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.

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Sec. 16 of the Criminal Code reads as follows:

1. Defense of mental disorder – 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.

2. Presumption – Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

3. Burden of Proof – The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

In 1992, Bill C-30 came into force which reformed (at least partially) the law at it relates to the defence of “not criminally responsible on account of mental disorder”. The underlying premise of the Bill was to modernize the psychiatric terminology used in the old bill, and to reform the powers of the Mental Health Review Board in deciding how long the accused should be detained. This, in effect, amounted to indeterminate detention times at the discretion of mental health authorities. Under this Bill, the authority to detain was transferred to the Provincial Review Boards who were subject to new capping provisions (such as life for 1st degree murder, etc…). However, the capping provisions are yet to be proclaimed (meaning, brought into effect), and thus, the old regime of indeterminate sentences still prevails. Additionally, the Bill emphasizes that “every person is presumed not to suffer from a mental disorder, until the contrary is proved on the balance of probabilities” – which is commonly known as the civil standard of proof, as opposed to the criminal standard of beyond a reasonable doubt. Therefore, the burden of proof is on the party who raises the issue. In the case of R v. Chaulk, the presumption of sanity was held to be constitutional, in spite of the fact that the evidentiary burden shifts to the defence. Where the defence was not raised during the course of the trial, or was rejected, the trial judge only has normal sentencing options available to him. In other words, he has no power to order psychiatric treatment in a prison facility. 

In the case of Cooper v. R, one of the leading cases on the NCR defense, the following legal issues were resolved by the Supreme Court of Canada: In Cooper, the Court considered the meaning to be given to the phrase “disease of the mind”, and the interpretation to be given to the words “incapable of appreciating the nature and quality of an act”.  

The Court found that the term “disease of the mind” was a legal concept, to be determined by the trier of fact (judge or jury), and not a medical term. It is the function of the psychiatrist to describe the accused’s mental condition and how it is considered from a medical point of view, but it is for the judge to decide whether the condition described constitutes a “disease of the mind”. As a general guide, “disease of the mind” means any illness, disorder or abnormal condition which impairs the human mind and its functioning (excluding self-induced states caused by alcohol or drugs). The disease must manifest itself with such intensity as to render the accused incapable of appreciating the nature and quality of the offence or of knowing that it is wrong. Once the judge has determined that there is any evidence that the accused did suffer from such a disease (in legal terms), the question of fact as to whether section 16 has been established (on the balance of probabilities) must be left with the jury. The jury must determine whether the accused was suffering from a disease of the mind at the time the criminal act was committed. They jury must also be satisfied that at the relevant time, either the accused was incapable of appreciating the nature and quality of the act, or that he did not know the act was wrong.

In regards to the second issue, a fundamental difference arises between “knowing” the nature and quality of the act, and “appreciating” the nature and quality of the act. The former denotes only an awareness of the physical act, while the latter requires a level of understanding of the act which is more than mere knowledge that it’s taking place. In other words, there must be an appreciation of the factors involved in the act and a mental capacity to measure and foresee the consequences of the conduct. This formulation is unique to Canada. In refining this issue somewhat, the Supreme Court in R v. Abbey held that the requirement that the accused be able to perceive the consequences of a physical act is a restatement, specific to the defense of insanity, of the principle of mens rea, or intention as to the consequences of an act, as a required element in the commission of a crime. In other words, the accused who suffers from a disease of the mind which renders him unable to appreciate the nature and quality of his act cannot be said to have the requisite mens rea (or guilty mind) for the underlying offence. 

Prior to the Supreme Court of Canada decision in Chaulk, the word “wrong”, as it appears in sec. 16(1), had been interpreted to mean “legally” wrong. In Chaulk, the Court reconsidered its earlier position and decided that the term means “morally” wrong. The Court was of the view that the term should allow for an accused person who believed his actions were morally justifiable under the circumstances, but did know that they were illegal. The Court justified its position by stating that a person may well be aware that an act is contrary to law, but by some reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. As an example, the Court considered the example of an individual who kills in the belief that it is in response to a divine order, and therefore, not morally wrong.

One should remember that a successful “insanity defence” does not result in an individual being freed immediately. An individual who is found “not criminally responsible” will be the subject of Review Board hearings where their mental health status is reviewed on an ongoing basis to determine the seriousness of the threat that they constitute to the public if released.

Contact Kostman and Pyzer, Barristers, for all your criminal defence needs.

Generally speaking, a hearsay statement is an out-of-court statement made by person A to person B (or overheard by person B), which is being tendered in court as evidence of the proof of the statement’s content(s). By necessity, therefore, person A is unavailable, or unwilling to testify to the truth of that statement in court. Thus, the rule against hearsay prohibits the admission of out-of-court statements which are tendered for their truth. For example, a witness says “Harry told me Brian was driving to Toronto”. Since the witness did not see Brian driving himself, the statement would be hearsay evidence to the fact that Brian was driving, and not admissible. However, in certain circumstances, a hearsay statement may be tendered in court as evidence of the fact that it was made, or even as to the declarant’s state-of-mind. For example, a witness testifies that “Carrie said in front of me that she was waiting for a ride from Bob”. While the statement may not be tendered into evidence as proof that Bob drove Carrie on the occasion in question, it may be adduced as proof of Carrie’s intention to locate a ride from someone, for example. The specific circumstances of how a hearsay statement may be adduced for something other than its truth will depend on the context of the case.

The arguments against the admissibility of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth, then surely the person who disputes its validity should have an opportunity to “question” the person in respect to his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, spontaneous utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” to hearsay statements allows the Court to consider the issue of admissibility through an assessment of the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliability.

In domestic assault cases, the prosecution will often find itself in a situation in which the Complainant is uncooperative and recants their original version of the event in issue. The principled exception to the hearsay rule allows the prosecution to adduce the Complainant’s original version of events if the prosecution can establish that it is necessary (the witness is absent or recants) and that the original vrepeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement ersion is reliable.

Though members of the public often interpret the word “wiretap” is referring only to listening devices used to intercept telephone calls, criminal defence lawyers and other legal practitioners use the word “wiretap” to refer to any concealed listening or recording device used to intercept private communications. Police use wiretaps to monitor private communications in hopes of obtaining evidence as part of an ongoing criminal investigation.

It is both illegal and unconstitutional for the police to intercept private communications using a wiretap without first obtaining a wiretap warrant. The police can only act in so far as their conduct is empowered by law. There is no law which allows the police to set up a wiretap without prior judicial authorization in the form of a warrant. Thus, any warrantless wiretap is illegal. Moreover, section 8 of the Canadian Charter of Rights and Freedoms guarantees that every person has a right to be free from unreasonable search and seizure. “Search” is defined very widely to include a wiretap. The Supreme Court has ruled that an illegal search is automatically considered unreasonable under section 8. When the police infringe Charter rights, the court has the power to grant the individual infringed upon a remedy. The primary remedy for a breach of section 8 is exclusion of evidence. This means that if the police obtain evidence against an individual using a warrantless wiretap, that individual’s criminal defence lawyer will argue that the wiretap violated the individual’s constitutional rights and that any evidence obtained through the wiretap should be ruled inadmissible at the individual’s trial.

Sections 186 and following of the Criminal Code of Canada govern the procedure for requesting, granting and executing a wiretap. Section 186 of the Code allows a Judge in the Superior Court of Justice to grant a wiretap warrant (unlike almost all other warrants which may be granted by a Justice of the Peace or a Judge in the Ontario Court of Justice).

The police must request a wiretap warrant before using any type of technology that intercepts private communications. Generally speaking this includes: a phone tap, a room probe (“bug”), and a body pack (“wearing a wire”).  However, this may also include video surveillance that also records sound. It is important to note that in private communications between two civilians, any conversation can be monitored or recorded with the consent of one of the parties. For this reason it is legal for an individual to tape all of his or her private telephone calls. However, it is not legal for the police to record or monitor private communications even with the permission of one of the parties involved, usually an undercover officer or confidential informant . Section 184 of the Criminal Code makes it clear that the police cannot rely on the consent to collect evidence using a body pack. Rather, a wiretap warrant must be obtained before the police may legally use a body pack. Thus, while a private individuals is free to record their communications with others, the police may not rely on the consent of one member of a conversation to legally record that conversation; they must obtain a wiretap warrant.

The method of applying for a wiretap warrant differs from the method of applying for every other type of warrants. While most other warrants require that the police swear a document called an information in front of a justice of the peace or judge in the Ontario Court of Justice, to apply for a wiretap warrant the police must prepare a special affidavit request. The affidavit must be written by a senior officer and a representative of the Crown Attorney’s office must approve and sign the request. Wiretaps are the only investigative technique that must be requested jointly by the Police and the Crown. Once the affidavit is prepared an officer must swear that its contents are true, under oath, before a judge of the Superior Court of Justice. The judge will then determine whether or not to grant the request. This is done ex parte, which means that it is done without the knowledge of the person to be tapped. This makes sense as notification to the suspect would undermine the very purpose of the investigation; however, as a result the validity of the application is determined without any opportunity for objection by a criminal defence lawyer.

Section 186 sets out criteria that the judge must consider when deciding whether or not to grant a wiretap warrant. The criteria to obtain a warrant under s. 186 are (i) reasonable and probable grounds and (ii) investigative necessity. Thus, first the police must prove that they have reasonable and probable grounds to believe that the wiretap will reveal evidence to further a specific on-going investigation. The police must demonstrate in the affidavit that they have reason to suspect that the individual to be tapped is involved in a specific type of criminal activity and that the tap will reveal a particular type of evidence. Second, the police must show in the affidavit that there is no other investigative technique by which they could obtain the evidence they are seeking. This means that by the time the police request a wiretap affidavit they have usually exhausted other means of collecting evidence such as an ordinary home search, a covert search, a confidential informant, and police surveillance. The wiretap affidavit must explain why these methods failed where the wiretap can succeed.

If the judge chooses to grant the warrant, the warrant will last sixty days and may be renewed at the end of that period. It is not unusual for a tap to continue for over a year through the use of multiple successive renewals. The wiretap warrant is very expansive and once granted it bestows the police with a number of powers. For example, generally speaking, the warrant will allow the police to use any form of technology – phone tap, room probe, or body pack – to further their investigation at their discretion. Moreover, most wiretap warrants will authorize the police to enter the suspect’s home without his or her knowledge in order to place a room probe.

Every warrant contains an identification clause which specifies which persons and which places may be monitored pursuant to the warrant. The identification clause will generally name: specific persons, specific places, unidentified persons, and unidentified places. The unidentified person’s clause allows the police to monitor conversations between the suspect and individuals who are not known to the police and who may, or may not, be involved in criminal activity with the suspect. The unidentified places clause is also often known as the “resorts to” clause. This allows the police to tap locations that the accused frequents where he or she may use the phone. These places need not be identified in the original affidavit; thus, once the police receive information suggesting that the suspect may engage in private communications in a new untapped location, they may tap that location. This could include, among other locations, the home of the suspect’s friends and family, a telephone booth near the suspect’s home, a hotel room the suspect purchases, and the suspect’s office and office phone. The only limitation to the power to add individuals and locations to the wiretap unidentified at the time of the affidavit is the rule that the warrant cannot authorize the police to tap an unidentified person at an unidentified location. Thus, if the police are tapping Jones and they intercept communications between Jones and Person X which are of interest, they cannot obtain then obtain the phone number from which person X is calling and tap that phone without obtaining a separate warrant for X.

A wiretap may be shown to be illegal and therefore unconstitutional if the warrant which authorized the tap is somehow deficient. Before the Charter, wiretap affidavits were automatically sealed. This created a huge problem from criminal defence lawyers; the only way to have the court unseal the warrant was to show that the officer lied to the court in the affidavit, but it was nearly impossible to argue that the officer lied in the affidavit without having access to the information in the affidavit! This changed in R. v. Dersch, where the Supreme Court of Canada ruled that the defendant was constitutionally entitled to a copy of the affidavit. However, around this time, the government also revised section 189 of the Criminal Code which dealt with the exclusion of evidence collected pursuant to a wiretap in the event that the wiretap warrant was found by the court to be illegal. In the old section 189, the Crown had the burden of proving to the court, beyond a reasonable doubt, that the wiretap warrant was legal. If the criminal defence lawyer could point to any instance of illegality (officer lied, warrant was not specific enough, the proper procedure was not followed, etc.), any evidence obtained pursuant to the warrant would be automatically inadmissible. Now, any application to exclude evidence obtained pursuant to a wiretap must follow the general procedure for excluding evidence under the Charter. This means that the individual raising the issue, the criminal defence lawyer, bears the burden of proving that the warrant violates section 8 of the Charter. In addition, a breach of section 8 no longer leads to automatic exclusion of evidence, so, if the criminal defence lawyer is successful in proving a breach, he or she must subsequently prove that the breach is so significant to warrant exclusion under the Charter. The new procedure makes it much more difficult for criminal defence lawyers to exclude evidence obtained pursuant to an illegal wiretap warrant.

In practice, wiretap warrants are easy to get and quite common in Canada. Canadian police tap more per capita than their counterparts in the United States. Moreover, the wiretap powers in Canada are much more expansive than those granted to police in the United States. In the US, there is a statutory obligation on police in the to minimize the interception of innocent calls. Thus, in the USA all wiretaps are monitored by a human being; he or she is obliged to turn off the tape recorder when the person is speaking to an individual about matters irrelevant to the police. This means that in the US, police are obliged to stop listening when the suspect is speaking to about personal matters unrelated to crime. In Canada there is no such obligation. Usually, the police simply record everything that is said on the tap and review it later to look for evidence. This is problematic for two reasons. Firstly, it means that it is much easier for Canadian police to execute a wiretap. Since the man-power required is negligible (someone simply sets up the tap and everything else happens mechanically) the police do not need to expend a lot of resources to set up a tap. In the US, the monitoring requirement necessitates the use of a lot of officer time and police resources to monitor the tap, providing a disincentive to tap in situations where a tap is not absolutely necessary. Without this disincentive, Canadian police are much more likely to use wiretaps.  Secondly, continuous recording is incredibly invasive. In Canada, if your phone is tapped, the police are listening to everything you say: conversations with your mother, conversations with your significant other, conversations with your doctor or psychiatrist, etc. These conversations are taped and stored at the police station in a file with your name on it. Such a significant invasion of privacy should be used sparingly in our system. Unfortunately, wiretaps have become accepted frequent practice in Canada. Criminal defence lawyers continue to fight against the proliferation of wiretaps using every legal avenue available to limit their use and protect the privacy rights of individual Canadians.

An individual may be liable for those offences which he she does not commit as a principle offender but in which he or she plays a part in committing. When an individual becomes liable for an offence in this way, he or she is referred to as a “party to the offence.” One specific way an individual can be found guilty of a crime as a party is as an accessory after the fact. However, an accessory is not technically a party to the offence in question. Unlike all other parties, who are charged with the offence in question and assigned liability using the legislative rules relating to aiding and abetting, common intention and counselling, an accessory is not charged as a party to the actual offence. Rather, the accessory is charged with the specific offence of being an accessory after the fact found in section 23 of the Criminal Code of Canada.

Section 23 of the Criminal Code creates the offence of being an accessory after the fact. It states that “an accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.”

There are two aspects to every offence in the Criminal Code of Canada: the act element (the acts or omissions which make up the crime) and the mental or fault element (the “guilty mind” requirement). In order to establish that an individual is guilty of being an accessory after the fact, the Crown must prove that the requirements of the both the act element and the mental element for being an accessory after the fact are satisfied based on the evidence.

In R. v. Camponi, the court established some guidelines for determining whether the the act element required to establish an individual acted as an accessory after the fact have been satisfied in a given case. The legislative requirement is that the accused provided assistance to a third person and that his or her conduct had the effect of receiving, comforting or assisting the third person. The definition of assisting is very broad and catches most form of aid a person is capable of rendering. However, according to R. v. Dumont, mere failure to inform the authorities of the principal’s whereabouts is not sufficient to satisfy the act requirement.

The act element for the offence of accessory after the fact does not require that the third party have been tried and convicted to the offence. Under section 23.1, the accessory may be convicted even if the principal is not convicted. This rule was affirdmed in R. v. S.(F. J.).  This provision is meant to prevent acquittals of accessories after the fact where the principle is acquitted based on a Charter application or successful defence. Moreover, based on the ruling the R. v. McAvoy, the principal need not even ever have been tried for the alleged crime. This rule is meant to prevent accessories who are successful in helping the principle offender flee the jurisdiction from escaping liability simply because the principal cannot be found or cannot be tried. However, if the principle is tried and convicted, s. 657.2(2) indicates that his or her conviction will provide presumptive proof of the offence, thus relieving the Crown of the obligation of proving that the person aided by the accessory may have committed a crime.

The mental element for the offence of being an accessory after the fact is intent to conduct the acts that are alleged to have helped the principle offender. According to R. v. Duong, the accused must have knowledge or be willfully blind to the fact that the person committed the offence. Willful blindness refers to the situation where a person suspects that he or she is lacking important knowledge but chooses to remain ignorant. Moreover, the accused must also know the person was party to a particular offence; general knowledge of criminal activity will not suffice.

The alleged accessory’s assistance must be provided for the purpose of helping the person to escape justice. Thus, not every person who helps the principle offender following the commission of his or her alleged crime will attract liability as an accessory. The accused, to be an accessory, must have helped the principle with the aim of helping him or her escape criminal responsibility for his or her crime. We call this a specific intent crime. The accused must not only have intended the actions of assistance but must also have had the specific intention that those act of assistance help him elude or escape the authorities. The specific intent to aid the principle in fleeing the jurisdiction need not be the accused’s sole purpose for aiding the principle. However, according to R. v. Morris, it is not sufficient that acts merely had the effect of assisting the principal or were undertaken in order for the accessory to avoid arrest for the primary offence. It is the accused’s purpose in acting that is of interest to the court and not the effect of his or her actions.

Section 463 of the Criminal Code of Canada lists the sentences available o the court when a person found guilty of being an accessory after the fact. The available sentences vary in severity according to the crime committed by the principle whom the accessory was found guilty of assisting. For example, if the principle offender was accused of committing a crime that carried a possible life sentence, the accessory may be given a sentence of up to fourteen years. At the other extreme, if the principle committed a summary offence the accessory may only receive a sentence appropriate for a summary offence. There is no minimum sentence for the offence of accessory after the fact and judges retain discretion as to exact duration of every offender’s sentence. There are a number of mitigating factors which the accused’s criminal defence lawyer can raise during sentencing to procure a shorter sentence, such as the defendant’s lack of criminal record, his or her age, his or her relationship with the principle and the degree of assistance he or she provided.

There is no place on Canadian soil where individuals have less constitutional protection than at an international airport. The government and the courts have determined that overriding concerns for effective law enforcement, security, and national sovereignty are more important than the protection of Charter rights in the airport context. Section 1 of the Charter allows the government to limit Charter rights as much as is reasonably justified in a free and democratic society. For all intents and purposes, the court has ruled that it is reasonably justifiable to limit Charter rights against search and seizures to facilitate customs and security at an international airport. This limitation of freedom applies only in the context of international flights. When you are flying domestically, Charter rights apply to you the same way as they do anywhere else in the country. However, when you are flying between countries, the protection afforded by the Charter is severely limited.

There are three levels of airport security. Primary inspection occurs at customs. A custom officer will ask an individual questions about his or her travel plans. The individual has no constitutional rights in this context. He or she cannot legally refuse to answer the question. If he or she does so, the airport has a right to detain the individual.

Secondary inspection consists of a search of any luggage the individual is carrying. The officer need not demonstrate any reasonable ground for suspicion to search an individual’s belongings. It is perfectly legal for airport officers to conduct random and arbitrary bag searches. In fact, random searches are seen as a prudent technique airport officers may use to discover evidence, prevent smuggling, and deter smuggling.

A skin search or body search is also considered to be a form of secondary search. Te only criteria preceding such a search is that it be approved by a senior airport officer. Individuals facing such a search are protected by one constitutional right: the s. 10 right to counsel. This protection is available so that a criminal defence lawyer can advise you that the strip search cannot legally be conducted without the permission of a senior airport officer. Beyond that, there is very little a criminal defence lawyer can do to help you protect your privacy when you face a search of this kind. Moreover, ndividuals in this situation are not awarded protection by the other Charter rights such as the s. 8 right to be free from unreasonable search and seizure. Body searches, like bag searches, may be conducted at random by airport officers. In any other context an officer would have to meet the criteria set out in R. v. Golden before exercising his or her discretion to conduct a body search. However, in the airport context no such justification is necessary.

Finally, tertiary search consists of a body cavity search. Among other things the officer conducting the search must show that he or she has a “high level of justification” for conducting the search. Though the Supreme Court of Canada is not clear about the meaning of the term “high level of justification”, most criminal defence lawyers, Crown Attorneys and judges in the lower court agree that this translates to reasonable and probable grounds approaching certainty that the search will reveal evidence.  For more information on the legal requirements the police must meet before exercising their discretion to conduct a body cavity search see out blog Searching the Person. In lieu of conducting a body cavity search, airport officers may detain the individual until natural circumstances force them to expel the bags from their body. Based on the ruling in R. v. Monney, the airport can hold an individual for at least seven hours in a detention cell, known as a “drug-loo room”, to wait for him or her to expel the evidence. However, the maximum amount of time airport officials may hold an individual is unclear in the current case law.

Only approximately 15% of individuals who are strip or cavity searched in the airport are found to be carrying contraband. This means that 85% of people are unnecessarily degraded under the current system. Criminal defence lawyers are using every option available to them to try to change the law so that it better protects your privacy. However, given the rationale behind the lack of constitutional protection at the airport, it is unlikely that the rules regarding search at the airport will be relaxed in the near future.

This guest post is contributed by Stephanie DiGiuseppe. She can be reached at stephaniedigiuseppe@gmail.com.

Generally speaking, a hearsay statement is an out-of-court statement made by person A to person B (or overheard by person B), which is being tendered in court as evidence of the proof of the statement’s content(s). By necessity, therefore, person A is unavailable, or unwilling to testify to the truth of that statement in court. Thus, the rule against hearsay prohibits the admission of out-of-court statements which are tendered for their truth. For example, a witness says “Harry told me Brian was driving to Toronto”. Since the witness did not see Brian driving himself, the statement would be hearsay evidence to the fact that Brian was driving, and not admissible. However, in certain circumstances, a hearsay statement may be tendered in court as evidence of the fact that it was made, or even as to the declarant’s state-of-mind. For example, a witness testifies that “Carrie said in front of me that she was waiting for a ride from Bob”. While the statement may not be tendered into evidence as proof that Bob drove Carrie on the occasion in question, it may be adduced as proof of Carrie’s intention to locate a ride from someone, for example. The specific circumstances of how a hearsay statement may be adduced for something other than its truth will depend on the context of the case.

The arguments against the adduction of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth then surely the person who disputes its validity should have an opportunity to depose or “question” the person on his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, excited utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from repeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” is to said to assess the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliable. This is a contextual analysis which the trial judge will be charged with determining, and will vary depending on the facts of each case.

The G20 summit has brought our world’s most powerful leaders to Toronto. Discussion topics for the summit relate to international finance and development. Toronto will be hosting leaders from the United States, North Korea, South Korea, France and Germany, and that is just to name a few. Throughout the summit the world will be watching Toronto. The concentration of power and attention creates an ideal platform to advocate for a notable cause.  Many protesters will take the opportunity to amplify their voices and be heard on the world’s stage.  Will Canada’s Charter of Rights of Freedoms serve as a barrier between these protesters and potential criminal charges?

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees everyone the fundamental freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication. The purpose of this guarantee was defined by the Supreme Court of Canada in R v Keegstra.  The three core reasons the right to freedom of expression is important are;

1. 1) To ensure the free flow of ideas in a democratic society
2. 2) To ensure free debate in order to allow truth to prevail in the market place of ideas
3. 3) To ensure citizens’ ability to self realize through expression is not restricted

Any expression that furthers the aim of any of these three purposes will be aggressively protected by the Charter. The topics protesters seek to bring attention to are likely to fall under one of the three types of speech listed above. An expression includes any kind of activity that conveys, or attempts to convey meaning. All forms of expression, except for violence, are protected.  The expression of protesters at the G20 summit will only be protected by the Charter if the chosen form of expression is non-violent.  Protesters are not permitted to throw things at passers-by, assault people or damage property.  Protesters who choose to participate in violent forms of expression will not be protected by the charter.

In Reference re Public Service Relations Act, the Supreme Court of Canada stated that although the freedom on peaceful assembly is a separate and distinct right, it is closely related to the freedom of expression.  Sections 2 (c) of the Charter, guarantee everyone the fundamental freedoms of (c) peaceful assembly.  The right to assemble is recognized as a human right, a political freedom and a civil liberty. The freedom allows citizens to assemble in public places in the context of a protest. Gathering together in a large group for a peaceful protest is a protected Charter right.

However, neither of these guaranteed freedoms is absolute.  The limitation on all our rights is set out in Section 1 of the Charter which states; “

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.

The scope of a person’s right is limited by the rights of others. The rights of individuals to assemble and express must be balanced against the right of society to peacefully enjoy public places. Before taking the opportunity granted during summit, be sure you know the scope of your rights, and their limits.  For example section 63 (1) of the Criminal code states;

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Lawful assembly becoming unlawful

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

This section makes it a criminal offence for people to gathered together to conduct themselves in a way that will cause an atmosphere of violence. An atmosphere of violence can be created by yelling threats, charging or creating loud noises.  Protesters do not have to participate in violent behaviour themselves to cause an atmosphere of violence. Also, the fact a group of protesters intended to lawfully assemble for a peaceful assembly is irrelevant. It is made clear by section 63(2) that a lawful protest can turn into an unlawful protest if three or more people in the group conduct themselves in way that creates an atmosphere of violence.  Regardless of the reason you have gathered together downtown during the G20 you should refrain from yelling threats, charging or pushing others and throwing things. These types of acts are likely to cause a fear of violence in those around you. The freedom of expression guaranteed by the Charter is limited by the right of others not to walk the streets in fear.  Even spectators and innocent bystanders must behave during the G20.  Section 65 of the Criminal Code, states;

Everyone who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

This section makes it a criminal offence to participate in any conduct that will cause an atmosphere of violence. A riot is a disturbance of public peace that is disorderly, noisy, and turbulent.   When a spectator observes protesters throwing rocks, picks one up and joins in, they can be charged under section 65. A spectator can be charged under this section for participating in non-violent activity such as, marching or making loud noises, provided the groups conduct as a whole can be classified as a riot.

It is still a criminal offence to cause a disturbance when the nature of disturbance cannot be classified as a riot. According to the Canadian Criminal Code, causing a disturbance is a criminal offence. Section 175(1)(a) provides:

175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,

(i) By fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) By being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

This section creates an offence that further limits the way protesters can lawfully express themselves. During the G20 summit the public’s ability to enjoy peace and tranquillity in public places will limit protesters ability to express their concerns.  A disturbance occurs when the ordinary peace and behaviour that can be expected in a location is disrupted.  When the crowd at the perimeter fence is calmly observing, protesters ought to refrain from trying to get the crowd rowdy. Encouraging others in the crowd to engage in violent behaviour and damage property will cause a disturbance. Protester should refrain from aggressive behaviours, such as yelling obscenities, which may entice those around them to participate in disruptive behaviour.  Peacefully protesting at the G20 summit is lawful and unlikely to cause a disturbance.  Protesters are encouraged to march, hold signs and banners, and sing songs. It is important to remember that your freedom to assemble and express yourselves is not absolute. There are limits on the forms of expression protesters can lawfully engage in. If you or anyone you know has been charged with an offence relating to the G20, contact Kostman and Pyzer to ensure your rights are protected.

A criminal record can have a serious impact on your future. The effects of a criminal record can include restrictions on your travel ability and future employment. If you are not a Canadian citizen, you may have to wait several years before being allowed to apply for citizenship or you may be deported.

If you are charged with a criminal offence and have been offered diversion, it is generally in your best interest to enrol in the program.  Diversion essentially means you are being diverted out of the criminal justice system. This is because the Crown is agreeing to withdraw all charges against you after you complete the diversion program. This voluntary program is also referred to as direct accountability. The program is designed to enable first time non-serious offenders to avoid the negative impacts of criminal charges and a criminal record.  Diversion allows offenders to avoid the stressful prosecution process and affords better outcomes than those possible in the criminal justice system (except an outright acquittal). Diversion is also beneficial to the state as it relieves the heavy burden placed on the courts, police and probation officers.

The diversion program is not available to everyone; the Crown must offer it to those offenders who are eligible. The only person with the authority to determine who is eligible for diversion is the Crown Attorney (the Office of the Crown Attorney).  When a criminal charge is laid it is vetted by the Crown Attorney’s office. An Assistant Crown Attorney conducts an initial screening to determine diversion eligibility.  The factors the Crown will consider in assessing eligibility are;

• Whether the person has a criminal record or past dealings with police;
• Cooperation with police upon arrest;
• The seriousness of the offence (amount of money lost, alleged harm done, etc.);
• The cost of prosecuting the case in comparison to the seriousness of the offence;
• The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
• The wishes of the alleged victim (if there is one).

If you are eligible for diversion, then you will be notified by the Crown at or before your first court appearance. It is important to note that an initial screening of ineligibility can be reconsidered. The Crown may be persuaded by counsel to change their unfavourable position. If this is your first offence and you have been advised that you are ineligible for diversion you should contact legal counsel as soon as possible to ensure that all possibilities for diversion are considered.

Diversion programs are dependent on the individual’s willingness to make amends and accept responsibility for their actions. The offender is required to admit responsibility generally for their role in the alleged offence. It is important to remember that upon completion of the program all charges will be withdrawn.  Therefore, your admission to the offence will not impact your criminal record. Also, all conversations you have with the diversion officer are confidential; they cannot be used against you later. Section 717(3) of the Criminal Code of Canada states:

No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceeding.

Not all charges are eligible for diversion the most common offences to which it is offered are possession of marijuana (small amounts), communication for the purposes of prostitution and theft under $5000. Generally, more serious charges, such as fraud, will not be eligible for diversion.

The program requirements will differ depending on the individual and the charges they are facing.  They can range from counseling courses, charitable donations, community service hours and restitution.  Upon completion of the program the Crown will withdraw the charges.  This means the offender will not be at risk of incurring a criminal record and its dire consequences. If you have been denied diversion it is important to contact counsel to ensure you minimize the risk of a criminal record.

The police may approach you for questioning in a variety of situations. You may be walking down the street, hanging out at school or even driving in your car. It is important to know when the police can lawfully detain you for questioning. Section 9 of the Charter of Right and Freedoms protects your right to be from arbitrary detention.

Although you may think you’re being detained every time an officer stops you, not every stop will legally amount to a detention. Therefore, it is important to know what constitutes “detention”. The Supreme Court of Canada in 2009 defined detention as a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention arises when the individual has or reasonably believes they have the legal obligation to comply with restrictive requests or demands of an officer. In that case, three Toronto police officers were patrolling a high crime school area when they saw Mr. Grant acting suspiciously.  A uniformed officer approached him and asked for identification and what was going on. Mr. Grant continued to behave suspiciously. Worried about their safety the officers asked him to keep his hands in front of him.  Two other officers arrived and obstructed Mr. Grant’s ability to walk forward. The court found Mr. Grant was psychologically detained when he was told to keep his hands in front of him and when the other officers moved into a position preventing him from walking forward. 

What if you are pulled over by the police while driving your car? The police can pull you over for either a routine safety check or for a Highway Traffic Act violation.  These are the types of stops that occur when you are speeding, you have a broken tail light or the police have set up a check-stop to ensure all drivers are licensed and insured.  When you are stopped in this situation the driver must surrender all appropriate documents and identification to the officer.  However, the driver and occupants are not compelled to provide any additional information to help the officers’ investigation. The occupants of the vehicle, including the driver, have the right to refuse to answer any investigative questions. Canadian citizens have no duty to assist the police in their investigation of crime.

When you are stopped in this situation the police officers may check the exterior of the vehicle to ensure compliance with the Highway Traffic act. They can check for visual appearance, brake and headlights, signals, meter seal, cleanliness, seat belts, ect.   In the absence of a warrant these types of check do not permit the officers to search the inside of your vehicle. During a traffic violation stop or a routine check the police may only search the inside of your vehicle if they have reasonable and probable grounds to arrest, and the police have a search warrant. 

How can the police form the grounds to arrest you during a routine check or a traffic violation stop? If a prohibited or suspicious item is visible to the officers in their plain view they will form the required grounds to conduct a search of the interior of your vehicle.  Items such as drug paraphernalia, weapons, break and enter tools or anything resembling them may permit the police to search the inside of your vehicle, in the absence of a warrant.  Neutral items, such as pagers and phones or items which could be found in any car for any legitimate reason will not justify a search of your vehicles interior or trunk.

What if you are walking down the street and the police stop you for questioning? The police have a limited power to stop you in this situation. They are allowed to stop you for investigative purposes. However, this is only permitted when an on duty officer can put a reason into words why he/she believes you are implicated in current or recent criminal activity. Discriminatory reasons do not amount to an articulable cause for detention. This means, they may not stop you on the sole reason of your race, gender, or membership in a group. This detention is very limited. The police may ask for your name, identification and reason why you are present at the scene.  The police may only search you in this situation if the officer has reason to believe his safety is at risk. They may not search for evidence or drugs, they may only search for weapons or anything that may jeopardize their safety. The Supreme Court of Canada has directed that one can only be detained for investigative purposes in circumstances wherein the police have a reasonable suspicion that the person is involved in specific criminal activity. A suspicion or hunch is not enough.