Legal Developments: Charter of Rights and Freedoms
Criminal laws in Canada are constantly changing. At Heller, Rubel, our criminal lawyers stay up to date with the latest legal developments. When our criminal lawyers step into court, they are armed with the latest case-law. Here are some major developments in how the courts interpret your rights under the Canadian Charter of Rights and Freedoms.
THE RIGHT TO REMAIN SILENT
R. v. Singh  3 S.C.R. 405 : In Singh, the Supreme Court of Canada held that the right to silence applies any time that an individual interacts with a person in authority. The police can continue to question you even if you have asserted your right to silence. However, the longer the police persist in trying to get you to speak, the stronger the argument that any subsequent statement has not been obtained voluntarily. In Singh, the Court held that there was no violation of an accused’s right to silence, even though he had asserted his right to silence 18 times during his interrogation in a police lock-up.
R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.) In Hebert, the Supreme Court of Canada held that Section 7 of the Charter of Rights and Freedoms gives detained persons a right to remain silent. That right is based on the fundamental concept of your right to freely choose whether to speak to the authorities or remain silent.
R. v. White,  2 S.C.R. 417 (S.C.C.) In White, the Supreme Court of Canada held that compelled statements such as Highway Traffic Act accident reports can not be used against you in criminal proceedings.
THE RIGHT TO OBTAIN AND INSTRUCT COUNSEL WITHOUT DELAY
R. v. Sinclair  S.C.J. No. 35: In Sinclair, a majority of the Supreme Court Canada held that your right to counsel requires that the police inform you of that right and give you a reasonable opportunity to consult with a criminal lawyer. Furthermore, if there is a change in the circumstances of the investigation (e.g. you face more serious charges than you thought), the police have to let you consult again with a criminal lawyer. However, the Court further held that the right to counsel does not give you a right to have a lawyer present while you are being interrogated by the police.
R. v. Suberu  2 S.C.R 460: The Supreme Court of Canada held that you have a right to retain and instruct counsel the moment you are detained by the police, unless there are safety concerns for the police or public in giving you your right to counsel immediately.
R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C): In Prosper, the Supreme Court of Canada held that the police must give detainees information about access to counsel free of charge and duty counsel who can provide immediate legal advice.
THE RIGHT TO BE FREE FROM UNREASONABLE SEARCHES OR SEIZURES
R. v. Fearon, 2014 S.C.J. 77: In Fearon, a majority of the Supreme Court of Canada held that the police will be justified in searching a cell phone or similar device incidental to an arrest, where the arrest was lawful; the police had a valid and objectively reasonable purpose in searching the device (such as to protect the public, preserve evidence, or discover evidence where the investigation would be significantly hampered without being able to promptly search the cell phone upon arrest); the extent of the search was tailored to the search's purpose; and the police took detailed notes of what they examined and how the device was searched. The majority further held that, generally speaking, a search of a cell phone or similar device incident to arrest would not be justified in relation to "minor offences."
R. v. MacDonald, 2014 SCC 3: In MacDonald, the Supreme Court of Canada held that the police have the power to conduct 'safety searches' where the police beleive on reasonable grounds that there is an imminent threat to the officers' safety or the safety of the public.
R. v. Vu, 2013 SCC 60: In Vu, the Supreme Court of Canada held that the right against unreasonable searches and seizures requires that if the police seek a warrant to search a place and intend to search computers found within that place, they must first satisfy the judge authorizing the warrant that the police have reasonable grounds to beleive that any computers they discover will contain the evidence that they are looking for. If, in the course of a warrant-search, the police come across a computer for which they have no warrant, they may seize the computer but must then obtain a further warrant allowing them to search it. The Court also held that a "cell phone" will be considered to be a "computer" for the purposes of searches and seizures where the cell phone has capacities that are equivalent to a computer.
R. v. Chehil, 2013 SCC 49: In Chehil, the Supreme Court of Canada elaborated on the requirement that the police have a "reasonable suspicion" that there is contraband present before deploying drug-sniffer dogs. The Court held that i) a "reasonable suspicion" must be based on the totality of circumstances and common sense; ii) a suspicion will not be reasonable when it is a generalized suspicion; iii) while the police can't ignore exculpatory, neutral or equivocal information in deciding whether or not they have a "reasonable suspicion," they do not have to further investigate the subject to seek out exculpatory information or rule out possible innocent explanations; iv) while the police must point to specific conduct or evidence of criminal activity on the part of the accused in order to justify a "reasonable suspicion," that evidence doesn't have to consist of unlawful behaviour or a specific criminal act; v) while police profiles can be considered in evaluating reasonable suspicion, profiles are not a substitute for objective facts; and vi) while an officer's training and experience could provide a basis for characterizing that officer's suspicion as "reasonable," mere "hunches" or "intuition" won't suffice.
R. v. MacKenzie, 2013 SCC 50: in MacKenzie, a majority of the Supreme Court of Canada held that i) police officer training and experience can play an important role in assessing whether the "reasonable suspicion" standard described in Chehil has been met; ii) in considering whether the officer's suspicion was objectively reasonable, the court should consider the facts through the lens of a reasonable person standing in the shoes of the police officer; and iii) trial judges must appreciate the significance of police training and experience in determining whether the officer's suspicion was objectively reasonable.
R. v. Cole 2012 SCC 53: In Cole, the Supreme Court of Canada held that while workplace policies and practices can diminish your expectation of privacy in your work computer, they do not eliminate that expectation of privacy altogether.
R. v. Tse  S.C.J. No. 16: In Tse, the Supreme Court of Canada struck down the "emergency wiretap" provision of the Criminal Code. The provision allows the police to use a wiretap without a warrant under certain urgent circumstances. The Court found that the provision violated the right to be free from unreasonable searches or seizures because there were no accountability mechanisms that required the police to notify individuals after-the-fact that they had been the subjects of a warrantless wiretap. The Court gave Parliament 12 months to redraft the provision before the provision became invalid.
R. v. Patrick 2009 SCC 17: In Patrick, the Supreme Court of Canada held that the police can only search your garbage without a warrant once you have thrown it onto the curb.
R. v. Gomboc  S.C.J. No. 55. In Gomboc, a majority of the Supreme Court of Canada held that the police did not need to get a warrant to install a device that would measure electrical power flowing into the house of someone suspected of housing a marijuana grow operation.
R. v. Kang-Brown,  1 S.C.R. 456: In Kang-Brown, the Supreme Court of Canada held that the police can only use drug-sniffer dogs when the police have a reasonable suspicion that there is contraband present.
R. v. Mann  3 S.C.R. 59: In Mann, the Supreme Court of Canada held that the police can only conduct a `pat down` search when they have detained you and have reasonable grounds to believe that their safety or the safety of others is at risk.
R. v. Caslake,  1 S.C.R. 51: In Caslake, the Supreme Court of Canada held that the police can only search someone who they have arrested if the purpose of the search is to: i) protect the police ii) protect the evidence iii) discover evidence or for some other valid purpose, and those purposes are objectively reasonable.
R. v. Plant (1993), 84 C.C.C. (3d) 203 (S.C.C.) In Plant, the Supreme Court of Canada held that people have no reasonable expectation of privacy in computerized records of a city utilities commission (such as hydro records) that do not contain information of a personal and confidential nature.
R. v. Evans (1996), 104 C.C.C. (3d) 23 (S.C.C.). In Evans, the Supreme Court of Canada held that a warrantless search is presumed to be unreasonable unless the party seeking to justify it can rebut that presumption.
Hunter v. Southam Inc.  2 S.C.R. 145 (S.C.C.): In Hunter, the Supreme Court of Canada held that section 8 of the Charter of Rights and Freedoms protects people, and not places. The Court also held that for a search and seizure to be valid, it must be authorized by law, such as through a valid search warrant.
THE RIGHT NOT TO BE ARBITRARILY DETAINED OR IMPRISONED
R. v. Aucoin, 2012 SCC 66: In Aucoin, the Supreme Court of Canada held that when an individual is stopped for a traffic violation (like speeding), the police will rarely be authorized to detain them in the back of their police cruiser. If there are other reasonable means to ensure that the individual won't flee the scene, then detaining that individual in a police cruiser will amount to an unlawful detention.
R. v. Grant,  2 S.C.R. 353: In Grant, the Supreme Court of Canada defined “detention” as a situation where your liberty suspended by a significant physical or psychological restraint. You are “psychologically detained” when you have a legal obligation to comply with the state actor‟s request or command, or when a reasonable person would think that they had no choice but to comply with the request or command. You have a right to counsel the moment you are detained.
R. v. Mann,  3 S.C.R. 59: In Mann, the Supreme Court of Canada held that the police can only detain someone if they have reasonable grounds to suspect that they are connected to a particular crime, and if the detention is objectively and reasonably necessary.
R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.): In Mellentin, the Supreme Court of Canada held that the police could not use 'check stops' such as RIDE programs as a pretext to search every vehicle, driver and passenger that is pulled over.
THE RIGHT TO A FAIR TRIAL
R. v. N.S., 2012 SCC 72: In N.S., the Supreme Court of Canada held that a witness will be required to remove her niqab while testifying in a criminal case if: i) it is necessary to prevent a serious risk to the fairness of the trial; and ii) the benefits of requiring the witness to remove her niqab while testifying outweigh the detrimental effects of doing so.
R. v. Barros 2011 SCC 51: In Barros, the Supreme Court of Canada held that the defence is entitled to do what it can to learn of the identity of a confidential informant, so long as the methods that the defence uses are lawful.
R. v. McNeil 2009 SCC 3: In McNeil, the Supreme Court of Canada held that the Crown Attorney must disclose any information regarding findings of serious misconduct by police officers involved in the investigation against you, when the misconduct is either related to the investigation or could reasonably impact the case against you. The Court also held that Crown Attorneys must actively seek out information held by other government agencies where there is a reasonable likelihood that the information is relevant.
Charkaoui v. Canada,  1 S.C.R. 350: In Charkaoui, the Supreme Court of Canada held that the right to a fair hearing includes the right to a hearing before an independent and impartial magistrate; the right to know the case against you; and the right to be able to answer that case.
R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.): In Stinchcombe, the Supreme Court of Canada held that the prosecution has a duty to disclose to the defence all relevant material in its possession, regardless if it is incuplatory or exculpatory and regardless of whether the prosecution intends to introduce that evidence at trial.
THE RIGHT TO BE PRESUMED INNOCENT UNTIL PROVEN GUILTY
R. v. St-Onge Lamoureux, 2012 SCC 57: In St-Onge Lamoureux, a majority of the Supreme Court of Canada held that certain presumptions imposed by the Criminal Code in relation to persons charged with driving with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood ("Over 80") violated the presumption of innocence.
R. v. Vaillancourt (1987) 39 C.C.C. (3d) 118 (S.C.C.): In Vaillancourt, the Supreme Court of Canada held that the prosecution must satisfy the court beyond a reasonable doubt of each of an offence's essential elements. Your right to be presumed innocent will be violated any time the legislature allows for your conviction even though there is a reasonable doubt on any essential element of the offence with which you have been charged.
R. v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.): In Oakes, the Supreme Court of Canada held that the presumption of innocence has, at a minimum, three components: (i) an individual must be proven guilty beyond a reasonable doubt; (ii) the prosecution must bear the burden of proof; and (iii) criminal prosecutions must be carried out in accordance with lawful procedures and principles of fairness.
THE RIGHT NOT TO BE A WITNESS AGAINST YOURSELF
R. v. Nedelcu,  S.C.J. No. 59: In Nedelcu, the Supreme Court of Canada held that a person facing criminal charges can be cross-examined on prior inconsistent statements that they gave during a civil examination for discovery. While the prior statements cannot be used to prove the person's guilt (i.e. prove the essential elements of the offence), they can be used to challenge the person's credibility (even though this could lead the judge or jury to disbeleive that person and find them guilty).
R. v. Henry,  3 S.C.R. 609 (S.C.C.): In Henry, the Supreme Court of Canada held that the Charter protects witnesses who are compelled to testify in proceedings and that the Crown cannot use that testimony against you in future proceedings. However, the Court further held that an accused who freely testifies at their retrial can be cross-examined on any inconsistent testimony they freely gave at their first trial.
THE RIGHT TO AN INTERPRETER AT YOUR TRIAL
R. v. Tran,  2 S.C.R. 951: In Tran, the Supreme Court of Canada set out the standard for interpreters. The interpretation must be continuous, precise, impartial, competent and contemporaneous. A defendant's Charter rights will be violated when a mistake in interpretation affects the defendant's vital interests.
THE RIGHT TO BE FREE FROM ANY CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT
R. v. Ferguson,  1 S.C.R. 96: In Ferguson, the Supreme Court of Canada held that courts could not exempt individuals from cruel and unusual punishments on a case-by-case basis. If the mandatory minimum sentence imposed by law is found to be cruel and unusual in even one case, the Court must strike the law down.
R. v. Morrisey  S.C.J. No. 39: In Morrisey, the Supreme Court of Canada upheld as constitutional the four year mandatory minimum sentence for criminal negligence causing death with a firearm.
R. v. Smith (1987), 34 C.C.C. (3d) 97 (S.C.C.) — In Smith, the Supreme Court of Canada held that a punishment would be “cruel and unusual” (and in violation of your rights) where it is so excessive as to outrage standards of decency or is grossly disproportionate to the offence or is arbitrarily imposed.