Case Law Review Flashcards
(25 cards)
R v. Grant 2009 SCC – Investigative Detention and RTC
Summary
On ____ two Toronto police officers on an undercover patrol in a high-crime area noticed the defendant, Mr. Grant, walking along the road. The officer’s thought Mr. Grant was behaving suspiciously and asked a uniformed officer who was also in the area to speak to him. The officer approached Mr. Grant, asking for his name and identification. At some point in the conversation, Mr. Grant adjusted his coat, causing the officer to ask him to “keep his hands in front of him”. Soon after, the two undercover officers, concerned for officer safety joined him. The officers flashed their badges and stood behind uniform officer blocking Mr. Grant’s way forward. Uniform officer continued to question Mr. Grant, who eventually admitted that he was carrying a gun. The officers arrested Mr. Grant and read him his legal rights, including his right to speak to a lawyer.
November 17th, 2003,
Decision:
The Supreme Court ruled that Mr. Grant had been _____ furthermore, it ruled that his right to _____ had also been breached in violation of s 10(b). Despite these two breaches of his Charter rights, the Supreme Court allowed the gun to be admitted as evidence and dismissed Mr. Grant’s appeal.
arbitrarily detained by police in violation of s 9 of the Charter;
speak to a lawyer
Summary of reasons of the Supreme Court:
The SCC first examined the moment of Mr. Grant’s detention by police. This was a crucial determination because detention triggers two important Charter rights: first, _______. The Crown argued that the detention began when Mr. Grant was arrested. Mr. Grant argued that his detention began when police told him to keep his hands in front of him. The SCC agreed with Mr. Grant.
the right not to be detained arbitrarily, under s 9; and second, the right to retain a lawyer, under s 10(b)
Summary of reasons of the Supreme Court:
In Grant, the SCC tried to strike a balance in its definition of ‘detention’, one which would allow the police to effectively do their jobs while also protecting the rights of individuals from state interference. Detention consists of a police intrusion on an individual’s physical or psychological liberty. Where a person is physically restrained by the police, the moment of detention is self- evident. SCC concluded that people can be psychologically detained in two situations:
- When they are under a true legal obligation not to walk away from a police officer or other agent of the state, and
- When they REASONABLY BELIEVE that they have no option to walk away from a police officer or other agent of the state.
Summary of reasons of the Supreme Court:
Courts must look at the specific facts of each case through the eyes of a reasonable person in the place of the accused individual. SCC outlined the following factors to be considered:
- The circumstances as reasonably perceived by the individual, including the conduct that gave rise to the encounter with the police and whether the individual was singled out.
- The police conduct, with specific attention to the use of tactics, length, tone, and content of the interaction between the police and the accused individual; and
- The characteristics of the individual stopped, including his or her stature, age, visible minority status and level of sophistication.
Summary of reasons of the Supreme Court:
SCC recognized that police officers must be able to carry on with their everyday functions without worrying about detaining members of the public by accident. The Supreme Court reaffirmed that normal interactions with the police and the public will not
give rise to psychological detentions, since this would trigger constant requirements of the right to counsel.
Summary of reasons of the Supreme Court:
A detention will only be justifiable if the police have ____ an individual is participating in criminal activity. If the police lack such _____ and still detain an individual, that detention is considered arbitrary and in violation of section 9 of the Charter. The police in this case admitted they had no ______ to detain Mr. Grant, therefore the Court found that the detention was arbitrary and a violation of section 9 of the Charter. When detained by police, an individual has the right to _____. The police officers in this case provided Mr. Grant with an opportunity to contact a lawyer only after they formally arrested him. SCC found that since Mr. Grant had not been given a chance to speak to a lawyer after being psychologically detained, his 10(b) Charter rights had been violated.
‘REASONABLE AND PROBABLY GROUNDS’ to believe
reasonable and probable grounds
reasonable grounds
contact a lawyer and to be informed of that right
Summary of reasons of the Supreme Court:
To limit the advantages available to the police, and therefore the state, when evidence is discovered as a result of a breach of an individual’s Charter rights, s 24(2) of the Charter prevents the use of
that evidence when it “would bring the administration of justice into disrepute.”
Summary of reasons of the Supreme Court:
In Grant, the Supreme Court articulated three avenues of inquiry to assist a court with determining whether evidence should be excluded. Courts must consider:
- the seriousness of the Charter-infringing state conduct,
- the impact of the breach on the Charter protected interests of the accused, and,
- society’s interest in the adjudication of the case on its merits.
Summary of reasons of the Supreme Court:
SCC determined that the evidence in question, should not be excluded from the trial. With respect to seriousness of the breach, the Court ruled that while the officers did violate sections 9 and 10(b) of the Charter, the violations were not considered
flagrant. In other words, the officers in this case acted “in good faith” and there was no indication that they had specifically targeted Mr. Grant or willfully disregarded his Charter rights.
Summary of reasons of the Supreme Court:
Lastly, considering society’s interests in the justice system, the Court noted that the gun was highly reliable physical evidence and was essential to Mr. Grant’s subsequent conviction for various weapons offences. Since society has an interest in punishing and preventing gun-related crime, in this case, the
public interest in the truth-seeking function of the justice system weighed heavily against exclusion of the evidence and in favour of a trial adjudicated on its merits. The Court concluded that the gun should be admitted as evidence. Consequently, the Court dismissed Mr. Grant’s appeal and upheld his conviction.
R v. Jordan 2016 SCC – Right to Be Tried Within a Reasonable Time, 11(b)
What does it mean to be tried in a reasonable time? In R v Jordan, a majority of the Supreme Court of Canada answered this question with a new framework for deciding which delays to trial are reasonable and which are not. Jordan was a case involving a man charged with fourteen (14) drug offences who waited over
four years for his trial. The Supreme Court unanimously agreed that Mr. Jordan’s charges should be dismissed, with the majority introducing new timelines for determining what is unreasonable delay.
R v. Jordan 2016 SCC – Right to Be Tried Within a Reasonable Time, 11(b)
The new framework introduces time limits by which criminal trials should be complete or have an expected date of completion:
eighteen (18) months for trials in provincial court or thirty (30) months for trials in superior courts.
R v. Jordan 2016 SCC – Right to Be Tried Within a Reasonable Time, 11(b)
The 2016 Jordan decision seeks to address the “culture of complacency” that has characterized the criminal justice system in Canada. This “culture” refers to the
unnecessary trial procedures, inefficient practices, and lack of institutional resources (such as low numbers of prosecutors, judges, and court clerks) which are accepted as normal. These factors not only contribute to delay, but they also cause harm to the public’s confidence in the justice system. The new approach stresses that the onus to avoid delay is on all parties: the courts, the prosecutors, and the defence lawyers.
R v. Jordan 2016 SCC – Right to Be Tried Within a Reasonable Time, 11(b)
What is the remedy for unreasonable delay?
If the court finds the delay is unreasonable, the remedy is a
judicial stay of proceedings. A stay means that the accused faces no further prosecution or any outcomes resulting from the charges. The practical effect of a stay is similar to that of an acquittal because the charge does not appear on the accused’s criminal record. A stay is currently the only remedy for a finding of unreasonable delay.
R v. Jordan 2016 SCC – Right to Be Tried Within a Reasonable Time, 11(b)
The new timelines for delay
The “clock” for calculating delays starts when the accused is charged with a criminal offence. From that point, the trial must be
complete within the set time limits: 18 or 30 months, depending on the level of court in which the trial is being held.
R v. Jordan 2016 SCC – Right to Be Tried Within a Reasonable Time, 11(b)
What happens to delays over the time limit?
Typically, delays over the time limit will result in the charges being stayed. With delays over the time limit (over 18 or 30 months), the court will assume that the delay is
unreasonable. However, the Crown can still try to establish that the delay is reasonable because of exceptional circumstances or unexpected complexity.
R v. Prosper 1994 SCC – Implementational Duty of RTC
Knowledge of statement law is essential for investigative interviewers; this is especially true when questioning suspects who have been detained or arrested. Most investigators understand and comply with their duty to inform such suspects of their Charter right to legal counsel and silence. However, there is an
additional legal duty, which only applies in specific circumstances, that many officers seem to be largely unaware of – the duty to provide suspects with a “Prosper warning” before questioning them.
R v. Prosper 1994 SCC – Implementational Duty of RTC
A Prosper warning is only required where a suspect first asserts their right to counsel and then changes (or apparently changes) their mind after reasonable efforts have been made to contact counsel, but where such efforts were unsuccessful. The Supreme Court case of Prosper (1994) gave birth to the
“Prosper warning” 25 years ago and reaffirmed it in Willier (2010), stating that where such circumstances exist, police are required to explicitly inform the detainee (again) of their right to a reasonable opportunity to contact counsel, and of the police duty to hold off their questioning until such an opportunity has been provided (R. v. Prosper, 1994 CanLII 65 (SCC); R v. Willier, 2010 SCC 37 (CanLII)).
R v. Prosper 1994 SCC – Implementational Duty of RTC
While the court did not prescribe the specific wording of a Prosper caution, the following elements should be communicated to a suspect:
- You have the right to remain silent.
- You have the right to a reasonable opportunity to consult legal counsel and you initially indicated that you wished to do so. However, you are now indicating that you do not wish to speak to a lawyer.
- Because you have changed your mind, I have a duty to advise you again that you have the right to speak to a lawyer, and that I will give you another opportunity to do so if you wish.
- Until you are certain about whether or not you wish to speak with a lawyer, I am legally obligated not to attempt to take any statement from you or to ask you to participate in any investigative process that could result in you providing incriminating evidence to me.
- Do you understand?
- What would you like to do?
R v. Prosper 1994 SCC – Implementational Duty of RTC
The failure of police to provide a detainee with a Prosper warning when required is not merely a “technical” violation of the Charter. The Prosper warning is meant to ensure individuals who have been frustrated in their attempts to exercise their right to counsel do not
give it up too easily. A Prosper warning – where required – is essential in ensuring that where a suspect waives their right to silence, they do so voluntarily and with knowledge of the consequences of that choice.
R v. Stinchcombe 1991 SCC - Disclosure Obligations
A lawyer was charged with breach of trust, theft, and fraud. His former secretary was a Crown witness at the preliminary inquiry, where she gave favourable evidence for the defence. After the preliminary inquiry, but prior to the trial, she was interviewed by an RCMP officer, and a tape-recorded statement was taken. During the trial, she was interviewed again by a police officer, and a written statement was taken. Defence counsel was informed of the existence but not the
content of the statements. His requests for disclosure were refused. The defence lawyer learned that the Crown was not going to call that witness to the stand during trial. Counsel sought an order that the witness be called or that the Crown disclose contents of the statements.
R v. Stinchcombe 1991 SCC - Disclosure Obligations
Issue: Was the Crown under an obligation to disclose the contents to the defence?
Supreme Court Analysis:
The Crown has a legal duty to disclose all relevant information to the defence. The Crown can’t use its investigation for securing a conviction. It is the property of the public to be used to ensure that justice is done. Discretion must be exercised with respect to the timing and relevance of information. The Crown’s discretion is reviewable by the judge, who should be guided by the
general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. Counsel for the accused must bring any failure of the Crown to comply with its duty to disclose to the trial judge ASAP, so that the judge can remedy any prejudice, and avoid a new trial. Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Crown counsel was not justified in refusing disclosure here on the ground that the witness was not worthy of credit. Whether the witness is credible is for the trial judge to determine after hearing the evidence.
R v. Stinchcombe 1991 SCC - Disclosure Obligations
Holding: There should be a new trial. Crown has a legal duty to disclose all relevant information (exculpatory or inculpatory) to the defence. But Crown has the
discretion with respect to timing and relevance of information.
