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.

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.

]]> http://blog.torontodefencelawyers.com/2010/10/wiretaps/feed/ 0 http://blog.torontodefencelawyers.com/2010/10/remedies-pursuant-to-the-canadian-charter-of-rights-and-freedoms-ss-24-and-52/ http://blog.torontodefencelawyers.com/2010/10/remedies-pursuant-to-the-canadian-charter-of-rights-and-freedoms-ss-24-and-52/#comments Tue, 05 Oct 2010 10:53:14 +0000 TDL http://blog.torontodefencelawyers.com/?p=140 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.

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.

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.

]]> http://blog.torontodefencelawyers.com/2010/06/freedom-of-expression-limited-by-g20/feed/ 4 http://blog.torontodefencelawyers.com/2010/06/ontario-government-approves-sweeping-police-powers/ http://blog.torontodefencelawyers.com/2010/06/ontario-government-approves-sweeping-police-powers/#comments Sat, 26 Jun 2010 18:24:47 +0000 TDL http://blog.torontodefencelawyers.com/?p=123 On June 2, 2010 through an order-in-council, the Ontario government secretly approved new sweeping powers for the police. Many Toronto criminal lawyers believe that these ‘police state regulations’ have gone too far and are inconsistent with Canadian civil liberties and the rights enshrined by the Canadian Charter of Rights and Freedoms. These new police powers allow the  Toronto Police Service and other police agencies to arrest and even jail individuals who refuse to produce identification or be searched within five metres of the security zone implemented for the G20 Summit being held in Toronto. The new measure carries a penalty of up to two months in jail or a $500 fine upon conviction. These new police powers were enacted without any prior announcement or public consultation. The obvious concern is that many Torontonians could walking the street without identification and unknowingly breaking the law by going within five metres of the newly erected security fence. All Toronto criminal lawyers and civilians should be concerned about secret laws and the government’s changing our rights without even telling its citizens. If you have been charged with an offence as a result of the Ontario government’s new measures, immediately contact a skilled criminal lawyer to find out what your rights are. These new sweeping police powers can, and will be, challenged. Toronto criminal lawyers, Kostman and Pyzer, will defend your rights to be protected from unlawful searches, seizures and arrests. Contact us today at 416-658-1818 for a free consultation.

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.

Section 1 of the Charter limits all of the other rights in the Charter. It states that “[t]he 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.” If the government passes a law that breaches the constitution, they can invoke s. 1 to argue that the breach is nonetheless justified in a free and democratic society.

Section 1 contains two requirements that the government must satisfy to show that the Charter breach is justified. In the first step the government must show that the breach is “prescribed by law”. This is a normally straightforward threshold criterion that basically requires that the limit have the “form of law”. In essence, it serves a gatekeeper function, limiting the number of instances where an infringement can be upheld. To be “prescribed by law”, the rule must be accessible and intelligible to the citizen. Both values fall under the more general concept of notice: to be “prescribed by law” the rule must be promulgated. In R. v. Therens, the Supreme Court of Canada explained what is meant by the requirement that the rule be “promulgated”; the rule will be “promulgated” and thus “prescribed by law” within the meaning of s. 1, if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from the application of a common law rule.

To be prescribed by law, the law must be “intelligible”, which means that citizens must be able to understand the effects of the law, including the nature of the behaviour which would constitute a breach of the law. This means that the law cannot be overly vague. However, courts have preferred to deal with the claim that a restriction is too vague or too broad at stage 2 of the s. 1 inquiry. In Osborne v. Canada (Treasury Board), the Supreme Court explained that vagueness has s. 1 significance in two ways: (1) a law may be so uncertain as to be incapable of being interpreted so as to constitute any restrain on government power. In these circumstances there is no “limit prescribed by law” and no s. 1 analysis is necessary because the threshold has not been met and (2) a law which passes the threshold test may, nevertheless, by reasons of imprecision, not qualify as a reasonable limit. This concept will arise under part two of the test.

At stage 2 the government must justify that the breach is “reasonable” and “demonstrably justified in a free and democratic society”. In 1986 in R. v. Oakes the Supreme Court of Canada formulated a test that the government must follow to prove that this requirement is met. At the first step of the Oakes Test, the government must show that there was a “pressing and substantial purpose” behind the law. In other words, the objective of the law must be of sufficient importance considering that the law has the effect of limiting an individual’s Charter rights. Though the court has said that the standard at this first step must be high to ensure that trivial objectives are not protected, in practice, the court rarely finds that the restriction fails the first step.

The second step of the Oakes test is a proportionality test. This step has three substeps – all of which the government must address. First, the government must show that the law was carefully designed to achieve the objective identified in step 1 of the Oakes test. The law must be fair and not arbitrary. The limit it imposes must be “rationally connected” to its objective.  For example, if the government were to make a law against visiting South America, and then identify their objective as “protecting endangered species”, the court would likely find that the law was not rationally connected to its purpose since visiting South America has little to do with the general goal of protecting endangered species. Though the purpose of protecting endangered species would likely be considered “pressing and substantial” under part 1 of Oakes, the law against visiting South America would not be a clear and effective way of protecting that objective. At the second sub- stage of the proportionality test, the government must show that the law is minimally impairing. In other words, the law must be designed to limit the rights and freedoms of Canadians as little as reasonably possible. The law against visiting South America in our example from before would also fail at this stage of Oakes. There are other ways to protect endangered species that limit individual freedom much less than the law proposed in this example. For example, the government could ban imports of goods made using endangered species. Thus, the law against visiting South America would be seen as much to harsh, impairing, or limiting. At the final substep of the proportionality test the government must show that there is proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. Even if the government establishes that there is an important objective, the severity of the limit may be so great as to outweigh the benefit. This test operates on a sliding scale; the more severe the deleterious effects of the measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. In our South America example, it would be clear that the law was extremely limiting on people’s freedom, yet the degree to which it accomplished the purpose of protecting endangered species was small (people, other than Canadians, could still harm endangered species in South America). The law would be seen as disproportionately harsh compared any benefit it could be expected to create.

Know your rights. Contact Kostman and Pyzer, Barristers, if you need a Toronto criminal lawyer or are charged with a criminal offence.

Section 1 of the Charter limits all of the other rights in the Charter. It states that “[t]he 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.” If the government passes a law that breaches the constitution, they can invoke s. 1 to argue that the breach is nonetheless justified in a free and democratic society.

Section 1 contains two requirements that the government must satisfy to show that the Charter breach is justified. In the first step the government must show that the breach is “prescribed by law”. This is a normally straightforward threshold criterion that basically requires that the limit have the “form of law”. In essence, it serves a gatekeeper function, limiting the number of instances where an infringement can be upheld. To be “prescribed by law”, the rule must be accessible and intelligible to the citizen. Both values fall under the more general concept of notice: to be “prescribed by law” the rule must be promulgated. In R. v. Therens, the Supreme Court of Canada explained what is meant by the requirement that the rule be “promulgated”; the rule will be “promulgated” and thus “prescribed by law” within the meaning of s. 1, if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from the application of a common law rule.

To be prescribed by law, the law must be “intelligible”, which means that citizens must be able to understand the effects of the law, including the nature of the behaviour which would constitute a breach of the law. This means that the law cannot be overly vague. However, courts have preferred to deal with the claim that a restriction is too vague or too broad at stage 2 of the s. 1 inquiry. In Osborne v. Canada (Treasury Board), the Supreme Court explained that vagueness has s. 1 significance in two ways: (1) a law may be so uncertain as to be incapable of being interpreted so as to constitute any restrain on government power. In these circumstances there is no “limit prescribed by law” and no s. 1 analysis is necessary because the threshold has not been met and (2) a law which passes the threshold test may, nevertheless, by reasons of imprecision, not qualify as a reasonable limit. This concept will arise under part two of the test.

At stage 2 the government must justify that the breach is “reasonable” and “demonstrably justified in a free and democratic society”. In 1986 in R. v. Oakes the Supreme Court of Canada formulated a test that the government must follow to prove that this requirement is met. At the first step of the Oakes Test, the government must show that there was a “pressing and substantial purpose” behind the law. In other words, the objective of the law must be of sufficient importance considering that the law has the effect of limiting an individual’s Charter rights. Though the court has said that the standard at this first step must be high to ensure that trivial objectives are not protected, in practice, the court rarely finds that the restriction fails the first step.

The second step of the Oakes test is a proportionality test. This step has three substeps – all of which the government must address. First, the government must show that the law was carefully designed to achieve the objective identified in step 1 of the Oakes test. The law must be fair and not arbitrary. The limit it imposes must be “rationally connected” to its objective.  For example, if the government were to make a law against visiting South America, and then identify their objective as “protecting endangered species”, the court would likely find that the law was not rationally connected to its purpose since visiting South America has little to do with the general goal of protecting endangered species. Though the purpose of protecting endangered species would likely be considered “pressing and substantial” under part 1 of Oakes, the law against visiting South America would not be a clear and effective way of protecting that objective. At the second sub- stage of the proportionality test, the government must show that the law is minimally impairing. In other words, the law must be designed to limit the rights and freedoms of Canadians as little as reasonably possible. The law against visiting South America in our example from before would also fail at this stage of Oakes. There are other ways to protect endangered species that limit individual freedom much less than the law proposed in this example. For example, the government could ban imports of goods made using endangered species. Thus, the law against visiting South America would be seen as much to harsh, impairing, or limiting. At the final substep of the proportionality test the government must show that there is proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. Even if the government establishes that there is an important objective, the severity of the limit may be so great as to outweigh the benefit. This test operates on a sliding scale; the more severe the deleterious effects of the measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. In our South America example, it would be clear that the law was extremely limiting on people’s freedom, yet the degree to which it accomplished the purpose of protecting endangered species was small (people, other than Canadians, could still harm endangered species in South America). The law would be seen as disproportionately harsh compared any benefit it could be expected to create.

Know your rights. Contact Kostman and Pyzer, Barristers, if you need a Toronto criminal lawyer or are charged with a criminal offence.