SEARCH, SEIZURE, ARREST AND
DETENTION UNDER THE CHARTER
Law and Government Division
Revised 15 February 2000
TABLE OF CONTENTS
BACKGROUND AND ANALYSIS
A. The Interpretation of an Entrenched
B. Search or Seizure: Section 8
2. A "Reasonable Expectation
3. Border Crossings
Warrant Improperly Obtained or Executed
Plain View Doctrine
Search of the Person
Common Law Power of Search Incidental to Arrest
Breath Tests and Blood Samples
C. Arrest and Detention: Sections 9
a. Random Stops of Motorists
2. Right to Retain
a. The Interests Protected
b. Obligations of Law Enforcement Agencies
c. Application to Sobriety Tests
3. Habeas Corpus:
D. Exclusion of Evidence under Section
24(2) of the Charter
A. Bill C-109
B. Bill C-104
C. Bill C-16
ARREST AND DETENTION UNDER THE CHARTER*
The Canadian Charter of Rights and Freedoms came
into force on 17 April 1982. The legal rights guaranteed by the Charter
are contained in sections 7 to 14. These sections deal with such matters
as the right to life, liberty and security; the right to be secure against
unreasonable search and seizure; the rights of an accused upon arrest;
the right of an accused to certain proceedings in criminal and penal matters;
and the right not to be subject to cruel and unusual punishment.
There are now a great number of decided cases dealing
with these sections. This paper will concentrate on significant decisions
of the provincial courts of appeal and the Supreme Court of Canada with
respect to the provisions relating to search and seizure (section 8),
arrest and detention (section 9 and section 10).
BACKGROUND AND ANALYSIS
The Interpretation of an Entrenched Charter
When analyzing the decisions of the courts with respect
to these sections, it is important to remember that the Charter is entrenched
in the Constitution of Canada and that, by virtue of section 52(1) of
the Constitution Act, 1982, "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
It could be argued that two sections of the Charter illustrate
a conscious attempt by its framers to restrain the Canadian courts from
achieving the level of judicial activism prevalent in the United States
and to continue in some measure the Canadian tradition of parliamentary
supremacy. Section 1 allows legislatures to impose reasonable limits upon
rights and freedoms, while section 33 allows the legislatures to declare
expressly that a statute may operate notwithstanding certain sections
of the Charter.
In its decision in Southam, the Supreme Court
of Canada indicated that "the task of expounding a constitution is
crucially different from that of construing a statute." When
considering the application of the Charter, it is important to recognize
that it is a purposive document; that is, "its purpose is to guarantee
and to protect within the limits of reason, the enjoyment of the rights
and freedoms it enshrines. It is intended to constrain governmental action
inconsistent with those rights and freedoms; it is not in itself an authorization
for governmental action."
In this context of the contrast between the concepts
underlying the Charter and the American Bill of Rights, this paper examines
the legal rights protected by sections 8, 9 and 10. It comments on the
issues that may arise from attempts to interpret and apply the various
sections and goes on to discuss court decisions showing the impact of
the sections on the criminal justice system.
B. Search or Seizure: Section 8
Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable
search and seizure.
A variety of court decisions have dealt with the question
of whether searches are or are not reasonable in various situations and
the ancillary question of whether evidence obtained during the searches
can be adduced at trial.
The courts have held that a corporation is included in
the word "everyone," which delineates who should receive the
protection of this section. It has also been noted that because the word
"seizure" in this section is associated with the word "search,"
the protection afforded does not extend to the taking of real property
by expropriation. As well, in Thomson Newspapers Ltd., the Supreme
Court of Canada said that the "essence of a seizure ... is the taking
of a thing from a person by a public authority without that persons
consent." Only something inanimate is subject to "seizure"
because, as the Court said in this case, "the word seizure
... should be restricted to tangible things." Thus, the "seizure"
of a persons thoughts by ordering that person to testify does not
amount to "seizure" under section 8.
The Supreme Court of Canada in Hunter v. Southam
Inc. determined that section 8 of the Charter was applicable to the
search and seizure sections of the Combines Investigation Act.
The court found these sections to be unconstitutional for two reasons.
First, the person designated to authorize the search under the legislation
was not capable of acting judicially because he was also charged with
investigative and prosecutorial functions as a member of the Restrictive
Trade Practices Commission. Second, the sections of the Combines Investigation
Act that dealt with authorizing searches and seizures did not achieve
the minimum standard required by the Charter. This standard is that there
must be reasonable and probable grounds, established under oath, to believe
that an offence has been committed and that evidence of this offence is
to be found at the place of the search. Thus, the court concluded that
the search and seizure sections of the Combines Investigation Act
were inconsistent with the Charter and therefore of no force or effect.
Similarly in Kruger, the Minister of National
Revenue had authorized under the Income Tax Act a search of both
the accuseds business premises and the private residences and business
premises of other named persons. This authorization was approved by a
judge of the Superior Court of Quebec on the basis of an affidavit. Following
the seizure, the accused made an application to the Federal Court, Trial
Division, which subsequently struck down the authorization as unreasonable
because it was a blanket order covering the violation of any provision
of the Act and was not limited to the particular violations allegedly
committed. The judgment was upheld in the Federal Court of Appeal on the
grounds that the Act conferred such a wide power that it left the individual
without any protection against unreasonable search and seizure.
Although the Supreme Court of Canada has subsequently
held that powers of inspection conferred by certain labour legislation
also come within the ambit of section 8 of the Charter, it has declined
to apply the strict guarantees set out in Hunter, "which were
developed in a very different context." Comité Paritaire v.
Potash concerned the powers of an agency responsible for implementing
an Act respecting Collective Agreement Decrees, a Quebec Act that
imposed specific working conditions and wages on a given industry. The
Act allowed compliance to be monitored by the Comité, who could, at the
workplace, "at any reasonable time" and without a warrant, examine
and copy the employers documents, verify wages and work hours and
require the production of other information deemed necessary. Penalties
for offences under the Act were exclusively in the form of fines and breach
of a decree would generally lead to a civil action for wages. The Court
ultimately found that "[i]n view of the important purpose of regulatory
legislation, the need for powers of inspection, and the lower expectations
of privacy, a proper balance between the interests of society and the
rights of individuals does not require, in addition to the legislative
authority, a system of prior authorization."
2. A "Reasonable Expectation
In Weatherall v. Canada (Attorney General),
the Supreme Court of Canada held that section 8 of the Charter was not
called into play by frisk searches and unannounced cell patrols conducted
in male prisons by female guards. Since "imprisonment necessarily
entails surveillance, searching and scrutiny," prisoners "cannot
hold a reasonable expectation of privacy with respect to these practices."
The Supreme Court of Canada has since relied on the lack of such expectation
to deny section 8 protection in a number of cases. For example, in R.
v. Edwards, the Court held that an accused did not have a "reasonable
expectation of privacy" at his girfriends apartment and, consequently,
he could not contest the admissibility of evidence found there. Similarly,
in R. v. Belnavis, a six-to-three majority of the Supreme
Court agreed that a passenger in a private motor vehicle had no expectation
of privacy either in the vehicle or in relation to items seized from it,
unlike the driver, who was driving with the apparent permission of the
owner. Likewise, in R. v. Lauda, a unanimous Supreme
Court of Canada found that a trespasser growing marijuana in abandoned
fields had "no reasonable expectations of privacy" in the property.
In the landmark case of R. v. M. (M.R.),
a majority of the Supreme Court of Canada has also held that a students
reasonable expectation of privacy in the school environment is "significantly
diminished" because school authorities are responsible for "providing
a safe environment and maintaining order and discipline in the school."
Therefore, students must know "that this may sometimes require searches
of students and their personal effects and the seizure of prohibited items."
In the result, the court held that the seizure of marijuana from a student
searched during a school dance did not infringe his rights under section
8 of the Charter. While setting out the parameters for a reasonable warrantless
search in such circumstances, it must be noted that the majority decision
expressly limited its findings to the elementary or secondary school milieu,
with "no consideration" having been given to a college or university
setting. In dissent, Mr. Justice Major agreed with the trial judges
opinion that the vice-principal was acting as an agent of the police officer
who was present at the time of the search. Major J. would, therefore have
excluded the evidence because it had been obtained in breach of the accuseds
section 8 Charter rights and its admission "would adversely affect
3. Border Crossings
The Simmons decision of the Supreme Court acknowledged
Canadas right as a sovereign state to control both who and what
crosses its boundaries. The fact that those travelling through customs
have a lower reasonable expectation of privacy does not, however, diminish
the obligation on state authorities to adhere to the Charter, even if
the grounds prompting the search are reasonable and drugs are found as
a result of the search. Before any search, the inspectors must clearly
explain the subjects rights under the Charter - especially the prior
right to consult a lawyer - and the right to have the search request reviewed
before complying with it, as provided in the Customs Act.
In Simmons, the subject remained ignorant of her legal position
because she was not properly informed of these rights. As a result, the
Supreme Court found that the search was unreasonable; even so, the evidence
was not excluded since the customs officers had acted in good faith.
The Supreme Court of Canada had held in several cases
before Simmons that the invalidity of a search power does not render
evidence inadmissible if the officers conducting the search believed in
good faith that the statutory provisions governing the search were constitutional.
In R. v. Greffe, however, "the inference of
extreme bad faith on the part of the police [arising] from their deliberate
failure to provide the accused with the proper reason for the arrest"
resulted in the exclusion of the seized drug evidence.
In Greffe, the R.C.M.P. had alerted customs officers
in Calgary that the accused was returning to Canada with an unknown quantity
of heroin. A visual search of his person was conducted after no heroin
had been found in his luggage. He was not advised of his right to consult
a lawyer or of his right under the Customs Act to have the search
request reviewed by a justice of the peace, police magistrate or senior
No drugs were found and the suspect was arrested, informed
of his right to counsel and advised that a doctor would perform a body
search at a hospital. During the body search a condom containing heroin
was removed from the accuseds anal cavity.
The Supreme Court found that at the time of the search
the police had not had reasonable and probable grounds to suspect that
the accused had drugs on his person; the informers tip had not contained
sufficient detail for the police to be sure that it was based on more
than rumour. The informer had not disclosed the source of his knowledge,
and the police had no indication of his reliability. Furthermore, there
was confusion about the reasons the accused was given for his arrest.
When combined with the lack of advice on the right to consult counsel,
the "cumulative effect" of Charter violations was "very
serious" and enough to warrant exclusion of the evidence.
The Supreme Court of Canada has since concluded that
section 98 of the Customs Act, authorizing searches for contraband
"secreted on or about" the person, applies to contraband that
a traveller has ingested. In R. v. Monney, the Court concluded
that a customs officer who has reasonable and probable grounds to suspect
that contraband has been ingested is authorized by the Act to detain the
traveller in a "drug loo facility" until that suspicion can
be confirmed or dispelled. Although such action amounts to a search for
the purposes of section 8 of the Charter, the Court confirmed that "the
degree of personal privacy reasonably expected at customs is lower than
in most other situations" and that the search in question was "reasonable
for the purposes."
In Collins v. The Queen, the Supreme Court
of Canada said that the Crown has the burden of establishing that a warrantless
search is reasonable; a search will be reasonable if it is authorized
by a law that is reasonable and is carried out in a reasonable manner.
Section 10 of the Narcotic Control Act authorizes police officers
to search without warrant a place other than a dwelling-house, if they
have reasonable grounds to believe that it contains a narcotic in respect
of which an offence has been committed.
In the Kokesch case, the police conducted a "perimeter
search" of the accuseds property in order to find evidence
of cultivation and possession of narcotics for the purpose of trafficking.
The Supreme Court of Canada held that, where there was a mere suspicion
of the crime, such conduct amounted to an unreasonable search and seizure.
The police do not have the power under the common law to trespass on private
property to conduct a search.
In the Grant and Plant decisions, both
released 30 September 1993, the Supreme Court of Canada clarified a number
of outstanding search and seizure issues. Like Kokesch, the two
cases involved warrantless perimeter searches of private dwellings in
the investigation of drug offences. In R. v. Grant, the
court held that "warrantless searches pursuant to section 10 of the
Narcotic Control Act must be limited to situations in which exigent
circumstances render obtaining a warrant impracticable," in order
to avoid violation of section 8 of the Charter. Exigent circumstances
would include "imminent danger of the loss, removal, destruction
or disappearance of the evidence," should the search be delayed to
obtain a warrant. In the absence of evidence demonstrating those exigent
circumstances, two warrantless searches conducted by the police were held
to be unreasonable and in violation of section 8. Even without the information
gained through the warrantless perimeter searches, however, there had
been sufficient information to sustain the warrant subsequently obtained
by the police to search inside the house. The court nevertheless considered
excluding the evidence pursuant to section 24 (2) of the Charter, because
there was a "sufficient temporal connection" between the invalid
perimeter search and the evidence obtained pursuant to the valid warrant.
The Court ultimately decided that the administration of justice would
not be brought into disrepute by the admission of the evidence of marihuana
plants found in the house. Even though the warrantless perimeter search
involved a trespass by state agents where there was no urgency, the police
had acted in good faith, the charges involved serious indictable offences
and the admission of "real" evidence would not tend to render
the trial unfair.
The Supreme Court of Canada also held that valid authorization
for narcotics searches may be had under the warrant provisions of the
Criminal Code, as well as under those of the Narcotic Control
Act; the British Columbia Court of Appeal had held that a search warrant
had been improperly obtained under section 487 of the Criminal Code
since warrants for Narcotic Control Act offences could only be
issued pursuant to section 12 of that Act.
In R. v. Plant, six of seven judges in
the Supreme Court of Canada held that there was no reasonable expectation
of privacy in relation to computerized records of electricity consumption
that would outweigh the state interest in enforcing laws against narcotics
offences. Acting on an anonymous tip that marihuana was being grown in
a basement, Calgary police had accessed utility records showing electricity
consumption in the building to be four times the average of that in comparable
properties. The Court held that the transaction records maintained as
a result of the commercial relationship between the accused and the utility
could not be characterized as confidential; the police were permitted
computer access through a password and the information was also open to
inspection by members of the public. Because the warrantless search of
computer records was not unreasonable and did not fall within the parameters
of section 8 of the Charter, evidence of the accuseds high electricity
consumption could be used to support an application for a search warrant
under the Narcotic Control Act; however, information obtained by
warrantless perimeter search could not be so used. Concurring in the result,
Madam Justice McLachlin argued that there was "a sufficient expectation
of privacy to require the police to obtain a warrant before eliciting
the information" relating to electricity consumption.
In R. v. Silveira, the Supreme Court of
Canada considered the validity of police actions in another drug investigation
where, following the appellants arrest, police had entered his home
without a warrant in order to secure the premises and prevent the destruction
of evidence. In the meantime, a search warrant was sought and obtained
and a subsequent search of the home uncovered quantities of drugs and
marked cash previously used by undercover officers when buying drugs from
a third party. Writing for the majority, Mr. Justice Cory noted that the
Crown had properly conceded that police action constituted a breach of
the appellants section 8 rights. Nevertheless, he upheld the use
of the resulting evidence after considering the three tests for exclusion
under section 24 (2) as previously set out in R. v. Collins.
First, because the evidence would have been found in any event, its admission
was held not to affect the fairness of the trial. Second, although the
facts revealed a serious Charter breach, the violation was committed under
exigent circumstances with no evidence of bad faith on the part of the
police. Finally, because of the seriousness of the crime and the need
for the impugned evidence to prove the case, "[t]he admission of
the evidence would not have an adverse effect upon the reputation of the
administration of justice." However, the majority also emphasized
that "after this case it will be rare that the existence of exigent
circumstances alone will allow for the admission of evidence obtained
in a clear violation of s. 10 of the Narcotic Control Act and s.
8 of the Charter."
With respect to other forms of warrantless search, the
Supreme Court of Canada has further held that "sniffing" for
marijuana at the door of a suspects house constituted an unreasonable
search. Thus, a warrant supported by the "evidence" thereby
obtained was found to be invalid. Writing for the majority in R.
v Evans, Mr. Justice Sopinka acknowledged an "implied invitation"
extending to members of the public, including the police, to knock in
order to communicate with the occupants of a dwelling. The police had
approached with the intention of securing evidence against the occupant;
thus, they were engaging in a search, which the lack of any prior authorization
rendered unreasonable and in violation of section 8 of the Charter. Because,
however, the police had acted in good faith, the impugned real evidence
(in the form of marijuana plants) existed irrespective of the Charter
violation, and the violation was not particularly grave, the Supreme Court
of Canada held that the evidence was admissible since exclusion would
have been more harmful to the administration of justice.
In R. v. Schrieber, the Supreme Court of
Canada considered whether the Canadian standard for the issuance of a
search warrant had to be satisfied before the Minister of Justice could
submit a letter asking Swiss authorities to search for and seize documents
relating to the respondents bank accounts in Switzerland. In the
result, five of seven justices agreed that the letter of request did not
engage section 8 of the Charter. Writing for the majority, Madam LHeureux-Dubé
further held that "[n]either the actions of the Swiss authorities,
nor the laws which authorized their actions, are subject to Charter scrutiny."
She did concede, however, that, in the context of a criminal trial in
Canada, section 7 might be applied "to justify excluding evidence
obtained abroad through foreign officials where it is necessary to preserve
the fairness of the trial."
In R. v. Feeney, the Supreme Court of Canada
had occasion to consider the post-Charter law of arrest following forced
entry into a dwelling house, with or without a warrant. The common law
had previously allowed police to enter a dwelling house without a warrant,
in order to effect an arrest, provided certain specific criteria were
met. However, a five-to-four majority in the Feeney case decided
that, post-Charter, "generally a warrant is required to make an arrest
in a dwelling house," except in cases of "hot pursuit."
The Supreme Court went on to say that an ordinary arrest warrant would
be insufficient because it contains no express power of trespass. Privacy
rights protected by the Charter "demand that the police, in general,
obtain prior judicial authorization of entry into the dwelling house in
order to arrest the person." Furthermore, if the Criminal Code
"currently fails to provide specifically for a warrant containing
such prior authorization, such a provision should be read in." Because
of the failure to obtain a warrant, in combination with other Charter
violations, the Supreme Court of Canada excluded much of the evidence
obtained as a result of a forced entry into the accuseds dwelling
house and ordered a new trial.
In response to the decision in the Feeney case,
the Crown sought and obtained a six-month stay of the operation of that
aspect of the judgment "relating to the requirement for a warrant
to effect an arrest in a dwelling." The transition period, which
would have no application to the Feeney case, was scheduled to
expire 22 November 1997.
On 30 October 1997, Criminal Code amendments in
the form of Bill C-16 were introduced and given first reading. The amendment
provided a mechanism for peace officers to obtain prior judicial authorization
to enter a dwelling house for the purposes of making an arrest.
5. Warrant Improperly Obtained
In Caron, a search warrant was obtained only with
respect to stolen travellers cheques. During the search, no such
cheques were found; however, police seized a prohibited weapon, which
they had had reason to believe was on the premises when they applied for
the search warrant. The court held that the police should have disclosed
the fact that they were looking for a prohibited weapon when they requested
the search warrant. "By withholding information from the justice
of the peace, and by achieving the desired result on the pretext of being
interested only in other unrelated items, the informant was removing the
process from the judicial arena." It was held that the warrant obtained
did not provide legal authority to conduct the search for the weapon.
Similarly, in the Imough case, it was learned at trial that the
police officers had not had proper grounds for obtaining the warrant.
The court held that to admit the evidence "would shock the conscience
of the community and bring the administration of justice into disrepute
having regard to the sanctity of a persons dwelling and [the fact]
that the search in this case was conducted entirely without legal authority."
Notwithstanding a properly obtained and lawful search
warrant, the British Columbia Court of Appeal has excluded evidence resulting
from a warrant that was executed in an improper manner. In R. v.
West, the police allowed a television crew to accompany them on
the execution of a search warrant that had been obtained on the basis
of a media investigation. During execution of the warrant, a television
camera crew had followed the police into the accuseds apartment
and filmed him being arrested and handcuffed. The British Columbia Court
of Appeal held that the search was unreasonable "because it exceeded
the authority of the warrant and it violated, for no investigatory or
juridical purpose, the highest possible privacy interest of the accused
in the security of his residence." Given the seriousness of the Charter
breach, the evidence obtained during the search was held inadmissible
and a new trial was ordered.
6. Plain View Doctrine
In Shea, the Ontario High Court followed the "plain
view" doctrine cases in the United States in deciding that, once
a police officer is lawfully in residential premises, he has the right
to seize articles such as narcotics that are in plain view.
7. Search of the Person
A review of the cases where search of a person was conducted
seems to indicate that the courts strictly scrutinize such searches and
in many cases find them unreasonable and exclude any evidence they produce.
For example, in Collins, a British Columbia case, the accused was
sitting in a bar which was said to be frequented by heroin users and traffickers.
The accused was seized by two police officers; while one of them employed
a choke hold that rendered her semiconscious, the other forced open her
mouth. While this was happening, three caps of heroin dropped out of the
accuseds right hand. The court held that the officers in this case
had not had reasonable and probable grounds to believe that narcotics
were in the accuseds mouth and that therefore the search was unlawful.
The court went further and determined that to admit the evidence would
bring the administration of justice into disrepute, for it would condone
and allow the continuation of unacceptable conduct by the police. This
decision was affirmed on appeal by the Supreme Court of Canada.
In Heisler, a random search of people entering
a rock concert disclosed a large quantity of drugs in the accuseds
possession. The evidence revealed, however, that there had been no grounds
upon which to base the search. The Alberta Provincial Court determined
that the accused had been subjected to an unreasonable search that went
beyond the bounds of mere bad taste and impropriety. The evidence was
excluded on the grounds that to admit it would bring the administration
of justice into disrepute. In the Roy case, however, the Ontario
High Court held that where posted signs declare that entry to a rock concert
is conditional on submitting to a search, such a search is not in violation
of section 8.
In Debot, the police received a tip from an informant
that the appellant was going to take delivery of a substantial quantity
of the amphetamine "speed." He was stopped, ordered from his
car, and told to assume a "spread eagle" position and to empty
his pockets; speed was found. Although the search was carried out without
a warrant, the Supreme Court of Canada held that the police had acted
reasonably and that the evidence should not have been excluded as the
trial judge had ordered. Chief Justice Dickson said that, although a detainee
must be informed of the right to retain and instruct counsel immediately
upon detention - a requirement the police had observed in this case -
and although the "spread eagle" direction amounted to a detention,
the police are not obligated to suspend a search as an incident to an
arrest until the detainee has had the opportunity to retain counsel.
Chief Justice Dickson went on to say that denial of the
right to counsel as guaranteed by section 10 of the Charter will result
in a finding that a search is unreasonable only in exceptional circumstances.
A search is reasonable if it is authorized by law, if the law itself is
reasonable and if the manner in which the search is carried out is reasonable.
The denial of the right to counsel does not affect the "manner"
in which the search is conducted, which, according to the Court, relates
to "the physical way in which it is carried out." The Court
also said that "evidence obtained by way of a search that is reasonable
but contemporaneous with a violation of the right to counsel will not
necessarily be admitted" and, indeed, "evidence will be excluded
if there is a link between the infringement and the discovery of the evidence,
and if the admission of the evidence would bring the administration of
justice into disrepute."
8. Common Law Power of Search
Incidental to Arrest
Langlois and Bedard marked the first time the
Court comprehensively considered the question of the existence and scope
of the power of the police to search a person who has been lawfully arrested.
In that case, the appellants were constables employed in Montreal. The
respondent, Cloutier, a lawyer practising in that city, was stopped by
the constables after he had committed a motor vehicle infraction. When
it was discovered that a warrant of committal for unpaid traffic fines
had been issued for him, he was arrested and "frisk searched"
before being placed in the patrol car. Cloutier subsequently charged the
appellants with common assault, contrary to the Criminal Code.
The Supreme Court analyzed the scope of the recognized
and long established common law power of the police to search a lawfully
arrested person and to seize anything in his or her possession or immediate
surroundings in order to guarantee the safety of the police and the accused,
to prevent the latters escape or to obtain evidence.
Following the Collins and Debot decisions,
the Court held that a search will not be wrongful if it is authorized
by law, if the law is itself reasonable and if the search is conducted
in a reasonable manner. Therefore, since a frisk search "is a relatively
non-intrusive procedure: outside clothing is patted down to determine
whether there is anything on the person of the arrested individual,"
it "does not constitute, in view of the objectives sought, a disproportionate
interference with the freedom of persons lawfully arrested. There exists
no less intrusive means of attaining these objectives."
The Court outlined three criteria for establishing a
search as reasonable and justified: (1) that the police are under no duty
to search but can exercise their discretion in each case, based on the
particular facts; (2) that the search is "for a valid objective in
pursuit of the ends of criminal justice," such as a search for weapons
or evidence; and, (3) that the search "must not be conducted in an
The power of search incidental to arrest has since been
held to extend to the search of a vehicle for the purposes of obtaining
evidence against a driver arrested for possession of narcotics. However,
a four-to-three majority of the Supreme Court of Canada in R. v.
Caslake also held that a search undertaken not for that purpose,
but rather to inventory the contents of the vehicle, was "not within
the bounds of the legitimate purposes of search incident to arrest."
Despite the resulting violation of section 8 of the Charter, the Court
held that the evidence obtained in the search was admissible, since "[t]he
trial was still fair, the breach was not serious, and exclusion of the
evidence would have a more detrimental impact on the administration of
justice than its admission."
In 1997, the Supreme Court of Canada held that
the common law power of search incidental to arrest is not sufficient
authority for the seizure of bodily substances for forensic DNA analysis,
in the face of a suspects refusal to provide them. In R.
v. Stillman, the court held that the accuseds section 8 rights
had been violated when hair samples and buccal swabs were seized by the
police, under threat of force and without any legislative authority. Furthermore,
because the evidence would not have been discovered without the "conscription"
of the accused [as defined by Mr. Justice Cory in Stillman] in
violation of his Charter rights, the Supreme Court of Canada ruled that
admitting the DNA evidence would render the trial unfair.
At the time of the arrest in the Stillman case,
there was no legislative authority to seize biological samples for forensic
DNA analysis, with or without the consent of an accused. Subsequent amendments
to the Criminal Code, however, have since set out criteria and
procedure for obtaining prior judicial authorization, in the form of a
warrant, for the seizure of bodily substances for DNA analysis. Effective
July 1995, the legislation allows the police to use "as much force
as is necessary" to execute such a warrant, which can be issued for
the investigation of only certain designated offences.
9. Electronic Surveillance
In R. v. Thompson, the Supreme Court of
Canada held that the police cannot indiscriminately bug any and all pay
phones that the accused might use; this would violate the publics
right to be free from unreasonable search and seizure. However, broadly-worded
clauses in a judicial authorization permitting the bugging of phones at
any place to which a suspect might "resort" are valid, provided
the police have reasonable and probable grounds for believing that the
person actually "resorts to" that place.
The Supreme Court of Canada decisions rendered on 25
January 1990 in the Duarte and Wiggins cases had a significant
impact on policing methods, particularly undercover investigations involving
drug and morality offences. In Duarte, the Court said that unauthorized
electronic surveillance (i.e., room "bugging" or tape recording
telephone conversations) and interception "of private communications
by an instrumentality of the state with the consent of the originator
or intended recipient thereof, without prior judicial authorization, does
infringe the rights and freedoms guaranteed by section 8." Until
then, it had been legal for the police to intercept such communication,
as long as one of the parties to the conversation consented. It is now
necessary for a judge to authorize such interception in the same way as
interception of an entirely private conversation ("wiretapping")
where neither party has given prior consent.
In Duarte, the Supreme Court said that "the
primary value served by section 8 is privacy," which it defined as
"the right of the individual to determine when, how, and to what
extent he or she will release personal information." Accordingly,
"one can scarcely imagine a state activity more dangerous to individual
privacy than electronic surveillance and to which, in consequence, the
protection accorded by s. 8 should be more directly aimed." The Court
took the position that it could no longer allow the police an "unfettered
discretion ... to record and transmit our words" without prior judicial
authorization because this widespread police practice represented an "insidious
danger" to the "very hallmark of a free society," namely,
the "freedom not to be compelled to share our confidences with others."
In Wiggins, the use of "body pack" microphones by police
was also found to be unconstitutional, for the reasons expressed in Duarte.
In Wong, the Supreme Court extended even further
the protection of the individual from invasion of privacy by the state.
The Court held that the accused, by using public notices in restaurants
to invite people to an illegal gambling operation in a hotel room, had
not opened this operation to the public to the extent that it was no longer
a private event. He had therefore not relinquished his protection under
section 8. The Court applied the criterion developed in Duarte;
it held that, although the accused had distributed public notices, these
did not connote "tacit consent" to electronic surveillance by
the police. Therefore, the gambling operation was still "private"
and the unauthorized video surveillance by the police constituted an unreasonable
search and seizure under section 8.
In R. v. Wise, the Supreme Court of Canada
had occasion to consider the admissibility of evidence obtained through
unauthorized installation and monitoring of an electronic tracking device.
After installing a tracking device in the back seat of a car belonging
to a "suspected serial killer," the police had followed the
accused and obtained evidence to support mischief charges relating to
damage of a communications tower worth millions of dollars.
The Court was unanimous in finding that both the installation
and subsequent monitoring constituted unreasonable searches, in violation
of section 8 of the Charter. However, a four to three majority
held that the admissibility of the evidence must be considered in the
context of a minimal intrusion of the "lessened privacy interest"
attached to the operation of a motor vehicle as well as "the urgent
need to protect the community." Since the location of the car at
the time of the offence was "real" evidence that would not affect
the fairness of the trial, and since the Court of Appeal had found that
the police had acted in good faith, the majority of the Court held that
admitting the evidence would not bring the administration of justice into
disrepute. Relying on the Supreme Courts earlier decision in Kokesch,
however, the three dissenting justices would have excluded the evidence,
since it was obtained through an illegal trespass knowingly committed
by the police.
The Supreme Court has also considered the procedure for
allowing the accused access to confidential "sealed packets"
containing legal documents on the basis of which judicial authorization
for wiretapping is granted. In Dersch v. Canada, and R.
v. Garofoli, the court held that for access to be granted the accused
need only make a request to examine the legal documents in the "sealed
packet." Such access is necessary to permit the accused to make a
full answer and defence, and in particular, to evaluate whether the wiretapping
has been carried out in conformity with section 8.
Bill C-109, An Act to amend the Criminal Code, the Crown
Liability and Proceedings Act and the Radio Communication Act, S.C. 1993,
ch. 40, was proclaimed in force on 1 August 1993. The Act addressed a
number of the issues raised in the aforementioned Duarte, Wong,
Garofoli and Wise cases.
For example, police may intercept private communications,
with the consent of the originator or intended recipient and without prior
judicial authorization, for the purpose of preventing bodily harm to the
person consenting. The Act also specifically contemplates judicial authorizations
for video surveillance and for the use of electronic tracking devices.
In addition, it codifies procedure for courts to follow in allowing an
accused access to the contents of the "sealed packet," in trials
where electronic surveillance has been authorized.
10. Breath Tests and Blood
The cases usually hold that compulsory breath tests do
not constitute unreasonable search and seizure since they can be demanded
only when there are reasonable and probable grounds to believe the motorist
is impaired. The Ontario case of R. v. Fraser has determined
that in the absence of reasonable and probable grounds, the taking of
a breath sample amounts to unreasonable search and seizure.
The courts seem to be agreed that there is no unreasonable
search and seizure where hospital personnel take a blood sample from an
accused for use in treating him and where the sample is later turned over
to the police pursuant to a search warrant.
In Dyment, however, the Supreme Court of Canada
held that evidence concerning the results of a blood sample analysis should
be excluded when a doctor who had taken a sample for purely medical purposes
turned that sample over to an investigating police officer who had not
noted signs of impairment and who had not asked the respondent or the
doctor to provide a blood sample. The Court said that section 8 is concerned
not only with the protection of property but also with the protection
of the individuals privacy against search or seizure. It considered
the doctors action in taking the blood and the police officers
acceptance of it as very serious Charter breaches: "A violation of
a personss body is much more serious than a violation of his office
or even his home," said the Court.
In R. v. Colarusso, the Supreme Court of
Canada was called upon to consider whether police use of evidence obtained
under Ontarios Coroners Act constituted a breach of
the accuseds section 8 Charter rights. The accused had been arrested
and taken for hospital treatment, following a motor vehicle accident.
The Coroner had subsequently seized blood and urine samples taken from
the accused for medical purposes, pursuant to his statutory authority
under section 16 of the Coroners Act. The samples were then
given to the police for analysis. The accused was later convicted of impaired
driving causing bodily harm and criminal negligence causing death, on
the strength of subpoenaed evidence given by the analyst. A five-four
majority of the Supreme Court of Canada held that the Coroners seizure
was reasonable only as long as the evidence was used for valid non-criminal
purposes under the Act. However, once "appropriated by the criminal
law enforcement arm of the state for use against the person from whom
it was seized," the seizure was unreasonable and in violation of
section 8 of the Charter.
Nevertheless, the Court held that the evidence of impairment
was admissible against Mr. Colarusso; this was based on a number of findings.
First, the evidence was real evidence that existed prior to the infringement
of section 8. Second, the hospital staff, the Coroner and the police had
all acted in good faith and pursuant to what they believed to be valid
statutory authority. Finally, if they had known it was necessary, the
police could have obtained a warrant to seize the evidence or to obtain
another blood sample. Those facts, "coupled with the aggravating
circumstances surrounding the commission of the offence," caused
the Court to conclude "that the administration of justice would not
be brought into disrepute by the admission of the evidence."
In R. v Krist, the British Columbia Court
of Appeal considered whether police seizure of garbage bags left on the
street for collection amounted to unreasonable search or seizure. The
police used the presence of marijuana plants and other paraphernalia found
in the garbage to obtain warrants to search the appellants home
and vehicle, where additional plants and growing equipment were found.
Relying on obiter comments made by the Supreme Court of Canada in R.
v Dyment, the Court of Appeal found that once trash is "abandoned
by a householder to the vagaries of municipal garbage disposal,"
he or she no longer has "a reasonable expectation of privacy in respect
of it." Thus, even though its seizure was based on a tip of unknown
reliability, police action did not amount to a breach of section 8 of
The Supreme Court of Canada has also had occasion to
consider the nature of the consent required to waive an accuseds
section 8 rights concerning blood samples for DNA analysis. In R.
v. Borden, the accused had been arrested on a charge of sexual
assault and advised of his right to counsel, before consenting to provide
a blood sample to the police for purposes "relating to their investigations."
The police had not informed the accused that he was also suspected in
an earlier sexual assault and that they wanted the sample primarily for
the purposes of that investigation. In the majority decision, Mr. Justice
Iacobucci held that police failure to inform the accused of their predominant
purpose in seeking the blood sample meant that there was no valid consent
or waiver of his section 8 rights. At minimum, the police should
have made it clear that the accuseds consent would be treated "as
a blanket consent to the use of the sample in relation to other offences
in which he might be a suspect." In the absence of such a waiver,
or some other lawful authorization, the taking of blood was an unreasonable
seizure. The majority of the Court also found a breach of the accuseds
right to be informed of the reasons for his arrest under section 10(a)
of the Charter and, consequently, his right to counsel under section 10(b).
Finally, the Court concluded that admitting the DNA evidence would render
the trial unfair, since it was obtained from the accused who was "completely
uninformed about the main purpose of the police" in requesting it.
C. Arrest and Detention: Sections 9 and
These sections of the Charter state:
9. Everyone has the right not to be arbitrarily detained
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay
and to be informed of that right; and
(c) to have the validity of the detention determined
by way of habeas corpus and to be released if the detention is not
Standards by which the "arbitrariness" in section
9 can be measured are fast being established with successive decisions
of the Supreme Court of Canada. Thus, it is arbitrary and offensive for
the police, with little or no reason, to detain or arrest a person for
questioning or for further investigation. It is not improper, however,
for them to pursue their investigation following an arrest made on the
basis of their reasonable and probable belief that the accused was committing
or had committed an offence. In Storrey, the Court said that to
make an arrest the police require nothing more than reasonable and probable
grounds. They do not have "to establish a prima facie
case for conviction before making the arrest."
With reference to section 10(a) Amos states that
the Charter now enshrines what has always been the case in Canada: the
law does not recognize any police right to arrest or forcibly detain any
person who is not charged with an offence, merely in order to investigate
an offence that the police believe has been committed.
The courts, when applying section 9, have tended not
to overturn standard police practices. Thus, police demands that an accused
submit to finger printing as required by law have been held not to be
unreasonable or capricious. In the Beare and Higgins case,
the Supreme Court of Canada held that taking the fingerprints of an accused
who is in custody or is directed to appear, by an appearance notice or
summons, does not violate any of sections 7, 8, 9, 10, 11(c) or 11(d)
of the Charter. The Court said that fingerprinting is not contrary to
the principle of fundamental justice and that the procedure is a relatively
minor intrusion compared to others permitted the police at common law.
Finally, although the Court acknowledged that the Charter guarantees a
reasonable expectation of privacy, it held that a person arrested or charged
must expect a significant loss of personal privacy.
It has also been decided that the provisions of this
section are not infringed when a police officer stops a motorist on a
highway for a vehicle check, and, after smelling alcohol on the motorists
breath, demands a breath test.
a. Random Stops
In a series of three cases (Dedman in 1985, Hufsky
in 1988, and Ladouceur in May 1990) the Supreme Court of Canada
pronounced on the constitutionality of police random stopping of motorists.
In Dedman, Mr. Justice LeDain, for the majority of the Court,
held that the 1980 Ontario R.I.D.E. program, in which police deployed
checkpoints to screen impaired drivers, did not impinge a Charter right
- even though the police did not have the statutory authority to conduct
a random stop. The reason was that driving is a "licensed activity
that is subject to regulation and control for the protection of life and
Mr. Justice LeDain also delivered the unanimous
opinion of the Supreme Court in Hufsky, where the constitutionality
of another Ontario police practice - spot check random stops - was reviewed.
Unlike the R.I.D.E. program in Dedman, at issue in Hufsky
was more than a search for impaired drivers. The random stops during these
spot checks had a broad range of purposes, including checking for insurance
papers and for the vehicles mechanical fitness. Mr. Justice
LeDain said that the absence of police guidelines meant that the stops
constituted arbitrary detention in violation of section 9 of the Charter,
since the decision to stop a vehicle was made absolutely at the discretion
of the police. That being said, however, his Lordship considered that
the Charter limit imposed by the Highway Traffic Act was demonstrably
justified in the interest of public safety. Again, for the Court, it was
significant to note that driving could not be considered a fundamental
right but was rather "a licensed activity subject to regulation and
In Ladouceur, at issue was the Ottawa polices
random stopping of a vehicle for essentially no reason and not as part
of either an organized or spot check program. The Supreme Court split
5-4 in holding that this was an arbitrary stop that, following the Hufsky
decision, was in violation of section 9 of the Charter. The stopping was
not ruled to be unconstitutional, however, because it was a reasonable
limit, demonstrably justified in a free and democratic society. The dissenting
four justices agreed in the result, although they felt that allowing such
a practice went beyond what the police should be enabled to do and gave
them an unlimited right to stop vehicles.
In November 1992, the Supreme Court of Canada had occasion
to review the extent of police powers over motorists detained at random
check stops. In Mellenthin v. The Queen, the Supreme Court
decided that visual inspection of vehicles with a flashlight was necessarily
incidental to a check stop program carried out after dark. However, "a
check stop does not and cannot constitute a general search warrant for
searching every vehicle, driver and passenger that is pulled over. Unless
there are reasonable and probable grounds for conducting the search, or
drugs, alcohol or weapons are in plain view in the interior of the vehicle,
the evidence flowing from such a search should not be admitted."
2. Right to Retain Counsel
The Interests Protected
In Kelly, the Ontario Court of Appeal drew a distinction
between the interests protected by paragraphs (a) and (b) of section 10.
With respect to paragraph (a), the court held that a person is not obliged
to submit to an arrest without knowing the reason for it; accordingly
it is essential that the person be informed "promptly" of the
reason. On the other hand, the purpose of paragraph (b) is to protect
someone from prejudicing his or her legal position by saying or doing
something without the benefit of legal advice. The requirement that the
accused be informed "promptly" of the reason for the arrest
means that the information must be given "immediately." However,
the requirement that the accused be informed of the right to counsel "without
delay" is not the same as requiring that the accused be informed
"immediately." There may be good reason for an arrested
person to be informed "without delay" of the right to counsel,
but there is no essential reason why that must be part and parcel of the
statement under paragraph (a) of the reason for the arrest; such a statement
is really part of the arresting process itself.
In Ironchild, it was held that where an accused
is asked whether he or she wishes counsel, gives an ambiguous reply and
expresses only a vague desire to consult a lawyer, it is proper for the
police to repeat the question without doing anything further. In the majority
of other cases, however, the courts have held that this right requires
that the accused be given a real opportunity to retain counsel. In the
Nelson case, it was stated "there should not be a mere incantation
of a potted version of the right followed by conduct on the
part of the police which presumed a waiver of the right. The thrust of
this provision is the guarantee of information so that an early opportunity
to make a reasoned choice is available to the accused. The purpose of
making the accused aware of his right is that he may decide, and that
means he should have a fair opportunity to consider whether he wishes
to resort to his right."
Violation of the right to counsel has resulted in the
exclusion of evidence pursuant to section 24(2) of the Charter. For example,
in R. v Ross, the Supreme Court of Canada excluded identification
evidence obtained during the accuseds participation in a police
line-up. Police had conducted the line-up at 3 a.m., after the accused
had made one unsuccessful attempt to contact counsel, and without advising
him that he had no statutory obligation to participate.
Although the Supreme Court of Canada said, in R.
v. Harrer and R. v. Terry, that section10(b) of the
Charter did not apply to statements obtained in the United States by U.S.
authorities, it has since held that the Charter can apply to the actions
of Canadian authorities abroad. In R. v. Cook, Canadian
police officers interrogated and obtained a statement from a suspect in
a U.S. jail in connection with a murder committed in Canada. Although
the trial judge and the British Columbia Court of Appeal held that the
statement had been obtained in breach of section 10(b) Charter rights,
both agreed that its use in evidence "did not render the trial unfair."
On appeal by the accused, the Crown had argued that the Charter did not
apply to evidence-gathering activities that took place outside Canada.
Five of seven majority judges concluded that the Charter did apply "on
the jurisdictional basis of the nationality of the state law enforcement
authorities engaged in governmental action." Relying on the general
rule "that the admission of conscriptive evidence which would not
have been discovered in the absence of the conscription of the accused
will render the trial unfair," the court excluded the statement from
evidence and ordered a new trial.
In R. v. Evans, the Supreme Court of Canada
considered the extent to which arrested people must understand the police
statement of their rights and when the police must reiterate the statement.
When the accused in this case, who had an I.Q. of between 60 and 80, was
informed of his rights and asked whether he understood them, he replied
that he did not. Nevertheless, the police, who were aware of his diminished
mental capacity, took him to the station and conducted interviews that
eventually led to his confessions to two murders. The Court held that
this was a violation of the accuseds right to counsel, and that
the evidence of the confessions must be excluded under section 24(2).
In overturning the conviction and acquitting the accused,
the Court categorically rejected the Appeal Courts claim that the
administration of justice would fall into disrepute if a self-confessed
killer were freed merely because his right to counsel had been violated.
The Court found that, due to the Charter violation, the reliability of
the accuseds confessions was suspect, and he had not had a fair
trial. The position of the Appeal Court had effectively presumed the accuseds
guilt. A majority of the Court also held that the accuseds section
10(b) rights had been violated when the police began to suspect him of
murder rather than a lesser offence but did not inform him anew of his
right to counsel.
As a result of this case, police may have to make extra
efforts to ensure that suspects understand their rights, particularly
in cases involving children, people who do not speak the language used
by the police, and those with diminished mental capacity.
The Supreme Court of Canada has since held that the right
to counsel could not be validly waived by young persons who were unaware
that they could face life imprisonment if their case was transferred to
adult court. In R. v. I.(L.R.) and T.(E.), the Court said
that if waiver is to be relied upon, the young person must know "the
extent of his or her jeopardy." Stopping short of a blanket requirement
that the police advise an accused of the maximum penalty he or she might
face, Mr. Justice Sopinka was of the view that "the particular characteristics
of young offenders make extra precautions necessary in affording them
the full protection of their Charter rights."
In R. v. Whittle, the Supreme Court of
Canada has also considered the mental capacity required for a valid waiver
of an accuseds right to counsel. Mr. Whittle was a schizophrenic,
who, at the time of his confession, was aware of what he was saying and
understood the consequences, but was so disturbed that he did not care
about them. Declining to impose a higher standard of cognitive ability
than that required to stand trial, the Court applied the "operating
mind" test; this requires "sufficient cognitive capacity to
understand what he or she is saying and what is said," including
the ability to understand the caution that evidence can be used against
the accused. The Court found that evidence of an "[i]nner compulsion,
due to conscience or otherwise, cannot displace the finding of an operating
mind unless, in combination with conduct of a person in authority, a statement
is found to be involuntary."
of Law Enforcement Agencies
The Supreme Court of Canada has also considered whether
there is an obligation upon the police to assist an accused person to
exercise the right to counsel.
In Manninen, the Court held that section 10(b)
imposes at least two duties on the police in addition to the duty to inform
the detainee of his or her rights. First, the police must provide the
detainee with a reasonable opportunity to exercise the right to retain
and instruct counsel without delay; this includes the duty to offer the
respondent the use of the telephone. Certain circumstances might make
it particularly urgent for the police to continue their investigation
before facilitating a detainees communication with counsel; however,
there was no such urgency in Manninen. Second, the police must
refrain from questioning the detainee until the latter has had a reasonable
opportunity to retain and instruct counsel. The purpose of granting right
to counsel is not only to allow detainees to be informed of their rights
and obligations under the law but also, and equally if not more important,
to obtain advice as to how to exercise those rights.
In this case, the police officers had informed the respondent
of his right to remain silent, but had proceeded to question him after
he had "clearly asserted his right to remain silent and his desire
to consult a lawyer." For the right to counsel to be effective, the
accused would have to have had access to legal advice before being questioned
or otherwise required to provide evidence. This aspect of the respondents
right to counsel was clearly infringed, however, as police had continued
questioning when there had been no urgency to justify it. The respondent
had not waived his right to counsel by answering the police officers
questions. Though a person may implicitly waive the rights under section
10(b), the standard is very high and was not met in this case.
In Baig, the Supreme Court held that the police
obligation to provide an opportunity to retain and instruct counsel was
not triggered until the accused expressed a desire to exercise that right.
The corollary of this ruling would seem to be that police failure to promote
the exercise of a Charter right would not amount to a Charter violation
if the accused had not invoked the right.
However, in R. v Brydges, the Supreme Court
has since held that an accuseds statement that he could not afford
a lawyer amounted to a request for counsel. The accused, a native of Alberta
who had been arrested in Manitoba for murder, was informed without delay
of his right to retain and instruct counsel. He was again advised of this
right at the police station. When the accused asked the investigating
officer if Legal Aid existed in Manitoba, because he could not afford
a lawyer, the officer replied that he thought there was such a system
in the province, but made no attempt to confirm this. When then asked
if he had a reason for wanting to speak with a lawyer, the accused said
that he had not. After making a number of incriminating statements, the
accused asked to speak with a Legal Aid lawyer. After his request had
been granted, the accused declined further discussions with the police.
In upholding the trial court decision to exclude the
incriminating statements because the accuseds rights under section
10(b), had been violated, the Supreme Court said that "(w)here an
accused expresses a concern that the right to counsel depends upon the
ability to afford a lawyer, it is incumbent on the police to inform him
of the existence and availability of Legal Aid and duty counsel."
Here, "the accused was left with the mistaken impression that his
inability to afford a lawyer prevented him from exercising his right to
counsel." The accused could not waive something he did not fully
understand (i.e. his section 10(b) rights).
The decision in Brydges confirmed that the police
are under two additional duties beyond that of informing the detainee
of his section 10(b) rights: they "must give the accused or detained
person a reasonable opportunity to exercise the right to retain and instruct
counsel, and ... refrain from questioning or attempting to elicit evidence
from the detainee until the detainee has had that reasonable opportunity."
The detainee must still exercise "reasonable diligence" in exercising
this right and can, either explicitly or implicitly, waive it; however,
he must understand and be aware of the consequences of so doing and any
implicit waiver will be scrutinized very closely by the Court.
The Supreme Court also said that the police must advise
of the existence and availability of duty counsel and Legal Aid in all
cases of arrest or detention - not only those where the detainee is or
appears to be impecunious. This is the case even if, following advice
from the police about section 10(b) rights, the detainee does not ask
to speak with a lawyer. If the accused does not make a reasonably diligent
effort to exercise the right after such advice is given, then, as the
Supreme Court of Canada said in the Smith case, the police are
not required to refrain further from attempting to elicit evidence.
Notwithstanding Brydges, the nature and extent
of the advice that must be available to an accused in order to preserve
section 10(b) rights were not yet settled. In addition to requiring that
detainees be advised of their right of access to duty counsel, the Prince
Edward Island Court of Appeal, in R. v. Matheson, held that
Brydges meant that it was "up to those responsible for the
administration of justice in the Province to ensure that the service is
available." Leave to appeal to the Supreme Court of Canada was granted
in Matheson and in R. v. Prosper, a decision of the
Nova Scotia Court of Appeal that took a different view. On appeal of those
two cases, the Supreme Court ultimately held that "s. 10(b)
of the Charter does not impose a positive obligation on governments to
provide a system of Brydges duty counsel, or likewise, afford
all detainees a corresponding right to free, preliminary legal advice
24 hours a day."
In R. v. Burlingham, the Supreme Court
of Canada had occasion to consider the obligations of police or Crown
counsel with respect to plea bargains. Writing for the majority, Mr. Justice
Iacobucci held that s. 10(b) "mandates the Crown or police, whenever
offering a plea bargain, to tender that offer either to accuseds
counsel or to the accused while in the presence of his or her counsel,
unless the accused has expressly waived the right to counsel." Furthermore,
section 10(b) was held to prohibit police "from belittling the accuseds
lawyer with the express goal or effect of undermining the accuseds
confidence in and relationship with defence counsel." The majority
went on to find that police had infringed Burlinghams right to counsel
by placing such an offer directly to the accused and leaving it open only
for the period of time they knew that his lawyer was not available. Furthermore,
because the accuseds confession, the murder weapon, and his girlfriends
testimony would not have been available "but for" the Charter
breach, all that evidence would be excluded from a new trial.
to Sobriety Tests
In Therens, the Supreme Court of Canada considered
the issue of breathalyzer testing and section 10(b) rights. In deciding
whether a person arrested or detained for impaired driving need be informed
of the right to retain and instruct counsel before responding to a breathalyzer
demand, the Court offered for the first time a comprehensive definition
of the word "detention" as used in section 10 of the Charter.
The Court held that detention was the restraint of liberty, other than
by arrest, by the police or some other agent of the State; such restraint
was not limited to physical compulsion or control. Detention would also
result, said the Court, if the individual submitted or acquiesced in such
deprivation of liberty (in this case as the result of a breathalyzer demand)
because he or she felt "the choice to do otherwise does not exist."
The Court went on to hold that a charge of failing the
breathalyzer test or refusing to provide a breath sample, contrary to
section 235, would not stand if the offending motorist had not been informed
of the right to retain and instruct counsel without delay. Unlike the
Criminal Code provision respecting an A.L.E.R.T demand, there was
no implied limit on the right to counsel contained in section 235. Therefore,
any violation of rights protected under section 10(b) of the Charter would
not be "prescribed by law" within the meaning of section 1.
Similarly, the Court held that the police are under no obligation to comply
with section 10(b) of the Charter when the person is merely charged with
impaired driving rather than failure of the breathalyzer test or refusal
to provide a breathalyzer sample as distinct from an A.L.E.R.T. sample;
in that circumstance there is no connection between the recovery of self-incriminating
evidence and a Charter violation.
Many lower court decisions have followed Therens,
with interesting results. One of these is the decision of the Appeal Division
of the Nova Scotia Supreme Court in Baroni, which held that the
results of physical coordination and sobriety tests conducted by police
officers at the roadside were to be excluded in cases where the individual
tested had not been informed of the right to retain and instruct counsel
as provided in section 10(b) of the Charter.
3. Habeas Corpus: Section
Habeas corpus means literally "you have the body."
It is a term for a variety of ancient writs that commanded one person
detaining another to produce the prisoner before a court or judge.
In Gamble, the Supreme Court of Canada breathed
new life into this procedure by ruling that habeas corpus was, in appropriate
circumstances, available as a Charter remedy. In this case, the respondent
had been incarcerated following his conviction for a first degree murder
for which he had been tried pursuant to Criminal Code provisions
that were not yet in force.
Taking what it termed "a purposive and expansive
approach," the Court granted the remedy of habeas corpus. The Court
held that an individual enjoyed "a residual liberty interest"
found in section 7 and it was clear in this case that the respondent had
been deprived of his liberty in contravention of the principles of fundamental
D. Exclusion of
Evidence under Section 24(2) of the Charter
Section 24(1) of the Charter provides a course of action
for accused persons whose Charter rights have been infringed or denied:
they can apply to a "court of competent jurisdiction" for the
"appropriate and just" remedy. Section 24(2) then allows such
a court to exclude evidence obtained in a manner that infringed or denied
Charter rights, if admitting it into evidence "would bring the administration
of justice into disrepute."
Because the Charter does not define a "court of
competent jurisdiction," it has fallen to the courts to determine
which tribunals have the power to exclude evidence in the circumstances
described in section 24(2). For example, in R. v. Mills,
the Supreme Court of Canada said that a provincial court judge presiding
at a preliminary inquiry is not a court of competent jurisdiction. In
Mooring v. Canada (National Parole Board), the Supreme Court
of Canada also held that the National Parole Board is not a court of competent
jurisdiction for the purposes of excluding evidence on the sole grounds
that it was gathered in a manner that violated an offenders Charter
The Supreme Court of Canada has also said that relief
under section 24(2) is available only to the person whose Charter rights
have been infringed. In R. v. Edwards, the accused asked
the court to exclude evidence in the form of drugs seized from his girlfriends
apartment, allegedly in violation of section 8 of the Charter. Finding
that the accused was no more than a "privileged guest," who
lacked the authority to admit or exclude others from the apartment, a
majority of the court held that he did not have "a reasonable expectation
of privacy" on the premises. Consequently, because his own section 8
rights had not been infringed, he could not contest the admissibility
of the evidence pursuant to s. 24(2) of the Charter.
The causal connection between the breach of an individuals
section 10(b) rights and the recovery of evidence was considered by the
Supreme Court of Canada in the Black case. During the investigation
of a charge of murder, the police recovered the weapon used, a knife,
after the appellant had given them a written statement. The Court held
that there had been a breach of the appellants rights under section
10(b); the police had continued to question her despite the fact she was
drunk and despite her clear prior request for the opportunity to consult
counsel. For this reason, any evidence recovered thereby and thereafter
should be excluded.
In R. v. Elshaw, the Supreme Court of Canada
discussed the appropriate test under section 24(2) of the Charter for
admission or exclusion of a self-incriminating statement obtained in violation
of an accuseds rights under section 10(b) of the Charter. The Court
held that exclusion of such statements obtained in this way should be
the rule rather than the exception. Finding that the evidence had contributed
substantially to conviction and that there had been no evidence of any
urgency or necessity to obtain information from the accused at the time
of detention, the Court ordered the evidence excluded. The majority held
that admission of such evidence would "generally" amount to
a substantial wrong or miscarriage of justice. For that reason, section
686(1)(b)(iii) of the Criminal Code could not be used to correct
the errors made by the trial court.
In R. v. Burlingham (right to counsel)
and R. v. Silveira (unreasonable search or seizure), the
Supreme Court reviewed the factors previously canvassed in R. v.
Collins, for the exclusion of evidence under section 24 (2). The
three primary factors were held to be: "(a) does the admission of
the evidence affect the fairness of the trial, (b) how serious was the
Charter breach, and (c) what would be the effect on the systems
repute of excluding the evidence." The answers to those questions
may depend upon a number of factors including the nature of the evidence
and whether it would very likely have been obtained in some other way,
the presence or absence of good faith on the part of the police, and the
seriousness of the crime.
The Supreme Court of Canada has since weighed the impact
of illegally obtained evidence on the fairness of a trial by considering
whether the evidence was "conscriptive" or "non-conscriptive":
where the accused is compelled, in violation of a Charter right, "to
incriminate himself either by a statement or the use as evidence of the
body or of bodily substances it will be classified as conscriptive evidence."
In R. v. Stillman, the court held that the admission of
conscriptive evidence will render a trial unfair if the Crown fails to
demonstrate on a balance of probabilities that the evidence would have
been discovered by alternative non-concriptive means. Because an unfair
trial would necessarily bring the administration of justice into disrepute,
the court will, as a general rule, exclude such evidence without further
A. Bill C-109
Bill C-109, An Act to amend the Criminal Code, the Crown
Liability and Proceedings Act and the Radio Communication Act, S.C. 1993,
ch. 40, was proclaimed in force on 1 August 1993.
The Act addressed legislative shortcomings identified
in several court decisions relating to police surveillance. It also dealt
with concerns about the potential abuse of developing communications technology.
B. Bill C-104
Bill C-104, An Act to amend the Criminal Code and the
Young Offenders Act (forensic DNA analysis), S.C. 1994-95, ch. 27.
Proclaimed in force 13 July 1995, Bill C-104 gives
police the right to seek a warrant for seizure that, if granted, authorizes
the taking of bodily substances for forensic DNA analysis. A warrant can
be issued for the investigation of only certain designated offences; the
court must also be satisfied that there are reasonable grounds to believe
that the individual in question was involved and that DNA analysis will
provide evidence to confirm or refute that involvement.
C. Bill C-16
Bill C-16, An Act to amend the Criminal Code and the
Interpretation Act (powers to arrest and enter dwellings), S.C. 1997,
In response to R. v. Feeney, Bill C-16
established procedures allowing police to obtain a warrant authorizing
entry into a private dwelling for the purposes of arrest or apprehension
of suspects or accused.
Collins v. The Queen,  1 S.C.R. 265
Comité Paritaire v. Potash,  2 S.C.R.
Dedman v. R.,  2 S.C.R. 673
Dersch v. Canada,  2 S.C.R. 1505
Hufsky v. R.,  1 S.C.R. 621
Langlois and Bedard v. Cloutier,
 1 S.C.R. 158
Mellenthin v. The Queen,  3 S.C.R.
Minister of National Revenue v. Kruger Inc.
(1984), 84 D.T.C. 6478 (Fed. C.A.)
Mooring v. Canada (National Parole Board),
 1 S.C.R. 75
R. v. Amos (1982), 8 W.C.B. 183 (N.W.T.
R. v. Baig,  2 S.C.R. 537
R. v. Baroni, Nova Scotia Appeal Division
R. v. Beare; R. v. Higgins,
 2 S.C.R. 387
R. v. Belnavis,  3 S.C.R.
R. v. Black,  2 S.C.R. 138
R. v. Borden,  3 S.C.R. 145
R. v. Brydges,  1 S.C.R. 190
R. v. Burlingham,  2 S.C.R. 206
R. v. Cameron (1984), 16 C.C.C. (3d) 240
R. v. Caron (1982), 31 C.R. (3d) 255 (Ont.
R. v. Caslake,  1 S.C.R. 51
R. v. Chapin (unreported)
R. v. Colarusso,  1 S.C.R. 20
R. v. Cook,  2 S.C.R. 597
R. v. Debot,  2 S.C.R. 1140
R. v. Duarte,  1 S.C.R. 30
R. v. Dyment,  2 S.C.R. 417
R. v. Edwards,  1 S.C.R. 128
R. v. Elshaw,  3 S.C.R. 24
R. v. Evans,  1 S.C.R. 869
R. v. Evans,  1 S.C.R. 8
R. v. Feeney,  2 S.C.R. 13
R. v. Fraser (unreported)
R. v. Gamble,  2 S.C.R. 595
R. v. Garofoli,  2 S.C.R. 1421
R. v. Grant,  3 S.C.R. 223
R. v. Greffe,  1 S.C.R. 755
R. v. Harrer,  3 S.C.R. 562
R. v. Heisler (1983), 9 W.C.B. 352 (Alta.
R. v. I.(L.R.) and T. (E.),  4 S.C.R.
R. v. Imough (No. 2) (1982), Can. Charter
of Rights Ann. 13-23 (Ont. Prov. Ct.)
R. v. Ironchild, Can. Charter of Rights
Ann. 15-13 (Sask. Q.B.)
R. v. Kelly (1985), Can. Charter of Rights
Ann. 15.2-12 (Ont. C.A.)
R. v. Kokesch,  3 S.C.R. 3
R. v. Krist, 14 July 1995, Ontario Court
R. v. Ladouceur,  1 S.C.R 1257
R. v. Lauda,  2 S.C.R. 683
R. v. M. (M.R.),  3 S.C.R. 393
R. v. Manninen,  1 S.C.R. 1233
R. v. Matheson,  3 S.C.R. 328
R. v. Mercer (1992), 7 O.R. (3d) 9 (C.A.)
R. v. Mills,  1 S.C.R. 863
R. v. Monney,  1 S.C.R. 652
R. v. Nelson (1982), 3 C.C.C. (3d) 147
R. v. Plant,  3 S.C.R. 281
R. v. Prosper,  3 S.C.R. 236
R. v. Rao (1984), 9 D.L.R. (4th) 542 (Ont.
R. v. Ross,  1 S.C.R. 3
R. v. Roy (1985), 15 W.C.B. 347 (Ont. H.
R. v. Shea (1982), 1 C.C.C. (3d) 316 (Ont.
R. v. Silveira,  2 S.C.R. 297
R. v. Simmons,  2 S.C.R. 495
R. v. Smith,  2 S.C.R. 368
R. v. Stillman,  1 S.C.R. 607
R. v. Storrey,  1 S.C.R. 241
R. v. Terry,  2 S.C.R. 207
R. v. Therens (1985), 18 D.L.R. (4th) 655
R. v. Thompson,  2 S.C.R. 1111
R. v. West, December 1997, British Columbia
Court of Appeal
R. v. Wiggins,  1 S.C.R. 62
R. v. Whittle, 1 September 1993 (S.C.C.)
R. v. Wise,  1 S.C.R. 527
R. v. Wong,  3 S.C.R. 36
Reference re Manitoba Language Rights, 
1 S.C.R. 863
Schrieber v. Canada (Attorney General),
 1 S.C.R. 841
Southam Inc. v. Hunter,  2 S.C.R.
Thomson Newspapers Ltd. v. Canada (Director
of Investigation and Research, Restrictive Trade Practices Commission),
 1 S.C.R. 425
Weatherall v. Canada (Attorney General),
 2 S.C.R. 872
The original version of this Current Issue Review was published in
February 1992; the paper has been regularly updated since that time.