It is without a doubt, however, that individuals do have a reasonable expectation of privacy with regard to their own car, and the contents of therein.

However, the same expectation of privacy is not attributable to persons who are not the vehicle’s owner and who are passengers within it. As the Ontario Court of Appeal held in R v Alkins, the already lesser expectation of privacy in a car is further reduced when the vehicle belongs to someone other than you. To illustrate this point, consider for a moment that you are a passenger in a vehicle which is stopped by the police for speeding. After briefly speaking with the driver, the officer believes that a weak scent of marijuana is coming from within the car. Ordinarily, that would not amount to sufficient grounds to search the vehicle, but say for the sake of example that the officer conducts the search anyway and discovers an ounce of marijuana under the passenger’s seat, where you happen to be sitting. As a result, both you and the driver are arrested for constructive possession of a controlled substance. At his trial, the driver’s lawyer brings an application to exclude the marijuana because it was obtained through an unlawful search of his vehicle, and succeeds. At your trial, your lawyer tries to do the same, but the judge dismisses your application. Why? The reason is because you are deemed to have a lesser, or no expectation of privacy in the car of another, and thus, cannot rely on the sec. 8 right not to be unreasonably searched.

Now say that instead of finding the marijuana under the passenger’s seat, the officer searched through a briefcase that was located in the trunk of the car. After asking who it belonged to, you advised the officer that it was yours, and you were not consenting to a search of its contents. Despite your protests, the officer goes ahead and searches it anyway, discovering the marijuana within it and placing both you and the driver under arrest. The situation has now fundamentally changed from when the discovery of the marijuana was found under the passenger’s seat. This is because you are deemed to have an expectation of privacy in the contents of a briefcase, or an opaque bag of any kind. In R v. Mohamad, the Ontario Court of Appeal held that the owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases. The Court stated that briefcases can often have highly confidential personal and business information and, in a practical sense, can serve as possible portable offices or “keep-safes” for their owners. As a result, when your lawyer files an application to exclude the marijuana at your trial, you will be in a much stronger position and may be successful in having the evidence excluded. The word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.

Exceptions to the Rule of Prior Authorization

At the start, I mentioned that there existed a few exceptions to the rule requiring prior authorization for searches and seizures. One of the most common exceptions to the rule is what is known as the “search incident to arrest” power. A search incident to arrest occurs when the police search your person, objects on your person, your car, and/or the surrounding area as a result of your arrest for an alleged crime. For example, if the police see you engage in a drug transaction from within your motor vehicle, they will have the right to search you and your vehicle for any drugs. Any other unlawful objects, materials or supportive evidence that is found in the process of the search may also be seized.
However, police need to be careful how they use their power to search incident to arrest. A prerequisite to a search incident to arrest is that the arrest itself must be lawful. This means that if the police do not have reasonable and probable grounds to make the arrest in the first place, then the arrest is unlawful. As such, any incriminating evidence that they find on you, or in your car, may be excluded at your trial. Again, the word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.
Moreover, even if the arrest itself is lawful, the search which the police conduct subsequent to your arrest must be connected to the crime you are being arrested for. For example, if you are arrested for driving while impaired, generally speaking, a search of your vehicle would not be connected with what you are being charged with. What reason would the police have to search your car? The crime of driving while impaired has to do with you being impaired by drugs or alcohol while operating a motor vehicle. A search of your car is not required to prove the elements of the crime, and does little to further the police’s investigation. Conversely, in the drug-transaction example above, the search of your car is logically connected to your arrest. Since the police saw you sell drugs out of your car, it is not illogical to believe that there may be more drugs within the car. What constitutes a logical connection between the arrest and the search will be determined by the specific context of each individual case.

Other, less known, exceptions to the rule requiring prior authorization are contained within the Criminal Code itself. The most notable of those exceptions, for present purposes, is located in sec. 487.11, which states the following:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant

In the case of R v. Grant, the Supreme Court held that exigent circumstances exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Generally speaking, whether exigent circumstances exist on the occasion in question will be a question of law for the judge to decide. The “exigent circumstances” exception is one that is rarely used, since in most cases the police will gain control of the location that they intend to search, and then apply for a search warrant to permit them to enter, if they haven’t already applied for one.

Contact Kostman & Pyzer, Barristers, for your best defence.

Section 11 of the Charter guarantees every individual certain rights when they are charged with a criminal offence. Section 11 applies to all types of offences (criminal, quasi-criminal, and regulatory offences). Section 11 protects individuals as they navigate their way through the criminal justice system, from the moment they are charged until their matter is resolved. Different rights attach to the individual at different stages of the proceedings. There are nine specific rights enumerated in s. 11:

1. The right to be informed without unreasonable delay of the specific offence you are being charged with;
2. The right to be tried within a reasonable time;
3. The right not to be compelled to be a witness in the proceedings against you;
4. The right to be presumed innocent until proven guilty in a court of law
5. The right not to be denied reasonable bail without just cause;
6. The right to be tried by jury for any offence where the maximum punishment is imprisonment for five years or more;
7. The right not to be found guilty on account of any act or omission unless that act or omission constituted an offence under Canadian or international law at the time the act was committed;
8. The right not to be tried again for an offence for which you have already either been acquitted or convicted and punished; and
9. The right to benefit from the lesser punishment in situations where the punishment for the offence has been varied between the time of commission and the time of sentencing.

The rights in s. 11 are a response to inherent inequalities in the criminal justice system. When an individual is charged with a crime, he or she is suddenly thrust into a legal battle with the state. However, the state has significant financial, investigative, and prosecutorial resources, giving it a considerable advantage. The rights enshrined in s. 11 provide the accused person with constitutional protection throughout his or her prosecution to offset this advantage.

If the state fails to meet its obligations under s. 11, a criminal defence lawyer can raise the issue at trial in order to argue that the accused person has been unfairly treated by the state. This will sometimes lead to a remedy under s. 24 of the Charter (see our blog on Charter Remedies).

Section 11(a): The right to be informed without unreasonable delay

Section 11(a) of the Charter is premised on the legal principle that every accused person is entitled to know the nature of the allegation against them at an early juncture so that they can make informed decisions in their defence. This is an essential aspect of the common law conception of a “fair trial”. It would be absolutely impossible for an individual to begin to prepare a defence if he or she did not know the charge against him or her. Thus, s. 11(a) ensures that an individual is able, along with a criminal defence lawyer, to begin to prepare a defence as soon as they are arrested.

In The Queen v. Nijhar the Supreme Court of Canada confirmed that if multiple charges have been laid against the accused, an agent of the state must inform the accused of all the charges. The Charter does not require that the accused be notified of the charges in writing. Section  s. 11(a) guarantees the right to be informed of the specific offence an individual is charged so that they are in a position to refute and respond to the specific allegation as opposed to criminal activity generally.

Section 11(b): the right to be tried within a reasonable time

Section 11(b) provides that every person has a right to be tried within a reasonable time. What constitutes a reasonable time will vary from case to case. However, generally speaking, this provision protects against unnecessary, irresponsible or flagrant delay on the part of the prosecution. In R. v. Rahey, the Supreme Court explained that s. 11(b) “protects against an overlong subjection to a pending criminal case and aims to relieve against the stress and anxiety which continue until the outcome of the case is final”. Without s. 11(b) the state would be free to cause unnecessary delay for strategic reasons, and the individual would have no recourse where a prosecution is less than diligent. Section 11(b) ensures that a prosecution moves along at a reasonable pace without undue prejudice to the person who is the subject of the prosecution. This Charter right recognizes that criminal proceedings are very stressful and disruptive to an individual’s life, and seeks to minimize that effect.

In R. v. MacDougall the Supreme Court confirmed that that the s. 11(b) right applies until the individual has been sentenced. Thus, the protection in s. 11(b) could be invoked to remedy an unreasonable delay between judgment and sentencing.

Section 11(c): the right not to be compelled as a witness in a proceeding against you

Section 11(c) is the constitutional recognition of the common law principle against self-incrimination. The purpose of s. 11(c) is to prevent the prosecution from forcing individuals to supply the evidence that could be used to convict him or her. Historically, Canadian society has considered self-incrimination to be an affront to the every human being’s inherent right to personal dignity and privacy. Section 11(c) is closely related to the right in section 11(d), which states that every individual is presumed innocent until proven guilty. Together, ss. 11(c) and (d) create a constitutional obligation on the state to prove their case beyond a reasonable doubt. In practice, this right guarantees that the Crown cannot force you to testify as a witness at your own trial. The decision to testify in your own defence rests entirely with you. Every defendant is entitled to refrain from testifying. The court cannot infer guilt from an accused’s decision not to testify at his own trial.

Section 11(d): the right to be presumed innocent until proven guilty in a court of law

The Supreme Court of Canada has referred to this constitutional right as “the golden thread” that runs through the criminal law. The burden is always on the prosecution to prove a criminal case. The presumption of innocence acts as a shield to protect an individual where the evidence falls short of proof beyond a reasonable doubt. Section 11(d) entrenches the long standing common law principle that no person can be convicted if there exists a reasonable doubt that they committed the offence. It is because of s. 11(d) that the court is constitutionally required to prove every element of the offence beyond a reasonable doubt and also to disprove the validity of any defence beyond a reasonable doubt. The Supreme Court has ruled that it would contravene s. 11(d) if the defence was required to disprove an element of the offence or to prove the existence of a defence. Thus, at minimum, the defence must show that the case, as presented by the prosecution, leaves a reasonable doubt as to whether the defendant is guilty.

Section 11(e): the right not to be denied reasonable bail without just cause

Section 11(e) is also closely related to the right to be presumed innocent until proven guilty. Section 11(d) tells us that every individual must be presumed to be innocent and section 11(e) speaks to the issue of an accused person’s liberty before trial. Generally speaking, innocent individuals should not be deprived of their liberty prior to conviction for the offence. Section 11(e) guarantees every person’s right to liberty as they await a criminal trial. For obvious public safety reasons, in some cases it is impossible to allow the defendant to remain at liberty. That is why s. 11(e) allows the state to continue to detain the individual in some cases – but only when they have “just cause”.

The term “reasonable bail” refers to the terms of the bail, such as the quantum of bail and the restrictions placed on the accused’s liberty while he or she awaits trial. These must be “reasonable” so as to avoid infringing on the accused’s liberty in an unfair or arbitrary manner. The requirement that the state have “just cause” refers to the right to be released on bail. According to the Criminal Code, there are only three reasons that the accused may be denied bail: if he or she is a danger to the public safety, if he or she is likely to flee the jurisdiction, or if his or her release would erode public confidence in the administration of justice (see our blog, “Bail: the Tertiary Ground for more information). If the Crown can establish that any of these three grounds are present in the case at bar, that will constitute “just cause” for denying bail.

Section 11(f): The right to be tried by jury for any offence where the maximum punishment is imprisonment for five years or more

Section 11(f) gives the denfendent the right to elect to be tried by jury if they are charged with a crime for which the maximum punishment is more than five years. For administrative reasons, it is virtually impossible to allow individuals to elect to be tried by jury for minor offences. However, the right to be tried by a jury of your peers is one of the oldest and most important common law principles. Since the decision of a jury must be unanimous, juries add  an institutional safeguard to the trial process by requiring the prosecution to convince twelve individuals of the defendant’s guilt – instead of just one judge. Section 11(f) recognizes the benefits of trial by jury and allows the accused to take advantage of those benefits.  However, the defendant is free to choose to forego the “benefit” of a jury, if he or she feels it is in his or her best interest to do so. Though trial by jury is generally an advantage for the accused, criminal defence lawyers tend to recommend that the accused waive his or her right to be tried by jury in certain situations, for example, when a person is accused of a particularly shocking and horrendous crime which might prejudice the jury against the accused such as a sexual or violent crime against a child.

Section 11(g): The right not to be found guilty on account of any act or omission unless that act or omission constituted an offence under Canadian or international law at the time the act was committed

Section 11(g) contains a simple but important right. Because of s. 11(g), the criminal law can never apply retroactively. Essentially, this means that no person can be convicted of an  action alleged to constitute an offence that was not illegal at the time the defendant committed it. For example, if the government were to pass a law tomorrow saying that it is illegal to purchase a handgun, it could not then arrest every individual who purchased a handgun before the law was enacted. It could only arrest those individuals who purchase handguns after the law comes into force.

Section 11(h): the right not to be tried again for an offence for which you have already either been acquitted or convicted and punished

Section 11(h) essentially enshrines what criminal lawyers and other legal professions refer to as the rule against “double jeopardy”. This rule means that an individual cannot be tried a second time for the same crime on the same set of facts. If the individual was acquitted of the crime, he or she cannot be tried again, even if the police find new evidence against the person.

However, the double jeopardy principle does have some important qualifications. Unlike in the United States, in Canada the double jeopardy principle does not prevent the prosecution from appealing an acquittal at trial. In the US, if the accused is acquitted at the trial stage, the District Attorney’s Office cannot appeal the acquittal to a higher court (if the accused is convicted at trial, he or she does have the right to appeal). In Canada, the Supreme Court has ruled that s. 11(h) does not apply until the trial has been “fully concluded”. A trial cannot be fully concluded until either side has exhausted its ability to appeal. Thus, any appeal is deemed to be an extension of the trial and not a new trial. The Court of Appeal does not have the power overturn a verdict and enter a new verdict. At most, the Court of Appeal can order that a new trial be conducted. The Supreme Court has likewise ruled that a new trial in these circumstances is an extension of the original trial and does not constitute a breach of s. 11(h). Moreover, if you are tried for a criminal offence, s. 11(h) does not preclude you from facing other types of legal proceedings arising out of the same facts that led to your criminal charge. For example, if you are convicted of assault in a criminal court, the victim can sue you in the civil court and the civil suit will not constitute a breach of s. 11(h).

Section 11(i): the right to benefit from the lesser punishment in situations where the punishment for the offence has been varied between the time of commission and the time of sentencing

The final right articulated in s. 11 of the Charter is relatively straightforward. It simply states that where the punishment has changed between the time the offence was committed and the time a person is sentenced, the lesser punishment applies at the time of sentencing. This only applies until the time of sentencing. If the law is changed to impose a lighter penalty after the defendant is sentenced, he or she cannot invoke s. 11(i) to appeal his or her sentence. Finally, s. 11(i) has no application to civil penalties even if they flow from a criminal conviction (for example, the suspension of an individual’s driver’s license after a impaired driving conviction).

Know your Charter rights. Call Kostman and Pyzer, Barrisers, toronto criminal lawyers who are experienced and skilled. 416-658-1818