Toronto Criminal Lawyers Blog

It is very important for every Canadian to understand, not only his or her rights under the Canadian Charter of Rights and Freedoms, but also how those rights can be enforced in a court of law. Once the court has determined that your rights under the Charter have been infringed, what remedies are available to redress the wrong you have suffered? Criminal defence lawyers and other legal professionals refer to the legal results of enforcing a Charter right as “remedies”. Under law, judges have the power to prescribe certain remedies when an individual’s rights have been breached.

There are a wide variety of remedies available under the law (declarations, damage awards, restitution, specific performance, etc.) Sometimes a Charter remedy could be as simple as a declaration that the government did in fact breach the individual’s Charter rights. In rare cases, the court may order the government to pay the individual damages. However, remedies like this are rarely available in criminal trials. When criminal defence lawyers argue the Charter in the context of a criminal trial, they have a very specific goal: to exclude evidence or obtain a stay of proceedings. Criminal defence lawyers will argue that specific rights have been infringed and apply for a remedy that will advance their client’s position.

There are two main ways a criminal defence lawyer may use the Charter in the context of a criminal trial: (1) to argue that the law his or her client has been charged with breaking is unconstitutional or (2) to argue that the investigation or arrest of his or her client was carried out in an unconstitutional manner. There are various remedies available to the Court that respond to these two lines of argument, and further the defence lawyer’s ultimate goal avoiding a client’s conviction. These remedies can be found in sections 52, 24(1), and 24(2) of the Constitution Act of 1982 (which contains the Charter).

In situations where the criminal defence lawyer is arguing that his or her client was charged with breaking a law that is itself unconstitutional, he or she will seek a remedy under s. 52 of the Constitution Act of 1982. Section 52 states that “the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” If a law is declared “… of no force or effect” by the court, the law is no longer operational and the offence it created no longer exists in Canadian law. Naturally, a court cannot find an individual guilty of an offence that does not exist. Thus, if the criminal defence lawyer successfully convinces the court that the law is unconstitutional and it chooses to render the law inoperable under s. 52, the accused must be acquitted.

The s. 52 remedy is uncommon in criminal proceedings and criminal defence lawyers will only seek it in exceptional circumstances. That said, it has been used successfully in the past. When a remedy is granted under s. 52, it not only ensures that the accused individual goes free, it also changes the state of Canadian law. One famous example is the decision in R. v. Morgantaler. Henry Morgentaler is a Canadian doctor and pro-abortion activist. He was arrested in 1983 for performing illegal abortions. During the course of his trial he argued that the law against performing abortions violated the Charter. In 1988, the Supreme Court of Canada agreed, declaring the law of no force and effect and acquitting Mr. Morgentaler. The decision of the Supreme Court effectively prevented the government from creating any statutory restrictions on abortion in Canadian law. This controversial ruling had a strong and lasting effect on Canadian society.

Generally speaking, criminal cases that deal with s. 52 remedies are lengthy and complicated. Often, if a defendant wishes to pursue a remedy under s. 52, they do so because they feel that more than just their own liberty is at stake. Defendants in these cases are often crusaders who want to change what they perceive to be an unjust law. Other examples of s. 52 cases include R v. Malmo-Lavine where the defendant, a self-proclaimed “marijuana/freedom activist”, successfully argued that the laws against possession of marijuana for medical purposes were unconstitutional, and R. v. Zundel where infamous holocaust denier, Ernst Zundel, successfully argued that the law against “spreading false news” in the Criminal Code was unconstitutional. In both cases the defendants were facing criminal charges (possession of marijuana and “spreading false news” respectively) and were able to avoid criminal conviction by invoking the protection provided in s. 52 of the Charter. However, they also had political motivations for pursuing a s. 52 remedy. Finally, they were accused with crimes which dealt with morally and politically controversial issues  (abortion, legalization of marijuana, freedom of speech). Recently. the prostitution laws have been challenged under the same provision. This recent challenge deconstructs the present anomoly that while it is illegal to solicit sex in a public place it is perfectly legally to advertise escort agencies that offer sexual services.

Unlike the remedy in s. 52, which is available where the defendant seeks to challenge a statute or law, the remedies in s. 24 are available where a defendant seeks to challenge an action taken by the government during the course of an investigation or prosecution. Section 24 creates specific remedies for defendants whose rights have been infringed by a specific act that can be attributed to the state. It is far more common for criminal defence lawyers to apply for a remedy pursuant to s. 24 than attacking the constitutionality of a law. Section 24 of the Charter applies to situations where the investigation or prosecution is manifestly unreasonable or unfair. Section 24 contains two remedies. Under s. 24(1), the defendant can apply to the court for any remedy the judge considers appropriate if his or her Charter rights have been breached. Under s. 24(2) an individual whose rights have been breached can apply to the court to have evidence excluded from his or her trial. Both of these remedies are key tools to aid defence lawyers in securing a successful result for their client.

According to s. 24(1), “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”. This provision gives the judge a lot of discretion in deciding what remedy to use. However, for an individual facing criminal charges the most advantageous remedy ordered under s. 24(1) is a “stay in proceedings”. The s. 24(1) “stay” remedy effectively puts an end to the trial against the defendant. Although, technically the prosecution may be reinstituted within a one year period, generally speaking, it rarely is.  The Crown would only reinstate the proceedings if the police found new and extremely compelling evidence against the accused. Otherwise, a stay effectively ends the trial. Though the accused is not technically acquitted, the Supreme Court of Canada stated in R. v. C.I.P. that a stay of proceeding is “for all intents and purposes, an acquittal”. A “stay of proceedings” does not constitute a criminal record and is viewed by  defence lawyers as a successful ending to the prosecution.

A remedy may be granted under s. 24(1) for a breach of the accused’s legal rights found in ss. 7 through 14 of the Charter. Practically speaking, the remedy is only really applicable to breaches of ss. 7, 8, 9, 10 or 11.

If any of these rights have been interfered with to such a degree that the administration of justice would be brought into disrepute if the court were to continue in the proceedings against the defendant, the court will impose a stay of proceedings under s.24(1). Such behaviour on the part of the state constitutes an abuse of process and the courts will not allow the trial against the accused person to continue.

There are several alternate remedies the court may apply under s. 24(1) if the abuse of process does not meet the threshold required for a stay. The nature of the remedy is left to the trial judge to determine. The judge must consider the following factors when crafting an appropriate remedy.

The judge must fashion a remedy that promotes both the purpose of the right being protected and the purpose of s. 24(1).

Section 24(2) follows some of the same principles as s. 24(1); however, it applies specifically to Charter breaches that occur during the collection of evidence. If evidence is collected in a manner that infringes the Charter, the defendant can apply to the court to have that evidence excluded from the trial under this section. Section 24(2) does not contain an automatic exclusionary rule corresponding to every Charter breach. The court will only exclude evidence under s. 24(2) where, to do otherwise, would bring the administration of justice into disrepute. When evidence is excluded from trial, it cannot be used by the Crown to prove the accused guilty. It will not be shown to the jury (if there is one) and the trial judge cannot consider it when making his or her decision.

Generally speaking, there is no need for a causal connection between the Charter infringing conduct and the discovery of the evidence. In other words, the defence does not have to prove that the Crown could not have obtained the evidence without breaching the Charter. It is sufficient for the defence to prove that there is a temporal connection between the collecting of the evidence and the Charter breach.

Section 24(2) states that “where, in proceedings under subsection (1), 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”.  Once the defence has established that the Charter was breached and that the breach was temporally connected to the piece of evidence in question, the defence lawyer must argue that the evidence ought to be excluded under s. 24(2). Generally speaking, the court must be satisfied that admitting the evidence at trial would undermine the reputation of the justice system in the mind of a reasonable member of the community who is dispassionate and fully apprised of all the circumstances.

Recently, in R. v. Grant, the Supreme Court of Canada set out a test to determine whether to admit the evidence at trial. According to the court, when a judge is faced with a Charter application for exclusion under s. 24(2) the court must consider and balance the following factors:

1. The seriousness of the Charter-infringing state conduct

2. The impact of the breach on the Charter-protected interests of the accused, and

3. Society’s interest in the adjudication of the case on its merits.

At the first stage, the court must ensure that the admission of the evidence does not send the message that the justice system condones serious state misconduct. At stage two, the court must be sure not to admit the evidence if it will send the message that the court will countenance police conduct which deliberately ignores individual rights and liberties. At the final stage the court is asked to consider society’s interest in having the trier of fact consider all of the evidence in determining an individual’s culpability.

The section 24(2) remedy is often used to exclude physical evidence, confessions, and bodily samples (DNA, fingerprints). The purpose of the remedy is to maintain the reputation of the administration of justice in the eyes of the Canadian community. It is imperative that the justice system actually upholds the principles underlying the Charter and protects the specific rights enshrined in the Charter. Through application of the s. 24(2) remedy, the court ensures that individuals are not convicted of a crime in a situation where the government or their agents has deliberately ignored the principles enshrined in the Charter.

At Kostman and Pyzer, Barristers we have made successful applications for Charter remedies available pursuant to sections 24(1) and (2). Proceedings have been stayed and evidence excluded on the basis that our client’s rights have been infringed.

Entrapment

Entrapment is one of the many defences available in the criminal justice system. However, criminal defence lawyers will only pursue a defence of entrapment if the facts suggest that this defence may be successful. Only rarely will the facts of the case support a defence of entrapment.

All defences are split into two categories: excuses and justifications. Justification defences are defences the accused can raise to show that he or she did the right thing in the circumstances and should therefore not be punished. The best example of this is self-defence. Defendants who raise an excuse defence, on the other hand, admit that they committed a crime and acted immorally, but assert that they have an excuse for the way they acted. A good example of an excuse defence is mental illness. Entrapment is also an example of an excuse defence. This means that when a defendant raises a defence of entrapment, they admit to committing the crime in question, however, they argue that they have a reasonable excuse for their conduct.

The idea behind entrapment is that the individual was enticed or provoked into committing a crime by the police. When the police overstep their duty to investigate crime and instead initiate or create a crime, the defence may arise. The rationale behind the defence is that it constitutes abuse of process on the part of the Crown prosecute an individual, if his or her crime was motivated by police instigation. As a result, if the defence can establish entrapment, the court will stay the proceedings against you. The result of a stay is that the case against you cannot proceed, no guilty conviction is entered against you and the incident will not appear on your criminal record.

A defence of entrapment tends to be available on charges relating to drugs or prostitution. The general scenario is that the police will have an undercover agent approach an individual soliciting sex or trying to buy drugs. If the individual agrees to purchase sex or sell drugs, the police will then arrest them on charges of solicitation for the purposes of prostitution or trafficking in narcotics. If the police conduct reached the point that they are actively encouraging an individual who would not ordinarily have committed a crime to commit an illegal act, the defence of entrapment may become available.

The defence of entrapment was successfully raised in the case of R. v. Mack. Mack was a former drug addict who had reformed and given up drugs with the help of yoga. Nonetheless, police officers decided to target Mack in an undercover operation to search for evidence of drug trafficking. The police enlisted two confidential informants to contact Mack. The informants approached Mack asking for drugs, but he refused to sell them. Later, the informants followed Mack to a yoga retreat while still undercover and harassed him to arrange a drug deal for them. Mack still refused to be involved in any form of drug transaction. Finally, the confidential informants took Mack on a walk in the woods, where they told him that their “people” were coming into town today and needed drugs. The informants told Mack that their people would be very “upset” if Mack could not get them the drugs. Then, the confidential informants showed Mack a pistol and said, “someone could really get lost out here in the woods”. Following that threatening statement, Mack relented and agreed to procure a large amount of cocaine for them. Mack showed up at the arranged transaction spot, was shown a suitcase of money, and made the exchange. Unbeknownst to Mack, the two men he was making the drug exchange with were undercover police officers. Following the exchange, Mack was arrested.

The Supreme Court of Canada allowed the defence of entrapment to succeed in Mack and stayed the proceedings against him. The court emphatically explained that the police should not engage in “random virtue testing” of the population. By this the court meant that the police should not test the virtue of individual citizens by offering them the opportunity to commit a crime at random. When the police do this, they seem to create crime and then arrest people for the crimes they create. The individual arrested may never have committed a crime in his or her life if not for his or her interactions with the police. Such conduct on the part of the police offends our justice system’s fundamental values of justice and fairness.

In Mack the Supreme Court laid down a test to determine when entrapment has occurred. At the first stage of the test, the court asks whether the police have targeted individuals based on a reasonable suspicion that the individual is involved in crime or through involvement in a bona fide investigation. According to the court, anything short of reasonable suspicion or a bona fide investigation would constitute random virtue testing. A bona fide investigation is an authorized investigation in a targeted area. For example, the police can target a particular area if they have reasonable grounds to believe criminal activity is prevalent there; however, they cannot walk the streets at random posing as civilians and trying to encourage individuals to commit crimes. If the police target an individual who they do not have reasonable grounds to suspect is involved in criminal activity or they target random people outside the context of a bona fide investigation, the defence of entrapment will operate to stay the proceedings against the defendant.

Even if the first part of the test is not met, the defence of entrapment may still be available to the defendant under step two of the test from Mack. At step two, the court must consider a number of factors to determine whether the police manipulated or directed the defendant to commit the crime. The court refers to this as “planting the seed of crime” within the individual. The idea is that, by “planting the seed of crime”, the police cause a person who may never have committed a crime to engage in criminal activity. In the case of Mack, the court determined that even though the police had reasonable grounds to suspect that Mack may be involved in criminal activity, they went so far as to “plant the seed of crime within him”; thus, the court allowed the defence of entrapment under the second branch of the test.
In Mack the court lists a number of factors to help determine whether the police crossed the line and “planted the seed of crime”.

The list of factors for the court to consider are as follows:
• the type of crime being investigated and the availability of other techniques for police detection of its commission;
• whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
• the persistence and number of attempts made by the police before the accused agreed to committing the offence;
• the type of inducement used by the police including: deceit, fraud, trickery or reward;
• the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
• whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
• the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
• the existence of any threats, implied or express, made to the accused by the police or their agents; and
• whether the police conduct is directed at undermining other constitutional values.

The court will look at these factors to determine whether or not to stay the proceedings due to entrapment.

Make sure that you are represented by competent criminal defence lawyers. Call Kostman and Pyzer, Barristers.