Rights in the Criminal Process
What effect did the CoR have?
• CJS shift : Crime control to Due Process
• Police need to follow the rules, follow the law
• Changes the laws if violates the CoR
• A law that has the potential to convict a person who has not really done
anything wrong offends the principles of fundamental justice [re BC Motor
Vehicle Act, 1985]
s.7 effects
• Need to prove harm & proof of fault of the accused
• Eliminate vague, arbitrary laws
• Changed the way defences can be held – see R v Daviault
• Right to Silence + cannot self incriminate
• Disclosure of prosecution case – R v Stinchcombe
• Right to full answer and defence to accusations
R v Daviault [1994]
• Facts:
• Daviault (alcoholic) invited to home of wife’s friend (V) (65yrs, in wheelchair)
• D. consumes 8 beers, 40oz brandy (1 litre)
• V falls asleep, wakes & D pulls her out of chair, onto bed, rapes her, leaves
• D. – no memory. Extreme intoxication.
• Court
• Self induced intoxication = defence : Appeal = not defence
• SCC: defence : no mens rea
• SCC – reviewing now R v Chan & R v Sullivan
Section 8: Everyone has the right to be secure
against unreasonable search or seizure
• Pre CoR : Illegally obtained evidence could be used in court
• Now – Evidence obtained that violates a Charter right is excluded if its
admission “would bring the administration of justice into disrepute”
• Is the search & seizure unreasonable?
• Balance of rights of the individual vs effective law enforcement
Hunter v Southam Inc [1984]
• Facts: Combine Investigation Officers search Southam newspapers
under the Combine Investigation Act.
• Officers wanted to search everything. Refused to name the
complainant.
• SCC: violation of s.8: "tantamount to a licence to roam at large on the
premises of Southam Inc."
R v Collins [1987]
• Facts: Ruby Collins under surveillance by RCMP Drug Squad
• Officer used throat hold & pulled her to the floor. Found balloon with heroin in
her hand
• S.10 of Narcotics Control Act – search if officer “reasonably believe”
there are drugs
• Trial: RCMP did NOT have a reasonable grounds for search – based
on hearsay
• BUT – evidence was admitted
• SCC: Unreasonable
Collins test
1. the search must be authorized by law;
2. the law itself must be reasonable;
3. the manner in which the search is carried out must be reasonable
Illegal searches are automatically unresonable
If search is unreasonable – evidence is excluded
The question under s. 24(2) is whether the system's repute will be better
served by the admission or the exclusion of the evidence, and it is thus
necessary to consider any disrepute that may result from the exclusion
of the evidence. In my view, the administration of justice would be
brought into disrepute by the exclusion of evidence essential to
R v Stillman [1997]
• Arrested for rape & murder teen girl.
• Semen in vagina, bite mark on abdomen.
• Lawyers told police – S. refused to give samples
• Police take hair & teeth impressions
• Blows nose – taken
• S.8????
• SCC: All evidence was “conscriptive” (accused
forced to create it) – violation of s.8
R v Mann [2004]
• 23/12/2000, Winnipeg, midnight
• B&E report. Police stop & search suspect (Aboriginal male
in black jacket)
• Pat down – search pocket : 27g. Marijuana
• Court – violation of s8 - can pat down, no hand in pocket
R v AM [2008]
• Police + drug dog visit school
• Dog ID’s backpack
• Police search, find drugs
• Charge student with possession of
MJ & psilocybin (mushrooms) for
trafficking
• S.8 violation – evidence excluded,
acquitted
• Backpack = private
R. v. Spencer, [2014] SCC 43
• Spencer uses LimeWire to share child porn.
• Police request & get IP address from Shaw Communications
• S.8 challenge – reasonable expectation of privacy online.
• A “request” is not “lawful authority” to get users data
• SCC: Reasonable expectation of privacy, including browser history
• Shaw did not have to comply
• But – evidence not excluded, police acted in good faith
